Behrend v. Comcast Corp.
Behrend v. Comcast Corp.
Opinion of the Court
ORDER ON PLAINTIFFS’ MOTION TO COMPEL
On December 8, 2003, Plaintiffs, (collectively, “Behrend”), cable subscribers of the
On September 13, 2007, Behrend filed its Motion to Compel Greater Media to produce subpoenaed documents. On October 5, 2007, the District Judge entered an Order granting the Motion to Compel. However, on October 10, 2007, Greater Media filed a Motion for Reconsideration of the ruling on the Motion to Compel. Subsequently, on October 20, 2007, the District Judge entered an order granting the Motion for Reconsideration and vacating the October 5, 2007 Order. On October 24, 2007, the District Judge referred the Motion to Compel third party Greater Media, Inc., to produce subpoenaed documents to this Court.
Behrend seeks to compel non-party Greater Media, to produce all documents responsive to a subpoena duces tecum. Behrend believes that Greater Media possesses relevant information pertaining to defendant Comcast’s alleged unlawful behavior that is the subject of the underlying litigation. Comcast stands accused of unlawfully monopolizing and attempting to monopolize, and unreasonably restraining trade in the Philadelphia and Chicago area cable markets through a series of acquisitions of, and market allocating swap agreements with, competitor cable companies. One example of Comcast’s alleged illegal activity is the 1999 acquisition of Greater Philadelphia Cablevision, Inc., at the time a subsidiary of Greater Media, resulting in additional cable subscribers to Comcast’s Philadelphia cluster. Incident to the underlying litigation, Behrend seeks to review documents relating to this acquisition.
On May 8, 2007, Behrend served Greater Media, a company that conducts business in the District of Massachusetts, with a subpoena duces tecum dated May 4, 2007. Soon after, on May 15,2007, Greater Media objected to the subpoena by letter. Since that time the parties have exchanged numerous written communications. Greater Media has refused to produce any documents responsive to the six document requests contained in the current version of the subpoena.
The First Circuit has recognized that “concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.” Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998). Rule
In this matter, Behrend, as the moving party, contends that it has taken reasonable steps to avoid imposing undue burden or expense on Greater Media. See Fed.R.Civ.P. 45(c)(1). For example, Behrend narrowed the scope of the subpoena and agreed to additional protections to prevent waiver of privilege; offered to send staff members to review documents; and offered to pay reasonable copying cost. Behrend’s position is that Greater Media must absorb any other costs of compliance with the subpoena. Beh-rend maintains that such an arrangement is fair given: (1) Greater Media has an interest in the case because its interests are directly aligned with those of Comcast; (2) the cost of compliance to Greater Media under Beh-rend’s plan will be minimal; and (3) this litigation is a matter of public importance because it is a class action challenging the alleged illegal conduct of Comcast to eliminate and prevent competition in the cable industry in violation of the Sherman Act.
In contrast, Greater Media maintains that Behrend’s plan is not ideal because the requested documents may contain privileged information. As such, Greater Media would endure severe financial hardship if it were forced to hire legal counsel to review the 400-500 unorganized boxes of documents for privilege, let alone prepare them for production. Greater Media maintains that it should not be required to bear the cost of compliance because: (1) Greater Media has no interest in the outcome of the case as it went out of the cable business by the end of 1999, soon after selling the Philadelphia cable business to Comcast
Despite the fact that Greater Media is no longer directly affiliated with the cable industry, it is clear that Greater Media has an interest in the outcome of this litigation. Greater Media was involved in a transaction with Comcast and could have anticipated such a transaction could potentially spawn litigation or discovery. See Tutor-Saliba Corp. v. United States, 32 Fed.Cl. 609, 610 n. 5 (1995) (noting that nonparty “was substantially involved in the underlying transaction and could have anticipated that the contract ... might ... reasonably spawn some litigation, and discovery of [non-party]”); In re First Am. Corp., 184 F.R.D. 234, 242 (S.D.N.Y. 1998) (noting that “where a non-party was ‘substantially involved in the underlying transaction and could have anticipated that [the failed transaction would] reasonably spawn some litigation,’ expenses should not be awarded”) (citing Tutor-Saliba Corp., 32 Fed.Cl. at 610 n. 5). While Greater Media claims it would create a financial burden to absorb significant costs of compliance with the subpoena because it does not have the staff to devote to the task of sifting through hundreds of boxes of unindexed documents and must hire outside counsel, this claim was called into doubt at oral argument. The parties briefly discussed the size of Greater Media’s operations, which clearly appears to be much greater than a small, local media outlet.
Accordingly, Behrend’s Motion to Compel third party Greater Media to produced subpoena documents is hereby GRANTED. Additionally, while this Court is not ordering compliance with Behrend’s plan, said plan seems perfectly acceptable and an easy way for Greater Media to save on costs of compliance. That being said, Greater Media may still decide the better option is for its counsel to conduct a privilege review before production, despite greater expense. This is purely Greater Media’s decision to make.
SO ORDERED.
. The original subpoena included fifteen separate requests for documents relating to the 1999 sale of Greater Media’s Philadelphia cable television business to Comcast. After some negotiation, the subpoena now consists of six requests.
. Greater Media estimates that the cost of hiring personnel to undertake a review of the documents would be in the range of $180 to $350 per hour for a legal assistant or junior level lawyer. Behrend believes such a demand is inappropriate and unwarranted.
. While the issue of privilege is duly noted, this Court believes the Protective Order issued by Judge John R. Padova and the represented agreement by Behrend that no waiver of privilege will occur, seems to cover the issue as to this Court's involvement. If they arise, any future privilege issues are more properly brought before Judge Padova.
. Additionally, Greater Media's sale of its cable television business was conducted pursuant to a competitive bid process, under the scrutiny of the Department of Justice, which, at the time, deemed the transaction as not in violation of any antitrust laws.
. During the hearing, Behrend’s counsel pointed to the Declaration of Ellen Rubin, Greater Media’s General Counsel and Vice President, which confirms Greater Media's ownership of 20 radio stations, 13 newspapers, and broadcast towers located in 6 states.
Reference
- Full Case Name
- Caroline BEHREND v. COMCAST CORPORATION
- Cited By
- 7 cases
- Status
- Published