Dallas Emergency Motion For Protective Order

Case 3:15-cv-02069-K Document 154 Filed 09/11/15
Page 1 of 21 PageID 4211
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CITY OF DALLAS,
Plaintiff,
v.
DELTA AIR LINES, INC., et al.,
Defendants.
Civil Action No. 3:15-cv-02069-K
CITY OF DALLAS EMERGENCY MOTION FOR PROTECTIVE ORDER

REGARDING 30(b)(6) DEPOSITION TOPICS NOS. 1 AND 18
OFFICE OF THE CITY ATTORNEY
CITY OF DALLAS, TEXAS
WARREN M.S. ERNST
CITY ATTORNEY
By
s/ Peter B. Haskel
CHARLES ESTEE
Assistant City Attorney
State Bar of Texas No. 06673600
charles.estee@dallascityhall.com
PETER B. HASKEL
Executive Assistant City Attorney
peter.haskel@dallascityhall.com
STACY JORDAN RODRIGUEZ
stacy.rodriguez@dallascityhall.com
7BN Dallas City Hall
1500 Marilla Street
Dallas, Texas 75201
Telephone 214/670-3519
Telecopier 214/670-0622
ATTORNEYS
DALLAS
FOR
PLAINTIFF,
CITY
OF
TABLE OF CONTENTS
I.
INTRODUCTION................................................................................................... 1
II.
FACTS ..................................................................................................................... 3
III.
ARGUMENT AND AUTHORITIES .................................................................... 9
A.
Scope of Discovery Under Rule 26 ........................................................................ 9
B.
The Court should quash topics 1 and 18 because they are improper. ............. 10
1.
Topic 1 is beyond the permissible scope of discovery because it is not
reasonably calculated to lead to the discovery of admissible evidence. ..................... 10
2.
Delta has impeded the Citys ability to prepare a witness to respond to
questions about the topic 1 (the Five Party Agreement negotiations)........................ 11
3.
Testimony regarding topic 18 is improper discovery on discovery, is overly
broad, unduly burdensome, and harassing to the City, and the information
requested has already been provided. ........................................................................... 12
a.
Topic 18 seeks irrelevant discovery on discovery. .................................. 12
b. The burden on the City to prepare a witness on topic 18 far outweighs any
benefit the testimony may have to Delta................................................................ 14
c. Topic 18 is moot because the City has already provided Delta with
detailed information regarding its document collection and production. .......... 15
IV.
CONCLUSION AND PRAYER .......................................................................... 15
TABLE OF AUTHORITIES
Cases
Barker v. Roelke, 105 S.W.3d 75 (Tex.App.--Eastland 2003, pet. denied) .................................. 13
Burka v. U.S. Dept. of Health & Human Servs., 87 F.3d 508 (D.C. Cir. 1996) ........................... 12
Fish v. Tandy Corp., 948 S.W.2d 886 (Tex.App.--Fort Worth 1997, pet. denied)....................... 13
Freedman v. Weatherford Intll Ltd., 2014 WL 4547039 (S.D.N.Y. Sept. 12, 2014) .................. 16
In re: Jemsek Clinic, P.A., 2013 WL 3994666, 2013 Bankr. LEXIS 3121 (Bankr. W.D.N.C.
2013) ......................................................................................................................................... 16
Love Terminal Partners, L.P. v. City of Dallas, 527 F. Supp. 2d 538 (N.D. Tex. 2007) ............. 13
Martin v. Allstate Ins. Co., 292 F.R.D. 361 (N.D. Tex. 2013) ..................................................... 16
Rogers v. FritoLay, Inc., 611 F.2d 1074 (5th Cir.), cert. denied, 449 U.S. 889 (1980) ............. 14
Sun Oil Co. v. Madeley, 626 S.W.2d 726 (Tex. 1981) ................................................................. 13
Theriot v. Parish of Jefferson, 185 F.3d 477 (5th Cir. 1999) ....................................................... 18
Yerger v. Liberty Mut. Group, Inc., 2012 WL 4424017 (E.D.N.C. Sept. 24, 2102) .................... 12
Statutes
Wright Amendment Reform Act of 2006, Pub. L. 109-352, 120 Stat. 2011 (2006) ...................... 8
Rules
Fed. R. Civ. P. 26 (b)(1).................................................................................................... 12, 13, 16
Fed. R. Civ. P. 26(c)(1)(D) ........................................................................................................... 12
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CITY OF DALLAS,
Plaintiff,
v.
DELTA AIR LINES, INC., et al.,
Defendants.
Civil Action No. 3:15-cv-02069-K
CITY OF DALLAS EMERGENCY MOTION FOR PROTECTIVE ORDER

REGARDING 30(b)(6) DEPOSITION TOPICS NOS. 1 AND 18
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff City of Dallas (the City) hereby submits its Emergency Motion for Protective
Order Regarding Topic Nos. 1 and 18 of Defendant Delta Airlines, Inc.s (Delta) Second
Amended Notice of Deposition of the City of Dallas Pursuant to Fed. R. Civ. P. 30(b)(6)
(Deltas Notice).
I.
INTRODUCTION
In this lawsuit, in which the critical facts are not in dispute, and resolution of the case
turns on legal issues rather than factual ones, the parties have already expended vast resources
during expedited discovery, and will undoubtedly incur even more expenses while discovery
continues. But rather than using the parties and the Courts resources to focus on the merits of
the case, Delta seeks testimony from a City representative regarding two non-merits based
topics: the negotiations and circumstances leading to the Five Party Agreement, and the Citys
document collection efforts and document production in this litigation. These topics are outside
the scope of permissible discovery for multiple reasons and are unrelated to the merits of the
parties claims, counterclaims, and defenses.
Citys Emergency Motion for Protective Order
Page 1 of 21
Therefore, the City moves for a protective order on two of the 18 topics in Deltas
Notice:
Topic 1, which seeks testimony regarding [a]ll facts and information related to or
concerning the process by which Southwest was allocated 16 of 20 gates at the
renovated Love Field terminal; and
Topic 18, which seeks testimony regarding [d]ocument collection efforts and
document collection in connection with the Lawsuit.
Both of these topics are improper. With respect to topic 1, the process by which
Southwest was allocated gates at Love Field, the testimony sought is not reasonably calculated to
lead to the discovery of admissible evidence and thus is beyond the proper scope of discovery. It
is undisputed that Southwests gate allocation was negotiated as part of the Five Party
Agreement and was later incorporated into the Wright Amendment Reform Act (WARA).
Neither the Five Party Agreement nor WARA are ambiguous, and evidence regarding the
parties intent and negotiations is irrelevant and inadmissible. Further, it would be unfair,
harassing, oppressive, and unduly burdensome for Delta to inquire into such matters when one of
its lawyers previously represented the City in connection with these very issues and was the
subject of a motion for disqualification by the City. And Delta has impeded the Citys
preparation for the 30(b)(6) deposition by putting the City in the untenable position of needing to
rely on the records of its former attorney in order to prepare, records which were only produced
to the City (after months of asking for them) two business days before the scheduled deposition.
Topic 18 is similarly objectionable because the topic is overly broad, unduly burdensome,
and seeks information that is irrelevant and not reasonably calculated to lead to the discovery of
admissible evidence. This topic does not relate, in any way, to a claim, counterclaim, or defense
Page 2 of 21
of any party, and as such does not seek discovery on a relevant subject matter as required by Fed.
R. Civ. P. 26. Delta has not alleged, and has no evidence to support, a claim of either spoliation
of evidence by the City or of inadequate document production. Furthermore, topic 18 is also
moot because the City has already provided information about its document collection and
production to Delta, including its search terms, custodian list, date range, and items searched.
Finally, topic 18 was a last minute addition to the deposition notice on Thursday afternoon,
September 10, when the deposition is scheduled for Monday morning, September 14, leaving the
City inadequate time to prepare a witness for such testimony.
II.
1.
FACTS
On September 3, 2015, counsel for the City, Delta, and Southwest agreed on a
schedule for the depositions of corporate representatives. The Citys representative was
scheduled to be deposed on Monday, September 14, 2015. On September 4, 2015 Delta served
the City with a notice of deposition under Fed. R. Civ. P. 30(b)(6) which included as designated
topic 1 [a]ll facts and information related to or concerning the process by which Southwest was
allocated 16 of 20 gates at the renovated Love Field terminal. App. at 0001-11.1 The notice
has since been amended twice, but Delta has refused the Citys requests to abandon topic 1.
Delta served its second amended notice for the 30(b)(6) deposition on the afternoon of
September 10, 2015. App. at 0012-22. As made clear by the facts described below, that gate
allocation was negotiated as part of the Five Party Agreement in 2006.
2.
The Five Party Agreement appears in several places in the record, including as a
certified official record under seal of the City to which no party has objected contained in Exhibit
4 of the Appendix to the Citys Original Complaint. (ECF 1 at 60 et seq.).
Co-Defendant Southwest Airlines, Co. (Southwest) served the City with a notice that included a related
Rule 30(b)(6) topic but through conference Southwest has voluntarily withdrawn that topic.
Page 3 of 21
3.
Delta admitted the following allegations in its Answer (ECF 66) to the Citys
Original Complaint (ECF 1):

32. [1] On or about July 11, 2006, the City of Dallas, the City of Fort
Worth, the Dallas-Ft. Worth International Airport Board, Southwest, and
American entered into an agreement (referred to as the Five Party Agreement). .
. . [4] Southwest agreed not to operate from DFW Airport unless it surrendered a
Love Field gate, up to eight gates, for each DFW gate that it acquired. [5] Flight
operations were limited to 6:00 a.m. to 11:00 p.m. and no international flights
would originate from Love Field. [6] The number of gates at Love Field would be
reduced from the then existing 32 gates to 20. [7] The agreement also stated, To
the extent a new entrant carrier seeks to enter Love Field, [the City] will seek
voluntary accommodation from existing carriers but if an agreement was not
reached then the City agreed to require the sharing of any preferential lease
gates, pursuant to the terms of existing lease agreements. (Five Party Agreement,
para. 1.b.)
(ECF 66 at 16-17)2
Deltas answer denied the allegations in the same paragraph of the
Complaint that:
[2] The underlying principle of the Five Party Agreement was to resolve the
manner in which service could be provided at Love Field in the future. [3] The
Five Party Agreement provided that Southwest would obtain preferential use of
16 gates, American would obtain preferential use of two gates, and ExpressJet
Airlines, Inc. (ExpressJet) would obtain preferential use of two gates.
(ECF 66 at 16.) However, these allegations cannot be in genuine dispute given the terms of the
Five Party Agreement (ECF 1 at 60, et seq.), particularly the language in paragraph 3.b of the
agreement (ECF 1 at 73), and in footnote 2 of the Joint Statement attached to the City of Dallas
version of the Joint Resolution authorizing the Five Party Agreement (ECF 1 at 67), respecting
preferential gate use allocation and accommodation, which was incorporated by reference into
the Five Party Agreement. (ECF 1 at 72 (final Whereas clause.)) The preferential gate and
accommodation provisions of the Five Party Agreement, along with most of the agreement, were
Love Field refers to Dallas Love Field, a City-owned airport in Dallas, Texas.
Page 4 of 21
later incorporated into the Wright Amendment Reform Act of 2006, Pub. L. 109-352, 120 Stat.
2011 (2006) (WARA) (ECF 1 at 56-59) and into the essentially identical provisions of the
Love Field gate leases of both Southwest (ECF 52-5) and United Airlines, Inc. (United). (ECF
1 at 18)
4.
The Five Party Agreement contains a clear integration clause:
17. ENTIRE AGREEMENT. This Contract embodies the complete agreement of

the Parties hereto relating to the matters in this Contract; and except as otherwise
provided herein, cannot be modified without written agreement of all the Parties,
to be attached to and made a part of this Contract.
(ECF 1 at 80 ( 17))
5.
The Five Party Agreement required the parties to agree to seek the enactment of
legislation to allow for the full implementation of this Contract amending the Wright
Amendment and ultimately effect its repeal . . . . (ECF 1 at 72) The Five Party Agreement
further provided that it would become null and void if Congress did not enact legislation by
December 31, 2006. (ECF 1 at 77) WARA essentially incorporates the gate allocations in the
Five Party Agreement as federal law. WARA 5(a). (ECF 1 at 57)3
6.
As detailed at length in the Citys Emergency Motion for Disqualification (ECF
18) of attorney Robert C. Walters and related Appendix (ECF 19), Walters, a Delta attorney, was
extensively involved in representing the City in litigation following the Five Party Agreements
Section 5(a) of WARA provides in full:

(a) IN GENERAL.-The city of Dallas, Texas, shall reduce as soon as practicable, the number of gates available
for passenger air service at Love Field to no more than 20 gates. Thereafter, the number of gates available for
such service shall not exceed a maximum of 20 gates. The city of Dallas, pursuant to its authority to operate
and regulate the airport as granted under chapter 22 of the Texas Transportation Code and this Act, shall
determine the allocation of leased gates and manage Love Field in accordance with contractual rights and
obligations existing as of the effective date of this Act for certificated air carriers providing scheduled
passenger service at Love Field on July 11, 2006. To accommodate new entrant air carriers, the city of Dallas
shall honor the scarce resource provision of the existing Love Field leases.
Page 5 of 21
execution, including defending the City from attacks on gate allocations based in substantial part
on the gate allocations arising under the agreement and later incorporated into WARA.
7.
The disqualification motion and appendix further establish that Walters also led
the Citys efforts for congressional adoption of WARA, including the gate allocation provisions.
As a result of that disqualification motion, Walters withdrew from this case as litigation counsel,
but his firm is still lead counsel for Delta. (ECF 45, 46, 47, 48) Walters himself continues to act
on behalf of Delta, ostensibly for the limited purpose of furthering settlement with Southwest
(ECF 121).
During his representation of the City, Walters filed briefs supporting motions to
dismiss claims against the City in a civil action in this Court, Love Terminal Partners, L.P. et al. v.
City of Dallas et al., Cause No. 3:06-cv-01279 (N.D. Tex.) (Love Terminal Partners),4 that
asserted, among other arguments that are inconsistent with Deltas current position and hostile to
the Citys:
a.
As Congress recognized, its enactment of [WARA] will greatly benefit not only
the citizens in the Dallas-Fort Worth area, but also millions of consumers throughout
the nation who use Love Field and the Dallas-Fort Worth International Airport. The
legislation has and will continue to promote airline competition in North Texas, thus
enabling consumers to save hundreds of millions of dollars in air fares each year.
Love Terminal Partners (ECF 33-2 at 8)
b.
Significantly, Section 5(a) [of WARA] mandates Dallas to reduce the number of
gates at Love Field from 32 to 20, and requires Dallas to determine the allocation of
leased gates and manage Love Field in accordance with [the Five Party Agreement]
entered into by the parties. Id. at 12.
The City asks the Court to judicially notice the matters of record in the Courts Love Terminal
Partners case.
Page 6 of 21
c.
[WARA] further provides that the FAA may not take any actions inconsistent
with [the Five Party Agreement] or challenge the legality of its provisions. Id. at 1314.
d.
[WARA] also compels the City of Dallas to (a) reduce the number of gates at
Love Field to 20; (b) allocate those gates and manage Love Field in accordance with
[the Five Party Agreement]; and (c) enforce provisions of the existing Love Field
leases, including leases with American and Southwest. Love Terminal Partners (ECF
58 at 13)
8.
In addition, Walters pointed to the deletion of an antitrust savings clause
originally included in the bill that would eventually become WARA as a sign of clear
Congressional intent to confer immunity on the defendants for performing [the Five Party
Agreement] under Congressional mandate. Love Terminal Partners (ECF 58 at 29-30)
9.
The City has, for months, sought from its former attorney, and from the firm at
which he was partner when he represented the City, the files related to that representation and
only received them on Wednesday, September 9, 2015.5
This delay prejudiced the Citys
attempt to prepare witnesses to testify on Deltas gate allocation topic if preparation is required.
10.
There is no one still serving as an officer or employee of the City who was
directly involved in the negotiations over Southwests Love Field gate allocations. As the City
advised Delta, people who were involved and would have personal knowledge include former
Mayor Laura Miller and former City Attorney Thomas P. Perkins, Jr. Ironically, attorney
The firm on September 8, 2015, arranged to allow the City to retrieve relevant files. The City received 9
boxes of documents on the afternoon of September 9, 2015 and is reviewing the contents. Attorney Walters has just
advised the City that he has no relevant files.
Page 7 of 21
Walters is one of the most knowledgeable people about gate allocation issues who represented
the City.
11.
Any attempt to recruit former officials to testify as City representatives, or even to
debrief the Citys representative witness if they were willing to do either, would entail days of
document review and other preparation for which they would not be compensated. Under the
circumstances, this would amount to more than the reasonable inquiry required by Rule
30(b)(6).
12.
The Citys representative witness for the noticed 30(b)(6) deposition is Director
of Aviation Mark Duebner. His preparation time was limited, however, by the insistence of the
U.S. Department of Transportation that a senior City representative with authority over the
airport attend a meeting with senior federal agency personnel, Southwest, and Delta on Tuesday,
September 8, 2015 (the day after the Labor Day weekend) in the District of Columbia, without
lawyers and in person (not by telephone). Duebner is the only available City official with the
required credentials (although no City official has agreement authority), was invited by name,
and therefore was reluctantly made available for the meeting by the City. Federal agency
officials represented to the City that the talks would relate to settlement of both the instant civil
action and to a related FAA investigation.
13.
The City has produced documents to Delta and Southwest in this litigation as
follows: (1) on August 19, 2015, it produced 4,303 documents; (2) on August 25, 2015, it
produced 18,632 documents; and (3) on September 11, 2015, it produced 391 documents.
14.
On August 19, 2015, after reviewing the Citys objections and responses to its
request for production, Delta counsel sent a meet and confer letter to the Citys counsel listing
several issues for discussion. App. at 0023-27. In response, Citys counsel held two telephone
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conversations with Deltas counsel and sent a letter on August 31, 2015. App. at 0028-33. The
City voluntarily attached as Exhibit 1 to its response letter a list describing the search terms, date
range, custodians, and items searched in connection with its document productions. Then, on
September 3, 2015, Citys counsel and Deltas counsel exchanged emails with still more
information regarding the Citys document production. App. at 0034-35. The City has been
transparent with respect to its document production in this case and has answered every question
raised by Deltas counsel.
III.
ARGUMENT AND AUTHORITIES
A. Scope of Discovery Under Rule 26

The scope of discovery extends to any matter, not privileged, that is relevant to the
claim or defense of any party . . . Fed. R. Civ. P. 26 (b)(1) (emphasis added). Such a limitation
is axiomatic to permit discovery on issues unrelated to the claims or defenses presented in a
case would be to imprudently delay adjudication on the merits and squander the parties and the
courts time and resources. See generally Yerger v. Liberty Mut. Group, Inc., 2012 WL 4424017
(E.D.N.C. Sept. 24, 2102) (finding that discovery into matters other than the facts relating to the
claims and defenses of the case should not be permitted). And Rule 26 expressly allows a court,
upon showing of good cause, to issue an order forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to certain matters. Fed. R. Civ. P. 26(c)(1)(D).
That is, after consideration of the needs of the parties, the court may, in its discretion, deny
discovery completely, limit the conditions, time, place, or topics of discovery, or limit the
manner in which information is to be revealed. Burka v. U.S. Dept. of Health & Human Servs.,
87 F.3d 508, 517-18 (D.C. Cir. 1996). This includes issuing protective orders regarding
depositions.
Page 9 of 21
B. The Court should quash topics 1 and 18 because they are improper.
1.
Topic 1 is beyond the permissible scope of discovery because it is not

reasonably calculated to lead to the discovery of admissible evidence.
Pretrial discovery is broad but remains limited to seeking information that is reasonably
calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). Deltas
topic 1 seeks no such information. The Five Party Agreement had an integration clause, making
parol evidence of intent and negotiations leading to the agreement irrelevant and inadmissible
absent any showing of fraud or ambiguity. See Fish v. Tandy Corp., 948 S.W.2d 886, 898
(Tex.App.--Fort Worth 1997, pet. denied). The Texas parol evidence rule circumscribes the use
of extrinsic evidence when interpreting an integrated document. Sun Oil Co. v. Madeley, 626
S.W.2d 726, 731 (Tex. 1981). There is nothing ambiguous about the gate allocation provisions
of the Five Party Agreement or WARA. Nor is there the slightest indication of fraud or any
other pretext for invading the parol evidence rule. When, as here, a contract contains a merger or
integration clause, the contract's execution presumes that all prior negotiations and agreements
relating to the transaction have been merged into the contract, and it will be enforced as written
and cannot be added to, varied, or contradicted by parol evidence. Barker v. Roelke, 105 S.W.3d
75, 83 (Tex.App.--Eastland 2003, pet. denied).
WARA incorporated the gate allocation provisions of the Five Party Agreement. There is
nothing ambiguous about WARAs language regarding gate allocations.
Love Terminal
Partners, L.P. v. City of Dallas, 527 F. Supp. 2d 538, 558-59 (N.D. Tex. 2007). WARAs
meaning, therefore, must be ascertained from the plain language of the statute. Id. If there were
any textual ambiguities, which there are not, id., only then could the parties refer to legislative
history in congressional records. But even then, post hoc recollections about negotiations and
intent would be incompetent, inadmissible and irrelevant. The retroactive wisdom provided by
Page 10 of 21
the subsequent speech of a member of Congress stating that yesterday we meant something that
we did not say is an ephemeral guide to history. Rogers v. FritoLay, Inc., 611 F.2d 1074, 1080
(5th Cir.), cert. denied, 449 U.S. 889 (1980). Thus, no testimony from a City witness on this
issue could lead to the discovery of admissible evidence.
2.
Delta has impeded the Citys ability to prepare a witness to respond to

questions about the topic 1 (the Five Party Agreement negotiations).
There is nobody left with the City who had an active role in negotiating the Five Party
Agreement, so any Rule 30(b)(6) deposition testimony would be based on documents that the
City has already produced to the other parties and on the witness discussions with former City
officials, employees, and lawyers, each of whom Southwest and Delta have the same opportunity
to contact as does the City, subject to the Citys assertions of privilege. The City will direct its
representative witness not to answer questions on this or other topics that would disclose
attorney-client privileged communications. It also will direct any former attorneys not to
disclose privileged or, except under subpoena, confidential information of the City.
Attorney Robert Walters, now of Gibson Dunn, represented the City while at his former
law firm regarding the Five Party Agreements enforceability against anti-trust and other
challenges as the Citys lead outside litigation counsel. He and his firm now represent Delta in
this litigation (though he has withdrawn from the case, he still represents Delta regarding certain
issues including possible settlement with Southwest). Walters should not have disclosed any
confidential information in connection with that representation to Delta or to any other Delta
lawyer, or provided any advice contrary to the Citys interests about that agreement. The
undesirability of depending on our former lead lawyer who now represents an adverse party
(based on Deltas pending counterclaims (ECF 144)) on the same topic as the former
representation, makes it highly unfair and oppressive for Delta, in particular, to inquire into the
Page 11 of 21
agreement. Deltas new counterclaims, based in part on its gloss of the Five Party Agreement,
also call into question whether Gibson Dunn can continue to represent Delta at all in the
litigation.
Under the circumstances, it would be oppressive, harassing, unfair, and unduly
burdensome to require the Citys representative witness to testify about Southwests gate
allocation in the Five Party Agreement in response to questions from either Southwest or Delta.
3.
Testimony regarding topic 18 is improper discovery on discovery, is overly

broad, unduly burdensome, and harassing to the City, and the information
requested has already been provided.
Topic 18 in Deltas Notice seeks testimony from the City regarding [d]ocument
collection efforts and document production in connection with the Lawsuit. App. at 0022. The
City objects to producing a witness to testify regarding topic 18 and a protective order is
warranted for several reasons. First, topic 18 seeks quintessential discovery on discovery that
is unrelated to a claim, counterclaim, or defense of any party and is therefore outside the proper
scope of discovery. Second, it would be harassing and unduly burdensome for the City to have to
prepare a representative witness to testify regarding its document collection and production
efforts when there is no allegation of spoliation of evidence or inadequate document production
and when the topic was added one business day before the scheduled deposition. Third, topic 18
is moot because the City has already provided information regarding its document collection and
production to Delta.
a. Topic 18 seeks irrelevant discovery on discovery.
A protective order is justified because topic 18 is an attempt to engage in a sideshow

regarding the Citys conduct in discovery, which is completely unrelated to the merits of the
Page 12 of 21
parties claims and defenses. Such non-merits based discovery is deemed discovery on
discovery, and, as one court said, should be closely scrutinized in light of the danger of
extending the already costly and time-consuming discovery process. Freedman v. Weatherford
Intll Ltd., 2014 WL 4547039, at *2 (S.D.N.Y. Sept. 12, 2014); see also Martin v. Allstate Ins.
Co., 292 F.R.D. 361, 364 (N.D. Tex. 2013) (holding that non-merits based 30(b)(6) deposition
topics on defendants document retention policies and defendants efforts in responding to
plaintiffs discovery were overbroad and irrelevant and denying motion to compel a deposition
on those topics); In re: Jemsek Clinic, P.A., 2013 WL 3994666, 2013 Bankr. LEXIS 3121 at *22
(Bankr. W.D.N.C. 2013) (noting that [v]arious courts have held that such non-merits based
discovery is improper when the requesting party has not made a threshold showing that
spoliation has already occurred and granting motion for protective order disallowing 30(b)(6)
topics relating to document collection and production efforts except as to narrower topics to
which the producing party did not object). Under Rule 26(b)(1), discovery is appropriate on any
matter, not privileged, that is relevant to the claim or defense of any party. Fed. R. Civ. P.
26(b)(1). Topic 18 improperly seeks discovery on discovery by implicating the Citys
document search, collection, and production process none of which relate to a claim or defense
in this matter. That is, topic 18 seeks testimony about how the City has conducted this litigation,
as opposed to the substantive issues involved in determining gate accommodations at Love Field.
On these grounds alone, a protective order is warranted.
The City understands its discovery obligations and has undertaken proper and appropriate
efforts in searching for and producing relevant and responsive information. The City has
produced over 109,483 pages of materials to date. In addition, as the City has maintained,
Page 13 of 21
resolution of this case turns on legal issues, not discoverable fact issues, and before the litigation
began all of the parties already had the relevant documents.
The City has also provided to Delta specific information, in response to Deltas inquiries,
about its document collection and production process, including its list of search terms,
document custodians, date range, and items searched. Delta has not made, and there is no basis to
support, an assertion that the City has not conducted a thorough search for responsive material. It
is inappropriate to require the City to provide a separate deponent on that topic. Requiring a
representative witness to prepare for and testify on topic 18 amounts to a needless and
inappropriate exercise into non-merits based discovery that is outside the bounds of Rule 26,
especially in light of the compressed schedule of this case.
b. The burden on the City to prepare a witness on topic 18 far outweighs
any benefit the testimony may have to Delta.
Not only does topic 18 seek non-merits based discovery on discovery, practically
speaking, it would be virtually impossible and therefore unduly burdensome for the City to
produce a single representative witness with knowledge concerning the entire spectrum of its
document collection and production process in connection with this litigation. The process of
identifying, collecting, and producing responsive documents includes a combination of people
the Citys attorneys, staff, the document custodians themselves, and discovery vendors, among
others. There is not one person that could adequately serve as a corporate representative, nor is it
feasible to educate a representative to testify regarding the entire search process. Plus, Delta
added topic 18 to its deposition notice late in the day on Thursday, September 10, just one
business day before the scheduled deposition of the City representative on Monday, September
14. The City could not comply with the notice by designating and preparing a witness in that
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time frame even if it did not object to the topic. Mark Duebner, the Citys designee on other
topics, would not be able to testify regarding topic 18. If the City were ordered to produce a
deponent to testify regarding its document collection and production process, the deponent may
have to be one of the Citys attorneys or paralegals. Courts generally disfavor ordering the
deposition of a partys attorney. See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 (5th Cir.
1999). As such, the burden on the City to comply with topic 18 far outweighs any potential
benefit to Delta, particularly when the City has already shared detailed information about its
document collection and production, as discussed below. Good cause exists for the issuance of a
protective order.
c. Topic 18 is moot because the City has already provided Delta with
detailed information regarding its document collection and production.
Finally, the Court should disallow topic 18 because the information sought regarding the
Citys document collection and production in this lawsuit has already been provided to Delta.
Citys counsel and Deltas counsel have exchanged at least two telephone calls, letters (App. at
0028-33), and emails (App. at 0034-35) in which the City has voluntarily shared the specifics of
its document collection and production. Moreover, ESI produced by the City in this case contains
metadata identifying document custodians and authors, among other things. In this context,
Deltas request for a 30(b)(6) deponent to testify regarding the Citys document collection and
production is moot, redundant of information already provided, and unjustified.
IV.
CONCLUSION AND PRAYER
For the foregoing reasons, the City requests that the Court grant its motion and enter a
protective order disallowing topics 1 and 18 in Deltas 30(b)(6) deposition notice to the City and
Page 15 of 21
topic 20 in Southwests 30(b)(6) notice to the City. The City also requests any further relief to
which it may be entitled.
Respectfully submitted,
OFFICE OF THE CITY ATTORNEY
CITY OF DALLAS, TEXAS
WARREN M.S. ERNST
CITY ATTORNEY
By
s/ Peter B. Haskel
CHARLES ESTEE
charles.estee@dallascityhall.com
PETER B. HASKEL
Executive Assistant City Attorney
peter.haskel@dallascityhall.com
STACY JORDAN RODRIGUEZ
stacy.rodriguez@dallascityhall.com
7BN Dallas City Hall
1500 Marilla Street
Dallas, Texas 75201
Telephone 214/670-3519
Telecopier 214/670-0622
ATTORNEYS
DALLAS
FOR
PLAINTIFF,
CITY
OF
CERTIFICATE OF CONFERENCE
I certify that on September 4, 2015, I conferred respecting the relief requested by
telephone with Kent Krabill, attorney of record for Southwest Airlines, Co., who advised that
his client would not ask the Citys representative witnesses about the Five Party Agreement at
the scheduled 30(b)(6) deposition and consented to the relief requested above, but represented
that if Delta were permitted to inquire into the Five Party Agreement, that Southwest would
Page 16 of 21
reserve the right to pose related questions, and on September 6, 2015, I conferred via telephone
with Karl Nelson, attorney of record for Delta Air Lines, Inc., respecting the relief requested in
the above motion, who advised that Delta opposed the relief requested.
A full agreement could not be reached. Therefore, the matter is submitted to the Court
for determination.
s/ Peter B. Haskel
PETER B. HASKEL
I certify that on September 11, 2015 I conferred by telephone with Karl Nelson, attorney
for Delta, about the relief requested in this motion regarding topic 18 in Deltas 30(b)(6)
deposition notice. Mr. Nelson advised that, to the extent that the Citys objection to topic 18 was
based strictly on the timing of the deposition, Delta would not oppose the relief requested and
would work with the City to schedule a different time for a witness to be deposed; but to the
extent that the Citys objection to topic 18 was based on other issues, Delta opposed the relief
requested in the motion. Because the Citys objection to topic 18 includes more than just the
timing of the notice, full agreement could not be reached and the motion is presented to the Court
for determination.
s/ Stacy Jordan Rodriguez
Stacy Jordan Rodriguez
Page 17 of 21
CERTIFICATE OF SERVICE
I hereby certify that on September 11, 2015, I electronically filed the foregoing
document with the Clerk of Court for the United States District Court for the Northern District of
Texas using the electronic case filing system of the Court. Service on all attorneys of record who
are Filing Users will be automatically accomplished through Notice of Electronic Filing.
s/ Peter B. Haskel
PETER B. HASKEL
Page 18 of 21

Dallas Emergency Motion For Protective Order

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Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 1 of 21 PageID 4211

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 3:15-cv-02069-K

CITY OF DALLAS EMERGENCY MOTION FOR PROTECTIVE ORDER

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 2 of 21 PageID 4212

ARGUMENT AND AUTHORITIES .................................................................... 9

Scope of Discovery Under Rule 26 ........................................................................ 9

Topic 18 seeks irrelevant discovery on discovery. .................................. 12

CONCLUSION AND PRAYER .......................................................................... 15

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 3 of 21 PageID 4213

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 4 of 21 PageID 4214

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 3:15-cv-02069-K

CITY OF DALLAS EMERGENCY MOTION FOR PROTECTIVE ORDER

Citys Emergency Motion for Protective Order

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 5 of 21 PageID 4215

Citys Emergency Motion for Protective Order

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 6 of 21 PageID 4216

Citys Emergency Motion for Protective Order

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 7 of 21 PageID 4217

Original Complaint (ECF 1):

Deltas answer denied the allegations in the same paragraph of the

Citys Emergency Motion for Protective Order

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 8 of 21 PageID 4218

The Five Party Agreement contains a clear integration clause:

17. ENTIRE AGREEMENT. This Contract embodies the complete agreement of

As detailed at length in the Citys Emergency Motion for Disqualification (ECF

Section 5(a) of WARA provides in full:

Citys Emergency Motion for Protective Order

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 9 of 21 PageID 4219

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 10 of 21 PageID 4220

In addition, Walters pointed to the deletion of an antitrust savings clause

This delay prejudiced the Citys

Citys Emergency Motion for Protective Order

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 11 of 21 PageID 4221

Any attempt to recruit former officials to testify as City representatives, or even to

Citys Emergency Motion for Protective Order

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 12 of 21 PageID 4222

ARGUMENT AND AUTHORITIES

A. Scope of Discovery Under Rule 26

Citys Emergency Motion for Protective Order

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 13 of 21 PageID 4223

Topic 1 is beyond the permissible scope of discovery because it is not

Citys Emergency Motion for Protective Order

Case 3:15-cv-02069-K Document 154 Filed 09/11/15

Page 14 of 21 PageID 4224