To summarize the issues here: Plaintiffs have deciphered two-thirds of United’s fare basis codes on the ticket coupons United produced. For the remaining one-third of the ticket coupons, Plaintiffs have inferred the codes of 11,376 fare basis codes and have identified the top-most used 1,000 codes of the remaining fare codes which Plaintiffs are unable to decipher. Plaintiffs argue they need to know what product was sold at what price.

In support of its Motion, Plaintiffs submitted the Declarations of Mr. Arenson and Dr. Leng and several exhibits. Defendant United Airlines, Inc. has opposed the Motion and submitted the Declarations of Mr. Sepulveda and Ms. Havens. Plaintiffs served a Reply Memorandum.

United asserts that all documents that exist to aid in deciphering the fare codes have been produced. The only way to decipher more fare codes, according to representations of United’s counsel, is for Ms. Havens, United’s Director of Pricing, to review the codes and, using her years of experience at United, decipher some portion of them; Ms. Havens estimates that “decoding and confirming the 12,376 fare basis codes” may take up to 300 hours of her time. (Havens Decl. at ¶ 7). United objects that such an expenditure of time is unduly burdensome. Plaintiffs challenges that time estimate as “inflated,” because Ms. Havens is not working from a blank slate but need only confirm the 92% of fare basis codes Plaintiffs have already deciphered. (Pls.' Reply Memo. at 2).

Oral argument on the Motion was held on November 16, 2018. During oral argument, counsel for both Plaintiffs and United presented background information related to fare basis codes and additional factual information. Although the Special Master offered to entertain supplemental written material to document the additional information provided during oral argument, both parties declined the invitation. Counsel explicitly authorized the Special Master to rely on the oral representations of counsel.

For the reasons given below, the Special Master recommends the Court issue an order compelling United to confirm or provide the meaning for certain of its fare basis codes.

Background

This Court directed that “substantial completion of transactional data and documents” occur by July 27, 2017. (ECF 152) In response to Plaintiffs' first document request, United produced transactional data for domestic flights, which included the fare basis codes for each leg of a particular ticket purchase represented by a ticket coupon. [See Arenson Decl. Exh. 3; Request 34(s).] According to Plaintiffs—and uncontroverted by United—“United’s fare basis codes contain up to eight characters representing various characteristics of a ticket coupon, such as the fare class (e.g., first, business, or economy), whether the flight is one-way or round-trip, the day of the flight, the carrier, the particular airport in a city with multiple airports, and the refundability of the ticket.” (Pls.' Motion at 1). By way of example, one code is LA21KN; another code is SE21SFN. (See Leng Decl. Exh. A, first and second entries). Each character may have more than one value, and numerous combinations of the characters exist. (Id.) The placement of the characters represented in the fare basis codes have changed over time. (Id.)

*2 To decipher the fare basis codes, Plaintiffs' first document request also sought “documentation” including “data dictionaries” and “all decoding Documents that facilitate the translation of values contained in the transactional data [Request No. 35(b) and (c) ]. Plaintiffs' follow up letter of September 2017 sought “definitions of all values in “FARE_BASIS_CD” field [ (see Arenson Decl. Exh. 4 at 11).] On March 7, 2018, United produced a five-page attachment bearing the title “Fare Basis Code Charts.” (See Arenson Decl. Exh. 5). United produced one more page titled “Decoded FBC Values in Plaintiffs' 3/23/2018 Question 6” two months later. (Id. at Exh. 7). In addition to these six pages, United answered via letter specific questions by Plaintiffs about the meaning of various fare basis codes. (See Arenson Decl. Exhs. 5-12).

United’s counsel stated during oral argument that only in recent years has United been consistent in documenting the meaning of the fare basis codes; counsel also represented that United document-retention practices have not always required maintaining out-of-date fare basis codes. As a result, United’s documentation of the meaning of characters used in past fare bases code is incomplete. Beyond documents already produced to Plaintiffs, counsel for United represents that United has no other documents that will aid in decoding the fare basis codes. Plaintiffs' counsel states they are unaware of any other such documents.

Based on what information United did provide to Plaintiffs, Dr. Leng and her colleagues “were able to decode fully the fare basis codes for only two-thirds of United’s ticket coupons.” (Leng Decl. at ¶ 6). Of the remaining third, some 81,000 “unmatched” fare basis codes, Dr. Leng’s team analyzed them and formulated “inferences” as to the meaning of 11,376 of the codes. (Id. at ¶ 6 and Exh. A). Those 11,376 codes constitute 69.7% of the remaining third. (Id. at ¶ 6). Dr. Leng declares that, if United decoded an additional 1,000 unmatched codes for the most frequently appearing codes (id. at ¶ 6 and Exh. B), an additional 22.6% of the remaining third would be deciphered. (Id. at § 7). This would leave only 2.5% of all coupons without a decoded fare basis code. (Id. at ¶ 8).

Parties' Arguments

Plaintiffs argue that, to present their case in chief, they must “know what product was sold at what price.” (Pls. Reply at 1). Fare basis codes “identify the product sold” (e.g., a non-refundable, one-way fare sold 21 days in advance).” (Id.) According to Dr. Leng, “the information embedded in the fare basis codes will assist [Plaintiffs] in accounting for the factors United used to set the fare in a transaction.” (Leng Decl. at ¶ 5). Counsel explained at oral argument that the various characteristics of a ticket coupon, e.g., first, business, or economy class, whether the flight is one-way or round-trip, etc., may alone account for the fares paid by passengers or, as Plaintiffs allege, these fares may track a conspiracy among defendants. Counsel also explained during oral argument that Plaintiffs' economists plan to run statistical analyses on the variables but have not yet done so. Counsel explained that the wording in Dr. Leng’s declaration,[2] argued by United to be speculative, reflects the fact that the analyses have not been run; thus, the outcomes are not known and Dr. Leng cannot now say with certainty how the results will be used.

Plaintiffs are concerned that, if the economists analyze only two-thirds of United’s fare basis codes, United will challenge the analysis as “incomplete,” or, if the economists conduct an analysis using the 11,000 fare basis codes that Plaintiff inferred, United will challenge the correctness of those inferences and the conclusions drawn from the inferences. (See Pls.' Motion at 6; Reply at 1).[3] Plaintiffs predict that “United will undoubtedly undertake” to decipher the one-third of codes “if plaintiffs' economists apply their interpretations of the fare basis codes in their analysis” in order to challenge work undertaken by Plaintiffs' economists. (Id. at 5).

*3 Procedurally, Plaintiffs note that their initial Rule 34 Request for Production of Documents sought both the transaction data and information to decipher fare basis codes. As noted above, in Request 34 of the RFP, Plaintiffs sought “defendants' transaction-level data ... including the ‘fare basis and definitions of each fare basis code.’ ” (Pls.' Motion at 2). Plaintiffs point out that Request 35 of the RFP sought ‘[a]ll data dictionaries necessary to correctly interpret field names and values contained in the transactional data;’ ‘[a]ll decoding Documents that facilitate the translation of values contained in the transactional data;’ and ‘[a]ny additional documentation needed to translate values in languages other than English to their English equivalents.’ ” (Id.)

Plaintiffs also argue that they are entitled to the information sought pursuant to the ESI Order (ECF 167). Plaintiffs point to language in Paragraph VI.I of the ESI Order which they read as requiring United to “disclose ... information as may be reasonably necessary for the Requesting Party to understand the meaning and responsiveness of ... abbreviations, and values.” (Pls.' Motion at 5).

United opposes the Motion on procedural and substantive grounds. United asserts that is “has produced hundreds of millions of structured data records, provided definitions for all data fields related to the same, and has answered over 70 questions posed by Plaintiffs' regarding United’s structured data.” (Opp. at 1). United states that it “has fully complied with the applicable discovery requests and the ESI Order.” (Id.) United contends that the plain language of the ESI Order provides that the producing party is obliged to produce a data dictionary, or a similar “description” (not decoding) of each field, abbreviation, or value. (Sepulveda Decl. at ¶ 4). With the charts attached to its pre- and post-production letters, United argues that it has fulfilled this obligation. (See Sepulveda Decl. at ¶¶ 5-7). Given its contention of compliance, United contends the Motion should be denied in its entirety.

United argues further that it cannot be ordered to create a document that does not exist. (Opp. at 5). With respect to Requests 34 and 35 of Plaintiff First Request for Production of Documents, United declares that it “has conducted a reasonable search for additional documentation beyond what it has already provided to Plaintiffs regarding information to decode its fare basis codes, and United is aware of no further responsive documentation to provide Plaintiffs.” (Sepulveda Decl. at ¶ 10).

United argues that the ESI Order concerned only the production of electronic documents and did not impose a broader obligation to decipher those documents. (Opp. at 4-5). United criticizes Plaintiffs for ignoring certain crucial and pertinent language in the ESI Order. United illustrates this criticism by pointing out the missing language, not cited by Plaintiffs, in bold - “values with the database (such as a data dictionary for the Structured Data application or system, or a description of each field, abbreviation, or value, where applicable.” (Sepulveda Decl. at ¶ 4).

United contends that Plaintiffs have not met the standards of Fed. R. Civ. P. 26(b)(1) inasmuch as Plaintiffs' Motion, at best, demonstrates only marginal relevance and that any marginal relevance is outweighed by the significant burden on United to decode the fare basis codes. (Opp. at 3-4). On the subject of relevance, United characterizes Plaintiffs' “justification for relief [as] nothing more than a speculative and vague ‘expectation’ ” that the additional FBCs will be used for ‘analyzing the domestic air travel industry.’ ” (Opp. at 1, quoting Leng Decl. at ¶ 5). Further, United argues that “absent from Plaintiffs' supporting declaration is any explanation as to why the two-thirds of the FCBs Plaintiffs were able to decode are insufficient for the purposes of Plaintiffs' analysis.” (Opp. at 4).

*4 With respect to burden, United submits the Declaration of Ms. Havens, United’s Director of Domestic Pricing. Ms. Havens estimates it will take her 300 hours to confirm or decode the 12,376 fare basis codes. (Havens Decl. at ¶¶ 4-7).[4] Ms. Havens also states that she is the only person in her department with the experience and knowledge to do the confirmation and decoding. (Id. at ¶ 8). Ms. Havens further declared that United uses “one-off or specialty fare basis codes” for which United keeps no decoding reference and that she knows of no way to “definitively decipher” such codes (Id. at ¶ 9), indicating that many of the fare basis codes “in Plaintiffs' Exhibit B cannot be decoded at all.” (Opp. at 4).

Discussion

It is important to ground this analysis on the purpose of civil discovery. As the Supreme Court explained in the seminal case of Hickman v. Taylor, 329 U.S. 495, 507 (1947):

A decade later, the Supreme Court stressed that the “modern instruments of discovery serve a useful purpose, as we noted in Hickman v. Taylor ... They together with pretrial procedures make trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” [U.S. v. Proctor & Gamble, 356 U.S. 677, 682-83 (1958).]

Rule 1 of the Federal Rules of Civil Procedure expressly imposes on the court the duty to construe and administer the rule “to secure the just, speedy and inexpensive determination of every action and proceeding.” There is perhaps is no more essential mandate in the federal rules than Rule 1. (See, e.g., 4 Charles Alan Wright et al., Fed. Prac. & Proc. Civ. § 1029 (4th ed.) ). But these three factors are not easy to apply as they often point in different directions. Thus, the rules in numerous sections grant the trial court broad discretion to structure discovery to fit the specific needs of the case. Relevant to the current dispute is the Supreme Court’s observation in Crawford-El v. Britton, 523 U.S. 574, 598 (1998), that “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery.”

Turning to the issues at hand, the Special Master is persuaded that the deciphering of the 12,376 fare codes that are listed in Exhibits A and B to Dr. Leng’s Declaration are both relevant and important to the Plaintiffs' case in chief. The Special Master credits Plaintiffs' argument as to the necessity for doing a statistical analysis to attempt to prove its case and its need to have the 12,376 fare basis codes decoded.

While the Special Master understands United’s argument that Dr. Leng’s Declaration does not establish the necessary element of relevance, the Special Master does not agree. Although Dr. Leng used the term “expect” in describing the information sought, her ultimate view was that it “will assist in accounting for the factors United used to set the fare in a transaction.” (Leng Decl. at ¶ 5). Representations by Plaintiffs' counsel as to the intended use of the information further demonstrate its relevance.

*5 The Special Master accepts and finds persuasive, at this juncture, Plaintiffs' argument that pursuit of a price-fixing anti-trust claim requires Plaintiffs to know the price of United’s products to be able to undertake expert analyses in an attempt to prove illegal anti-competitive conduct. At this point it appears that potentially critical evidence is necessary to Plaintiffs' ability to do an analysis of United’s fare basis codes. The Special Master thus finds that Plaintiffs have made a sufficient threshold showing of relevance.

Tuning to United’s argument that requiring United to undertake the task of deciphering is unduly burdensome, the Special Master acknowledges United’s representations and Ms. Havens' declaration that she alone is able to decipher the codes in Exhibits A and B to the Leng Declaration. Ms. Havens' estimate of the time it may take to decode the 12,376 codes in Exhibits A and B, based on her work on 20 fare basis codes, is approximately 300 hours. (Havens Decl. at ¶ 7). Plaintiffs assert that Havens would only have to confirm Plaintiffs' inferences for the 11,376 codes and that deciphering the 1,000 fare basis codes listed in Exhibit B should only take her 25 hours. (Pls.' Reply at 2).

On the current record, the Special Master is not in a position to credit one party or the other on the amount of time needed to confirm and/or decode. The Special Master does not believe that the circumstances of this case require an acceptance of the time needed to confirm and/or decode as presented by one party or the other.

It was clear at oral argument that, were Plaintiffs to proceed with only two-thirds of the fare basis codes decoded using inferences formulated by Plaintiffs, United likely will challenge the sufficiency of Plaintiffs' analysis due to lack of data and/or errors in decoding.[5] A logical and reasonable assessment is that the current state of any economic analysis by Plaintiffs of the fare basis codes will be subject to a Daubert challenge.

The overriding factor for the Special Master is the fact that the problem confronting Plaintiffs in this situation is one of United’s own creation. The subjects at issue are fare basis codes created by United for the operation of its business. There does not appear to be any source outside of United, and United has pointed to none, that Plaintiffs can use in an effort to decipher or decode the fare basis codes. Thus, there are no documents that United can be ordered to be produce.

The facts are that United created these codes, United is the only entity capable of deciphering them with sufficient accuracy and United appears to have failed to keep reference materials for the codes. These facts are what separate this case from the ones where courts have routinely declined ordering one party to create a document that otherwise does not exist or do the work for a requesting party. Here, United is being asked not to create a document but, rather, to provide Plaintiffs with the rudimentary information essential for Plaintiffs to undertake work necessary to their efforts to build a case.[6]

*6 As noted, Plaintiffs have made inferences for 11,376 fare basis codes based on limited information provided by United. If, as suggested at oral argument, Ms. Havens, given her long experience and knowledge, could look at some codes and easily decipher them, this certainly would reduce the time required to confirm the inferences made by Plaintiffs and, perhaps, to decipher some of the 1,000 codes listed in Exhibit B. As to codes which do not lend themselves to rapid deciphering, balancing the burden weighs against United as the creator of the codes and the possessor of the sole source of knowledge to decipher the codes. United has created this business “Rubik’s cube,” and, literally and figuratively, United is the only one with ability to place the various pieces in the correct order. Essentially, the Special Master recommends that United, as the creator of these codes, be ordered to take all steps necessary to decipher and/or confirm Plaintiffs' inferences of United’s own business documents.

United’s responses to Requests 34 and 35 of Plaintiffs' First Request for Production of Documents (Fed. R. Civ. P. 34) are inadequate. The Special Master finds that United’s failure to keep appropriate records to explain and decipher its own codes is not an acceptable defense to the instant Motion. The Special Master rejects United’s argument that the ESI Order does not require it to decipher its own codes. The ESI Order created obligations for the meet and confer process concerning the provision and disclosure of information related to the structured databases. That United provided ESI, whether electronically or in a hard copy format, does not end United’s obligations. The ESI Order by its terms envisions explanations as to information in the structured data.[7] To read the ESI Order as narrowly as United urges undermines the fundamental tenets of discovery in contravention of Rule 1. In sum, the Special Master finds and recommends that the Court, pursuant to its inherent authority to control discovery and the provisions of Fed. R. Civ. P. 37(a)(1) to “compel[ ] disclosure or discovery,” order United to take the curative steps below.

Remedial Steps

The Special Master finds that the most effective way to decipher the fare basis codes in Exhibits A and B is to have Ms. Havens sit in her own office with whatever resources she needs, whether documents or other persons, and decode/decipher them. Mindful of United’s comments at oral argument, the Special Master believes that Plaintiffs can expedite Ms. Haven’s review of the 11,376 fare basis codes Plaintiffs have inferred, by providing Ms. Havens in writing the specific inferences they drew. This approach has, to some extent, already occurred.[8]

The Special Master has considered whether it is more or less efficient to have Plaintiffs first provide United with the inferences it used with respect to the 11,376 codes at issue. Believing that Plaintiffs very likely have records as to the process they used to draw inferences for codes,[9] the Special Master believes it is more efficient to have Plaintiffs present United with its inferences as an initial matter. Then, Ms. Havens will have the opportunity to take whatever steps she believes necessary to confirm Plaintiffs' inferences; if Ms. Havens cannot confirm the inferences made by Plaintiffs, she is to undertake all necessary efforts to decipher the 11,376 codes. If United does not wish to confirm any or all of Plaintiffs' inferences, United is free to undertake its own work to decipher the codes and then provide Plaintiffs with the meaning of the codes.

*7 The fare basis codes were created by United for United’s use. The absence of alternate sources to decode the information and United’s apparent lack of written reference materials usable to decode the fares are major factors differentiating this case from so many discovery disputes. The fact that United did not consistently document the meaning of the codes until recent years and did not have long-standing document retention policies to maintain out-of-date data are business decisions made or not made by United. Such decisions, in any event, do not excuse United from an obligation to provide the necessary deciphering/decoding of its fare basis codes. These codes are entirely a creation of United; thus, it is both just and fair to require United to review the 11,376 codes Plaintiffs have inferred (Exhibit A) to confirm or provide Plaintiffs with all information needed to decipher them, and also to attempt to decode the 1,000 fare basis codes in Exhibit B.

The Special Master believes it is premature to consider what, if any, evidentiary sanctions might be considered if United is unable to decipher the basis fare codes or some subset of the codes. At this point, the Special Master recommends that the Court order Ms. Havens to undertake the steps noted here and report back to Plaintiffs with the results and a declaration from her outlining the steps undertaken and the results achieved.

Alternative Relief Sought by Plaintiffs

Plaintiffs seek two alternate forms of relief. First, Plaintiffs ask that United be prohibited from challenging Plaintiffs' interpretation of the codes or that the Court order that “ ‘designated facts be taken as established.” (Pls.' Motion at 6). On the current factual record, any such request is premature. The Special Master believes the better course is to have United review the codes at issue to confirm or decipher them as it is able. Depending upon the results of Ms. Havens' work, Plaintiffs may seek any further relief. Any such request will be evaluated based upon a future factual record and legal arguments.

Second, Plaintiffs seek to conduct a Rule 30(b)(6) deposition of unlimited time on the fare basis codes without such a deposition(s) using any of the 17 hours presently allotted to Plaintiffs for Rule 30(b)(6) depositions. The Special Master does not view such a deposition as an economical use of the Parties' time and money. To have Ms. Havens review 12,376 codes under the eye of several lawyers and a court stenographer, away from possible resources she may need to jog her memory as to individual codes, seems to the Special Master to be highly inefficient. Less costly and time consuming for the Parties and hopefully more convenient and comfortable for Ms. Havens, is for Ms. Havens to review Exhibits A and B of the Leng Declaration in her own office.

Accordingly, the Special Master recommends the Court deny these alternate forms of relief without prejudice at this time.

Recommended Relief

Based on the foregoing, the Special Master recommends the Court order:

(1) United to inform Plaintiffs within 3 business days from the date of the Court order whether United wishes Plaintiffs to provide United with the inferences Plaintiffs used to derive the 11,376 fare basis codes listed in Leng Decl. Exhibit A;

(2) If United wishes to obtain Plaintiffs' inferences, Plaintiffs have 10 business days from notification to provide the information in writing to United;

(3) United has 20 business days from the receipt from Plaintiffs of their inferences or from United’s decision not to request such information from Plaintiffs in which to deliver to Plaintiffs confirmation as to United’s agreement with Plaintiffs' inferences as to some or all of the 11,376 codes or to provide Plaintiffs with the deciphering of all or some of the 11,376 codes;

(4) United has 20 business days from the date of the Court order in which to provide Plaintiffs with a decoding of the 1,000 fare basis codes listed in Leng Decl. Exhibit B;

*8 (5) If United cannot confirm or decipher any fare basis codes, United should provide Plaintiffs with a declaration from Ms. Havens or any additional declarants describing the steps undertaken to confirm or decode the codes and any reasons why some or all could not be confirmed or decoded, and such declaration(s) shall be provided within 20 business days from the date of the Court order; and

(6) Plaintiffs' request that the Court order that facts regarding the codes be taken as true or that Plaintiffs be permitted a Rule 30(b)(6) deposition of unlimited duration on the codes be denied without prejudice.

Alternatively, Plaintiffs seek an order directing that Plaintiffs' interpretation of certain fare basis codes be taken as established in this action or that Plaintiffs be permitted to conduct a Rule 30(b)(6) deposition of unlimited duration to determine the meaning of United’s fare basis codes. This request for an unlimited deposition would be in addition to the permitted 17 hours of Rule 30(b)(6) deposition currently permitted under the Court’s scheduling orders. (See, e.g., Plaintiffs' Motion at 1, 6-7).

“I expect that this information will be used .... I also expect that the information encoded in the fare basis codes will be used in the analysis of fares.” (Leng Decl. at ¶ 5).

Unsurprisingly, at oral argument United was not willing to commit to not challenging the economic analysis on grounds of incompleteness, incorrect inferences and incorrect conclusions.

To reach this estimate, Ms. Havens extrapolated from the time it took her to decoded 20 fare basis codes. (Id.) Plaintiffs respond that they have “already decoded 92% of the unknown FBCs (approximately 11,376 of the 12,376); [and] it should be a far lesser task for United to merely confirm the accuracy of plaintiffs' decoding given Ms. Havens expertise in United’s use of FBCs.” (Pls.' Reply at 2). Plaintiffs estimate the decoding time to decode the 1,000 undeciphered codes will “likely take closer to 25 hours.” (Id.)

Whether United would attack Plaintiffs' work with or without undertaking its own efforts of deciphering or decoding, either mode of attack would be unjust and unfair to Plaintiffs. It would be unacceptable if United undertakes its own efforts at deciphering or decoding after denying Plaintiffs the knowledge necessary for such an undertaking.

Theoretically, interrogatories or depositions would be the obvious discovery tools to use in the absence of documents. But to order United to answer 12,376 interrogatories or submit to a 30(b)(6) deposition to answer questions about the 12,376 codes would be far more costly and time consuming than the relief the Special Master recommends and place this case far outside the bounds of the admonitions of Rule 1 of the Federal Rules of Civil Procedure.

It is notable, based on the information submitted in connection with this Motion, that United appears to have produced only 6 pages of decoding charts for fare basis codes, and the charts that were produced date only as far back as 2012.

By way of example, see Arenson Decl. Exh. 7 at 4 (item 9):

Inasmuch as Plaintiffs would need this information to withstand any Daubert challenge, the Special Master expects that Plaintiffs possess such information at this time.