In Re Sony PS3 "Other OS" Litigation

Filing 116

MOTION to Compel ; Memorandum of Points and Authorites filed by Sony Computer Entertainment America Inc, Sony Computer Entertainment America LLC. Motion Hearing set for 2/9/2011 10:30 AM in Courtroom C, 15th Floor, San Francisco. (Ott, Carter) (Filed on 12/15/2010)

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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 DLA PIPER LLP (US) LUANNE SACKS, Bar No. 120811 luanne.sacks@dlapiper.com CARTER W. OTT, Bar No. 221660 carter.ott@dlapiper.com DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Francisco, CA 94105 Tel: 415.836.2500 Fax: 415.836.2501 Attorneys for Defendant SONY COMPUTER ENTERTAINMENT AMERICA LLC (erroneously sued as "Sony Computer Entertainment America Inc.") UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION In re SONY PS3 "OTHER OS" LITIGATION CASE NO. 3:10-CV-01811 DEFENDANT'S NOTICE OF MOTION AND MOTION TO COMPEL; MEMORANDUM OF POINTS AND AUTHORITIES Date: Time: Judge: Courtroom: February 9, 2011 10:30 a.m. Hon. Edward M. Chen C, 15th Floor WEST\222853455.1 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 WEST\222853455.1 TABLE OF CONTENTS Page NOTICE OF MOTION AND MOTION TO COMPEL................................................................. 1 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1 I. INTRODUCTION .............................................................................................................. 1 II. FACTUAL AND PROCEDURAL BACKGROUND........................................................ 3 A. The PS3 And Other OS Feature .............................................................................. 3 B. Firmware Update 3.21............................................................................................. 4 C. Plaintiffs' Reliance, Purchase, And Use Of Their PS3 Are Central To Their Claims ..................................................................................................................... 4 D. Plaintiffs Face Significant Hurdles In Obtaining Certification And Succeeding At Liability .......................................................................................... 7 E. The Present Discovery Dispute............................................................................... 8 III. LEGAL STANDARD......................................................................................................... 9 IV. THE COURT SHOULD ORDER PLAINTIFFS TO PRODUCE THE REQUESTED DOCUMENTS AND OTHER ITEMS..................................................... 10 A. Plaintiffs' PS3s And Personal Computers Are Integral To Their Claims And SCEA's Defenses .......................................................................................... 10 B. The Court Should Order Production Of Documents Regarding Reliance And Purchase ........................................................................................................ 14 C. The Court Should Order Production Of Documents Regarding Usage Of The PS3s ............................................................................................................... 17 D. The Court Should Order Production Of Documents Relevant To Consolidated Complaint Allegations .................................................................... 19 E. The Court Should Order Production Of Communications Relating To This Litigation ............................................................................................................... 22 F. The Court Should Order Production Of Communications Related To A False Representation Regarding This Litigation Made To The Public Via Mr. Ventura's Counsel's Website ......................................................................... 23 V. THE COURT SHOULD ORDER PLAINTIFFS TO APPEAR FOR DEPOSITION ................................................................................................................... 24 VI. CONCLUSION ................................................................................................................. 25 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 -i- 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 CASES TABLE OF AUTHORITIES Page Aliki Foods v. Otter Valley Foods, Inc., 2010 WL 2985030 (D.Conn. March 26, 2010)....................................................................... 12 ANZ Advanced Tech. LLC v. Bush Hog LLC, 2010 WL 3699917 (S.D. Ala. Sept. 9, 2010).......................................................................... 12 Arista Records LLC v. Tschirhart, 241 F.R.D. 462 (W.D. Tex. 2006) .......................................................................................... 12 Atlantic Recording Corp. v. Howell, 2008 WL 4080008 (D. Ariz. Aug. 29, 2008) .......................................................................... 12 Balibrea v. J & J Maintenance, Inc., 2010 WL 147905 (N.D. Cal. Jan. 12, 2010) ............................................................................. 9 Bronsink v. Allied Property and Casualty Ins. Co., 2010 WL 2342538 (W.D. Wash. June 8, 2010)...................................................................... 12 Bryant v. Mattel, Inc., 2007 WL 5416681 (C.D. Cal. Jan. 26, 2007) ......................................................................... 12 Coles v. Nyko Tech., Inc., 247 F.R.D. 589 (C.D. Cal. 2007) ...................................................................................... 12, 13 CSC Holdings, Inc. v. Redisi, 309 F.3d 988 (7th Cir. 2002)................................................................................................... 10 DIRECTV, Inc. v. Puccinelli, 224 F.R.D. 677 (D. Kan. 2004)............................................................................................... 10 Duran v. Cisco Sys., Inc., 258 F.R.D. 375 (C.D. Cal. 2009) .............................................................................................. 9 Flanagan v. Benicia Unified School Dist., 2008 WL 2073952 (E.D. Cal. May 14, 2008)........................................................................... 9 Fulco v. Continental Cablevision, Inc., 789 F. Supp. 45 (D. Mass. 1992) ............................................................................................ 24 Hammond v. Junction City, 167 F. Supp. 2d 1271 (D. Kan. 2001) ..................................................................................... 24 Hilao v. Estate of Marcos, 103 F.3d 762 (9th Cir. 1996)................................................................................................... 25 WEST\222853455.1 -ii- NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 WEST\222853455.1 TABLE OF AUTHORITIES (continued) Page Holliday v. Extex, 237 F.R.D. 425 (D. Hi. 2006) ................................................................................................. 13 In re Ford Motor Co. Bronco II Prod. Liab. Litig., 177 F.R.D. 360 (E.D. La. 1997).............................................................................................. 13 In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 331 (N.D. Ill. 2005) .............................................................................................. 10 New England Carpenters Health Benefits Fund v. First Databank, Inc., 242 F.R.D. 164 (D. Mass. 2007) ............................................................................................. 25 Ochoa-Hernandez v. Cjaders Foods, Inc., 2010 WL 1340777 (N.D. Cal. April 2, 2010) ......................................................................... 24 Oracle USA, Inc. v. SAP AG, 264 F.R.D. 541 (N.D. Cal. 2009) .............................................................................................. 9 Packman v. Chicago Tribune Co., 267 F.3d 628 (7th Cir. 2001)................................................................................................... 10 Russo v. Network Solutions, Inc., 2008 WL 114908 (N.D. Cal. Jan. 10, 2008) ............................................................................. 9 Stratienko v. Chattanooga-Hamilton County Hospital Auth., 2009 WL 2168717 (E.D. Tenn. July 16, 2009)....................................................................... 12 Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625 (9th Cir. 2005)..................................................................................................... 9 Vallone v. CNA Financial Corp., 2002 WL 1726524 (N.D. Ill. March 19, 2002) ....................................................................... 24 Yancey v. GMC Corp., 2006 WL 2045894 (N.D. Ohio July 20, 2006) ....................................................................... 12 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001)................................................................................................... 9 -iiiNOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 WEST\222853455.1 TABLE OF AUTHORITIES (continued) Page RULES Federal Rules of Civil Procedure Rule 23(a)(3) ........................................................................................................................... 13 Rule 23(c).................................................................................................................................. 1 Rule 26 .............................................................................................................................. 1, 2, 8 Rule 26(b) ............................................................................................................................... 13 Rule 26(f) .................................................................................................................................. 8 Rule 34 ................................................................................................................................ 9, 10 Rule 34(a)(1) ........................................................................................................................... 13 Rule 34(a)(2)(B)...................................................................................................................... 10 Rule 37 .................................................................................................................................... 10 Rule 37(c)(1) ............................................................................................................................. 9 Rule 37(c)(1)(A)........................................................................................................................ 9 Rule 37(d) ............................................................................................................................... 25 OTHER AUTHORITIES 2 Joseph M. McLaughlin, McLaughlin on Class Actions § 11:1 (6th ed. 2009) .......................... 24 -ivNOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) NOTICE OF MOTION AND MOTION TO COMPEL TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 9, 2011, at 10:30 a.m. or as soon thereafter as counsel may be heard in Courtroom C of the above-entitled Court, located at 450 Golden Gate Avenue, San Francisco, California, defendant Sony Computer Entertainment America LLC ("SCEA") will, and hereby does, move to compel production of deponents, documents and materials sought in SCEA's Notice Of Deposition And Request For Production Of Documents. This motion is brought pursuant to Fed. R. Civ. P. 26, 34, and 37 and is based on this Notice of Motion and Motion; the Memorandum of Points and Authorities, infra; the Declaration of Carter Ott; the complete file and record in this action; the argument of counsel; and such other and further evidence and argument as the Court may choose to entertain. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In their Consolidated Complaint, five individuals seek to prosecute nationwide class action claims on behalf of themselves and approximately 10 million other purchasers of PlayStation®3 ("PS3") "advanced video gaming and computing system" 1 consoles. Unfortunately, those five individuals (the "Class Representatives") have failed completely and unjustifiably to fulfill their discovery obligations. More specifically, Class Representatives have (1) failed to appear for their properly noticed depositions after agreeing to the dates for the depositions, and (2) failed to produce highly relevant documents requested by SCEA, including those identified in the Class Representatives' Rule 26 disclosures. Accordingly, SCEA asks this Court to order immediate production of all requested documents and items and appearance at deposition by Class Representatives. The discovery sought is indisputably relevant to this litigation. The Consolidated Complaint avers that Class Representatives and putative class members relied on representations by SCEA regarding various features of the PS3 in making their purchasing decision, including that users could install and use an alternative operating system, like Linux, (referred to as the 1 Consolidated Complaint (Docket #76), ¶ 30. NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 -1- WEST\222853455.1 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 DLA PIPER LLP (US) "Other OS"). Supposedly, Class Representatives and class members employed the Other OS function to utilize their PS3s in lieu of a traditional personal computer ("PC"). Consequently, according to the Consolidated Complaint, when SCEA issued a software update (referred to as "Update 3.21") years after the Class Representatives and class members bought their PS3s, significant harm resulted. If a PS3 user downloaded Update 3.21, the Other OS feature would be disabled, precluding further PC-type usage. If a PS3 user declined to download Update 3.21, certain other features would be limited or unavailable. Class Representatives concede that Update 3.21 was prompted by security concerns related to hacking of the PS3, but nonetheless contend its issuance violated California and federal law. The Consolidated Complaint alleges generally that all class members have been injured because "their PS3s were devalued and they were denied part of its use." But they allege a multitude of differing instances of such injuries: some lost partitioned hard drive space, others lost stored data; some accepted the download unknowingly, others refused the download and now cannot play certain games and movies; some cannot access the PlayStation® Network ("PSN") to play online games or access funds they previously placed in their PSN "wallet" accounts; others lost the use of peripherals, pre-paid services and software they previously bought for use with the Other OS function. And some have suffered no apparent loss, like Class Representative Stovell, who never took advantage of the Other OS feature in the more than three years he owned his PS3 and thus has experienced no change as a result of Update 3.21. Notably, this is not Class Representatives' first attempt to avoid discovery. During the parties' Initial Case Management Conference, on September 2, 2010, Judge Seeborg rejected Interim Lead Counsel's request for one-sided discovery, i.e., that discovery would be limited to written requests issued by Plaintiffs pending resolution of SCEA's outstanding pleading challenges. By refusing to produce documents and appear for deposition, Class Representatives are attempting to obtain the result that Judge Seeborg previously denied them, and they are in patent violation of their Rule 26 disclosure obligations. Accordingly, SCEA respectfully requests that the Court enter an order compelling production of the requested documents and items within ten days of its hearing on this motion and -2WEST\222853455.1 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) that Class Representatives' depositions proceed within twenty days thereafter. II. FACTUAL AND PROCEDURAL BACKGROUND A. The PS3 And Other OS Feature At the time of its launch on November 17, 2006, the PS3 was sold with a number of features, including the ability to play video games, movies, and music on various media including CDs, DVDs, and Blu-ray discs; view photographs; and access SCEA's online gaming service, the PlayStation®Network ("PSN").2 The PS3 could be updated via periodic "firmware" updates.3 The PS3 also included an "Other OS" feature which enabled users to install and run an operating system in addition to the PS3's native operating system.4 According to the Consolidated Complaint, the Other OS feature "provide[d] users with an excellent platform to develop applications for the PS3 or as a jumping off point for deployments to other products, including those from IBM, Sony, or Mercury"5; "allowed Cell programming6 and the operation of supercomputer clusters"7; and allowed the PS3 to run like a "fully functional home computer, loaded with more than 1,000 applications."8 A PS3 System Software License Agreement (the "SSLA") is made available to PS3 users electronically. The SSLA makes clear that software updates may be made automatically by SCEA and whether automatic or available for download by users, may disengage or alter some functions: From time to time, SCE may provide updates, upgrades or services to your PS3TM system to ensure it is functioning properly in accordance with SCE guidelines or provide you with new offerings. Some services may be provided automatically without notice when you are online, and others may be available to you through SCE's online network or authorized channels. Without limitation, services may include the provision of the latest update or download of new release that may include security patches, new technology or revised settings and features which may prevent access to unauthorized or pirated content, or use of unauthorized hardware or software in connection with the PS3TM Consolidated Complaint (Docket #76), ¶ 36. Consolidated Complaint (Docket #76), ¶ 33. 4 Consolidated Complaint (Docket #76), ¶ 36. 5 Consolidated Complaint (Docket #76), ¶ 49. 6 Plaintiffs explain that "Cell is a microprocessor which facilitates software development." Consolidated Complaint (Docket #76), fn. 5. 7 Consolidated Complaint (Docket #76), ¶ 37. 8 Consolidated Complaint (Docket #76), ¶¶ 3, 47, and see also ¶ 37 ("[it] essentially allowed users to operate the PS3 like a computer rather than simply a gaming console.") -33 WEST\222853455.1 2 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) system.... Some services may change your current settings, cause a loss of data or content, or cause some loss of functionality.... 9 Those that access and use the PSN do so subject to a separate Terms of Service And User Agreement (the "Terms of Service").10 If the user clicks the "Do Not Accept" dialogue box, the user will not be able to access the PSN. Similar to the SSLA, the "Maintenance and Upgrades" section of the Terms of Service reaffirms that, Some content may be provided automatically without notice when you sign in. Such content may include automatic updates or upgrades which may change your current operating system, cause a loss of data or content or cause a loss of functionalities or utilities. Such upgrades or updates may be provided for system software for your PlayStation3TM computer entertainment system, the PSPTM (PlayStation Portable) system, or other SCEA-authorized hardware.11 B. Firmware Update 3.21 "On or about April 1, 2010, [SCEA] released Update 3.21" for "security reasons"12 which, if installed, "would disable the [Other OS] feature."13 PS3 owners were not required to download Update 3.21.14 But "if a user failed to download Update 3.21, he or she would lose" access to the PSN online features; playback of new PS3 software or Blu-ray discs that require Update 3.21; copyright-protected videos stored on a media server; and use of future features and improvements.15 C. Plaintiffs' Reliance, Purchase, And Use Of Their PS3 Are Central To Their Claims The Class Representatives - Anthony Ventura, Jonathan Huber, Antal Herz, Jason Baker, and Elton Stovell16- state ten claims for relief17 and demand compensatory (for the "full and/or Declaration of Carter Ott ISO Motion to Compel ("Ott Decl."), ¶ 2, Ex. A. Ott Decl., ¶ 3, Ex. B. 11 Id. 12 Consolidated Complaint (Docket #76), ¶¶ 4 & 53. Plaintiffs specifically allege that SCEA stated that "the update was released in order to `protect the intellectual property of the content offered on the PS3 system'" from a hack of the PS3. Consolidated Complaint (Docket #76), ¶ 63. SCEA was entitled to terminate the functionality of the Other OS feature pursuant to its software license. See Motion to Dismiss (Docket #97), Section II(B). 13 Consolidated Complaint (Docket #76), ¶ 52. 14 Consolidated Complaint (Docket #76), ¶ 53. 15 Consolidated Complaint (Docket #76), ¶ 53. 16 Consolidated Complaint (Docket #76), ¶¶ 10-19. 17 Specifically, the Consolidated Complaint states claims for (1) Breach of Express Warranty; (2) Breach of Implied Warranty of Merchantability; (3) Breach of Implied Warranty of Fitness for a -410 WEST\222853455.1 9 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) partial refund of the total purchase price of each PS3 console"), consequential (based on various unique "additional injuries"), and punitive damages; restitution; and injunctive relief.18 Plaintiffs' claims are premised on alleged representations purportedly made about the PS3 and the Other OS function.19 Plaintiffs claim that, since launching the PS3, SCEA has engaged in "an extensive advertising campaign" that portrayed the Other OS feature as an "essential and important characteristic"20 that enabled the PS3 to function as a "personal computer."21 However, none of the Class Representatives identifies a specific representation on which he supposedly relied. Instead, they state vaguely that, prior to their purchase, they "performed extensive research on the Internet"22 and "[a[mong other things," they "reviewed and relied on the statements on [SCEA]'s website with regard to the PS3's `Other OS' feature, as well as the PS3's other advertised features such as the ability to access the PSN, play video games, watch movies, and listen to music, among other things."23 Their Consolidated Complaint also references postings alleged made by other PS3 owners that they contend demonstrate that putative class members uniformly reviewed relevant representations.24 But many other PS3 owners admit on the same websites that they did not review any such representations and were not aware of the Other OS function.25 This is not Particular Purpose; (4) Violation of the California Consumer Legal Remedies Act; (5) Violation of the Computer Fraud and Abuse Act; (6) Violation of the Magnuson-Moss Warranty Act; (7) Violation of California's False Advertising Law; (8) Violation of California's Unfair Competition Law; (9) Conversion; and (10) Unjust Enrichment for themselves and their proposed class. Consolidated Complaint (Docket #76). 18 Consolidated Complaint (Docket #76), Prayer for Relief & ¶¶ 56-63 ("Additional Injuries Caused By the Release of Update 3.21"); Ott Decl., ¶ 32, Ex. PP (Amended Initial Disclosures), 10:2-10. 19 See, e.g., Consolidated Complaint (Docket #76), ¶ 45. 20 Consolidated Complaint (Docket #76), ¶¶ 2 and 30 ("Defendant advertised, marketed, and sold PS3 systems as including a built-in Blu-ray disc player, the ability to go online to access the PSN and play against other players, and the ability to install other operating systems."). 21 Consolidated Complaint (Docket #76), ¶ 2 ("[SCEA] has consistently used the PS3's ability to serve as a personal computer...to market the PS3 and distinguish it from its competitors...."); ¶ 36 ("`By installing the Linux operating system, you can use the PS3TM system not only as an entry-level personal computer with hundreds of familiar application for home and office use....'"); see also Consolidated Complaint (Docket #76), ¶¶ 34, 35, 38. 22 Consolidated Complaint (Docket #76), ¶ 10, 14, 16, and 18. 23 Consolidated Complaint (Docket #76), ¶¶ 10, 14, 16, and 18. 24 Consolidated Complaint (Docket #76), ¶ 62, first and second paragraphs. 25 See Motion to Strike (Docket #96), 8:6-18. -5WEST\222853455.1 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) surprising as there was no reference to the Other OS feature on the PS3's packaging.26 Plaintiffs' claims are also premised on their use of their PS3s. Plaintiffs unanimously contend that they all "used [their] PS3[s] to play games, watch Blu-ray discs and access the PSN."27 Messrs. Ventura, Huber, Herz, and Baker assert that they "also extensively used [their] PS3[s] as [] computer[s]" but in different ways.28 Specifically, Messrs. Huber and Baker claim they browsed the Internet29; Mr. Ventura did so and also played "Linux-specific games"30; and Mr. Herz further used his PS3 to "run word processing software, spreadsheet software, email software, other productivity applications, and make his own programs."31 Conversely, Mr. Stovell never used the `Other OS' feature.32 There is no uniformity in the alleged injuries resulting from Update 3.21. Plaintiffs contend that all class members have been injured similarly in that Update 3.21 has devalued their PS3s and denied them part of their use.33 But their allegations concede that PS3 users have been affected in different ways. Messrs. Huber and Herz installed Update 3.21 so they could "play games online [and] access [the] PSN"34 but no longer have "access to `Other OS' feature and the Linux operating system [they] had installed."35 Messrs. Ventura and Baker did not install Update 3.21 "so that [they] can continue to use the `Other OS' functions," and thus are "no longer able to play online games, access the PSN, play new games or Blu-ray discs that require Update 3.21."36 According to the Consolidated Complaint, some PS3 owners downloaded Update 3.21 not knowing what it would do37; others had Update 3.21 forced on them when they sent their PS3s in for repair38; "[m]any users purchased peripheral devices specifically for use with the `Other OS' 26 27 Consolidated Complaint (Docket #76), ¶ 45, fourth bullet point. Consolidated Complaint (Docket #76), ¶¶ 10, 12, 14, 16, and 18. 28 Consolidated Complaint (Docket #76), ¶¶ 10, 12, 14, and 16. 29 Consolidated Complaint (Docket #76), ¶¶ 10, 12, 14, and 16. 30 Consolidated Complaint (Docket #76), ¶ 10. 31 Consolidated Complaint (Docket #76), ¶ 14. 32 Consolidated Complaint (Docket #76), ¶ 18. 33 Ott Decl., ¶ 18, Ex. Y (11/4/10 hearing transcript), 47:7-10. 34 Consolidated Complaint (Docket #76), ¶¶ 13 and 15. 35 Consolidated Complaint (Docket #76), ¶¶ 13 and 15. 36 Consolidated Complaint (Docket #76), ¶¶ 11, 17, and 61; Ott Decl., ¶ 18, Ex. Y (11/4/10 hearing transcript), 30:1-22. 37 Ott Decl., ¶ 14, Ex. M (Huber Complaint), ¶ 29. 38 Consolidated Complaint, ¶ 55; Ott Decl., ¶ 14, Ex. M (Huber Complaint), ¶ 30. -6WEST\222853455.1 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) function, such as wireless keyboards and mice and external hard drives" but as a result of downloading Update 3.21, these "devices are rendered superfluous"39; other PS3 owners who downloaded Update 3.21 without first "back[ing] up [stored] data on another medium" "lost" that data;40 some claim they lost hard drive space that had been partitioned for use with the Other OS feature;41 and others who did not download Update 3.21 are allegedly foreclosed from using "attributes" of the PS3 necessary to access pre-paid services such as Qore and Netflix.42 Of course, many other PS3 owners concede they were not injured because the Other OS feature was not relevant to their purchase.43 D. Plaintiffs Face Significant Hurdles In Obtaining Certification And Succeeding At Liability Judge Seeborg is currently considering SCEA's motion to dismiss the Consolidated Complaint and a motion to strike the class allegations from that pleading.44 He noted during the hearing on those motions: "you're talking about all sorts of disparate ­ disparate consumers doing very different things. Some are upgrading. Some are not. Some are buying. Some are not. How can you have a class?"45 Of course, during that same hearing, counsel for the Class Representatives argued that discovery would be necessary before certification issues could be fully vetted before the Court.46 E. The Present Discovery Dispute This dispute is the result of months of meet and confer, commencing with an August 2010 email by SCEA regarding Plaintiffs' preservations obligations, particularly regarding their PS3s Consolidated Complaint, ¶ 58. Consolidated Complaint, ¶ 56. 41 Ott Decl., ¶ 18, Ex. 7 (11/4/10 hearing transcript), 44:21-45:7; Consolidated Complaint (Docket #76), ¶¶ 56-57. 42 Consolidated Complaint, ¶¶. 59-60. Notably, SCEA advises PS3 owners to back up their data. Ott Decl., ¶ 9, Ex. H. 43 See Motion to Strike (Docket #96), 10:8-11:1; Ott Decl. ISO Motions to Dismiss and Strike (Docket #98), ¶ 15, Ex. Q, p. 2 ("oh well, I don't use it anyway so I don't care."), p. 4, p. 5 ("..., p. 7 ("Who cares? Its (sic) a feature that only 10 people use."), p. 8, p. 10 ("I didn't use it so i don't care.")). 44 See Motion to Dismiss (Docket #97); Motion to Strike (Docket #96). 45 Ott Decl., ¶ 18, Ex. Y (11/4/10 hearing transcript), 37:18-21. 46 Ott Decl., ¶ 18, Ex. Y (11/4/10 hearing transcript), 46:9-14. -740 WEST\222853455.1 39 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) and PCs.47 Notwithstanding that their claims are premised on their alleged use of their PS3s in lieu of traditional PCs, Plaintiffs contend that their PS3s and PCs "would not be relevant to plaintiffs' claims or [SCEA's] defenses."48 Plaintiffs also refused to stop using their PS3s or make forensic copies of the PS3 hard drives despite the inherent risk of spoliation.49 Thereafter, SCEA served discovery requests demanding that Class Representatives appear for deposition respectively on October 27 and November 2, 5, 8, and 9, and produce requested documents prior to those depositions, including those identified in their Rule 26 disclosures.50 Out of the thirty-one production requests SCEA served, Class Representatives agreed to produce documents with regard to only two.51 SCEA complied with Class Representatives' request to meet and confer, but Class Representatives offered only an ultimatum: (1) they would make an extremely limited production ­ which would not include the PS3s, any software or peripherals used with the PS3s or any forensic image of the PS3 hard drives or of their other PC hard drives and they would produce only documents they retained in hard copy without performing any electronic searches, and (2) they would appear for deposition only if SCEA agreed not to seek to reopen those depositions based on the inadequacy of that very limited production.52 Consequently, SCEA was forced to bring the current motion to compel, and this motion is not obviated by the partial recent production of documents by the Class Representatives, particularly given that their counsel first used that production to demand that SCEA delay the filing of this motion based on the representation that they would complete their production during the week of December 1, and then waited (despite requests for confirmation) until the morning Ott Decl., ¶ 10, Ex. I (8/26/10, 11:09 a.m. email and letter). Ott Decl., ¶ 11, Ex. J (9/16/10, 12:05 p.m. email and letter); ¶ 13, Ex. P (10/4/10 email and letter). 49 Ott Decl., ¶ 11, Ex. J (9/16/10 email and letter), ¶ 13, Ex. P (10/4/10 email and letter); see also Joint CMC Statement And Rule 26(f) Report (Docket #86), 3:15-4:13 ("However, the parties have also identified an issue regarding the extent of Plaintiffs' obligations to preserve their PS3 consoles. Specifically, SCEA disputes Plaintiffs' position that they may continue to use their PS3s during the pendency of this litigation. SCEA believes that these PS3s must be preserved, including barring any continued use, as these units are evidence..... Forcing Plaintiffs who would otherwise use the PS3 for its remaining functions to stop using them unnecessarily would cause them to incur additional damages in this litigation and will be unfair and prejudicial...."). 50 Ott Decl., ¶ 12, Exs. K-O. 51 Ott Decl., ¶ 17, Ex. T-X. 52 Ott Decl., ¶ 21, Ex. BB (11/10/10 11:05 a.m. email); ¶ 27, Ex. HH (11/24/10, 8:26 a.m. email), third paragraph. -848 WEST\222853455.1 47 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) the parties agreed that they would file these motions (December 15) to inform SCEA that their production is not complete.53 III. LEGAL STANDARD A party "may obtain discovery regarding any matter not privileged that is relevant to the claim or defense of any part." "Relevant information for purposes of discovery is information `reasonably calculated to lead to the discovery of admissible evidence.'"54 This Court has issued specific Standing Orders related to the production and use of documents that provide, among other things: 11. In searching for responsive materials in connection with a request under Fed. R. Civ. P. 34, parties must search computerized files, emails, voicemails, work files, desk files, calendars and diaries, and any other locations and sources if materials of the type to be produced might plausibly be expected to be found there. 14. As soon as a party has notice of this order, the party shall take such reasonable steps as are necessary to preserve evidence related to the issues presented by the action, including, without limitation, interdiction of any document destruction programs and any ongoing erasures of email, voicemails, and other electronically recorded material to the extent necessary to preserve information relevant to the issues presented by the action. 15. Except for good cause, no item will be received in evidence if the proponent failed to produce it in the face of a reasonable and proper discovery request covering the item, regardless of whether a motion to overrule any objection thereto was made.55 In addition, Rule 37 provides that "if a party, in response to a request for inspection submitted under Rule 34, fails to...permit inspection as requested, the discovering party may Ott Decl., ¶ 27, Ex. HH (11/24/10, 8:26 a.m. email) and II (11/29/10, 10:54 p.m. email; ¶ 31, Ex. OO (12/9/10, 4:14 p.m. email); and ¶ 34, Ex. RR (12/15/10, 4:00 a.m. email). 54 Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) (citation omitted); see also Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009). 55 Standing Order, ¶¶ 11, 14, and 15; see also Unless substantial justification is found, sanctions for failure to produce documents referenced in initial disclosures are mandatory, and documents not produced for initial disclosures without valid excuse will be precluded from use. Flanagan v. Benicia Unified School Dist., 2008 WL 2073952, at *3 (E.D. Cal. May 14, 2008). See also, Russo v. Network Solutions, Inc., 2008 WL 114908, at *2 (N.D. Cal. Jan. 10, 2008) (Judge Chen stated, "It is the burden of the party facing sanctions to show that the failure to comply was either substantially justified or harmless.") (citing to Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001)). In addition to evidence preclusion sanction, the Court may "order payment of the reasonable expenses, including attorney's fees, caused by the failure" to provide initial disclosures. Balibrea v. J & J Maintenance, Inc., 2010 WL 147905, at *2 (N.D. Cal. Jan. 12, 2010) (citing to Fed. R. Civ. P. 37(c)(1)(A)). The Ninth Circuit gives "particularly wide latitude to the district court's discretion to issue sanctions under Rule 37(c)(1)." Oracle USA, Inc. v. SAP AG, 264 F.R.D. 541, 544-45 (N.D. Cal. 2009). -9WEST\222853455.1 53 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) move for an order compelling...inspection in accordance with the request."56 In ruling on a motion to compel, district courts consider many factors, including timeliness, good cause, utility, and materiality.57 Although the moving party carries the burden, the party opposing the motion must support each ground on which it has refused to provide information or evidence.58 IV. THE COURT SHOULD ORDER PLAINTIFFS TO PRODUCE THE REQUESTED DOCUMENTS AND OTHER ITEMS A. Plaintiffs' PS3s And Personal Computers Are Integral To Their Claims And SCEA's Defenses Plaintiffs' claims are indisputably based, in large part, on their use of their PS3s: they allege that they used their PS3s in lieu of a personal computer and stated in their Initial Disclosures that they intend to rely in making their case in chief on their "PS3 units" as well as other unspecified "[d]ocuments regarding the `Other OS' function and the operation, installation and use of Linux on the PS3."59 On these bases, SCEA requested that the Class Representatives produce: Request for Production No. 3: ANY and ALL PS3s that YOU purchased, received, or otherwise acquired, including, but not limited to, the PS3 referenced in Paragraph[s 12, 14, 16, and 18] of the CONSOLIDATED COMPLAINT.60 Request for Production No. 7: A forensic copy of the hard drive for ANY and ALL PERSONAL COMPUTERS used by [Plaintiffs] during the Fed. R. Civ. P. 34(a)(2)(B). CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 992 (7th Cir. 2002). 58 Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001); In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 331, 333 (N.D. Ill. 2005); DIRECTV, Inc. v. Puccinelli, 224 F.R.D. 677, 681, fn. 1 (D. Kan. 2004). 59 Ott Decl., ¶ 32, Ex. PP (Amended Initial Disclosures), 9:4-21. 60 Plaintiffs' objection to this request, which is substantially the same as its objections to SCEA's other requests reads: "Plaintiff incorporate by reference his General Objections and further objects to this Request insofar as it violates his right to privacy, is overly broad, unduly burdensome, seeks information irrelevant to the claims or defenses of any party to this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff also objects to this Request to the extent this Request seeks information in SCEA's possession, custody, or control, as to which SCEA has equal access. Moreover, Plaintiff objects to this Request since it believed that any testing of Plaintiff's PS3s will ultimately cause harm to the items. Defendants are also directed to the letter from Plaintiffs' counsel dated September 16, 2010 addressed to Luanne Sacks outlining Plaintiffs' objections to Defendant's request for the production of Plaintiffs' PS3 consoles. Therefore, Plaintiff will not produce the PS3s in his possession, custody, or control without an appropriate order from this Court. Subject to and without waiving the foregoing objections, Plaintiff is willing to meet and confer to clarify what this request seeks and/or narrow this request to appropriate relevant areas." See Ott Decl., ¶ 17, Exs. T-X. Plaintiffs' additional objections are also submitted with this motion. See id. -1057 WEST\222853455.1 56 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) DESIGNATED PERIOD, including, but not limited to, any used by [Plaintiffs] at [their] place of residence and/or place of business.61 On the grounds of relevancy and privacy, the Class Representatives refused absolutely to produce forensic copies of their personal computer hard drives, but agreed to meet and confer with regard to production of their PS3s.62 But this meet and confer was unsuccessful, resulting only in an offer from the Class Representatives to provide information of little probative value: "[p]hotographs and serial numbers of [their] PS3s"63 and that "a mutually acceptable vendor may 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 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."64 Subsequently, all Class Representatives but Mr. Baker65 have produced various photos of their PS3 that confirm the inadequacy of a photographic reproduction of the subject product. Mr. Herz supplied only a photo of a sticker apparently on the back of his PS3 console listing the serial number.66 Similarly, Mr. Ventura produced two photos: a close-up of a serial number sticker; and a photo of two-thirds of the top of his PS3.67 Mr. Stovell produced numerous pictures of PS3s, including his and several apparently on display at a convention or seminar.68 Mr. Huber produced three photos of his PS3 ­ two close-ups of model and serial number stickers and one photo of the PS3 top.69 SCEA has no means of determining from these photos the current physical condition of these consoles, whether they have been tampered with or abused, let alone if they are functional. Ott Decl., ¶ 12, Exs. K-O. SCEA's document requests are identical except for variations based on the specific allegations in the Consolidated Complaint. For purposes of efficiency, SCEA will refer to them collectively. 62 Ott Decl., ¶ 17, Exs. T-X. 63 Ott Decl., ¶ 22, Ex. C (11/12/10, 2:32 p.m. email). 64 Ott Decl., ¶ 24, Ex. E (11/18/10, 3:20 p.m. email). 65 Plaintiffs have not provided an explanation for why they have not produced similar photos for Mr. Baker. 66 Ott Decl., ¶ 29, Ex. KK (Herz Production), HERZ 0000005. 67 Ott Decl., ¶ 30, Ex. LL (Ventura Production), VENTURA 0000040-41. 68 Ott Decl., ¶ 30, Ex. NN (Stovell Production), STOVELL 0000190, 0000193-195, and 0000197. 69 Ott Decl., ¶ 29, Ex. JJ (Huber Production), HUBER 0000009, 0000010, 0000012 -11WEST\222853455.1 61 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) It is clear that forensic copies of these devices as well as physical production of the units themselves are highly probative in this matter, and that they should therefore be produced. As an initial matter, these are "documents" within the definition of the Evidence Code that courts regularly require parties to produce.70 These devices are also highly relevant. An analysis of the hard drives from these devices will show how they were used, when, and with what frequency relative to each other; and will provide a means of testing the veracity of Plaintiffs' allegations and their deposition testimony regarding their use of the PS3, particularly in lieu of other PCs. This analysis will also demonstrate the extent to which Class Representatives' use of their PS3 and the Other OS feature is typical of each other and the putative class. In Coles v. Nyko Technologies, Inc., the class plaintiff alleged violations of the Unfair Competition Law, False Advertising Act, and the Consumer Legal Remedies Act, and warranty claims based on the defendant's manufacture and marketing of an electronic device called "Intercooler 360" "which `is an external snap-on cooling system specifically designed to reduce the internal operating temperature of Microsoft's Xbox 360 gaming and entertainment console.'"71 According to the operative complaint, `the Xbox 360s contain several heat-sensitive computer chips designed to shut the consoles down when internal temperatures soar too high. After short periods of use, the Xbox 360s were widely reported to automatically shut down, rendering the consoles inoperable.'... `[A]lthough designed to remedy defects in the Xbox 360, consumers soon discovered that the Intercooler 360's own defects actually exacerbated the defects in the Xbox 360....'... Specifically, consumers discovered `the Intercooler 360 had numerous fundamental defects..., including, inter alia, freezing, skipping, synchronization problems, disc error messages, 70 See, e.g., Coles v. Nyko Tech., Inc., 247 F.R.D. 589, (C.D. Cal. 2007) (ordering production of plaintiff's Xbox 360 for inspection and forensic analysis); Bryant v. Mattel, Inc., 2007 WL 5416681, *10 (C.D. Cal. Jan. 26, 2007) ("[Plaintiff] shall produce the hard drives of his computers for forensic imaging."); Aliki Foods v. Otter Valley Foods, Inc., 2010 WL 2985030, **12-20 (D. Conn. March 26, 2010) (regarding plaintiffs' failure to comply with the court's discovery orders, including its order requiring plaintiff to produce hard drive); ANZ Advanced Tech. LLC v. Bush Hog LLC, 2010 WL 3699917, **2 & 4 (S.D. Ala. Sept. 9, 2010) (plaintiff ordered to produce hard drives); Stratienko v. Chattanooga-Hamilton County Hospital Auth., 2009 WL 2168717, *4 (E.D. Tenn. July 16, 2009) (plaintiff ordered to produce hard drive); Arista Records LLC v. Tschirhart, 241 F.R.D. 462, 463 (W.D. Tex. 2006) (defendant ordered to produce hard drive); Atlantic Recording Corp. v. Howell, 2008 WL 4080008, *1 (D. Ariz. Aug. 29, 2008) (court ordered defendant to produce computer hard drive); Yancey v. GMC Corp., 2006 WL 2045894, **2-4 (N.D. Ohio July 20, 2006); Bronsink v. Allied Property and Casualty Ins. Co., 2010 WL 2342538, *5 (W.D. Wash. June 8, 2010). 71 Id. at 591. -12WEST\222853455.1 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) pixelization problems, and ironically, overheating.'72 The Coles plaintiff did not dispute that the Intercooler 360 and Xbox 360 were tangible things that "may be inspected and tested" by the defendant, but objected that73 such devices were irrelevant to class certification. 74 The Coles court disagreed: [h]ere, defendant Nyko's examination and testing of plaintiff's Intercooler 360 and Xbox 360 and (sic) will assist defendant Nyko in addressing whether `the claims or defenses of the representative parties [are] typical of the claims or defenses of the class,' Fed. R. Civ. P. 23(a)(3), or whether typicality exists.75 SCEA's request to examine the PS3 and the hard drives of the PS3 and Class Representatives' PCs mirror those at issue in Coles. Here, production of forensic copies of these devices is particularly important because they are unimpeachable sources of information regarding Plaintiffs' use for which there is no substitute. These devices provide a true and correct history of Plaintiffs' use of their PS3s and PCs that are not subject to the flaws of memory or bias. In addition, it is axiomatic that ­ as the subjects of this litigation ­ SCEA has a right to physically inspect Plaintiffs' PS3s.76 This inspection is necessary to confirm whether the units have been tampered with or destroyed; whether they still function; and to confirm the serial and model numbers for purposes of later identification and to obtain further relevant discovery. Accordingly, Class Representatives' refusal to produce these devices is insupportable.77 Class Representatives also asserted privacy rights as a basis for refusing to produce their PS3s and PCs, but without identifying the specific information contained on these devices that implicates any possible need for privacy protection. Moreover, Class Representatives have failed to explain why their need for privacy protection exceeds that of SCEA from whom they have Id. at 591. Id. at 592. 74 Id. 75 Id. at 592-93. 76 See Fed. R. Civ. P. 34(a)(1) ("A party may serve on any other party a request within the scope of Rule 26(b): to produce and permit the requesting party or its representative to inspect, copy, test, or sample...."); see also Coles v. Nyko Tech., Inc., 247 F.R.D. 589, 593 (C.D. Cal. Nov. 27, 2007); Holliday v. Extex, 237 F.R.D. 425, 426-27 (D. Hi. 2006). 77 In re Ford Motor Co. Bronco II Prod. Liab. Litig., 177 F.R.D. 360, 368 (E.D. La. 1997) (failure to cooperate in discovery supports finding of inadequacy). -1373 WEST\222853455.1 72 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) demanded production of numerous confidential trade secret and commercially sensitive documents. SCEA has offered to produce such private information upon entry of an appropriate protective order (which proposed protective order has been rejected by the Class Representatives).78 And of course, it is possible that the Class Representatives are seeking to protect disclosure to SCEA and the Court of documents that might be relevant to typicality, adequacy, and the veracity of their allegations. For example, if one or more of the Class Representatives used their PS3s in an unauthorized fashion (i.e., in violation of copyright laws), that would bear directly on their adequacy to proceed as a representative of the putative class.79 Finally, as set forth more fully below, the Class Representatives' PS3 and PC hard drives may also contain additional documents responsive to SCEA's other documents requests.80 For example, because the Class Representatives contend that they performed research about the PS3 on their PCs prior to purchase, these devices should reveal those searches and any results obtained. On this additional basis, the Court should order production of forensic copies of these devices. B. The Court Should Order Production Of Documents Regarding Reliance And Purchase In their Initial Disclosures, the Class Representatives stated that they intended to rely on "[s]creen shots from the SCEA website regarding the PS3" and "[d]ocuments regarding the `Other OS' function and the operation, installation and use of Linux on the PS3"81 but failed to produce these documents with their disclosure statement. Accordingly, SCEA requested that the Class Representatives produce such documents: Request for Production No. 14: ANY and ALL DOCUMENTS that [Plaintiffs] relied upon in purchasing, receiving or acquiring any PS3, Notably, the only remaining issue open with regard to the protective order appears to be Class Representatives' refusal to agree that the protective order should include a "highly sensitive" designation ­ something that is justified in any instance in which a party produces trade secret documents. Unless Class Representatives are contending that their PS3 and PC hard drives contain trade secrets, they surely have no basis to withhold their contents as private given their objection to the use of a highly sensitive designation for any purpose. See Ott Decl., ¶ 26, Ex. GG (11/23/10, 7:29 p.m.). 79 Ott Decl., ¶¶ 2-3, Exs. A-B. 80 See Sections II(A) and (B), V, and VI, infra. 81 Ott Decl., ¶ 32, Ex. PP (Amended Initial Disclosures), 9:4-21. -14WEST\222853455.1 78 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) including but not limited to, ANY and ALL DOCUMENTS CONCERNING YOUR allegations in Paragraph[s 10, 12, 14, 16, and 18] of the CONSOLIDATED COMPLAINT.... Although the Class Representatives stated in their response to these requests that they would produce responsive documents, to date, they have not.82 Indeed, they announced they would produce responsive documents only if currently possessed in hard copy, without conducting any electronic searches, which they intend to do prior to trial so they may offer such additional items as evidence.83 Clearly, this is contrary to the rules of discovery and disclosure ­ the Class Representatives must produce any documents now that they intend to rely upon at trial, particularly in advance of their depositions. Should they fail to do so, this Court should enter preclusive sanctions or require they reappear for deposition. The Class Representatives' Initial Disclosures also identified documents relevant to their PS3 purchases, including "[t]he PS3 packaging," "[t]he documents provided by SCEA with the PS3," and "[d]ocuments evidencing and relating to Plaintiffs' purchase of their PS3 and related items."84 These documents have also been referenced by Lead Counsel in its arguments to the Court.85 SCEA requested production of these documents: Request for Production No. 5: ANY and ALL DOCUMENTS and things that, at the time of purchase, receipt and/or acquisition, accompanied each PS3 to be identified and produced in response to Request Number 3, including, but not limited to, boxes, containers, packaging materials, instruction manuals or pamphlets, papers, inserts, promotional materials, disclaimers, warranty cards, reports, brochures, schematics, customer service information, graphics, pictures, cables, controllers, connectors, remote control devices, protective covering, Compact Disc, Digital Versatile Disc, Blu-rayTM Disc, and/or ANY other writings, hardware, software and/or peripherals. Request for Production No. 4: ANY and ALL DOCUMENTS CONCERNING the purchase, receipt, and/or acquisition of each PS3 to be identified and produced in response to Request Number 3, including, but not limited to purchase orders, bills of sale, invoices, credit card receipts, cancelled checks and money orders. Request for Production No. 8: ANY and ALL DOCUMENTS CONCERNING the purchase, receipt and/or acquisition of ANY and ALL PERSONAL COMPUTERS in [the Class Representative's] possession, custody or control, including, but not limited to, any used by [the Class 82 83 Ott Decl., ¶ 17, Exs. T-X. Ott Decl., ¶¶ 22 and 25, Exs. CC and FF. 84 Ott Decl., ¶ 32, Ex. PP (Amended Initial Disclosures), 9:4-21. 85 See Ott Decl., ¶ 18, Ex. Y (11/4/10 hearing transcript), 28:8-29:16. -15WEST\222853455.1 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) Representative] at his place of residence and/or place of business during the DESIGNATED TIME PERIOD, including, but not limited to purchase orders, bills of sale, invoices, credit card receipts, cancelled checks and money orders. The Class Representatives responded to Request for Production Number 8 with a refusal to produce, and Request Number 5 with objections and a statement that they would be "willing to meet and confer," which resulted in a general refusal to produce.86 Notably, just days before SCEA was to file this motion, the Class Representatives produced a limited group of responsive documents: Messrs. Herz, Ventura and Stovell produced supposed proof of purchase for their PS3s87; Mr. Huber produced half of a purchase receipt;88 Messrs. Huber, Herz, and Baker produced photographic images of the boxes that apparently contained their PS3s89; Mr. Stovell produced photographic images of part of the box for his PS390; and Messrs. Herz and Stovell also produced some documents that apparently came with their PS3s.91 There is, however, no indication that any of the Class Representatives have produced all documents responsive to the relevant requests. And there is nothing demonstrating their purchase of PCs, nor any confirmation that documents relevant to such a purchase do not exist. Class Representatives' limited production in fact confirms that, without an order from this Court, they will not produce any of the software or other media that they purportedly received, bought or used with their PS3s, despite the fact that these materials figure prominently in their claims.92 The Court should order Ott Decl., ¶ 17, Exs. T-X; Ott Decl., ¶ 22, Ex. CC (11/12/10, 12:52 p.m. email); ¶ 22, Ex. CC (11/12/10, 2:32 p.m. email). They also agreed to produce documents responsive to Request for Production Number 4, and apparently produced some documents responsive to that request, but have failed to confirm that they have produced all responsive documents. Ott Decl., ¶ 22, Ex. CC (11/12/10, 12:52 p.m. email). 87 Ott Decl., ¶ 29, Ex. KK (Herz Production), HERZ 0000015-16; Ott Decl., ¶ 30, Ex. LL (Ventura Production), VENTURA 0000004; Ott Decl., ¶ 30, Ex. NN (Stovell Production), STOVELL 0000001-2. 88 Ott Decl., ¶ 29, Ex. JJ (Huber Production), HUBER 0000002. 89 Ott Decl., ¶ 29, Ex. JJ (Huber Production), HUBER 0000003-8; ¶ 29, Ex. KK (Herz Production), HERZ 0000004 and 0000221-226; ¶ 30, Ex. MM (Baker Production), BAKER 0000151-156. 90 Ott Decl., ¶ 30, Ex. NN (Stovell Production), STOVELL 0000003-8. 91 Ott Decl., ¶ 29, Ex. KK (Herz Production), HERZ 0000009-10, 0000011-14, 0000017-18. 92 See, e.g., Consolidated Complaint (Docket #76), ¶ 14 (prior to downloading Update 3.21, Mr. Herz used his PS3 to "play video games, watch movies, and listen to music, among other things....[and] run word processor software, spreadsheet software, email software, other productivity applications, and make his own programs."); ¶ 18, Ex. Y (11/4/10 hearing transcript), 30:1-22 ("....You also cannot play any Blu-ray DVDS.... When you do not download -16WEST\222853455.1 86 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) the Class Representatives to produce all responsive documents and confirm that all such productions are complete. C. The Court Should Order Production Of Documents Regarding Usage Of The PS3s The Class Representatives' use of their PS3s, including the Other OS feature, is unquestionably one of the central topics in this litigation. In their Initial Disclosures, they state that they will rely on a broad set of documents related to their use: "[d]ocuments regarding the `Other OS' function and the operation, installation and use of Linux on the PS3."93 SCEA thereafter requested that the Class Representatives produce documents which evidenced their use of their PS3s: Request for Production No. 6: ANY and ALL DOCUMENTS and/or things not responsive to Request Number 3 CONCERNING ANY data, game, program, operating system, application, file, hard drive, memory storage device, Internet browser, mouse, printer, television, cable, wireless network, hardware, firmware, peripheral, monitor, keyboard, Compact Disc, Digital Versatile Disc, Blu-rayTM Disc, and/or software code that [Plaintiff] authored, created, used with, connected to, installed on, downloaded to, backed up to, backed up from, imaged and/or uninstalled on each PS3 to be identified and produced in response to Request Number 3 that did not accompany each PS3 at the time of purchase, receipt and/or acquisition. Request for Production No. 15: ANY and ALL DOCUMENTS CONCERNING [Plaintiff's] use of each PS3 to be identified and produced in response to Request Number 3, including, but not limited to, ANY and ALL DOCUMENTS CONCERNING YOUR allegation in Paragraph 14 of the CONSOLIDATED COMPLAINT that "[Plaintiff] uses the PS3 for personal, family and household uses" and "also extensively used his PS3 as a computer, including to browse the Internet, run word processor software, spreadsheet software, email software, other productivity applications, and make his own programs." Request for Production No. 9: ANY and ALL DOCUMENTS CONCERNING agreements you signed, affirmed, or otherwise consented to CONCERNING YOUR use of each PS3 identified and produced in response to Request Number 3, including, but not limited, ANY and ALL DOCUMENTS CONCERNING warranties, license agreements, and terms of use. The Class Representatives declined production of these items originally,94 and their recent limited [Update] 3.21, any new DVDs that come out that require the newer firmware update, you cannot play."). 93 Ott Decl., ¶ 32, Ex. PP (Amended Initial Disclosures), 9:19-20. 94 Ott Decl., ¶ 17, Exs. T-X; ¶ 22, Ex. CC (11/12/10, 2:32 p.m. email). -17WEST\222853455.1 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) production is far from complete. Other than a handful of emails related to registration of Messrs Herz and Baker's PSN accounts95, and Mr. Baker's use of his PSN96, nothing was produced regarding use of the PSN. Mr. Baker produced several articles regarding Linux, including use of Linux on the PS3; instructions regarding Yellow Dog Linux software; and several pages from SCEA's website regarding the Other OS feature. But all of these documents were apparently printed on September 20, 2010, months after the Consolidated Complaint was filed.97 The only other documents the Class Representatives produced consist of photographs of a handful of miscellaneous items that three of the Class Representatives apparently used with their PS3s.98 Of course, SCEA has no ability to confirm what these items are or inspect them to assess if they function or were ever used and to what extent. In addition, the Class Representatives have made no effort to produce any of the agreements they consented to regarding their PS3s with the exception of blurry photographs produced by Mr. Herz of a widescreen television displaying directions on the installation and consequences of installing Update 3.21, and other photographs produced by Mr. Ventura of a widescreen television apparently displaying the terms of use of another license agreement.99 From this production, SCEA has no way of assessing the Class Representative's use of their PS3s or the agreements they entered into with regard to that use. Certainly, without such agreements, SCEA has no way of confirming the veracity of their allegations that it has violated the CLRA by including unconscionable terms in the SSLA.100 Rather, SCEA and the Court are apparently required to make due with Plaintiffs' biased and flawed memories of how and when they used their PS3s while more substantial, reliable evidence may well exist. SCEA also requested that the Class Representatives produce documents regarding hacking Ott Decl., ¶ 29, Ex. KK (Herz Production), HERZ 0000020-21; ¶ 30, Ex. MM (Baker Production) BAKER 0000001. 96 Ott Decl., ¶ 30, Ex. MM (Baker Production), BAKER 0000002-4 and BAKER 0000008-15 97 Ott Decl., ¶ 30, Ex. MM (Baker Production), BAKER 0000016-150. 98 Ott Decl., ¶ 29, Ex. JJ (Huber Production), HUBER 0000010-11 and 0000013; Ott Decl., ¶ 30, Ex. LL (Ventura Production), VENTURA 0000040; ¶ 29, Ex. KK (Herz Production), HERZ 0000003 and 0000006. 99 Ott Decl., ¶ 29, Ex. KK (Herz Production), 000007-8; Ott Decl., ¶ 30, Ex. LL (Ventura Production), 0000014-39. 100 Consolidated Complaint (Docket #76), ¶¶ 114-124. -18WEST\222853455.1 95 NOTICE OF MOTION AND MOTION TO COMPEL; MEMO. PS & AS CASE NO. 3:10-CV-01811 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 DLA PIPER LLP (US) or "jailbreaking" of the PS3101: Request for Production No. 30: ANY and ALL DOCUMENTS CONCERNING any hack or "jailbreak" of the PS3, including ANY and ALL DOCUMENTS CONCERNING COMMUNICATIONS YOU have had with a PERSON who has hacked the PS3. Plaintiffs assert in their Consolidated Complaint that Update 3.21 was issued to address security issues related to hacking the PS3.102 Accordingly, any documents in their possession, custody, or control regarding hacking or jailbreaking are discoverable. Class Representatives have agreed to produce a limited subset of these documents: "we will produce any internet postings by any deponent that includes any references to `hacking' or `jailbreaking' the PS3 (using those terms)...."103 Such a limited production is woefully inadequate; however, the Class Representatives have not to date made even the promised production. D. The Court Should Order Production Of Documents Relevant To Consolidated Complaint Allegations The Consolidated Complaint, consisting of over sixty pages, consists of numerous allegations regarding the marketing, sale, and use of the PS3; the materiality of statements regarding the Other OS feature; and how the Class Representatives and members have been similarly affected and damaged. SCEA requested that the Class Representatives produce documents regarding allegations they made in just thirteen of the paragraphs in this pleading: Request for Production No. 10: ANY and ALL advertisements, marketing, promotion literature, DOCU