Case 3:15-cv-02069-K Document 157 Filed 09/13/15

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CITY OF DALLAS,
Plaintiff,
v.
DELTA AIR LINES, INC., SOUTHWEST
AIRLINES CO., VIRGIN AMERICA INC.,
AMERICAN AIRLINES, INC., UNITED
AIRLINES, INC., SEAPORT AIRLINES,
INC., UNITED STATES DEPARTMENT
OF TRANSPORTATION, AND THE
FEDERAL AVIATION
ADMINISTRATION

CIVIL ACTION NO. 3:15-CV-02069-K

Defendants.
DELTA AIR LINES, INC.S RESPONSE TO CITY OF DALLASS MOTION FOR
PROTECTIVE ORDER
In evaluating the merits of Deltas claims that Southwest, United, and the City have
breached their promises to accommodate competition at Love Field by permitting Southwest to
gain control of 18 of the airports 20 gates, it is plainly relevant that Southwest explicitly agreed
in the Five-Party Agreement that it would have only 16 of the 20 gates at Love Field. Equally
relevant is how that agreement came to be. Did one of the parties claim that 16 gates was the
maximum that Southwest could have before competition would be destroyed? Did Southwest
assert that it should have control of 16 gates, despite the obvious limits that would place on
competition at Love Field, because the accommodation provisions of the leases would ensure
that competition was protected? Did the City agree to Southwest having 16 gates because
Southwest, even then, was threatening the City that it would take its corporate assets elsewhere if
the City did not acquiesce in Southwest having control of Love Field?

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Both Southwest and Delta accordingly served 30(b)(6) notices requesting information
regarding the formation of the Five Party AgreementSouthwest requested a witness on
Negotiations and execution of the Five Party Agreement, and Delta requested a witness on
All facts and information related to or concerning the process by which Southwest was
allocated 16 of 20 gates at the renovated Love Field terminal. Delta served a similar topic on
Southwest, which designated a witness on the topic, who testified on Friday about the topic
without controversy, while the City was present.
Yet the City somehow came to the conclusion that this plainly relevant topic is so
irrelevant that Delta and Southwest should not even be permitted to depose the Citys witness
about it. Southwest, unsurprisingly, has acquiescedafter all, such discovery is far more likely
to harm Southwest than to help it, given that any evidence of why Southwests control over Love
Field was limited would bolster Deltas position that Southwests blocking of Deltas
accommodation request is anticompetitive, contrary to the Citys competition plans, contrary to
the Lease Agreements, and contrary to federal law. Yet even though Delta unambiguously
advised the City that it would not abandon this directly relevant topic on September 6, the City
waited until late Friday afternoon, 3 days before the deposition, to file its emergency motion
for relief.

The Court should deny the motion and direct the City to provide the relevant

testimony requested by Delta.

The Citys objection to Deltas noticed topic pertaining to document collection is equally
misplaced. The Citys document production has been slow, with documents coming in as
recently as yesterday. Delta acknowledges, of course, that parties can and should produce newly
found documents as those documents are identified, and would have been neither surprised nor
concerned if the City had produced a few additional documents after the Court-ordered deadline.

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But in fact, the City, like Southwest, produced only approximately 30% of the pages that it has
produced to date by the deadline. And just this past Friday, the City advised that an additional
significant number of documentsperhaps numbering in the thousandsare still forthcoming,
even though two depositions have already occurred and the Citys 30(b)(6) deposition is
scheduled for tomorrow. As a result, Delta seeks through its 30(b)(6) topic on document
collection to understand whether the documents it has received are the full universe to which it is
entitled, and what, if any, categories of documents remain to be searched and produced. Because
the deposition of the City will likely be continued in the week of September 21, Delta does not
object to designating the document collection as an issue for that later deposition.
ARGUMENT
I.

The City Must Present a Witness To Testify to How Southwest Was Allocated 16
Gates at the Remodeled Love Field.
Perhaps the starting place for the current litigation is the Five-Party Agreement, which

was signed by Southwest Airlines, American Airlines, the City of Dallas, the City of Fort Worth,
and the DFW International Airport Board in 2006. The Five-Party Agreement was an attempt by
local players to resolve, among other things, the future of operations at Love Field. The parties
agreed to reduce Love Field from its existing 32 gates to 20 gates. They further agreed that
Southwest would receive 16 of those gates, and that for every gate (up to 8) it took at DFW, it
would have to relinquish a gate at Love Field. In addition, the parties agreed to seek the
enactment of legislation that would eliminate the limitations on domestic destinations imposed
on Love Field by the Wright Amendment. All of these provisions have been addressed by
parties to this case as potentially relevant to the disposition of the parties claims.
The City objects to Deltas topic of All facts and information related to or concerning
the process by which Southwest was allocated 16 of 20 gates at the renovated Love Field

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terminal on the basis that it is purportedly irrelevant and that Delta has somehow impaired its
ability to prepare. Neither is correct.
As to the first, the City argues that because the Five Party Agreement has an integration
clause, it will be enforced as written and extrinsic evidence is not admissible. Mot. at 10. This
observation has no bearing on the present dispute, because Delta does not seek this discovery for
the purpose of enforcing the Five Party Agreement. Instead, Delta is seeking to obtain evidence
from the City regarding why the Five Party Agreement says what it does, so as to understand
whether the harm to competition that Southwest is now inflicting was contemplated at the time
of the Agreement, and whether the City contemplated that the Lease Agreements would prevent
that competitive harm. That, in turn, sheds light on the factual question of whether, in fact, what
Southwest has done in blocking out Delta from entering Love Field will destroy meaningful
competition at Love Field, and cause a violation of the federal grant assurances, which
Southwest promised in the Lease Agreement to comply with. Moreover, Southwests knowledge
and intent when it induced United to breach its contract are directly relevant to Deltas tortious
interference claim. See Southwestern Bell Tel. Co. v. John Carlo Texas, Inc., 843 S.W.2d 470,
472 (Tex. 1992).
Indeed, under the liberal standards of Rule 26, as the City concedes, requested discovery
need not even be itself relevant; it must only be reasonably calculated to lead to the discovery of
admissible evidence. Fed. R. Civ. P. 26(b)(1). At a minimum, the designated topic, with its
focus on the Citys and Southwests knowledge of considerations that related to the Five Party
Agreement, is likely to lead to other relevant topics of investigation.
The Citys alternative complaintthat Delta has impeded the Citys ability to prepare a
witness to respond to questions about the topic 1simply makes no sense. In fact, the City

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fails to identify a single fact in that section that has any apparent relationship to impeding the
Citys testimony.1 The Citys real argument appears to be that because one of Gibson Dunns
attorneys defended the City a decade ago in an antitrust matter involving the Five Party
Agreement while at his former firm, that somehow disqualifies Delta from now inquiring into
any issue touching on the agreement. Yet the City reached an agreement on this issue months
ago that in no way impaired Deltas ability to discovery on this central issue, and the Citys new
revival of these manufactured concerns simply has nothing to do with whether facts regarding
the Five Party Agreement should be discoverable.2 Certainly the City cites no authority that
suggests that a party may not discover information relevant to a case because an attorney not
appearing in the case previously worked on topics related to the discovery request, much less that
it can do so when there is no conceivable prejudice from the prior representation. Indeed, this is
plainly not even the Citys real reasoningif it were the identity of Deltas lawyers that was
problematic, the City would have had no need to also oppose Southwests identification of a
similar topic. Instead, the Citys vague suggestions of wrongdoing or that disqualification is
warranted are no more than baseless smears and threats.
The City appears to argue that it should not have to produce a witness on this topic
because those who were most knowledgeable about the topic no longer are officers or employees
of the City. Of course, Rule 30(b)(6) has never been understood to have an exception for cases
1

Elsewhere in its brief, the City suggests that Mr. Walters former firm did not provide files in a timely fashion
to the City. Dkt. 154, at 7. Although the City claims that it has sought these files for months, it provides no
detail to or evidence for this claim, and in any event, Delta has no connection to or responsibility for the timing
of a document production by a firm that is not representing it in this case. Certainly Mr. Walters and Gibson
Dunn do not possess or have access to files relating to this previous matter or to the files of his former firm, and
that was communicated to the City months ago.

Under the agreement reached between the City and Mr. Walters, Mr. Walters agreed not to appear in the
litigation. The parties explicitly agreed that other attorneys at Gibson Dunn would continue to appear on behalf
of Delta in this case, and that Mr. Walters could continue to participate in discussions with the parties. No party
suggested that Delta agreed in any way to limit its discovery rights to resolve the Citys disqualification motion.

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where the most knowledgeable witnesses are no longer available to be a 30(b)(6) deponent.
United States v. Mass. Indus. Fin. Agency, 162 F.R.D. 410, 411-12 (D. Mass. 1995) (holding that
a party had to prepare an employee for a 30(b)(6) deposition even though there is no one
currently [in the partys employ] who has knowledge of the disputed events). Instead, the City
is required, as any other party would be, to designate a witness who can testify to the Citys
knowledge on this point. That it has decidedwell after it first became aware of the request
that doing so would be difficult is no excuse to refuse to provide relevant information. See
Cotton v. Costco Wholesale Corp., 2013 WL 389975, at *3 (D. Kan. July 24, 2013) (Costco
provides no estimate of how much time or cost it would take to produce a deponent qualified to
testify about these subjects. Costco simply has not shown that providing this testimony would
result in annoyance, embarrassment, oppression, or undue burden or expense justifying the entry
of a protective order.).
II.

The City Must Present a Witness To Testify to Its Document Production

The Citys contention that it should not have to explain its own document collection

efforts and document production is equally meritless.

The court has discretion to permit

discovery into document production when the evidence clearly suggests that a party has not
complied with its discovery obligations. In Ruiz-Bueno v. Scott, 203 WL 6055402, *4 (S.D.
Ohio Nov. 15, 2013), for example, the court allowed such discovery based on the fact that
plaintiffs concern about the volume of ESI appears to be reasonably grounded. Similarly, in
Johnson v. Ford Motor Co., 2015 WL 4137707, at *9 (S.D. W. Va. July 8, 2015), the court
allowed discovery into the reasonableness of [defendants] search for documents because the
plaintiffs doubts about the thoroughness of [defendants] document production and the method

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by which its employees have conducted the review of their records were sufficiently
corroborated.3
The City contends that such discovery must be closely scrutinized, particularly if there
is no threshold showing of wrongdoing. But here, Delta has more than adequate reason to justify
the very minimal burden of preparing a witness to explain what the City did to ensure that it
collected relevant documents. The bulk of the Citys document production occurred well after
the date agreed to by the City and embodied in the Courts Discovery and Scheduling Order in
this case, including a significant production as recently as Friday. Moreover, on Friday, the City
advised that more documents (perhaps thousands of them) were coming, though it could not say
when that would occur and acknowledged that it would likely be after the deposition of the City.
Delta needs to understand whether there are categories of documents that it has not received to
evaluate whether it even has all of the information it will use to make its case. See Johnson,
2015 WL 4137707, at *9. Delta is not asking for voluminous or extensive discovery into the
document collection process, only a witness to provide information on how the documents were
gathered, the thoroughness with which collections were performed, and the reasons for
continuing delaystopics for which the City could easily prepare an appropriate witness.
Delta also has reason to question that the Citys collection process has accurately
captured what the City purports to have attempted to collect. The City informed Delta that it had
searched documents from numerous custodians, including the Mayor and the City Manager. Yet
the document production does not reflect the documents that would be expected from those
custodians. For example, the email from Southwest CEO Gary Kelly to City Manager A.C.
3

Although the City suggests that Delta must prove that the City engaged in spoliation of evidence, that is false.
Indeed, discovery of document retention and disposition is not contingent upon a claim of spoliation or proof
of discovery abuses, and may be accomplished through a Rule 30(b)(6) witness. Johnson, 2015 WL 4137707,
at *9 (citing cases).

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Gonzalez that Delta cited in its counterclaim was produced as part of a longer chain showing that
it was forwarded to, and produced from, another custodian, but Delta has not received the
original message as received by the City Manager. This is a more than adequate showing to
justify the very limited burden of designating a witness to Deltas Topic 18. See Johnson, 2015
WL 4137707, at *9 (allowing discovery into discovery because Plaintiffs have identified
several instances in which document productions have been . . . incomplete or inconsistent.).4
Finally, the City complains that because the topic was added on Thursday, it is too late to
prepare a designee for Mondays deposition. But as the parties have discussed, the need for both
Southwest and Delta to depose the City means that both depositions will not be completed on
Monday. Southwest, which noticed the deposition first, will proceed first on Monday. On
Friday, the parties discussed how to address this issue and the Citys counsel suggested that
September 22 would likely be the most feasible day to continue the deposition. Delta has no
objection to postponing questioning into Topic 18 until the continuation of the deposition
currently anticipated as September 22.5 Indeed, Delta offered to postpone discussion of Topic 18
when the City called to confer on this motion. Accordingly, the City cannot show a likelihood of
harm sufficient to justify a protective order.
CONCLUSION
For the reasons stated herein, the Court should deny the Citys emergency motion for
protective order.
4

The City contends that it may have to designate an attorney or paralegal to answer questions about Topic 18 and
that depositions of attorneys are disfavored. Mot. at 15. But nothing requires the City to choose an attorney to
serve as its witness (as even it concedes, by noting that a paralegal might be an appropriate designee). A party
cannot avoid a legitimate area of inquiry simply by selecting an attorney as its corporate designee. Johnson,
2015 WL 437707, at *10.

Although the City characterizes a discussion of its document process as highly burdensome, Delta is willing to
meet and confer over the scope of the topic to minimize this supposed burden. For example, Delta is not
seeking, through this topic, testimony regarding the technical procedures that the discovery vendors employ.

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DATED: September 13, 2015

Respectfully submitted,
/s/ William B. Dawson
William B. Dawson
SBN 05606300
Karl G. Nelson
SBN 14900425
Ashley E. Johnson
SBN 24067689
Russell H. Falconer
SBN 24069695
GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201-6911
Telephone: (214) 698-3100
Facsimile: (214) 698-3400
wdawson@gibsondunn.com
knelson@gibsondunn.com
ajohnson@gibsondunn.com
rfalconer@gibsondunn.com
Kenneth P. Quinn
DC Bar No. 495423
Jennifer E. Trock
DC Bar No. 486098
PILLSBURY WINTHROP SHAW PITTMAN
1200 Seventeenth Street NW
Washington, DC 20036
(202) 663-8898
kenneth.quinn@pillsburylaw.com
ATTORNEYS FOR DELTA AIR LINES, INC.

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CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of September, 2015, a true and correct copy of the
foregoing motion was served via the Courts CM/ECF System upon all counsel of record.
/s/ William B. Dawson
William B. Dawson

101993480.3

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