Corporation for Character v. Federal Trade Commission

Filing 209

MEMORANDUM DECISION AND ORDER granting in part and denying in part 198 Plaintiffs Short Form Discovery Motion to Compel & for Discovery Sanctions. Defendant must provide Plaintiff with a copy of Dr. Fenilis report. The remaining requests in Plaintiffs motion are denied. Signed by Magistrate Judge Dustin B. Pead on 4/1/2016. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CORPORATION FOR CHARTER,
MEMORANDUM DECISION
Case No. 2:11-cv-00419-RJS-DBP

Plaintiff,

District Judge Robert J. Shelby

v.
UNITED STATES OF AMERICA,

Magistrate Judge Dustin B. Pead

Defendants.
INTRODUCTION
This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). (ECF No. 46.)
This case involves a dispute between the Federal Trade Commission, who regulates the National
Do Not Call Registry (“Do Not Call List” or “List”), and several entities that engage in telephone
solicitation. Presently before the court is Plaintiff Feature Films’ (“Plaintiff”) Short Form
Discovery Motion 1 to compel and for sanctions. (ECF No. 198.)
POSITIONS OF THE PARTIES
Plaintiff seeks to compel the United States’ (“Defendant”) to supplement its production
pursuant to the court’s March 8, 2013 Order (ECF No. 91) which required disclosure of materials
from a District of Illinois case, United States v. Dish Network, LLC, No. 09-03073 (C.D. Ill.).
(See ECF No. 198.) Plaintiff indicates the Illinois District Court held trial after the court issued
its Order. Plaintiff argues that any evidence used in the trial is now a matter of public record and

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See ECF No. 126.

should be disclosed pursuant to the court’s March 8, 2013 Order. (Id.) Plaintiff first made this
demand to Defendant on March 4, 2016. (ECF No. 202.) In response, Defendant provided
additional materials on March 16, 2016. (Id.) Defendant stated that it would not provide
documents available in the public record because Plaintiff could access those without
Defendant’s assistance. (ECF No. 198.) Defendant also refused to provide any sealed materials.
(Id.) Plaintiff believes the supplemental production is inadequate. The parties conferred by
telephone on March 22, 2016. (ECF No. 202.)
Defendant argues that Plaintiff filed its motion prematurely because the parties had not
completed their efforts to meet and confer regarding the disputed materials. (ECF No. 202.)
Plaintiff requested several items from Defendant via email including: deposition materials
related to seven witnesses, vendor contracts, and Dr. Fenili’s expert report. (Id.) Defendant
produced deposition materials for five of these witnesses in 2013. Since Plaintiff filed its motion
to compel, Defendant produced additional deposition materials for a sixth witness because the
materials were admitted in the Illinois trial. (Id.) Defendant then confirmed that deposition
testimony of another witness identified by Plaintiff was not admitted and remains under seal.
(Id.) The vendor contracts likewise were not admitted in the Illinois trial and remain under seal.
(Id.) Finally, Defendant argues that Dr. Fenili’s deposition does not relate to the accuracy of the
Do Not Call List and thus falls outside the scope of this court’s March 8, 2013 Order.
ANALYSIS
The court agrees with Defendant’s position regarding the deposition materials and the
vendor contracts. The court disagrees regarding Dr. Fenili’s report, but only slightly. The court
does not find that Defendant willfully withheld this information. The court understands
Defendant’s position that the report is not, strictly speaking, about the accuracy of the Do Not

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Call List. Instead, the report addresses the List’s composition. Yet, the court is persuaded by
Plaintiff’s position that the report, while not directly addressing the List’s accuracy, speaks to the
List’s composition and thus has some bearing on its accuracy. Further, Defendant does not
appear to suggest the report is sealed or otherwise the subject of a protective order. Thus,
Defendant shall produce Dr. Fenili’s report.
Next, Plaintiff invites the court to speculate that the government may be withholding
additional information that should be turned over. (ECF No. 205.) The court declines this
invitation. Plaintiff has not demonstrated that Defendant engaged in any impropriety here.
Finally, the court will deny Plaintiff’s request for sanctions. Plaintiff filed the motion to
compel prior to completing the meet-and-confer process. Further, Defendant’s failure to
supplement Dr. Fenili’s report was substantially justified. The court also declines to apportion
the expenses of this motion. See Fed. R. Civ. P. 37(a)(5)(C).
ORDER
Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART
Plaintiff’s “Short Form Discovery Motion to Compel & for Discovery Sanctions.” (Dkt. 198.)
Defendant must provide Plaintiff with a copy of Dr. Fenili’s report. The remaining requests in
Plaintiff’s motion are denied.
IT IS SO ORDERED.
Dated this 1st day of April, 2016.

By the Court:

Dustin B. Pead
United States Magistrate Judge

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