Case 1:11-md-02221-NGG-RER Document 596 Filed 06/05/15 Page 1 of 3 PageID #: 27028

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Jennifer M. Selendy
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jennifer.selendy@kirkland.com

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June 5, 2015
VIA CM/ECF
Magistrate Judge Ramon E. Reyes, Jr.
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201

Re:

In re American Express Anti-Steering Rules Antitrust Litigation, Case No.

11-MD-2221 (NGG)(RER)

Dear Judge Reyes:

I am counsel for DFS Services LLC, Discover Home Loans, Inc. and Discover Bank
(collectively, Discover). Discover is an intervenor and objector in In re Payment Card
Interchange Fee and Merchant Discount Antitrust Litigation, No. 05-MD-1720
(MKB)(JO)(E.D.N.Y. filed Oct. 20, 2005) (the Interchange Litigation or the MDL 1720
matter). Discover hereby seeks to join in the request for relief outlined in the motion to compel
filed today by the 7-Eleven Objectors, the Target Objectors, and Home Depot U.S.A., Inc. (Dkt.
No. 594) in the above-referenced litigation (the Amex Litigation).
On May 29, 2015, Discover filed a motion in the Amex Litigation (Dkt. No. 576, the
May 29 Motion) for an order requiring Willkie Farr & Gallagher, Hunton & Williams LLP
(Hunton), and Gary B. Friedman (Mr. Friedman) to produce to counsel for Discover
document logs and any and all documents relating to communications between Mr. Friedman
and Keila Ravelo (Ms. Ravelo) that have been or will be produced to counsel for various
parties and certain objectors, pursuant to the stipulations that have already been so ordered in the
Interchange Litigation and the Amex Litigation (the Stipulations). The May 29 Motion
included as exhibits the Stipulations countersigned by counsel for Discover. That motion was
granted by your Honor the same day. Discover has only been involved in the Amex Litigation as
a third-party that has provided documents and deposition testimony to the parties. We are
entering an appearance on behalf of Discover in this matter for the sole purpose of allowing
certain motions relating to the Friedman/Ravelo communications to be resolved as promptly and
efficiently as possible.
Beijing

Chicago

Hong Kong

Houston

London

Los Angeles

Munich

Palo Alto

San Francisco

Shanghai

Washington, D.C.

Case 1:11-md-02221-NGG-RER Document 596 Filed 06/05/15 Page 2 of 3 PageID #: 27029

Magistrate Judge Ramon E. Reyes, Jr.

June 5, 2015
Page 2

Following your Honors order on May 29, 2015, we began to receive some of the logs
and some of the communications between Mr. Friedman and Ms. Ravelo. We did not receive the
Hunton log until June 1, 2015, and the Hunton communications until June 3, 2015.
Still, based on the limited information that we have received to date, it is clear that many
documents relating to the MDL 1720 matter also relate to Discover and prominently feature the
provisions of the settlement agreement in the Interchange Litigation that were the subject of
Discovers objection (and are the subject of Discovers appeal). None of the parties involved in
this unfortunate set of events alerted Discover to the possible impact on the MDL 1720 matter or
invited Discover to participate in any of the meetings earlier this year that revealed the fact that
patently improper communications existed between Ms. Ravelo and Mr. Friedman that were
pertinent to that case. Accordingly, we have only recently learned that our clients interests are
implicated by the logged communications. It appears to us based on a preliminary review of logs
totaling over 800 pages, that there are a number ofapparently impropercommunications
between Mr. Friedman and Ms. Ravelo that relate to the MDL 1720 settlement agreement and, in
particular, to the level playing field provisions. In particular, it appears that Mr. Friedman shared
certain materials from this litigation with Ms. Ravelo that were likely to have influenced the
course of the settlement in the MDL 1720 matter.
On June 2, 2015, in light of Discovers review to date, and the fact that Discover has been
unable to meet and confer regarding objections to the production of communications between
Mr. Friedman and Ms. Ravelo, Discover filed a motion to request an extension to Judge
Orensteins Order of May 26, 2015 setting today as the deadline for motions to compel further
production of such communications. Today, that motion was denied in the absence of a showing
that Discover could not meet the current schedule.
Accordingly, Discover hereby respectfully joins in the request by the 7-Eleven Objectors,
the Target Objectors, and Home Depot U.S.A., Inc. for the Court (a) to order the production of
certain documents or portions of documents that remain subject to objections, and (b) review in
camera certain allegedly privileged documents and text messages, for all of the reasons outlined
therein. (Dkt. No. 594.) Discover fully appreciates that its request may be overly broad to the
extent that the other Objectors are seeking materials that pertain only to this matter and not to
MDL 1720, but is constrained by the schedule set by Judge Orenstein to move without having
had sufficient time to review all of the materials produced. Accordingly, to the extent that
American Express may have valid objections to Discovers motion to the extent that it seeks
access to all of the documents sought by the 7-Eleven Objectors, the Target Objectors, and Home
Depot U.S.A., Inc., Discover respectfully requests that the Court order the production of the
limited set of documents that appear directly relevant to Discover and/or its objection in the
Interchange Litigation, identified on Exhibit A attached hereto. We need these documents in
order to evaluate properly whether Discover will make a motion pursuant to Rule 60 in the
Interchange Litigation. Discover reserves its right to seek further relief to the extent that it is

Case 1:11-md-02221-NGG-RER Document 596 Filed 06/05/15 Page 3 of 3 PageID #: 27030

Magistrate Judge Ramon E. Reyes, Jr.

June 5, 2015
Page 3

prejudiced by late notice and the fact that it has not yet received all of the relevant
communications.

Respectfully submitted,
/s/ Jennifer M. Selendy
Jennifer M. Selendy
Counsel for DFS Services LLC, Discover
Home Loans, Inc. and Discover Bank