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In re Domestic Airline Travel Antitrust Litigation

United States District Court, District of Columbia

July 10, 2018

IN RE DOMESTIC AIRLINE TRAVEL ANTITRUST LITIGATION This Document Relates To: ALL CASES

          MEMORANDUM OPINION AND ORDER

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

         Presently before the Court is the Special Master's [247] Amended Report and Recommendation No. 4 Regarding Defendants' Motion to Compel Plaintiffs to Answer Certain of Defendants' Interrogatories (“Am. Rep. and Recomm. No. 4”); the Defendants' [250] Objections to Report and Recommendation No. 4 (“Defs.' Objections”); the Plaintiffs' [251] Response to Defendants' Objections (“Pls.' Response”); and the Defendants' [253] Reply in support of Objections (“Defs.' Reply”).[1] The Court notes that the objections filed by Defendants Delta Air Lines, Inc. (“Delta”) and United Airlines, Inc. (“United”) are limited to the Special Master's recommendation regarding denial of Defendants' Interrogatory No. 15, and Plaintiffs filed no objections to Report and Recommendation No. 4. Accordingly, as a preliminary matter, the Court ADOPTS the Special Master's recommendations regarding resolution of Defendants' Motion to Compel with regard to Defendants' Interrogatories Nos. 8-10, 16(a) and 16(b), and will confine its discussion herein to Defendants' Interrogatory No. 15. Furthermore, the Court incorporates by reference the background, analysis and conclusions set forth in the Special Master's Amended Report and Recommendation No. 4, as though stated in full.

         Defendants' Interrogatory No. 15

         On December 20, 2017, Plaintiffs and Defendant Southwest Airlines Co. (“Southwest”) executed a settlement agreement, which was preliminarily approved by this Court on January 3, 2018. See Motion for Settlement Preliminary Approval, ECF No. 196; Order Preliminarily Approving Settlement with Defendant Southwest Airlines Co., ECF No. 197. Subsequent to the Southwest settlement announcement, “the remaining three Defendants jointly served additional interrogatories on Plaintiffs, seeking among other information: “facts provided to Plaintiffs by Southwest pursuant to their Settlement Agreement” (Interrogatory No. 15).”[2] Am. Rep. and Recomm. No. 4 at 4. Plaintiffs objected to several interrogatories, and the parties were ultimately unsuccessful in resolving some of their disputes, which led to the Defendants' filing of a motion to compel in May of 2018. The Special Master's Amended Report and Recommendation No. 4 addressed the disputed interrogatories and successfully resolved all of them with the exception of Interrogatory No. 15, which remains in contention. Defendants' Interrogatory No. 15 requests that Plaintiffs:

         Describe in detail the facts and information disclosed by Southwest under the provisions of the Settlement:

(a) requiring disclosure of “facts then known to Southwest that are relevant to the claims asserted in the Action” (Settlement at 14-15);
(b) requiring Southwest to provide information from its “senior executive management” to Plaintiffs “through an attorney proffer session” (id. at 18); and
(c) requiring Southwest to respond “to a reasonable number of targeted specific requests for particular informat ion” fro m Plaint iff (id.)

         The Special Master's Recommendation on Interrogatory No. 15

         The Special Master explained that Plaintiffs' objections to Interrogatory No. 15 were primarily based upon the notion that “responses [to Interrogatory No. 15] would disclose attorney-work product” because “information provided by Southwest to Plaintiffs took place in the context of Southwest providing information to Plaintiffs and also in response to questions posed by Plaintiffs' counsel.” Am. Rep. and Recomm. No. 4 at 9; see Pls.' Response, Ex. 2 [Transcript of June 4, 2018 oral argument before the Special Master], at 14-15.[3] The Special Master noted further that Defendants did not “articulate a convincing reason as to why discovery of Plaintiffs' understanding of Southwest's facts would assist Defendants in developing their defense” nor did Defendants argue that “their ability to discover facts directly from Southwest is compromised.” Am. Rep. and Recomm. No. 4 at 9-10 (emphasis in original); see also Fed. R. Civ. P. 26(b)(2)(C)(1) (A court should limit discovery if it determines that “the discovery . . . can be obtained from some other source that is more convenient, less burdensome, or less expensive.”)

         In his analysis of Interrogatory No. 15, the Special Master determined that Defendants were not seeking “facts from percipient witnesses” but rather “proffers made by Southwest's counsel to Plaintiffs' counsel.” Am. Rep. and Recomm. No. 4 at 11. He reasoned that “[p]articularly insofar as Plaintiffs' counsel asked questions or directed the discussion during the proffer sessions, such communications reveal the legal theories and mental impressions of Plaintiffs' counsel about the case.” Id. The Special Master relied upon Fed.R.Civ.P. 26(b)(1) and (3) for the proposition that discovery of attorney work product may only be had upon the moving party establishing a substantial need for materials to prepare its case where such materials (or the substantial equivalent) cannot without undue hardship be obtained by other means. Fed.R.Civ.P. 26(b)(3)(A)(ii). Furthermore, he concluded “[that] the ability of Defendants to obtain the underlying facts from Southwest's present or former employees by means other than seeking proffers of counsel more than adequately protects Defendants' right to prepare for trial.” Am. Rep. and Recomm. at 12. For the reasons set forth in more detail below, the Court CONCURS with the Special Master's recommendation to deny Defendants' motion to compel Plaintiffs' responses to Interrogatory No. 15.

         Defendants' Objections and Plaintiffs' Response

         Defendants explain that “Interrogatory 15 seeks all facts provided by Southwest, including those disclosed during the seven witness interviews pursuant to the Settlement.” Defs' Objections at 2 (emphasis in original). Defendants emphasize that they “seek merely facts” as opposed to “Plaintiffs' understanding of Southwest's facts, ” and they cite U.S. v. All Assets Held, in support of their request for discovery of “facts provided” by Southwest. See U.S. v. All Assets Held, 270 F.Supp.3d 220, 226 (D.D.C. 2017) (where Magistrate Judge Michael Harvey denied discovery seeking the identity of persons interviewed by counsel and the particular questions asked each interviewee but granted discovery of the facts provided by the interviewees). Defendants' reference to All Assets Held and emphasis that only facts are being sought do little to advance their argument that such information should be compelled by this Court. Defendants mischaracterize the Special Master's recommendation as a blanket prohibition on their ability to obtain facts, even where the Special Master acknowledged that everyone readily agrees attorney work product privilege does not bar discovery of underlying facts. Am. Rep. and Recomm. No. 4 at 12. Nor are Defendants here barred from seeking underlying facts from Southwest. “The Special Master's recommendation that the Court deny Defendants' motion to Compel Interrogatory No. 15 in no way limits Defendants' ability to discover non-privileged information under Federal Rules of Civil Procedure [as] [e]ach party is free to undertake its own investigation of relevant facts.” Am. Rep. and Recomm. No. 4 at 10.

         The All Assets case was cited by the Special Master for the proposition that “the responding party need only respond to ‘an appropriately-phrased discovery request that does not require . . . counsel to reveal. . . the particular questions asked each interviewee, '” which is a factor to be considered in analyzing compliance with Interrogatory No. 15. Am. Report and Recomm. No. 4 at 12 (citing All Assets Held, 270 F.Supp.2d at 226). In support of this proposition that counsel's questions and thought processes should not be revealed to the opposing party, Plaintiffs cite National Union Fire Ins. Co. v. AARPO, Inc., No. 97-civ.-1438, 1998 U.S. Distr. LEXIS 21342 (S.D.N.Y. 1998) (where the court found that the factual content of communications with a cooperating witness was intermingled with information that disclosed counsel's thought processes and legal theories) and SEC v Roberts, 254 F.R.D. 371, 383 (N.D. Cal. 2008) (where the propounding party sought only disclosure of facts from discussions with a percipient witness, but the court denied the discovery on grounds that the facts contained within notes were likely to be ...


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