United States District Court, District of Columbia
IN RE DOMESTIC AIRLINE TRAVEL ANTITRUST LITIGATION This Document Relates To: ALL CASES
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
before this Court is the Special Master's  Report
and Recommendation No. 9 Regarding Plaintiffs' Motion to
Compel Defendant Delta Air Lines to Produce Certain Data.
Plaintiffs filed under seal their  unredacted Objections
to Report and Recommendation No. 9; Defendant Delta Air Lines,
Inc. (‘Delta”) filed its  Response to
Plaintiffs' Objections; and Plaintiffs filed their
[419-1] Reply to Delta's Response. Accordingly,
Plaintiffs' Objections are ripe for review by this Court.
In considering Plaintiffs' Objections, this Court not
only reviewed the briefing with regard to Plaintiffs'
Objections but also reviewed the materials which were
presented to the Special Master. The Court understands the
Special Master's Report and Recommendation in light of
the briefing initially made by Plaintiffs regarding their
motion to compel, which has since been clarified and refined
through briefing on Plaintiffs' Objections. For the
reasons explained herein, the Court ADOPTS IN PART, OVERRULES
IN PART, and REMANDS IN PART to the Special Master Report and
Recommendation No. 9.
contested issues before this Court involve the production of
Delta's fuel costs data, and production of Delta's
hurdle rates. Beginning with fuel costs data, this Court
notes that Plaintiffs issued document requests
(“RFPs”) seeking documents sufficient to show:
• [Delta's] costs . . . by category and the
components of such costs . . . (RFP No. 13(c))
• the costs [Delta] paid for jet fuel, including any
hedging of fuel prices, pre-hedge or post-hedge price. . .
(RFP No. 28) and
• a detailed breakdown of all cost components. . .
including but not limited to fuel costs. . . (RFP No. 36)
assert that Delta responded to their requests by producing
“a single line item that aggregated all of Delta's
costs related to fuel - that is, by cost category, not by
cost component.” Pls.' Objections, ECF No. 417, at
8. Plaintiff notes that the cost components include the cost
of jet fuel purchased, cost of services to transport jet fuel
from storage to plane, fuel taxes, costs paid to enter into
fuel hedges, and losses (or gains) resulting from the
variance between actual and hedged fuel prices. Id.
Report and Recommendation notes that because Plaintiffs did
not clearly distinguish between costs and prices in its RFPs,
Delta interpreted Plaintiffs' requests by using its own
internal terminology and subsequently, Delta produced
information in an aggregate format. The Report and
Recommendation further indicates that there was a two-year
discovery period following service of Plaintiffs'
requests, during which “the parties exchanged numerous,
detailed letters and emails about the RFPs” and held
multiple meet and confer sessions in an “attempt to
reach a consensus on the scope of the document
production.” Report and Recommendation No. 9, ECF No.
411, at 2. Notably, only one of the many questions posed by
Plaintiffs to Delta concerned the designation
“fuel' and whether it was “net of
hedging.” Id. at 3.
Court finds a general lack of clarity in Plaintiffs'
RFPs, which left them open to interpretation by Delta.
Neither does it appear that Plaintiffs focused on the
responsiveness of Delta's production in as timely a
manner as they should have nor were Plaintiffs crystal clear
in their communications with Delta regarding the granular
level of detail that was being requested. In attempting to
reconstruct the negotiations between the parties, the Court
is left with the impression that there was little agreement
on the manner in which terms relating to costs and pricing
were defined/used or on identifying distinctions between cost
categories and components of costs, with the effect that
responsive information was produced by Delta, but its
usefulness to Plaintiffs is limited. The Court notes that
while Delta asserts that Plaintiffs raise a new argument with
regard to cost categories and components, the record in this
case indicates that there was a discussion of cost components
and costs categories in connection with the briefing on the
underlying motion to compel and the exhibits accompanying
Objections focus on RFP 28, and as such, the Court will not
revisit Plaintiffs' RFPs 13 and 36. The Court finds,
however, that Plaintiffs' RFP 28 - which specifies jet
fuel and asks for pre-hedge and post-hedge prices - is
specific enough to require that Delta provide data that will
permit Plaintiffs to discern the actual purchase cost for
fuel and variance between price paid and hedged prices.
According to the Plaintiffs, Delta possesses this fuel cost
data at a more granular level, which will permit these
inquiries to be answered. The Court notes that Delta has not
indicated that production of such data on a more granular
level will be unduly burdensome. In contrast, Plaintiffs'
need for this information requested in RFP 28 - actual fuel
costs, excluding ancillary costs - will “allow
Plaintiffs to identify whether and when Delta's costs for
fuel purchases rose or fell, and whether and the extent to
which those costs were offset by hedging.” Pls.'
Objections, ECF No. 417, at 15. “This will allow
Plaintiffs' experts to control for the effect of fuel
purchase costs on airfares in their regression models to
assess whether the alleged conspiracy elevated fares.”
Id. (citations omitted). Accordingly, with regard to
fuel price data, the Court adopts the Special Master's
recommendations as to resolution of Plaintiffs' RFPs 13
and 36, and the Court overrules the recommendations as to
resolution of Plaintiffs' RFP 28. That issue shall be
remanded to the Special Master for oversight of Delta's
production of more granular information in response to
Plaintiffs' RFP 28.
Court turns next to production of Delta's hurdle rates,
which hinge on Plaintiffs' RFP 10. That RFP was modified
by the parties to require production of “documents that
refer to or describe the policies, methods, formulas or
algorithms used to price domestic airlines passenger
transportation services . . .” Report and
Recommendation, ECF No. 411, at 10 (citations omitted).
Plaintiffs indicate that they learned during Delta's Rule
30(b)(6) deposition that Delta maintains historical
“hurdle rates” data by transaction, where hurdle
rates reflected “the minimum dollar value that Delta is
willing to accept” for a particular flight, and they
moved to compel production of that data pursuant to RFP 10.
Pls.' Objections, ECF No. 417 at 2 (citing Transcript of
Oral Hearing (“Tr.”) at 66:1-22) (additional
citations omitted). Plaintiffs theorize that the Report and
Recommendation “faults” Plaintiffs for first
learning of hurdle rates in Delta's Rule 30(b)(6)
deposition, but that theory is discredited by this Court as
the Special Master specifically noted that Plaintiffs'
discovery strategy was not used as a basis to
recommend denying its motion to compel.
Special Master found that Plaintiffs understood “hurdle
rates” to be a “pricing mechanism, ” which
was described as equivalent to the “minimum dollar
value that Delta is willing to accept on [a] particular leg
for [a] particular time, departure date, [and] flight [in a]
booking period.” Report and Recommendation, ECF No.
411, at 10. In contrast, during oral argument, Plaintiffs
styled hurdle rates as a “policy” with respect to
each flight and booking request. Id. at 11. The
Special Master found that hurdle rates were not responsive to
Request No. 10, and he noted that it appeared that Delta had
produced what Plaintiffs requested in RFP 10. Id. at
assert that, even after oral argument, it was unclear what
hurdle rates represented insofar as Delta indicated that they
are “sort of an internal reference mechanism.”
Pls.' Objections, ECF No. 417, at 3 (citing Tr. at
82:20-83:2). In their Objections, Plaintiffs request
clarification and articulation by Delta as
to their definition of hurdle rates since there is no
apparent agreement on this subject. “If Plaintiffs are
to be deprived of this information that is well within the
scope of Request 10, both Delta and the R&R9 should be
able to articulate what the data do refer to [but]
[n]either does.” Pls' Objections, ECF No. 417, at
4. Notably absent from Delta's Response to
Plaintiffs' Objections is any definition or clear
explanation of what hurdle rates are, and in fact, Delta
makes clear its position that ‘[i]t is not Delta's
burden, and certainly not the Special Master's burden,
“ to “adequately explain what hurdles rates
‘refer to.'” Delta's Response, ECF No.
416, at 3-4. This Court finds this assertion by Delta flawed
because without knowing how Delta defines hurdle rates, the
Court is unable to determine if hurdle rates fall within the
scope of Plaintiffs' RFP 10.
Response to Plaintiffs' Objections, Delta relies first on
the fact that hurdle rate [data] was determined to be
non-responsive to RFP 10 pursuant to the Report and
Recommendation. Delta argues that Plaintiffs may not now
“rewrite” their definition of hurdle rates to
cover anything used by Delta to price services, and Delta
asserts further that Plaintiffs already have testimony and
documentary evidence referring to or describing how hurdle
rates are used. Delta focuses next on the fact that because
hurdle rate [data] “consists of a field containing a
numerical value for the hundreds of millions of tickets for
which Delta has already produced detailed data, ” by
its very nature, the hurdle rate values do not “refer
to or describe [ ] policies, methods, formulas or
algorithms.” Delta's Response, ECF No. 416, at 3.
Delta contends further that because the parties agreed RFP 10
did not request structured data, and hurdle rate data is
structured data, production of such data is outside the scope
of the agreement with respect to RFP 10. ...