Nielsen Audio, Inc. v. Clem et al

Filing 52

ORDER granting in part and denying in part 40 Motion to Compel Answers to Interrogatories and For Sanctions. See Order for details. Signed by Magistrate Judge Amanda Arnold Sansone on 7/25/2016. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NIELSEN AUDIO, INC.,
Plaintiff,
v.

Case No.: 8:15-cv-2435-T-27AAS

BUBBA CLEM, a/k/a Bubba The Love Sponge,
and BUBBA RADIO NETWORK, INC.
Defendants.
______________________________________/
ORDER
This matter comes before the Court on Defendant Bubba Clem’s Motion Under Fed. R.
Civ. P. 37 to Compel Answers to Interrogatories and For Sanctions (Doc. 40) (hereinafter referred
to as “Motion to Compel”) and Plaintiff’s Opposition to Defendant’s Motion to Compel and For
Sanctions (Doc. 43). On July 21, 2016, the parties appeared before the undersigned for oral
argument on this matter. As stated on the record at the hearing, Defendant’s Motion to Compel
(Doc. 58) is GRANTED in part and DENIED in part as follows:
Interrogatory No. 2
Please describe in detail each and every communication by you or on your behalf
to Beasley Broadcast Group, Inc., (“Beasley”) or any agent or representative
thereof, wherein you or the person acting on your behalf recommended, requested
or insisted that Beasley discipline one or both defendants for all or any part of the
alleged ratings tampering activity that is the subject of this civil action, specifying
the date(s) of said communication, what was said by whom and to whom, the
location of said communication, and the identity of all persons present.
As provided in greater detail at the hearing, the Motion to Compel is granted to the extent
it seeks certain information (approximate date(s), location and identity of all persons present) about
substantive communications that occurred between Plaintiff’s managerial-level employees or
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other employees/agents with decision-making authority and Beasley’s managerial-level
employees or other employees/agents with decision-making authority. This is a narrowing of the
original interrogatory from the overbroad request for “each and every communication” to “any
agent or representative.” The Motion to Compel is denied to the extent that the interrogatory seeks
information about any conversations involving individuals who are neither managerial-level
employees nor employees/agents with decision-making authority (by way of example, a
conversation between two low level employees at each company) and also to the extent that it
seeks “what was said by whom and to whom” with regard to any conversation that took place.
Further, while, pursuant to Federal Rule of Civil Procedure Rule 33(d), Plaintiff has
represented that it has produced and will continue to produce documents memorializing
communications responsive to this interrogatory, Plaintiff also must determine whether additional
responsive communications occurred (as narrowed by the prior paragraph) such as telephone calls
or face-to-face discussions that are not memorialized in Plaintiff’s business records. If, after
polling Plaintiff’s managerial-level employees and other employees/agents with decision-making
authority, Plaintiff determines that no other additional responsive communications occurred, then
Plaintiff should respond to the interrogatory accordingly.
Interrogatory No. 3
Please describe in detail each and every communication by Cox Media Group or
any affiliate thereof to you, wherein Cox Media Group or its affiliate mentioned, or
complained in any manner about, the alleged ratings tampering activity of one or
both defendants, specifying the date(s) of said communication, what was said by
whom and to whom, the location of said communication, and the identity of all
persons present.
As provided in greater detail at the hearing, the Motion to Compel is granted to the extent
it seeks certain information (approximate date(s), location and identity of all persons present) about
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substantive communications wherein a managerial-level employee or other employee/agent with
decision-making authority at Cox Media Group complained about the alleged ratings tampering
activity to Plaintiff’s managerial-level employees or other employees/agents with decision-making
authority. This is a narrowing of the original interrogatory from the overbroad request for “each
and every communication” wherein someone at Cox Media Group “mentioned” or “complained.”
The Motion to Compel is denied to the extent that the interrogatory seeks information about any
conversations involving individuals who are neither managerial-level employees nor
employees/agents with decision-making authority (by way of example, a conversation between
two low level employees at each company) and also to the extent that it seeks “what was said by
whom and to whom” with regard to any conversation that took place. Further, the Motion to
Compel is denied to the extent that a managerial-level employee or other employee/agent with
decision-making authority at Cox Media Group simply mentioned the alleged ratings tampering
activity (without complaining about it) to Plaintiff’s managerial-level employees or other
employees/agents with decision-making authority.
Further, while, pursuant to Federal Rule of Civil Procedure Rule 33(d), Plaintiff has
represented that it has produced and will continue to produce documents memorializing
communications responsive to this interrogatory, Plaintiff also must determine whether additional
responsive communications occurred (as narrowed by the prior paragraph) such as telephone calls
or face-to-face discussions that are not memorialized in Plaintiff’s business records. If, after
polling Plaintiff’s managerial-level employees and other employees/agents with decision-making
authority, Plaintiff determines that no other additional responsive communications occurred, then
Plaintiff should respond to the interrogatory accordingly.

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Interrogatory No. 4
Please describe in detail each and every communication by one or more of the
subscribers to your ratings service or any affiliate of said subscriber(s), wherein the
subscriber or its affiliate mentioned, or complained in any manner about, the
alleged ratings tampering activity of one or both defendants, specifying the date(s)
of said communication, what was said by whom and to whom, the location of said
communication, and the identity of all persons present.
As provided in greater detail at the hearing, like Interrogatories 2 and 3, this interrogatory
is overbroad to the extent that this interrogatory seeks “each and every communication,” to the
extent that it seeks communications involving individuals who are neither managerial-level
employees or employees/agents with decision-making authority, to the extent that it seeks
communications in which the alleged ratings tampering activity was merely “mentioned,” and to
the extent it seeks “what was said by whom and to whom.” Further, this interrogatory is interpreted
by the Court as potentially containing numerous subparts by virtue of seeking the information it
seeks for multiple subscribers. Consequently, the Motion to Compel is granted only to the extent
that Plaintiff must provide Defendant Bubba Clem with a list of subscribers that did have
managerial-level employees or employees/agents with decision-making authority complain to
Plaintiff about the alleged ratings tampering activity. Otherwise, the Motion to Compel is denied.
Interrogatory No. 5
For your three most recent fiscal years which ended on or before September 30,
2015, please state the total amounts of consideration for ratings subscriptions and
related ratings services paid to you annually by Beasley Broadcast Group, each and
every affiliate of Beasley Broadcast Group, Cox Media Group, each and every
affiliate of Cox Media Group, and each and every subscriber for which you have
provided information in response to Interrogatory No. 4, respectively.
As provided in greater detail at the hearing, the Motion to Compel is granted to the extent
this interrogatory seeks information as to Beasley Broadcast Group in 2013, 2014, and 2015.
However, Defendant Bubba Clem’s request for information regarding “Cox Media Group, each
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and every affiliate of Cox Media Group, and each and every subscriber for which you have
provided information in response to Interrogatory No. 4” is overly broad at this time.
Interrogatory No. 6
Insofar as your written disclosures under Rule 26(a)(l)(A) include a reference to
“Damages incurred by Nielsen relating to complaints from Nielsen subscribers and
others questioning the integrity of the Nielsen audience estimates and ratings,”
please describe in detail each and every so-called complaint by or on behalf of one
or more of the aforesaid “others,” specifying the date(s) of said complaint(s), the
form of the communication (e.g., oral, written or electronic), what was said by
whom and to whom, the, identity of the custodian of said communication, and the
identity of all persons present.
As provided in greater detail at the hearing, this interrogatory shall be narrowed to
encompass only advertising agencies, advertisers, radio stations, and broadcasters that complained
to Plaintiff about the alleged ratings conduct at issue. Further, for each complaint, Plaintiff shall
provide the approximate date of the complaint, how it occurred, and by whom and to whom the
complaint was made.
Moreover, while, pursuant to Federal Rule of Civil Procedure Rule 33(d), Plaintiff has
represented that it has produced and will continue to produce documents memorializing complaints
responsive to this interrogatory, Plaintiff also must determine whether additional responsive
complaints occurred (as narrowed by the prior paragraph) such as oral complaints that are not
memorialized in Plaintiff’s business records. If Plaintiff determines that no other additional
complaints occurred, then Plaintiff should respond to the interrogatory accordingly.
Interrogatory No. 8
For the months of July, 2015, through February, 2016, please enumerate the
monthly dollar amounts expended by you with respect to each of the individual
categories of out-of-pocket costs incurred by you on account of Defendants’ alleged
misconduct and described in your disclosures under Rule 26(a)(l)(A), namely,
“costs incurred in locating tainted listening data, removing it from the Nielsen
audience estimates and re-determining the estimates; investigative costs including
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but not limited to fees and expenses charged by outside investigators and costs
associated with the investigation by Nielsen’s in-house investigative unit; and costs
and expenses incurred by Nielsen to identify, recruit and train replacement panelists
to take the place of those excluded from Nielsen’s survey due to Defendants’
tampering.”
As provided in greater detail at the hearing, Plaintiff shall provide amounts for what, if any,
hard costs have been incurred by Plaintiff to date. Further, as Plaintiff incurs more hard costs and
quantifies the soft costs it has incurred, Plaintiff must supplement its responses pursuant to Federal
Rule of Civil Procedure 26(e). In addition, the Court finds this request contains three subparts.
Those discrete subparts are: (1) costs incurred in locating tainted listening data, removing it from
the Nielsen audience estimates and re-determining the estimates; (2) investigative costs including
but not limited to fees and expenses charged by outside investigators and costs associated with the
investigation by Nielsen’s in-house investigative unit; and (3) costs and expenses incurred by
Nielsen to identify, recruit and train replacement panelists to take the place of those excluded from
Nielson’s survey.
Interrogatory No. 12
If you or your attorney or any other person acting on your behalf, or any insurer or
other organization interviewed and recorded or reduced to writing statements or
notes of the interview (whether or not signed by the person interviewed) of any
person having or purporting to have knowledge or information pertaining to the
allegations of the complaint or amended complaint or to the defenses raised, then
please identify the person(s) interviewed, the person(s) and/or organization that
conducted the interview, the date of such interview(s), the nature of the recording
or writing generated, and the person having custody of the recording or writing.
As provided in greater detail at the hearing, the Motion to Compel as to this interrogatory
is granted. According to Plaintiff, this information has already been produced pursuant to Federal
Rule of Civil Procedure 33(d) and Plaintiff will continue to supplement its response pursuant to
Federal Rule of Civil Procedure 26(e). To the extent this information is in a recording that has not
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been reduced to writing, Plaintiff shall provide said recordings.
Interrogatory No. 17
With respect to the Tampa/St. Petersburg markets and for the period of January 1,
2015 through the date of your response to this interrogatory, please specify the
number of investigations conducted by you relating to the integrity of the ratings
process, identifying the subject of each investigation, the role of the subject (for
example, panelist, radio station, broadcaster, on-air talent, etc.), the complainant,
the role of the complainant, the conduct or suspected conduct giving rise to each
investigation, and the outcome of each investigation, and specifying whether the
subject and complainant were subscribers or employees of a Nielsen subscriber,
respectively.
As provided in greater detail at the hearing, the Court has granted the Motion to
Compel only to the extent that this interrogatory seeks these categories of information for
Plaintiff’s investigations, if any, into alleged ratings tampering by someone other than
Defendants for the period of January 1, 2015 through the date of Plaintiff’s response and
with respect to the Tampa/St. Petersburg markets only.
Plaintiff’s Verification of Interrogatory Answers
This issue was resolved by the Parties prior to the hearing. Therefore, the Motion to
Compel as to this issue is denied as moot.
Defendant Bubba Clem’s Request for Sanctions
Sanctions may be granted against a party under Federal Rule of Civil Procedure 37(b) if
there is non-compliance with a court order, notwithstanding a lack of willfulness or bad faith,
although such factors are relevant to the sanctions imposed. U & I Corp. v. Advanced Med. Design,
Inc., 251 F.R.D. 667, 674 (M.D. Fla. 2008). Here, as compliance with an order is not at issue, an
award of sanctions is not warranted.
The remaining issue is whether Defendant is entitled to recover attorney’s fees and costs
incurred as a result of filing the Motion to Compel. Federal Rule of Civil Procedure 37(a)(5)(C)
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provides:
If the motion [to compel] is granted in part and denied in part, the court may issue
any protective order authorized under Rule 26(c) and may, after giving an
opportunity to be heard, apportion the reasonable expenses for the motion.
(emphasis added). Upon consideration, the Court does not consider an award of attorney’s fees to
be appropriate at this time.
DONE AND ORDERED in Tampa, Florida on this 25th day of July, 2016.

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