First, the requested discovery will enable Defendants to show that this merger is procompetitive eve

US Airways and American sheraton hotel tahiti Airlines filed a court request Friday to make the U.S. Department of Justice provide information on DOJ s review and approval of four previous mergers of U.S. passenger airlines.
The Department of Justice filed a lawsuit Aug. 13 that seeks to block the merger of US Airways and American, alleging that the combination would violate federal antitrust laws and would be anti-competitive.
“Over the past eight years, DOJ has approved four airline mergers similar to the one at issue here. Each time, DOJ issued press releases explaining that, after careful consideration, it had determined that the merger would enhance competition in the airline industry and benefit sheraton hotel tahiti the traveling public.
“Those mergers—the 2005 US Airways-America West Airlines merger, the 2008 Delta Air Lines-Northwest Airlines merger, the 2010 United Airlines- Continental Airlines merger, and the 2011 Southwest Airlines-AirTran merger—spurred competition and allowed United and Delta to create broad airline networks with global reach.
“But in the Amended Complaint, DOJ alleges that those mergers ‘hurt passengers’ and that the American Airlines-US Airways merger would exacerbate the harm caused by the previous mergers. Even more remarkable than DOJ’s abrupt and unexplained reversal is the fact that it contends that the dramatic change in its view of consolidation in the airline industry is off-limits in the discovery process here.
“DOJ seeks to prevent Defendants from learning the facts on which it approved sheraton hotel tahiti the other four mergers. But DOJ cannot assert that the American-US Airways merger should be blocked because it could cause the same results as the prior mergers, and, at the same time, contend that those mergers have no relevance here. Plaintiffs raised this line of inquiry themselves, and the discovery sought will be used to demonstrate that this merger offers significant procompetitive benefits. Accordingly, Plaintiffs should be compelled to provide the requested discovery.”
Defendants hereby move for an order compelling sheraton hotel tahiti Plaintiffs to respond to Requests 15 through 20 of Defendants’ First Request for Production of Documents (“RFP”) ( see accompanying Declaration of Steven Bradbury, Ex. A) and Interrogatory 2 of Defendants’ First Set of Interrogatories ( see id. , Ex. B). These requests seek the factual record on which the Department of Justice (“DOJ”) approved four prior airline mergers under section 7 of the Clayton Act. This motion is supported by the following points and authorities:
Over the past eight years, DOJ has approved four airline mergers similar to the one at issue here. Each time, DOJ issued press releases explaining that, after careful consideration, it had determined that the merger would enhance competition in the airline industry and benefit the traveling public. ( Id. , Ex. C.) Those mergers—the 2005 US Airways-America West Airlines merger, the 2008 Delta Air Lines-Northwest Airlines merger, the 2010 United Airlines- Continental Airlines merger, and the 2011 Southwest Airlines-AirTran merger—spurred competition and allowed United and Delta to create broad airline networks with global reach.
sheraton hotel tahiti But in the Amended Complaint, DOJ alleges that those mergers “hurt passengers” and that the American Airlines-US Airways merger would exacerbate the harm caused by the previous mergers. (Am. Compl. ¶ 35; see also ¶¶ 46, 64-67, 71.) Even more remarkable than DOJ’s abrupt and unexplained reversal sheraton hotel tahiti is the fact that it contends that the dramatic change in its view of consolidation in the airline industry is off-limits in the discovery process here.
DOJ seeks to prevent Defendants from learning the facts on which it approved the other four mergers. But DOJ cannot sheraton hotel tahiti assert that the American-US Airways merger should be blocked because it could cause the same results sheraton hotel tahiti as the prior mergers, and, at the same time, contend sheraton hotel tahiti that those mergers have no relevance here. Plaintiffs raised this line of inquiry themselves, and the discovery sought will be used to demonstrate that this merger offers significant sheraton hotel tahiti procompetitive benefits. Accordingly, Plaintiffs should be compelled to provide the requested discovery..
Defendants’ RFPs 15 through 19 seek documents that reflect the facts, factual assumptions, and forecasts on which DOJ based its original conclusions that the service improvements and other consumer benefits sheraton hotel tahiti expected from the prior mergers would increase competition, sheraton hotel tahiti notwithstanding any predicted fare effects on overlapping routes. Interrogatory 2 asks for the same factual information directly. Defendants’ RFP 20 seeks the documents that reflect the underlying studies, analyses, and forecasts described in an article published sheraton hotel tahiti by three senior DOJ economists that “report[ed]” on DOJ’s approval of the Delta-Northwest merger and summarized sheraton hotel tahiti the government’s method for evaluating the costs and benefits of proposed mergers. ( See Ex. D, Heyer, Shapiro, Wilder, The Year in Review: Economics at the Antitrust Division 2008-2009 sheraton hotel tahiti , § 2.3.)
Plaintiffs refused to produce any of the requested documents sheraton hotel tahiti or information sheraton hotel tahiti on the ground that the factual record on which DOJ approved the prior airline mergers is not “relevant” to any issue in this case. Plaintiffs sheraton hotel tahiti also asserted several varieties of privilege, including deliberative sheraton hotel tahiti process sheraton hotel tahiti privilege and work-product protection. ( See Ex. A at 0023-33; Ex. B at 0043-0044.) The parties met and conferred, to no avail. In an effort to sharpen the issues for resolution sheraton hotel tahiti by the Special Master, Defendants asked Plaintiffs to itemize the categories of materials at issue, and explain what privilege(s) they claimed as to each category. Plaintiffs refused..
These discovery requests sheraton hotel tahiti do not seek privileged materials. sheraton hotel tahiti They do not seek the government’s internal sheraton hotel tahiti deliberations over whether to approve the prior mergers. sheraton hotel tahiti They do not seek the government’s legal analysis. Instead, sheraton hotel tahiti the requests simply seek facts. Plaintiffs have these facts in their possession, used these facts to approve prior mergers, and now claim this Court should halt the current merger because it may cause the same results as those prior mergers. Our discovery system is designed to ensure that parties cannot plead facts and then refuse to disclose those facts. The motion sheraton hotel tahiti to compel should be granted..
Defendants are entitled to discover all facts available to Plaintiffs that are potentially relevant sheraton hotel tahiti to the allegations sheraton hotel tahiti in the Complaint and all non-privileged documents that may lead to discovery of admissible evidence. See Fed. R. Civ. P. 26(b)(1). The requested materials and information easily meet this standard for at least two reasons.
First, the requested discovery will enable Defendants sheraton hotel tahiti to show that this merger is procompetitive even when evaluated sheraton hotel tahiti using similar models, forecasts, and analyses sheraton hotel tahiti as those the government itself relied on when it concluded sheraton hotel tahiti that earlier mergers did not violate section sheraton hotel tahiti 7. See United States v. Leggett Platt, Inc. , 542 F.2d 655, 658 (6th Cir. 1976) (“[I]nvestigatory inquiries into other industry acquisitions are relevant, and thereby discoverable sheraton hotel tahiti unless privileged, to the extent they contain factual materials, such as surveys and economic analyses of the industry, and the government analyses.”). Defendants intend to show at trial that the present merger should be approved because its net effect will be to increase, not decrease, competition.
Defendants expect to make this showing in part using models and economic studies sheraton hotel tahiti very similar to those that DOJ relied on in approving the prior mergers. Using DOJ’s own analysis, the present merger will generate similar and potentially even greater procompetitive effects than DOJ predicted when approving prior mergers under section 7.
Second, Plaintiffs have established the relevance of this inquiry by alleging that the prior airline mergers did not produce the benefits DOJ predicted, and attempting to use this fact to attack the current merger. Having approved previous mergers and put their results at issue in this case, DOJ cannot now refuse Defendants the opportunity sheraton hotel tahiti to understand whether and how the prior mergers’ outcomes were inconsistent with DOJ’s own analyses. In addition, sheraton hotel tahiti Defendants have submitted a retrospective merger analysis to DOJ, and the allegations in the Complaint suggest that DOJ may cross-examine Defendants’ expert witnesses sheraton hotel tahiti about these prior mergers. Without the requested factual materials and information, Defendants will be handcuffed in responding to these allegations and in preparing for expert depositions. Put simply, having raised the issue, Plaintiffs must now allow its full consideration.
Plaintiffs’ privilege assertions should be rejected. Defendants’ discovery requests seek only factual materials and information, and Plaintiffs cannot shield this information from Case 1:13-cv-01236-CKK Document 84-1 Filed 09/20/13 Page 5 of 13 5 discovery now that they have put at issue DOJ’s prior merger analyses—and in any event, DOJ has waived any basis it might have to claim privilege by its own public statements.
The deliberative process privilege “does not authorize an agency to throw a protective blanket over all information” that may have been selected or generated in support of a deliberative decision; thus, “[p]urely factual reports and scientific studies cannot be cloaked in secrecy by [a privilege] designed to protect only those internal sheraton hotel tahiti working papers in which opinions are expressed and policies formulated and recommended.” sheraton hotel tahiti Am. Radio Relay League, Inc. v. FCC , 524 F.3d 227, 238 (D.C. Cir. 2008) (quotation marks omitted); see McGrady v. Mabus , 635 F. Supp. 2d 6, 17 (D.D.C. 2009) (“When the information at issue is ‘[f]actual material that does not reveal the deliberative process,’ it is not protected.”) (citations sheraton hotel tahiti omitted). Unlike the ultimate policy recommendations conveyed to the relevant decisionmaker—which may be protected—the facts, data analyses, economic studies, models, and forecasts that underlie those recommendations fall outside the privilege and must