American Airlines Inc v. Travelport Limited et al

Filing 412

Emergency MOTION to Modify the Protective Order (), MOTION to Expedite Briefing Schedule filed by Sabre Holdings Corporation, Sabre Inc, Sabre Travel International Ltd with Brief/Memorandum in Support. (Vickers, Philip)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
American Airlines, Inc.
Plaintiff,
No. 4:11-CV-00244-Y

v.

(ODD-DOCKET LAW CLERK)

Travelport Limited, et al.
Defendants.

SABRE’S EMERGENCY MOTION TO MODIFY THE PROTECTIVE ORDER
AND REQUEST FOR EXPEDITED BRIEFING SCHEDULE
American sued Sabre1 in state and federal court, making substantively identical antitrust
allegations in both cases. American’s state-court lawsuit2 is set to begin on October 22 (the parties have already selected a jury). And while American plans to use deposition discovery from
this case at the state court trial, it refuses to permit Sabre to do the same. Sabre, therefore, requests that the Court modify the Protective Order to allow Sabre to use “confidential” depositions taken in this case at trial in American’s parallel state suit.
Sabre seeks emergency relief because trial in the state case is already underway, and the
evidence at issue is necessary to the presentation of its defense. Voir dire in the state case began
on October 9th, a jury was empaneled on October 11th, and the parties’ evidentiary presentations
are set to begin on October 22nd. Though Sabre tried to resolve this matter a month ago in order
to avoid motion practice, those efforts have been unsuccessful. Accordingly, expedited relief is
proper.

1

“Sabre” refers to Defendants Sabre Inc., Sabre Holdings, and Sabre Travel International Limited.

2

American Airlines, Inc. v. Sabre Inc., et al., No. 067-249214-10 (67th Judicial Dist., Tarrant County).

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Sabre’s Efforts to Compromise
Over the past month, Sabre and American have conferred on numerous occasions regarding the use of federal depositions in the state case. Specifically, Sabre conferred with American
on September 15th, 19th,3 and 24th. (See Exs. 1, 2, App. 1, 2.) Each time, American informed
Sabre that it would not permit Sabre to use federal deposition testimony from its witnesses at trial in the state case. Then, on September 28, 2012, American designated testimony for use in the
state trial from five non-AA witnesses deposed in the federal case. (Ex. 4, App. 18, 22, 27, 31,
and 35.) In light of this, Sabre asked American again on October 6 to reconsider its position, and
American again refused. (Ex. 3, App. 6.)
Over the course of these negotiations, Sabre attempted to compromise by offering to use
certain transcripts for impeachment purposes only and proposing to restrict the number of federal
depositions that could be designated affirmatively. (Ex. 2, App. 2.) But American refused to engage in any meaningful negotiation. It flatly rejected any proposal that would allow any use of its
own deposition testimony in the parallel state suit, and refused even to state its position in writing. At the same time, American insisted on its own ability to use the federal testimony of nonAA witnesses at trial in the state case. Given American’s position, Sabre now seeks relief.
Argument
Over Sabre’s objection, American recently sought and obtained a stay of this proceeding.
(Doc. Nos. 394, 399, 407.) Until then, discovery in this case and the state case had proceeded in
parallel, and a number of depositions had been cross-noticed between the two matters. This is
because the subject matter of the discovery taken in this action is virtually identical to those issues being tried in the state case.
In the parties’ state court pre-trial deposition designations, both American and Sabre designated deposition testimony from the parallel federal case for use at trial. (See e.g., Exs 4 and 5,

3

The conferral on the 19th was by telephone.

2

App. 18, 22, 27, 31, 35, 39–41.) Ordinarily, the Texas Rules of Evidence and Civil Procedure
would permit the parties to use these depositions at trial.4 But here, the depositions have been
designated as “Confidential” under the federal Protective Order, and thus those depositions cannot be used in the state case without the parties’ agreement or leave of court. However, the
agreed federal protective order has a provision addressing this very issue:
The parties agree that Confidential Information can be used in any other proceeding between the parties in which a protective order agreed to by the parties is in
place, with the written permission of the Supplying Party, which permission shall
not be unreasonably withheld. In the event that permission to use Confidential Information is not given by the Supplying Party, the Receiving Party may petition
the Court for relief.
(Doc. 130, Protective Order ¶ 9 (emphasis added); see also id. ¶ 14.)
Although Travelport and Orbitz (the other parties to this action) have consented to the bilateral use of depositions in the state case,5 American has unreasonably withheld such consent.
Instead, American has taken the position that while it should be permitted to use “confidential”
depositions taken in this action during the trial of the state case, Sabre should not be extended the
same accommodation.
American cannot have it both ways; it should not be able to use confidential discovery
taken in this action as a sword against Sabre in the trial of the state case while simultaneously

American’s refusal to consent under the Protective Order is the only impediment to Sabre’s using depositions taken in this action in the state case. Texas Rules of Evidence 801 and 804 and Texas Rule of Civil
Procedure 203.6(c) provide that depositions from other proceedings are admissible in a Texas proceeding,
subject to rules of evidence. See, e.g., Dillee v. Sisters of Charity, 912 S.W.2d 307, 310 n.6 (Tex. App.—
Houston [14th Dist.] 1995, no writ) (deposition from other case admissible under Texas Rule of Evidence
801(e)(2) as admission by party opponent); Smith v. Smith, 720 S.W.2d 586, 599–600 (Tex. App.—
Houston [1st Dist.] 1986, no writ) (under Texas Rule of Evidence 804(b)(1), deposition of nonparty taken
in another proceeding is admissible as former testimony if nonparty is not available to testify).
4

5

Specifically, in the process of conferring on the instant motion, Travelport and Orbitz have informed
Sabre that they agree to the use of their federal depositions in the state court case under the state court
protective order, on the conditions that (i) the federal testimony of all parties, including American, is similarly usable in the state-court action, and (ii) Travelport or Orbitz can designate and assert protections
over confidential information in the state-court action, under the state-court protective order. Sabre agrees
to these conditions.

3

deploying this Court’s Protective Order as a shield to prevent Sabre from using American’s federal depositions as part of its defense.
Sabre is entitled to use the depositions of American’s witnesses for two reasons: (1) to
impeach their credibility to extent they try to testify inconsistently in the state court case, and (2)
as substantive admissions. American has never questioned the admissibility of these depositions
as a basis for withholding its consent. The Protective Order is the only issue that stands in the
way.
Although American has not stated its position in writing, it appears to argue that Sabre
should not be permitted to use the testimony of American’s witnesses because Sabre’s witnesses
have not yet sat for depositions in the federal case. The parties’ dispute over duplicative depositions, however, should not be used as a basis to deprive Sabre access to relevant evidence it
could use to defend itself. That is particularly true considering that American seeks to cherrypick from that same pool of evidence for its own purposes.
Accordingly, Sabre respectfully requests this Court to amend the Protective Order to
permit Sabre and American to use “Confidential” or “Highly Confidential” depositions taken in
this case in the trial of the state case, subject to the Texas Rules of Evidence and Civil Procedure,
the parties’ protective order,6 and the rulings of the state court.
Expedited Relief Requested and Proposed Briefing Schedule
Given that presentation of evidence in the state court trial is imminent, Sabre seeks
prompt resolution of this dispute. Accordingly, Sabre requests that the Court give this motion expedited consideration and that it enter an order requiring the following briefing schedule: American will file and serve any response to this motion on or before October 15, 2012, and Sabre

6

Ex. 6, App. 45–57: Second Amended Confidentiality Stipulation and Protective Order, entered by the
state court on April 25, 2012.

4

shall file any reply on or before October 17th. Sabre further proposes that all briefs submitted on
this matter be limited to 5 pages.

Dated: October 12, 2012

Respectfully submitted,

/s/ Philip A. Vickers
Ralph H. Duggins
Texas Bar No. 06183700
Scott A. Fredricks
Texas Bar No. 24012657
Philip A. Vickers
Texas Bar No. 24051699
John S. Polzer
Texas Bar No. 24042609
CANTEY HANGER LLP
Cantey Hanger Plaza
600 West 6th Street, Suite 300
Fort Worth, TX 76102-3685
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Chris Lind
Illinois Bar No. 6225464
Andrew K. Polovin
Illinois Bar No. 6275707
Andrew MacNally
Illinois Bar No. 6293271
BARTLIT BECK HERMAN PALENCHAR &
SCOTT LLP
Courthouse Place
54 West Hubbard
Chicago, IL 60654
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Donald E. Scott
Colorado Bar No. 2129
Illinois Bar No. 2531321
Karma M. Giulianelli
Colorado Bar No. 30919
California Bar No. 184175
Sean C. Grimsley
Colorado Bar No. 36422
California Bar No. 216741
Sundeep K. (Rob) Addy
Colorado Bar No. 38754
BARTLIT BECK HERMAN PALENCHAR &
SCOTT LLP
1899 Wynkoop Street, 8th Floor
Denver, Colorado 80202
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

George S. Cary
D.C. Bar No. 285411
Steven J. Kaiser
D.C. Bar No. 454251
Larry C. Work-Dembowski
D.C. Bar No. 486331
Kenneth Reinker
D.C. Bar. No. 999958
CLEARY GOTTLIEB STEEN & HAMILTON LLP
2000 Pennsylvania Avenue, N.W.
Washington, DC 20006
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Sabre Inc., Sabre Holdings
Corporation, and Sabre Travel Int’l Ltd.
d/b/a Sabre Travel Network

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CERTIFICATE OF CONFERENCE
I hereby certify that on September 15, September 19, September 24, September 28 and
October 6, I conferred with American attorney Angela Zambrano regarding the merits of this
Motion. American would not agree. Orbitz and Travelport do not oppose relief sought herein,
subject to the conditions set forth in footnote 4. Therefore, this motion is submitted to the Court
for determination.
/s/ Rob Addy
Rob Addy

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) on October 12, 2012.
/s/ Philip A. Vickers
Philip A. Vickers

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