3:09-cv-03073-SEM-TSH # 624 Page 1 of 10
`E-FILED
`
` Wednesday, 24 February, 2016 10:28:41 AM
` Clerk, U.S. District Court, ILCD
`IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF ILLINOIS
`SPRINGFIELD DIVISION
`
`
`
`)
`UNITED STATES OF AMERICA,
`and the STATES OF CALIFORNIA, )
`ILLINOIS, NORTH CAROLINA,
`)
`and OHIO,
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`)
`)
`)
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`
`No. 09-3073
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`
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`OPINION
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`Plaintiffs,
`
`v.
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`
`
`
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`
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`
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`DISH NETWORK, L.L.C.,
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`
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`
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`Defendants,
`
`
`
`
`SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:
`
`
`
`This matter came before the Court for a hearing on February
`
`17, 2016 (February 17 Hearing), to consider the admission of
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`Defendant Dish Network, LLC’s (Dish) remaining trial exhibits (Dish
`
`Trial Exhibits), for the bench trial that commenced on January 19,
`
`2016. The United States appeared by Assistant United States
`
`Attorneys Lisa Hsiao, Patrick Runkle, and Sang Lee; The State of
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`California appeared by Deputy Attorneys General Jinsook Ohta and
`
`Jon Worm; The State of Illinois appeared by Assistant Attorneys
`
`
`
`Page 1 of 10
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`
`E-FILED
`
` Wednesday, 24 February, 2016 10:28:41 AM
` Clerk, U.S. District Court, ILCD
`IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF ILLINOIS
`SPRINGFIELD DIVISION
`
`
`
`)
`UNITED STATES OF AMERICA,
`and the STATES OF CALIFORNIA, )
`ILLINOIS, NORTH CAROLINA,
`)
`and OHIO,
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`No. 09-3073
`
`
`
`
`
`
`
`
`
`OPINION
`
`Plaintiffs,
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`DISH NETWORK, L.L.C.,
`
`
`
`
`
`
`Defendants,
`
`
`
`
`SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:
`
`
`
`This matter came before the Court for a hearing on February
`
`17, 2016 (February 17 Hearing), to consider the admission of
`
`Defendant Dish Network, LLC’s (Dish) remaining trial exhibits (Dish
`
`Trial Exhibits), for the bench trial that commenced on January 19,
`
`2016. The United States appeared by Assistant United States
`
`Attorneys Lisa Hsiao, Patrick Runkle, and Sang Lee; The State of
`
`California appeared by Deputy Attorneys General Jinsook Ohta and
`
`Jon Worm; The State of Illinois appeared by Assistant Attorneys
`
`
`
`Page 1 of 10
`
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`3:09-cv-03073-SEM-TSH # 624 Page 2 of 10
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`
`General Elizabeth Blackston and Philip Heimlich; the State of North
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`Carolina appeared by Special Deputy Attorney General David
`
`Kirkman; the State of Ohio appeared by Assistant Attorneys
`
`General Erin Leahy and Jeffrey Loeser; The Federal Trade
`
`Commission appeared by attorneys Russell Deitch and Gary Ivens;
`
`Dish appeared by its attorneys Peter Bicks, Elyse Echtman, John
`
`Ewald, and Joseph Boyle. Illinois Assistant Attorneys General
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`Blackston and Heimlich appeared in person, and all other attorneys
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`appeared by video conference. Dish’s General Counsel Stanton
`
`Dodge and in-house counsels Larry Katzin and Brett Kitei also
`
`appeared at the hearing by telephone. The Court ruled on the
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`motions to admit Dish Trial Exhibits and Plaintiffs’ objections
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`thereto in open court at the February 17 Hearing. Upon the
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`admission of the exhibits, the portion of the bench trial commenced
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`on January 19, 2016, was completed.
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`
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`The Court entered a schedule for preparation of the second
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`portion of the bench trial for injunctive relief and for the remaining
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`issues raised Dish’s by the State Plaintiffs’ submission of the
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`testimony Richard Stauffer. Stauffer submitted testimony regarding
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`a summary of data in January 2016 of the states of residence
`Page 2 of 10
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`3:09-cv-03073-SEM-TSH # 624 Page 3 of 10
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`associated with telephone numbers in the call records of some of
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`the calls for which the Court found liability at partial summary
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`judgment (January 2016 Stauffer Analysis). See Opinion entered
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`January 4, 2016 (d/e 575) (Opinion 575), at 38-39; Defendant Dish
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`Network, LLC.’s Response to the State Plaintiffs’ Request for
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`Additional Discovery (d/e 598) (Response 598), attached Exhibit A,
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`Excerpt of Transcript of Proceedings on January 26 (Stauffer
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`Transcript Excerpt), at 837-44; see also Opinion entered December
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`14, 2014 (d/e 445), at 204-02. The Court further resolved issues
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`regarding the time period and the scope of additional discovery.
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`The Court previously gave Dish the option to decline to conduct
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`additional discovery with respect to the Plaintiffs’ claims for
`
`injunctive relief with the understanding that Dish would not be
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`allowed to use the documents disclosed in the September and
`
`October 2015 supplemental discovery disclosures. See Opinion
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`575, 8-9, 38. Dish has not yet decided whether it will decline to
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`conduct such additional discovery. Dish’s requests for attorney fees
`
`and expenses for additional discovery regarding the January 2016
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`Stauffer Analysis, including the January 25, 2016, deposition of
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`Richard Stauffer, is allowed. The Court will not bar the Plaintiffs
`Page 3 of 10
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`3:09-cv-03073-SEM-TSH # 624 Page 4 of 10
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`from conducting further analysis of the state of residence
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`associated with telephone numbers.
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`For the reasons stated of record in open Court, the Court ruled
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`as follows:
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`RELEVANT TIME PERIOD FOR DISCOVERY
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`The time period of additional discovery shall cover the time
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`period from April 2010 to January 2016 (Time Period).
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`RELEVANT SCOPE OF DISCOVERY
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`
`
`
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`Supplemental Injunctive Relief Discovery
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`The scope of discovery for injunctive relief shall include the
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`following for the Time Period (hereinafter referred to as
`
`Supplemental Injunctive Relief Discovery):
`
`*
`
`All telemarketing call records, with all available data
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`fields.
`
`*
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`Entity-specific Do-Not-Call list(s) for Dish and its
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`Retailers.
`
`*
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`Dish’s Established Business Relationship (EBR) Data
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`including any information from which Dish determines
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`whether it has an EBR, such as inquiries and leads and
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`dates, current customers, former customers, customer
`Page 4 of 10
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`3:09-cv-03073-SEM-TSH # 624 Page 5 of 10
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`termination dates, last payment dates, and activation
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`dates; and
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`*
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`Records related to telemarketing compliance, including
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`
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`lead lists, documents related to the creation of calling
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`lists scrubbing requests, scrubbing receipts, documents
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`related to consumer complaints and investigations into
`
`and responses to those complaints, audits, and any audit
`
`related documents.
`
`Supplemental Stauffer Discovery
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`
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`
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`The scope of discovery for matters related to the January 2016
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`Stauffer Analysis (collectively referred to hereinafter as
`
`Supplemental Stauffer Discovery):
`
`*
`
`The data underlying January 2016 Stauffer Analysis
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`contained in databases maintained by Stauffer’s
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`employer PossibleNOW, Inc.
`
`*
`
` Documents in Dish’s possession that contain
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`information regarding the residential addresses
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`associated with the telephone numbers contained in the
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`Dish 2007-2010 calling records.
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`
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`Page 5 of 10
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`3:09-cv-03073-SEM-TSH # 624 Page 6 of 10
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`Dish objects to allowing discovery of consumer addresses in its
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`records. The objection is overruled. The Court explained during
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`the bench trial that the Court allowed additional discovery was in
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`order to develop a complete record with all relevant information:
`
`THE COURT: Well, I have bent over backwards to
`try to allow everybody to disclose and have extensions of
`time, and make sure both sides got all the information.
`But I’m the trier of fact and I need as much . . .
`information as I can get . . . to decide this case.
`
`Stauffer Transcript Excerpt, at 838. The Court further determined
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`for reasons stated of record at the February 17 Hearing that the
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`Plaintiffs’ prior discovery requests sought information in Dish’s
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`possession about addresses associated with telephone numbers on
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`calling records. Based on the testimony of Dish’s witnesses at the
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`bench trial, particularly Russell Bangert and Joey Montano, the
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`addresses in Dish’s possession also appear to be the best evidence
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`to identify the illegal calls that Dish made to residents of the State
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`Plaintiffs. Dish’s records on addresses associated with the
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`telephone numbers listed on Dish 2007-2010 calling records are,
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`therefore, within the scope of the Supplemental Stauffer Discovery.
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`Page 6 of 10
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`3:09-cv-03073-SEM-TSH # 624 Page 7 of 10
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`SCHEDULE OF PROCEEDINGS
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`
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`The schedule for discovery deadlines, the date for the trial on
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`injunctive relief and additional matters related to the Stauffer
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`January 2016 Analysis, and requests for fees and expenses are as
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`follows:
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`March 4, 2016
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`Dish and Plaintiffs to propound fact discovery, including third-party
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`subpoenas, regarding the Supplemental Stauffer Discovery.
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`March 28, 2016:
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`Dish to produce via secure FTP all telemarketing call records with
`
`all available data fields for the Time Period. This includes Dish’s
`
`entity specific Do-Not-Call lists and EBR Data for Dish and its
`
`Retailers (including any information from which Dish determines
`
`whether it has an EBR, such as inquiries and leads and dates,
`
`current customers, former customers, customer termination date,
`
`last payment dates, and activation dates).
`
`April 4, 2016
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`Dish to produce via secure FTP all other records relating to
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`telemarketing compliance for the Time Period for both Dish and its
`
`retailers. This will include records related to telemarketing
`Page 7 of 10
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`3:09-cv-03073-SEM-TSH # 624 Page 8 of 10
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`compliance, including lead lists, documents related to the creation
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`of calling lists, scrubbing requests, scrubbing receipts, audits, and
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`any audit related documents.
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`April 11, 2016
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`Dish to produce documents concerning consumer complaints and
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`investigations into and responses to those complaints for the Time
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`Period.
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`April 25, 2016
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`Plaintiffs to produce any expert reports related to Supplemental
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`Injunctive Relief Discovery; and Dish and the Plaintiffs to respond
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`to the opposing parties’ Supplemental Stauffer Discovery.
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`May 23, 2016
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`Dish to produce any responsive experts report related to
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`Supplemental Injunctive Relief Discovery; and Dish to complete
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`depositions, if any, related to the Supplemental Stauffer Discovery.
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`June 20, 2016
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`Plaintiffs to produce any rebuttal expert reports related to the
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`Supplemental Injunctive Relief Discovery.
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`Page 8 of 10
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`3:09-cv-03073-SEM-TSH # 624 Page 9 of 10
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`June 27, 2016
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`Dish to produce any expert reports related to the Supplemental
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`Stauffer Discovery, including expert reports related to the Stauffer
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`January 2016 Analysis.
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`August 8, 2016
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`Close of supplemental discovery, including expert depositions.
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`Tuesday, October 25, 2016 at 9:30 a.m.
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`Permanent injunction hearing and hearing on additional evidence
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`regarding the Stauffer January 2016 Analysis.
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`November 21, 2016
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`Plaintiffs to submit their requests for reasonable expenses and
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`attorney’s fees for Supplemental Injunctive Relief Discovery. Dish
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`to submit its request for reasonable expenses and attorney’s fees for
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`Supplemental Stauffer Discovery, including the attorney’s fees and
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`expenses incurred in preparing for and taking the January 25,
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`2016 deposition of Mr. Stauffer.
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`December 5, 2016
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`Deadline to object to requests for attorney’s fees and expenses.
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`Page 9 of 10
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`3:09-cv-03073-SEM-TSH # 624 Page 10 of 10
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`IT IS THEREFORE SO ORDERED.
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`Enter: February 23, 2016
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`
`
`/s Sue E. Myerscough
`
`UNITED STATES DISTRICTJUDGE
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`
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`
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`Page 10 of 10
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