United States of America et al v. Dish Network LLC

Filing 377

OPINION entered by Judge Sue E. Myerscough on 2/19/2014. Defendant's Motion to Maintain Under Seal Certain Documents filed in Support of its Motion for Summary Judgment, d/e 358 is GRANTED IN PART and DENIED IN PART. Defendant shall refile all of the documents ordered refiled by this Court on or before 3/17/2014. (MAS, ilcd)

E-FILED

Thursday, 20 February, 2014 01:30:33 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
and the STATES OF CALIFORNIA,
ILLINOIS, NORTH CAROLINA,
and OHIO,
Plaintiffs,
v.
DISH NETWORK, L.L.C.,
Defendant,

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No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on Defendant Dish Network,
L.L.C.’s Motion to Maintain Under Seal Certain Documents filed in
Support of its Motion for Summary Judgment (d/e 358). The Motion is
GRANTED IN PART and DENIED IN PART.
On January 6, 2014, Defendant filed its Motion for Summary
Judgment (d/e 346), Memorandum in Support (d/e 347), and exhibits
thereto (d/e 348). The Court granted Defendant leave to file the
Memorandum in Support and the exhibits under seal until January 16,

2014, at which time Defendant would refile its memorandum with the
appropriate redactions and confidentiality designations and file a
renewed motion for leave to file confidential information under seal, if
necessary. See January 8, 2014 Text Order.
On January 16, 2014, Defendant filed a Motion to Maintain Under
Seal Certain Documents Filed in Support of its Motion for Summary
Judgment (d/e 358). In the Motion, Defendants seek to maintain under
seal three categories of documents: (1) documents and deposition
testimony claimed by Plaintiffs or third parties to be confidential; (2)
documents containing consumer personally identifiable information; and
(3) two documents that contain Defendant’s attorney-client privileged
communications.
Defendant first requests that certain documents identified by
Plaintiffs or third party as confidential remain under seal pending
Defendant’s motion to unseal them. On January 17, 2014, Defendant
filed its Motion to Unseal Portions of its Memorandum in Support of its
Motion for Summary Judgment and to Unseal Certain Exhibits Thereto.
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The Court has granted the Motion. Therefore, these documents shall not
remain under seal.
Defendant also requests that consumer personally identifiable
information remain under seal. Therefore, Defendant requests that it be
permitted to file the following documents containing personally
identifiable information in redacted form: DX-10; DX-14; DX-21; DX23; DX-30; DX-33; DX-34; DX-35; DX-36; DX-37; DX-38; DX-39; DX41; DX-42; DX-43; DX-44; DX-45; DX-46; DX-47; DX-48; DX-50; DX53; DX-54; DX-55; DX-56; DX-57; DX-58; DX-59; DX-60; DX-61; DX62; DX-63; DX-64; DX-65; DX-66; DX-67; DX-68; DX-69; DX-73); DX74: DX-76; DX-77; DX-78; DX-79; DX-80; DX-81; DX-82; DX-83; DX84; DX-85; DX-86; DX-87; DX-88; DX-89; DX-94; DX-100; DX-103;
DX-113; DX-116; DX-117; DX-118; DX-121; DX-122; DX-123; DX125; DX-128; DX-130; DX-131; DX-132; DX-134; DX-136; DX-144;
DX-145; DX-154; DX-159; DX-181; DX-182; DX-187; DX-190; DX193; DX-195; DX-210; DX-212; DX-214; DX-215; DX-216; and DX219. Plaintiffs do not oppose Defendant’s request to file for the public
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docket redacted versions of exhibits containing consumers’ personally
identifiable information.
Defendant last seeks to maintain the seal on two documents, DX80 and DX-81. Defendant asserts the documents contain Defendant’s
attorney-client privileged communications. The documents are e-mail
chains reflecting internal Defendant communications and
communications between Defendant and employees and representatives
from Defendant’s telemarketing vendor eCreek regarding a particular
consumer who had been called by an eCreek agent despite being on at
least two do-not-call lists.
Defendant asserts that on June 12, 2012, Magistrate Judge
Cudmore ordered Defendant to produce certain documents that
Defendant had previously withheld based on privilege assertions. See
Opinion, d/e 151. Defendant asserts it complied with the Order and
produced the information. Defendant argues, however that it still wishes
to assert the privilege on the documents and preserve its right to appeal
Magistrate Judge Cudmore’s ruling. Defendant asks that the two
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documents DX-80 and DX-81 remain sealed to preserve Defendant’s
appeal rights.
Plaintiffs oppose Defendant’s request to keep DX-80 and DX-81
under seal. See d/e 366. According to Plaintiffs, Defendant voluntarily
produced the two documents in October 2010. Plaintiffs also assert that
Defendant has not asserted any privilege claim over the documents
because it did not identify them on any privilege log and has not
attempted to claw them back as privileged. Plaintiffs state that the
emails do not include any attorneys or reference any attorney
communication.
In addition, Plaintiffs argue that whether DX-80 and DX-81 remain
under seal has no bearing on any appeal Defendant might pursue of
Magistrate Judge Cudmore’s Order. First, DX-80 and DX-81 were not
part of Judge Cudmore’s Order, which found Defendant had waived its
privileges over certain Defendant documents and ordered such
documents turned over. Moreover, even if the two documents had been
subject to Magistrate Judge Cudmore’s ruling, Defendant did not appeal
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the order to district court, which is required to appeal the issue to the
court of appeals. See Hunt v. DaVita, Inc., 680 F.3d 775, 780 n. 1 (7th
Cir. 2012) (the failure to object to a magistrate judge’s non-dispositive
order ordinarily waives the right to object on appeal).
The Court agrees with Plaintiffs. Defendant has not sought leave
to file a reply to dispute Plaintiffs’ assertion that Defendant voluntarily
produced the documents to Plaintiffs and never asserted a privilege over
the documents. The Court has examined Defendant’s Privilege Log (d/e
95-13) and did not find DX-80 or DX-81 listed therein. In addition, the
Court has examined the documents and, with the exception of some
personally identifiable information, does not find that the documents
contain privileged information that should remain under seal. Finally,
even if the documents were addressed by Magistrate Judge Cudmore in
his Order (d/e 151), Defendant did not file objections to that Order with
this Court. Therefore, Defendant has likely waived the right to appeal
the issues and has nothing to preserve.

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Defendant also asks that the Court postpone the filing of redacted
exhibits until the Court rules on Defendant’s anticipated motion to
unseal Plaintiffs’ and third-parties’ claimed confidential material.
Defendant filed said motion on January 17, 2014, and the Court has
ruled on the Motion. Therefore, the Court will not postpone the filing of
the redacted and unsealed exhibits.
IT IS HEREBY ORDERED THAT:
1. Defendant’s Motion to Maintain Under Seal Certain
Documents filed in Support of its Motion for Summary Judgment (d/e
358) is GRANTED IN PART and DENIED IN PART.
a. Defendant’s request that certain documents claimed by Plaintiffs
and third-parties as confidential remain under seal pending a ruling
on Defendant’s motion to unseal the documents is DENIED AS
MOOT because the Court has ruled on the motion to unseal.
b. The following documents containing personally identifiable
information shall be publicly filed in redacted form: DX-10; DX-14;
DX-21; DX-23; DX-30; DX-33; DX-34; DX-35; DX-36; DX-37;
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DX-38; DX-39; DX-41; DX-42; DX-43; DX-44; DX-45; DX-46;
DX-47; DX-48; DX-50; DX-53; DX-54; DX-55; DX-56; DX-57;
DX-58; DX-59; DX-60; DX-61; DX-62; DX-63; DX-64; DX-65;
DX-66; DX-67; DX-68; DX-69; DX-73); DX-74: DX-76; DX-77;
DX-78; DX-79; DX-80; DX-81; DX-82; DX-83; DX-84; DX-85;
DX-86; DX-87; DX-88; DX-89; DX-94; DX-100; DX-103; DX-113;
DX-116; DX-117; DX-118; DX-121; DX-122; DX-123; DX-125;
DX-128; DX-130; DX-131; DX-132; DX-134; DX-136; DX-144;
DX-145; DX-154; DX-159; DX-181; DX-182; DX-187; DX-190;
DX-193; DX-195; DX-210; DX-212; DX-214; DX-215; DX-216;
and DX-219.
c. Exhibits DX-80 and DX-81 shall not be maintained under seal.
Defendant shall file DX-80 and DX-81 in the public docket but
may redact personally identifiable information.
2. Defendant shall file refile all of the documents ordered refiled by
this Court on or before March 17, 2014.

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ENTER: February 19, 2014
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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