JOINT STATEMENT AND [PROPOSED] ORDER REGARDING PHASED DISCOVERY
EDWARD M. CHEN, District Judge.
The parties to the above-entitled action hereby submit this Joint Statement and [Proposed] Order Regarding Phased Discovery pursuant to the Court's Order Denying Defendant's Motion to Stay (Dkt. #89).
I. BACKGROUND
On August 18, 2015, Defendant AT&T Mobility LLC ("AT&T") filed a motion to stay proceedings pending resolution of an interlocutory appeal ("Motion to Stay") (Dkt. #79). After briefing by AT&T and Plaintiff Federal Trade Commission ("FTC"), the Court heard oral argument on September 24, 2015. During the hearing, and by written order on September 25, 2015 (Dkt. #89), the Court denied AT&T's Motion to Stay but ordered that "the parties shall phase discovery, at least through the date of the next CMC," set for January 21, 2016. The Court ordered that discovery shall proceed on the "go get" discovery requests discussed at the hearing, but not on the "monthly data" requests. The Court also ordered the parties to meet and confer as to how best to phase discovery of relevant custodians' emails and other documents, including, for example, identifying the particular custodians whose documents shall be produced during this phase of discovery.
II. AGREEMENT ON PHASED DISCOVERY
Having met and conferred, the parties have reached the following agreement:
A. AT&T shall produce, to the extent such documents exist and are reasonably accessible, documents responsive to the following requests in the FTC's First Set of Requests for Production of Documents and Other Tangible Things, as memorialized and limited in correspondence between the parties or in AT&T's document responses and objections, otherwise known as the "go get" requests: 1-7, 11-12, 13(a), 13(p), 13(s), 13(t), 17-18, 20-23, 25-26, and 29-32. The FTC reserves the right to request, after January 21, 2016, that request 13(u) be treated as a "go get" request, and AT&T reserves the right to challenge such a request.
B. AT&T shall produce responsive non privileged or non attorney work product emails or other documents from the following custodians subject to the search terms and date ranges agreed to by the parties as of the date of this filing, as memorialized and limited in correspondence between the parties:
1) Mark Collins
2) Matthew Haymons
3) Kristin Rinne
4) David Christopher
5) Andrew Wilson
6) Maurice James
7) Rick Fish
8) Jill Root
9) Kristin Nelson
10) Dave Saska
11) Bill Hogg
12) Mitch Farber
Upon review, to the extent any of the agreed upon search terms for the custodians above generate a disproportionately large volume of non-responsive documents, the parties agree to work cooperatively in good faith to revise or otherwise modify those search terms during this period.
C. The FTC shall produce responsive non privileged or non attorney work product documents responsive to the following requests in AT&T's First Set of Requests for Production of Documents, as memorialized and limited in correspondence between the parties or in the FTC's document responses and objections, otherwise known as the "go-get" requests: 1, 3-27, 29-30, 32-36. Specifically, the FTC shall produce consumer complaints regarding AT&T's throttling program received through the Consumer Sentinel Network, the Better Business Bureau, the Federal Communications Commission, and directly from consumers. The FTC shall produce any additional communications with AT&T consumers whom the FTC sought to or did interview, as well as an updated Rule 26(a) disclosure identifying by name and other contact information the 10-15 potential customer witnesses no later than January 14, 2016. The FTC will also produce consumer complaints concerning other companies' throttling programs received through the Consumer Sentinel Network, subject to the search terms identified in correspondence between the parties and with consumer names and contact information redacted. AT&T reserves the right to seek, after January 21, 2016, the consumer names and contact information of consumers who complained about other companies' throttling programs, and the FTC reserves the right to challenge such a request. The FTC will further produce documents from third parties responsive to AT&T's document requests as set forth in the FTC's Responses to AT&T Mobility LLC's First Set of Requests for Production of Documents. Finally, the FTC shall produce publicly available information from the FTC's website regarding the FTC's action against TracFone Wireless, Inc.
D. The parties shall produce the documents described in paragraphs A, B, and C on a rolling basis, and production shall begin promptly or as soon as practicable upon entry of a Protective Order. The parties shall endeavor in good faith to complete the production of all documents described in paragraphs A, B, and C by January 14, 2016. With respect to the documents described in paragraphs A and B, AT&T shall produce documents dated prior to June 12, 2015. The FTC reserves the right to seek, after January 21, 2016, documents dated after June 12, 2015, and AT&T reserves the right to challenge such a request. The production of documents described in paragraph B shall begin with production of documents from Mark Collins, Matthew Haymons, and Kristin Rinne.
E. Neither party waives any right to seek further discovery after January 21, 2016, with respect to the productions agreed to in paragraphs A, B, and C, or with regard to any Interrogatory Responses provided to date, or any document responses or objections provided to date.
F. Finally, the parties have agreed not to conduct depositions during this phase of discovery.
(The filer attests that concurrence in the filing of this document has been obtained from the other signatories.)
IT IS SO ORDERED.
