Behrend v. Comcast Corp.

248 F.R.D. 84, 2008 U.S. Dist. LEXIS 6827, 2008 WL 250373
CourtDistrict Court, D. Massachusetts
DecidedJanuary 16, 2008
DocketCiv.A. No. 07-mc-10224-PBS
StatusPublished
Cited by7 cases

This text of 248 F.R.D. 84 (Behrend v. Comcast Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Behrend v. Comcast Corp., 248 F.R.D. 84, 2008 U.S. Dist. LEXIS 6827, 2008 WL 250373 (D. Mass. 2008).

Opinion

ORDER ON PLAINTIFFS’ MOTION TO COMPEL

JOYCE LONDON ALEXANDER, United States Magistrate Judge.

On December 8, 2003, Plaintiffs, (collectively, “Behrend”), cable subscribers of the [85]*85Defendants, (collectively, “Comcast”), filed an antitrust class action in the United States District Court for the Eastern District of Pennsylvania alleging violations of Sections 1 (restraint of trade) and 2 (unlawful monopolization and attempted monopolization) of the Sherman Act. This Motion to Compel arises from non-party Greater Media, Inc.’s (“Greater Media”) efforts to withhold requested documents from production under claims of relevance, undue burden and expense, and attorney-client and work product privileges.

On September 13, 2007, Behrend filed its Motion to Compel Greater Media to produce subpoenaed documents. On October 5, 2007, the District Judge entered an Order granting the Motion to Compel. However, on October 10, 2007, Greater Media filed a Motion for Reconsideration of the ruling on the Motion to Compel. Subsequently, on October 20, 2007, the District Judge entered an order granting the Motion for Reconsideration and vacating the October 5, 2007 Order. On October 24, 2007, the District Judge referred the Motion to Compel third party Greater Media, Inc., to produce subpoenaed documents to this Court.

Behrend seeks to compel non-party Greater Media, to produce all documents responsive to a subpoena duces tecum. Behrend believes that Greater Media possesses relevant information pertaining to defendant Comcast’s alleged unlawful behavior that is the subject of the underlying litigation. Comcast stands accused of unlawfully monopolizing and attempting to monopolize, and unreasonably restraining trade in the Philadelphia and Chicago area cable markets through a series of acquisitions of, and market allocating swap agreements with, competitor cable companies. One example of Comcast’s alleged illegal activity is the 1999 acquisition of Greater Philadelphia Cablevision, Inc., at the time a subsidiary of Greater Media, resulting in additional cable subscribers to Comcast’s Philadelphia cluster. Incident to the underlying litigation, Behrend seeks to review documents relating to this acquisition.

On May 8, 2007, Behrend served Greater Media, a company that conducts business in the District of Massachusetts, with a subpoena duces tecum dated May 4, 2007. Soon after, on May 15,2007, Greater Media objected to the subpoena by letter. Since that time the parties have exchanged numerous written communications. Greater Media has refused to produce any documents responsive to the six document requests contained in the current version of the subpoena.1 Greater Media contends that its company is not equipped financially to undertake the task requested by Behrend.2 However, the moving party, Behrend, has offered to mitigate some of the costs by reviewing potentially responsive documents at Greater Media’s place of business or wherever the documents are stored. Further, Behrend proposes to undertake this review before Greater Media incurs the expense of a privilege review. As such, Behrend stipulates that the review will be subject to all of the protections contained in the existing Protective Order in the underlying litigation and will enter into an additional stipulation specifically preserving Greater Media’s privilege claims,' if any. Greater Media could then conduct a much smaller review of only culled documents, saving substantial resources. Despite this proposal, the parties cannot reach an agreement. Behrend, therefore, seeks to compel Greater Media, to produce the subpoenaed documents for inspection and copying. For the foregoing reasons, Behrend’s Motion to Compel is hereby GRANTED.

The First Circuit has recognized that “concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.” Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir.1998). Rule [86]*8645(c)(1) of the Federal Rules of Civil Procedure provides that “[a] party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” Fed.R.Civ.P. 45(c)(1). In addition, Rule 45(c)(2)(B) provides that “an order to compel production shall protect any person who is not a party ... from significant expense resulting from the inspection, copying, testing, or sampling commanded.” Fed.R.Civ.P. 45(c)(2)(B). When determining whether a subpoena duces tecum results in an undue burden on a party such factors as “the relevance of the documents sought, the necessity of the documents sought, the breadth of the request ... expense and inconvenience” can be considered. Demers v. LaMontagne, No. Civ.A. 98-10762-REK, 1999 WL 1627978, at *2 (D.Mass. May 5, 1999). The main issue for this Court is whether Greater Media is required to pay for its own costs incurred responding to the subpoena duces tecum.3 Usually, absent an order compelling document production, a non-party bears its own production cost. See Boston Children’s Heart Found., Inc. v. Nadal-Ginard, No. Civ.A. 93-12539-REK, 1995 WL 17015062, at *2 (D.Mass. Aug. 23, 1995). “A non-party can be required to bear some or all of its expenses where the equities of a particular case demand it.” In re Honeywell Intern., Inc. Sec. Litig., 230 F.R.D. 293, 302-03 (S.D.N.Y.2003). Furthermore, in determining the cost allocation, courts consider three factors: (1) whether the non-party actually has an interest in the outcome of the case, (2) whether the non-party can more readily bear the costs than the requesting party, and (3) whether the litigation is of public importance. In re Exxon Valdez, 142 F.R.D. 380, 383 (D.D.C.1992).

In this matter, Behrend, as the moving party, contends that it has taken reasonable steps to avoid imposing undue burden or expense on Greater Media. See Fed.R.Civ.P. 45(c)(1). For example, Behrend narrowed the scope of the subpoena and agreed to additional protections to prevent waiver of privilege; offered to send staff members to review documents; and offered to pay reasonable copying cost. Behrend’s position is that Greater Media must absorb any other costs of compliance with the subpoena. Beh-rend maintains that such an arrangement is fair given: (1) Greater Media has an interest in the case because its interests are directly aligned with those of Comcast; (2) the cost of compliance to Greater Media under Beh-rend’s plan will be minimal; and (3) this litigation is a matter of public importance because it is a class action challenging the alleged illegal conduct of Comcast to eliminate and prevent competition in the cable industry in violation of the Sherman Act.

In contrast, Greater Media maintains that Behrend’s plan is not ideal because the requested documents may contain privileged information.

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Bluebook (online)
248 F.R.D. 84, 2008 U.S. Dist. LEXIS 6827, 2008 WL 250373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/behrend-v-comcast-corp-mad-2008.