American Airlines Inc v. Travelport Limited et al

Filing 337

ORDER GRANTING #256 PLAINTIFF'S MOTION TO COMPEL TRAVELPORT DEFENDANTS: It is further ORDERED that Travelport shall use the parties' negotiated search terms to review the electronic records in the possession of the sixteen employees named in footnote 1, supra, and produce responsive documents no later than 4:00 p.m. on June 22, 2012. (Ordered by Magistrate Judge Jeffrey L Cureton on 5/29/2012) (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
AMERICAN AIRLINES. INC.

$
$

$

VS.

TRAVELPORT LIMITED. et al.

CryIL ACTION NO. 4zrl-CY-244-Y

$
$
$

ORDER GRANTING PLAINTIFF'S MOTION
TO COMPEL TRAVELPORT DEFENDANTS
Pending before the Court is Plaintiff American Airlines, Inc.

("4rt.rican")'s Motion to

Compel Travelport Defendants ("Motion to Compel") [doc. # 256), filed March 9,2012. In the
underlying dispute, American has alleged that Travelport has, in essence, engaged in conspiracy
and monopolistic and anticompetitive practices in violation of the Sherman Act by preventing

American from providing an alternative means to distribute airline tickets to travel agents.

American also claims that Travelport tortiously interfered with American's existing and
prospective contractual relationships.

In its motion, American asserts that it has made repeated attempts over the past several
months, through over forty letters and multiple conferences,

to reach a

compromise with

Defendants Travelport Limited and Travelport, L.P. (collectively referred to as "Travelport")

concerning an electronic search for documents from sixteen current and former Travelport
employees that allegedly have knowledge relevant to American's claims. (PlaintifPs Motion to

Compel ("PI.'s Mot.")

at 1.)1 American claims that Travelport has refused to

'

search the

American seeks an electronic search of the files of Peg Cassidy, Ron Cole, Steve Croft, Michael Barbieri, Tony
Vicki Boyd, Jeff Herold, Simon Nowroz, Shaun Redgrave, Marla Rosenbloom, Lana Southwick, Nada
Treckler, Michael Wake, Mike Walker, Jan West, and Caroline Wilkinson. (Pl.'s Mot. at 8; Plaintiffls Reply in
Support of Motion to Compel ("PI.'s Reply") at 1.) American also requested a search of the files of Fergal Kelly
initially, and Travelport conceded to the need to search his files. American dropped its request to search the files of
James Young. (Pl,'s Reply at l.)
Basoukeas,

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electronic files

of

these employees using

a set of agreed upon search terms, even

though

American believes they contain responsive documents. (ld.)
Travelport filed a response to American's motion on March 30,2012. Travelport claims
that American already has any responsive documents that many of these employees would have
because Travelport has already produced more than 1.2

million documents regarding deceptive

trade practices and breach of contract, including all documents from:

(l) litigation

between the

parties in Cook County, Illinois ("Cook County case"); (2) a Civil Investigative Demand issued

by the U.S. Department of Justice ("DOJ investigation"); and (3) searching the files of twentysix current and former Travelport employees using more than 100 search terms that Travelport
negotiated with American. (Defendants' Response in Opposition to Motion to Compel ("Defs.'
Resp.") at

L)

Travelport generally asserts that it has already produced documents for most of the

sixteen employees as part of the Cook County case or the DOJ investigation so a search of their

files would not yield any additional documents. (Defs.' Resp. at 5-9,14; Defendants' Appendix

to Response in Opposition to Motion to Compel ("Defs.' App.") at Exs. 18, 19.) As to five of

the sixteen employees, Travelport claims that a search of these employees' files is

also

duplicative because a search of the files of other Travelport employees has already produced all
possible responsive documents. (Defs.'Resp. at

l0-13.) As to nine of the sixteen

employees,

Travelport further argues that they had no role in making one of the decisions at issue in this

case. (Defs.' Resp. at 5-9.) Additionally, Travelport asserts that the burden and expense of

a

search of the hles of Peg Cassidy, Travelport's in-house counsel, far outweighs the reward, since

many of her files are privileged. (Defs.' Resp.

at ll-I2). Finally, Travelport claims

that

American's motion is untimely since the parties have been discussing the subject matter of the
motion since October 2011. (Defs.' Resp. at l5-16).

a
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Initially, this Court must determine whether American's motion was timely filed.
"Courts generally look to the deadline for completion of discovery when assessing the timeliness

of motions to compel." Asghedom v. Fed.
2010 WL 4876198, at

*l

Reserve Bank of Dallas,

No. 3:08-CV-2289-O-BK,

(N.D. Tex. Nov.24,2010) (citing Days Innlhorldwide, Inc. v. Sonia

Invs., 237 F.R.D . 395, 397 (N.D. Tex. 2006)). Parties should first attempt to resolve discovery
disputes by agreement before resorting to a motion
Commerce Sav. & Loan

to compel.

See Dondi Props. Corp.

v.

Ass'n,l2l F.R.D. 284,293 (N.D. Tex. 1988).

In this case, American's motion was filed nearly two months before the May

l,

2012

document production discovery deadline. Additionally, the motion was only filed after
numerous failed attempts to reach a compromise with Travelport as to the employees whose files

would be searched. Since American has made extensive efforts to avoid filing this motion
through communications with Travelport and has also filed its motion well before the discovery
deadline, this motion is timely.
Federal Rule

of Civil Procedure ("Rule") 26(b)(l) permits parties to "obtain discovery

regarding any nonprivileged matter that is relevant to any party's claim or defense." "Relevant
information need not be admissible at the trial

if the discovery

lead to the discovery of admissible evidence." Fed. R. Civ. P.

appears reasonably calculated to

26(bxl). However,

a court may

limit discovery if the "the discovery sought is unreasonably cumulative or duplicative or

. . . the

burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P.

26(b)(2)(C). Ultimately, "there is a general policy of allowing liberal discovery in antitrust
cases, particularly where allegations

of monopolization are involved." Centeno

Supermarkets,

Inc. v. H.E. Butt Grocery Co., No. SA-83-CA-72, 1987 WL 42402, at *3 (W.D. Tex. Sept. 2,
1987) (citing Kellam Energt, Inc. v.

Duncan,6l6 F. Supp. 214,217 (D. Del. 1985).

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In addition, Rule 34 permits parties to obtain electronically stored information through
discovery.

See

In re Ford Motor Co.,345 F.3d 1315, l3lGl7 (llth Cir. 2003). A party

resisting the production of relevant electronically stored information must submit evidentiary

proof "that the information is not reasonably accessible because of undue burden or cost."

See

Fed. R. Civ. P.26(bX2XB); see also Auto Club Family Ins. Co. v. Ahner, No. 05-05723,2007

WL 2480322, at *3 (E.D. La. Aug. 29, 2007).
As stated above, Travelport claims that it has already produced relevant documents from
most of the employees American has identified as part of the Cook County case and the DOJ

investigation. Travelport has not, however, satisfactorily demonstrated that a search of these
employees would produce purely duplicative documentation. Apparently, the timeframe

of

information sought in the Cook County case is much shorter than in this case. (Pl.'s Mot. at 10;
Pl.'s Reply at 5-6.) Furthermore, the Cook County case involves claims for breach of contract
and deceptive trade practices, whereas the claims at issue here are broader and include antitrust,

monopoly, conspiracy, and tortious interference claims.
and this case concern antitrust violations,
parameters for their investigation. See,

it

(ld.) While both the DOJ investigation

appears that the DOJ, not American, set the search

e.g.,l5 U.S.C. $ 57b-1. Travelport has never

asserted

that the search parameters used in the DOJ investigation, including the search terms and time
period searched, are identical to the search parameters set by the parties here, which means that a
search

of the requested employees could yield additional documents not found as a part of the

DOJ investigation. Additionally, neither the Cook County case nor the DOJ investigation
pertains to American's claims for tortious interferences. (See Pl.'s Mot. at 10; Pl.'s Reply at

s-6.)

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l,

Travelport also seems to concede that it is highly possible that some documents have not
already been discovered through the Cook County Case, the DOJ investigation, or through the
search

of the files of other employees.2 Finally, American points out that the job descriptions

and responsibilities of the requested employees indicate that the named individuals are likely to
have documents that are relevant to American's claims. (Pl.'s Mot. App. 23; Pl.'s Reply at 7-9.)

Travelport has also failed to show how much additional expense or burden these searches would
produce because

it

has only provided the cost

it has incurred thus far, not the potential cost of

any additional production. (See Defs.' App. at

7.)

searches so that American can have the opportunity

Travelport must perform the requested

to obtain any relevant information that

has

not already been discovered. Accordingly, the Court concludes that American's Motion to
Compel Travelport Defendants should be GRANTED.
Based on the foregoing,

it is ORDERED that American's Motion to Compel Travelport

Defendants [doc. # 256] is GRANTED.

It is further ORDERED that Travelport shall use the

parties' negotiated search terms to review the electronic records in the possession of the sixteen
employees named in footnote

l, supra,

and produce responsive documents no later than 4:00

p.m. on June22r2012.
SIGNED Mav 29.2012.

JEFFREY
ATES MAGISTRATE JUDGE

2

For example, in the Declarations of Steve Croft and Ron Cole provided by Travelport along with its response, both
men note that a review of their superior's files would reveal "many of my communications related to travel
agencies." (Defs. App. at Exs. 17, l8). These statements seem to foreclose the assertion that there are no more
relevant documents that might be located through a search of the additional employees' files.

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