In Re Sony PS3 "Other OS" Litigation

Filing 114

Declaration of Rosemary M. Rivas in Support of 111 MOTION for Protective Order [Notice of Motion and Memorandum of Points and Authorities] MOTION for Protective Order [Notice of Motion and Memorandum of Points and Authorities], 112 MOTION to Compel Discovery from Defendant SCEA's Parent Company; and Order Entering the Northern District of California's Standard Stipulated Protective Order [Notice and Memorandum of Points and Authorities] MOTION to Compel Discovery from Defendant SCEA's Parent Company; and Order Entering the Northern District of California's Standard Stipulated Protective Order [Notice and Memorandum of Points and Authorities] filed byJason Baker, Antal Herz, Jonathan Huber, Elton Stovell, Anthony Ventura. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Related document(s) 111 , 112 ) (Rivas, Rosemary) (Filed on 12/15/2010)

V e n t u r a v . S o n y C o m p u t eD r o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James A. Quadra (SBN 131084) jquadra@calvoclark.com CALVO & CLARK, LLP One Lombard Street, Second Floor San Francisco, California 94111 Telephone: (415) 374-8370 Facsimile: (415) 374-8373 Rosemary M. Rivas (SBN 209147) rrivas@finkelsteinthompson.com FINKELSTEIN THOMPSON LLP 100 Bush Street, Suite 1450 San Francisco, California 94104 Telephone: (415) 398-8700 Facsimile: (415) 398-8704 Interim Co-Lead Counsel UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA In Re Sony PS3 "Other OS" Litigation Case No. CV-10-1811-RS DECLARATION OF ROSEMARY RIVAS IN SUPPORT OF: (A) PLAINTIFFS' MOTION FOR A PROTECTIVE ORDER; AND (B) PLAINTIFFS' MOTION FOR AN ORDER: (1) COMPELLING DISCOVERY FROM DEFENDANT SCEA'S PARENT COMPANY, AND (2) ENTERING THE NORTHERN DISTRICT OF CALIFORNIA'S STANDARD PROTECTIVE ORDER. Date: February 9, 2011 Time: 10:30 a.m. Judge: Magistrate Judge Edward M. Chen Courtroom: C, 15th Floor James Pizzirusso (admitted pro hac vice) jpizzirusso@hausfeldllp.com HAUSFELD LLP 1700 K. Street NW, Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 DECLARATION OF ROSEMARY M. RIVAS CASE NO. CV-10-01811-RS D o c k 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Rosemary M. Rivas, declare as follows: 1. I am a partner with the law firm Finkelstein Thompson LLP, Interim Co- Lead Counsel representing the Plaintiffs in the above-captioned action. I am a member in good standing of the State Bar of California. I have personal knowledge of the facts stated herein, and if called on to do so, could and would testify competently thereto. I make this declaration in support of: (A) Plaintiffs' Motion for a Protective Order; and (B) Plaintiffs' Motion for an Order: (1) Compelling Discovery from Defendant SCEA's Parent Company, and (2) Entering the Northern District of California's Standard Stipulated Protective Order. 2. Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, on August 12, 2010, Plaintiffs (represented by myself and my co-counsel in this case, James Pizzirusso, James A. Quadra, Rebecca Coll and Daniel L. Warshaw), met and conferred in-person and by telephone with Defendant's counsel, Luanne Sacks and Carter Ott. 3. During the Rule 26(f) meeting, the parties discussed a number of matters. Ms. Sacks informed us that notwithstanding SCEA's anticipated motion to dismiss, SCEA would not seek to stay discovery. 4. During the parties' Rule 26(f) meeting, I requested that SCEA provide Plaintiffs with a draft stipulated protective order. I informed Ms. Sacks that Plaintiffs did not want to be in the position where SCEA would refuse to produce responsive documents absent the entry of a protective order. Ms. Sacks indicated that SCEA would provide a draft stipulated protective order within one week. Mr. Ott stated that SCEA would also provide a redlined version of the Northern District of California's Stipulated Protective Order. 5. Further, Ms. Sacks informed Plaintiffs that it was Defendant's position that to comply with their preservation obligations, Plaintiffs should no longer use their PS3s. Ms. Sacks also informed Plaintiffs that Defendant intended to seek discovery from and depose the unnamed class members who previously filed complaints but were not named in the Consolidated Class Action Complaint. Attached hereto as Exhibit A is a true and correct copy of a letter that Defendants sent to Plaintiffs, dated August 26, 2010 outlining Defendant's preservation demands, which included demands on absent class members. 1 DECLARATION OF ROSEMARY M. RIVAS CASE NO. CV-10-01811-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. On September 8, 2010, Plaintiffs served SCEA by overnight mail their First Request for Production of Documents ("Document Requests"), of which a true and correct copy is attached hereto as Exhibit B. Attached hereto as Exhibit C is a true and correct copy of Defendant's Responses and Objections to Plaintiffs' First Set of Requests for Production of Documents ("Defendant's Responses and Objections"). Defendant did not serve any responsive documents with its responses at this time. To date, Defendant has only produced its various terms of service, warranties, and licensing agreements which are publicly available on its website. 7. Attached hereto as Exhibit D is a true and correct copy and exemplar of the deposition notices Defendant Sony Computer Entertainment America LLC ("SCEA") served on each of the Plaintiffs on September 24, 2010. 8. On October 18, 2010, the parties discussed, among other things, meeting and conferring regarding Defendant's Responses and Objections and the stipulated protective order. On this same date, Mr. James Pizzirusso sent Ms. Sacks the Northern District of California's Standard Stipulated Protective Order. Attached hereto as Exhibit E is a true and correct copy of an email string reflecting the parties' communications. 9. On October 19, 2010, Plaintiffs agreed to appear in San Francisco, California for deposition as follows: November 9, 2010 (Plaintiff Antal Herz); November 15, 2010 (Plaintiff Anthony Ventura); November 19, 2010 (Plaintiff Elton Stovell); November 22, 2010 (Plaintiff Jason Baker); and December 9, 2010 (Plaintiff Jonathan Huber). Defendant agreed to this schedule. 10. Attached hereto as Exhibit F is a true and correct copy and exemplar of Plaintiffs' responses and objections to SCEA's notice of deposition and document requests ("Plaintiffs Responses and Objections") that Plaintiffs served on SCEA on October 28, 2010. Plaintiffs deemed most of Defendant's document requests objectionable, and therefore offered to meet and confer about them. 2 DECLARATION OF ROSEMARY M. RIVAS CASE NO. CV-10-01811-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. On October 29, 2010, the parties met in-person to discuss Defendant's Responses and Objections. During this meeting, Ms. Sacks informed Plaintiffs that SCEA is responsible for the marketing and distribution of the PlayStation 3 ("PS3"), as well as for providing customer support relating to the PS3. Ms. Sacks stated that Defendant's parent, Sony Computer Entertainment, Inc. ("SCEI") was responsible for the PS3's design, as well as for the decisions related to including and removing the PS3's "Other OS" function. When the parties discussed Plaintiffs' Document Request Nos. 5-7 and 10-13, Ms. Sacks indicated that SCEA did not have responsive documents in its possession, custody and control, but that to the extent such documents existed, they were likely in the possession, custody and control of SCEI in Japan. According to Ms. Sacks, SCEA was not obligated to produce responsive documents located in Japan. 12. During the parties' October 29, 2010 meeting, Plaintiffs also discussed the issue of the stipulated protective order. Ms. Sacks stated that Defendant would not produce documents until the parties reached an agreement on the stipulated protective order and that a draft would be forthcoming. Plaintiffs proposed that if Defendant produced documents, Plaintiffs would maintain such documents confidential under the designation "Attorneys' Eyes Only" until a protective order was entered by the Court. 13. On November 8, 2010, the day before the first scheduled deposition of Plaintiff Antal Herz, Plaintiffs received an email informing them that Defendant's counsel, Ms. Sacks, was ill. Defendant asked to reschedule Plaintiff Herz's deposition. Attached hereto as Exhibit G is a true and correct copy of this email. Although Plaintiff Antal Herz was prepared to proceed with the deposition scheduled on November 9, 2010, Plaintiffs' counsel agreed to reschedule the deposition. 14. On November 9, 2010, Defendant for the first time requested a meet and confer to discuss Plaintiffs' Responses and Objections and also to discuss the issues from the parties' October 29, 2010 meet and confer. The parties agreed to meet and confer by telephone on November 12, 2010 when Ms. Sacks was feeling better. 3 DECLARATION OF ROSEMARY M. RIVAS CASE NO. CV-10-01811-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. Attached hereto as Exhibit H is a true and correct copy of a letter I sent to Ms. Sacks on November 10, 2010 confirming the results of the parties' meet and confer of October 29, 2010 to facilitate the parties' telephonic meet and confer on November 12, 2010. 16. The parties participated in a lengthy meet and confer by telephone on November 12, 2010 regarding the depositions and Plaintiffs' Responses and Objections, among other things. Specifically, Ms. Sacks indicated that with respect to Defendant's Document Request No. 14, Defendant expected Plaintiffs to conduct a search on the Internet for any advertisements they relied upon in purchasing their PS3s. Ms. Sacks stated that if Plaintiffs did not do so, Defendant would object to Plaintiffs' ability to introduce any such materials that were later discovered at summary judgment or at trial. Unfortunately, the parties were unable to resolve their differences. Attached hereto as Exhibit I is a true and correct copy of an email string dated November 8, 2010 through November 12, 2010 between Plaintiffs' counsel and Defendant's counsel reflecting part of the parties' meet and confer efforts during that time frame. The parties agreed to meet and confer the following week regarding a hearing date and briefing schedule on Plaintiffs' motion for a protective order and cross motions to compel. 17. The parties held another telephonic meet and confer on November 15, 2010, wherein they continued to discuss the discovery disputes. Counsel for SCEA stated that it would be willing to stipulate to SCEA producing documents from SCEI but that Plaintiffs would need to follow the requirements for taking depositions in Japan under international discovery rules. Plaintiffs' counsel requested that SCEA provide a proposal in writing. The parties also discussed SCEA's demand for forensic copies of Plaintiffs' PS3 hard drives. The parties were unable to reach an agreement on the discovery disputes and therefore agreed to stipulate to a briefing schedule on Plaintiffs' motion for a protective order and cross motions to compel. 18. On November 18, 2010, I sent an email to SCEA stating that Plaintiffs would not agree to produce forensic copies of the hard drives and instead proposed to allow a mutually acceptable vendor to inspect the PS3 hard drives and prepare a report, at SCEA's expense, that sets forth (1) whether Linux was installed and the date of installation; and (2) whether the 4 DECLARATION OF ROSEMARY M. RIVAS CASE NO. CV-10-01811-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 following types of files exist, or not, on the hard drives: video game files, movie files, music files, word processing files, email files, or other Linux software related files. I requested that SCEA inform Plaintiffs by November 22, 2010 whether it agreed to this proposal. In response to my email, Ms. Sacks responded on November 19, 2010 stating that she would inform us of SCEA's position by November 22, 2010. Unfortunately, Plaintiffs did not learn that SCEA rejected Plaintiffs' proposal until November 23, 2010 after 10:00 p.m. 19. Attached hereto as Exhibit J is a true and correct copy of an email string dated from November 8, 2010 through November 23, 2010 between Plaintiffs' counsel and Defendant's counsel related to the Defendant's draft stipulated protective order. 20. Attached hereto as Exhibit K is a true and correct copy of an email string dated from November 18, 2010 through November 24, 2010 between Plaintiffs' counsel and Defendant's counsel relating to the parties' discovery disputes. 21. Attached hereto as Exhibit L is a true and correct copy of an email string dated from November 29, 2010 through December 1, 2010 between Plaintiffs' counsel and Defendant's counsel related to the parties' discovery disputes. 22. Attached hereto as Exhibit M is a true and correct copy of the stipulation Defendant proposed and sent to Plaintiffs on December 8, 2010 regarding discovery of Defendant's parent, SCEI. Attached hereto as Exhibit N is a true and correct copy of an email string dated from December 8, 2010 through December 9, 2010 between Plaintiffs' counsel and Defendant's counsel related to the stipulation. 23. Attached hereto as Exhibit O is a true and correct copy of am email string dated from December 8, 2010 through December 10, 2010 between Plaintiffs' counsel and Defendant's counsel related to the parties' meet and confer efforts on Plaintiffs' motion to compel. 24. Attached hereto as Exhibit P is a true and correct copy of the declaration of John Fabry, one of Plaintiffs' counsel. 25. On December 1, 2010, Plaintiffs' counsel, Calvo & Clark, began producing documents. Plaintiffs are endeavoring to complete their document production as soon as 5 DECLARATION OF ROSEMARY M. RIVAS CASE NO. CV-10-01811-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 possible. Plaintiffs have produced (or will produce) the following categories of information to the extent such information is in their possession, custody or control: a. b. c. d. e. Photographs of their PS3s (including photographs of the serial numbers); Proofs of purchase for their PS3s and product inserts (such as manuals); Photographs of peripherals used with PS3's "Other OS" feature; Any advertising related to the PS3; Non-privileged communications between the named Plaintiffs and anyone regarding the "Other OS" function or Firmware Update Version 3.21; f. g. h. i. j. Any information relating to "hacking" or "jailbreaking" of the PS3; Technical articles regarding Linux; Emails from SCEA; Screen shots of Firmware Update Version 3.21; Copies of complaint letters sent to the Better Business Bureau and the Federal Trade Commission; and j. Non-privileged documents cited in the Consolidated Class Action Complaint filed on July 30, 2010. I declare under penalty of perjury under the laws of the United States of America that the foregoing facts are true and correct. Executed this 15th day of December in San Francisco, California. /s/ Rosemary M. Rivas Rosemary M. Rivas 6 DECLARATION OF ROSEMARY M. RIVAS CASE NO. CV-10-01811-RS