American Airlines Inc v. Travelport Limited et al

Filing 248

RESPONSE filed by American Airlines Inc re: #224 (Document Restricted) Motion for an Order to Permit Disclosure of Certain Documents (Sealed pursuant to order dated 6/9/2011) (Garcia, Yolanda)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
AMERICAN AIRLINES, INC.
Plaintiff,
vs.
TRAVELPORT LIMITED, et al.
Defendants.

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CIVIL ACTION NO. 4:11-CV-244-Y
(Relates to Motion Referred to
Magistrate Judge Cureton)

PLAINTIFF AMERICAN AIRLINES, INC.’S
OPPOSITION TO DEFENDANT ORBITZ WORLDWIDE, LLC’S MOTION
FOR AN ORDER PERMITTING IT TO SHARE CERTAIN DOCUMENTS
WITH IN-HOUSE COUNSEL PURSUANT TO THE PROTECTIVE ORDER
Plaintiff American Airlines, Inc. (“American”) hereby serves its Opposition to
Orbitz Worldwide, LLC’s (“Orbitz”) Motion for an Order Permitting Orbitz to Share Certain
Documents with In-House Counsel Pursuant to the Protective Order (the “Motion”).
Orbitz’s Motion should be denied because it is premature, and is an attempt to
gain an unfair advantage at the same time that Orbitz has, for months, refused to produce its own
documents. Orbitz complains that it needs to share certain documents produced by American in
discovery with one of its in-house counsel because these documents supposedly are “critical to
Orbitz’s defense.” (Mot. at 1.) Yet, Orbitz has denied American the same opportunity to prepare
its case by producing only eleven pages of documents as of the date it filed its Motion.
American is not opposed to a process by which all parties can agree, in an evenhanded manner, upon a core set of documents that are important for in-house counsel to review
to help prepare the case for trial. Indeed, American proposed that the parties agree on a process
to do just that. (See Jan. 20, 2012 Email from Yolanda C. Garcia to Brendan A. McShane (App.
at 1 (Ex. 1)).) American was willing to discuss a mutual exchange of documents to be shared
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with in-house counsel immediately and well in advance of trial. Because Orbitz had failed to
produce documents, American asked that this discussion occur after Orbitz produced a
substantial amount of its documents.1 Moreover, because trial is not currently scheduled, and
there is no other imminent event regarding Orbitz in this lawsuit, Orbitz has no urgent need to
share American’s highly confidential documents with its inside counsel, and no justification for
pressing this issue at the same time that it is in flagrant violation of its own document production
obligations.
Nevertheless, instead of agreeing to American’s reasonable request, Orbitz filed
this Motion, which easily could have been resolved or at least significantly limited, through the
parties’ mutual negotiation of documents to be reviewed by in-house counsel. Orbitz’s Motion
simply wastes judicial and party resources and should be denied. Instead, Orbitz should be
ordered to confer with American with respect to this Motion after Orbitz has completed its
document production.
I.

ARGUMENT AND AUTHORITIES

As the court explained in Dondi Properties Corp. v. Commerce Savings & Loan
Assoc., 121 F.R.D. 284, 286 (N.D. Tex. 1988), “valuable judicial and attorney time is consumed
in resolving unnecessary contention and sharp practices between lawyers. . . . Our system of
justice can ill-afford to devote scarce resources to supervising matters that do not advance the
resolution of the merits of a case . . . . .” 121 F.R.D. at 286. Orbitz’s unnecessary Motion is

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 American also is concerned about the potential for inequitable treatment if it grants Orbitz’s requests, but then the
other defendants do not permit American’s in-house counsel to see important documents in this case. To that end,
on February 26, 2012, American requested that Sabre and Travelport permit certain of American’s in-house counsel
to review Sabre’s and Travelport’s documents. Sabre and Travelport have not responded to this request.  

AMERICAN’S OPPOSITION TO ORBITZ’S MOTION FOR AN ORDER
PERMITTING IT TO SHARE CERTAIN DOCUMENTS WITH IN-HOUSE
COUNSEL PURSUANT TO THE PROTECTIVE ORDER
US_ACTIVE:\43924781\08\14013.0135  

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precisely the type of tactic that the court contemplated in Dondi. Rather than waste the Court’s
resources, Orbitz should just produce documents to American as it is required to do under the
Federal Rules of Civil Procedure. At that time, the Parties can continue to meet and confer to
determine which documents can be shared with their respective in-house counsel.
Although Orbitz contends that American has failed to productively meet and
confer, American has in fact conducted itself reasonably and in good faith. To date, American
has produced over a million pages of documents to Orbitz in response to various discovery
requests. Orbitz, on the other hand, has consistently shirked its discovery obligations and now
comes to the Court seeking unjustified relief with unclean hands. Indeed, American needed to
file a motion to compel in this Court after Orbitz had produced a mere eleven pages of
documents in response to discovery requests that American served in July 2011. American
withdrew its motion to compel after Orbitz assured American that it would promptly produce
documents. Yet, on February 10, 2012, Orbitz produced a mere 3,500 more documents– a drop
in the bucket compared to the sizeable document productions from American in this case; and
critically, Orbitz produced no email correspondence after 2008. Orbitz made a further
production of about 3,700 documents on February 24, 2012.
Orbitz first contacted American seeking permission to show certain confidential
documents to its in-house counsel on January 10, 2012. (See Jan. 10, 2012 Letter from Brendan
A. McShane to Margaret H. Allen and Yolanda C. Garcia (App. at 5-6 (Ex. 2)).) During a
subsequent telephonic meet and confer, Orbitz appeared willing to offer American the
opportunity for American’s in-house counsel to review the same amount of Orbitz’s documents
after Orbitz had completed its document production. But now Orbitz’s Motion does not even
offer that. On January 20, 2012, American responded to Orbitz that the Parties should “discuss a
AMERICAN’S OPPOSITION TO ORBITZ’S MOTION FOR AN ORDER
PERMITTING IT TO SHARE CERTAIN DOCUMENTS WITH IN-HOUSE
COUNSEL PURSUANT TO THE PROTECTIVE ORDER
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mutual ask to allow certain doc[ument]s to be shown to in[-]house counsel, and we [American]
think mutuality is fair given we all would like [the] opportunity for our in-house counsel to give
input to prepare for depos[itions] and trial.” (See Jan. 20, 2012 Email from Yolanda C. Garcia to
Brendan A. McShane (App. at 1 (Ex. 1)).) American further noted that it had previously asked
defendants if all Parties would agree to allow certain in-house counsel to review documents
produced in this case but defendants had declined that request. (Id.) Orbitz repeated its request,
and American again responded that the parties should agree to a process by which in-house
counsel for all of the parties could have access to important documents produced by another
party. (See Jan. 31, 2012 Email from Yolanda C. Garcia to Brendan McShane (App. at 7
(Ex.3)).) Without adequately responding to American’s reasonable proposal, Orbitz brought the
instant Motion on February 9, 2012.
Orbitz continues its unreasonable behavior in the context of this Motion and its
requested relief. Specifically, Orbitz has failed to consider American’s reasonable proposal and
wants to have its in-house counsel obtain access to confidential material while depriving
American’s in-house counsel of the same opportunity. Orbitz’s position prejudices American,
circumvents meaningful dialogue, and deprives American of the opportunity to meaningfully
prepare for litigation. Moreover, there is hardly a need for this Motion at this time. Orbitz has
not sought any depositions, there is no trial date set, and the parties have a significant amount of
document production to complete. In short, there is no compelling need for Orbitz to show these
documents to its in-house counsel to prepare for trial at this time, and Orbitz should have waited
until it had completed its document production to American before concluding that it had
exhausted the ability to confer on this issue.

AMERICAN’S OPPOSITION TO ORBITZ’S MOTION FOR AN ORDER
PERMITTING IT TO SHARE CERTAIN DOCUMENTS WITH IN-HOUSE
COUNSEL PURSUANT TO THE PROTECTIVE ORDER
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II. CONCLUSION AND REQUESTED RELIEF
American respectfully requests that this Court deny Orbitz’s Motion, so that the
Parties may continue their discussions and reach a resolution concerning all parties’ in-house
counsel’s access to highly confidential documents once Orbitz has substantially completed its
production.

AMERICAN’S OPPOSITION TO ORBITZ’S MOTION FOR AN ORDER
PERMITTING IT TO SHARE CERTAIN DOCUMENTS WITH IN-HOUSE
COUNSEL PURSUANT TO THE PROTECTIVE ORDER
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Dated March 1, 2012
Respectfully submitted,
s/ Yolanda Cornejo Garcia
R. Paul Yetter
State Bar No. 22154200
[e-mail]
Anna Rotman
State Bar No. 24046761
[e-mail]
YETTER COLEMAN LLP
909 Fannin, Suite 3600
Houston, Texas 77010
713.632.8000
713.632.8002 (fax)
Yolanda Cornejo Garcia
State Bar No. 24012457
[e-mail]
Michelle Hartmann
State Bar No. 24032401
[e-mail]
WEIL, GOTSHAL & MANGES LLP
200 Crescent Court, Suite 300
Dallas, Texas 75201-6950
214.746.7700
214.746.7777 (fax)

Of Counsel to Plaintiff:
Richard A. Rothman
[e-mail]
James W. Quinn
[e-mail]
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
212.310.8426
212.310.8285 (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)

M.J. Moltenbrey
[e-mail]
DEWEY & LEBOEUF LLP
1101 New York Avenue, N.W.
Washington, D.C. 20005
202.346.8738
202.346.8102 (fax)

Attorneys for Plaintiff American Airlines, Inc.

AMERICAN’S OPPOSITION TO ORBITZ’S MOTION FOR AN ORDER
PERMITTING IT TO SHARE CERTAIN DOCUMENTS WITH IN-HOUSE
COUNSEL PURSUANT TO THE PROTECTIVE ORDER
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CERTIFICATE OF SERVICE
I hereby certify that all counsel of record who are deemed to have consented to electronic
service are being served with a copy of the foregoing document via the Court’s CM/ECF system
pursuant to the Court’s Local Rule 5.1(d) this 1st day of March, 2012.

s/ Yolanda Cornejo Garcia

AMERICAN’S OPPOSITION TO ORBITZ’S MOTION FOR AN ORDER
PERMITTING IT TO SHARE CERTAIN DOCUMENTS WITH IN-HOUSE
COUNSEL PURSUANT TO THE PROTECTIVE ORDER
US_ACTIVE:\43924781\08\14013.0135  

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