In re TRANSPACIFIC PASSENGER AIR TRANSPORTATION ANTITRUST LITIGATION

Filing 621

ORDER re Plaintiffs' Motion to Compel #610 #601 . Signed by Magistrate Judge Donna M. Ryu on 01/18/2012. (dmrlc1, COURT STAFF) (Filed on 1/18/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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In re

No. C-07-05634 CRB (DMR)

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TRANSPACIFIC PASSENGER AIR
TRANSPORTATION ANTITRUST
LITIGATION,

ORDER RE PLAINTIFFS’ MOTION TO
COMPEL [Docket Nos. 601 and 610]

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___________________________________/
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The parties filed two joint letters setting forth a discovery dispute between Plaintiffs and

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various Defendants. Plaintiffs and Defendant All Nippon Airways Co., Ltd. (“ANA”) submitted a

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letter on November 30, 2011. [Docket No. 601.] Plaintiffs and several non-ANA Defendants

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submitted a December 14, 2011 letter discussing the same dispute and its potential impact on non-

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ANA Defendants.1 [Docket No. 610.] The court conducted a hearing on January 12, 2012. This

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Order summarizes the rulings made by the court on the record during the hearing.

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The parties’ discovery dispute concerns materials previously produced by ANA in parallel

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multi-district litigation entitled In re Air Cargo Shipping Services Antitrust Litigation (“Air

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Cargo”), Case No. 06-1775-JGG, currently pending in the Eastern District of New York. These

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materials include documents previously produced by ANA to the Department of Justice or other

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All remaining defendants except Japan Airlines International and United Airlines joined in
the second letter.

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governmental or foreign regulatory authorities in connection with investigations into alleged anti-

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competitive conduct in the air cargo and air passenger industries. The materials also include

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documents concerning the relationship between the pricing of passenger fares and cargo rates,

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including surcharges (collectively, the “Air Cargo materials”).

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The Air Cargo materials comprise approximately 1.1 million documents. ANA produced

plaintiffs in both this matter and in the Air Cargo litigation, Plaintiffs’ counsel already have the

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requested materials in their possession. However, there is a protective order in place in Air Cargo

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that prevents Plaintiffs from using the documents in this case absent an order from the court or an

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agreement by ANA. Therefore, Plaintiffs seek an order deeming the Air Cargo materials produced

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For the Northern District of California

them to the Air Cargo Plaintiffs approximately one year ago. As the same counsel represent the

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United States District Court

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in this case.

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Plaintiffs argue for wholesale production of all 1.1 million of the Air Cargo materials. They

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point to the broad scope of discovery under Federal Rule of Civil Procedure 26, and argue further

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that such discovery is particularly broad in antitrust actions. Plaintiffs also generally assert that

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documents produced in Air Cargo are relevant in this case because, as alleged in their complaint,

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ANA’s conspiratorial conduct to fix air cargo rates is “intertwined” with its conspiratorial conduct in

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the air passenger market. Finally, they point to notes from a 2004 Board of Airline Representatives

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(“BAR”) meeting in Thailand which are suggestive of anti-competitive behavior regarding fuel

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surcharges for air cargo pricing that may have become a model for similar behavior for air passenger

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fares.

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ANA objects to the production of the documents on the grounds of relevance, arguing that

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the cargo and passenger transportation markets are completely separate, with separate pricing

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practices, and therefore documents regarding cargo transportation are irrelevant to the issues in this

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litigation. The non-ANA Defendants object that the production of the Air Cargo materials in this

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case would be extremely burdensome, as each Defendant would incur millions of dollars in fees and

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costs for loading and hosting the documents on a joint defense database, and then reviewing and

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analyzing the documents.

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Federal Rule of Civil Procedure 26 provides that “[p]arties may obtain discovery regarding

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any nonprivileged matter that is relevant to any party’s claim or defense . . . [r]elevant information

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need not be admissible at the trial if the discovery appears reasonably calculated to lead to the

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discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). However, Rule 26 also requires that the

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court limit the frequency or extent of discovery if “the burden or expense of the proposed discovery

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outweighs its likely benefit, considering the needs of the case, the amount in controversy, the

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parties’ resources, the importance of the issues at stake in the action, and the importance of the

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discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii).

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Here, Plaintiffs primarily have relied on general, broad-brush statements to support their
argument that all 1.1 million documents in the Air Cargo materials are relevant to this case.

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For the Northern District of California

United States District Court

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However, the court has little idea about what those materials actually are. Without more specific

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information the court cannot determine which, if any, of the Air Cargo materials should be produced

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in this litigation. Plaintiffs’ allegations, along with the Thai BAR meeting notes, suggest that there

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may well be Air Cargo materials which should be produced in this case. The scope of relevance in

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discovery in antitrust actions is indeed broad. See FTC v. Lukens Steel Co., 444 F. Supp. 803, 805

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(D.D.C. 1977) (“The discovery rules should normally be liberally construed to permit discovery in

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antitrust cases.”). Where allegations of conspiracy or monopolization are involved, broad discovery

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may be needed to uncover evidence of design, pattern, or intent. Id. Accordingly, the court

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concludes that Plaintiffs should be given the opportunity to review and select relevant Air Cargo

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materials for use in this case.

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Therefore, the parties shall meet and confer regarding a process by which Plaintiffs may

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review and select Air Cargo materials for possible use in this case. The parties shall use the review

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and selection procedure described in the June 29, 2011 Order in In re Cathode Ray Tube Antitrust

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Litigation, Case No. 07-5944-SC (Docket No. 952) as a starting point. The process must include a

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mechanism by which Defendant ANA may object to Plaintiffs’ selection of documents for

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production on the basis of relevance, as well as a procedure requiring the parties to meet and confer

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to resolve any disputes prior to submitting them to the undersigned for resolution well in advance of

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a party’s attempted use of Air Cargo materials in this litigation. In this way, Plaintiffs have an

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opportunity to identify relevant Air Cargo materials, other parties have a chance to object and argue

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otherwise, and Defendants will not be burdened by being forced to review each and every one of the

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1.1 million documents. By no later than January 19, 2012, the parties shall submit a joint stipulated

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proposal regarding the review and production process to the undersigned.

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IT IS SO ORDERED.

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Dated: January 18, 2012

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DONNA M. RYU
United States Magistrate Judge

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For the Northern District of California

United States District Court

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