Gamefly has filed a motion to postpone the September 1st and 2nd hearing because their counsel is sick, and Netflix has released Robert Lundahl from his confidentiality clause to testify before the PRC.
However, Netflix had the following to say about Gamefly's intent:
First, with respect to Gamefly’s motion to compel, Netflix believes that GameFly’s requests for confidential information of Netflix are principally an attempt by Gamefly to gain for free the benefit of research paid for by Netflix. Either that, or GameFly’s requests are a legal pretense to block expert testimony by demanding exposure of commercially sensitive information from Netflix. Netflix is not a party to this proceeding, nor has it been accused by GameFly of engaging in any discriminatory action, nor is it a direct competitor of GameFly. Yet, Netflix now finds that, unless it releases commercially sensitive and proprietary information concerning studies paid for by Netflix (having nothing to do with Netflix’s relations to the Postal Service) it will be put in the position of appearing to thwart the presentation of material evidence to assist the Commission in resolving the issues in this case.
Secondly, and more importantly, this case is not about discriminatory treatment but instead an attempt by Gamefly to manipulate the Postal Service, through the PRC, into offering it favorable mailing rates. The fact that the USPS has offered to accord the exact treatment to GameFly at First Class one-ounce rates which it provides to Netflix (Tr. V- 950-951) bears out this point. Instead, GameFly demands that it, unique among all mailers, be allowed to continue to mail extra ounce First Class material at single piece rates. We think this is untenable: Gamefly does not want nondiscriminatory treatment; Gamefly wants its own special treatment. Instead of investing the time and resources that Netflix has in reducing its costs by lowering breakage of DVDs mailed through the USPS1 , Gamefly, through this proceeding, is attempting to get the PRC to reduce postage costs for them so that they can get the economic equivalent of what Netflix has achieved on its breakage reduction, without investing the time or energy themselves.
Lastly, Netflix wants to highlight its concern regarding the potential actions the PRC may take in resolving this matter. Netflix cannot but express the sense that it may become the proverbial innocent bystander who is accidently shot during a botched bank robbery. GameFly’s attempts to seek redress for supposed “discrimination” if satisfied by this Commission in a manner that impacts Netflix’s operations, could jeopardize what Netflix has been told is the most profitable mailing arrangement enjoyed by the Postal Service, and exacerbate the Postal Services’ already dire financial situation. Such a decision would likely result in reduced DVD shipment growth from Netflix as well as accelerate the ultimate decline of DVD shipments as Netflix would shift more resource to the digital delivery of content.