Viamedia, Inc. v. Comcast Corporation et al

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

TRANSCRIPT OF PROCEEDINGS held on 9/12/17 before the Honorable Amy J. St. Eve. Order Number: 28284. Court Reporter Contact Information: Joseph Rickhoff, 312-435-5562, joseph_rickhoff@ilnd.uscourts.gov. <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 www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 10/10/2017. Redacted Transcript Deadline set for 10/19/2017. Release of Transcript Restriction set for 12/18/2017.

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Case: 1:16-cv-05486 Document #: 181 Filed: 09/18/17 Page 1 of 9 PageID #:5217 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) 7 COMCAST SPOTLIGHT, INC.,) Chicago, Illinois) September 12, 2017 8 Defendants.) 9:28 o'clock a.m. 9 TRANSCRIPT OF PROCEEDINGS - STATUS 10 BEFORE THE HONORABLE AMY J. ST. EVE 11 APPEARANCES: 12 13 For the Plaintiff: RICHARD J. PRENDERGAST, LTD. BY: MR. MR. MICHAEL T. LAYDEN 14 111 W. Washington St., Suite 1100 Chicago, Illinois 60602 15 16 For the Defendants: DAVIS, POLK & WARDWELL BY: MR. ARTHUR BURKE 17 450 Lexington Street New York, New York 10017 18 JENNER & BLOCK, LLP 19 BY: MS. SALLY SEARS CODER 353 North Clark Street 20 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 #: 181 Filed: 09/18/17 Page 2 of 9 PageID #:5217 2 1 THE CLERK: 16 C 5486, Viamedia vs. Comcast. 2 MR. LAYDEN: Good morning, your Honor, Mike Layden on 3 behalf of the plaintiff Viamedia. 4 MR. BURKE: Good morning, your Honor, Arthur Burke on 5 behalf of defendant Comcast Corporation. 6 MS. SEARS CODER: And Sally Sears Coder on behalf of 7 defendants. 8 THE COURT: Good morning. 9 You are here for status. 10 You have been so quiet. I have not seen you in six 11 weeks, I think. 12 MR. LAYDEN: We've tried hard. 13 THE COURT: What is the status? 14 MR. LAYDEN: The parties have engaged in a number of 15 depositions, both parties and third parties; have made 16 substantial progress. We've tried to work through, are 17 continuing to work through, a number of written discovery 18 issues. 19 There are still some more depositions to complete 20 before the cutoff of 9-26. There are right now five 21 depositions, I believe, that the parties have talked about 22 agreeing to after that time period. We also wanted to talk to 23 your Honor about that to make sure it was okay with your 24 Honor. 25 These are third parties. Some witnesses where it Case: 1:16-cv-05486 Document #: 181 Filed: 09/18/17 Page 3 of 9 PageID #:5217 3 1 just -- we wanted to accommodate the third parties' schedules. 2 There's also one Viamedia employee who we're still working on, 3 who is down in Florida in the Tampa area. And for obvious 4 reasons, it's going to take a little bit of time to figure 5 that out. 6 Beyond those five, there's some others that we've 7 talked about, but we're trying to work and get to an agreement 8 on; but, we're still in discussions about those, your Honor. 9 We're trying to get these completed in either the 10 week after 9-26 or the first week in October. But we're 11 trying hard to get this all done. 12 THE COURT: I lost track. How many depositions 13 remain, both those that you think you can complete by 14 September 26th and the five additional? 15 MR. LAYDEN: Mr. Burke, I'm trying to remember. 16 THE COURT: Ballpark. 17 MR. LAYDEN: How many are there still to do? 18 MR. BURKE: I'd say at least a dozen, your Honor. 19 THE COURT: Okay. 20 MR. BURKE: It's quite active. 21 THE COURT: Do you have the other ones scheduled 22 for -- 23 MR. BURKE: Yes. 24 THE COURT: Okay. 25 MR. BURKE: That's right. Case: 1:16-cv-05486 Document #: 181 Filed: 09/18/17 Page 4 of 9 PageID #:5217 4 1 THE COURT: So, there are five that remain to be 2 scheduled? 3 MR. LAYDEN: There's a number that are scheduled 4 before 9-26, and then there's five that are scheduled after 5 9-26 by agreement we wanted to talk to your Honor about. And, 6 then, there's, I believe, approximately three others that 7 we're still having some discussions on and we have some work 8 to see if we could reach agreement or not; and, if not, then, 9 obviously, we might have to come back and address it with your 10 Honor. 11 THE COURT: So, the five that are after 9-26, you 12 already have those scheduled; is that correct? 13 MR. LAYDEN: There are five that we have agreed-upon 14 dates for, yes, your Honor. 15 THE COURT: And what is the latest date for those? 16 MR. LAYDEN: I want to say right now -- 17 MS. SEARS CODER: That we've agreed to at this point, 18 the 29th. 19 MR. BURKE: That Friday. 20 THE COURT: October 29th? 21 MS. SEARS CODER: No, no. 22 MR. LAYDEN: No, no. 23 MS. SEARS CODER: September 29th, your Honor. 24 THE COURT: Okay. That is fine. That is fine. 25 MR. LAYDEN: So -- and there's a couple other ones Case: 1:16-cv-05486 Document #: 181 Filed: 09/18/17 Page 5 of 9 PageID #:5217 5 1 that have -- you know, these are predominantly third parties 2 -- other than Mr. Gaylord, I believe -- who are -- would be, 3 like, perhaps the next week. But we're trying to work with 4 counsel for Comcast to see if we can reach agreement on that. 5 MR. BURKE: Yeah. And our view is, obviously, we 6 want to be cooperative about this. It's a small slippage to 7 go later in the week. I think we are getting, though, to a 8 point where we're -- now that we're slipping into the first 9 week of October, at some point this will start impinging on 10 the deadlines for expert reports. 11 So, we're certainly -- we just received yet another 12 new deposition notice for a totally new third party yesterday. 13 So, Viamedia is pursuing additional third-party discovery and 14 I think -- all we'd say here is it's nothing ripe for your 15 Honor, but if there's additional third parties added at this 16 late hour, we really have to try to get this done; and, we 17 don't want to have this slipping into the second week of 18 October, for example. 19 THE COURT: So, I do not mind giving you for these 20 extra depositions, especially the witness in Florida, if you 21 need until October 5th or 6th; but, that is not to open up new 22 discovery that has not already been disclosed. So, I do not 23 want to give you, at this point, extra time for new discovery 24 that you are not aware of. 25 And, then, you think you can still keep your October Case: 1:16-cv-05486 Document #: 181 Filed: 09/18/17 Page 6 of 9 PageID #:5217 6 1 16th expert disclosures? That is the date for -- 2 MR. BURKE: That's certainly fine -- 3 THE COURT: -- plaintiff's expert -- 4 MR. BURKE: -- assuming we don't get -- 5 THE COURT: -- or burden-of-proof expert -- 6 disclosure. 7 MR. BURKE: As far as Comcast is concerned, assuming 8 we can get these done by October 6th, I don't think we have a 9 problem with that date. 10 THE COURT: Okay. 11 So, I will keep those dates in place. And, again, 12 this extra time is only for depositions that have already been 13 noticed or discussed, not for whole new discovery to start 14 coming out at this late stage. 15 What else in terms of status? 16 MR. LAYDEN: I think in terms of status, the parties 17 have had some discussion about trying to get back and start 18 the mediation process again. There have been some business 19 discussions. Obviously, we haven't made as much progress as 20 we would like. But our thought is to see what kind of dates 21 that the magistrate has available. 22 You know, one of the concerns is from a timing 23 perspective. We know the magistrate's busy. It's sort of an 24 issue of the time available that the magistrate might have 25 versus a private mediator. Our preference, at least from the Case: 1:16-cv-05486 Document #: 181 Filed: 09/18/17 Page 7 of 9 PageID #:5217 7 1 Viamedia side, would be to try to work with the magistrate, 2 depending on her schedule. 3 THE COURT: Magistrate Judge Finnegan is excellent 4 about getting cases in timely if you want me to put a referral 5 through to her. And given what you are saying, if you are 6 interested in that, I would suggest that I put it through 7 today and see what her schedule is like. I have no idea what 8 her schedule is like. 9 MR. BURKE: I mean, our only -- we're certainly open 10 to mediation. We think it makes sense. Our only concern 11 would be that I think the Viamedia folks have indicated they 12 think this would need a full day, and we agree. In fact, it's 13 probable that this would require more than a full day and 14 there might be multiple days necessary. 15 So, just given that and given how busy Judge Finnegan 16 is, I just don't know that that is practical. It might make 17 more sense for us to engage a third party. But, you know, 18 we're open to going in either direction. 19 THE COURT: Would you like me to put a referral 20 through so at least you can get that information and figure it 21 out? 22 MR. BURKE: It makes sense to find out what her 23 availability is. 24 THE COURT: I will refer it to Judge Finnegan for a 25 settlement conference. What I would suggest you do, while you Case: 1:16-cv-05486 Document #: 181 Filed: 09/18/17 Page 8 of 9 PageID #:5217 8 1 are here with your calendars, is go see her courtroom deputy 2 and let her know I put a referral through and see if you can 3 get at least an initial date to go before her, and you can 4 raise those issues with her. 5 As I said, she is terrific about getting parties in 6 in a very timely manner. I think she is working about 60 days 7 out. But I do not know if she has a full day or not. You can 8 raise that with her. 9 What else in terms of status? 10 MR. LAYDEN: I don't think there's anything else 11 right now, your Honor, that's ripe. 12 THE COURT: Why don't you come back -- 13 MR. BURKE: Just one -- 14 THE COURT: Yes? 15 MR. BURKE: I'm sorry. 16 MS. SEARS CODER: Your Honor, I just wanted to flag 17 to you that we are also working through some third parties' 18 document production issues. Nothing is ripe at this moment. 19 But we just wanted to flag that to you in case we have to be 20 back before your Honor. 21 THE COURT: Keep working. 22 MS. SEARS CODER: We are. 23 THE COURT: Why don't you come back here -- I am 24 going to have you come back in a little shorter order, just to 25 make sure things are on track with expert. Case: 1:16-cv-05486 Document #: 181 Filed: 09/18/17 Page 9 of 9 PageID #:5217 9 1 Your expert disclosures are due October 16th. So, if 2 you would, please, come back shortly after that. We will see 3 if you are on track. 4 THE CLERK: October 23rd at 8:30. 5 THE COURT: Does that work okay? 6 MS. SEARS CODER: That's fine. 7 MR. BURKE: That works for me. 8 MR. LAYDEN: Yes, your Honor. 9 THE COURT: The only other factor I would add is your 10 rebuttal experts are due November 30th; expert closes January 11 5th; and, then, Daubert challenges are due January 24th. So, 12 if you are interested in going down the settlement route, it 13 seems like this would be a good time to really focus on it. 14 If you are not, you have your dates; we will move forward. 15 But if your clients are interested in sitting at the table, 16 now seems like a good time to do it. Okay? 17 MR. BURKE: Thank you, your Honor. 18 MR. LAYDEN: Thank you, your Honor. 19 THE COURT: I will see you in October. 20 Thank you. 21 * * * * * I certify that the foregoing is a correct transcript from the 22 record of proceedings in the above-entitled matter. 23 24 /s/ Joseph Rickhoff September 18, 2017 Official Court Reporter 25