TIMOTHY C. BATTEN, SR., District Judge.
The case is before the Court on Plaintiffs' motion to reopen discovery and for a new case schedule as to Defendants Delta Air Lines and AirTran Holdings, Inc., and for sanctions against Delta [294].
On December 5, 2008, Delta and AirTran started charging passengers $15 to
In addition to this litigation, on February 2, 2009, the United States Department of Justice Antitrust Division (the "DOJ") served a Civil Investigative Demand ("CID") upon Delta, seeking information regarding its decision to adopt the first-bag fee. The CID required Delta to produce documents relating to any actual or contemplated changes in Delta's policies or practices relating to fees charged for checked baggage.
On February 9, 2010, the Plaintiffs served document requests upon both Defendants, seeking all documents related to their decisions to impose a first-bag fee. In a brief May 13, 2010 telephone conference, the Court ordered that all such documents be produced to Plaintiffs by June 30, 2010.
On November 8, 2010, Plaintiffs filed a motion for spoliation sanctions against Delta relating to Delta's noncompliance with the DOJ's bag-fee CID. To understand the basis for this motion, it is necessary to explain Delta's email retention policy.
Delta creates and maintains daily and monthly back-up tapes for disaster-recovery purposes. It contracts with IBM to perform these backup services.
With respect to the daily tapes, every day the data on each of Delta's exchange servers, which contain data such as employees' emails, calendar entries and contacts, is copied on a series of seven rotating tapes. When the last tape is full, the first tape in the set is reused. This process provides two weeks of daily backup tapes for each server.
With respect to the monthly tapes, on or about the first Saturday of each month, a back-up tape is created for each server. Each such tape contains a "snap-shot" of the data on the server on the particular date upon which it is backed up. Monthly back-up tapes are retained for three months and then reused, similar to the reusing of the weekly back-up tapes. Thus, at the time Delta received the CID on February 2, 2009, it should have had monthly back-up tapes for at least November and December 2008 and January 2009 for each server.
Delta also has an email policy that manages employees' emails. Copies of outgoing emails are stored in a sent-items folder. If an employee reads an email but does not manually delete or move it to another folder, after sixty days the email is automatically moved to a deleted-items folder, and approximately sixty days thereafter it is permanently deleted. An employee who wants to retain a copy of an email for a longer period of time can do so by moving the email to a personal folder, where the email is retained until the employee chooses to delete it. Under Delta's document-retention policy, users are instructed to create custom personal folders for emails and other electronic files when there is a business need to retain them.
Delta received the CID on February 2, 2009. It imposed two important implicit if not explicit requirements upon Delta. First, Delta was to identify each person
Consequently, on February 3, Scott McClain, Delta's assistant general counsel, emailed a document-preservation and litigation-hold notice to each of the twenty-two persons ("custodians") whose computers Delta believed might contain documents responsive to the CID. McClain's notice was also sent to the administrative assistants for each member of Delta's corporate leadership team.
Pursuant to McClain's notice, each recipient was informed that the DOJ had requested all documents related to any actual or contemplated changes in the checked-bag-fee policies of Delta or any other airline at any time since January 1, 2008. The notice also directed each recipient to search for, preserve and refrain from deleting or destroying any potentially responsive documents, including emails, other electronic documents, and paper documents. Over the course of the next few weeks, Delta collected paper and electronic documents, including emails, from the custodians and produced them to the DOJ. Thus, Delta did take steps to preserve responsive documents.
However, the problem (as perceived at the time Plaintiffs filed their spoliation motion) was not that Delta had failed to comply with the CID, but rather that it had waited several months before complying completely. Specifically, although Delta received the CID on February 2, 2009, it waited over three months — until May 13, 2009 — to copy all files on the custodians' computers and suspend the employee email-destruction policy. Moreover, Delta waited even longer — until sometime between May 19 and June 5, 2009 — to instruct IBM to stop overwriting its daily and monthly back-up tapes. As a result, Plaintiffs contended, voluminous, highly relevant emails and documents going back to the crucial time period of July through November 2008, when Delta and AirTran announced that they would impose the first-bag fees, were lost.
On February 22, 2011, the Court denied Plaintiffs' motion for spoliation sanctions, for three reasons. First, the Court rejected Plaintiffs' contention that Delta owed Plaintiffs — and not just the DOJ — a duty to comply with the CID and that Delta could therefore be sanctioned in this case for failing to comply with the CID. Second, Plaintiffs had not shown prejudice, i.e., that critical evidence existed and was destroyed, or that Delta had acted in bad faith. Finally, the Court was influenced by Delta's myriad emphatic and unqualified assurances that it had produced absolutely every document in its possession, custody or control that Plaintiffs had requested. It is worth pausing at this point
During the November 8, 2010 status conference, Delta's counsel stated:
In its brief in opposition to Plaintiffs' motion for spoliation sanctions, Delta stated:
In its surreply brief in opposition to Plaintiffs' motion for spoliation sanctions, Delta stated:
Finally, during the January 27, 2011 hearing on the motion for spoliation sanctions, Delta's counsel stated:
Basically, it would be impossible for Delta to have been more forceful in its assurances that it had fully complied with Plaintiffs' document requests and the DOJ's CID.
While the DOJ's bag-fee investigation was pending, the DOJ was also conducting an unrelated investigation of Delta regarding its proposed swap of airport landing slots with U.S. Airways at Washington and New York area airports. In connection with that investigation, the DOJ received from Delta several documents relevant to the DOJ's bag-fee investigation that Delta had not produced in response to the bag-fee CID. On February 17, 2011, the DOJ sent Delta a letter asking why Delta had failed to produce those documents in response to the CID issued in the bag-fee investigation.
On March 1, Delta's counsel informed the Court that it had recently become aware of additional "potential issues" with its document production in this case.
By letters dated March 8, 2011, Delta explained to both the DOJ and Plaintiffs that the slots-swap investigation documents were collected and produced by a different law firm not involved in the bag-fee investigation or this case, meaning that the slots-swap investigation documents were not readily available to Delta's counsel in this case. Delta then stated that a preliminary review of the slots-swap investigation documents — approximately two terabytes of data — showed that these documents contained some "additional documents responsive to Plaintiffs' discovery requests in this case." Delta promised that it would search the slots-swap investigation documents and produce all such additional documents.
As of March 8, 2011, Delta still did not know how relevant documents could have been produced in the slots-swap investigation but not in response to the DOJ's bag-fee CID or Plaintiffs' discovery requests.
On March 17, 2011, Delta informed the Court that it had retained PricewaterhouseCoopers LLP ("PwC") to investigate what happened, and as a result of that investigation Delta discovered the existence of about 60,000 pages of documents responsive to Plaintiffs' document requests that had not been produced. The 60,000 pages included (1) documents found on the previously un-checked individual hard drives, and (2) documents located on recently discovered back-up tapes, which are discussed infra at 1342-43.
Delta offers the following explanation of how it could have been as wrong as it was dogmatic in its assertions that it had fully complied with the DOJ's CID and Plaintiffs' document requests.
Delta uses a computer software program called Clearwell to help manage its electronically stored information. Clearwell enables Delta to search its computer files, such as emails, letters, and memoranda, using key terms or phrases (e.g., "bag fee"). Files containing the key terms or phrases can then be copied to other computer storage media and/or printed.
In May 2009, Delta copied and saved data from numerous hard drives of various custodians as part of its efforts to respond to the DOJ's bag-fee CID. However, the contents of some of the hard drives were not uploaded to Clearwell, but Delta's legal team did not discover this fact until nearly two years later, in March 2011. Consequently, when Delta searched its electronic documents in 2009, only Delta's active email servers or shared network servers were searched; files located on the custodians' hard drives, including archived emails on the hard drives but not on the shared servers, were not searched and thus not produced. Apparently, at some point the data on those hard drives was uploaded to Clearwell in connection with the slots-swap investigation. As a result, Delta produced documents to the DOJ in connection with the slots-swap investigation. The DOJ noticed that some of those documents were responsive to the DOJ's bag-fee CID, yet were not produced by Delta in response to the bag-fee CID. As previously indicated, on February 17, 2011, the DOJ sent Delta a letter asking why the documents responsive to both CIDs were not produced in response to the bag-fee CID.
Delta's explanation is that it failed to upload all of the data on the hard drives to Clearwell for the bag-fee investigation due to a misunderstanding between its counsel in this case and its internal technology department, CSIRT.
In addition to discovering that it failed to produce documents because it did not search several individual hard drives for documents as required, Delta also discovered in March 2011 the existence of additional back-up tapes in a CSIRT evidence locker.
As stated above, sometime between May 19 and June 5, 2009, Delta instructed IBM to suspend the overwriting of Delta's daily and monthly back-up tapes. Based on conversations at that time between Delta's counsel and both CSIRT and IBM, Delta then believed that (1) its oldest back-up tapes were from April 2009, and (2) those tapes were stored by CSIRT in CSIRT's "evidence locker." Delta contends that CSIRT stores only those back-up tapes that have been collected in connection with litigation or investigations, whereas IBM is the custodian of Delta's other, routine back-up tapes.
In August 2010, Delta's counsel contacted CSIRT to confirm that the April 2009 back-up tapes were being stored, which CSIRT confirmed. CSIRT also informed Delta's counsel that it was storing a set of back-up tapes delivered by IBM to CSIRT sometime in September or October 2009.
Not until March 2011, when Delta's counsel met with representatives of CSIRT and PwC at CSIRT's offices, were the recently discovered back-up tapes found. At that time, Delta's counsel asked to see the April 2009 back-up tapes, and for the first time CSIRT showed counsel an unmarked box of back-up tapes. Nothing on the tapes indicated why they were being stored, and CSIRT could not explain what the tapes were or why they were being preserved. Neither CSIRT nor IBM has been able to determine who requested that the tapes be preserved and stored in the evidence locker. After the tapes were discovered in March 2011, Delta had a vendor perform a forensic scan of the tapes to determine their age and relevance and promptly informed Plaintiffs of their existence upon determining their relevance. The scan showed that the tapes, which pre-dated the April 2009 back-up tapes that Delta thought were the oldest tapes available, contained documents responsive to Plaintiffs' document requests. Delta produced these documents to Plaintiffs in April and May 2011; they are included among the 60,000 pages of documents produced to Plaintiffs.
None of this sat too well with Plaintiffs, who had suspected as early as 2009 — when Delta admittedly destroyed documents when it delayed in instructing IBM to stop overwriting the back-up tapes (albeit inadvertently, if one were inclined to take Delta at its word) — that Delta's production was woefully incomplete, suggesting that Delta had destroyed or intentionally withheld evidence. On July 25, 2011, Plaintiffs' counsel wrote the Court an eighteen-page letter accompanied by 47 exhibits totaling 361 pages, expressing Plaintiffs' ire. Plaintiffs seek four things: (1) a re-opening
By letter dated August 2, Delta responded to Plaintiffs' letter indicating that it (1) did not object to a limited reopening of discovery; (2) would respond to the motion for sanctions within the time allowed under the Federal Rules of Civil Procedure; (3) objected to producing additional correspondence between it and the DOJ; and (4) commented generally on the nature of the recently produced documents. Delta's letter did not dispute that Delta (1) failed to search and produce responsive documents from the hard drives collected in May 2009 from the relevant bag-fee custodians, and (2) located after the close of discovery the recently discovered back-up tapes containing emails from certain custodians. It characterized these blunders as "inadvertent mistakes."
On August 11, Delta sent a letter to the Court responding to Plaintiffs' request for sanctions. The details of this letter are addressed below.
Before addressing Plaintiffs' requested sanctions and Delta's response thereto, it is necessary to consider both sides' evaluations of the approximately 60,000 pages of documents
Plaintiffs first contend that a number of the newly produced documents contradict the deposition testimony of Delta witnesses as to when Delta adopted a first-bag fee and that the contradictions as to the timing of Delta's decision "help demonstrate that Defendants imposed a first bag fee as the result of a conspiracy." Second, Plaintiffs argue that Delta should be sanctioned for its late production because the existence of these newly produced documents (1) refutes Delta's numerous representations that it had provided a full and complete record of events, and (2) suggests that even more documents remain missing or were destroyed.
The Court addresses each contention in turn.
Plaintiffs contend that Delta's witnesses previously testified that its two divisions responsible for making a recommendation about the first-bag fee — Revenue Management ("RM") and Airport Customer Service ("ACS") — were divided on whether Delta should impose the fee. Generally speaking, Delta's witnesses testified that ACS favored a first-bag fee long before AirTran's October 23, 2008 earnings call and that RM always opposed the fee. Plaintiffs contend that the newly produced documents show that ACS was actually opposed to the fee in the months prior to AirTran's earnings call, but that Delta changed its position after the call. Thus, Plaintiffs assert that Delta decided to adopt the first-bag fee as a direct result of AirTran's earnings call.
Plaintiffs also contend that the new documents "impeach other aspects of the testimony of Delta witnesses." However, Plaintiffs compare the new documents to the testimony of only one witness — Delta's executive vice president Steve Gorman.
Delta offers three responses to Plaintiffs' assertions about the alleged inconsistencies between the depositions and documents. Delta first responds that the alleged inconsistencies are trivial and that Plaintiffs inaccurately represent the contents of the new documents. More importantly, Delta contends that "what is noticeably absent from Plaintiffs' letter [is] any evidence, in the newly produced documents or otherwise, supporting [Plaintiffs'] allegations that Delta entered into an agreement with AirTran to adopt the first bag fee."
On August 26, 2011, Plaintiffs responded to Delta's arguments in both its August 2 and 11 letters. Noticeably absent from Plaintiffs' August 26 letter to the Court is a complete response to Delta's contention that there is not "any evidence, in the newly produced documents or otherwise, supporting their allegations that Delta entered into an agreement with AirTran to adopt the first bag fee." In reply to such a strong assertion, Plaintiffs state only,
This argument is buried on page nineteen of Plaintiffs' twenty-one-page letter. By contrast, Plaintiffs' first letter to the Court (dated July 25) addressed the impact of the new documents beginning on page four and continued for over four pages. Thus, if Plaintiffs had better examples of how the new documents show that Defendants conspired to impose a first-bag fee, surely they would have said so in their August 26 letter.
Plaintiffs also offer no additional or direct evidence of a conspiracy between Defendants in their August 26 letter. Indeed, in their letter Plaintiffs offer only one example of how the recently produced documents allegedly undermine Delta's arguments and support theirs. That example is the alleged contradiction between the first-bag-fee emails sent by Delta's CEO Richard Anderson and his testimony about when he made his decision to adopt a first-bag fee. This example is tepid support for Plaintiffs' contention that "[t]he timing of Delta's change in position regarding first bag fee as evidenced by the newly produced documents provides evidence that the first bag fee was imposed as a direct result of AirTran's October 23, 2008 earnings call."
Plaintiffs also take issue with Delta's representations that it had produced everything, in light of the existence of these new documents. Plaintiffs also argue that additional documents remain missing.
Plaintiffs first contend that the "[n]ewly produced documents ... undermine representations made by Delta in connection with Delta's opposition to Plaintiffs' spoliation motion about the completeness of its production." For example, Delta previously stated that all of Gail Grimmett's (the head of its bag-fee team) emails regarding first-bag fees had been permanently deleted on November 1, 2008, whereas, the recently produced documents contain a number of Grimmett's first-bag-fee emails.
Indeed, as discussed above in Part II, Delta made several representations about its complete production, and some of these representations pertained to Grimmett's emails. For example, during the hearing on Plaintiffs' spoliation motion, Delta's counsel stated, "It was [Grimmett's] normal practice in 2008 to delete her emails on a regular basis and for her deleted email box to clear every time she exited the computer. So there's no reason to think that in February of 2009, there was any document on back-up tapes or otherwise of Ms. Grimmett's to find." Despite this assurance, the newly produced documents include additional Grimmett emails.
In response, Delta acknowledges that it dropped the ball by failing to timely produce 60,000 pages of responsive documents. However, it insists that these documents are of little, if any, evidentiary significance to the case; in fact, as stated above, Delta contends that the documents actually support its defense, not Plaintiffs' conspiracy claim. Significantly, Delta points out that of the almost 10,000 responsive documents
Plaintiffs also contend that not only do the newly produced documents show that Delta failed to produce inculpatory documents, but that these new documents suggest that additional documents — presumably inculpatory as well — have still not been produced. In their July 25 letter, Plaintiffs state:
Delta's two letters to the Court do not address this contention. However, Plaintiffs offer nothing more than speculation to support their theory that documents have been destroyed or that additional documents remain missing.
Plaintiffs contend that discovery should be reopened on a limited basis to allow them to explore issues raised by the newly produced documents. Plaintiffs propose that:
Delta agrees that discovery should be reopened; however, it believes that Plaintiffs' proposed open-ended schedule is not helpful. Delta contends that the Court should either issue a clear instruction on
As to the start time of the new discovery period, Delta believes that its document production is complete, and thus the four months of additional discovery, as proposed by Plaintiffs, should commence immediately. However, Delta also acknowledges that it is producing documents as a result of new document requests by Plaintiffs.
Because Delta agrees that discovery should be reopened, the Court will grant Plaintiffs' request to reopen discovery. However, discovery will be limited to the matters related to the documents produced by Delta after the close of the original discovery period, which includes but is not limited to the recently produced documents on the hard drives and back-up tapes produced by Delta in recent months. Discovery will reopen immediately and end four months from the date of this Order.
In addition to reopening discovery, Plaintiffs contend that Delta should be sanctioned for not locating the recently produced documents sooner. Specifically, Plaintiffs contend that Delta should be sanctioned pursuant to Fed.R.Civ.P. 26(g) and 37 because it failed to produce responsive documents prior to the close of discovery; failed to conduct a reasonable inquiry into the existence and location of its back-up tapes; and misrepresented that it did not possess the recently located back-up tapes. As for the type of sanctions, Plaintiffs seek reimbursement of their fees and expenses associated with (1) their motion for spoliation sanctions; (2) their request for sanctions, and (3) the extended discovery period. They also urge the Court to enter an order barring Delta from using any of the late-produced documents at any stage of the litigation.
Delta responds that there is no basis for sanctions under Rule 26(g) or Rule 37. It contends that its failure to timely search its individual custodians' hard drives was the inadvertent result of a misunderstanding by Delta's IT department of instructions from Delta's counsel. Delta further contends that its failure to locate the recently discovered back-up tapes was equally inadvertent, i.e., the result of the tapes' storage in an unexpected location: the evidence locker. Thus, Delta asserts that its in-house and outside counsel reasonably believed that all requested hard drives had been searched and that the oldest available back-up tapes had been produced. Consequently, it argues that its responses are not sanctionable now just because in hindsight its discovery responses may have been incomplete or incorrect.
Additionally, Delta asserts that it was obligated to, and did, provide in a timely manner the additional or corrective information once it became aware of the relevant but unproduced documents. It also argues that it has been in constant communication with Plaintiffs and the Court about the additional discovery and has offered to cover the fees and expenses related to the additional discovery but that Plaintiffs have refused to identify what discovery they think is needed.
Despite its arguments against the propriety of sanctions, Delta does not dispute that it (1) neglected to search and produce responsive documents from the hard drives collected in May 2009 from the relevant bag fee custodians; and (2) located and identified additional back-up tapes
It is also undisputed that prior to the discovery of these documents, Delta represented to the Court approximately twenty times
However, although Delta clearly failed to comply with its obligation to produce documents — and misrepresented through counsel that it had not so failed — the 60,000 pages of documents that Delta recently produced do not appear to contain "smoking gun" evidence of a conspiracy between Delta and AirTran to impose the first-bag fee. This, of course, does not excuse Delta's discovery failures and misrepresentations to the Court. But it does affect the Court's analysis of the relief that Plaintiffs seek.
The Court now addresses whether Delta should be sanctioned under Rule 26(g), Rule 37 or both, and what sanctions, if any, are appropriate.
Plaintiffs contend that Delta violated Rule 26(g)(1), which states that a signing attorney certifies discovery responses are complete and correct to the best of his knowledge, information and belief after a reasonable inquiry, and that Delta's counsel failed to take reasonable steps to comply with this obligation. Specifically, Plaintiffs assert that Delta inexcusably failed to ensure that all sources of discoverable information (i.e., its custodians' hard drives) were identified and searched, did not determine the actual implementation of its e-discovery retention policy, and did not search the storage area where its internal technology department stored back-up tapes until March 9, 2011.
Delta responds that sanctions pursuant to Rule 26(g) as a result of recently produced documents are limited in scope to the elements delineated in subsection (g)(1)(B). This subsection requires a signing attorney to certify after a reasonable inquiry that his client's discovery responses are (1) consistent with the Federal Rules of Civil Procedure and warranted by existing law or by nonfrivolous arguments for changing the existing law; (2) not interposed for any improper purpose; and (3) neither unreasonable nor unduly burdensome or expensive. Thus, Delta contends that Rule 26(g) only requires a reasonable inquiry limited to these three elements and that Plaintiffs have not shown that its conduct violated any of these elements. However, the comments to Rule 26(g) show that the rule is not as limited in scope as Delta contends.
Rule 26(g)(1) requires an attorney of record to sign every discovery request, response or objection. By signing, an attorney certifies that to the best of his knowledge, information, and belief formed
FED.R.CIV.P. 26(g)(1)(B). The comments to subsection (g)(1) clarify that Rule 26(g) broadly "imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37." FED.R.CIV.P. 26(g) advisory committee's note. This broad duty is satisfied when an attorney makes "a reasonable inquiry into the factual basis of his response, request, or objection." Id. Specifically, the attorney's investigation and conclusions drawn therefrom must be reasonable under the circumstances. Id. Thus, the comments make clear that Rule 26(g) is broader than Delta portrays it. The Court now determines whether Delta has in fact violated subsection (g).
Delta admits that it belatedly produced relevant documents; however, it contends that its conduct does not run afoul of subsection (g) because its counsel made reasonable inquiries prior to signing the certifications. It asserts that "each response was given only after Delta counsel had engaged in several conversations with Delta's CSIRT department and/or IBM to verify the relevant back-up tapes Delta had in its possession."
Plaintiffs assert that Delta did not conduct a reasonable inquiry into the factual basis for its implicit representations that (1) all of the relevant hard drives had been processed through Clearwell, and (2) there were no missing back-up tapes. They argue that Delta should have ensured that all sources of discoverable information were identified and searched and searched in (where else?) the evidence locker, where CSIRT typically keeps back-up tapes. Consequently, Plaintiffs contend, Delta falsely certified that its discovery responses were correct and complete. Plaintiffs argue that as a result, the case has been unnecessarily delayed and its costs unnecessarily increased, and the fact that Delta is now producing these documents is immaterial. The Court agrees. See Kipperman v. Onex Corp., 260 F.R.D. 682, 698 (N.D.Ga.2009) (imposing sanctions under Rule 26(g) for defendant's misrepresentations about its e-discovery and rejecting defendant's arguments it had finally complied with discovery orders and plaintiff was not prejudiced); R & R Sails Inc. v. Ins. Co. of State of Pa., 251 F.R.D. 520, 524-25 (S.D.Cal.2008) (imposing Rule 26(g) sanctions where defendant without substantial justification belatedly produced electronic information despite certifications to court and plaintiff that its discovery production was complete); see also 8A CHARLES WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2052 (3d ed. 2010) (collecting cases where parties asserted opponent neglected to produce all electronically stored information and sanctions appropriate under Rule 26(g)).
The Court finds that Delta did not conduct a reasonable inquiry. With respect to the collected but unsearched hard drives, Delta has not substantially justified its failure to ensure the drives were run through Clearwell and searched back in
As for the back-up tapes, Delta has not tried to explain why counsel did not check CSIRT's evidence locker. Again, Delta relied on email and phone communications, but given the extensive questioning of Delta about back-up tapes upon receipt of the bag-fee CID, counsel should have inspected the evidence locker in 2009, and certainly should have done so as soon as issues with the back-up tapes arose. See id. (attorney did not "make a reasonable investigation to assure that his clients had provided all available responsive information"). Delta tries to justify its failure by explaining that back-up tapes are not typically located in this locker; however, it also explicitly states that tapes are routinely stored in the CSIRT evidence locker once they are collected for litigation or internal or external investigations. Consequently, Delta's counsel should have inspected the tapes in this locker, as it stores only the tapes that are collected for litigation and investigations, and Delta has not substantially justified its failure to do so.
Compounding the problem are Delta's repeated representations that it had produced everything. The unequivocal nature of those representations is best illustrated by Delta's counsel's statement during the January 27, 2011 hearing on Plaintiffs' motion for spoliation sanctions: "There's nothing in those documents to suggest there's something missing somewhere else. It gives — it gives a full and complete and, frankly, I think, hopefully to the Court comforting view that everything exactly as I just walked you through, everything is there, there is no collection of documents missing."
Also, Delta did not promptly correct its factual misrepresentations to the Court regarding its supposedly complete production of the requested documents. To the contrary, on February 22, 2011 (five days after the DOJ informed Delta of its discovery of additional documents), Delta's counsel submitted another letter to the Court insisting that spoliation sanctions should not be imposed. Delta waited until March 1 — one week after the Court denied Plaintiffs' spoliation motion — to notify the Court of the issues raised by the DOJ.
Thus, sanctions under Rule 26(g) are appropriate for Delta's failure to ensure that all collected hard drives were actually searched and to locate the back-up tapes in the evidence locker and for its myriad inaccurate representations that it had done both. See Legault v. Zambarano, 105 F.3d 24, 28 (1st Cir.1997) (finding Rule 26(g) violated where documents defendants failed to produce were in their possession and would have been located if defendants had conducted a reasonable search).
With respect to the type of sanctions, subsection (g)(3) provides that
Through this subsection, Rule 26(g) "curb[s] discovery abuse by explicitly encouraging the imposition of sanctions." Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1545 (11th Cir.1993) (quoting FED. R.CIV.P. 26(g) advisory committee's note). However, while the Court "must impose" a sanction, the rule also clarifies that the sanction must be "an appropriate sanction." Thus, the Court evaluates the circumstances surrounding Delta's behavior both before and after the discovery of the documents.
Since becoming aware of its deficient document production, Delta has diligently worked to address the situation. It collected the two terabytes of data produced in the DOJ slots investigation and searched it for documents relevant to this case; processed the newly discovered back-up tapes and produced relevant documents; employed electronic search terms to accommodate Plaintiffs' requests; added additional custodians to the search list; searched material collected in another unrelated DOJ investigation; and agreed to numerous additional discovery requests made by Plaintiffs. Its initial delay in informing the Court aside, Delta has been forthcoming with the Court and Plaintiffs about its progress, agrees that discovery should be reopened, and acknowledges that it should be required to pay at least a portion of the expense of the additional discovery that will now be necessary because of Delta's mistakes. Delta also asserts that the majority of the recently produced documents do not relate to bag fees, and the ones that are so related do not show that Delta conspired with AirTran. Finally, and significantly, Delta produced the documents prior to motions for summary judgment and well before trial.
In light of these facts, the Court finds SCADIF, S.A. v. First Union Nat'l Bank, 208 F.Supp.2d 1352, 1378-79 (S.D.Fla. 2002), affd, 344 F.3d 1123 (11th Cir.2003), instructive. There, First Union, like Delta, admitted that it had failed to make a complete production due to an unintentional omission, and it accepted responsibility for its mistake. The court rejected First Union's excuses for failing to produce certain documents and found its "failure to timely produce known, requested and discoverable documents ... a serious procedural and ethical violation ... one that cannot be dismissed lightly, even where the failure is the result of mere carelessness."
Nevertheless, the court determined that the prejudice from First Union's untimely disclosure was minimized by the fact that "(1) the documents were produced before trial (though barely); (2) SCADIF used the documents to examine and cross-examine witnesses in the trial; and (3) the documents are of minimal relevance." Id. at 1379. Particularly persuasive to the court's finding that First Union's failure was a "good faith error" was the fact that "[t]here were no `smoking guns'" in the belatedly produced documents. Id. As a result, the court limited its sanction to a written reprimand. See also Guimaraes v. NORS, 366 Fed.Appx. 51, 54 (11th Cir. 2010) (affirming district court's denial of motion for sanctions in part because untimely produced documents were "of minimal relevance"); cf. BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1051 (11th Cir.1994) (finding sanctions appropriate where late documents
While this Court does not believe a written reprimand suffices,
Plaintiffs also contend that Delta is subject to sanctions under Rule 37(b)(2) & (c)(1).
Plaintiffs assert that subsection (b)(2) applies because "Delta's failure to produce these documents prior to the deadline set by the Court amounts to a failure to comply with this Court's discovery Orders." Delta disagrees, arguing that it has not willfully disobeyed a discovery order compelling production of specific materials or information.
Subsection (b)(2) provides,
(Emphasis added.) The key phrase in this subsection is "fails to obey an order to provide or permit discovery." Plaintiffs contend that Defendants violated (1) the Court's May 13, 2010 order that required Defendants to complete their production in response to Plaintiffs' first document requests
Delta responds that general discovery orders like the ones mentioned above are not sufficient to trigger application of subsection (b)(2), especially where a party, like it, has complied in part with the general directives.
The parties have provided neither persuasive nor binding authority as to whether an order setting a deadline for a party to respond to a discovery request or a scheduling order qualifies as an order providing for or permitting discovery under subsection (b)(2).
As with their Rule 26(g) arguments, Plaintiffs contend that Delta's conduct violated Rule 37(c)(1), which incorporates obligations imposed under Rule 26(e), because Delta failed to act reasonably under the circumstances, i.e., its failure to produce the documents was not substantially justified. Specifically, Plaintiffs assert that under Rule 26(e)(1)(B), sanctions are appropriate because Delta failed to produce responsive documents as ordered by the Court.
Delta responds that Plaintiffs have failed to show that Rule 37(c)(1) sanctions are appropriate because they have neither (1) identified the information that it failed to provide in keeping with Rule 26(e), nor (2) shown that it did not act in accordance with the rule. Specifically, Delta asserts that Rule 26(e)(1)(A) requires it to correct or supplement responses "in a timely manner," and that it did this when it immediately notified Plaintiffs and the Court of the recently discovered documents and immediately began producing those documents.
Turning to subsection (c)(1), it provides,
Rule 26(a) addresses Delta's obligations with respect to initial disclosures, and Rule 26(e) addresses Delta's obligations to supplement disclosures and discovery responses, including its responses to Plaintiffs' document requests. Plaintiffs believe that Rule 37(c)(1) applies because Delta has violated its obligations under Rule 26(e), which states in pertinent part,
Thus, Delta was required to supplement its discovery responses in a timely manner when it learned that its previous document production was incomplete or when ordered by the Court to supplement or correct its responses. Failure to do either can result in sanctions under Rule 37(c)(1).
Plaintiffs also assert that the Court's May 13 order setting the June 30 production deadline qualifies as an order by the Court to supplement disclosure under Rule 26(e)(1)(B), and that Delta failed to comply with that order when it failed to produce the recently discovered documents, which have always been in its possession. Thus, Plaintiffs contend that Delta violated subsection (B) and sanctions under Rule 37(c)(1) are appropriate. The Court finds that this argument distorts the nature of the May 2010 order that established a deadline, but did not order Delta to supplement its responses. Thus, the Court will evaluate this argument and the above arguments under subsection (A).
Finally, Plaintiffs assert that Delta's discovery failures are particularly egregious in light of the "repeated inquiries from the DOJ and Plaintiffs about the dearth of its production and the existence of backup tapes." The Court agrees. In response to these numerous inquiries, Delta unwaveringly but incorrectly maintained that "there is no collection of documents missing," and that reasonable inquiries would have prevented this entire quagmire.
Turning to whether Delta's conduct violated Rule 26(e)(1)(A), neither side has provided, and the Court cannot find, case law applying subsection (A) to facts similar to the facts of this case. However, several cases have addressed subsection (A) where a party belatedly supplemented an expert report, and the Court finds the reasoning in those cases, particularly Cochran v. Brinkmann Corp., Civil Action File No. 1:08-cv-1790-WSD, 2009 WL 4823858, at *5 (N.D.Ga. Dec. 9, 2009), persuasive.
In Cochran, the defendant challenged the plaintiffs' disclosure of additional testing by their expert after the Court's deadline and asserted that it had been harmed by its inability to pursue discovery as a result of the plaintiffs' untimely disclosure. The plaintiffs contended that their expert had discovered shortcomings in his report, and thus they had recently learned that in some material respects his report was incomplete or inaccurate. Consequently, they argued that they were entitled to supplement his report under Rule 26(e)(1)(A).
The Court rejected the plaintiffs' argument, characterizing it as a "tortured and self-serving" interpretation of the rule in order to introduce evidence foreclosed by the Court's orders. The Court reasoned that the purpose of the report requirement and the Court's deadlines was to "end discovery and fix for the parties the evidence and opinions with which they would have to contend at trial so a trial could be fairly and efficiently conducted." 2009 WL 4823858, at *5. The Court found that allowing the plaintiffs' tortured interpretation of Rule 26(e) would "hopelessly and unfairly frustrate[]" the rule's purpose and the Court's efforts. Id. The Court determined that although the plaintiffs' expert had been retained months in advance of the deadline, the expert failed to conduct testing to formulate his report prior
The Cochran Court also determined that the plaintiffs' failure to conduct the testing and to offer the opinions based thereon before the deadline was not substantially justified, and the late testing and disclosures were not harmless. Accordingly, the Court found sanctions appropriate under Rule 37(c)(1). Id. at *7.
Like the Cochran plaintiffs, Delta tortures the meaning and purpose of Rule 26(e) by suggesting that it timely produced the recently discovered documents (always in its possession) after the Court's deadline. Just like the discovery deadlines in Cochran and made clear to Delta by the Court, the June 30 deadline established by the May 13 order was important to moving the case forward. Furthermore, there were extensive conversations between the parties and the Court about Delta's document production and the existence of back-up tapes. And in response to every inquiry and challenge, Delta represented that it had produced every requested document in its possession. Indeed, in its brief in opposition to Plaintiffs' motion for spoliation sanctions, Delta represented, "There is no evidence that any document regarding Delta's decision to adopt a first bag fee in 2008 has not been produced by Delta to Plaintiffs."
Now, Delta asks the Court and Plaintiffs to believe that it was unaware of the existence of the new documents in its possession the entire time. Even if true, it is only because Delta was not diligent in ensuring that the relevant hard drives were searched. Delta's counsel did resend to CSIRT the list of custodians' hard drives that should have been run through Clearwell for CSIRT to confirm that those hard drives were uploaded. However, CSIRT's reply email does not actually confirm that each identified person's hard drive was run through Clearwell. Delta has not identified other steps it took to ensure that all of the hard drives were in fact uploaded for processing through Clearwell, nor has it shown that it was impossible or unduly burdensome for it to determine which hard drives were and were not passed through Clearwell. Thus, as with the expert in Cochran who was retained months in advance but not diligent about conducting testing before the deadline, Delta was always in possession of the recently produced documents on the hard drives and back-up tapes, but it was not diligent in locating them.
Delta was also dilatory in determining the existence of additional back-up tapes. Given the extensive discussions about the back-up tapes, Delta's counsel should have inspected the evidence locker prior to March 2011 and ceased to rely solely on CSIRT's representations that there were no other back-up tapes. See Martinez v. Rycars Constr., LLC, No. CV410-049, 2010 WL 6592942, at *2 (S.D.Ga. Dec. 2, 2010) ("An incomplete report cannot be cured by the use of supplementation.... Supplementation of an expert report pursuant Rule 26(e) does not cover failures of omission because the expert did an inadequate or incomplete preparation.") (alteration in original).
Thus, as found in Cochran, Rule 26(e) does not forgive Delta's failure to timely conduct an adequate and complete search for responsive documents. Even though subsection (A) required Delta to supplement incorrect or incomplete information, it does not grant Delta a "right to produce information in a belated fashion." 3M Innovative Props. Co. v. Dupont Dow Elastomers, LLC, Civil No. 03-3364 (MJD/JGL), 2005 WL 6007042, at *4
As sanctions, Plaintiffs request an award of their fees and expenses incurred in connection with (1) this motion, (2) the portion of the discovery period that must now be extended, and (3) Plaintiffs' motion for spoliation sanctions. They also contend that Delta should be barred from using any of the recently produced documents as evidence during any proceeding.
The Court first addresses whether Delta can use the recently produced documents as evidence in connection with any motion or at trial. Under Rule 37(c)(1), a party who fails to provide information as required by Rule 26(e) is not allowed to use that information unless its failure was substantially justified or is harmless. "[A]n individual's discovery conduct should be found `substantially justified' under Rule 37 if it is a response to a 'genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.'" Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir.1993) (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). "A discovery mistake is harmless if it is honest, and is coupled with the other party having sufficient knowledge that the material has not been produced." Go Med. Indus. Pty, Ltd. v. Inmed Corp., 300 F.Supp.2d 1297, 1308 (N.D.Ga.2003).
Exclusion, however, is not mandatory. See Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1348 (11th Cir.2004) (Rule 37(c)(1) gives district courts "discretion to exclude untimely submissions."). Rule 37(c)(1) provides that in addition to or instead of excluding the late-produced information, the Court may order a party to pay the reasonable expenses caused by its failure; inform the jury of the party's failure; or impose other appropriate sanctions, including those listed in Rule 37(b)(2)(A)(i)-(iv).
The facts of this case do not warrant a sanction precluding Delta's use of the recently produced documents. Even though Delta was dilatory in locating these documents, Delta immediately informed the Court and Plaintiffs about its discovery of the additional documents and asked the Court to suspend the case schedule, which the Court did. In addition, the prejudice to Plaintiffs is mitigated by the revised case schedule, which includes additional discovery time and adjusted summary judgment deadlines, established in this Order. Cf. SCQuARE, 2008 WL 228032, at *3 (finding preclusion appropriate in part because undisclosed documents would have changed court's decision with respect to motions for summary judgment). Furthermore, there is no evidence that Delta willfully withheld production of these documents, and there is no smoking gun of which the Court is aware at this point contained within the new documents. Consequently, a sanction preventing Delta from using these documents is not appropriate. See BFI Waste Sys. of N. Am. v. DeKalb Cnty., Ga., 303 F.Supp.2d 1335, 1344-45 (N.D.Ga.2004) (permitting plaintiff to use late-produced expert report where plaintiff produced report as soon as plaintiff received it and defendants had not shown they were prejudiced).
The Court finds that a more appropriate sanction would be to require Delta to pay Plaintiffs' reasonable expenses and attorneys' fees caused by Delta's failure, which includes Plaintiffs' request for fees and expenses related to this motion, the
As for determining the amount of fees and expenses
At the conclusion of the extended discovery period, the Court strongly expects Plaintiffs and Delta to confer and agree on a reasonable amount for Plaintiffs' expenses and fees incurred in connection with the extended discovery period. If Plaintiffs and Delta cannot agree on a reasonable amount for these expenses and fees, then within fourteen days of the close of the extended discovery period Plaintiffs shall file a brief in support of their claim for expenses and fees, accompanied by the affidavit of Plaintiffs' lead counsel attesting to the requested amount and reasonableness thereof; fourteen days after Plaintiffs' filing, Delta shall file a brief in opposition to Plaintiffs' request for expenses and fees; and fourteen days after Delta's filing Plaintiffs may file a reply brief in support of their claim for expenses and fees. Again, the parties are cautioned that any such submissions should be succinct, and not voluminous.
As if the foregoing were not enough to wade through and resolve, Plaintiffs also have issues with AirTran's document production. In its first letter to the Court, Plaintiffs do not mention AirTran. Thus, by letter dated August 2, AirTran informed the Court that its review of Plaintiffs' letter indicated to it that the reopened discovery would only apply to Delta, and that to the extent Plaintiffs also sought its communications with the DOJ, it would not produce future correspondence. It also expressed its opinion that the newly produced documents failed to show that Delta and AirTran colluded on the first-bag fee.
On August 23, AirTran responded to Plaintiffs' August 5 letter, and on August 30, Plaintiffs addressed AirTran's response. Their respective arguments are discussed below.
AirTran objects to discovery being reopened for Plaintiffs to pursue discovery related to the 125 pages of documents it produced in May 2011. It contends that Plaintiffs had agreed with it that communications between its attorneys and the DOJ were not included in Plaintiffs' document requests, and that it was not until May 2011, after discovery closed, that Plaintiffs "pressed AirTran for all its prior communications with the DOJ."
AirTran's argument is meritless. In their first document request, Plaintiffs asked for:
(Emphasis added.) On its face, this request includes communications between AirTran's counsel and the DOJ. Moreover, as discussed below, any ambiguity was resolved by the parties' subsequent communications.
On March 11, 2010, AirTran's response/objection to the above request for production was:
Noticeably absent from this response/objection is any objection to the production of AirTran's correspondence with the DOJ. Nonetheless, in its August 23 letter to the Court, AirTran incorrectly claims that it "produced the documents and transcripts it had produced to the DOJ and objected to producing other materials submitted to
On March 24, 2010, Plaintiffs' counsel emailed to AirTran's counsel a summary of their discussion about AirTran's responses to Plaintiffs' first document requests. Plaintiffs' counsel wrote, "AirTran will produce responsive non-privileged communications to other entities and will [reflect] any privileged communications on a privilege log. AirTran will also produce documents received from the DOJ Antitrust Division." In its March 26 email response, AirTran added only the following to Plaintiffs' summary: "AirTran understands `documents received from the DOJ Antitrust Division' to mean the CID and any other documents it received from the Division in connection with the bag fee investigation." Nothing in these communications excludes from production correspondence between AirTran and the DOJ.
Yet in its August 23 letter to the Court, AirTran contends that this "modified scope... did not call for AirTran to produce its counsel's submissions to the DOJ, just the documents AirTran had received from the DOJ" because "the phrase `other entities' refers to entities other than the DOJ." The actual words of Plaintiffs' summary and AirTran's initial response/objection belie AirTran's new-found interpretation of the scope. As for the meaning of "other entities," AirTran's initial response/objection only mentions the DOJ, so it hardly makes sense that a clarification of the scope of the request, only two weeks after AirTran's response, would exclude the DOJ. As for Plaintiffs' summary, it explicitly mentions communications and does not exclude counsel's communications, and AirTran has not raised a privilege argument of which the Court is aware with respect to any of the communications. Thus, AirTran's August 23 interpretation is flawed.
Regardless of how Plaintiffs' summary is interpreted, any remaining doubt as to the scope of Plaintiffs' first document request was eliminated a few months later. On November 26, 2010, prior to the close of discovery, Plaintiffs' counsel emailed the following to AirTran: "Can you please confirm that AirTran has produced to Plaintiffs all of its communications with the DOJ regarding the DOJ's bag fee investigation, including but not limited to any communications between AirTran's attorneys[
Consequently, AirTran's November 30, 2010 response to Plaintiffs' question — "AirTran has no communications with the DOJ in its files regarding the DOJ's bag fee investigation that have not already been produced to the Plaintiffs" — is incorrect. Furthermore, AirTran's August 23 explanation that "[b]ecause the DOJ has never raised document preservation issues with AirTran, and because AirTran had produced all DOJ correspondence within the modified scope of Plaintiffs' Requests No.
AirTran also objects to searching the files of Cannon and Ritter because it contends that these individuals' involvement was apparent in other discovery responses, and thus Plaintiffs should have requested their files sooner. AirTran primarily relies on emails already produced to Plaintiffs showing that Cannon and Ritter were invited and accepted the invitation to the bag-fee-decision meeting. AirTran also contends that even if Cannon's and Ritter's files are relevant, the estimated cost of searching those files (in excess of $50,000) outweighs the likely evidentiary value of any documents ultimately produced.
Plaintiffs disagree and contend that the recently produced documents "more strongly suggest the relevance of these two custodians than previously produced documents, and AirTran should be ordered to search their files." They assert that not everyone invited to the meeting attended, and it was not until they received the new documents that they confirmed that Cannon and Ritter had attended. Plaintiffs also assert that their request is not burdensome because they initially "agreed to the original limited custodian list based on AirTran's agreement to add additional relevant custodians upon Plaintiffs' request." The Court is persuaded by Plaintiffs' arguments and will order AirTran to search Cannon's and Ritter's files. See Am. Key Corp. v. Cole Nat'l Corp., 762 F.2d 1569, 1576 (11th Cir.1985) ("district court has broad discretion in all discovery matters" (internal quotations omitted)); Nat'l Indep. Theater Exhibitors, Inc. v. Buena Vista Distribution Co., 748 F.2d 602, 609 (11th Cir.1984) ("A trial judge has broad discretion to control the course of discovery, especially in a complex antitrust case such as this one....").
The Court will grant Plaintiffs' request to reopen discovery, limited to the documents produced by AirTran after the close of original discovery. This includes but is not limited to the 125 pages produced in May 2011. The Court will also order AirTran to search the files of Cannon and Ritter. Neither Plaintiffs nor AirTran has addressed how long the new discovery period as to AirTran should last, but the Court finds that it should be less than four months. Plaintiffs seek four months as to Delta, which produced 60,000 documents, whereas AirTran belatedly produced significantly fewer documents and is being ordered to search the files of only two additional custodians. Therefore, a shorter discovery period is appropriate.
However, Plaintiffs' additional discovery requests should be narrowly targeted to avoid duplicating discovery that was or could have been conducted during the original discovery period. Discovery will reopen immediately and end three months from the date of this Order. Additional details are set forth below.
Plaintiffs also seek from Defendants all future correspondence with the DOJ related to the DOJ's first-bag-fee investigation. Plaintiffs contend that Defendants
Both Delta and AirTran contend that the DOJ's bag-fee investigation is confidential pursuant to 15 U.S.C. § 1313(c). AirTran argues that this confidentiality statute means that Plaintiffs must make a particularized showing of relevance and need before the statutory confidentiality is breached. Relying on In re Urethane Antitrust Litigation, No. 04-md-1616-JWL, 2010 WL 5287675, at *7 (D.Kan. Dec. 17, 2010), in which the court denied the defendants' motion to compel because they did not show that the federal government's investigation into a possible conspiracy by plaintiffs was relevant, Delta argues that Plaintiffs seek its communications with the DOJ solely to gain some tactical advantage, which is both unfair and abusive.
Defendants also argue that they have already provided to Plaintiffs the documents and testimony that they provided to the DOJ for its first-bag-fee investigations, and thus Plaintiffs have complete access to the factual evidence surrounding Delta's and AirTran's decisions to adopt a first-bag fee. So, they conclude that it would be unfair to permit Plaintiffs to go beyond factual discovery and pry into communications between Defendants' counsel and the DOJ.
In addition, Defendants assert that Plaintiffs are in regular contact with the DOJ, and AirTran argues that Plaintiffs have "never treated lawyer-to-lawyer communications with the DOJ to be responsive to requests directed to the parties." Thus, AirTran contends that it is inconsistent to permit Plaintiffs to see Defendants' communications with the DOJ when Plaintiffs have not produced their own communications with the DOJ.
Plaintiffs respond that Defendants have not articulated any defense or privilege that justifies their withholding future correspondence with the DOJ. Plaintiffs also argue, relying on In re Domestic Air Transportation Antitrust Litigation, 141 F.R.D. 556, 559-60 (N.D.Ga.1992), that there is in fact no defense or privilege that supports Defendants' position.
In general, "`where the proof is largely in the hands of alleged conspirators,' antitrust plaintiffs must be given `ample opportunity' for discovery." In re NASDAQ Market-Makers Antitrust Litig., 929 F.Supp. 723, 725 (S.D.N.Y.1996) (quoting Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976)). In Domestic Air, 141 F.R.D. at 559-60, the antitrust plaintiffs' document request sought
Similarly, in NASDAQ, 929 F.Supp. at 725-26, the court determined that the ACPA did not prevent the antitrust defendants (the producing parties) from producing CID materials or the CIDs themselves to the plaintiffs. It also noted that the few cases that have addressed this issue have come down squarely in favor of compelling the production of CID materials in the hands of defendants.
Thus, it is clear from NASDAQ and Domestic Air that the ACPA and § 1313(c) do not protect Defendants' CID correspondence with the DOJ about the first-bag-fee investigation.
Disclosure of CID materials, though, has its limits. The NASDAQ court held that the ACPA did not mandate the disclosure of all CID materials. Rather, their discovery was permissible only where they would otherwise be discoverable under the Federal Rules of Civil Procedure. 929 F.Supp. at 726. As in this case, the defendants in NASDAQ challenged the relevancy of the CID materials under Rule 26, and the court determined that the CID materials were relevant to "liability and damages and potential impeachment material and [could] lead to the discovery of other admissible evidence." Id. at 725. Consequently, the NASDAQ court held that the requested CID materials were discoverable because they were relevant and not privileged.
Here, Plaintiffs assert that the requested CID materials are relevant pursuant to Rule 26(b), as they have already led, and will likely again lead, to the discovery of admissible evidence. AirTran summarily asserts in one sentence that Plaintiffs must make a "particularized showing of relevance and need"; however, other courts that have addressed this issue have rejected arguments that a showing of "particularized need" is necessary to obtain CID materials. See NASDAQ, 929 F.Supp. at 726 (citing In re Domestic Air Transp. Antitrust Litig. (Domestic Air II), 142 F.R.D. 354, 356 (N.D.Ga.1992), and In re Air Passenger Computer Reservation Sys. Antitrust Litig., 116 F.R.D. 390, 393 (C.D.Cal.1986)).
Delta contends that Plaintiffs want its communications with the DOJ solely to gain a tactical advantage, which is unfair and abusive. Presumably, its objection invokes the protection afforded by Rule 26(b)(2), which delineates the limits on the frequency and extent of discovery requests. In support of its contention, Delta relies on the antitrust case, Urethane, 2010 WL 5287675, at *7; however, Urethane is inapposite. There, the defendants (not plaintiffs) sought an order from the court compelling the plaintiffs to respond to their broad request for any documents that the plaintiffs had provided to any government agency related to any investigation into violations of antitrust law by the plaintiffs. In denying the defendants' motion, the court did not find their broad document request to be unfair and abusive, as Delta asserts. Rather, the court determined
Defendants have not shown that any other Federal Rule of Civil Procedure prevents disclosure of their CID correspondence with the DOJ about the first-bag-fee investigations. Accordingly, the Court will grant Plaintiffs' request for all CID materials related to the first-bag fee investigation produced by Defendants to the DOJ, including correspondence, subject to the Federal Rules of Civil Procedure.
Finally, in their proposed case schedule, Plaintiffs provide for themselves the opportunity to file a supplemental class certification brief. Their letters to the Court do not address why this supplemental brief is necessary, nor do they address why their proposed schedule does not permit Defendants to file responses to the supplemental brief.
Delta and AirTran object to Plaintiffs' request for a supplemental class certification brief. AirTran contends that if Plaintiffs determine at the close of the new discovery period that supplementation is necessary, they should confer with Defendants to determine an appropriate course of action.
The Court does not take issue with Plaintiffs' request to file a supplemental brief. However, if Plaintiffs choose to file one, Defendants will be permitted to file a response to the brief as provided below in the new case schedule.
The Court GRANTS Plaintiffs' requests (1) to reopen discovery on a limited basis and (2) that Defendants be required to continue to produce CID materials related to the DOJ's first-bag-fee investigation. The Court also GRANTS, as sanctions pursuant to Rules 26(g) & 37(c)(1), Plaintiffs' request for reasonable expenses and fees incurred in connection with this motion, their motion for spoliation sanctions, and the extended discovery period. The Court also ORDERS AirTran to search the files of custodians Cannon and Ritter if it has not already done so, and to promptly produce to Plaintiffs all documents encompassed within Plaintiffs' document requests.
The case schedule is changed as follows:
