No doubt some of the Voom channels were not very popular. And yes, Dish receivers were cable of generating activity reports. However, I did not believe the data they forwarded to Scott. As I recall, Dish compiled a spreadsheet and forwarded a PDF copy of it to Scott. There was no independent verification and validation of the data so it was of "questionable" accuracy. Based on recent events, I feel reasonably confident the numbers were complete fiction. Who know? What we do know is these Voom activity reports are not a trusted source.
There is no doubt that AMC/Rainbow/Cablevision (call 'em what you wish) is partly culpable in this failed business relationship. However, I always suspected they improperly terminated the affiliation agreement (i.e., everything Voom proported in their Amended Complain in May 2008 made perfect logical sense) and they backed up their motion with evidence with nary a sensible argument/defense nor evidence from Dish. Not they're going to get whacked with the full Arm & Hammer of the law for a plethora of monkeyshines and shenanigans.
Now you're spinning. Dish's ONLY point of contention is that the 100M spend requirement (although it may be only 82M according to Voom) was for programming only. Period. Dish said this was their understanding of the agreement. As the evidence has demonstrated---and later reconfirmed by the deleted emails---Dish knew that all of Voom's customary business expenses and overhead counted toward meeting the 100M spend requirement. After all, this wasn't a carriage agreement, the collective agreements were part of a business partnership in which all the details, to include Dish being given a 20% equity share, were covered in the April 2005 LLC Agreeement. Besides, Annex A detailed the 11 authorized expense catetories (don't quote me on that number) and Dish's own audit (November 2007) concluded that Voom spent 102.94M (rounded up to 103M) on the 'service'. Besides, if Charlie was a handshake kind of guy, as you suggest, that would imply he was negligent in his responsibilities to fully understand the terms and conditions of the agreement he signed. Moreover, the recovered emails paint a very different picture...an ugly one in which Ergen know full well (in 2005 and again in 2007) that Voom spending included overhead.
It is a big deal...it shows that Dish was aware of the terms and conditions and, made a choice, to purposefully delete (not merely accidentally nor through email policy) evidence that was supposed to have been legally retained. I may be wrong, but I believe these 2005 and 2007 emails were deleted in 2008 after the legal hold was in place. I will assume they attempted wipe/overwrite the file using a 3rd party tool, but I have no information on how it was deleted nor how this information was recovered.
It goes a long way toward proving damages and penalties. For example, if somebody were to be kissing Charlie's boots while he was standing in the street and I accidentally struck the man and killed him which driving...well, I could potentially be going to jail for manslaughter. However, if I were to later make utterances that I aimed my vehicle at one of Charlie's boot lickers, well...I could be going to prison for murder (that or fined for littering
). The double deleted emails demonstrate knowledge and intent CV/AMC claims to have forensic data that the final 2007 Audit report (Excel Spreadsheet) was altered shortly before being submitted to the court via discovery, and that major portions of the document were removed. Voom believes the missing sections denote that Dish's auditor was using Annex A of the LLC (authorized spend catagories) to verify and validate expenses. In other words, even Dish's auditor used the aforemetioned document (the one Dish claims no knowledge of regardless of how many times they agreed to it) as the basis for conducting his audting and reporting his or her findings.
I would agree, except this case is based on preponderance of the evidence, there is no guilt or innocence to establish. I believe everything Voom has stated been supported by the evidence...and then some. I've seen enough to assume Dish is lying unless they prove their honesty.
