Federal Trade Commission v. Directv, Inc.

          DISCOVERY ORDER DKT. NOS. 158, 161, 165

          MARIA-ELENA JAMES United States Magistrate Judge

         INTRODUCTION

         Over eight days, Plaintiff Federal Trade Commission (“FTC”) and Defendants DIRECTV and DIRECTV, LLC (collectively, “DIRECTV”) filed four joint discovery dispute letters. See Dkt. Nos. 152, 155, 158, 161. Pursuant to the Court’s July 20, 2015 Order (Dkt. No. 160), the parties met and conferred on those disputes at the courthouse on July 25, 2016. The parties successfully resolved two of their disputes, see Dkt. No. 164, and the Court held a hearing on the other disputes. Two days later, the parties filed a fifth discovery dispute letter, the subject of which the parties raised at the July 25 hearing. RIO Ltr., Dkt. No. 165. This Order considers the parties’ three remaining discovery disputes regarding (1) the deposition of Michael Ostheimer (Ostheimer Ltr., Dkt. No. 158); (2) the deposition of Takehiko (“Ted”) Suzuki (Suzuki Ltr., Dkt. No. 161); and (3) the scope of DIRECTV’s RIO^[1] production (RIO Ltr., Dkt. No. 165).

         LEGAL STANDARD

         Federal Rule of Civil Procedure (“Rule”) 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. Discovery need not be admissible in evidence to be discoverable. Id. However, “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed.R.Civ.P. 26 advisory committee’s note to 2015 amendment. Thus, there is “a shared responsibility on all the parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts.” Salazar v. McDonald’s Corp., 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016); Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016) (citing advisory committee notes for proposition that parties share a “collective responsibility” to consider proportionality and requiring that “[b]oth parties . . . tailor their efforts to the needs of th[e] case”).

         Rule 26(c) “confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, ” including by (1) prohibiting disclosure or discovery; (2) conditioning disclosure or discovery on specified terms; (3) preventing inquiry into certain matters; or (4) limiting the scope of disclosure or discovery to certain matters. Fed.R.Civ.P. 26(c)(1).

         DISCUSSION

         A. Ostheimer Deposition

         On June 22, 2015, DIRECTV served the FTC with a Rule 30(b)(6) Notice of Deposition, which included Topic No. 3: “The results of any and all research, surveys, or tests conducted by the FTC concerning DIRECTV’S advertising that the FTC contends has been or is deceptive.” Ostheimer Ltr. at 2. On December 3, 2015, the Court granted DIRECTV’s request to compel further responses to Topic No. 3, finding DIRECTV sought discoverable factual information (Dec. 3 Order at 8, Dkt. No. 81), and on June 9, 2016, DIRECTV deposed Michael Ostheimer, a staff attorney at the FTC and the FTC’s 30(b)(6) designee. Ostheimer Ltr. at 1; see also id., Ex. B (“Ostheimer Tr.”) at 5:24-6:2.

         DIRECTV argues the FTC continues to withhold basic facts about its investigations and the factual support for its claims. Ostheimer Ltr. at 1. Specifically, DIRECTV asserts the FTC has refused to reveal (1) the existence of any studies, surveys, or research conducted by the FTC on DIRECTV’s ads that pre-date the filing of this lawsuit; (2) who at the FTC first performed “facial analyses” of DIRECTV’s ads and when those analyses occurred; (3) all factual bases for the FTC’s allegation that DIRECTV’s ads were likely to deceive reasonable consumers; and (4) other than the ads, what DIRECTV documents support the FTC’s claims. Id. In response, the FTC contends Mr. Ostheimer in fact provided responsive testimony to DIRECTV’s questions and did not do so only when such testimony was subject to “proper privilege objections.” Id. at 3.

         Factual questions as to “whether there has been any fact gathering; who did it; when it was done; where it is reported, if at all; how it was conducted; what inquiry was made and of whom; why the inquiry has taken so long; and the like, ” Ressler v. United States, 2012 WL 3231002, at *3 (D. Colo. Aug. 6, 2012), do not reveal mental impressions or opinions that could be subject to privilege. DIRECTV is entitled to discover those facts. The FTC therefore shall respond to DIRECTV’s factual questions, including factual questions regarding the existence of any pre-lawsuit studies, surveys, or research, and whether the FTC conducted such analyses before filing this action. That the documents themselves may be protected as attorney work product does not preclude DIRECTV from discovering the fact of their existence.^[2] That said, DIRECTV cannot inquire as to what facts the FTC Commissioners or other individuals considered or evaluated when deciding to initiate this action, as this would impermissibly reveal their evaluations of those materials. See In re Gen. Motors LLC Ignition Switch Litig., 2015 WL 4750774, at *2 (S.D.N.Y. Aug. 11, 2015) (“[T]o the extent that Plaintiffs intend to ask whether [the investigator] considered certain documents or facts in preparing the Report, those questions would invariably reveal [the investigator’s] mental impressions and personal beliefs and therefore run afoul of the work product doctrine.” (internal quotations and citations omitted)).

         DIRECTV requests the Court order the FTC to fully answer the questions listed in Exhibit A, which includes excerpts of the Ostheimer Deposition transcript (see Ostheimer Ltr. at 3 and Ex. A), but the Court finds that not all of the sought-after information in those questions is discoverable. By way of example, questions in Exhibit A such as those appearing at page/line 18:19-23 (“what facts the commissioners considered in determining . . .”) and 28:18-29:22 (“what facts did the commissioners consider in voting . . .”) seek undiscoverable material, whereas questions such as those appearing at page/line 59:4-6 (“Did the Commission have any consumer surveys available to it when it made its decision . . .”), and 136:3-7 (“In support of its allegation of consumer deception, does the FTC have any facts which show the percentage of consumers who view the TV ad who actually don’t know that there’s a 2-year commitment?”) properly seek factual information about the existence of any pre-Complaint surveys, studies, or research and the factual support for the FTC’s claims. Accordingly, while the Court does not grant DIRECTV’s request to order the FTC to fully answer all the questions listed in Exhibit A, DIRECTV may, in accordance with this Order, conduct a further three-hour deposition of the FTC’s Rule 30(b)(6) witness regarding the factual information about the FTC’s investigations and the factual support for its claims.

         Finally, the Court is aware of the parties’ agreement limiting the need to provide a privilege log. Should the FTC continue to withhold factual information on the basis that the information is privileged or protected as attorney work product, the Court nonetheless will order the FTC to provide a privilege log with respect to the withheld information and require the FTC to identify the basis for its claim(s) of privilege.

         B. ...