American Airlines Inc v. Travelport Limited et al

Filing 102

Appendix in Support filed by Sabre Holdings Corporation, Sabre Inc, Sabre Travel International Ltd re #101 Notice of Joinder in Defendants Travelport Limited and Travelport LP's Motion to Stay Discovery. (Attachments: #1 Exhibit(s) 1 - AA First Request for Production of Documents) (Fredricks, Scott) Modified text on 7/14/2011 (klm).

EXHIBIT 1

SABRE APPX 000001

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
American Airlines, Inc., a Delaware
corporation,
Plaintiff,
vs.
Sabre, Inc., a Delaware corporation; Sabre
Holdings Corporation, a Delaware
corporation; and Sabre Travel
Intemational Ltd., a foreign corporation,
d/b/a Sabre Travel Network;
Travelport Limited, a foreign corporation
and Travelport, LP, a Delaware limited
partnership, d/b/a Travelport;
and

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Civil Action No.: 4:ll-cv-0244-Y

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Orbitz Worldwide, LLC, a Delaware
limited liability company, d/b/a Orbitz;
Defendants.

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FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS
TO:

Defendants Sabre, Inc., Sabre Holdings Corporation, and Sabre Travel
Intemational Ltd., by and through their attomeys of record, Cantey Hanger LLP,
600 West 6th Street, Suite 300, Fort Worth, Texas 76102.
Defendants Travelport, Limited and Travelport, LP, by and through their
attomeys of record, Friedman, Suder & Cooke, Tindall Square Warehouse No.1,
604 East Fourth Street, Suite 200, Fort Worth, Texas 76102.
Defendant Orbitz Worldwide, LLC, by and through its attomeys of record, Little
Pedersen Fanldlauser LLP, 901 Main Street, Suite 4110, Dallas, Texas 75202.
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure,

American Airlines, Inc. hereby requests that Defendants Sabre, Inc., Sabre Holdings

SABRE APPX 000002

Corporation, Sabre Travel International Ltd., TravelpOlt Limited, Travelport, LP, and
Orbitz Worldwide, LLC produce the documents described below.
I.

I.

DEFINITIONS

The term "AA" means American Airlines, Inc.

2.
The term "AA Direct Connect" means AA's distribution of flight, fare,
and availability information from AA's internal reservation system to travel agents using
technology that is designed to bypass, in whole or in part, the ODSs.
3.
The term "Amended PCA" means the Distribution Content and Modified
Payments Amendment, dated September I, 2006, by and between AA and Sabre Travel
International Limited. The Amended PCA amends the Sabre Participating Carrier
Distribution and Services Agreement, dated September 22, 1998.
4.
The term "Booking" means an airline passenger segment for
transportation that is created by or reserved, purchased, or ticketed through a ODS or
Direct Connect.
5.
The tenn "Booking Fee" means the fee that any ODS charges on a persegment basis for a Booking.
6.
The tenn "Booking Source Premium" means the recovery fee AA applied
to flights for which Travelport's Increased Booking Fee was applied.
7.
The tenn "Content Agreement" means the Content Agreement, dated
March 28, 2006, by and between AA and Worldpsan, L.P. The Content Agreement
amends the Worldspan Participating Carrier Agreement that became effective February 1,
1991.
8.
The term "Direct Connect" means a direct connection to an air carrier's
internal reservation system or any other means by which a travel agency, corporation,
organization, person, or other entity may reserve, purchase, and/or ticket travel on the air
carrier's flights where the ODS either is not utilized or is utilized to faciliate the direct
connection between the airline and subscriber.
9.
The tenn "Distribution Contracts" means the Content Agreement, the
Amended PCA, and the Preferred Fares Amendment.
10.

The tenn "Farelogix" means Farelogix Inc.

1I.
The tenns "Full Content Provision" and "Content Parity Provision" mean
Section 2.1 of the Content Agreement, Section 3(a) of the Amended PCA, Section 2.1 of
the Preferred Fares Amendment, or any contractual provision requiring air carriers to
provide to a ODS infonnation, data or services, including for example fares, schedules,
and associated rules and seat availability related to reserving or purchasing air travel, that

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SABRE APPX 000003

an air carrier makes available to another distribution channel, including any other GDS,
the general public, its own reservations and sales personnel, and/or the air carrier's
website or Direct Connect.
12.
The terms "GDS" or GDSs" mean the global distribution systems operated
under the Sabre, Galileo, Apollo, Worldspan, and Amadeus brands.
13.
The tenns "Most Favored Nation Provision" and "MFN Provision" mean
Section 2.2 of the Content Agreement, Section 3(a) of the Amended PCA, Section 2.1 of
the Preferred Fares Amendment, or any contractual provision that in its purpose or effect
requires an airline to offer each GDS the same content on equivalent terms as those
offered to any other GDS and/or through alternate distribution chimnels such as an
airline's website or through a direct connection.
14.
The term "Orbitz" means defendant Orbitz Worldwide, LLC, as well as its
subsidiaries, parent companies, predecessor entities, or related entities, and any agent,
employee, attorney or other person acting on its behalf
IS.
The term "Preferred Fares Amendment" means the Preferred Fares
Amendment, dated July 5, 2006, by and among AA, Galileo International, L.L.C. and
Galileo Nederland, B.V. The Preferred Fares Amendment amends the Galileo
International Global Airline Distribution Agreement dated December 15, 1993.
16.
The tenn "Sabre" means either defendants Sabre, Inc., Sabre Holdings
Corporation, and Sabre Travellnternational Ltd., as well as their subsidiaries, parent
companies, predecessor entities, or related entities, and any agent, employee, attorney or
other persori acting on their behalf, or the Sabre GDS.
17.
The term "Sabre Authorized Developer Agreement" means Sabre's
developer agreement that allows third parties to interface and interoperate with the Sabre
GDS in order to provide services to travel agencies.
18.
The term "Sabre Display of AA's Fares" means the way in which Sabre
displayed AA's fares to Sabre travel agent subscribers, through its GDSs, from January 5,
2011 until January 10,2011.
19.
The tenn "Sabre Increased Booking Fee" means the increase in Booking
Fees that Sabre charged AA from January 5, 2011 until January 10, 2011 for booking of
AA flights by travel agents that subscribe to Sabre.
20.
The term "Travelport" means either defendants Travelport Limited and
Travelport, LP, as well as their subsidiaries, parent companies, predecessor entities, or
related entities, and any agent, employee, attorney or other person acting on their behalf,
or the Galileo, Apollo, and Worldspan GDSs.
21.
The tenn "Travelport's Display of AA's Fares" means the way in which
Travelport has, from December 20, 2010 until Febrnary 17, 2011, displayed AA's fares

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SABRE APPX 000004

to Travelport subscribers, through its GDSs including incorporating into AN s fares the
Booking Source Premium.
22.
The term "Travelport's Increased Booking Fee" means the I00% increase
in Booking Fees that Travelport imposed on AA effective December 3,2010 for
bookings of AA flights by travel agents in non-U.S. markets that subscribe to Travelport.
23.
The term "Travelport System Access Agreement" means Travclport's
developer agreement that allows third parties to interface and interoperate with the
Galileo, Apollo, and Worldspan GDSs in order to provide services to travel agencies.
24.
The tenn "TravelpOli's Universal Application Programming Interface
(uAPI)" means Travelport's alternative channel for distributing airline flight, fare, and
availability infonnation to travel agents.
25.
The term "Subscriber Services Agreement" means the Subscriber Services
Agreement, dated July 23,2007, by and among Orbitz Worldwide, LLC and Galileo
International, L.L.C.
26.
The term "communications" means any oral or written transmittal or
receipt of facts, information, thoughts, inquiries, or opinions, including meetings,
conversations in person, telephone conversations, records of conversations or messages,
telegrams, facsimile transmissions, electronic mail transmissions, letters, reports,
memoranda, formal statements, press releases, and newspaper stories. References to
communications with business entities shall be deemed to include all officers, directors,
employees, personnel, agents, attorneys, accountants, consultants, independent
contractors, or other representatives of such entities.
27.
The terms "concerning," "regarding," "relating," and "referencing" mean
arising out of, consisting of, constituting, containing, embodying, reflecting, evidencing,
identifying, stating, supporting, referring to, recording, dealing with, describing,
explaining, memorializing, or in any malliler whatsoever pertaining to the subject.
28.
The telID "correspondence" means any written transmittal or receipt of
facts, information, thoughts, inquiries, opinions, including meetings, conversations in
person, telephone conversations, records of conversations or messages, telegrams,
facsimile transmissions, electronic mail transmissions, letters, reports, memoranda,
formal statements, press releases, and newspaper stories. References to correspondence
with business entities shall be deemed to include all officers, directors, employees,
persollilel, agents, attorneys, accountants, consultants, independent contractors, or other
representatives of such entities.
29.
The term "documents" has the broadest meaning accorded it by Federal
Rules of Civil Procedure. The tenn includes both original and nonidentical copies of all
papers, letters, files, contracts, books, accounts, drawings, graphs, charts, photographs,
films, electronic or videotape recordings, and any other data compilations from which
information can be obtained and translated, if necessary, by the person from whom
production is sought, into reasonably usable fonn, and any other tangible things which
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SABRE APPX 000005

constitute or contain matters relevant to the subject matter herein, including, but not
limited to, ledgers, journals, diaries, manuals, books of account, financial statements,
articles of incorporation, resolutions, by-laws, inventory lists, client lists, stock
certificates, minutes, notes, records of meetings, discs, records of conferences, lists of
persons attending meetings or conferences, reports or summaries of interviews, emails,
reports or summaries of investigations, opinions, reports or summaries of negotiations,
brochures, pamphlets, advertisements, government regulations, documents and
authorities, letters, memoranda, telephone messages, notes of or relating to telephone
communications, calendars, schedules, organizational charts, circulars, press releases,
mailing lists, drafts of any of the documents listed, revisions of drafts of any documents,
and original preliminary notes coneeming drafts of any documents, within your
possession, custody, or control.

II.

INSTRUCTIONS

I.
The terms used in these Requests for Production (the "Requests") are to be
given their most expansive and inclusive interpretation unless otherwise expressly limited
in a specific request. This includes, without limitation, the following:
a.

construing "and" and "or" in the disjunctive or conjunctive as
necessary to make a request more inclusive;

b.

construing the singular form of a word to include the plural and the
plural to include the singular;

c.

construing the tenn "among" to mean between or among;

d.

construing the tenn "any" to mean any, all, each, and every;

e.

construing masculine, feminine, or neuter pronouns to include
other genders; and

f.

construing the present tense of a verb to include its past tense and
vIce-versa.

2.
Pursuant to Federal Rule of Civil Procedure 34(b)(2)(C), in the event you
object to part of a Request, you are to respond to that portion of the Request believed to
be unobjectionable and specifically identify the aspect of the Request to which you object
and the basis for your objection. In the event you claim that any infonnation responsive
to these Requests is beyond the scope of pennissible discovery, such claim shall specify
in detail all the grounds on which the claim rests. AA reserves its right to challenge any
such claim under Federal Rule of Civil Procedure 34(b)(2)(C).
3.
Pursuant to Federal Rule of Civil Procedure 34(b)(2)(B), you must answer
each Request by stating that production will be made or inspection will be pennitted.
4.
Pursuant to Federal Rule of Civil Procedure 26(b)(5), you must identify in
your response any documents or infonnation you refuse to produce on the basis of any

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SABRE APPX 000006

privilege, exemption, or immunity, together with information sufficient to permit AA to
make a detennination whether you have a proper basis for refusing to produce the
document. In doing so, the following information should be supplied in writing:
a.

that information responsive to the Request has been withheld;

b.

identify the Request to which the information or material relates;

c.

state the privilege(s) asserted; and

d.

describe the nature of the documents, communications, or tangible
things not produced or disclosed.

5.
Pursuant to Federal Rule of Civil Procedure 34(b)(2)(E), documents
responsive to the Requests are to be made available in their present condition and as they
are kept in the ordinary course of business or labeled to identify the specific Request to
which they peliain.
6.
The Requests are continuing in nature, and you must supplement or
correct your answers in accordance with Federal Rule of Civil Procedure 26(e)(l).
7.
The Requests are intended to cover all information in your possession,
custody, or control whether directly or indirectly. Infonnation is deemed to be within
your possession, custody, or control if: (a) it is within your actual knowledge or
possession; (b) it is within the possession of your employees, agents, trustees, attomeys,
accountants, advisors or representatives; or (c) it is within the possession of any other
person or entity and you have the right to obtain the documents from such person or
entity.
8.
If a Defendant intends to use or has used search terms to collect and
review potentially responsive documents, that Defendant shall provide AA its search
terms promptly so that AA can meet and confer with that Defendant, if necessary, on the
sufficiency of the search terms employed.

III.

RELEVANT TIME PERIOD

Unless otherwise noted, these Requests cover documents, communications, and
information created, revised, transmitted, or reviewed for the time period of April 12,
2007 to the present.

IV.

REQUESTS TO PRODUCE DOCUMENTS

1.
All documents and intemal or extemal communications refelTing or
relating to, as well as all documents and testimony produced in, Travelport v. American
Airlines, Case No. 2010 CH-48028, in the Circuit Court of Cook County, Illinois.
2.
All documents and intemal or extemal communications referring or
relating to, as well as all documents and testimony produced in, American Airlines, Inc. v.

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SABRE APPX 000007

Sabre, et al., Case No. 067-249214-10, in the 67th Judicial District of Tarrant County,
Texas.
3.
All documents and internal or external communications referring or
relating to, as well as all documents and testimony produced in, US Airways, Inc. v. Sabre
Holdings Corp., Case No. ll-cv-2725, in the United States District Court for the
Southern District of New York.
4.
All non-privileged documents and internal or external communications
referring or relating to American Airlines, Inc. v. Sabre, Inc., et al., et al., Case No.4: 11cv-00244-Y, in the United States District Court for the Northern District of Texas.
5.
All documents submitted (including on a voluntary basis) to the United
States Department of Justice or the United States Department of Transportation, or in
response to a Civil Investigative Demand ("CIO") issued by the United States
Department of Justice, including a copy of the CIO and any external correspondence
regarding such CID with the United States Department of Justice, regarding the
distribution of airline flight, fare, and availability infonnation or alternative channels for
distributing such information.
6.
Since January 1,2006, all: i) strategic, business and marketing plans; ii)
documents related to ODS market shares; iii) documents related to actual or potential
competitors; iv) documents related to barriers to entry (including to the adoption of direct
connect or a new ODS entrant); v) documents referring to the ODS Defendants' travel
agent subscribers; vi) marketing presentations and materials by each of the ODS
Defendants to its travel agent subscribers; and vii) analyses, studies, and presentations by
each of the ODS Defendants concerning each of its travel agent subscribers.
7.
Audited financial statements (e.g., income statements, profit and loss
statements, statements of cash flows and balance sheets) and financial reports,
memoranda, and analyses concerning the ODSs' financial performance.
8.
All documents and internal or external communications concerning the
profitability, profit margin or costs of operating the ODSs, including marginal and fixed
costs, and research, development and investment with respect to the ODSs.
9.
All documents and internal or extel11a1 communications referring to Direct
Connect, including, but not limited to, AA Direct Connect.
10.
All documents and internal or extel11a1 communications regarding: i) the
expiration or termination of the Distribution Contracts or any amendment thereto, and/or
ii) negotiations related to extending or modifying those Contracts or amendments or
entering into new Contracts or amendments with AA, including financial or other models
or forecasts, strategic plans, analyses, presentations, and memoranda.
II.
Documents sufficient to show Booking Fees since 2003 and all documents
and internal or extel11a1 communications referring or relating to changes in the rates
charged for Booking Fees and the reasons for such changes.

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SABRE APPX 000008

12.
All documents and internal or external communications regarding: i)
Travelport's Increased Booking Fee; ii) AA's Booking Source Premium; iii) Trave1port's
Display of AA's Fares; iv) Sabre's Increased Booking Fee; and/or v) Sabre's Display of
AA's Fares.
13.
All documents and internal or external communications relating to any
actual or potential actions that were taken or considered against AA or any other airline
for using Direct Connect.

14.
Since January 1,2006, all marketing materials, analyses, studies, or
presentations in connection with any actual or potential investment, acquisition, merger,
or exit strategies, including, but not limited to, offering memoranda, prospectuscs, and
financial projections.
15.
Each of Sabre's and Travelport's contracts with air can'iers, including but
not limited to Air Canada Inc., Continental Airlines, Inc., Delta Airlines, Inc., JetBlue
Airways Corp., Southwest Airlines Co., or Spirit Airlines, Inc., United Air Lines, Inc"
and US Airways, Inc.

16.

All documents and internal or external communications referring or
relating to the most favored nation clauses in Sabre's and Travelport's ODS contracts
with air carriers, including but not limited to Air Canada Inc., Continental Airlines, Inc.,
Delta Airlines, Inc., JetBlue Airways Corp., Southwest Airlines Co., or Spirit Airlines,
Inc., United Air Lines, Inc., and US Airways, Inc.
17.
All documents and internal or external communications referring or
relating to the full content provisions in Sabre's and Travelport's ODS contracts with air
carriers, including but not limited to Air Canada Inc., Continental Airlines, Inc., Delta
Airlines, Inc., JetBlue Airways Corp., Southwest Airlines Co., or Spirit Airlines, Inc.,
United Air Lines, Inc., and US Airways, Inc.
18.
All documents and internal or external communications referring or
relating to the tennination provisions or termination dates in Sabre's and Travelport's
obs contracts with air carriers, including but not limited to Air Canada Inc., Continental
Airlines, Inc., Delta Airlines, Inc., JetBlue Airways Corp., Southwest Airlines Co., or
Spirit Airlines, Inc., United Air Lines, Inc., and US Airways, Inc.
19.
All documents and internal or external communications regarding the
ability of travel agents, if any, to switch from one ODS to another or to Direct Connect,
including, but not limited to, documents describing, referring to, or identifying: i) costs,
disincentives, or impediments to switching to a different ODS or Direct COlli1ect, or
ii) savings, incentives, or benefits to continuing to use the same ODS.

20.
Each ofTravelport's and Sabre's contracts with each of their top two
hundred (200) largest travel agent subscribers by Bookings.
21.
All financial reports or documents related to payments by Sabre or
Travelport or their ODSs to their travel agent subscribers, including, but not limited to,

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SABRE APPX 000009

documents and internal or external communications regarding the amounts of and reasons
for such payments.
22.
All documents and internal or external communications referring or
relating to Travelport's and Sabre's contracts with their travel agent subscribers referring
or relating to the following topics:
a.

content aggregation;

b.

exclusivity provisions;

c.

incentive payments;

d.

rebates;

e.

volume discount provisions;

f.

penalty or shortfall provisions;

g.

the length of the contract terms; and

h.

termination provisions.

23.
All documents and internal or external communications concerning: i)
Farelogix or any other entity that has developed or is developing technology to assist in
the distribution of airline flight, fare, and availability information through a medium other
than a GDS, including, but not limited to, the termination of Farelogix or such other
entities from the Sabre Authorized Developer Agreement and the Travelport System
Access Agreement or as a licensee of a Defendant's GDS; and/or ii) content aggregation
or interconnection between the Defendants' GDSs and other GDSs.
24.
Documents sufficient to show the technical and commercial arrangements
for actual, contemplated, or proposed implementations of Direct Connect through a GDS
for air carriers, including but not limited to Air Canada Inc., AirTran Airways, Emirates,
. and Southwest Airlines Co.,
25.
All strategic, business and marketing plans regarding Travelport's
Universal Application Programming Interface (uAPI), Travelport's Universal Desktop,
Sabre's Red Workspace and/or Trams Back Office.
26.
Each contract between Sabre or Travelport and any business entity relating
to that entity's use of a GDS or a corporate booking tool (including, but not limited to,
Get There or Traversa), or that entity's use of a travel agency that subscribes to a GDS.
27.
All documents and internal or external communications regarding
Travelport's relationshipwith Orbitz, including the parties' contracts and any payments
Travelport made to Orbitz associated with Orbitz's relationship with American.

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SABRE APPX 000010

Dated: July 5, 20 II
Yolanda rcia
Sta
ar No.
12457
[e-mail]
Michelle Hartmann
State Bar No. 24032402
[e-mail]
WElL, GOTSHAL & MANGES
200 Crescent Court, Suite 300
Dallas, Texas 75201-6950
214.746.7700
214.746.7777 (Fax)
Bill Bogle
State Bar No. 02561000
[e-mail]
Roland K. Johnson
State Bar No. 00000084
[e-mail]
HARRIS, FINLEY & BOGLE, P.c.
777 Main Street, Suite 3600
Fort Worth, Texas 76102
817.870.8700
817.332.6121 (Fax)
R. Paul Yetter
State Bar No. 22154200
[e-mail]
Alma Rotman
State Bar No. 24046761
[e-mail]
YETTER COLEMAN LLP
909 Fannin, Suite 3600
Houston, Texas 77010
713.632.8000
713.632.8002 (Fax)
ATTORNEYS FOR PLAINTIFF
AMERICAN AIRLINES, INC.

Of Counsel to Plaintiff:

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MJ. Moltenbrey
[e-mail]
DEWEY & LEBOEUF LLP
1101 New York Ave. NW
Washington, D.C. 20005
202.346.8738
202.346.8102 (Fax)
Richard A. Rothman
[e-mail]
James W. Quinn
[e-mail]
WElL, GOTSHAL & MANGES
767 Fifth Avenue
New York, New York 10153
212.310.8426
212.310.8285 (Fax)

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SABRE APPX 000012

CERTIFICATE OF SERVICE
I hereby certify that on this day, July 5, 2011, I caused a true copy of American
Airlines, Inc.'s First Request for Production of Documents to be served via hand delivery
upon each of the following:

•

Defendants Sabre, Inc., Sabre Holdings Corporation, and Sabre Travel
Inte111ational Ltd., by and through their att0111ey of record, Scott A.
Fredricks, Cantey I-Ianger LLP, 600 West 6th Street, Suite 300, Fort
Worth, Texas 76102;

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Defendants Travelport, Limited and Travelport, LP, by and through their
att0111ey of record, Walker C. Friedman, Friedman, Suder & Cooke,
Tindall Square Warehouse No.1, 604 East Fourth Street, Suite 200, Fort
Worth, Texas 76102; and

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Defendant Orbitz Worldwide, LLC, by and through its att0111ey of record,
John J. Little, Little Pedersen Fankhauser LLP, 901 Main Street, Suite
4110, Dallas, Texas 75202.

SABRE APPX 000013