Federal Trade Commission v. DIRECTV, Inc. et al

Filing 205

Discovery Order re Dkt. No. 203 . Signed by Judge Maria-Elena James on 11/2/2016. (mejlc3, COURT STAFF) (Filed on 11/2/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FEDERAL TRADE COMMISSION,

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

Plaintiff,
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ORDER RE: DISCOVERY LETTER

v.

Re: Dkt. No. 203

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DIRECTV, INC., et al.,

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Defendants.

United States District Court
Northern District of California

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Pending before the Court is a joint discovery letter in which the Federal Trade Commission

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(“FTC”) argues Defendants DIRECTV and DIRECTV, LLC (collectively, “DIRECTV”) failed to

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preserve (1) an interactive website that one of DIRECTV’s experts, Jerry Wind, relied upon to

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create his expert report (the “Wind Report”), and (2) analytics data for DIRECTV’s website. See

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Jt. Ltr. at 1-3, Dkt. No. 203. Pursuant to Federal Rule of Civil Procedure 37(e)(1), the FTC seeks

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sanctions or alternatively an order excluding the Wind Report and the underlying survey analytics

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evidence on the ground that DIRECTV failed to preserve relevant evidence.1 Id.
Federal Rule of Civil Procedure 37(e) addresses a party’s failure to preserve electronically

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stored information (“ESI”). It provides in relevant part:

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If [ESI] that should have been preserved in the anticipation or
conduct of litigation is lost because a party failed to take reasonable
steps to preserve it, and it cannot be restored or replaced through
additional discovery, the court: (1) upon finding prejudice to another
party from loss of the information, may order measures no greater
than necessary to cure the prejudice . . . .

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The FTC does not appear to contend DIRECTV “acted with the intent to deprive” the FTC of the
information’s use in litigation; consequently, the Court does not address it here. See Jt. Ltr. at 1
(referring only to Rule 37(e)(1)); see also Fed. R. Civ. P. 37(e)(2) (providing remedies upon a
finding that the party that failed to preserve the ESI did so “with the intent to deprive another party
of the information’s use in litigation”).

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Fed. R. Civ. P. 37(e) (emphasis added).
The joint discovery letter does not provide information sufficient to allow the undersigned

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to decide whether sanctions are appropriate at this point. The Court accordingly temporarily

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denies the FTC’s request for sanctions and grants its alternative request for leave to file a fifteen-

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page motion. Jt. Ltr. at 1. Any such motion must be filed by November 16, 2016 and must

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address: (1) DIRECTV’s disclosures to the FTC about what website data DIRECTV was or was

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not preserving, and the FTC’s responses thereto; (2) what “reasonable steps” the FTC contends

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DIRECTV should have taken to preserve the lost ESI; (3) why the FTC believes this ESI cannot

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be, or has not been, restored or replaced through additional discovery; (4) the prejudice caused by
the loss of the ESI; and (5) why excluding the Wind Report is the most appropriate remedial

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United States District Court
Northern District of California

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measure under these circumstances. DIRECTV may file an Opposition by November 30, 2016,

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not to exceed 15 pages. The FTC’s Reply shall not exceed five pages and shall be due by

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December 7, 2016. The Court will schedule a hearing on the motion if it deems it necessary. In

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light of the Thanksgiving holiday, the Court will also consider a stipulation by the parties for a

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different, mutually-agreeable briefing schedule.

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Finally, the Court notes the parties’ tendency to provide extensive documentary evidence

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in connection with their filings and to request much of this evidence be sealed pursuant to Civil

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Local Rule 79-5. The Court accordingly encourages the parties to meet and confer in connection

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with any sealing requests and also to determine whether certain facts can be stipulated to or

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supported by declaration rather than through other documentary evidence. If disputes arise

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regarding evidentiary support for the declarations, the Court can order further production as

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necessary.

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IT IS SO ORDERED.

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Dated: November 2, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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