"The Apple iPod iTunes Anti-Trust Litigation"

Filing 134

Declaration of Bonny E. Sweeney in Support of 133 Motion to Compel Defendant Apple Inc.'s Production of Documents Relating to Class Certification filed by Plaintiffs. (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)(Sweeney, Bonny) (Filed on 12/3/2007) Modified on 12/19/2007,(counsel failed to link to motion) (cv, COURT STAFF).

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"The Apple iPod iTunes Anti-Trust Litigation" Doc. 134 1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 BONNY E. SWEENEY (176174) GREGORY S. WESTON (239944) 3 655 West Broadway, Suite 1900 San Diego, CA 92101 4 Telephone: 619/231-1058 619/231-7423 (fax) 5 bonnys@csgrr.com gweston@csgrr.com 6 THE KATRIEL LAW FIRM 7 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 8 Washington, DC 20007 Telephone: 202/625-4342 9 202/330-5593 (fax) rak@katriellaw.com 10 Co-Lead Counsel for Plaintiffs 11 [Additional counsel appear on signature page.] 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN JOSE DIVISION 15 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW 16 LITIGATION ) ) CLASS ACTION 17 ) ) DECLARATION OF BONNY E. SWEENEY This Document Relates To: 18 ) IN SUPPORT OF MOTION TO COMPEL ) DEFENDANT APPLE INC.'S ALL ACTIONS. 19 ) PRODUCTION OF DOCUMENTS RELATING TO CLASS CERTIFICATION 20 DATE: January 8, 2008 21 TIME: 10:00 a.m. COURTROOM: 5, 4th Floor 22 JUDGE: Hon. Patricia V. Trumbull 23 24 25 26 27 28 Dockets.Justia.com 1 2 I, Bonny E. Sweeney, declare as follows: I am an attorney duly licensed to practice before all of the courts of the State of California. I 3 am a member of the law firm of Coughlin Stoia Geller Rudman & Robbins, LLP, one of the counsel 4 of record for Plaintiffs in the above-entitled action. I have personal knowledge of the matters stated 5 herein, and, if called upon, I could and would competently testify thereto. 6 1. On January 18, 2007, Plaintiff propounded her first set of requests for production of 7 documents on Apple. See Ex. A, attached hereto. 8 2. On February 23, 2007, Apple responded to each of Plaintiff's discovery requests with 9 objections. See Ex. B, attached hereto. Counsel for Apple further suggested that discovery initially 10 be limited to class certification issues. 11 3. On February 23, 2007, in response to Apple's suggestion that discovery initially be 12 limited to class certification issues, I sent a letter to Mr. Mittelstaedt and Ms. Strong extending 13 Apple's response date by one week as well as identifying the requests most relevant to class 14 certification. At the same time, Plaintiffs reserved their right to challenge any discovery bifurcation. 15 See Ex. D, attached hereto. 16 4. On April 13, 2007, I received a letter from Apple's counsel stating that if we would 17 like to meet and confer, Plaintiff Tucker should "set forth the bases for your position that the 18 discovery specified . . . relates to class issues." See Ex. E, attached hereto. 19 5. During the May 14, 2007, telephonic meet and confer, counsel for Apple discussed 20 implementing a "stepped discovery" plan. On May 24, 2007, I wrote a letter to counsel following up 21 on the meet and confer call, and agreeing to Apple's "stepped discovery" proposal. The agreement 22 required Apple to respond immediately to "class certification discovery," and Plaintiffs agreed to 23 permit Apple to defer its responses to certain discovery requests pending the filing of Apple's 24 opposition to Plaintiffs' motion for class certification. See Ex. F, attached hereto. 25 6. On May 31, 2007, I received a letter from counsel confirming its willingness to 26 produce unredacted spreadsheets responsive to Request No. 10, but refusing to comply with the full 27 extent of the request. Further, counsel again objected to producing cost and revenue data pursuant to 28 Request No. 19, stating that it was not relevant to class certification. See Ex. G, attached hereto. DECLARATION OF SWEENEY IN SUPPORT OF MOTION TO COMPEL APPLE INC.'S PRODUCTION OF DOCUMENTS RELATING TO CLASS CERTIFICATION - C-05-00037-JW -1- 1 7. On June 8, 2007, I again offered yet another concession to Apple by agreeing to 2 accept production of the underlying documents responsive to Request No. 10 in either electronic 3 version agreed to in the discovery format agreement, or in their native computer file format. See 4 Ex. H, attached hereto. 5 8. On June 15, Apple reversed its position and informed Plaintiffs that it would not 6 produce the spreadsheets responsive to Request No. 10 without redactions. See Ex. C, attached 7 hereto. 8 9. Following the Court's August 21, 2007 ruling on Plaintiff's Motion for 9 Administrative Relief (see Ex. I), Gregory Weston sent a letter to counsel reiterating that Apple 10 produce the responsive revenue, profit and loss statements, and related documents and explain the 11 basis of its confidentiality objection. See Ex. J, attached hereto. 12 10. On August 28, 2007, Apple again refused to provide the outstanding documents 13 responsive to Plaintiffs' Requests No. 10 and 19. See Ex. K, attached hereto. 14 11. On September 26, 2007, Apple refused again to provide the outstanding documents, 15 claiming that they are "merit" based and not "class" related. Apple has never objected to their 16 relevancy. See Ex. L, attached hereto. 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF SWEENEY IN SUPPORT OF MOTION TO COMPEL APPLE INC.'S PRODUCTION OF DOCUMENTS RELATING TO CLASS CERTIFICATION - C-05-00037-JW 12. Attached hereto are true and correct copies of the following: Plaintiff Melanie Tucker's First Set of Requests for Production of Documents to Defendant Apple Inc. dated January 18, 2007; Apple Inc.'s Objections to Plaintiff Melanie Tucker's First Set for Requests for Production of Documents dated February 23, 2007; Letter from Tracy Strong to Bonny Sweeney, dated June 15, 2007; Letter from Bonny Sweeney to Robert Mittlestaedt, dated February 23, 2007; Letter from Robert Mittlestaedt to Bonny Sweeney, dated April 13, 2007; Letter from Bonny Sweeney to Robert Mittlestaedt, dated May 24, 2007; Letter from Tracy Strong to Bonny Sweeney, dated May 31, 2007; Letter From Bonny Sweeney to Robert Mittlestaedt and Tracy Strong, dated June 8, 2007; Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G: Exhibit H: -2- 1 2 3 4 5 6 Exhibit I: The Apple iPod iTunes Antitrust Litigation, No. 05-cv-00037-JW, Order Regarding Plaintiffs' Motion for Administrative Relief (N.D. Cal. July 20, 2007); Letter from Gregory Weston to Tracy Strong, dated August 21, 2007; Letter from Tracy Strong to Greg Weston, dated August 28, 2007; and Letter from Tracy Strong to Greg Weston, dated September 26, 2007. Exhibit J: Exhibit K: Exhibit L: I declare under penalty of perjury under the laws of the State of California that the foregoing 7 is true and correct. Executed this 3rd day of December, 2007, at San Diego, California. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF SWEENEY IN SUPPORT OF MOTION TO COMPEL APPLE INC.'S PRODUCTION OF DOCUMENTS RELATING TO CLASS CERTIFICATION - C-05-00037-JW S:\CasesSD\Apple Tying\DEC00047575.doc s/BONNY E. SWEENEY BONNY E. SWEENEY -3- 1 2 CERTIFICATE OF SERVICE I hereby certify that on December 3, 2007, I electronically filed the foregoing with the Clerk 3 of the Court using the CM/ECF system which will send notification of such filing to the e-mail 4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have 5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF 6 participants indicated on the attached Manual Notice List. 7 I certify under penalty of perjury under the laws of the United States of America that the 8 foregoing is true and correct. Executed on December 3, 2007. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ BONNY E. SWEENEY BONNY E. SWEENEY COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231-1058 619/231-7423 (fax) E-mail:BonnyS@csgrr.com CAND-ECF Page 1 of 2 Mailing Information for a Case 5:05-cv-00037-JW Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Joseph Balint , Jr fbalint@bffb.com Francis David Braun service@braunlawgroup.com Michael S. Friedman rcreech@bffb.com,afriedman@bffb.com Andrew A. Katriel rak@katriellaw.com,rk618@aol.com Roy J. Kennedy tkennedy@murrayfrank.com Thomas Nason Mitchell cnmitchell@jonesday.com,mlandsborough@jonesday.com,ewallace@jonesday.com Caroline Allan Mittelstaedt ramittelstaedt@jonesday.com,ybennett@jonesday.com Robert P Murray bmurray@rabinlaw.com Brian Sailer jsailer@murrayfrank.com Jacqueline Richard Sand , Esq invalidaddress@invalidaddress.com Adam J. Stoia , Jr jstoia@csgrr.com John Strong tstrong@jonesday.com,dharmon@jonesday.com Tracy E. Sweeney bonnys@csgrr.com,tturner@csgrr.com,E_file_sd@csgrr.com Bonny Steven Weston gweston@csgrr.com Gregory https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?343712705724946-L_685_0-1 12/3/2007 CAND-ECF Page 2 of 2 Manual Notice List The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients. Todd David Carpenter Bonnett, Fairbourn, Friedman, & Balint 2901 N. Central Avenue Suite 1000 Phoenix, AZ 85012 Elaine A. Ryan Bonnett Fairbourn Friedman & Balint, P.C 2901 N. Central Avenue Suite 1000 Phoenix, AZ 85012 https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?343712705724946-L_685_0-1 12/3/2007