IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CAROLINE BEHREND, et al. : CIVIL ACTION

:

v. :

:

COMCAST CORPORATION, et al. : NO. 03-6604

ORDER

AND NOW, this 3rd day of December, 2007, upon consideration of the Plaintiffs’

Motion to Compel Comcast to Preserve Documents, to Produce Documents and to Serve a

Privilege Log (Docket Entry No. 233), all responses thereto, and arguments presented at the

Court’s conference of November 5, 2007, IT IS HEREBY ORDERED that:

1. The Motion to Compel is GRANTED as follows and Defendants shall produce

documents responsive to:

a. Request Nos. 8 - 10 of Plaintiffs’ First Set of Merits Document Requests

within the time frame of January 1, 1997 to present.

b. Request No. 25 of Plaintiffs’ First Set of Merits Document Requests

within the time frame of January 1, 1997 to present.

c. Request Nos. 34 - 36 of Plaintiffs’ First Set of Merits Document Requests

within the time frame of January 1, 1997 to present.

d. Request No. 41 of Plaintiffs’ First Set of Merits Document Requests

within the time frame of January 1, 1997 to present, except insofar as the

term “multichannel video programming distributor or cable services

provider” includes satellite or broad band providers.

e. Request Nos. 47 - 48 of Plaintiffs’ First Set of Merits Document Requests

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Pretrial discovery is governed by Fed. R. Civ. P. 26(b) and is “accorded a broad and liberal

1

treatment.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). “[T]he court should and ordinarily does

interpret ‘relevant’ [as used in Rule 26(b)] very broadly to mean matter that is relevant to anything

that is or may become an issue in the litigation.” Oppenheimer Fund v. Sanders, 437 U.S. 340, 351

n.12 (1978) (quoting 4 J. Moore, Federal Practice ¶ 26.56 [1], p. 26-131 n. 34 (2d ed. 1976)). If no

claim of privilege applies, a non-party can be compelled to produce any matter “relevant to the

subject matter involved in the pending action” or “reasonably calculated to lead to the discovery of

admissible evidence.” Fed. R. Civ. P. 26(b)(1).

We find that Request Nos. 8 - 10, 41, 47 and 48 seek discovery that is relevant or reasonably

calculated to lead to the discovery of admissible evidence. We agree with the Class that swap

transaction documents and analyses that relate solely to non-cluster transactions are discoverable

under Rule 26. The Class alleges that Comcast’s market allocation strategy was not limited to or

defined by the Philadelphia and Chicago markets. Comcast’s business rationale for participating in

transactions involving non-cluster cable assets is relevant to the alleged anticompetitive cluster

building activity because, if the Class’s theory is correct, Comcast used its acquisition of non-cluster

assets to further its monopolistic conduct. Its business rationale for acquiring non-cluster assets,

therefore, is relevant or will lead to the discovery of admissible evidence of its alleged monopolistic

behavior.

The Class argues that Comcast should be required to produce documents dating back to

January 1, 1996. We find the proper time frame for the document production should be January 1,

1997 to present. This date provides a sufficient period in advance of the approximate time the Class

can identify as the start of Comcast’s alleged monopolistic activities – specifically, the

announcement of the acquisition of Marcus Cable on December 5, 1997 – to give the Class a clear

understanding of Comcast’s business strategy in entering into the transaction. While this period predates the limitations period, courts routinely recognize that evidence pre-dating the limitations period

is discoverable because it may lead to admissible evidence of design, pattern or intent regarding the

alleged conspiracy. See F.T.C. v. Lukens Steel Co., 444 F. Supp. 803, 806 (D.D.C. 1977)

(permitting discovery of documents that pre-dated events by twelve years where agency

demonstrated relevancy); Kellam Energy, Inc. v. Duncan, Inc., 616 F. Supp. 215, 218 (D. Del. 1985)

(permitting discovery extending five years prior to expiration of limitations period); Wilder

Enterprises, Inc. V. Allied Artists Picture Corp., 632 F.2d 1135, 1143 (4th Cir. 1980) (finding

reversible error in trial court’s refusal to permit discovery into pre-limitations period conduct that

allegedly was part of antitrust conspiracy); see also Oppenheimer Fund, 437 U.S. at 352 (holding that

“it is proper to deny discovery of matter that is relevant only to claims or defenses that have been

stricken, or to events that occurred before an applicable limitations period, unless the information

sought is otherwise relevant to issues in the case.”) (emphasis added).

The Class also seeks to discovery “with respect to any Comcast franchise area, regardless of

location and time period, within which Comcast and another multichannel video programming

distributor or cable service provider operates . . . any and all documents evidencing Comcast’s cable

service prices” and any document comparingComcast’s prices against the other provider’s. We find

that this request is over broad. The term “multichannel video programming distributor” could

include satellite as well as broadband providers that are not connected to the class allegations. To

the extent the Class’s document production request seeks pricing information on satellite and

within the time frame of January 1, 1997 to present.1

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broadband providers, we agree with Comcast that it is outside the scope of Rule 26(b). The Class

allegations concern only monopolization of the market for enhanced basic cable services. This

definition excludes from the relevant product market satellite and broadband services. The balance

of the request for pricing data is reasonably calculated to lead to the discovery of admissible evidence

of Comcast’s pricing policies within the clusters. 

We also agree with the Class that all documents relating to Comcast’s memberships in any

trade association or industry group are discoverable, including agendas, minutes, notes, attendance

lists, expense reports, handouts or correspondence relating to such groups. Comcast’s continued

objection goes to trade and industry association material concerning only regions other than the

Philadelphia and Chicago clusters, that are specific to those regions (i.e., not national in scope). We

overrule this objection and find that such information may lead to admissible evidence of conduct

within the clusters and is discoverable on that basis.

For these same reasons, we overrule Comcast’s objections to Document Request No. 25,

related to RCN Telecom Services, Inc., and Document Request Nos. 34 - 36 related to regulatory and

government documents.

2. The Motion, insofar as it seeks to compel Comcast to preserve documents and

serve a privilege log is GRANTED.

3. Plaintiffs’ Motion to Expedite (Docket Entry No. 236) is DENIED AS MOOT.

4. Plaintiffs’ Motion for Leave to File a Reply Brief (Docket Entry No. 239) is

GRANTED.

5. Plaintiffs’ Motion for Leave to File a Reply Brief (Docket Entry No. 245) is

GRANTED.

BY THE COURT:

S/John R. Padova

 

John R. Padova, J.

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