MSL has not suggested how it was harmed by them.
Plaintiff also cites Continental Ore Co. v. Union Carbide and Carbon Corp. for the proposition that proof of conspiracy should not be compartmentalized. 370 U.S. 690, 82 S. Ct. 1404, 8 L. Ed. 2d 777 (1962). MSL's case is not similar to that of the plaintiff in Continental Ore. In that case, plaintiff alleged that it suffered injury when defendants' Sherman Act violations frustrated plaintiff's efforts to enter into metal trading, and caused the collapse, termination, or frustration of five of plaintiff's attempted ventures. Id. at 694-95. The Supreme Court held that it was improper of the Court of Appeals to have viewed plaintiff's claims as if they were five separate, unrelated lawsuits. That is not the same issue here. MSL's injury was allegedly caused by the ABA's enforcing certain accreditation standards with which MSL did not want to comply. Under Continental Ore, this means I should not view as separate lawsuits the injury allegedly suffered by MSL from the student-faculty ratio standard, the standard prohibiting for-credit bar review courses, the standard concerning length of the academic year, and so on, but should view as a whole the conspiracy to enforce these standards. But Continental Ore does not mean that I should view as part of the conspiracy standards which were not the basis for the decision not to accredit MSL and so did not cause MSL's injury.
Because the ABA's decision not to accredit plaintiff was based on noncompliance with standards other than 405(a), 602, 603, and 704, these standards cannot be said to have injured MSL. Therefore, the ABA's motion for reconsideration as to these standards must be granted, and the discovery order of May 20, 1994, must be amended to exclude at this time discovery about the development, implementation, discussion, and debate of these standards. Discovery on them is permitted, however, to the extent it is necessary to determine if these standards were in fact reasons MSL was denied accreditation. The order of May 20 made clear that MSL is entitled to discovery on all aspects of its ABA accreditation file and of ABA discussions and decisions concerning MSL. From those materials it should be sufficient to ascertain if standards 405(a), 602, 603, or 704 were the basis for the decision of any ABA body to deny MSL accreditation. If they were, further discovery on these standards will be allowed.
III. MSL's Motion for Reconsideration
MSL argues that ABA-compiled law school statistics, which are discoverable under the May 20 order, will not be sufficient to enable MSL to carry its burden of proving that the ABA's accreditation standards caused anticompetitive effects, as it must under a rule of reason analysis. Rather, MSL asserts, it needs complete information about individual law schools' accreditation to show that, because of ABA enforcement of its standards, the individual law schools were required to hire more professors, decrease teaching loads, raise tuition, and so on, all or some of which had an anticompetitive effect.
The ABA contends that MSL does not need accreditation information on individual schools because such information has no bearing on whether the restraints are reasonable. Further, the ABA argues that it would be burdensome to produce accreditation documents on numerous law schools and, moreover, that the information is confidential. A law school seeking accreditation, the ABA explained, submits private, self-critical information to the ABA, with the expectation that it will not be disclosed to the public and to the law school's competitors. Even if it loses this case, MSL would profit greatly if through discovery it had gained access to its competitors' comments about their individual deficiencies, information MSL could then use to promote its place in the market.
The ABA's concern, though made known to MSL and its attorneys, has not generated any assurances of maintaining confidentiality or a pledge of non-use for promotional purposes. It follows that there may be good reason quite apart from the usual burdens of discovery for honoring the ABA's request.
MSL argues in its supplemental memorandum that the evidence it seeks is analogous to that put forth in National Collegiate Athletic Ass'n v. Board of Regents of the University of Oklahoma. 468 U.S. 85, 82 L. Ed. 2d 70, 104 S. Ct. 2948 (1984). That case involved allegations that the NCAA unreasonably restrained trade in awarding television rights for college football games. Id. at 89. As MSL notes, the Supreme Court looked at how the NCAA's plan for televising football games had developed, and found that schools received the same payments from the television networks regardless of the games' audience, market share, or reputation of the teams involved. Id. at 93. The facts of that case, however, do not support MSL's contention that the evidence it seeks to discover about all law schools is similar to the evidence considered by the courts in NCAA. For instance, the district court in NCAA gave an example of how four schools playing in two games on the same day each received the exact same television payment even though one of the games involved two schools far lesser known than plaintiff, the University of Oklahoma. Id. at 107 n.33 (citing district court opinion). The comparison involved one of the plaintiff schools and was an example of how the NCAA's television plan injured plaintiff because, presumably, its game would have been worth more to the network to televise than the game between the two lesser-known schools. Moreover, the plaintiffs in NCAA were asserting that the plan for televising football injured them, and that is the evidence the court addressed -- not how much each school spent on football as compared to other athletic programs, or what the NCAA's television policies were for other collegiate athletics, or how the NCAA policy affected other schools' football teams and athletic programs. Furthermore, the district court seemed to glean its evidence from an examination of the NCAA television contract and its associated "recommendations" to television networks, not from school-specific data and individualized records from each school's athletic department. Board of Regents of the Univ. of Okla. v. National Collegiate Athletic Ass'n, 546 F. Supp. 1276, 1289-91 (W.D. Okla. 1982). In short, I find that the evidence considered in NCAA is not analogous to the sweeping accreditation evidence MSL seeks about all other law schools and their adherence to, or deviation from, the ABA standards.
In any event, MSL's argument is premature at best. Before MSL delves into the accreditation file of a specific law school, how it prepared for inspection, and how it reacted or responded to ABA decision letters, MSL must first show that the accreditation process had an adverse effect on law school competition generally or on a law school individually. To that end, MSL is entitled to discovery in the aggregate about the effects of accreditation on competition.
As a starting point at least, the anticompetitive effects of the accreditation standards may come from statistics about competition among law schools. If the accreditation standards adversely affected competition, the results would likely begin to appear in the years after a law school received a decision letter. Therefore, MSL is entitled to discovery that would show law schools' tuitions, enrollment, number of applicants, number of full- and part-time faculty members, and student-faculty ratio in the years before a decision letter was issued, and in the several years afterward. If these data did not change following an accreditation decision letter, it is doubtful that permitting MSL to rummage through the files of the individual law school will show an anticompetitive effect from the same accreditation process. Of course, if, for example, tuition increased following a decision letter, it does not necessarily mean that the accreditation standards were the cause. There may be a wholly separate reason: perhaps a state legislature reduced support for a state school, or university trustees raised law school fees to finance new undergraduate dormitories. On the other hand, if there were no deleterious effects on competition as evidenced by the data, then there would be no reason for MSL then to obtain action letters and information about specific law schools.
The ABA shall provide the information described above for all accredited law schools. The ABA shall provide the data for at least the two years before a committee or council decision letter issued and the several years after, indicating in what year the decision letter was issued. The ABA need not provide the names of the law schools, but shall maintain an internal reference so that a school designated as "No. 1" or "No. 176" may be identified later if necessary.
For the reasons stated above, both MSL's and the ABA's motions for reconsideration are being granted in part and denied in part. The discovery order of May 20, 1994, is amended to exclude discovery by MSL of ABA standards 405(a), 602, 603, and 704, except that MSL may inquire into the ABA's records and files concerning MSL's accreditation application and the ABA decisions and discussions about MSL, in order to determine if any or all of those standards did in fact form the basis of the decision not to accredit MSL. The order is also amended to allow discovery by MSL of the ABA's compiled data and statistics from all accredited law schools, showing the tuitions, enrollment, number of applicants, number of full- and part-time faculty members, and student-faculty ratio in at least the two years before a decision letter was issued, and in the several years afterward. An appropriate order follows.
AND now, this 20th day of July, 1994, it is hereby ordered that the motions for reconsideration of the May 20, 1994, order of plaintiff and defendant, the ABA, are GRANTED in part and DENIED in part. The order is amended as follows:
1. MSL is not entitled to discovery pertaining to ABA standards 405(a), 602, 603, and 704 generally. MSL is entitled to discovery on these standards as applied to MSL's application, to the extent necessary to determine if any of these standards were the basis for the ABA's decision not to accredit MSL.
2. MSL may obtain from the ABA data and statistics from all accredited law schools, giving the schools' tuitions, enrollment, number of applicants, number of full- and part-time faculty members, and student-faculty ratio for at least the two years before a decision letter was issued, and in the several years afterward. The ABA shall not name the law schools, but shall maintain an internal reference so that they may be identified later if necessary.
BY THE COURT: