Viamedia, Inc. v. Comcast Corporation et al

Northern District of Illinois, ilnd-1:2016-cv-05486

TRANSCRIPT OF PROCEEDINGS held on 7/12/17 before the Honorable Amy J. St. Eve. Court Reporter Contact Information: Joseph Rickhoff, 312-435-5562, <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 8/15/2017. Redacted Transcript Deadline set for 8/25/2017. Release of Transcript Restriction set for 10/23/2017.

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Case: 1:16-cv-05486 Document #: 172 Filed: 07/25/17 Page 1 of 10 PageID #:5198 1 1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS 2 EASTERN DIVISION 3 VIAMEDIA, INC.,) Docket No. 16 C 5486) 4 Plaintiff,)) 5 vs.)) 6 COMCAST CORPORATION AND) COMCAST SPOTLIGHT, INC.,) Chicago, Illinois 7) July 12, 2017 Defendants.) 10:30 o'clock a.m. 8 TRANSCRIPT OF PROCEEDINGS - STATUS & MOTION 9 BEFORE THE HONORABLE AMY J. ST. EVE 10 APPEARANCES: 11 For the Plaintiff: KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, PLLC 12 BY: MR. KENNETH M. FETTERMAN 1615 M Street, NW, Suite 400 13 Washington, D.C. 20036 14 RICHARD J. PRENDERGAST, LTD. BY: MR. MR. MICHAEL T. LAYDEN 15 111 W. Washington St., Suite 1100 Chicago, Illinois 60602 16 For the Defendants: DAVIS, POLK & WARDWELL 17 BY: MR. ARTHUR BURKE 450 Lexington Street 18 New York, New York 10017 19 JENNER & BLOCK, LLP BY: MR. DAN FENSKE 20 353 North Clark Street Chicago, Illinois 60654 21 Court Reporter: MR. JOSEPH RICKHOFF 22 Official Court Reporter 219 S. Dearborn St., Suite 1232 23 Chicago, Illinois 60604 (312) 435-5562 24 * * * * * * * * * * * * * * * * * * PROCEEDINGS RECORDED BY 25 MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER Case: 1:16-cv-05486 Document #: 172 Filed: 07/25/17 Page 2 of 10 PageID #:5198 2 1 THE CLERK: 16 C 5486, Viamedia vs. Comcast. 2 MR. LAYDEN: Good morning, your Honor, Mike Layden on 3 behalf of Viamedia. 4 MR. FETTERMAN: Good morning, your Honor, Ken 5 Fetterman on behalf of Viamedia. 6 MR. BURKE: Good morning, your Honor, Arthur Burke on 7 behalf of Comcast. 8 MR. FENSKE: And Dan Fenske on behalf of Comcast. 9 THE COURT: Good morning. 10 You are here for status. 11 I also have defendants' motion to compel compliance 12 with the Court's June 9th order. I have reviewed your 13 response, as well as your reply, that were both filed 14 yesterday. 15 Your motion to compel compliance is granted, in part, 16 and denied, in part. 17 I am denying it as to Interrogatory No. 4. I find 18 that that has sufficiently been answered based on where we are 19 in the case. Obviously, you are going to have to supplement 20 that at some point after we have had discovery; but, for 21 purposes of now, that is sufficiently answered. 22 As to Interrogatory No. 5, you have not indicated 23 what the product market is. I understand from your response 24 that you have said you offered to do that. You should do 25 that. You should supplement Interrogatory No. 5 by July 18th. Case: 1:16-cv-05486 Document #: 172 Filed: 07/25/17 Page 3 of 10 PageID #:5198 3 1 So, the motion is granted, in part, and denied, in 2 part. 3 I also want to talk about your motion challenging -- 4 plaintiff's motion challenging -- improper confidentiality 5 designations. 6 From looking at the briefing on this, it appears -- 7 Mr. Burke, correct me if I am wrong -- that Comcast has 8 already de-designated a substantial portion of the DOJ 9 materials. You have de-designated them from highly 10 confidential. 11 MR. BURKE: That is correct. Well over, I'd say, in 12 toto, 70 or 80 percent of them have been de-designated to 13 being just confidential. That's correct. 14 THE COURT: I do not have that. I have clean 15 versions of everything, so I do not know what has been 16 de-designated and what has not. So, I do not know what is 17 left as highly confidential and I cannot make a determination. 18 First of all, I should not have to read a hundred percent if I 19 do not need to and I do not have to make a determination on 70 20 percent of it. 21 If you could, please, provide me by tomorrow with a 22 copy indicating somehow -- highlight -- what is still highly 23 confidential so I can review that and make that determination, 24 please. 25 MR. BURKE: Certainly, your Honor. Case: 1:16-cv-05486 Document #: 172 Filed: 07/25/17 Page 4 of 10 PageID #:5198 4 1 THE COURT: Then I will rule on that. 2 MR. FETTERMAN: Just to be clear, the materials were 3 both deposition transcripts, as well as the DOJ. 4 THE COURT: As well as the white paper? 5 MR. FETTERMAN: Yes, ma'am. 6 THE COURT: It does not change where I am, though, 7 because I have unredacted versions. I do not know what is 8 still highly confidential and what is confidential. So, you 9 have asked me to make a determination that the highly 10 confidential material has improperly been marked as highly 11 confidential, but I do not know what remains highly 12 confidential after the de-designation. So, I need to see 13 that, if you would, please. Do not redact. Just highlight -- 14 MR. BURKE: We'll highlight it, your Honor. 15 THE COURT: Highlight, please, what remains -- 16 MR. BURKE: Sure. 17 THE COURT: -- highly confidential so if I need to 18 read it in context with the confidential, I can still do that. 19 MR. BURKE: Yep. 20 THE COURT: Drop that off by tomorrow, please. 21 Okay. So, you are also here for status. 22 You still have time on your discovery. Fact 23 discovery closes September 26th. 24 Where are you in terms of status on discovery, 25 starting depositions, settlement discussions, et cetera? Case: 1:16-cv-05486 Document #: 172 Filed: 07/25/17 Page 5 of 10 PageID #:5198 5 1 MR. FETTERMAN: Depositions started yesterday. The 2 first deposition. I was there. There's another deposition 3 that commenced briefly yesterday and was postponed at the 4 request of the party that's been rescheduled. And we've 5 scheduled, I think, everything with the exception of one 6 witness that they've requested dates for in September. 7 THE COURT: Okay. Great. 8 So, all the other depositions are scheduled? 9 MR. BURKE: Yeah. I think there may be some 10 additional depositions that are requested by both parties, but 11 we've got probably a total of 20 depositions scheduled at this 12 point between the two parties. 13 THE COURT: Great. 14 And document production, is that all done? Are there 15 still little issues you are tying up? 16 MR. FETTERMAN: There are still issues with document 17 production. Both parties have made substantial additional 18 productions recently. 19 We served a second set of document requests, to which 20 Comcast objected in large part or otherwise tied it to 21 responses they gave us the day before the objections, and 22 we're trying to resolve that. I didn't think we needed to tee 23 that up for today. But that's outstanding. We need to get it 24 resolved promptly. 25 And they've also served a third set of document Case: 1:16-cv-05486 Document #: 172 Filed: 07/25/17 Page 6 of 10 PageID #:5198 6 1 requests, which we tried to respond to as part of our, what 2 I'll call, refresh production. We made production already on 3 that. Although the due date was just a couple days ago, we've 4 already produced documents for that. 5 There's a fourth set of document requests, as I said, 6 that mirrors the requests that we served on them -- the second 7 set of requests -- that we're trying to work through, although 8 the responses and objections are not quite due on that for, I 9 think, approximately two weeks. 10 THE COURT: Okay. 11 MR. BURKE: I don't really disagree with anything. I 12 think the document production is substantially completed. 13 Both parties have some residual issues that we're endeavoring 14 to work out, and hopefully we'll be able to do so without 15 troubling your Honor. 16 THE COURT: Fact discovery, as I indicated, closes 17 September 26th and first expert reports are due on October 18 16th. So, that will come up on us quickly. I assume you were 19 thinking about your experts already. 20 In light of that, and in light of how expensive we 21 know expert discovery always is, have you had any further 22 settlement discussions or is there any interest in sitting 23 down with Magistrate Judge Finnegan to see if you can resolve 24 this case before going down the expensive expert route, or do 25 you want to just march forward? Case: 1:16-cv-05486 Document #: 172 Filed: 07/25/17 Page 7 of 10 PageID #:5198 7 1 MR. FETTERMAN: My understanding is there will be 2 business-to-business conversations -- I believe Mr. Burke will 3 also be there -- at the end of July to try to get this 4 resolved. With regard to whether that will be more effective 5 than seeing the magistrate down the road, I don't know the 6 answer to that. 7 MR. BURKE: That's correct. Actually, I'm not going 8 to be attending, but there is going to be a conversation at 9 the end of the month between business people to see whether 10 there's a potential resolution here. 11 THE COURT: Okay. 12 That is the end of July? 13 MR. BURKE: End of July, that's correct. 14 THE COURT: Why don't you call Katie one way or the 15 other, please, by, let's say, August 7th and let her know 16 after those business discussions have taken place if there is 17 any interest in going to see Magistrate Judge Finnegan for a 18 settlement conference. When the business people meet, that is 19 something they should discuss -- if they cannot resolve it on 20 their own; if they want to come and see Magistrate Judge 21 Finnegan; if they have any interest in that. 22 If not, you have your dates. You will move forward. 23 But make sure that you advise your respective clients that 24 that is an option, and that I have ordered that they have a 25 discussion about that when they meet at the end of the month. Case: 1:16-cv-05486 Document #: 172 Filed: 07/25/17 Page 8 of 10 PageID #:5198 8 1 MR. FETTERMAN: Yes, your Honor. 2 MR. BURKE: Understood. 3 THE COURT: What else in terms of status? 4 MR. FETTERMAN: I think the parties are working hard 5 to try to get through the discovery period. Obviously, the 6 depositions are upcoming -- a lot of them -- and there may be 7 issues that we don't anticipate now, but we're working hard to 8 resolve them and not bring them to your attention if we're 9 able to do so. 10 THE COURT: On a going-forward basis, if you do have 11 discovery disputes, before bringing them to the Court's 12 attention, you must meet and confer in person and certify that 13 you have done that. 14 MR. FETTERMAN: Yes, your Honor. 15 THE COURT: Then please come back here -- let's have 16 another status on September 12th. 17 MR. BURKE: I want to check if we have a deposition 18 of anyone in particular that day. 19 THE COURT: Or the 11th, I think, would work. 20 MR. FETTERMAN: I think there's one on the 14th, but 21 I don't think there's one on the 12th. 22 MR. BURKE: Okay. 23 I'm having trouble with my phone, but I'll take that. 24 MR. FETTERMAN: I think -- 25 THE COURT: I will set it for the 12th. Case: 1:16-cv-05486 Document #: 172 Filed: 07/25/17 Page 9 of 10 PageID #:5198 9 1 THE CLERK: September 12th at 9:00 a.m. 2 THE COURT: If for some reason that does not work or 3 you have a deposition, just call Katie and we can give you a 4 different -- 5 Is that a BlackBerry, Mr. Burke? 6 MR. BURKE: It is. I've saved it, your Honor. 7 THE COURT: That is the problem. 8 (Laughter.) 9 MR. BURKE: Well, no, I -- there we go. I have 10 confirmed -- it's very good at typing e-mails -- that we don't 11 have a deposition on -- 12 THE COURT: I just have not seen one of those in a 13 while. 14 MR. BURKE: I know. You can only get them on eBay 15 now. 16 THE COURT: Does that work? Does the 12th work? 17 MR. BURKE: The 12th works. 18 THE COURT: Okay. So, September 12th at 9:00 19 o'clock. 20 Please do not forget to call Katie one way or the 21 other on the 7th. If you could call her together, that would 22 be helpful, with your joint position, and I will see you in 23 September. 24 MR. BURKE: Thank you. 25 MR. FETTERMAN: Thank you. Case: 1:16-cv-05486 Document #: 172 Filed: 07/25/17 Page 10 of 10 PageID #:5198 10 1 * * * * * 2 3 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. 4 5 /s/ Joseph Rickhoff July 18, 2017 6 Official Court Reporter 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25