American Airlines Inc v. Travelport Limited et al

Filing 363

Emergency MOTION for Protective Order - Modify Protective Order, MOTION to Expedite - Treatment () filed by American Airlines Inc with Brief/Memorandum in Support. (Attachments: #1 Ex. A, #2 Ex. B, #3 Proposed Order) (Garcia, Yolanda)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
American Airlines, Inc.,
Plaintiff,
v.
Travelport Limited, et al.
Defendants.

)
)
)
)
)
)
)
)
)

Civil Action No.: 4:11-cv-0244-Y

COMBINED EMERGENCY MOTION TO MODIFY PROTECTIVE
ORDER, AND MOTION FOR EXPEDITED TREATMENT,
AND MEMORANDUM IN SUPPORT THEREOF

TABLE OF CONTENTS
Page
I.

PRELIMINARY STATEMENT ....................................................................................... 1

II.

RELEVANT FACTUAL BACKGROUND ...................................................................... 2

III.

ARGUMENT AND AUTHORITIES ................................................................................ 4
A.
B.

The Nature of the Protective Order Favors Modification ...................................... 5

C.

The Proposed Modification Was Not Foreseeable ................................................ 5

D.

Defendants Cannot Establish Detrimental Reliance Because American
Seeks Only to Clarify the Meaning of the Protective Order .................................. 6

E.

American Has Demonstrated Good Cause for Seeking its Proposed
Modification ........................................................................................................... 8

F.
IV.

Relevant Standard for Modification of a Protective Order .................................... 4

American’s Modification Should be Granted Notwithstanding Travelport’s
Response to American’s Request........................................................................... 9

CONCLUSION AND REQUESTED RELIEF ............................................................... 11

AMERICAN’S COMBINDED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page i

TABLE OF AUTHORITIES
Page(s)
CASES
Bell ex rel. Bell v. Chrysler Corp.,
No. 3:99–CV–0139–M, 2002 WL 172643 (N.D. Tex. Feb. 1, 2002)........................................4
H.E. Butt Grocery Co. v. Moody's Quality Meats,
951 S.W.2d 33 (Tex. App.—Corpus Christi 1997, writ denied) ...............................................7
In re U.S Motion to Modify Sealing Orders,
No. 5:03–MC–2, 2004 WL 5584146 (E.D. Tex. June 8, 2004).................................................8
Peoples v. Aldine Indep. Sch. Dist.,
No. 06-2818, 2008 WL 2571900 (S.D. Tex. June 19, 2008) .............................................4, 5, 8
Poliquin v. Garden Way, Inc.,
989 F.2d 527 (1st Cir. 1993) ......................................................................................................4
Superior Oil Co. v. Am. Petrofina Co. of Tex.,
785 F.2d 130 (5th Cir. 1986) .....................................................................................................4
Tewari De-Ox Systems, Inc. v. Mountain States/Rosen, L.L.C.,
637 F.3d 604 (5th Cir. 2011) .....................................................................................................7

AMERICAN’S COMBINDED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page ii

I.

PRELIMINARY STATEMENT

Plaintiff American Airlines, Inc. (“American”) hereby files this Combined Emergency
Motion to Modify the First Amended Stipulated Protective Order and Motion for Expedited
Treatment (the “Motion”). American seeks to modify the Protective Order to make explicit what
is already plainly implied in the Protective Order—i.e., that it does not restrict the disclosure or
use of information already known to, or independently obtained by, a recipient of material
designated under the Protective Order. It would be absurd for a recipient of information (such as
a party’s expert) to be required to keep confidential information that they already knew simply
because a party produced that information and deemed it confidential under the Protective Order.
American’s proposed modification merely clarifies the existing terms of the Protective Order to
prevent such an absurd result, and does not alter the substantive obligations of the parties or seek
to de-designate any designated material. As importantly, the language in American’s proposed
amendment is very common in protective orders.
Indeed, American sought consent to modify the Protective Order from the Defendants
promptly after American’s testifying expert raised the concern that, unlike the protective order he
had executed in the pending state court litigation brought by American against Sabre, the
Protective Order did not explicitly exempt information already known to, or independently
obtained by, a signatory. To date, Travelport has inexplicably refused consent. Yet, Travelport,
and all of the Defendants, months ago produced documents under the state protective order
which has language virtually identical to that which American is requesting to be added to the
Protective Order.
In view of American’s approaching July 25, 2012 expert designation deadline and
Travelport’s gamesmanship, American has been forced to file this Motion to ensure that its
testifying expert can complete his work in time to meet this important deadline. Given that
AMERICAN’S COMBINDED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 1

American has established good cause for its clarifying amendment and request for expedited
treatment, American respectfully requests that the Court grant the Motion at its earliest
convenience.
II.

RELEVANT FACTUAL BACKGROUND

On August 15, 2011, the Court entered the initial protective order in this case, the
Stipulated Protective Order [Dkt. No. 130]. At Travelport’s request, the Stipulated Protective
Order was amended once, by agreement of all parties (including American), on March 12, 2012.
(See Agreed Motion for Protective Order dated Mar. 9, 2012 [Dkt. No. 255].) On that occasion,
Traveport did not want to disclose its economic expert under the protective order before its
expert report was due, and American agreed to the modification.
Notably, the Protective Order as it currently stands contains the following language that
implies, but does not explicitly state, that information independently obtained by an expert can
be used and disclosed even if that information happens to be contained in material designated
under the Protective Order:
Persons having knowledge of Confidential Information by virtue of the disclosure
of such information by a Supplying Party in discovery in this Proceeding shall use
that Protected Information only in connection with the prosecution or appeal of
the Proceeding, and shall neither use such Confidential Information for any other
purpose nor disclose such Confidential Information to any person who is not
identified in paragraph 7 of this Protective Order.
(Protective Order ¶ 9 (emphasis added); see also ¶ 14 (with identical language for material
designated as Outside Attorneys’ Eyes Only Information) (App. at 5-6, 8, Ex. 1).)
In a related state court case involving several of the same parties to this proceeding,
styled American Airlines v. Sabre Inc. et al, No. 067-249214-10 (67th Dist. Ct., Tarrant County,
Tex.) (the “State Case”), Sabre and American agreed to a protective order, later entered by the
court. That protective order expressly provides that information known to or obtained

AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 2

independently from a third-party is not subject to the strictures of the protective order.1 Both
American and Sabre are parties to the State Case and are the original signatories to the protective
order in the State Case. (See Second Amended Confidentiality Stipulation and Protective Order
¶ 6(f)(iii) dated Apr. 25, 2012 (App. at 30, Ex. 2).) Further, Travelport and Orbitz have agreed
that any documents that they produced in this proceeding “shall be deemed produced in response
to American’s subpoena in [the State Case]” and any documents designated as Confidential or
Outside Attorneys’ Eyes Only in this case “shall be treated as ‘Highly Confidential’ under the
Protective Order in the [State Case].” (See Travelport Rule 11 Agreement dated Feb. 17, 2012
(App. at 37, Ex. 3); Orbitz Stipulation and Rule 11 Agreement dated Feb. 17, 2012 (App. at 42,
Ex. 4).)
In preparing for the federal expert report deadline, American recently realized that its
expert, Monty Myers, had not yet executed the Protective Order.2 When Mr. Myers reviewed the
Protective Order, he became concerned that it did not contain the same clarifying language as the
state protective order. Therefore, on June 18, 2012, American promptly proposed a revision to
the Protective Order to the Defendants that contained an express provision that was substantively
similar to the state protective order’s language. (See Email from Y. Garcia dated June 18, 2012
(App. at 47, Ex. 6).) On June 25, 2012 and July 2, 2012, Travelport informed American that it

1

“Certain Information Not Subject to Scope of Order: The restrictions of this Protective Order shall not apply to
information which . . . (b) was or is acquired from a third party possessing such information and having no
obligation of confidentiality to the designating party, or (c) the receiving party can establish that the information is
in its rightful and lawful possession at the time of disclosure or is developed independently by the receiving party
without the use of Confidential Information.” (Second Amended Confidentiality Stipulation and Protective Order
¶ 6(f)(iii) dated Apr. 25, 2012 (App. at 30, Ex. 2).)

2

Mr. Myers also had not recognized that an issue existed under the Protective Order because he had been focused on
the state court litigation, had executed the state protective order last year and had understood that the materials he
had reviewed were covered by the state protective order. Although Mr. Myers inadvertently had been provided
access to a small number of documents that have not yet been deemed produced in the State Case, he is not
accessing those documents further until this issue is resolved. Of course, neither Mr. Myers nor anyone assisting him
has disseminated any party’s Confidential or Outside Attorneys’ Eyes Only information to anyone who is not
entitled to access such information under the express terms of the Protective Order.

AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 3

opposed the proposed modification. (See Email from J. Pentz dated June 25, 2012 (App. at 45,
Ex. 5); Email from C. Feeney dated July 2, 2012 (App. at 55, Ex. 10).)3
III.
A.

ARGUMENT AND AUTHORITIES

Relevant Standard for Modification of a Protective Order

A district court has the discretion to modify, alter, amend, or lift an existing protective
order, especially in order to clarify the rights and obligations of those subject to the order.
Poliquin v. Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993) (“a protective order . . . is
always subject to the inherent power of the district court to relate or terminate the order”); see,
e.g., Superior Oil Co. v. Am. Petrofina Co. of Tex., 785 F.2d 130, 130 (5th Cir. 1986); Bell ex rel.
Bell v. Chrysler Corp., No. 3:99–CV–0139–M, 2002 WL 172643, at *1 (N.D. Tex. Feb. 1, 2002)
(“Rather than speculate as to the intention of the parties in the presence of facially ambiguous
language, the Court finds that, in this case, prudence counsels in favor of a modification of the
Protective Order.”). Moreover, the Protective Order explicitly provides that “upon motion and
order of the Court the terms of this Protective Order may be amended, modified or vacated.”
(Protective Order ¶ 31 (App. at 16, Ex. 1.)
In determining whether to modify a protective order, courts generally consider four
factors: “(1) the nature of the protective order, (2) the foreseeability, at the time of issuance of
the order, of the modification requested, (3) the parties’ reliance on the order; and most
significantly (4) whether good cause exists for the modification.” Peoples v. Aldine Indep. Sch.
Dist., No. 06-2818, 2008 WL 2571900, at *2 (S.D. Tex. June 19, 2008). Here, all of these
factors support granting the Motion.

3

American attempted to resolve this dispute without judicial involvement in communications to Travelport on June
20, 2012, June 27, 2012 and June 29, 2012. (See Email from S. Fusco dated June 20, 2012 (App. at 48, Ex. 7);
Email from S. Fusco dated June 27, 2012 (App. at 50, Ex. 8); Email from S. Fusco dated June 29, 2012 (App. at 52,
Ex. 9).)

AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 4

B.

The Nature of the Protective Order Favors Modification

First, the nature of the Protective Order weighs in favor of modification. When
evaluating the nature of a protective order, courts consider “its scope and whether it was court
imposed or stipulated to by the parties.” Peoples, 2008 WL 2571900, at *2. Blanket protective
orders, which require the parties to designate as protected sensitive information, are more
susceptible to modification than narrowly defined protective orders that cover “a specific type of
identified information.” Id. Given that the Protective Order is not “narrowly defined” and does
not cover “a specific type of identified information,” this factor plainly favors the modification
sought by American. See id. at *2 (holding that a protective order that was stipulated to by the
parties, but was not limited to a specific type of information favored modification).
Moreover, although the Protective Order was stipulated to by the parties, in this case the
nature of the parties’ agreement clearly supports modification. Indeed, American seeks only to
make explicit that which is implicit in the Protective Order in paragraphs 9 and 14—that
information obtained from designated material is subject to the Protective Order’s strictures, but
not information already known or otherwise independently obtained by a signatory to the
Protective Order. The proposed modification is therefore not only consistent with the terms of
the agreed provisions, it much more accurately reflects the spirit of that agreement. Therefore,
this factor strongly favors modification.
C.

The Proposed Modification Was Not Foreseeable

The second factor, foreseeability, also weighs in favor of modification. A protective
order that stipulates that it may be modified by the Court, as this Protective Order does, weighs
in favor of modification. See Peoples, 2008 WL 2571900, at *2 (“In this case, the protective
order stipulates that ‘the parties herein may petition the Court, for good cause, to request a
modification.’. . . . This factor also weighs in favor of modification.”). Here, the Protective

AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 5

Order stipulates that “upon motion and order of the Court the terms of this Protective Order may
be amended, modified or vacated.” (Protective Order ¶ 31 (App. at 16, Ex. 1).) Moreover, in
view of the existing provisions of the Protective Order (e.g., paragraphs 3,4 9, and 14), American
did not foresee the concern of its testifying expert. Thus, in light of the existing language of the
Protective Order, the foreseeability factor supports modification.
D.

Defendants Cannot Establish Detrimental Reliance Because American Seeks
Only to Clarify the Meaning of the Protective Order

The reliance factor likewise weighs heavily in favor of modification because American
does not seek to de-designate any materials or change the substantive rights of the signatories.
Rather, American seeks to make express that which is already implied by the terms of the
Protective Order. Paragraphs 9 and 14 provide that, in substance, persons who have knowledge
of material, or information contained therein, subject to the Protective Order by virtue of the
disclosure of such information by a supplying party cannot use or disclose that material or
information except as provided in the Protective Order. (See Protective Order ¶¶ 9, 14 (App. at
5-6, 8, Ex. 1).) The clear implication of this language is that a person should not be subject to
enforcement of the Protective Order for use or disclosure of information when he learned of the
information other than by virtue of a disclosure made pursuant to the Protective Order by, for
example, independently developing or learning about that information. American’s proposed
modification simply makes this implication explicit, i.e., the terms of the Protective Order do not
apply with regard to information: (i) acquired from a third-party with no obligation to the

4

Paragraph 3 provides that: “Any Supplying Party shall have the right to identify and designate as ‘Confidential’ or
‘Outside Attorneys’ Eyes Only’ any document or other materials it produces or provides (whether pursuant to court
order, subpoena or by agreement), or any testimony given in this Proceeding, which testimony or discovery material
is believed in good faith by that supplying party to constitute, reflect or disclose its confidential, proprietary, or
trade secret information, as those terms are understood under applicable state and federal law (‘Designated
Material’).” (Protective Order ¶ 3 (App. at 2, Ex. 1) (emphasis added).)

AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 6

designating party; or (ii) already in a person’s possession or developed independently by him
without the use of Designated Material.
As a result, American’s proposed modification does not seek to de-designate documents
or information or remove the protection of the Protective Order as to anything that can be
properly designated under its existing language; rather, it clarifies the limits of a Supplying
Party’s right to enforce the Protective Order as to the use or disclosure of information already
known or independently developed or obtained by a recipient.
Indeed, no party could mistake the scope of the existing terms of the Protective Order to
cover that situation. Under the Protective Order, Designated Material is defined as follows:
Any Supplying Party shall have the right to identify and designate as Confidential
or Outside Attorneys’ Eyes Only any document or other materials it produces or
provides (whether pursuant to court order, subpoena or by agreement), or any
testimony given in this Proceeding, which testimony or discovery material is
believed in good faith by that supplying party to constitute, reflect or disclose its
confidential, proprietary, or trade secret information, as those terms are
understood under applicable state and federal law (Designated Material).
(Protective Order ¶ 3 (App. at 2, Ex. 1).) Fifth Circuit law makes clear that “information that is
generally known or readily available by independent investigation is not secret for purposes of
trade secrecy.” Tewari De-Ox Systems, Inc. v. Mountain States/Rosen, L.L.C., 637 F.3d 604, 612
(5th Cir. 2011); see also H.E. Butt Grocery Co. v. Moody's Quality Meats, 951 S.W.2d 33, 35
(Tex. App.—Corpus Christi 1997, writ denied) (“The word secret implies that the information is
not generally known or readily available by independent investigation.”). Further, the text of
paragraphs 9 and 14 expressly restrict the use of information when it is obtained by virtue of a
disclosure under the Protective Order, not from information otherwise known or independently
obtained. (See Protective Order ¶ 9; see also Protective Order ¶ 14 (App. at 5-6, 8, Ex. 1)
(“Persons having knowledge of Confidential Information by virtue of the disclosure of such
information by a Supplying Party in discovery in this Proceeding shall use that Protected
AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 7

Information only in connection with the prosecution or appeal of the Proceeding .…” (emphasis
added).) Accordingly, no one would or should have expected the Protective Order to exclude
information described in American’s proposed amendment and therefore a designating party
under the Protective Order cannot establish detrimental reliance.
E.

American Has Demonstrated Good Cause for Seeking its Proposed
Modification

The fourth factor, good cause, clearly exists in this case and favors modification. Good
cause for modifying a protective order requires “changed circumstances or new situations
warranting modification of a protective order.” Peoples, 2008 WL 2571900, at *3 (internal
quotations omitted). Here, American’s expert recently raised concerns regarding the absence of
express language excluding information known or independently obtained, and that the
Protective Order covers not only designated material, such as a document or deposition, but also
any information contained in such designated material.5 Thus, American’s expert is concerned
that the Protective Order could be asserted to cover the mere use of information he already had
or independently obtained from an independent source.
Moreover, American will incur considerable prejudice if the Motion is not granted on an
expedited basis given its testifying expert’s reluctance to execute the existing Protective Order
and in view of the fact that American’s expert disclosure deadline is July 25, 2012. In contrast,
no party will incur cognizable prejudice if the amendment is approved. See In re U.S Motion to
Modify Sealing Orders, No. 5:03–MC–2, 2004 WL 5584146, at *4 (E.D. Tex. June 8, 2004) (the
court “has broad discretion in judging whether that injury outweighs the benefits of any possible
modification”).
5

For example paragraph 1 provides that the “Protective Order shall govern all documents, the information contained
therein, and all other information produced” and paragraph 4 provides that “Designated Material as used herein
includes without limitation documents [and] information contained in documents.” (Protective Order ¶¶ 1, 4 (App.
at 1, 3, Ex. 1) (emphasis added).)

AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 8

F.

American’s Modification Should be Granted Notwithstanding Travelport’s
Response to American’s Request

Travelport has refused to consent to the amendment, even though it designated nearly its
entire production in this litigation under the state protective order that contains essentially the
same language American has proposed. It belatedly claims that American’s proposed
modification is suddenly “harmful6” and unnecessary in light of paragraphs 17 and 30. (See
Email from J. Pentz dated June 25, 2012 (App. at 45, Ex. 5); Email from C. Feeney to S. Fusco
dated July 2, 2012 (App. at 55, Ex. 10)). Neither paragraph, however, addresses the issue that
will be cured if American’s Motion is granted.
First, Paragraph 17 describes the procedure for challenging the designation of specific
material.7 This provision is no substitute for the proposed amendment. In the first instance, a
person with independent knowledge of information in designated material is not aided by
paragraph 17 particularly when the material was nonetheless properly designated (e.g., the
supplying party in good faith believed that the information was confidential, or the designated
material contains other information that is not independently known to the recipient). Moreover,
the burden of invoking the procedures of paragraph 17 was not intended to apply to a person who

6

Nor is Travelport’s assertion (which it never raised when it designated all of its documents produced in this case in
the state court litigation) that the proposed amendments are harmful correct. Contrary to Travelport’s assertions
(i.e., email from C. Feeney to S. Fusco dated July 2, 2012 (App. at 55, Ex. 10)), information acquired from a third
party without a lawful right to obtain it (such as a “thief”) would not be a party with no obligation to the designating
party.
7

Paragraph 17 provides that “[a]ny party (the “Objecting Party”) may challenge the propriety of the designation (or
re-designation) of specific material as “Confidential” or “Outside Attorneys’ Eyes Only” by serving a written
objection that identifies the particular material being challenged (by Bates number or other reasonable description or
identification), and provides the basis for the challenge. The Supplying Party or its counsel shall thereafter respond
to the objection in writing within five (5) business days of its receipt of such written objection by either (i) agreeing
to remove the designation, or (ii) stating the reasons why the designation was made. If the Objecting Party and the
Supplying Party are subsequently unable to agree upon the terms and conditions of disclosure for the material(s) at
issue, the Objecting Party may file a motion with the Court in order to resolve the disputed designation. Pending the
resolution of the disputed designation, the material(s) at issue shall continue to be treated in accordance with the
Supplying Party’s designation of the material unless and until differing treatment is directed pursuant to order of the
Court.” (Protective Order ¶ 17 (App. at 10-11, Ex. 1.)

AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 9

used information obtained other than by virtue the disclosed material, as paragraphs 9 and 14
strongly imply.
Of course, nothing in the proposed amendment would prevent the Supplying Party from
challenging the use or disclosure of confidential information by a recipient, but the recipient
should not have the burden in the first instance of seeking the Court’s permission before it can
use its own independent knowledge not obtained by virtue of any party’s Designated Material.
(See Protective Order ¶ 9; see also Protective Order ¶ 14 (App. at 5-6, 8, Ex. 1) (“Persons having
knowledge of Confidential Information by virtue of the disclosure of such information by a
Supplying Party in discovery in this Proceeding shall use that Protected Information only in
connection with the prosecution or appeal of the Proceeding . . . .” (emphasis added).) Indeed,
Travelport has not disputed that the strictures of the existing Protective Order (i.e., as provided
for in paragraphs 9 and 14) only apply to information obtained by a recipient by virtue of having
received designated material, and implicitly do not apply to information obtained independently
as described in the proposed amendment.
Second, as to paragraph 30, it states, in relevant part, that “[n]othing contained in this
Protective Order shall preclude any party from using its own Confidential Information or Outside
Attorneys’ Eyes Only Information in any manner it sees fit, without prior consent of any party or
the Court.” (Protective Order ¶ 30 (App. at 15, Ex. 1).) Paragraph 30 applies to documents or
materials that have been designated as “Confidential Information”—not information that is from
a source independent from this case. Further, it addresses only a “party’s” right to use its
Confidential Information in any manner it sees fit, but does not provide the same protections to
other signatories, such as an expert, to the Protective Order.

AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 10

For all of these reasons, American respectfully requests that Court exercise its discretion
to modify Paragraph 10 of the First Amended Stipulated Protective Order [Dkt. No. 267] by
adding provisions (d) and (e) below, placed in italics, such that Paragraph 10 would read as
follows:
10.

Nothing shall prevent disclosure of Confidential Information beyond the

terms of this Protective Order (a) if the Supplying Party (or its counsel) consents
in writing to such disclosure, (b) if a Supplying Party knowingly discloses its own
Confidential Information in a public or non-redacted pleading filed in the Court’s
public record or in a publication disseminated to the general public, (c) if the
Court, after reasonable written notice to counsel for all the parties, and after an
opportunity to be heard by counsel for the Supplying Party, orders such
disclosure, (d) if the Confidential Information was or is acquired from a third
party possessing such information and having no obligation of confidentiality to
the designating party, or (e) if the Receiving Party can establish that the
Confidential Information is in its rightful and lawful possession at the time of
disclosure or is developed independently by the Receiving Party without the use of
Confidential Information.
IV.

CONCLUSION AND REQUESTED RELIEF

American respectfully requests that the Court enter the proposed order included as
Exhibit A to this Motion. For the convenience of the Court, Exhibit B to this Motion contains a
redline comparison of the First Amended Stipulated Protective Order and the proposed Second
Amended Stipulated Protective Order.
Further, in light of the fact that Plaintiff’s Expert Report deadline is July 25, 2012,
American requests the following expedited briefing schedule with respect to this Motion: (i)
AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 11

Defendants’ responsive briefing should be due on July 9, 2012 and (ii) American’s reply briefing
should be due on July 11, 2012. American further respectfully requests any such additional
relief to which it is justly entitled.
Dated: July 2, 2012

Respectfully submitted,

s/ Yolanda Cornejo Garcia
Yolanda Cornejo Garcia
R. Paul Yetter
State Bar No. 22154200
[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)
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 COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 12

Of Counsel to Plaintiff:
Richard A. Rothman
[e-mail]
James W. Quinn
[e-mail]
WEIL, GOTSHAL & MANGES LLP
767Fifth Avenue
New York, New York 10153
212.310.8426
212.310.8285 (fax)
M.J. Moltenbrey
[e-mail]
PAUL HASTINGS LLP
875 15th Street, N.W.
Washington, D.C. 20005
202.551.1725
202.551.0225 (fax)

AMERICAN’S COMBINED EMERGENCY MOTION TO MODIFY
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 13

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 2nd day of July, 2012.
s/ Yolanda Cornejo Garcia
Yolanda Cornejo Garcia

CERTIFICATE OF CONFERENCE
As reflected in the above Motion and the attached correspondence, counsel for
American conferred with counsel for Defendants in good faith to resolve the issues in this
Motion. Travelport refused to agree to American’s proposed modifications and Sabre and Orbitz
never responded to American’s three attempts to confer with them, thus necessitating this
Motion.
s/ Yolanda Cornejo Garcia
Yolanda Cornejo Garcia

AMERICAN’S EMERGENCY MOTION TO AMEND
PROTECTIVE ORDER AND MOTION FOR EXPEDITED TREATMENT

Page 14