Federal Trade Commission v. AT&T Mobility LLC

Filing 92

JOINT STATEMENT AND ORDER REGARDING PHASED DISCOVERY. Signed by Judge Edward M. Chen on 10/13/15. (cl, COURT STAFF) (Filed on 10/13/2015)

1
2
3
4
5
6

EVAN ROSE, Cal. Bar No. 253478
MATTHEW D. GOLD, N.Y. Bar No. 2073963
LAURA FREMONT, Cal. Bar No. 159670
ERIC EDMONDSON, D.C. Bar No. 450294
KERRY O’BRIEN, Cal. Bar No. 149264
DAVID M. NEWMAN, Cal. Bar No. 54218
LINDA K. BADGER, Cal. Bar No. 122209
LIN W. KAHN, Cal. Bar No. 261387
Address:

Federal Trade Commission
901 Market Street, Suite 570
San Francisco, CA 94103

Email:

[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

7
8
9
10
11
12
13
14

Telephone: [phone]
Facsimile: [phone]

KELLOGG, HUBER, HANSEN, TODD,
EVANS & FIGEL, P.L.L.C.
Michael K. Kellogg (pro hac vice)
Mark C. Hansen (pro hac vice)
Email: [e-mail]
[e-mail]
1615 M Street, N.W., Suite 400
Washington, DC 20036
Telephone:
[phone]
Facsimile:
[phone]
SIDLEY AUSTIN LLP
David L. Anderson, Cal. Bar No. 149604
Email: [e-mail]
555 California Street, Suite 2000
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
AT&T MOBILITY LLC

Attorneys for Plaintiff
FEDERAL TRADE COMMISSION

15
16
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
San Francisco Division

17
18
19
20
21
22

FEDERAL TRADE COMMISSION,
Plaintiff,
v.

Case No. 14-cv-04785-EMC
JOINT STATEMENT AND [PROPOSED]
ORDER REGARDING PHASED
DISCOVERY

23
24
25

AT&T MOBILITY LLC, a limited liability
company,
Defendant.

26
27
28
Joint Statement and [Proposed] Order re Phased Discovery – 14-cv-04785-EMC

1

The parties to the above-entitled action hereby submit this Joint Statement and

2

[Proposed] Order Regarding Phased Discovery pursuant to the Court’s Order Denying

3

Defendant’s Motion to Stay (Dkt. #89).

4

I.

BACKGROUND

5

On August 18, 2015, Defendant AT&T Mobility LLC (“AT&T”) filed a motion to stay

6

proceedings pending resolution of an interlocutory appeal (“Motion to Stay”) (Dkt. #79). After

7

briefing by AT&T and Plaintiff Federal Trade Commission (“FTC”), the Court heard oral

8

argument on September 24, 2015. During the hearing, and by written order on September 25,

9

2015 (Dkt. #89), the Court denied AT&T’s Motion to Stay but ordered that “the parties shall

10

phase discovery, at least through the date of the next CMC,” set for January 21, 2016. The Court

11

ordered that discovery shall proceed on the “go get” discovery requests discussed at the hearing,

12

but not on the “monthly data” requests. The Court also ordered the parties to meet and confer as

13

to how best to phase discovery of relevant custodians’ emails and other documents, including,

14

for example, identifying the particular custodians whose documents shall be produced during this

15

phase of discovery.

16

II.

AGREEMENT ON PHASED DISCOVERY

17

Having met and conferred, the parties have reached the following agreement:

18

A.

AT&T shall produce, to the extent such documents exist and are reasonably

19

accessible, documents responsive to the following requests in the FTC’s First Set of Requests for

20

Production of Documents and Other Tangible Things, as memorialized and limited in

21

correspondence between the parties or in AT&T’s document responses and objections, otherwise

22

known as the “go get” requests: 1-7, 11-12, 13(a), 13(p), 13(s), 13(t), 17-18, 20-23, 25-26, and

23

29-32. The FTC reserves the right to request, after January 21, 2016, that request 13(u) be

24

treated as a “go get” request, and AT&T reserves the right to challenge such a request.

25

B.

AT&T shall produce responsive non privileged or non attorney work product

26

emails or other documents from the following custodians subject to the search terms and date

27

ranges agreed to by the parties as of the date of this filing, as memorialized and limited in

28

correspondence between the parties:
Joint Statement and [Proposed] Order re Phased Discovery – 14-cv-04785-EMC

Page 1

1

1) Mark Collins

2

2) Matthew Haymons

3

3) Kristin Rinne

4

4) David Christopher

5

5) Andrew Wilson

6

6) Maurice James

7

7) Rick Fish

8

8) Jill Root

9

9) Kristin Nelson

10

10) Dave Saska

11

11) Bill Hogg

12

12) Mitch Farber
Upon review, to the extent any of the agreed upon search terms for the custodians above

13
14

generate a disproportionately large volume of non-responsive documents, the parties agree to

15

work cooperatively in good faith to revise or otherwise modify those search terms during this

16

period.

17

C.

The FTC shall produce responsive non privileged or non attorney work product

18

documents responsive to the following requests in AT&T’s First Set of Requests for Production

19

of Documents, as memorialized and limited in correspondence between the parties or in the

20

FTC’s document responses and objections, otherwise known as the “go-get” requests: 1, 3-27,

21

29-30, 32-36. Specifically, the FTC shall produce consumer complaints regarding AT&T’s

22

throttling program received through the Consumer Sentinel Network, the Better Business

23

Bureau, the Federal Communications Commission, and directly from consumers. The FTC shall

24

produce any additional communications with AT&T consumers whom the FTC sought to or did

25

interview, as well as an updated Rule 26(a) disclosure identifying by name and other contact

26

information the 10-15 potential customer witnesses no later than January 14, 2016. The FTC

27

will also produce consumer complaints concerning other companies’ throttling programs

28

received through the Consumer Sentinel Network, subject to the search terms identified in
Joint Statement and [Proposed] Order re Phased Discovery – 14-cv-04785-EMC

Page 2

1

correspondence between the parties and with consumer names and contact information redacted.

2

AT&T reserves the right to seek, after January 21, 2016, the consumer names and contact

3

information of consumers who complained about other companies’ throttling programs, and the

4

FTC reserves the right to challenge such a request. The FTC will further produce documents

5

from third parties responsive to AT&T’s document requests as set forth in the FTC’s Responses

6

to AT&T Mobility LLC’s First Set of Requests for Production of Documents. Finally, the FTC

7

shall produce publicly available information from the FTC’s website regarding the FTC’s action

8

against TracFone Wireless, Inc.
D.

9

The parties shall produce the documents described in paragraphs A, B, and C on a

10

rolling basis, and production shall begin promptly or as soon as practicable upon entry of a

11

Protective Order. The parties shall endeavor in good faith to complete the production of all

12

documents described in paragraphs A, B, and C by January 14, 2016. With respect to the

13

documents described in paragraphs A and B, AT&T shall produce documents dated prior to June

14

12, 2015. The FTC reserves the right to seek, after January 21, 2016, documents dated after June

15

12, 2015, and AT&T reserves the right to challenge such a request. The production of

16

documents described in paragraph B shall begin with production of documents from Mark

17

Collins, Matthew Haymons, and Kristin Rinne.
E.

18

Neither party waives any right to seek further discovery after January 21, 2016,

19

with respect to the productions agreed to in paragraphs A, B, and C, or with regard to any

20

Interrogatory Responses provided to date, or any document responses or objections provided to

21

date.

22
23

F.

Finally, the parties have agreed not to conduct depositions during this phase of

discovery.

24
25
26
27
28
Joint Statement and [Proposed] Order re Phased Discovery – 14-cv-04785-EMC

Page 3

1
2
3
4
5
6
7
8
9
10
11
12
13
14

Dated: October 8, 2015

Respectfully submitted,
/s/ Evan Rose
EVAN ROSE
MATTHEW D. GOLD
LAURA FREMONT
ERIC EDMONDSON
KERRY O’BRIEN
DAVID M. NEWMAN
LINDA K. BADGER
LIN W. KAHN
Attorneys for Plaintiff
FEDERAL TRADE COMMISSION
KELLOGG, HUBER, HANSEN, TODD, EVANS
& FIGEL, P.L.L.C.
1615 M Street N.W., Suite 400
Washington, DC 20036
/s/ Michael K. Kellog
Michael K. Kellogg
Mark C. Hansen

15
16
17
18
19
20
21

Attorneys for Defendant
AT&T MOBILITY LLC

SIDLEY AUSTIN LLP
555 California Street, Suite 2000
San Francisco, CA 94104
/s/ David L. Anderson
David L. Anderson

22
23

Attorneys for Defendant
AT&T MOBILITY LLC

24
25
26

(The filer attests that concurrence in the filing of this document has been obtained from the other
signatories.)

27
28
Joint Statement and [Proposed] Order re Phased Discovery – 14-cv-04785-EMC

Page 4

1
2
3

IT IS SO ORDERED.
Date: ______________
10/13/15

_____________________________
HONORABLE EDWARD M. CHEN
UNITED STATES DISTRICT JUDGE

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Joint Statement and [Proposed] Order re Phased Discovery – 14-cv-04785-EMC

Page 5