THE COMPETITION TRIBUNAL
PUBLIC
CT-2022-002
IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34; AND IN THE MATTER OF the proposed acquisition by Rogers Communications Inc. of Shaw Communications Inc.;
AND IN THE MATTER OF an application by the Commissioner of Competition for one or more orders pursuant to Section 92 of the Competition Act.
B E T W E E N:
THE COMMISSIONER OF COMPETITION – and –
Applicant
ROGERS COMMUNICATIONS INC. and SHAW COMMUNICATIONS INC. Respondents – and –
ATTORNEY GENERAL OF ALBERTA and VIDEOTRON LTD.
Intervenors
SECOND SUPPLEMENTARY AFFIDAVIT OF DANIEL STERN (Affirmed October 24, 2022)
I, DANIEL STERN, of the City of Toronto, in the Province of Ontario MAKE OATH AND SAY:
1. I am the Director, Regulatory Law and Policy of TELUS. I have affirmed this affidavit (my “Second Supplementary Affidavit”) to supplement the affidavit that I swore on October 13, 2022 (“Original Affidavit”) and the affidavit that I swore on October 17, 2022 (“Supplementary Affidavit” collectively, my “Prior Affidavits”).
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2. All capitalized terms used herein that are not defined have the definitions set out in my Prior Affidavits.
3. During my cross-examination on Thursday, October 20, 2022, counsel for Rogers advised me that Rogers interpreted the Rogers Second Subpoena in a manner that was different from how I and TELUS had interpreted it. I swear this affidavit in response to Rogers’ new interpretation.
4. As set out in my Supplementary Affidavit, the Rogers Second Subpoena requests certain materials “…to Telus Communication Inc.’s (“Telus”) board of directors or executive leadership team…”. Based on the plain language of the subpoena, I and TELUS interpreted this to be a request for materials to TELUS’s board of directors (“Board”) or executive leadership team (“ELT”) as a whole and excluding discrete communications relating to a single member of the Board or ELT. The subpoena specifically refers to these two entities only in the collective and does not ask for materials to the individuals that make-up those entities. My Supplementary Affidavit was based on this interpretation, as I expressly stated at paragraph 18 therein.
5. During my cross-examination on Thursday, October 20, 2022, counsel for Rogers advised for the first time that Rogers interprets the Rogers Second Subpoena differently. Specifically, he took the position that the Rogers Second Subpoena compels the production of materials that went to any single member of either of the Board or the ELT.
6. While I believed at the time I swore y Supplementary Affidavit that TELUS would be able to comply with the Rogers Second Subpoena by November 7, 2022 if it is limited to materials prepared for the Board or ELT as a whole, it will be much more difficult for
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TELUS to comply with the Rogers Second Subpoena in a timely manner if Rogers’ broader interpretation is adopted.
7.
The Rogers Second Subpoena covers a six-month period.
8. Currently, 15 individuals sit on TELUS’ Board and 11 individuals sit on TELUS’ ELT. As one individual sits on both the Board and ELT, the two entities are composed of 25 unique individuals.
9. The logistics of collecting the specified materials from each and every member of the TELUS ELT is complicated by the fact that almost all TELUS ELT members are working partly from home, and thus not all of the computers/laptops and other devices that need to be searched are necessarily in TELUS “offices”; rather some relevant records may be in home offices located across Canada. This was a fact that I explained in my Original Affidavit.
10. Based on my inquiries, I believe that it would take TELUS and its external advisors and e-discovery teams approximately 30 days to: (i) collect potentially relevant presentations and memoranda from the individual members of the Board or ELT, load these documents onto technology platforms, and perform a de-duplication process; (ii) review all potentially relevant documents to ensure responsiveness; (ii) conduct a privilege review; and (iii) further redact unrelated, privileged, and/or competitively sensitive information, as there is likely to be a considerable volume of competitively sensitive and privileged information in such documents given their very nature.
11. This assumes a large external review team working full-time, as well as significant input from numerous TELUS employees and our external counsel. The cost to TELUS to
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complete this process would be significant. Accordingly, I do not believe there is any way that this material could be produced by November 7, 2022 – it will likely take until the end of November, 2022.
12. Finally, I understand that litigation privilege is at issue on this motion. Attached as Exhibit “A” is an email, previously produced by the Commissioner in the context of the prior motion relating to the Confidentiality Order, that may be relevant to this issue.
remotely by Daniel Stern of the City of Toronto in the Province of Ontario, before me at the City of Toronto, in the Province of Ontario, on October 24, 2022 in accordance with O. Reg 431/20, Administering Oath or Declaration Remotely.
Commissioner for Taking Affidavits (or as may be)
Daniel Stern
This is Exhibit referred to in the Supplementary Affidavit October
Daniel Stern , 2022
_____________________________________ Commissioner for Taking Affidavits (or as may be)
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