Federal Trade Commission v. DIRECTV, Inc. et al

Filing 109

Discovery Order re: 106 Discovery Letter Brief. Signed by Judge Maria-Elena James on 2/24/2016. (cdnS, COURT STAFF) (Filed on 2/24/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FEDERAL TRADE COMMISSION,

Case No. 15-cv-01129-HSG (MEJ)

Plaintiff,
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DISCOVERY ORDER

v.

Re: Dkt. No. 106

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DIRECTV, INC., et al.,
Defendants.

United States District Court
Northern District of California

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The Court is in receipt of the discovery dispute letter filed by Defendants DIRECTV and

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DIRECTV, LLC’s (collectively, “DIRECTV”) and Plaintiff Federal Trade Commission (“FTC”)

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regarding DIRECTV’s Rule 30(b)(6) deposition notice Topic 3, which seeks information

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regarding “[t]he results of any and all research, surveys, or tests conducted by the FTC concerning

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DIRECTV’s advertising that the FTC contends has been or is deceptive.” Dkt. No. 106. The

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Court previously considered this issue and, on December 3, 2015, granted DIRECTV’s motion to

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seek further responses to its questions on Topic 3, finding the topic was “designed to elicit

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discoverable information, including questions relating to which ads were allegedly deceptive, how

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they were deceptive, whether the FTC has any factual support for its contention that consumers

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have been deceived, its investigation of alleged consumer complaints, and the scope of alleged

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consumer harm or putative bases for monetary relief.” Order at 8, Dkt. No. 81. However, in

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doing so, the Court also excluded “any testimony that is properly deemed privileged.” Id. at 10.

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The FTC now seeks to prevent a further deposition based on attorney work product, deliberative

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process privilege, and law enforcement privilege. Jt. Ltr. at 1.

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Having reviewed the parties’ positions, the Court finds DIRECTV is entitled to a further

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deposition on Topic 3. The FTC maintains it “has already produced to DIRECTV thousands of

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DIRECTV’s advertisements gathered by the FTC during its investigation,” and “DIRECTV now

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has all the underlying factual information as the FTC upon which it can test consumer perception,”

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Jt. Ltr. at 1-2. But the proper inquiry is not so limited. DIRECTV may seek relevant information

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surrounding the FTC’s investigation, such as “whether there has been any fact gathering; who did

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it; when it was done; where it is reported, if at all; how it was conducted; what inquiry was made

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and of whom; why the inquiry has taken so long; and the like.” Ressler v. United States, 2012 WL

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3231002, at *3 (D. Colo. Aug. 6, 2012). Thus, DIRECTV is free to inquire into information such

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as the FTC’s fact gathering techniques and how it conducted the investigation. Ressler, 2012 WL

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3231002, at *3 (federal agency’s “fact gathering” activities proper subject of a 30(b)(6)
deposition). At the same time, while DIRECTV is entitled to discover facts, it is “not entitled to

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United States District Court
Northern District of California

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explore opposing counsel’s thought processes as to which facts support these contentions (and

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which do not), or what inferences can be drawn from the evidence that has been assembled so far.”

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FTC v. CyberSpy Software, LLC, 2009 WL 2386137, at *4 (M.D. Fla. July 31, 2009).

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Accordingly, while the Court shall permit a further deposition on Topic 3, DIRECTV should be

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mindful to direct its questioning to the facts surrounding the investigation and not the FTC’s

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evaluation of those facts.

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The FTC also argues DIRECTV’s inquiry violates Federal Rule of Civil Procedure

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26(b)(4)(D) as it seeks consulting expert information. Jt. Ltr. at 2. Rule 26(b)(4)(D) shields the

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disclosure of specified information about non-witness experts retained or employed in anticipation

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of litigation or preparation for trial. It “precludes discovery against experts who (are) informally

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consulted in preparation for trial, but not retained or specially employed.” Todd v. Tempur-Sealy

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Int’l, Inc., 2015 WL 1022886, at *2 (N.D. Cal. Mar. 6, 2015) (internal quotation marks and

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citations omitted). “[T]his preclusion not only encompasses information and opinions developed

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in anticipation of litigation, but also insulates discovery of the identity and other collateral

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information concerning experts consulted informally.” Id. (internal quotation marks and citations

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omitted) (denying defendants’ request to compel plaintiffs to identify with whom they consulted

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as a possible expert). While the FTC is correct that DIRECTV may not obtain information

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regarding non-witness experts, it is not clear why this does not entitle DIRECTV to depose the
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witness designated by the FTC for a 30(b)(6) deposition now. The Court finds no merit to the

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FTC’s argument that such a deposition must be delayed.

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Finally, the FTC requests that, should the Court decide the FTC must provide further

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responses on Topic 3, DIRECTV should seek those answers through written discovery or through

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a deposition by written questions, “given the high risk of inadvertent disclosure of privileged

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information.” Jt. Ltr. at 3 n.3. As the FTC has not shown a written deposition is necessary, the

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Court DENIES its request.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: February 24, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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