Cellco Partnership v. Hope et al

Filing 289

ORDER re discovery matrixes. Signed by Judge David G Campbell on 2/22/2012. (NVO)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cellco Partnership doing business as
Verizon Wireless,

No. CV11-0432 PHX DGC
ORDER

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Plaintiff,

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vs.

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Jason Hope, et al.,

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Defendants.

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Having reached the end of six-week criminal trial, the Court has time to turn to the

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parties’ discovery disputes as set forth in matrixes provided to the Court in January. The

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Court’s decisions are set forth below.

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A.

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Plaintiff’s discovery issues.
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Defendants’ agreement to withdraw all AEO designations from the

cloaking software-related documents has resolved this issue.
2.

The Court concludes that Defendants have largely complied with the

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language from the TRO quoted in this issue. To the extent Plaintiff needs additional

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information regarding the imaging process, it may conduct a Rule 30(b)(6) deposition.

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3.

Defendants have stated they are willing to pay half the cost of repairing or

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restoring the hard drives at issue, providing the costs are reasonable. The parties indicate

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that this willingness effectively resolves issue 3.

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4.

Defendants state that they are in the process of producing additional

responsive documents. If those documents have not yet been produced, they shall be

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produced to Plaintiff on or before March 9, 2012. Defendants assert that chats were not

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saved unless a user copied a particular communication into or attached it to an email or

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other document. To the extent Defendants assert that they do not have chats responsive

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to Plaintiff’s document requests, this statement shall be clearly made, on or before

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March 9, 2012, in an appropriate response under Rule 34(b), signed pursuant to Rule

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26(g).

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particular server locations where the information can be located. Plaintiff asserts that

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extracting the data from these sources would be an enormous undertaking.

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information sought by request 12 is not contained in a more accessible location,

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Defendants shall clearly state this fact, on or before March 9, 2012, in an appropriate

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Rule34(b)(2) response, signed pursuant to Rule 26(g).

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permits a party to produce information as it is kept in the usual course of business, the

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Court will not require Defendants to extract the customer data from the servicers if such

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data is not available in some other form or location.

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With respect to customer data described in request 12, Defendants identify

5.

If the

Because Rule 34(b)(2)(E)(i)

Defendants state that to the extent they can locate actual landing pages that

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were used, they have produced them or are in the process of producing them. Defendants

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further state that to the extent they can locate images of landing pages that were created

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in the ordinary course of business, as testified to by Mr. Erkkila, Defendants have

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produced them or are in the process of producing them. To the extent Defendants have

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not completed this production, they shall do so by March 2, 2012. Both parties discussed

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the recreation of landing pages. Both parties seem to agree that recreation of landing

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pages is a difficult and time-consuming process. Plaintiff argues that Defendants are

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required to recreate the landing pages under the provision of Rule 34(a)(1)(A) which

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requires “translation by the responding party into a reasonably usable form.” The Court

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does not agree that translation of data into a usable form requires a responding party to

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recreate documents through an expensive and time-consuming process.

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therefore will not require Defendants to recreate landing pages. Defendants concede that

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a number of landing pages were recreated by Mr. Erkkila in preparation for the
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The Court

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preliminary injunction hearing.

Defendants assert that these pages constitute work

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product. This assertion appears to be correct. The Court concludes, however, that the

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landing pages actually used by Defendants are critical to this litigation. The Court also

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concludes that Plaintiff cannot, without undue hardship, obtain their substantial

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equivalent by other means. Not only do both parties agree that the recreation of landing

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pages is an expensive and time-consuming process, but Defendants also assert that any

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such recreation is almost certain to be an inaccurate representation of the landing pages

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actually used. Because the Court concludes that Plaintiff has substantial need for the

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landing pages used by Defendants, and that Plaintiff cannot, without undue hardship,

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obtain their substantial equivalent by other means, the Court concludes that Defendants’

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work product protection in the landing pages created by Mr. Erkkila for the preliminary

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injunction hearing has been overcome pursuant to Rule 26(b)(3)(A)(ii). Defendants shall

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produce the Erkkila-produced landing pages to Plaintiff on or before March 9, 2012.

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B.

Defendants’ discovery disputes.

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NUI No. 1: Defendants assert that the information sought in this interrogatory is

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relevant to their antitrust and tortuous interference claims. Because these claims have

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been dismissed (Doc. 273), no further response will be required of Plaintiff.

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NUI No. 2: Defendants assert that the information sought in this interrogatory is

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relevant to their antitrust and tortuous interference claims. Because these claims have

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been dismissed (Doc. 273), no further response will be required of Plaintiff.

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NUI No. 3: The Court concludes that some of the information sought in this

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interrogatory is relevant to Defendants’ defense – to show that there is always a certain

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percentage of customers who express dissatisfaction with and cancel mobile text services.

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The Court will therefore require Plaintiff to provide the following information: with

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respect

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messaging/mobile content services (collectively “Services”), Plaintiff shall provide, in

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the form of monthly totals from January 1, 2010 to the present, (1) the number of new

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customer sign-ups (for all Services in the aggregate), (2) the number of customer

to

all

Verizon

subscriptions,

alerts,

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downloadable

applications,

or

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cancellations for all Services, and the total active customer count for all Services. To the

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extent available, Plaintiff shall provide the monthly total charge-backs/refunds for all

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Services for this same time period. This information shall be provided on or before

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March 2, 2012.

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NUI No. 7: Plaintiff states that it will produce two additional spreadsheets by

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January 17, 2012, that it will serve supplemental responses containing dollar figures for

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Aegis Mobile’s investigation of Defendants’ practices, and Stroz Friedberg’s forensic

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analysis, and further states that it will produce the underlying data for its expert analysis

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within 15 days of the matrix having been created. If Plaintiff has not produced all of this

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information, it shall do so on or before March 9, 2012. The Court will not otherwise

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require Plaintiff to produce an expert analysis of its damages until the expert disclosure

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date.

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NUI No. 11: This interrogatory seeks communications related to the Walker class

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action case in Illinois. The Court has already concluded that the claims asserted in this

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case were not asserted in, or settled by, the Walker litigation, and that the Walker

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litigation has no res judicata effect on this case. Doc. 251-2 at 40-44. The Court

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accordingly concludes that the information sought in this interrogatory is not relevant and

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need not be produced by Plaintiff.

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NUI No. 17: This interrogatory seeks information regarding Plaintiff’s efforts “to

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comply with the MMA Guidelines and the Verizon Playbook” when Plaintiff advertises

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Services. Plaintiff’s response asserts that MMA Guidelines do not apply to any text

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messaging services offered by Plaintiff. Plaintiff’s statement of its position in the matrix

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asserts that there is no “Verizon Playbook.” If Plaintiff has not stated these facts in a

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Rule 33(b) answer, signed under oath as required in Rule 33(b)(3), it shall do so on or

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before March 2, 2012. Because Plaintiff asserts (or will assert) under oath that it is not

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subject to the MMA Guidelines and that there is no Verizon Playbook, there is no

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additional information Plaintiff must provide in response to this interrogatory, which

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focuses solely on these sources of guidance.
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NUI No. 19: Plaintiff states that it will provide the answer to the second subpart

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of this interrogatory by January 16, 2012. If it has not already done so, it shall provide

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this answer on or before March 9, 2012. By March 9, 2012, Plaintiff shall provide a full

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and complete response to the first part of this interrogatory showing all amounts of

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money that Plaintiff has collected from its customers for Jawa services but that Plaintiff

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has withheld from Jawa and/or any aggregator, specifying the total amount collected, any

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money Plaintiff has deducted from funds that otherwise would have been paid to Jawa or

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an aggregator, and the specific reasons for such deductions.

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NUI No. 20: To the extent this interrogatory seeks information regarding

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Plaintiff’s damages, the Court incorporates its ruling with respect to NUI No. 7. To the

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extent this interrogatory asks Plaintiff to describe the basis for its causation allegations

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with particularity, Plaintiff shall do so on or before March 9, 2012.

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NUI No. 21: Plaintiff’s reference to the deposition testimony of Mr. Salkoff is not

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sufficient. Plaintiff shall respond completely to this interrogatory on or before March 9,

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2012.

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NUI No. 22: Plaintiff’s reference to the deposition testimony of Mr. Salkoff is not

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sufficient. Plaintiff shall respond completely to this interrogatory on or before March 9,

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2012.

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NUI No. 23: In connection with the information called for with NUI No. 3,

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Plaintiff shall, with respect to each month’s total number of customer cancellations,

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identify how many cancellation charges were waived.

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produced on or before March 9, 2012.

This information shall be

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RFP No. 2: The Court concludes that the documents sought in this request are

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not sufficiently “relevant to any party’s claim or defense” to warrant production. Fed. R.

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Civ. P. 26(b)(1).

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RFP No. 3: The Court concludes that its ruling on NUI No. 7 adequately covers
this issue.
RFP No. 4: Plaintiff states that it “will be producing responsive documents on a
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rolling basis.” Plaintiff shall complete all production responsive to this request on or

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before March 9, 2012. To the extent Plaintiff contends that documents may be withheld

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as privileged or work product, it shall identify those documents in a privilege log

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pursuant to Rule 26(b)(5).

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RFP No. 5: Plaintiff states that it “will be producing documents on a rolling

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basis.” Plaintiff shall complete its production of all documents responsive to this request

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on or before March 9, 2012.

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RFP No. 7: Plaintiff’s objections are not well taken. Plaintiff shall produce all

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documents responsive to this request on or before March 9, 2012. If Plaintiff has

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previously produced such documents, it shall identify the documents, by Bates number,

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that are responsive to this request on or before March 9, 2012.

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RFP No. 8: Plaintiff states that it “will be producing any other non-privileged

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documents on a rolling basis.” Plaintiff shall produce all documents responsive to this

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request on or before March 9, 2012. If it has previously produced such documents, it

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shall identify them by Bates number. If Plaintiff withholds documents pursuant to the

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attorney-client privilege or the work product doctrine, it shall identify those documents in

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a privilege log pursuant to Rule 26(b)(5).

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RFP No. 9: Plaintiff again states that it “will be producing responsive documents

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on a rolling basis.” Plaintiff shall produce all documents responsive to this request on or

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before March 9, 2012.

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RFP No. 11: Plaintiff again states that it “will be producing responsive documents

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on a rolling basis.” Plaintiff shall produce all documents responsive to this request on or

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before March 9, 2012.

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RFP No. 12: Plaintiff again states that it “will be producing responsive documents

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on a rolling basis.” This response is not sufficient. Plaintiff shall produce all documents

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responsive to this request on or before March 9, 2012.

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RFP No. 13: The Court concludes that the documents sought in this request are

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not sufficiently “relevant to any party’s claim or defense” to warrant production. Fed. R.
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Civ. P. 26(b)(1).

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RFP No. 14: Plaintiff states it will produce responsive documents within 15 days

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of the matrix having been prepared. If Plaintiff has not done so, it shall produce such

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documents on or before March 9, 2012. If Plaintiff withholds documents pursuant to the

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attorney-client privilege or work product doctrine, it shall identify those documents in a

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privilege log pursuant to Rule 26(b)(5).

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RFP No. 15: Plaintiff states that it shall produce a “handful of responsive

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recordings within 15 days.” Plaintiff shall produce all responsive recordings on or before

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March 9, 2012.

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RFP No. 16: Plaintiff states that it “will be producing responsive documents on a

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rolling basis.” Plaintiff shall produce all responsive documents on or before March 9,

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2012. If Plaintiff withholds documents pursuant to the attorney-client privilege or work

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product doctrine, it shall identify those documents in a privilege log pursuant to Rule

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26(b)(5).

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RFP No. 19: Defendants assert that the information sought in this request is

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relevant to their counterclaims. The Court has dismissed all counterclaims other than

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business disparagement and unjust enrichment. Doc. 273. The Court concludes that

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these documents are not relevant to the remaining counterclaims.

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RFP No. 20: Defendants assert that the information sought in this request is

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relevant to their counterclaims. The Court has dismissed all counterclaims other than

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business disparagement and unjust enrichment. Doc. 273. The Court concludes that

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these documents are not relevant to the remaining counterclaims.

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C.

Plaintiff’s use of AEO designations.

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On or before March 9, 2012, Defendants shall identify for Plaintiff each category

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of document that Defendants believe should be de-designated. Plaintiff shall consider

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these categories and provide a written response to Plaintiff on or before March 16, 2012.

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If the parties cannot reach agreement on this issue, they shall place a conference call to

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the Court. The Court will then review selected AEO documents provided by Defendants.
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The Court agrees with Judge Martone’s view of the rare applicability of AEO

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designations. See American Traffic Solutions, Inc. v. Redflex Traffic Systems, 2010

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WL481408 at *2 (D. Ariz. Feb. 8, 2010).

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Dated this 22nd day of February, 2012.

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