United States of America et al v. Dish Network LLC

Filing 763

OPINION entered by Judge Sue E. Myerscough on 1/26/2017. Defendant Dish Network, L.L.C.'s Motion to Strike State Plaintiffs' New Post-Trial Evidence to Residential Numbers (d/e 745 ) is DENIED. (MAS, ilcd)

E-FILED

Thursday, 26 January, 2017 03:30:34 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE 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.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on Defendant Dish
Network, L.L.C.’s (Dish) Motion to Strike State Plaintiffs’ New PostTrial Evidence Related to Residential Numbers (d/e 745) (Motion
745). For the reasons set forth below, the Motion is DENIED.
Dish asks the Court to strike paragraphs 44 through 56 of the
State Plaintiffs’ Additional Post-Trial Proposed Findings of Fact (d/e
730) (Paragraphs 44-56), and “preclude the introduction of any
evidence related to the number of call records with a match between

Page 1 of 4

the area code and the address in the SSN [Satellite Systems
Network] call records. Motion 745, at 2, 8.
Paragraphs 44-56 are not evidence. The paragraphs are
proposed findings of fact. The Plaintiff States cite exhibit DTX 906
to support these proposed findings. Exhibit DTX 906 has been
admitted into evidence at trial. Exhibit DTX 906 is an Excel
spreadsheet that contains information in 381,811 call records.
Dish’s expert John Taylor opined that the call records in DTX 906
were records of outbound telemarketing calls to persons whose
telephone numbers were registered on the National Do-Not-Call
Registry (Registry). Taylor further opined that he could not identify
a reason that the 381,811 calls did not violate the FTC’s Telephone
Sale Rule (TSR), 16 C.F.R. Part 310. The Court found at summary
judgment that these calls violated the TSR. See Opinion entered
December 14, 2014 (d/e 445), at 176, 232.
Taylor included addresses and telephone numbers with area
codes in Exhibit DTX 906. The Plaintiff States’ counsel counted
and compared area codes and states of residence in the addresses
that Taylor included to argue that the area codes agreed with the
states of residence. Attorneys make such arguments about what
Page 2 of 4

admitted evidence shows. See Jones v. Lincoln Electric Co., 188
F.3d 709, 731 (7th Cir. 1999). Dish may rebut the Plaintiff States’
arguments and have done so. See Dish Network L.L.C.’s Response
to Plaintiffs’ Post-Trial Submissions (d/e 749), at 3-4.
Dish argues that Plaintiff States’ attorneys are attempting to
perform analyses that require an expert. The Court disagrees.
Exhibit DTX 906 is not raw data. Dish’s expert Taylor prepared
DTX 906. Taylor selected the 381,811 call records that he included
in the spreadsheet. Taylor included the addresses and telephone
numbers with area codes in those records. Taylor performed the
expert analysis of the raw data to produce the spreadsheet. The
Plaintiff States’ counsel only counted the information in the records
Taylor prepared to argue their case. They may do so.
The Court will review and consider the validity of the Plaintiff
States’ arguments about the meaning of the information in DTX 906
in the same manner as any other arguments made by the parties.
The Court will consider Dish’s rebuttal arguments as well. None of
these arguments, however, are evidence. The Court, therefore, has
no need or basis to strike Paragraphs 44-56 as improperly
submitted evidence.
Page 3 of 4

THEREFORE, Defendant Dish Network, L.L.C.’s Motion to
Strike State Plaintiffs’ New Post-Trial Evidence Related to
Residential Numbers (d/e 745) is DENIED.
Enter: January 26, 2017

/s Sue E. Myerscough
UNITED STATES DISTRICT JUDGE

Page 4 of 4