Viamedia, Inc. v. Comcast Corporation et al

Filing 510

ORDER signed by the Honorable Sheila M. Finnegan on 3/11/2022. For reasons stated in the accompanying Order, Plaintiff's motion for protective order 492 is denied, and Defendants' motion to compel [498, 499] is granted in part and denied in part. Plaintiff's answers to Defendants' October 22, 2021 and January 7, 2022 discovery requests are due by 4/1/2022. Mailed notice (sxw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VIAMEDIA, INC.,
Plaintiff,
v.
COMCAST CORPORATION and
COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC,
Defendants.

)
)
)
)
) No. 16 C 5486
)
) Judge Charles R. Norgle, Sr.
) Magistrate Judge Finnegan
)
)
)

ORDER
Plaintiff Viamedia, Inc. filed suit alleging that Defendants Comcast Corporation and
Comcast Cable Communications Management, LLC (collectively, “Comcast”) used its
monopoly power in one service market to exclude competition and gain monopoly power
in another service market in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2.
Currently before the Court is Viamedia’s motion for protective order [492] and Comcast’s
motion to compel [498, 499]. For the reasons set forth here, Viamedia’s motion is denied
and Comcast’s motion is granted in part and denied in part.
BACKGROUND 1
Viamedia filed this lawsuit on May 23, 2016 alleging that Comcast violated Section
2 of the Sherman Act in two ways: (1) “refus[ing] to deal with Viamedia by denying it
Interconnect access”; and (2) “engag[ing] in tying by denying MVPDs [multichannel video
programming distributors] Interconnect access unless they purchased Comcast’s ad rep

This opinion assumes the reader’s familiarity with the facts and history of this case as set
forth in Viamedia, Inc. v. Comcast Corp., 951 F.3d 429 (7th Cir. 2020), and in Doc. 478, Order of
11/22/2021.
1

services.” 2 Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 453 (7th Cir. 2020). The
district court dismissed the refusal-to-deal claim on November 4, 2016.

(Doc. 36).

Following fact and expert discovery, the district court granted summary judgment on the
tying claim on August 16, 2018. (Doc. 356). Viamedia appealed and on February 24,
2020, the Seventh Circuit reversed the district court’s ruling on both claims and remanded
the case for “any further necessary discovery and for trial.” Viamedia, Inc., 951 F.3d at
435. 3
The parties have never been able to agree on what constitutes “necessary”
discovery as contemplated by the Seventh Circuit. When remand discovery commenced
in August 2020, the dispute focused on the extent to which Comcast should be allowed
to pursue discovery on Viamedia’s newly reinstated refusal-to-deal theory. Viamedia filed
a motion for protective order insisting that the discovery taken on the tying theory between
2011 and 2016 was so broad as to cover any discovery related to the refusal-to-deal
theory as well. (Doc. 478, Order, at 5, 15). Viamedia thus sought to limit discovery to the
following topics: (1) Viamedia’s refusal-to-deal claim from 2016 forward; and (2) any
damages that Viamedia may seek beyond those it previously disclosed. (Id. at 4-5).
Comcast objected to Viamedia’s proposal and filed a motion to compel, arguing that since
the refusal-to-deal claim had been dismissed early in the case, Comcast needed an
opportunity to serve discovery requests addressing that theory of liability from 2011

“Interconnect services are cooperative selling arrangements for advertising through an
‘Interconnect’ that enables providers of retail cable television services to sell advertising targeted
efficiently at regional audiences. Advertising representation services for retail cable television
providers assist those providers with the sale and delivery of national, regional, and local
advertising slots.” Viamedia, 951 F.3d at 434.
3
The Supreme Court denied Comcast’s petition for certiorari on June 28, 2021. Comcast
Corp. v. Viamedia, Inc., 141 S. Ct. 2877 (2021).
2

2

forward. (Id. at 6, 15-16). On November 22, 2021, this Court rejected Viamedia’s request
for a blanket protective order disallowing any refusal-to-deal discovery prior to 2016, but
held that Viamedia could object with specificity to particular discovery requests if there
was a good faith basis to do so and the Court would then decide whether to allow that
discovery. (Id. at 7-9, 15-17).
About a month later, Viamedia reported during a December 20, 2021 status
hearing that it was no longer pursuing its refusal-to-deal theory of liability. (Doc. 485).
Viamedia filed a formal statement to that effect on January 13, 2022. 4 (Doc. 490). The
parties now dispute how Viamedia’s decision to withdraw the refusal-to-deal theory
impacts the need for additional discovery in the case. The parties also disagree as to
whether Viamedia must answer certain discovery requests that Comcast served on
October 22, 2021 and January 7, 2022.
DISCUSSION
I.

Viamedia’s Motion for Protective Order
Viamedia believes that its decision to withdraw the refusal-to-deal theory of liability

has largely mooted the need for additional discovery. It thus seeks a protective order
limiting the scope of post-remand discovery to “non-party and expert discovery that (i)
post-dates the conclusion of the prior round of discovery, and (ii) concerns damages other
than those sought in the prior round of discovery.” (Doc. 492, at 10). In Viamedia’s view,

Viamedia’s Notice Regarding Refusal-to-Deal Theory stated: “Consistent with the Court’s
direction during its January 11, 2022 status conference, Plaintiff Viamedia, Inc. hereby confirms
that it is no longer pursuing its refusal-to-deal theory of liability for the claims in the First Amended
Complaint.” (Doc. 490). At the January 11 hearing, however, Viamedia acknowledged that it was
reserving the right to attempt to persuade the district judge to allow the theory back in the case in
the future, but said it was “highly, highly unlikely that we would do that” since this would “open up
discovery” on the refusal to deal theory and so “create a significant delay.” (Doc. 491, at 12).
4

3

the parties had “a full and fair opportunity” to conduct discovery on all other matters and
this case should quickly proceed to trial. (Id. at 11-12) (stating that “the Seventh Circuit
made exceedingly clear that it wanted this case to go to trial.”).
Under Rule 26, a court “must limit the frequency or extent of discovery otherwise
allowed . . . if it determines that: (i) the discovery sought is unreasonably cumulative or
duplicative . . . [or] (ii) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action.” FED. R. CIV. P. 26(b)(2)(C)(i), (ii). See also
Breuder v. Bd. of Trustees of Community College Dist. No. 502, No. 15 C 9323, 2021 WL
1209296, at *10 (N.D. Ill. Mar. 31, 2021). Rule 26(c) further allows that a court may “for
good cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” FED. R. CIV. P. 26(c)(1). As the party seeking
the protective order, Viamedia bears the burden of demonstrating why the order should
be entered. Breuder, 2021 WL 1209296, at *10 (citing Global Material Techs., Inc. v.
Dazheng Metal Fibre Co., 133 F. Supp. 3d 1079, 1084 (N.D. Ill. 2015)).
Viamedia seeks to restrict Comcast’s discovery in the following areas: (1) party
depositions; (2) third-party discovery; and (3) expert reports. 5 The Court considers each
in turn.
A.

Party Depositions

Viamedia first seeks to preclude Comcast from deposing its former CEO Mark S.
Lieberman and its current CEO David Solomon regarding Lieberman’s April 19, 2018

Viamedia also objected to searching for and producing documents from the 2011-2016
time period, and to answering discovery requests served on October 22, 2021 that it believes are
untimely. (Doc. 492, at 7-8). Comcast “is no longer seeking the ‘2011-2016 Documents’
described in Viamedia’s motion” (Doc. 498, at 10 n.3), so this aspect of the motion is denied as
moot. Since Comcast has cross-moved to compel answers to the October 22, 2021 discovery
requests, the Court addresses the parties’ arguments in Section II below.
5

4

declaration submitted in opposition to summary judgment. Comcast has filed a crossmotion to compel this testimony. Some background is necessary.
1.

Background

After the close of fact discovery on the tying claim, Viamedia submitted an initial
report dated October 16, 2017, and then an amended report dated January 2, 2018, from
its damages expert Thomas Z. Lys, Ph.D. (Doc. 221-6, at 2). According to Comcast, the
amended report “assumed that, but for Comcast’s conduct, Viamedia’s customers [i.e.,
MVPDs] would have renewed contracts with Viamedia, often for decades.” (Doc. 498, at
8) (emphasis in original) (citing Doc. 221-6, Lys Amended Report). During a Daubert
hearing, Lys testified that this assumption was based solely on representations from
Viamedia’s management. (Doc. 352, Tr. of 4/4/2018, at 44) (“I simply relied hundred
percent on management representation” as to third-party renewals). Lys also made clear
that he was not offering any opinion on causation, and understood this would be
established by fact witnesses. (Id. at 67). 6
On March 16, 2018, Comcast moved for summary judgment, arguing in part that
Viamedia’s alleged damages were premised upon inadmissible speculation that without
Comcast’s interference, Viamedia would have retained existing MVPD business and won
new contracts as well. (Doc. 266, at 51-52; Doc. 271, at 51-52; Doc. 498, at 8). As part
of its response, Viamedia submitted the 19-page declaration from Lieberman (dated April
19, 2018) providing management’s “best assessment of the likelihood that certain MVPD
contracts would have been renewed or obtained, and the expected duration of those

In his amended report, Lys referred to being informed by Viamedia’s management of its
“best estimate that, absent Comcast’s anticompetitive conduct” Viamedia would have been able
(for example) to renew specific contracts. Lys was deposed on January 3, 2018.
6

5

contracts.” (Doc. 498-1 ¶¶ 42, 43) (discussing “management’s best assessment of the
number of renewals that Viamedia would have been able to obtain in a world without
Comcast’s anticompetitive conduct.”). According to Comcast, this declaration constituted
Viamedia’s sole evidence of damages causation or of what MVPDs purportedly would
have done “but for” Comcast’s alleged misconduct. (Doc. 498, at 8). Comcast did not
seek leave to depose Lieberman about this declaration during the course of summary
judgment briefing.

As part of remand discovery, however, Comcast tried to ask

Lieberman, Solomon, and other Viamedia witnesses about the declaration during
depositions. Viamedia instructed all of the witnesses not to answer. It also objected to
this topic in a Rule 30(b)(6) notice, refusing to designate a witness on it. (Id. at 11).
2.

Analysis

Viamedia stands by its refusal to answer, claiming that Comcast knew or should
have known all of the pertinent facts set forth in Lieberman’s declaration before the close
of original fact discovery. (Doc. 492, at 13; Doc. 502, at 3-4). In support, Viamedia cites
its answer to Comcast’s Fifth Set of Interrogatories No. 23, which asked: “Describe how
Viamedia contends that Comcast’s allegedly anti-competitive conduct caused Viamedia
antitrust injury, and describe with specificity all facts upon which Viamedia will rely to
demonstrate that antitrust injury.” (Doc. 502-1, at 3). After objecting to the extent the
Interrogatory called for expert opinion, economic analysis, or a legal conclusion, Viamedia
answered in relevant part: “Comcast’s tying conduct, which has resulted in Viamedia’s
exclusion from Interconnects has caused Viamedia to lose revenue on existing contracts,
lose renewals of agreements, lose opportunities to secure contracts with new MVPD
clients, or suffer other economic harm as will be detailed in Viamedia’s expert reports.”

6

(Id.). Viamedia argues that Comcast has only itself to blame for failing to obtain more
specific information by developing the record and asking fact witnesses like Lieberman
about management’s assessment of which MVPD contracts would have been renewed,
and which new ones would have been formed, absent Comcast’s conduct. (Id. at 4).
This Court disagrees that Comcast could reasonably have been expected to
anticipate and take discovery on undisclosed contentions of Viamedia’s management
concerning assessments of damages causation.

Nothing in Viamedia’s answer to

Interrogatory No. 23 suggests that management had made specific determinations as to
whether, but for Comcast’s actions, particular MVPDs would have renewed their contracts
with Viamedia and others would have signed new ones. Nor does Viamedia point to any
other fact discovery that would have alerted Comcast of these significant management
assessments that were to serve as the basis for damages causation in lieu of expert
opinions.
Viamedia objects that Comcast still should have sought to re-depose Lieberman,
Solomon, and other managers when it finally received the declaration in response to the
summary judgment motion and so should not be able to do so now. The Court disagrees.
Not only was the granular, 19-page declaration provided to Comcast well after the close
of fact discovery, but the information in it appears to be central to Viamedia’s claim for
hundreds of millions of dollars in damages. In addition, almost four years have passed
since Lieberman and Solomon made the assessments about what they expected to
happen in the future due to Comcast’s anti-competitive conduct.

Since they were

forecasting future behavior, these assessments may have changed with the passage of
time based on intervening events. Furthermore, Comcast claims that the pre-remand

7

discovery focused on the Chicago, Detroit, and Hartford markets, but in the Lieberman
declaration, Viamedia for the first time made arguments about damages incurred in
connection with new cities (e.g., Dallas, Los Angeles, and New York) and new MVPDs
that do not operate in Chicago, Detroit, or Hartford. (Doc. 505, at 5).
Under all of these circumstances, the Court is persuaded that Comcast should not
have to wait until trial to question Viamedia’s management for the first time about
belatedly disclosed (and now dated) assessments that appear to serve as the only
support for Viamedia’s damages causation and that also address new cities and MVPDs.
See Llewellyn v. Ocwen Loan Servicing, LLC, No. 08-CV-00179-WJM-KLM, 2013 WL
3199980, at *4 (D. Colo. June 24, 2013) (on remand following reversal of summary
judgment, allowing further deposition of the plaintiff to explore issues addressed in his
summary judgment declaration where it “was filed significantly after the close of
discovery” and “Defendants could not have anticipated the need for this additional
discovery within the time allowed by the Court.”). Compare Jugobanka d.d. New York
Agency v. Unis Int’l Corp., No. 93 C 1865, 1995 WL 3987, at *2 (N.D. Ill. Jan. 5, 1995)
(denying request to supplement summary judgment response and to depose three
individuals who provided affidavits in support of summary judgment where the party
“provided no justification for why it has not attempted to discover and depose these
individuals previously – if not, at the very least, before responding to the motion for
summary judgment.”) (emphasis in original).
Also supporting Comcast’s request for further deposition testimony from
Lieberman and Solomon is Viamedia’s production of certain documents after their prior
(post-remand) depositions. For example, Comcast was unable to ask Lieberman and

8

Solomon about the dozens of documents Viamedia produced in January 2022 regarding
disputes it had with certain MVPDs, including Verizon and Frontier, two of the customers
with whom Viamedia anticipated having lengthy relationships. (Doc. 498, at 12; Doc. 505,
at 8).

According to Comcast, most of these late-produced documents “involved

Lieberman” and concerned “multimillion-dollar disputes between Viamedia and its former
MVPD clients.” (Doc. 48, at 12; Doc. 505, at 8). These disputes are significant, Comcast
argues, because they may cast doubt on the “management assessment” described in
Lieberman’s declaration that Comcast’s conduct was the “but for” cause of Viamedia
losing certain MVPD business. Comcast also could not question Lieberman and Solomon
about the more than 1,000 pages of documents that Viamedia produced on January 26,
2022 that preliminarily appear to be relevant to Viamedia’s additional damages claim.
Finally, Comcast did not have an opportunity to ask Lieberman about 70 pages of his
handwritten notes that Viamedia newly produced in unredacted form after Lieberman’s
October 2021 deposition. (Doc. 498, at 12; Doc. 505, at 7).
Viamedia responds by blaming the late document production on Comcast’s
decision to “wait[] until the last minute to depose Viamedia’s witnesses.” (Doc. 502, at 5).
In Viamedia’s view, since the documents are responsive to inquiries Comcast sent
“following up on the depositions conducted this past fall,” and such “post-deposition
follow-up is routine,” the production does not justify additional depositions. (Id. at 4-5).
To begin, the Court does not agree that Comcast was dilatory in pursuing deposition
testimony. The parties had a significant dispute regarding the scope of proper discovery,
and Comcast expressed reasonable concern about proceeding with depositions that may
require supplementation depending on the Court’s ruling on the then-pending motion for

9

protective order (Doc. 401) and motion to compel (Doc. 410). Indeed, the Court ultimately
rejected Viamedia’s request for a blanket protective order disallowing any refusal-to-deal
discovery between 2011 and 2016, instead finding that Viamedia could object with
specificity to particular discovery requests if there was a good faith basis to do so.
Moreover, to the extent the newly produced documents bear on the damages
assessments of Viamedia management, Comcast should be given an opportunity to
explore the documents through deposition testimony.
The only remaining question concerns the format and scope of the depositions.
Viamedia argues that at most Comcast should be allowed to conduct one two-hour Rule
30(b)(6) deposition “limited to the mistakenly redacted notebook entries produced since
October 22.” (Doc. 502, at 5). Viamedia notes that Comcast has already deposed
Lieberman three times for more than 20 hours – twice in his individual capacity (once
during pre-remand discovery, and again in October 2021), and once after Viamedia
designated him as its corporate representative on certain issues – and suggests that a
Rule 30(b)(6) deposition would be less burdensome for Viamedia employees. (Doc. 492,
at 13; Doc. 502, at 5). That may be, but for reasons stated, the Court finds that Comcast
is entitled to depose Lieberman and Solomon about management’s assessments
described in the Lieberman declaration, and the newly produced documents concerning
disputes with MVPDs and additional damages. It is also most efficient to have Lieberman
decipher his own, newly unredacted handwritten notes rather than expecting a Rule
30(b)(6) witness to guess at his intention and meaning. This is especially true where
Lieberman has described his own handwriting as “cryptic” and like reading
“hieroglyphics.” (Doc. 505-1, at 5, Lieberman Dep. 10/22/2021, at 430).

10

Though requiring Lieberman and Solomon to sit for depositions may impose
greater burden than Viamedia would like, Comcast expects the depositions to “take
considerably less than a full day.” (Doc. 498, at 13); (Doc. 509, Tr. of 3/3/2022, at 39)
(representation from defense counsel that the depositions will take “a few hours.”). It was
also Viamedia’s own choice to proceed with Lieberman’s and Solomon’s depositions and
to instruct the witnesses not to answer questions about the declaration based on
Viamedia’s then-pending motion 401. Viamedia understood the risk that Lieberman and
Solomon could be subject to further depositions. (Id.; Doc. 505, at 6). On this record,
Viamedia’s claim of undue burden is not well-founded.
For all the reasons stated here, Viamedia’s motion for a protective order as to the
depositions of Lieberman and Solomon is denied. Lieberman may be deposed for a total
of no more than 4 hours, and Solomon for a total of 3 hours, regarding the Lieberman
declaration and documents produced since these two witnesses were last deposed. 7
B.

Third-Party Discovery

Comcast has issued deposition subpoenas to eight third-parties from whom it
seeks testimony “on issues that arose after the close of pre-remand fact discovery.” (Doc.
498, at 13).

Viamedia’s motion for a protective order does not seek to bar these

depositions, but rather to limit the questions that may be asked of the witnesses.
Specifically, Viamedia seeks an order limiting the depositions to “facts that post-date the

Comcast indicates in a footnote that it has also subpoenaed Viamedia’s former CFO who
“participated in the management assessment.” (Doc. 498, at 12 n.4). Viamedia’s motion does
not mention this deponent but Comcast states that “to the extent Viamedia’s proposed order
would limit her testimony, Comcast opposes it for the reasons herein.” (Id.). This undeveloped
argument has not been briefed and will not be considered here.
7

11

prior close of fact discovery and are relevant to Viamedia’s additional damages.” (Doc.
492, at 9).
As a preliminary matter, the Court agrees with Comcast that an order adopting the
“additional damages” limitation is both unwarranted and unworkable. It is unworkable
because the “additional damages” limitation is vague. Viamedia has not yet described
with specificity what these “additional damages” are and will not do so until expert
discovery. Indeed, in recent discovery responses on this topic dated January 12, 2022,
Viamedia answered subject to objections, including that the interrogatories called for
expert opinion and so were premature. And the answer that followed was a general one:
Comcast’s conduct caused “financial and reputational harms” that “contributed to
Viamedia suffering additional injuries attributable to Comcast’s tying conduct,” and
Viamedia “would have been a stronger company that was better positioned to compete
to renew existing MVPD relationships and win new MVPD relationships.” (Doc. 494-4, at
4-6). Viamedia’s attached Appendix A to the response said the tying conduct “caused [it]
damages as to specific [MVPDs] in specific DMAs,” listing 9 MVPDs where Viamedia’s
“injuries” were “caused by Comcast’s tying conduct in some or all of the following DMAs:
Chicago, Detroit, and Hartford.” (Id. at 9-10). 8
Viamedia’s proposed “additional damages” limitation is also unwarranted. As
Comcast has argued, there is no reason it should be foreclosed from asking the witnesses

Viamedia also noted that it’s response was based on “reasonable investigation to date
and current litigation position, including the understanding that Viamedia’s decision no longer to
pursue a refusal-to-deal theory of liability will obviate the need for additional discovery beyond
third-party discovery regarding additional damages resulting from Comcast’s unlawful tying
conduct since the close of pre-remand fact discovery. Viamedia reserves the right to reassert its
refusal-to-deal contentions and to supplement or amend its response to this Interrogatory as
appropriate should this understanding prove correct. (Doc. 494-4, at 6) (emphasis added).
8

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questions about facts occurring after the prior close of fact discovery that bear on
damages

Viamedia

claimed

pre-remand

and

still

is

seeking.

Given the long passage of time since Viamedia identified these damages, and the
forecasting that was involved in projecting them, the Court is persuaded that Comcast
should be allowed to question the witnesses about facts that post-date the prior close of
fact discovery and are relevant to Viamedia’s damages – not just the “additional
damages.” For example, Comcast seeks to depose the MVPDs about their “real-world
experience with Viamedia and Comcast since the close of prior fact discovery,” including
whether Viamedia’s customers fired Viamedia for non-performance and late payments,
and whether Comcast has misused those MVPDs’ business information. (Doc. 498, at 6,
at 15). According to Comcast, this information may disprove Viamedia’s claims about the
purported anti-competitive effect of Comcast’s alleged conduct and resulting damages.
Viamedia may disagree but the Court declines to foreclose Comcast from asking
questions like these about facts post-dating the prior close of fact discovery. As always,
the parties may seek to exclude specific testimony at trial. 9
Finally, this Court sees no justification for barring Comcast from deposing the thirdparty witnesses about Viamedia’s newly produced documents simply because they do
not pertain to “additional damages” as Viamedia understands that term. As noted, in
January 2022 Viamedia produced dozens of documents about a dispute that Viamedia
had with Verizon in 2017 and Frontier (timeframe unspecified). (Doc. 498, at 12, 14).
Since these disputes could have affected Viamedia’s relationship with Verizon and

To the extent objections are made during the depositions of the third-parties, they should
be concise, non-speaking objections that do not interfere with or prolong the completion of the
depositions.
9

13

Frontier, they may be relevant to the damages question and are a proper source of
deposition questioning.
This Court now turns to Viamedia’s other arguments relating to the third-party
witnesses, namely, that Comcast should be barred from posing questions about (1)
MVPD contracts identified in Lieberman’s declaration that Viamedia allegedly would have
retained and/or won but for Comcast’s conduct; (2) the Malamud declaration; and (3) the
advertising side of the Interconnect services platform.
1.

MVPD Contracts in Lieberman Declaration

Comcast has issued deposition subpoenas to four MVPD witnesses who are
former clients of Viamedia. (Docs. 492-12, 492-13, 492-14). Viamedia objects that “all
of those third parties were on Comcast’s radar during the case’s prior iteration,” and
argues that Comcast should not be permitted to “create a new record on matters it
neglected to explore when it had the opportunity.” (Doc. 492, at 9, 14) (emphasis in
original). In Viamedia’s view, “if Comcast thought that anything about the damages
theories Viamedia disclosed in 2017 merited more discovery (whether party or thirdparty), the time to raise that contention was more than four years ago – before the case
was litigated through summary judgment, and a time when third party testimony was less
likely to be infected by the hindsight bias on which Comcast now seeks to capitalize.”
(Doc. 502, at 5-6).
Comcast does not dispute that it was aware of the MVPDs in question (among
many others) back in 2017, but rejects the implication that it should have “deposed
dozens, if not more, third parties mentioned in the copious discovery record based on
nothing but speculation that Viamedia might later make assertions about a handful of

14

them.” (Doc. 498, at 15). According to Comcast, it should have an opportunity to “ask
the MVPDs themselves about what Viamedia now says they did and would do” with
respect to contracting with Viamedia so that the jury will have more than Viamedia’s “own
speculation” in that regard. (Id. 13-14). Comcast stresses that “[m]any of the relevant
witnesses are located far from Chicago and thus cannot be compelled to attend trial,” and
accuses Viamedia of trying to keep the jury “in the dark about the MVPDs’ actual
positions.” (Doc. 498, at 14) (citing FED. R. CIV. P. 45(c)(1)).
For reasons stated with respect to depositions of Lieberman and Solomon
regarding the Lieberman declaration, Comcast will likewise be given an opportunity to
depose third-party MVPDs about the contracts described in that declaration.

As

explained, the detailed declaration was provided to Comcast only after the close of
original fact discovery, the information in it appears to be central to Viamedia’s damages
claim, and almost four years have passed since the assessments described in the
declaration were made. Since the assessments involved (in part) predicting the future
actions and decisions of the MVPDs, Comcast should be allowed to question the MVPDs
about the reasonableness of those assessments based on new information since the
close of original fact discovery.
2.

The Malamud Declaration

One of the MVPD witnesses, Jason Malamud, the Director of Media Sales at
Verizon Corporate Services Group, Inc., prepared a declaration dated April 2, 2018 that
was filed in this action in connection with Verizon’s opposition to Viamedia’s motion to
remove the “Highly Confidential” designation on a contract between Verizon and another
advertising representative. (Doc. 281; Doc. 509, Tr. of 3/3/20222, at 43-44). In the

15

declaration, Malamud disclosed information regarding the reasons Viamedia lost
Verizon’s business in Los Angeles, Dallas, and New York – reasons other than Comcast’s
conduct as claimed by Viamedia. (Doc. 498-10, Malamud Decl., ¶¶ 7, 9; Doc. 498, at
14). Comcast learned of this information when the Malamud declaration was filed which
was after the close of original fact discovery, and he cannot be compelled to testify at trial.
Viamedia concedes that the “loss of a particular MVPD partner [Verizon] is . . . hotly
disputed.” (Doc. 502, at 6 n.5). Under these circumstances, the Court will allow Jason
Malamud to be deposed about the content of his declaration even though the information
in it occurred before the close of prior fact discovery.
3.

Advertisers

Viamedia agrees that Comcast may depose advertising witnesses on matters that
post-date the prior close of fact discovery and concern Viamedia’s additional damages.
(Doc. 492, at 9). (See also Doc. 509, Tr. of 3/3/2022, at 50) (“[I]f [Comcast has] questions
from advertisers that concern additional damages, we think that’s fair discovery.”). But
Comcast has also issued third-party deposition subpoenas intended to explore the
advertising side of the Interconnect services platform.

Specifically, Comcast has

subpoenaed Google LLC and Meta Platforms, Inc., which both supply certain advertising
services; Sinclair Broadcast Group, Inc.; and Charter Communications, Inc., which is a
cable provider and Interconnect operator. (Doc. 492, at 9; Docs. 492-8, 492-9, 492-10,
492-11). Viamedia opposes this discovery.
Comcast concedes that “[p]rior fact discovery focused on the MVPD side of the
alleged markets.” (Doc. 498, at 16). And in arguing for summary judgment, Comcast
chose not to dispute Viamedia’s market definition and power showings. (Doc. 492, at 9)

16

(citing Viamedia, 951 F.3d at 474) (noting that “[u]ndisputed geographic markets, service
markets, and market power make this case unusual.”). On remand, however, Comcast
now wants to reconsider this position and pursue discovery into the advertising side of
the markets. Comcast claims this is based on a change in the law. On June 25, 2018,
after summary judgment briefing in this case was completed but before Judge St. Eve
issued her decision in August 2018, the Supreme Court decided the case of Ohio v.
American Express Co., 138 S. Ct. 2274 (2018). The Court held that credit-card networks
are two-sided platforms, and that “[d]ue to indirect network effects, two-sided platforms
cannot raise prices on one side without risking a feedback loop of declining demand.” Id.
at 2285. As a result, the Court held that “courts must include both sides of the platform –
merchants and cardholders – when defining the credit-card market.” Id. at 2286. The
Court clarified, however, that “[a] market should be treated as one sided when the impacts
of indirect network effects and relative pricing in that market are minor.” Id.
Comcast believes American Express is significant because the Seventh Circuit
cited it for the proposition that Interconnects are also two-sided platforms that connect
advertisers to MVPDs and their retail customers. Viamedia, 951 F.3d at 439 (citing
American Express, 138 S. Ct. at 2280). Based on this new law, Comcast seeks to depose
a “small number of third parties with which Comcast and Viamedia compete for
advertisers.” (Doc. 498, at 16). Viamedia opposes this, arguing that it is too late for
Comcast to challenge the market definition to which it previously stipulated. (Doc. 502,
at 6). While Viamedia may be right, this issue must be decided by the district judge.
Rather than deny Comcast the limited discovery it seeks – and hence the ability to present

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this issue to the district judge for consideration – the Court will allow these limited
depositions to proceed. Viamedia’s motion for protective order on this issue is denied.
C.

Expert Reports

Viamedia finally seeks to limit Comcast’s ability to modify and update its expert
reports except to address additional damages Viamedia claims it has suffered since the
close of original discovery. (Doc. 492, at 14). Viamedia concedes that the Seventh Circuit
instructed the court to “take a fresh look” at the parties’ expert reports on remand,
Viamedia, 951 F.3d at 451, but says that was only to “address whether amendments were
warranted in light of the revival of the refusal-to-deal theory – not to allow a second bite
at the merits of the tying case remanded for trial.” (Doc. 492, at 14). Comcast responds
that its expert witnesses “will take into account new developments, including facts that
have been the subject of remand discovery and legal developments such as the Supreme
Court’s decision in Amex [American Express] and the Seventh Circuit’s decision” and
insists “[s]uch modifications are routine.” (Doc. 498, at 15) (citing NeuroGrafix v. Brainlab,
Inc., No. 12 C 6074, 2020 WL 5642946, at *2 (N.D. Ill. Sept. 22, 2020)).
Viamedia’s motion for a protective order restricting the “subject matters and the
time periods” covered in future supplemental expert reports (Doc. 492, at 14) is denied.
As the Court noted during the January 11, 2022 hearing when it rejected a similar request
by Viamedia, this Court’s authority is limited to supervising discovery. It has no authority
to enter an order imposing limits on what the parties may include in Rule 26(a)(2)
disclosures that have yet to be exchanged. Instead, the parties must follow the usual
practice. After the disclosures are served and examined, the parties may move the district
judge to strike or bar all or portions of any expert’s opinions. Armed with the actual

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opinions at issue and briefing from the parties, the district judge will be in a position to
decide whether a particular opinion is permissible.
II.

Comcast’s Motion to Compel
The Court next considers the parties’ dispute about discovery requests that

Comcast served on Viamedia on October 22, 2021 and January 7, 2022. Viamedia
objects that the requests are untimely because the deadline to complete this written
discovery was October 22, 2021, and so the requests do not warrant a response.
Comcast has moved to compel Viamedia to answer the requests arguing that the October
22 deadline did not apply to this written discovery, and so it was timely, any objections
have been waived and the requests for admission should be deemed admitted due to the
failure to respond.
A.

Background

In April 2021, this Court entered a discovery schedule setting October 22, 2021 as
the date for the close of fact discovery. (Doc. 436). As noted, the parties could not agree
on the scope of such discovery, which led Viamedia to seek a protective order (Doc. 401)
and Comcast to move to compel (Doc. 410). In August 2021, Comcast moved the Court
to vacate the discovery schedule, explaining that “[r]esolution of the two pending
discovery motions is necessary to allow for the efficient conclusion of discovery in this
case, including such additional depositions as will be needed to prepare the case for trial.”
(Doc. 447, at 3). Viamedia opposed the motion, arguing that “the parties’ able counsel
could timely complete at least the deposition discovery that both parties agree is
necessary notwithstanding the pending motions[,]” and complaining that “Comcast

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instead unilaterally decided not to even attempt to schedule any deposition of anyone
during the last four months….” (Doc. 449, at 2).
Following a hearing on August 27, 2021, the Court entered an order granting the
motion in part and denying it in part. The order further stated:
The existing discovery schedule is vacated except that the fact discovery
deadline of 10/22/2021 remains in place for completion of the party
discovery described during today's hearing that is necessary regardless of
the Court's future rulings on discovery motions 401 and 410.
(Doc. 452). Viamedia argues that this order covered the written discovery at issue, while
Comcast argues that the order applied only to the party depositions discussed during the
hearing. Given the nature of the disagreement, a detailed summary of the hearing is
helpful.
1.

The August 27, 2022 Hearing

In the August 27 hearing, the Court questioned the parties about their respective
positions on Comcast’s motion to vacate the discovery schedule and to set a new one
following a ruling on the pending discovery motions. Based on what it heard, the Court
remarked:
So right now you [Comcast] would be, it sounds like, willing to go forward
with the depositions of Viamedia people on the agreed, you know, subject
matter and documents with the understanding that you would be able to
redepose them later based on my ruling.
(Doc. 456, Tr. of 8/27/2021, at 12). After Comcast expressed concern about the absence
of a “clean, clear line between the geographies” and the prospect of contentious
depositions where witnesses would be instructed not to answer, the Court said it wanted
the parties to go forward at least with one of the depositions as a test case to see whether
these concerns were valid. (Id. at 13) (“[L]et’s at least try it, at least so discovery can

20

move ahead. Then, you know, if your fears are correct, you can revisit whether to go
forward.”). Comcast agreed to proceed with the party depositions in this manner with the
proviso that in the event of a favorable ruling from the Court on the pending motions,
Comcast would be able to re-depose the witnesses on the new topics without Viamedia
arguing burden. (Id. at 14).
At this juncture, the Court addressed Viamedia, asking whether there was a need
for clarification “[b]ecause it sounds like you’re going to be moving ahead, we can talk
about, you know, a schedule, but moving ahead now on the depositions and 30(b)(6)
testimony.” (Id.). Viamedia then sought to confirm that “[i]f I understand correctly, we’re
both going to go ahead with 30(b)(6) depositions and we both have the right to revisit
30(b)(6)s depending on how you rule.” (Id.). Viamedia expressed concern, however,
about possible delay from the “back-and-forth” for an “individual fact witness” test case
such that “we only get one or two fact witnesses done by October 22nd.” (Id. at 14-15).
Viamedia observed that Comcast had “ample resources to conduct all of the depositions
that they want to take by October 22nd.” (Id. at 15). Viamedia then proposed:
So I think that what we should plan on doing is scheduling all of the
depositions that Comcast thinks it needs to take before October 22nd. We
take the test case and then quickly address with each other and then, if
necessary, with you whether they can go ahead and take the additional
depositions.
(Id.). While Comcast agreed, it expressed concern about proceeding with the third-party
depositions, and the Court agreed that “third parties shouldn’t be deposed now” to avoid
the risk that they would be subjected to a second deposition in light of rulings on the
pending motions. (Id. at 16).

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After discussion about the number of party depositions that would be taken, and
issues related to the Rule 30(b)(6) depositions, the Court invited each side to identify any
further issues that should be discussed. (Id. at 18-19). Viamedia responded: “One, I just
want to confirm that for the depositions that are going forward, October 22nd is the
deadline to complete them, the deadline in place….” (Id. at 19). The Court then inquired
of Comcast: “So what is Comcast’s view on why I shouldn’t keep the current deadline at
least for these now limited depositions?” Comcast responded that it was “fine” with
“staging it in the way that has been suggested by focusing on the Viamedia witnesses.”
(Id.).
After Comcast observed that the discovery schedule still needed to be vacated,
Viamedia suggested that given the “uncertainties,” the parties should confer as soon as
the Court issued rulings on the pending discovery motions and “if we need a schedule
conference, which we probably will, we would ask for [it].” (Id. at 20). As the hearing then
drew to a close, the following exchange occurred:
COURT: So what I’m going to do is I will indicate in today’s order that that
deadline is to be complied with for the discovery that we’ve described here
today and that otherwise the discovery schedule is vacated. You know, no
matter what happens, it’s going to have to be reset, but I think what matters
today is that you have a deadline to move ahead. You have a lot to do in
the next eight or nine weeks or whatever it is to get these 30(b)(6) topics
and the Viamedia depositions and, you know, I’m sure I’ll be ruling between
now and then. So maybe that will be help, too. Is there anything further from
Viamedia?
VIAMEDIA: Yes, Your Honor, just a language point. We would prefer if you
said that the deadlines are still in force except for non-party deposition
discovery, which is I think the only thing that is being pushed back here.
(Id. at 20-21).

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After explaining why it was unwilling to do this, the Court said it would be “clear
that you have a deadline to do the discovery that, you know, we just said is not impacted
by the motion, and then we’ll set whatever dates and you can argue for whatever dates
you want when we come back.” (Id. at 22). In closing, the Court remarked that it would
draft and enter an order reflecting the parties’ agreement that day and if they disagreed
with the wording, “I’m sure I’ll hear from you.” (Id.). The Court again asked each side if
it had anything further to raise. Viamedia did not. Comcast raised issues about specific
depositions but as to the “general point that we’re going to proceed with party discovery
in the manner that’s been described, we’re fine with that.” (Id.). At no time during or after
that hearing did either party inquire as to whether the October 22, 2021 deadline applied
to the parties’ written discovery.
2.

New Written Discovery and Parties’ Compromise

At close to midnight on October 22, 2021, Comcast served Viamedia with a Third
Set of Remand Interrogatories (Doc. 498-11), a Second Set of Remand Requests for
Admission (Doc. 498-12), and a Ninth Set of Remand Document Requests (Doc. 49813). On November 16, 2021, Viamedia sent Comcast an email stating that the requests
were untimely and declining to respond. (Doc. 499-14, Letter from Comcast to Viamedia
dated 12/10/2021, at 5). Comcast countered during a November 20, 2021 teleconference
and in a December 2, 2021 letter to Viamedia that the requests were timely and that
Viamedia’s failure to respond within 30 days meant all objections had been waived and
the requests for admission were deemed admitted. (Id.). Nevertheless, in a letter dated
December 10, 2021, Comcast offered the following compromise:
Comcast would be willing to forgo its position that the requests for
admission are deemed admitted and that Viamedia has waived its right to
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object to the other discovery requests if Viamedia will agree to (1) forgo its
objection that Comcast’s requests were untimely when served, (2) provide
written answers (not merely objections) to the RFAs and substantive
responses to the other discovery requests by December 23, 2021, and (3)
discuss in good faith the parameters of Viamedia’s search for responsive
documents as part of the parties’ overall discussions of Viamedia’s
supplemental production.
(Id.).
Viamedia responded to Comcast’s letter on December 14, 2021 stating “[w]e agree
to those conditions except for one: in light of competing demands on the parties’ time, we
do not think December 23, 2021 is an appropriate deadline. We therefore ask that
Comcast agree we may serve responses and objections on December 30, 2021.” (Doc.
499-15, Letter from Viamedia to Comcast dated 12/14/2021, at 4). Just six days later on
December 20, 2021, Viamedia reported during a status hearing that it was no longer
pursuing its refusal-to-deal theory of liability. (Doc. 485). Viamedia subsequently refused
to answer Comcast’s discovery in the agreed manner. Instead, on December 30, 2021,
Viamedia sent answers that asserted only multiple objections, including the untimeliness
objection it had agreed to forgo. (Doc. 494-5; Doc. 494-6; Doc. 494-7).
On January 7, 2022, Comcast served its Fourth Set of Remand Interrogatories
specifically related to Viamedia’s claim for additional damages. (Doc. 502-2, at 4-5).
Viamedia declined to answer these requests arguing once again that agreed party
discovery had closed back on October 22, 2021. (Doc. 502, at 10, 13). Comcast in turn
claimed that Viamedia had waived any objections to those interrogatories by failing to
answer them by February 8, 2022. 10 (Doc. 505, at 11-12).

As indicated during the March 6, 2022 hearing, the parties may not issue any additional
written discovery except by agreement or with leave of court.
10

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B.

Analysis

“A party may file a motion to compel under Federal Rule of Civil Procedure 37
whenever another party fails to respond to a discovery request or when its response is
insufficient.” Belcastro v. United Airlines, Inc., No. 17 C 1682, 2019 WL 1651709, at *2
(N.D. Ill. Apr. 17, 2019) (citing FED. R. CIV. P. 37(a)). “Courts have broad discretion in
resolving such disputes.” Id.
Viamedia argues that the October 22, 2021 and January 7, 2022 discovery
requests are “facially untimely” since the responses were due after the October 22, 2021
deadline to complete discovery. (Doc. 492, at 8) (citing Local Rule 16.1). Comcast
disagrees with Viamedia’s premise that the deadline for this written discovery was
October 22, 2021. 11 Comcast notes that when this Court vacated the discovery schedule
on August 27, 2021, it carved out only one exception: the October 22, 2021 fact cut-off
deadline stood for “party discovery described at today’s hearing that is necessary
regardless of the Court’s future rulings on discovery motions.” (Doc. 452). According to
Comcast, the only “discovery described at” the August 27, 2021 hearing was “party
depositions on topics to which neither party objected.” (Doc. 498, at 17 (emphasis in
original); Doc. 505, at 9). In other words, Comcast takes the position that it was free to

Comcast also argues that discovery deadlines do not apply to requests for admission that
seek to eliminate issues for trial. (Doc. 498, at 18 n.9) (citing Kelly v. McGraw-Hill Cos., Inc., 279
F.R.D. 470 (N.D. Ill. 2012)). However, “[n]umerous courts have . . . disallowed requests to admit
that would require responses beyond the close of discovery.” U.S.E.E.O.C. v. Bloomin’ Apple
Rockford I, LLC, No. 04 C 50375, 2006 WL 8462140, at *1 (N.D. Ill. Feb. 10, 2006) (collecting
cases). See also Finnerman v. Daimler Chrysler Corp., No. 16 C 451, 2017 WL 4772736, at *4
(N.D. Ill. Oct. 23, 2017) (though requests for admission serve the different purpose of obtaining
“admissions for the record of facts already known,” they are “still subject to Northern District of
Illinois Local Rule 16.1 and the discovery scheduling order in this case.”) (collecting cases). This
Court need not resolve this issue given the rationale for its ruling.
11

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serve new written discovery requests at any time since the Court “did not set any other
relevant deadline.” (Id.).
The Court agrees that its written order said the October 22, 2021 deadline was for
completion of the discovery described during the August 27, 2021 hearing, and that the
discovery described during that hearing were party depositions on topics that all agreed
could proceed regardless of the outcome of pending motions 401 and 410. As noted in
the preceding background section of this Order, the Court’s intent was to draft an order
that reflected the agreement reached by the parties during that hearing. Neither side
raised the issue during or after the hearing of whether the October 22, 2021 deadline did
or should apply to written discovery. Had either party done so, the Court would have
heard argument as to whether there was such discovery, whether the parties were in
agreement that the pending motions had no bearing on that discovery, and whether it
would be reasonable to impose the same October 22, 2021 deadline. 12
There is some evidence that both Comcast and Viamedia were uncertain as to
whether the October 22, 2021 deadline applied to the written discovery at issue. If
Comcast believed it could issue this discovery at any time, then one has to wonder why
Comcast issued the first batch close to midnight on October 22, 2021. Likewise, if
Viamedia believed the order was clear that the deadline was October 22, 2021, then it
had no reason to agree to answer the discovery and withdraw its timeliness objection.
Nevertheless, since the entire focus of the August 2021 hearing was on depositions and

The first time the Court became aware of the outstanding October 22, 2021 discovery
requests and the related disputes was through a January 4, 2022 Joint Status Report. (Doc. 486,
at 11). During the March 3, 2022 hearing, the Court stated that the parties were not to issue
further written discovery except by agreement or with leave of Court. (Doc. 509, Tr. of 3/3/2022,
at 3-4).
12

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neither side asked the Court to correct the order or add in language about written
discovery, the Court will not now construe that order as setting an October 22, 2021 cutoff
date for written discovery. The Court thus denies Viamedia’s motion for a protective order
and grants Comcast’s motion to compel responses to both the October 2021 and January
2022 requests.
With respect to the October 2021 discovery, the motion to compel is also granted
for the additional reason that Viamedia agreed to answer the requests. (Doc. 499-14,
Letter from Comcast to Viamedia dated 12/10/2021, at 5; Doc. 499-15, Letter from
Viamedia to Comcast dated 12/14/2021, at 4).

Viamedia claims this compromise

agreement “was predicated on the assumption that Viamedia would continue to pursue
its refusal-to-deal theories.” (Doc. 492, at 8; Doc. 502, at 9) (claiming the compromise
“presupposed that Viamedia would continue to pursue its refusal-to-deal theories.”).
According to Viamedia, this explains why it served objections on the agreed-upon date of
December 30, 2021 refusing to answer the requests. (Doc. 492, at 8; Doc. 502, at 9-10).
By way of support, Viamedia notes that the third component of Comcast’s proposed
compromise was that the parties “discuss in good faith the parameters of Viamedia’s
search for responsive documents as part of the parties’ overall discussions of Viamedia’s
supplemental production.”

(Doc. 499-14, Letter from Comcast to Viamedia dated

12/10/2021, at 5). Viamedia says that when it abandoned the refusal-to-deal theory, “it
mooted those ‘overall discussions.’” (Doc. 502, at 9).
As Comcast fairly notes, nothing in Viamedia’s December 14, 2021 letter accepting
the agreement indicated it hinged on whether Viamedia decided to continue pursuing the
refusal-to-deal theory.

The fact that the discussion component of the compromise

27

agreement was arguably mooted by Viamedia’s decision to withdraw the refusal-to-deal
theory does not mean the other two components (that Viamedia waive its untimeliness
objections and answer the new discovery) were mooted as well. This interpretation is
supported by the fact that Viamedia responded to Comcast’s October 2021 discovery on
December 30, 2021, the date agreed to by the parties, with multiple objections in addition
to untimeliness. Notably, Viamedia does not claim that the discovery relates solely to its
withdrawn refusal-to-deal theory.
The remainder of Comcast’s motion to compel is denied. Given the lack of clarity
in the August 27, 2021 order, the Court is unwilling to penalize Viamedia for construing
the order as it did. So it declines to find that Viamedia has waived its objections to the
discovery, and that the requests for admission are deemed admitted.

Viamedia’s

answers to the discovery are due by April 1, 2022.
CONCLUSION
For the reasons stated above, Viamedia’s Motion for Protective Order [492] is
denied and Comcast’s Motion to Compel [498, 499] is granted in part and denied in part.
ENTER:

Dated: March 11, 2022

_____________________________
SHEILA FINNEGAN
United States Magistrate Judge

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