American Airlines Inc v. Travelport Limited et al

Filing 270

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 SUPPLEMENTAL BRIEF IN
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 Supplemental
Brief in 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”), to apprise the Court of recent developments regardinsg the status of the parties’
disputes as to sharing documents designated by a producing party under the First Amended
Stipulated Protective Order (the “Protective Order”) with in-house counsel for the receiving
party.
As American explained in its Opposition filed on March 1, 2012, American has
sought for all of the parties in this case, including Sabre Inc., Sabre Holdings Corporation, and
Sabre Travel International Ltd. d/b/a Sabre Travel Network (collectively, “Sabre”), Travelport
Ltd. and Travelport, L.P. (“collectively, “Travelport”), and Orbitz (with Travelport and Sabre,
the “Defendants”) to come together and agree upon a process by which Plaintiff and Defendants
(collectively, the “Parties”) can resolve the issue of how and when documents designated under
the protective order can be shared with the Parties’ respective in-house counsel. The applicable
Protective Order was the result of the Parties’ mutual negotiations, and American believes that
US_ACTIVE:\43956739\04\14013.0135  

the present disagreements between the parties with respect to whether the producing party or
receiving party has the burden, and what that burden is, should be likewise resolved through
agreement of the parties. In short, the Parties should be ordered to confer.
American’s overarching concerns, and the reason it believes Orbitz’s Motion
should be denied in favor of providing the Parties with an opportunity to resolve these issues
amicably, are the triple risks that: (1) the Parties would promote divergent and adopt different
and conflicting standards under the Protective Order for when in-house counsel should be able to
see confidential documents, (2) the Parties’ time and resources would be wasted on piecemeal
negotiations whenever they wanted to disclose a document to in-house counsel, and (3) the Court
would be flooded by serial discovery motions similar to, and in the wake of, Orbitz’s Motion.
Since filing its Opposition, American’s concerns and the dangers posed by these risks have been
realized:
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Sabre’s Position. American reached out to counsel for Sabre and sought their
permission to show documents produced by Sabre to American in-house counsel.
(See Ltr. from Y. Garcia to S. Kaiser dated Feb. 26, 2012 (App. 3, Ex. 2).) Sabre
flatly refused and failed to give any reason for its refusal. (See Ltr. from S. Kaiser
dated Mar. 9, 2012 (App. 6, Ex. 4).)

•

Travelport’s Position. American also reached out to counsel for Travelport and
sought their permission to show their documents to American’s in-house counsel.
(See Ltr. from Y. Garcia to C. Feeney dated Feb. 26, 2012 (App. 1, Ex. 1).)
Travelport’s position appears to be that the receiving party should be obligated to
show how its outside counsel would benefit from showing the documents to inhouse personnel, and how this need outweighs the producing party’s interests in
keeping the information from being disclosed. (See Email from J. Pentz to
Y. Garcia dated Mar. 2, 2012 (App. 5, Ex. 3).) That said, Travelport also said that
it would be willing to consider an approach whereby the parties could agree to
share certain documents with the respective clients. (Id.)

•

Orbitz’s Position. Orbitz’s Motion neither sets forth a cogent standard for when
documents should be permitted to be shown to in-house counsel, nor cites to any
caselaw in support of its position that the documents produced by American

AMERICAN’S SUPPLEMENTAL BRIEF IN 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:\43956739\04\14013.0135 

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should be permitted to be shown to Orbitz’s in-house counsel. (See generally
Mot.) This underscores the need for the parties’ to come to a negotiated
agreement: Orbitz cannot articulate an acceptable standard because the Protective
Order is a product of negotiated agreement between the Parties. In its reply brief,
Orbitz appears to put forth the position that it would be the producing party’s
burden to show that the receiving party’s request to show documents to its inhouse counsel is improper, or that the documents are somehow inappropriate for
disclosure. (See Reply in Support of Orbitz’s Mot. at 1.)
These documents and correspondence reflect the Parties’ divergent positions with
respect to the framework regarding when documents designated under the Protective Order can
be shown to in-house counsel under the Protective Order. As stated, American does not think it
makes sense for these issues to be resolved through piecemeal negotiations or serial motions to
the Court, all of which risk inconsistent results under the protective order. Instead, American
believes that these issues and the standard that should be used under the negotiated protective
order to determine which documents can be reviewed by in-house counsel once a request is made
should be resolved through a group conference in accordance with Dondi Properties Corp. v.
Commerce Savings & Loan Assoc., 121 F.R.D. 284, 286 (N.D. Tex. 1988) (“[V]aluable 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 . . ..” ). American has notified
the Parties of each others’ divergent positions and has requested that the Parties confer on these
issues in the hopes of resolving them amicably. (See Email from Y. Garcia dated Mar. 21, 2012
(App. 7, Ex. 5).)
Orbitz’s Motion can and should be resolved by conference of the parties, and
American respectfully requests that the Court order the parties to confer on these issues. Orbitz’s
Motion wastes judicial and party resources and should be denied.
AMERICAN’S SUPPLEMENTAL BRIEF IN 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 22, 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)
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)
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)

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)
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)
Attorneys for Plaintiff American Airlines, Inc.

AMERICAN’S SUPPLEMENTAL BRIEF IN 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 22nd day of March, 2012.

s/ Yolanda Cornejo Garcia

AMERICAN’S SUPPLEMENTAL BRIEF IN 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:\43956739\04\14013.0135 

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