Boston Retirement System v. Uber Technologies, Inc.

Background

The parties submitted three joint discovery letters concerning disputes arising before and after the September 20, 2023 fact-discovery deadline. Boston Retirement System, the lead plaintiff, also filed related motions to seal portions of discovery materials.

First Discovery Letter: Docket No. 346

Boston Retirement System asked the court to require Uber Technologies, Inc. to produce a new witness under Federal Rule of Civil Procedure 30(b)(6). That rule allows an organization to designate a witness to testify about specified topics. Boston Retirement System argued that Uber’s witness, Glen Ceremony, was inadequately prepared to testify about four designated topics concerning valuations, financial condition and projections, competition, disclosures, and their possible effects on Uber’s valuation or stock price.

The court denied the request for a new witness. After reviewing the deposition transcript, it concluded that Ceremony adequately answered the challenged questions and that Boston Retirement System had not shown that he was unable to answer questions within the designated topics.

Boston Retirement System also sought a list of the documents Ceremony reviewed while preparing for his deposition and notes he made during that preparation. The court held that the record did not establish that Ceremony used those materials to refresh his memory for the purpose of giving particular testimony, as required for possible production under Evidence Rule 612. The court denied both requests.

Boston Retirement System further sought to reopen Barney Harford’s deposition for two additional hours because documents had been produced shortly before the deposition. The court found that the documents were produced before the deposition, that Boston Retirement System did not seek a postponement or ask Harford about them during the deposition, and that Boston Retirement System had not shown good cause for additional time. The court denied the request to reopen Harford’s deposition.

Second Discovery Letter: Docket No. 347

Boston Retirement System sought additional text messages from individual defendants Wan Ling Martello and John Thain, the complete source of Travis Kalanick’s text-message production, and amended discovery responses from Kalanick, Martello, and Thain.

The court denied the request for additional messages from Martello and Thain because Boston Retirement System provided only limited supporting evidence, consisting of two similar messages from Kalanick, one to each person. The court also denied the request for Kalanick’s complete text-message source because Boston Retirement System did not provide evidence showing that the materials it referenced were responsive to its discovery requests or available to Kalanick.

The court further held that the individual defendants’ discovery responses about their general use of text messages were not inconsistent with the limited evidence presented. It denied the request to compel amended responses and denied the Second Discovery Letter.

Third Discovery Letter: Docket No. 410

The third letter concerned amended answers to interrogatories about the individual defendants’ due-diligence defense under Section 11 of the Securities Act of 1933. The interrogatories sought documents and people the defendants relied on when investigating statements in Uber’s offering documents before May 9, 2019.

The court found that the amended responses improved on the earlier responses but remained inadequate in some respects. In particular, the responses referred broadly to document lists without clearly identifying which documents each defendant reviewed and relied on, and the lists did not provide dates tied to the requested pre-May 9, 2019 period.

The court ordered each individual defendant to amend the responses to state clearly whether and when the defendant reviewed and relied on each document listed in Exhibits A-1 through A-5. If a defendant could not remember, the defendant had to say so under oath. The amended answers were due February 26, 2024.

The court rejected Boston Retirement System’s objections to Exhibits B-1 through B-5, which identified people involved in electronic communications, meetings, or oral communications forming part of the defendants’ due-diligence investigations. It also denied Boston Retirement System’s request to reopen the individual defendants’ depositions.

Sealing Motions and Disposition

Applying the lower “good cause” standard for sealing discovery materials attached to non-dispositive motions, the court granted in part the motion concerning Ceremony’s deposition transcript and ordered Boston Retirement System to refile a version consistent with Uber’s proposed redactions. The court also granted in part the motion concerning the Second Discovery Letter and the individual defendants’ discovery responses, with refiling required consistent with Uber’s proposed redactions.

The court’s final rulings were: the First Discovery Letter was denied; the Second Discovery Letter was denied; and the Third Discovery Letter was granted in part and denied in part. Donna M. Ryu required the individual defendants to serve their amended answers by February 26, 2024.