"The Apple iPod iTunes Anti-Trust Litigation"

Filing 176

Declaration of Michael Scott in Support of 175 Memorandum in Opposition re: 165 MOTION for class certification,filed by Apple Inc.. (Attachments: # 1 Exhibit 1-5, # 2 Exhibit 6-10, # 3 Exhibit 11-13, # 4 Exhibit 14-15, # 5 Exhibit 16-17, # 6 Exhibit 18-20, # 7 Exhibit 21)(Related document(s) 175 ) (Strong, Tracy) (Filed on 10/17/2008) Modified on 10/20/2008,(counsel failed to properly link to motion.) (cv, COURT STAFF).

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"The Apple iPod iTunes Anti-Trust Litigation" Doc. 176 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 Robert A. Mittelstaedt #060359 Craig E. Stewart #129530 JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 ramittelstaedt@jonesday.com cestewart@jonesday.com Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION THE APPLE iPOD iTUNES ANTITRUST LITIGATION Case No. C 05-00037 JW C 06-04457 JW DECLARATION OF MICHAEL SCOTT IN SUPPORT OF APPLE'S MEMORANDUM IN OPPOSITION TO MOTION FOR CLASS CERTIFICATION Date: December 15, 2008 Time: 9:00 A.M. Place: Courtroom 8, 4th Floor 1 Decl. of Michael Scott in Supp. of Opp. to Class Certification C 05-00037 JW C 05 00037 JW Dockets.Justia.com 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, Michael Scott, declare as follows: 1. I am an associate in the law firm of Jones Day, located at 555 California Street, 26th Floor, San Francisco, CA 94104. I am a member in good standing of the State Bar of California (#255282) and represent Apple Inc. in this case. I make this declaration in support of Apple's Opposition to Plaintiffs' Motion for Class Certification. I have personal knowledge of the facts set forth herein and, if called as a witness, I could and would testify competently thereto. 2. Attached hereto as Exhibit 1 is a true and correct copy of Thomas O. Barnett, Interoperability between Antitrust and Intellectual Property, Sept. 13, 2006, http://www.usdoj.gov/atr/public/speeches/218316.htm, printed on October 16, 2008. 3. Attached hereto as Exhibit 2 is a true and correct copy of Michelle Megna, APPLE'S SHINING MOMENT, May 11, 2003, http://www.nydailynews.com/archives/lifestyle/ 2003/05/11/2003-05-11_apple_s_shining_moment__the_.html?print= 1&viewall=1, printed on October 16, 2008. 4. Attached hereto as Exhibit 3 is a true and correct copy of Tom Merrit, Top 10 products, http://www.cnet.com/1990-11136_1-6312246-1.html, printed on October 16, 2008. 5. Attached hereto as Exhibit 4 is a true and correct copy of Peter Lewis, Product of the Year Apple iTunes Music Store, Dec. 22, 2003, http://money.cnn.com/magazines/fortune/ fortune_archive/2003/12/22/356108/, printed on October 16, 2008. 6. Attached hereto as Exhibit 5 is a true and correct copy of Ed Oswald, Napster Blames Microsoft for Failures, March 1, 2006, http://www.betanews.com/article/print/Napster_ Blames_Microsoft_for_Failures/1141237255, printed on October 16, 2008. 7. Attached hereto as Exhibit 6 is a true and correct copy of Jon Healy, Napster and Rhapsody compete for headlines, Sept. 20, 2006, http://opinion.latimes.com/bitplayer/2006/09/ napster_and_rha.html, printed on October 16, 2008. 8. Attached hereto as Exhibit 7 is a true and correct copy of Todd Bishop, Software Notebook: Microsoft Zune doesn't do `PlaysForSure', Sept. 18, 2006, http://seattlepi.nwsource.com/business/285407_software18.html, printed on October 16, 2008. Decl. of Michael Scott in Supp. of Opp. to Class Certification C 05-00037 JW 2 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 9. Attached hereto as Exhibit 8 is a true and correct copy of Reuters, Zune Launch sparks DRM fallout, Nov. 20, 2006, http://www.mp3.com/news/stories/7248.html, printed on October 16, 2008. 10. Attached hereto as Exhibit 9 is a true and correct copy of an Apple support webpage entitled iTunes 3: How to Convert Song to a Different Format, printed from http://support.apple.com/kb/HT2427 on October 15, 2008. 11. Attached hereto as Exhibit 10 are true and correct copies of Apple support webpages explaining how to burn and import audio CDs, printed from http://docs.info.apple.com/ article.html?path=iTunesWin/7.6/en/15323.html and http://support.apple.com/kb/HT1473 on October 16, 2008. 12. Attached hereto as Exhibit 11 is a true and correct copy of a WikiAnswers webpage, printed from http://wiki.answers.com/Q/Can_you_download_music_from_iTunes _to_a_Sandisk_MP3_player on October 15, 2008. 13. Attached hereto as Exhibit 12 is a true and correct copy of Conseil de la Concurrence [French Republic Competition Council], decision no. 04-D-54, Nov. 9, 2004, http://www.conseil-concurrence.fr/pdf/avis/04d54.pdf, printed on October 15, 2008. 14. Attached hereto as Exhibit 13 is a true and correct copy of an English translation of Exhibit 12 prepared by Sébastien Evrard and Cecelia Kye, an associate and consultant, respectively, in the Brussels office of Jones Day, in November and December, 2004. 15. Attached hereto as Exhibit 14 are true and correct copies of price listings for the 2GB SanDisk Sansa Express [http://go.shopsansa.com/content/express]; the 2GB Creative MuVo T200 [http://us.creative.com/products/product.asp?category=213&subcategory=215&product =17474]; the 16GB SanDisk Sansa View [http://go.shopsansa.com/content/view]; and the 16GB Sony Walkman Video [http://www.sonystyle.com/webapp/wcs/stores/servlet/ProductDisplay? catalogId=10551&storeId=10151&langId=-1&productId=81985529216 65368511], each printed on October 16, 2008. 16. Attached hereto as Exhibit 15 is a true and correct copy of transcript excerpts of Decl. of Michael Scott in Supp. of Opp. to Class Certification C 05-00037 JW the deposition of Thomas William Slattery, taken in this matter on January 30, 2006. 3 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 17. Attached hereto as Exhibit 16 is a true and correct copy of transcript excerpts of the deposition of Somtai Troy Charoensak, taken in this matter on January 12, 2007. 18. Attached hereto as Exhibit 17 is a true and correct copy of transcript excerpts of the deposition of Marianna Rosen, taken in this matter on January 24, 2007. 19. Attached hereto as Exhibit 18 is a true and correct copy of transcript excerpts of the deposition of John Pisarkiewicz, Ph. D., taken in this matter on February 28, 2007. 20. Attached hereto as Exhibit 19 is a true and correct copy of transcript excerpts of the deposition of Melanie Christine Tucker, taken in Tucker v. Apple Computer, Inc., No. C 064457 HRL (N.D. Cal. filed July 21, 2006) on October 26, 2007. 21. Attached hereto as Exhibit 20 is a true and correct copy of transcript excerpts of the deposition of Stacie Somers, taken in Somers v. Apple, Inc., No. C 07-6507 (N.D. Cal. filed Dec. 31, 2007) on June 17, 2008. 22. Attached hereto as Exhibit 21 is a true and correct copy of transcript excerpts of the deposition of Roger G. Noll, Ph.D., taken in this matter on September 19, 2008. I declare under penalty of perjury under the law of the United States that the foregoing is true and correct. Executed October 17, 2008 in San Francisco, California. /s/ Michael Scott Michael Scott SFI-594320 4 Decl. of Michael Scott in Supp. of Opp. to Class Certification C 05-00037 JW