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Centurylink, Inc. v. Dish Network LLC

United States District Court, S.D. New York

August 7, 2014

CENTURYLINK, INC., Plaintiff,
v.
DISH NETWORK L.L.C., Defendant.

OPINION AND ORDER

HENRY PITMAN, Magistrate Judge.

I write to resolve a dispute between the parties concerning defendant's responses to four requests for admissions ("RFAs") served by plaintiff. Plaintiff claim the responses are deficient and seeks an Order either directing defendant to serve amended response or deeming the requests admitted.

The facts giving rise to this action are set forth in two opinions by the late Honorable Harold Baer, United States District Judge, and an opinion issued by the Court of Appeals for the Second Circuit. See Centurylink, Inc. v. Dish Network, L.L.C., 11 Civ. 5528, (HB), 2012 WL 3100782 (S.D.N.Y. July 31, 2012); Centurylink, Inc. v. Dish Network, L.L.C., 11 Civ. 5528, (HB), 2012 WL 6186462 (S.D.N.Y. Dec. 12, 2012), aff'd in part, vacated and remanded in part, 554 F.App'x 51 (2d Cir. 2014). Familiarity with these opinions and the issues in this action is assumed.

The present dispute arises out four RFAs plaintiff served concerning the negotiations that resulted in the contract between the parties. The RFAs and the responses are as follows:

Request No. 1
When negotiating the Contact in 2006 and 2007 prior to its execution, EchoStar and Embarq did not discuss a 60-Month Cap on Monthly Incentives.
Response
Denied, subject to the following qualification. During the 2006/2007 negotiations regarding the EchoStar/Embarq Amended and Restated Sales Agency Agreement dated as of May 1, 2007 (the "Contract"), EchoStar (hereinafter "DISH") and Embarq (hereinafter "CenturyLink") discussed payment standards contained in DISH's Retailer Business Rules applicable to DISH's retailers that included the 60 month cap, as part of the discussions relating to DISH's "sole discretion" right under Schedule 9.8.1 and CenturyLink's rights under Section 12.1(i) and Section 12.4(d).
Request No. 2
When negotiating the Contact in 2006 and 2007 prior to its execution, EchoStar and Embarq did not discuss whether DISH should have the right to employ a 60-Month Cap on Monthly Incentives.
Response
Denied, subject to the following qualification. During the 2006/2007 negotiations regarding the Contract, DISH and CenturyLink discussed payment standards contained in DISH's Retailer Business Rules applicable to DISH's retailers that included the 60 month cap, as part of the discussions relating to DISH's "sole discretion" right under Schedule 9.8.1 and CenturyLink's rights under Section 12.1(i) and Section 12.4(d).
Request No. 3
When negotiating the Contact in 2006 and 2007 prior to its execution, EchoStar and Embarq did not discuss that Schedule 9.8.1 would permit DISH to ...

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