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DirecTV, LLC v. Spina

United States District Court, S.D. Indiana, Indianapolis Division

August 30, 2016

DirecTV, LLC, Plaintiff,
v.
Victor A. Spina, individually, and as officer, director, shareholder, principal, manager, and/or member of Martinsville Corral, Inc. a/k/a Victor A. Spina, Jr., Martinsville Corral, Inc. d/b/a Texas Corral a/k/a Shelbyville Texas Corral, and William Spina a/k/a William Anthony Spina, Jr., Defendants.

          ORDER

          Hon. Jane Magnus-Stinson, Judge

         Presently pending in this case brought under the Federal Communications Act, 47 U.S.C. § 605, and the Electronic Communications Privacy Act, 18 U.S.C. § 2511, are: (1) a Motion for Summary Judgment filed by Plaintiff DirecTV, LLC (“DirecTV”), [Filing No. 79]; (2) a Cross-Motion for Summary Judgment filed by Defendants Victor Spina, William Spina, and Martinsville Corral, Inc. (“MCI”), [Filing No. 106]; and (3) a Motion for Sanctions filed by Defendants Victor Spina, William Spina, and MCI, [Filing No. 103].

         This litigation involves claims by DirecTV that Defendants displayed DirecTV programming in two commercial establishments without proper authorization, through a residential account associated with one of the Defendants. It has been contentious from the start, and the Motion for Sanctions demonstrates that this pattern has continued. Because the Motion for Sanctions requests that the Court sanction DirecTV by entering judgment in favor of Defendants, the Court will address that motion at the outset.

         I.

         Motion for Sanctions A. Background

         Before discussing the substance of Defendants' Motion for Sanctions, it is necessary to set forth certain background information which illustrates how the parties have reached this point.

         The Motion for Sanctions relates to Defendants' efforts to depose DirecTV's Rule 30(b)(6) corporate representative. After the parties were unable to reach an agreement regarding when the representative's deposition would take place, the Magistrate Judge ordered that it take place on December 15, 2015. [Filing No. 67.] At the December 15, 2015 deposition, Defendants' counsel questioned the representative, and subsequently claimed that the representative was not properly prepared to answer questions and requested that DirecTV voluntarily produce another corporate representative for questioning. [Filing No. 107-1 at 22.] During a January 26, 2016 telephonic status conference, the Magistrate Judge ordered DirecTV to “produce another representative for a follow-up Rule 30(b)(6) deposition due to numerous deficiencies in the responses provided by the first Rule 30(b)(6) deponent.” [Filing No. 85.] The Magistrate Judge ordered that the deposition of the second Rule 30(b)(6) deponent be completed by February 16, 2016. [Filing No. 85.]

         Subsequently, the following correspondence took place between Defendants' counsel and counsel for DirecTV regarding the deposition of DirecTV's second Rule 30(b)(6) representative:

• On January 27, 2016, Defendants' counsel emailed counsel for DirecTV asking whether DirecTV's second Rule 30(b)(6) representative would be available to resume the deposition on February 10, 2016.
• On January 28, 2016, counsel for DirecTV responded by advising that the employee who was to be the second Rule 30(b)(6) witness would be leaving the employ of DirecTV, that “we are unsure of who else DIRECTV could produce as a 30(b)(6) witness without reproducing [the first 30(b)(6) representative], ” and that “I would propose that we first attempt to nail down the specific questions you seek answers on by agreeing to a deposition by written questions pursuant to Fed R Civ P 31(a)(4) and 30(b)(6).” DirecTV's counsel stated that this would “allow DIRECTV to gather the information and answers from the sources or individuals at DIRECTV that actually do have the answers…. If you are not satisfied with the answers to the written questions, we would of course revisit who we would produce for an in-person deposition in Indianapolis.”
• Later on January 28, 2016, Defendants' counsel responded by asking when the second Rule 30(b)(6) representative was leaving the employ of DirecTV, and DirecTV's counsel responded that he was “uncertain as to the exact departure date, but I believe in March.”
• Also on January 28, 2016, Defendants' counsel responded to DirecTV's counsel by stating “It is unfortunate that the questions [the first Rule 30(b)(6) representative] was unable to answer included some related to the types of damages DirecTV seeks to recover. Had those questions been answered the way I had expected, this litigation would have concluded last month. I will not know whether DirecTV depos in the state cases will be needed until after the upcoming Federal deposition concludes.[1] BTW, DirecTV could, if [it] wanted to, still respond to the discovery I served on it in December, but which I later withdrew. That may also be a way to bring this case to a quicker resolution.”
• Finally, on January 28, 2016, Defendants' counsel sent and emailed a Renewed Notice of 30(b)(6) Deposition on DirecTV for a deposition on February 10, 2016. Defendants' counsel had not received confirmation from DirecTV's counsel that the representative or counsel would be available that day. The Renewed Notice of Deposition was also served on counsel involved in two state court cases.
• The next day, DirecTV's counsel in the state court cases emailed Defendants' counsel to express his frustration regarding the Renewed Notice of Deposition. He noted that Defendants' counsel had not made “any attempt to coordinate calendars with the witness or counsel of record, ” and that he was not available on the date for which the deposition was noticed. Defendants' counsel responded that he was “endeavoring to determine a date that works for everyone, ” but “[g]iven that the local rule requires a 14 day notice, and that I am required to serve a notice [of] deposition in order to preserve a right [to] move to compel, I have to serve the notice first, and then try to work out a final date second.”
• On January 31, 2016, Defendants' counsel emailed counsel for DirecTV asking that he identify dates he would be available for the deposition of the second Rule 30(b)(6) representative. Counsel for DirecTV responded by stating that DirecTV did not want the deposition to be part of the state court cases as well, and that “we understand you are seeking answers that may some way help your client trigger coverage however our interests in the Federal case are not aligned with those of the state cases. As such I am very concerned that we will simply repeat the confusing events of December when you improperly combined depositions without consent or appropriate Court order.”
• On February 6, 2016, Defendants' counsel emailed DirecTV's counsel and stated “I've not received a response from you to my below offer to alter the date or time of the February 10 deposition of DirecTV's 30(b)(6) representative. Therefore, the deposition will proceed at the date and time originally noticed.”
• DirecTV's counsel emailed Defendants' counsel on February 8, 2016, noting that the February 10 date for the renewed deposition did not work for most of the individuals involved, and addressing the substance of the deposition notice as well as some other matters.
• Later on February 8, 2016, Defendants' counsel emailed DirecTV's counsel stating that he expected the February 10 deposition to go forward because DirecTV had not responded to his requests for alternate dates, and addressing other matters.
• On February 10, 2016, DirecTV's counsel emailed Defendants' counsel and stated “I'd like to discuss the written interrogatories in lieu of a deposition with you, as we have been working toward the last two days between you, myself and [additional counsel for DirecTV].” The email also reiterated that the February 10 deposition date did not work for either DirecTV or its counsel, and proposed several additional dates in February and March.
• Also on February 10, 2016, DirecTV's counsel emailed Defendants' counsel stating “We need to hear back from you as soon as possible regarding the attached interrogatories that you sent to our office yesterday. If we are not able to come to an agreement re: written interrogatories in lieu of deposition testimony, please let us know your availability tomorrow and Friday for a call with Judge Baker to address [several matters].” The email again proposed some dates for the renewed deposition.
• On February 11, 2016, Defendants' counsel sent a third set of interrogatories to counsel for DirecTV, “per our conversation.”
• On February 18, 2016, counsel for DirecTV emailed Defendants' counsel and stated “Prior to our serving [interrogatory responses] on your office, please provide confirmation, in writing, that said interrogatories were served by your office and answered by our client outside of discovery, by agreement of the parties in lieu of the continued deposition of a representative of DIRECTV, LLC in person in Indianapolis in an effort to conserve attorney's costs and fees. Although Judge Baker ordered that DIRECTV, LLC produce another representative for a follow-up Rule 30(b)(6) deposition in Indianapolis in his Order of February 2, 2016, Judge Baker also discussed the possibility of written interrogatories in lieu of deposition testimony during the January 26, 2016 telephonic status conference.”
• Later on February 18, 2016, Defendants' counsel responded to DirecTV's counsel that he did not “see a reason for a need for a confirmation” that the interrogatories were served outside of discovery, and that he “never agreed” that the responses would be in lieu of a deposition. Defendants' counsel stated that he was not “going to agree to anything until I have the sworn answers in hand.”
• DirecTV's counsel then responded stating “let's not complicate things 1 we will answer the Interrogatories 2 they are untimely 3 the deposition scheduled for prior to 2/16 is not proceeding and 4 you can move for a stay we take no position.” Defendants' counsel responded “[s]o does that mean you are overnighting the answers to me?” DirecTV's counsel emailed and sent the interrogatory responses to Defendants' counsel the same day, with a cover letter stating that “four stipulations were identified” in DirecTV's counsel's February 18, 2016 email to Defendants' counsel, which Defendants agreed to, including “(1) DIRECTV, LLC's agreement to answer the third set of interrogatories; (2) the fact that the interrogatories are untimely; [(3)] the parties' agreement that the deposition scheduled for prior to February 16, 2016 is not proceeding; and (4) that you can move for a stay as Plaintiff, DIRECTV, LLC takes no position as to same….”
• On February 21, 2016, Defendants' counsel emailed DirecTV's counsel stating that he “do[es] not agree with your ‘four stipulations.'”
• On February 26, 2016, counsel for DirecTV emailed Defendants' counsel stating that he had called Judge Baker's chambers that morning to “advise that the deposition of DIRECTV did not occur prior to February 16, 2016, as the parties had worked out an agreement regarding written interrogatories in lieu of same, ” and that he “was attempting to have you patched in when I was advised that the Judge would like us to prepare a short stipulation and get it on ECF as soon as possible.” The email included an attached stipulation for Defendants' counsel's review. Defendants' counsel responded via email the same day, stating “I do not agree that ‘the parties had worked out an agreement regarding written interrogatories in lieu of' the deposition, ” and that he “would be willing to agree not to oppose a motion to stay this action for 180 days so we can see if a settlement can be reached.” DirecTV's counsel responded that the only issue at that point was the proposed stipulation, and that “[i]f you believe the language contained in the attached stipulation is not reflective of your understanding, then please provide proposed language.”
• Having not received a response, DirecTV's counsel sent a follow-up email on March 10, 2016 asking for proposed revisions to the stipulation or permission to file it. On March 11, 2016, Defendants' counsel emailed DirecTV's counsel offering to stipulate to only two facts: (1) “[t]hat Defendants properly noticed DTV for a deposition on 2-10-16”; and (2) “[t]hat DTV failed to appear at the deposition.”
• DirecTV's counsel responded to Defendants' counsel's email later on March 11, 2016, stating “I am shocked that you are unwilling to simply put the parties' agreement of DIRECTV answering untimely interrogatories in lieu of the continued deposition of its representative into a stipulation, even at the direction of Judge Baker, ” and that “[t]he emails exchanged between my office and yourself clearly evidence this agreement and it is illogical to believe that DIRECTV would agree to answer interrogatories served out of time for any reason other than in lieu of an in-person deposition in Indianapolis; especially when this was the only outstanding issue in the case at the time and was suggested by Judge Baker during our call with the Court on January 26, 2016. It's clear you are making this into a discovery dispute and denying the existence of the agreement that was clearly in place between the parties. Therefore, please advise your availability for a call with Judge Baker next week.”
• On March 18, 2016, Defendants' counsel emailed DirecTV's counsel advising that he intended to file “a Rule 37 motion based on DirecTV's failure to appear for its 30(b)(6) deposition as ordered by the Court.” DirecTV's counsel responded the same day that “our records reflect your position to be not only inaccurate but also patently false. So for purposes of your motion please understand our position is we will oppose it vigorously should you even get leave of the Court to file same.”
• On June 17, 2016, DirecTV's counsel emailed Defendants' counsel to memorialize a phone conversation they had that day, and to reiterate DirecTV's position that its agreement to answer the interrogatories outside of the discovery period was in lieu of the deposition. Defendants' counsel responded “I never withdrew or agreed [to] withdraw the Notice of Deposition for the February 10, 2016 30(b)(6) deposition of DirecTV, ” and “I am confident that if you had any evidence to the contrary, you would have attached it to your email.” Defendants filed the Motion for Sanctions that same day.

[Filing No. 107-1 at 14-162.]

         B. Standard of Review

         A district court may only impose sanctions “where a party displays willfulness, bad faith, or fault.” Am. Nat. Bank & Trust Co. of Chicago v. Equitable Life Assur. Soc'y of the U.S., 406 F.3d 867, 877 (7th Cir. 2005). “A district ‘court [does not] possess[] unfettered discretion to impose sanctions upon a recalcitrant party.'… Accordingly, the method for arriving at the sanction must be fair…. The upshot is that, under the abuse of discretion standard, we will reverse a discovery sanction if its imposition ‘strikes us as ‘fundamentally wrong, ' or is ‘clearly unreasonable, arbitrary, or fanciful.''” Id. at 878 (citations omitted). “A dismissal with prejudice is a harsh sanction which should usually be employed only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.” Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir. 1983). When the sanction is dismissal, “[m]is-conduct may exhibit such flagrant contempt for the court and its processes that to allow the offending party to continue to invoke the judicial mechanism for its own benefit would raise concerns about the integrity and credibility of the civil justice system that transcend the interests of the parties immediately before the court.” Barnhill v. United States, 11 F.3d 1360, 1368 (7th Cir. 1993). Sanctions for discovery misconduct must be proportionate to the misconduct. See Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 740 (7th Cir. 1998) (explaining that “the sanction selected [for discovery misconduct] must be one that a reasonable jurist, apprised of all the circumstances, would have chosen as proportionate to the infraction”).

         Fed. R. Civ. P. 37(b) provides the Court with authority to sanction a party for failure to comply with a Court order. Under Rule 37(b)(2), if a party disobeys a discovery order, the Court can issue an order: (1) providing that “the matters embraced in the order or other designated facts be taken as established for purposes of the action”; (2) “prohibiting the disobedient party from supporting or opposing designated claims or defenses”; (3) “striking pleadings in whole or in part”; (4) staying proceedings until the order is obeyed; (5) dismissing the action or rendering a judgment by default against the disobedient party; and (6) treating the disobedient party's failure to obey the Court's order as a contempt of court. In addition, pursuant to Rule 37(b)(2)(C), the Court must order the disobedient party, his attorney, or both, to pay the reasonable expenses, including attorneys' fees, caused by the failure. Discovery sanctions under Rule 37 serve not only to penalize misconduct, but also to “deter those who might be tempted to such conduct in the absence of such a deterrent.” National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976).

         Under Fed. R. Civ. P. 30(d)(2), “[t]he court may impose an appropriate sanction - including the reasonable expenses and attorney's fees incurred by any party - on a person who impedes, delays, or frustrates the fair examination of the deponent.” “The ability to sanction a party…falls squarely within the discretion of the district court, which ‘is in the best position to…settle any discovery disputes' that arise in litigation.” Ball v. Versar, Inc., 2005 WL 4881102, *2 (S.D. Ind. 2005) (quoting Gile v. United Airlines, Inc., 95 F.3d 492, 495 (7th Cir. 1996)). It is well established that “district courts have ‘wide latitude in fashioning appropriate sanctions.'” e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 642 (7th Cir. 2011) (quoting Johnson v. Kakvand, 192 F.3d 656, 661 (7th Cir. 1999)).

         Finally, the Court may exercise its “inherent power to fashion an appropriate sanction for conduct which abuses the judicial process.” Salmeron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 793 (7th Cir. 2009) (citation and quotations omitted). A Court's inherent authority to impose sanctions is used “when the situation is grave enough to call for [sanctions] and the misconduct has somehow slipped through the cracks of the statutes and rules covering the usual situations.” Claiborne v. Wisdom, 414 F.3d 715, 724 (7th Cir. 2005).

         C. Discussion

         In support of their Motion for Sanctions, Defendants argue that they have been prejudiced by DirecTV's unwillingness to produce a 30(b)(6) representative as the Magistrate Judge ordered because they are “unable to discover facts that [they] expect[] will show that it is undisputed that DirecTV authorized the receipt of the TV Programming it now alleges to have been ‘intercepted.'” [Filing No. 103 at 11.] They assert that entering judgment against DirecTV is an appropriate sanction, pursuant to either Fed.R.Civ.P. 37 or the Court's inherent authority, because DirecTV “did not object to the [discovery] order, serve any objection to the Notice of Deposition, or file a motion for protective order.” [Filing No. 103 at 12.] Defendants argue that DirecTV chose to ignore the Magistrate Judge's order to produce a witness, and that the Court should not allow DirecTV “to flaunt the rules and disrespect the Court….” [Filing No. 103 at 14.] Defendants contend that they complied with Local Rule 37-1, and point to the numerous emails between their counsel and DirecTV's counsel. [Filing No. 103 at 15-16.] They seek their attorneys' fees in connection with the Motion for Sanctions. [Filing No. 103 at 14-15.]

         In response, DirecTV argues that Defendants are not prejudice by the lack of a deposition because Defendants' counsel had ample opportunity to question the first 30(b)(6) witness, and DirecTV also answered the third set of interrogatories “which were carefully chosen and drafted by Defendants' counsel.” [Filing No. 107 at 9.] DirecTV notes that the Magistrate Judge suggested the second deposition could be completed via interrogatories so that the questions could be drafted carefully, and that when DirecTV's counsel notified the Magistrate Judge's chambers that the parties had agreed to use interrogatories instead of a deposition, the Magistrate Judge “was fine” with that. [Filing No. 107 at 9-10.] DirecTV asserts that the parties had agreed that it would answer interrogatories outside of the discovery period in lieu of a deposition, and that Defendants have used some of the interrogatory answers in their Cross-Motion for Summary Judgment. [Filing No. 107 at 10.] It also notes that Defendants' counsel last brought up DirecTV's supposed failure to produce a corporate representative for the deposition on March 24, 2016, and did not file the pending Motion for Sanctions until June 17, 2016 - three months after that last contact and just two weeks before Defendants' Motion for Summary Judgment was due. [Filing No. 107 at 10.] DirecTV argues that entering judgment against it is not a proper sanction under either Rule 30 or Rule 37. Specifically, it asserts that dismissal under Rule 30 is inappropriate because the Magistrate Judge suggested that DirecTV could answer interrogatories outside of the discovery period in lieu of a deposition, and that dismissal under Rule 37 is improper because it did not act willfully or in bad faith. [Filing No. 107 at 11-14.] DirecTV also argues that Defendants did not comply with Local Rule 37-1 because they failed to adequately raise the issue with the Court before filing the Motion for Sanctions, and because the only effort their counsel made to “meet and confer” was a June 17, 2016 phone call which took place on the same day the Motion for Sanctions was filed. [Filing No. 107 at 15-16.]

         On reply, Defendants deny that they failed to confer with DirecTV's counsel regarding deposition dates. [Filing No. 110 at 2.] They also “vigorously deny” that any agreement was reached regarding DirecTV responding to interrogatories in lieu of the deposition, and note that DirecTV's counsel has not produced an email or letter memorializing such an agreement. [Filing No. 110 at 3-4.] Defendants argue that their counsel raised the issue of filing a motion for sanctions during a March 24, 2016 telephonic conference with the Magistrate Judge. [Filing No. 110 at 4-5.] Defendants also argue that they requested deposition dates from DirecTV numerous times, and eventually noticed the deposition for February 10 because it had to be completed by February 16 and Defendants had to give DirecTV fourteen days' notice. [Filing No. 110 at 6.] They assert that they need not show prejudice, but claim they did suffer prejudice because the interrogatories did not cover all of the topics that would have been addressed at a deposition. [Filing No. 110 at 7.]

         They reiterate their arguments that entering judgment against DirecTV is an appropriate sanction, and that they are entitled to their attorneys' fees. [Filing No. 110 at 8-9.]

         The Court first considers whether Defendants satisfied their obligations under Local Rule 37-1 before filing the Motion for Sanctions. Local Rule 37-1 provides:

(a) Required Actions Prior to Court Involvement. Prior to involving the court in any discovery dispute, including disputes involving depositions, counsel must confer in a good faith attempt to resolve the dispute. If any such dispute cannot be resolved in this manner, counsel are encouraged to contact the chambers of the assigned Magistrate Judge to determine whether the Magistrate Judge is available to resolve the discovery dispute by way of a telephone conference or other proceeding prior to counsel filing a formal discovery motion….
(b) Requirements of Motion to Compel. In the event that the discovery dispute is not resolved at the conference, counsel may file a motion to compel or other motion raising the dispute. Any motion raising a discovery dispute must contain a statement setting forth the efforts taken to resolve the dispute, including the date, time, and place of any discovery conference and the names of all participating parties. The court may deny any motion raising a discovery dispute that does not contain such a statement.

         Defendants primarily rely upon the March 24, 2016 telephone conference with the Magistrate Judge to support its argument that it complied with Local Rule 37-1, arguing that their counsel emailed the Magistrate Judge's chambers before the conference and advised that “the Defendants desire to file a Rule 37 Motion due to DirecTV's failure to appear at its deposition, ” that the ECF entry references discussion of “related matters, ” and that their counsel's declaration confirms that a Motion for Sanctions was discussed during the telephone conference. [Filing No. 110 at 9-10.] But the Magistrate Judge's March 24, 2016 Order regarding the telephone conference states “Discussion held regarding settlement and related matters.” [Filing No. 93.] It does not mention any specific discussion of a motion for sanctions related to the 30(b)(6) deposition. The Court is familiar with Magistrate Judge Baker's practices and procedures, and finds that if the parties had discussed a motion for sanctions at the telephonic conference, Magistrate Judge Baker would have reflected that discussion in his entry from the conference. In short, the record does not support Defendants' version of events and the Court finds that Defendants failed to comply with the letter and spirit of Local Rule 37-1.

         While the Court could deny the Motion for Sanctions on that basis alone, it will also consider the substance of Defendants' motion. This litigation has been very contentious, as further reflected by the nearly 150 pages in emails related to the second 30(b)(6) deposition. After reviewing the lengthy exhibits related to the motion, the Court summarizes the events that led up to this motion as follows:

• Defendants' counsel unilaterally noticed the second 30(b)(6) deposition for February 10, 2016, without getting a response from DirecTV's counsel regarding availability;
• Defendants never formally withdrew the deposition notice, but suggested other dates for the deposition when it became clear that neither the witness nor all involved counsel were available;
• The parties began discussing the possibility of DirecTV answering a third set of interrogatories in lieu of the 30(b)(6) deposition, and DirecTV provided alternative dates for the deposition should it be necessary;
• Defendants served interrogatories on DirecTV, and DirecTV served responses to the interrogatories with the understanding that the responses were in lieu of the deposition; and
• After receiving the responses, Defendants' counsel refused to agree that the interrogatory responses were in lieu of a deposition, began pushing the idea of the deposition again, and eventually filed the pending motion nearly three months after counsels' last correspondence with each other regarding the deposition.

         These events do not support the award of sanctions under Rule 37, Rule 30, or the Court's inherent authority.

         First, Rule 37 contemplates sanctions where a party has violated a prior order. Fed.R.Civ.P. 37(b)(2)(B) (providing for the award of sanctions when a party fails to comply with a court order relating to producing an individual for a deposition). Here, the Magistrate Judge specifically contemplated that a deposition might be avoided if DirecTV agreed to answer additional interrogatories. [See Filing No. 107-1 at 3-4 (DirecTV's counsel stating in his Declaration that “[a]lthough Judge Baker ordered that DIRECTV produce a 30(b)(6) witness within 21 days, he also indicated during the call that perhaps this dispute could be resolved by written interrogatories in lieu of a second deposition”; Defendants have not disputed that this occurred).] Moreover, Defendants' counsel himself brought up the possibility of interrogatory responses in lieu of a deposition in an email to DirecTV's counsel. [See Filing No. 107-1 at 40 (Defendants' counsel stating in an email to DirecTV's counsel “BTW, DirecTV could, if [it] wanted to, still respond to the discovery I served on it in December, but which I later withdrew. That may also be a way to bring this case to a quicker resolution”).] The circumstances here do not indicate that DirecTV violated a Court order.

         Second, Rule 30(d)(2) provides that the Court may impose sanctions “on a person who impedes, delays, or frustrates the fair examination of the deponent.” Fed.R.Civ.P. 30(d)(2). The communications between the parties indicate to the Court that DirecTV's counsel believed Defendants' counsel had agreed to accept interrogatory responses in lieu of conducting another deposition. Further, communications also indicate that DirecTV's counsel advised Defendants' counsel that neither the witness nor all involved counsel were available for a deposition on February 10, and provided some alternate dates. These events do not support the notion that DirecTV somehow impeded, delayed, or frustrated the fair examination of the 30(b)(6) witness.

         Finally, the Court declines to award sanctions under its inherent authority. As discussed above, the Court finds that DirecTV had a good faith belief - based on discussions among counsel - that Defendants were willing to forego the 30(b)(6) deposition in lieu of responses to interrogatories served outside of the discovery deadline. Additionally, Defendants' counsel's conduct was not stellar, beginning with unilaterally setting the deposition before obtaining input from DirecTV's counsel regarding witness and counsel availability, and ending with filing the pending motion nearly three months after last discussing the issue with DirecTV's counsel, and without complying with Local Rule 37-1.

         Put simply, the circumstances indicate at best a misunderstanding between counsel regarding the significance of the interrogatory responses and, at worst, Defendants' counsel's use of the pending motion as a defense tactic. The Court does not find any sanctionable conduct on the part of DirecTV or its counsel, and the Motion for Sanctions is DENIED in its entirety.

         II.

         Cross-Motions for Summary Judgment

         DirecTV has moved for summary judgment against all Defendants only on Count I of the Amended Complaint, for violations of 47 U.S.C. § 605, and only as to liability. [See Filing No. 80 at 17-18.] Defendants have cross-moved for summary judgment on all of DirecTV's claims. [See Filing No. 106 at 4.]

         A. Standard of Review

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 202 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         “The existence of cross-motions for summary judgment does not, however, imply that there are no genuine issues of material fact.” R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, “[p]arties have different burdens of proof with respect to particular facts; different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the non-movant, first ...


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