In re Domestic Airline Travel Antitrust Litigation MDL Docket No. 2656 | Misc. No. 15-1404 (CKK) United States District Court, District of Columbia Filed July 05, 2019 Levie, Richard A., Special Master SPECIAL MASTER AMENDED REPORT AND RECOMMENDATION NO. 8 UNITED AIRLINES, INC. and DELTA AIR LINES, INC.’S MOTION TO COMPEL FULL ANSWERS TO DEFENDANTS’ FIFTH SET OF INTERROGATORIES Nos. 21, 24-27 and 30 *1 Before the Special Master is United Airlines, Inc. and Delta Air Lines, Inc.’s Motion to Compel Full Answers to Defendants’ Fifth Set of Interrogatories Nos. 21, 24-27, and 30 (Defs. MTC), Plaintiffs’ Opposition (Pls. Opp.) and Defendants’ Reply (Defs. Reply). On June 26, 2019, Report and Recommendation No. 8 was filed. Later, on June 26, the Special Master received an email request from Plaintiffs, relating to Interrogatory No. 21, seeking to “clarify two issues concerning Report and Recommendation No. 8, filed this morning.” (Email, June 26, 2019, Plaintiffs to Special Master). On July 2, 2019, the Special Master held a teleconference with all parties in which Plaintiffs delineated their questions and issues. Defendants had an opportunity to respond. [1] For the reasons set forth below, the Special Master recommends that the Court grant in part and deny in part the Motion. By this Amended Report and Recommendation, the Special Master responds to the issues to which Plaintiffs sought clarification with respect to Interrogatory No. 21, but the recommendation from the Special Master remains the same as in the original Report and Recommendation No. 8. Background This marks the third time the Special Master has addressed the adequacy of Plaintiffs’ responses to Defendants’ interrogatories. The instant Motion is a sequel to Report and Recommendation No. 6 (ECF 352, adopted without objection in ECF 356), which itself was a reprisal of Amended Report and Recommendation No. 4 (ECF 247). In Report and Recommendation No. 6, the Special Master recommended granting a motion to compel answers to interrogatories, including the six contention interrogatories at issue in the current Motion. The Court adopted the Special Master's recommendations in ECF 352 on March 29, 2019 and required Plaintiffs to provide “full and complete answers under oath.” (ECF 356). [2] *2 On April 29, 2019, Plaintiffs served their Supplemental Responses. (See Defs.’ MTC, Ex. 1). Defendants represent the parties met and conferred on Plaintiffs’ responses. (See Defs. MTC at 2 n.1). Thereafter, Defendants filed the instant motion. In brief, the interrogatories at issue ask Plaintiffs to: Interrogatory No. 21 –“Identify each agreement” between Defendants to Restrict Capacity or Fix Prices; Interrogatory Nos. 24-26 –“Identify Communications” between Defendants and non-Defendants (e.g., an investor or an investment analyst) in which one “told” the other about obtaining another Defendant's agreement to Restrict Capacity or Fix Prices or in which a non-Defendant was “asked” to serve as a conduit; Interrogatory No. 27—“Identify each Communication” a non-Defendant made to a Defendant when serving as a conduit; and Interrogatory No. 30 –“When did the conspiracy You allege begin and end, and what events marked the beginning and the end of the conspiracy?” The Special Master's framework in evaluating Defendants’ current motion to compel remains the same as it has been over the past year. In recommending that the Court order Plaintiffs to respond to Defendants’ contention interrogatories in Report and Recommendation No. 6, the Special Master's rationale was that “after two years of supervising discovery in this case, the Special Master believes that narrative answers to these interrogatories at this juncture will identify and narrow the issues in dispute in this sprawling and voluminous litigation.” (ECF No. 352). Over a year ago, the Special Master found in Amended Report and Recommendation No. 4 that Plaintiffs’ answers to Defendants’ interrogatories were “likely to aid all the parties in assessing the strengths and weaknesses of their cases.” [See ECF 247 (In re Domestic Airline Travel Antitrust Litigation, 2018 WL 4381070 at *4 (D.D.C. June 15, 2018)]. Throughout these discovery disputes, the Special Master has reminded the parties that “the purpose of interrogatories is not merely to gather information and evidence; it is also a tool to require a party to state its positions on an issue in writing and under oath. [3] See Covad Comm. v. Revonet, Inc., 258 F.R.D. 17, 20 (D.D.C. 2009).” [ECF 352, quoting ECF 247 (In re Domestic Airline Travel Antitrust Litigation, 2018 WL 4381070 at *3 n. 3 (emphasis added) ]. These objectives continue today. The Special Master also is mindful that almost all of the fact depositions are complete (see Emails, June 14, 2019, United to Special Master, and Plaintiffs to Special Master), and that fact discovery ends July 31, 2019. [See Sept. 24, 2018, Minute Order (ECF No. 290) ]. Interrogatory No. 21 The language of this interrogatory seems simple: “[i]dentify each agreement (whether oral, written or otherwise) between Defendants pursuant to which they agreed to Restrict Capacity or Fix Prices.” “Identify,” according to the definitions accompanying the Fifth Set of Interrogatories, asked Plaintiff to provide the following information when responding to questions about “agreements:” *3 the date of the agreement, the parties to the agreement, the names and corporate affiliations of the Individuals who made the agreement, the names and corporate affiliations of other Individuals who witnessed the agreement, the means of communication used to form the agreement (e.g., contract, email, telephone, etc.), and the terms and duration of the agreement. (emphasis supplied) Plaintiffs’ Supplemental Response to Interrogatory No. 21 states: The terms of the agreement formed, modified and reaffirmed, in part, through public and private statements—made during the quarterly earnings calls, conferences (including those listed above [referring Plaintiffs’ Response to Interrogatory No. 19] [4]), and other public and private forums (including those listed above [referring to Plaintiffs’ Response to Interrogatory No. 20] [5])—included Defendants’ agreement to jointly limit industry capacity growth for the purpose of increasing airfares. At this time, Plaintiffs believe these agreements were in place no later than early 2009 and ended no earlier than mid-2015, but Plaintiffs’ experts will address this in more detail in their reports, which are not due until September 30, 2019. Participants in the agreements included, at various times, USAir, American, United, Delta, Continental and Southwest. The agreements were formed, modified, reaffirmed and/or facilitated by and among Doug Parker (USAir and American), Scott Kirby (USAir and American), Gerard Arpey (American), Tom Horton (American), Richard Anderson (Delta), Ed Bastian (Delta), Glen Hauenstein (Delta), Hank Halter (Delta), Glenn Tilton (United), Jeff Smisek (Continental and United), Kathryn Mikells (United), John Rainey (United), Gary Kelly (Southwest) and Tammy Romo (Southwest). Other of Defendants’ executives may have been aware of and/or facilitated the conspiracy. Witnesses are too voluminous and unknown to identify individually because they would have included anyone who heard Defendants’ public statements. Plaintiffs allege a conspiracy resulting from an agreement between Defendants that was formed, modified, reaffirmed, and/or facilitated, in part, through public and private statements made during quarterly earnings calls, conferences, and through other public and private communications. (Defs. MTC, Ex. 1 at 8-9). The essence of Defendants’ criticism of Plaintiffs’ Supplemental Response to Interrogatory No. 21 is that it suggests Plaintiffs have not responded with all the information that they currently possess. In particular, Defendants read Plaintiffs’ Response as indicating: • the alleged agreement “included” “jointly limit[ing] industry capacity growth for the purpose of increasing airfares,” implying other terms exist (MTC at 2); *4 • there were multiple agreements (id.); and • the alleged agreement's “form[ation],” its terms, and the parties to it can be found in particular public statements (id. at 3)—that Plaintiffs refuse to identify. (See Defs. Reply at 2). Plaintiffs assert that they identif[ied] the corporate participants in the conspiracy, the executives who played a role in facilitating it, and the manner in which Defendants established and furthered the conspiracy (e.g., through earnings calls, investor conferences etc.). See id. In sum, Plaintiffs have identified the agreement (i.e., the collective agreement to limit capacity growth); the persons and entities that participated in the agreement; and the means through which the agreement was facilitated (i.e., earnings calls, investor conferences, other public statements, and private communications). (Pls. Opp. at 3-4). Interrogatory No. 21 asks Plaintiffs to identify certain information they currently possess or state that they do not possess such information. To be sure, Plaintiffs’ response to Interrogatory No. 21 incorporates the approximately four-page list of conferences in Plaintiffs’ response to Interrogatory No. 19. This list details the conference date, name, and location, as well as identifying names of individuals attending each conference and their company affiliation. (Defs. MTC, Ex. 1 at 3-6). In addition, the response to Interrogatory No. 21 incorporates the response to Interrogatory No. 20, which identifies two IATA meetings by date, location, and lists individual attendees by name and company affiliation. (Id. at 8). Defendants do not take issue with Plaintiffs’ responses to Interrogatories Nos. 19 and 20. Plaintiffs’ Supplemental Response to Interrogatory No. 21 correctly points out that expert reports in this case are not due until September. (Defs. MTC, Ex. 1 at 9). Plaintiffs go on to assert that their expert reports will provide information, presumably responsive to this Interrogatory. (Id.). The Special Master assumes that the expert reports will evaluate economic data in an effort to show violative anti-competitive conduct. Interrogatory No. 21, however, does not appear to seek economic analysis. Insofar as Plaintiffs currently possess information that is responsive to Interrogatory No. 21, regardless of whether experts may shed further light on this issue, that information should be identified now. As noted above, Plaintiffs asked the Special Master two questions related to the text of Report and Recommendation No. 8. Specifically, Plaintiffs asked: 1. Whether the Special Master based his ruling on Interrogatory No. 21 with respect to the public statements on Defendants’ belief that the public statements contained the terms of the agreement other than the terms identified by Plaintiffs in their Interrogatory response, and 2. Whether the Special Master interprets Interrogatory No. 21 as requesting both Plaintiffs’ contentions as well as the evidentiary bases of Plaintiffs’ contentions. (Email, June 26, 2019, Plaintiffs to the Special Master). *5 In the July 2 teleconference Plaintiffs addressed the Defendants’ points raised in Defendants’ Reply and set out as the three bullet points on p. 5 above. (See July 2, 2019, Tr. at 7-9). With respect to the first bullet, Plaintiffs stated that they did not intend to use the word included [bullet 1 above] as a shield behind which to hide any information from Defendants, so to the extent that that word alone is causing any confusion, [they] are happy to remove that from [the] response and say that the one agreement that [they] are alleging in this case ... is that the agreement between whose [ ] Defendants is to jointly limit industry capacity growth for the purpose of increasing airfares. (July 2, 2019, Tr. at 8). As to the second bullet, which referenced multiple agreements, Plaintiffs stated on July 2 that their contention is that “there's a single overlying agreement along the same lines.” (Id. at 8-9). As to the third bullet, Plaintiffs stated on July 2 that “there are no extra terms beyond those [ ] included in the interrogatory response at this time.” (Id. at 9). The Special Master finds that Plaintiffs’ representations at the July 2 teleconference are helpful in eliminating some concerns arising from Plaintiffs’ wording of the Supplemental Response. Nevertheless, Plaintiffs are obligated to set out all information they presently possess that is fully responsive to Interrogatory No. 21. Thus, if Plaintiffs possess any additional information responsive to that Interrogatory, an Amended Supplemental Response is the place and time to disclose it. With respect to identification of “individuals who witnessed the agreement” and identification of “the parties to the agreement,” fact discovery virtually is complete at this time. Therefore, it is not acceptable for Plaintiffs to respond that “[w]itnesses are too voluminous and unknown to identify individually because they would have included anyone who heard Defendants’ public statements.” (Defs. MTC, Ex. 1 at 8-9). Either Plaintiffs know who the witnesses are or Plaintiffs do not. A reference to “anyone who heard Defendants’ public statements” is far too broad to be responsive or otherwise focus the issues for trial. Similarly, Plaintiffs state that “a conspiracy resulting from an agreement between Defendants [ ]was formed, modified, reaffirmed, and/or facilitated, in part, through public and private statements made during quarterly earnings calls, conferences, and through other public and private communications.” (Id.). Insofar as Plaintiffs possess specific information upon which to base such an assertion, especially with respect to “earning calls” or “other public communications,” this Interrogatory requires them to provide that information now or state they lack such information. In the July 2 teleconference Plaintiffs inquired whether Report and Recommendation No. 8 required them to “provide specific information with respect to this specific communication ... as contrasted with the means of communication, which [Defendants] identified by category of communication ....” (July 2, 2019, Tr. at 12-13). Indeed, Plaintiffs stated they interpret Defendants’ definition of “identify” for “agreements” as asking only “for the means of communications used to form the agreement, e.g., contract, email, telephone, et cetera.” (Id. at 21). Plaintiffs believe that they had identified the “type” of communication. (Id.). *6 The Special Master does not read the definition of “identify” in the context of an “agreement” as narrowly as do Plaintiffs. The applicable definition asks “for each agreement, state:” • the date of the agreement, • the parties to the agreement, • the names and corporate affiliations of the Individuals who made the agreement, • the names and corporate affiliations of other Individuals who witnessed the agreement, • the means of communication used to form the agreement (e.g., contract, email, telephone, etc.), and • the terms and duration of the agreement. [See Def. Fifth Set of Interrogatories to All Plaintiffs, ¶ 10 (emphasis supplied) ]. The Special Master views Plaintiffs’ obligation in answering Interrogatory No. 21 to go well beyond stating the “means” of the communications used to form the agreement. If Plaintiffs possess information responsive to the Interrogatory within the definitions accompanying the Interrogatory, now – basically at the end of fact discovery – is the time to do so. Interrogatory Nos. 24-26 These three interrogatories are variations of the same theme of inquiry. Interrogatory No. 24: Identify each Communication in which a Defendant told a non-Defendant (e.g., an investor or an investment analyst) to obtain another Defendant's agreement to Restrict Capacity or Fix Prices. Interrogatory No. 25: Identify each Communication in which a non-Defendant (e.g., an investor or an investment analyst) told a Defendant that another Defendant would agree to Restrict Capacity of Fix Prices. Interrogatory No. 26: Identify each Communication by a Defendant to a non-Defendant (e.g., an investor or an investment analyst), in which the non-Defendant was asked to serve as a conduit of a conspiracy between Defendants. (Defs. MTC, Ex. 1 at 10-12). Plaintiffs’ Supplemental Response to each is identical: Subject to and without waiving such objection, Plaintiffs interpret the phrase to request communications where a non-Defendant expressly told a Defendant “that another Defendant would agree to Restrict Capacity or Fix Prices” and respond accordingly. At this time, Plaintiffs cannot identify any such communications, nor do they contend that a non-Defendant expressly told a Defendant that another Defendant would agree to Restrict Capacity or Fix Prices. Defendants criticize Plaintiff's use of the word “expressly,” arguing that, “if it is Plaintiffs’ position that Defendants or other non-parties so ‘told’ or ‘asked’ by implication, a wink-and-a-nod, through code, or by any other non-‘express’ means, Defendants are entitled to Plaintiff's identification of those communications as well.” (Defs. MTC at 5). Although there is no basis to permit Plaintiffs to rephrase the interrogatory as it is worded, the Special Master reads Plaintiffs inclusion of the modifier “expressly” as a clarification that Plaintiffs are answering the interrogatory as they understand it. Moreover, the Special Master finds that Defendants’ use of the verbs “told” and “asked” in these interrogatories is tantamount to asking for an express communication. There is nothing on the face of these interrogatories that asks Plaintiffs to identify nudges, winks, or “codes.” Accordingly, the Special Master finds Plaintiffs have sufficiently answered Interrogatory Nos. 24-26. Indeed, the Special Master reads Plaintiffs’ response as narrowing and refining the facts at issue when stating: “At this time, Plaintiffs cannot identify any such communications, nor do they contend that a non-Defendant expressly told a Defendant that another Defendant would agree to Restrict Capacity or Fix Prices.” Interrogatory No. 27 *7 Interrogatory No. 27 asked Plaintiffs to “[i]dentify each Communication made to a Defendant by a non-Defendant (e.g., an investor or an investment analyst) pursuant to the non-Defendant's role as a conduit of a conspiracy between Defendants.” Plaintiffs’ Supplemental Response was a 12-plus page chart identifying specific documents by type and date, and they included a narrative summary of each document. [6] The Special Master believes that Plaintiffs’ chart is responsive to the interrogatory—Defendants can read the emails as well as Plaintiffs can. There are, however, several “publications” and “presentations” listed that may contain multiple pages. With respect to multi-page publications and presentations, Plaintiffs should direct Defendants to particular portions which Plaintiffs deem responsive to the Interrogatory. In all other respects, the Special Master finds that Plaintiffs’ Supplemental Response to this Interrogatory is sufficient. Interrogatory No. 30 The Interrogatory and Supplemental Response for Interrogatory No. 30 are: Interrogatory No. 30: When did the conspiracy You allege begin and end, and what events marked the beginning and the end of the conspiracy? Supplemental Response: Plaintiffs reiterate and incorporate herein the objections previously raised to this interrogatory. Plaintiffs respond herein pursuant to the Special Master's requirements as set forth in Report and Recommendation No. 6. At this time, Plaintiffs believe these agreements were in place no later than early 2009 and ended no earlier than mid-2015, but Plaintiffs’ experts will address this in more detail in their reports, which are not due until September 30, 2019. One event that preceded the beginning of the conspiracy was the significant increase in the price of fuel in 2008. The conspiracy ended no sooner than June 2015 when the United States Department of Justice issued CIDs to Defendants. (Defs. MTC, Ex. 1 at 25). Insofar as Plaintiffs’ Supplemental Response is based upon documents in its possession and information from depositions and interviews, Plaintiffs’ Supplemental Response is sufficient. The Interrogatory is clear. If, however, Plaintiffs possess additional responsive information from the sources just noted, they should provide it in an amended supplemental response. Insofar as the work of Plaintiffs’ experts on economic data provides more specific answer(s) to this Interrogatory, Defendants will be free to explore that in deposition(s) of Plaintiffs’ experts. Conclusion For the foregoing reasons, the Special Master recommends that the Court grant Defendants’ Motion to Compel Full Answers to Defendants’ Fifth Set of Interrogatories as to No. 21 and deny Defendants’ Motion as to Interrogatory Nos. 24-26, 27 (except as to any multiple-page publications or reports, which are to be supplemented as appropriate) and 30. The Special Master also recommends that the Court order Plaintiffs to re-serve their Supplemental Responses under oath by July 17, 2019. Finally, the Special Master recommends that Plaintiffs file an amended supplemental answer to Interrogatory No. 21 consistent with Plaintiffs’ representations during the July 2d hearing and this Amended Report and Recommendation by July 17, 2019. Footnotes [1] With permission of the Court, the time in which to note any objections to the Amended Report and Recommendation No. 8 is extended until 48 business hours after issuance on ECF of this Amended Report and Recommendation. [2] In their Opposition to the instant Motion, Plaintiffs raise several objections not previously advanced. Plaintiffs argue that their objections are not new but, rather, are efforts to “provide[ ] more clarity as to their vagueness objections.” (Pls. Opp. at 7 n.6). Defendants argue that Plaintiffs have waived any objections to the interrogatories at issue. (See Defs. MTC at 5 n.2). The Special Master agrees with Defendants. Plaintiffs have had three opportunities to raise questions or object to these interrogatories – in the various meet and confers, in Plaintiffs’ responses/objections to the interrogatories when served and in their Opposition to the Motion to Compel that led to Report and Recommendation No. 6. Despite the fact that objections raised in an opposition to a motion to compel, rather than in responses/objections to interrogatories, technically are untimely, the Special Master, in fact, considered new objections raised for the first time in Plaintiffs’ Opposition to Defendants’ initial motion to compel. (See ECF 352). Inasmuch as the wording of the interrogatories here has not changed since they were first served, it is too late now for Plaintiffs to make further objections. Three opportunities are more than enough. [3] Notwithstanding the Court Order (ECF 356) or the requirement of Fed. R. Civ. P. 33(b)(3), Plaintiffs’ Supplemental Responses were not served under oath. The Special Master recommends that the Court order Plaintiffs to re-serve their Supplemental Responses under oath. [4] Interrogatory No. 19 asked Plaintiffs to: “Identify each meeting between Defendants at which they agreed to Restrict Capacity or Fix Prices.” [5] Interrogatory No. 20 asked Plaintiffs to: “Identify each industry conference, industry dinner, social outing, meeting of the Conquistadores del Cielo, and meeting of the International Air Transport Association, as reference[d] in the penultimate sentence of the Fourth paragraph of Plaintiff's Supplemental Response to Interrogatory No. 8, at which You contend an agreement was reached to Fix Prices or Restrict Capacity.” [6] Plaintiffs also raised a new objection that the phrase “pursuant to the non- Defendant's role as a conduit of a conspiracy” as vague and ambiguous.” (Defs. MTC, Ex. 1 at 12). As discussed supra at n.2, this objection is out of time.