DirecTV, FTC Clash Over Discovery in ROSCA Fight

The FTC is accusing DirecTV of failure to preserve evidence, but the direct broadcast satellite company says the FTC's motion for sanctions under Rule 37 of the Federal Rules of Civil Procedure should be denied since it did produce or make available the materials in question, said a discovery letter brief (in Pacer) filed Thursday in U.S. District Court in San Francisco. The FTC said the lost evidence is an interactive website used in consumer surveys, almost all the thousands of consumer comparative tests DirecTV undoubtedly did on its website and past website analytics data. Thus the court should exclude any consumer survey evidence and analyses and any consumer comparative test evidence and DirecTV should be enjoined from relying on some analytics data. According to DirecTV, it "took sufficiently reasonable steps" to preserve and produce the relevant material, and repeatedly offered to make all web analytics data available, and in talking repeatedly with the FTC over the past six years about the scope of what could reasonably be preserved, the agency didn't object and sometimes endorsed the company's actions. "The only explanation for the motion [for sanctions] made in the middle of expert discovery it that it is a strategic ply to exclude expert work fundamental to the case rather than to seek redress for any real discovery wrong," said DirecTV. The agency is suing DirecTV under the Restore Online Shoppers' Confidence Act for allegedly not properly communicating early cancellation fee terms to subscribers (see 1503110042).