Opinion
No. C-02-1786 JSW (EMC), Docket Nos. 316, 320, 321.
September 8, 2004
ORDER GRANTING IN PART AND DENYING IN PART VISA'S MOTIONS TO COMPEL
Visa filed three motions to compel which were heard before the Court on August 25, 2004. At the hearing, the Court provided the parties with some guidance and ordered them to meet and confer further in light of that guidance. On September 3, 2004, the parties filed a joint letter, indicating that many, although not all, of the discovery disputes had been resolved. See Docket No. 361 (joint letter of 9/3/04).
1. Document Requests to Concord and STAR Related to Competition
a. Concord Request No. 25
Concord Request No. 25 asks Concord to produce "[a]ll documents concerning any planned, anticipated, or possible impediments or obstacles to Visa's system improvements or product innovations, caused directly or indirectly by First Data, Concord or STAR, whether as a result of [1] intraprocessing, [2] the establishment of or planned establishment of a payment network that would compete directly with Visa, or [3] otherwise." Previously, Concord agreed to produce documents concerning impediments or obstacles caused by intraprocessing. During the meet and confer, Concord stated that it would also produce documents concerning impediments or obstacles caused by First Data, Concord, or STAR's establishment of a payment network that directly competes with Visa. Consequently, the dispute here is whether Concord should produce documents concerning impediments or obstacles resulting from other unspecified causes.
As the Court stated at the August 25 hearing, documents concerning impediments or obstacles are relevant only as they relate to an incentive on the part of First Data, Concord, and/or STAR not to cooperate with Visa. In line with its order regarding relevancy, dated October 9, 2003, the Court holds that in addition to those documents covered by the parties' agreement, supra, Concord should produce only those documents that explicitly or expressly refer to impediments or obstacles to Visa system improvements or product innovations.
b. Concord Requests Nos. 7 and 19; STAR Requests Nos. 10 and 22
Concord Request No. 7 and STAR Request No. 10 ask Concord and STAR respectively to produce "Planning Documents concerning First Data's, Concord's or STAR's present, past, future or prospective efforts, plans or intentions to compete with Visa as a payment network."
Concord Request No. 19 and STAR Request No. 22 ask Concord and STAR respectively to produce "[d]ocuments concerning the merger between Concord and [First Data] that concern . . . (2) plans to own, operate, or control a payment card system, payment services company, or electronic transactions company at the point of sale that would compete with Visa."
Again, these documents are relevant only as they relate to an incentive on the part of First Data, Concord, and/or STAR not to cooperate with Visa. The Court holds that Concord and STAR should produce only those documents that explicitly or expressly refer to plans to create a payment network that would compete directly with Visa. The time period should be limited to those documents created on or about the date that the merger was seriously considered. In addition, the documents should be only "high-level" documents and not transactional ones.
2. Discovery Requests to First Data, Concord, and STAR Related to Comparable Business Practices
The parties agree that there should be further meet and confer on these document requests ( i.e., First Data Rogs Nos. 37-38, First Data Request No. 124; Concord Requests Nos. 20-21; STAR Requests Nos. 17-18). Therefore, the Court orders that the parties further meet and confer on these document requests.
3. STAR Request No. 20
The parties have reached agreement with respect to STAR Request No. 20 and therefore the Court denies Visa's motion to compel regarding this request, without prejudice, as moot.
4. Concord Request No. 6
The parties have reached agreement with respect to Concord Request No. 6 and therefore the Court denies Visa's motion to compel regarding this request, without prejudice, as moot.
5. Concord Requests Nos. 12 and 14
The parties have reached agreement with respect to Concord Requests Nos. 12 and 14 and therefore the Court denies Visa's motion to compel regarding these requests, without prejudice, as moot.
6. First Data Rog No. 30 and Request No. 121
The parties have reached agreement with respect to First Data Rog No. 30 and Request No. 121 and therefore the Court denies Visa's motion to compel regarding these requests, without prejudice, as moot.
7. First Data Rog No. 48
The parties have reached agreement with respect to First Data Rog No. 48 and therefore the Court denies Visa's motion to compel regarding this request, without prejudice, as moot.
8. STAR's Archived Documents
The parties agree that there should be further meet and confer on this issue after Visa has reviewed, inter alia, STAR's document retention policy. Therefore, the Court orders that the parties further meet and confer about this issue.
For the foregoing reasons, the Court hereby GRANTS in part and DENIES in part Visa's motions to compel. Where the parties are to meet and confer, the Court orders the parties to report back to the Court via a joint letter by September 22, 2004, regarding the results of their meet and confer.
IT IS SO ORDERED.