"The Apple iPod iTunes Anti-Trust Litigation"

Filing 218

JOINT CASE MANAGEMENT STATEMENT filed by Melanie Tucker. (Sweeney, Bonny) (Filed on 5/22/2009)

"The Apple iPod iTunes Anti-Trust Litigation" Doc. 218 1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 BONNY E. SWEENEY (176174) 655 West Broadway, Suite 1900 3 San Diego, CA 92101 Telephone: 619/231-1058 4 619/231-7423 (fax) bonnys@csgrr.com 5 THE KATRIEL LAW FIRM 6 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 7 Washington, DC 20007 Telephone: 202/625-4342 8 202/330-5593 (fax) rak@katriellaw.com 9 Co-Lead Counsel for Plaintiffs 10 [Additional counsel appear on signature page.] 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(RS) 15 LITIGATION ) ) CLASS ACTION 16 ) ) JOINT CASE MANAGEMENT This Document Relates To: 17 ) STATEMENT ) ALL ACTIONS. 18 ) Judge: Hon. James Ware Date: June 1, 2009 19 Time: 10:00 a.m. CtRm: Courtroom 8, 4th Floor 20 21 22 23 24 25 26 27 28 Dockets.Justia.com 1 In accordance with the Court's May 15, 2009 Order, the parties jointly submit this Case 2 Management Conference Statement. 3 I. 4 5 PROPOSED CASE SCHEDULE A. Status of Discovery Plaintiffs are proceeding with discovery on their monopoly, attempted monopoly and related 6 state law claims. In light of the Court's May 15, 2009 Order granting in part defendant's motion for 7 judgment on the pleadings, Plaintiffs are considering whether to proceed on a rule-of-reason tying 8 claim theory and intend to have a final decision by the conference. If Plaintiffs elect to proceed with 9 a rule-of-reason tying claim, Apple intends to promptly file a 12(c) motion to dismiss that claim as 10 invited by the Court in its May 15 Order. 11 Recently, Plaintiffs served a Rule 30(b)(6) deposition notice and corresponding document 12 requests concerning software updates and have re-served, with modifications, discovery served 13 before the Court bifurcated certification and merits discovery. The parties have met and conferred 14 on the scope of the 30(b)(6) deposition and Apple will begin producing responsive documents on 15 May 27, 2009. The deposition is currently scheduled for the third week of July. 16 17 18 19 20 B. Proposed Schedule 1. Plaintiffs' Position Plaintiffs propose the following schedule for motions, discovery, and trial: (a) (b) Non-expert Discovery Deadline April 1, 2010; Deadline for Taking Fact-Related Depositions 30 days after the close of 21 non-expert discovery; 22 (c) Deadline for Filing Dispositive Motions and Corresponding Memoranda 60 23 days after the close of non-expert discovery; 24 (d) Parties' Simultaneous Exchange of Expert Reports 60 days after the close of 25 non-expert discovery; 26 27 28 reports; JOINT CASE MANAGEMENT STATEMENT - C-05-00037-JW(RS) (e) (f) Deadline for Expert Rebuttal Reports 30 days after initial expert exchange; Deadline for Expert Depositions 30 days after exchange of expert rebuttal -1- 1 2 3 4 (g) (h) (i) Final Pretrial Order September 1, 2010; Final Pretrial Hearing September 15, 2010; and Jury Trial October 15, 2010. Plaintiffs disagree with Apple that Plaintiffs should be limited to only the 30(b)(6) discovery 5 prior to a Rule 56 motion on the subject of software updates. Such a motion is only appropriate after 6 all evidence on the claim has been collected. The outstanding 30(b)(6) requests, however, do not 7 reach all aspects of Apple's anticompetitive behavior. Additionally, Plaintiffs have not obtained any 8 discovery from Apple in response to their 30(b)(6) requests and thus, are unable to determine 9 whether additional requests or discovery methods will be necessary. Moreover, deferring all other 10 discovery and the setting of a detailed pretrial schedule will unnecessarily delay the progress and 11 resolution of this case. Accordingly, Plaintiffs' above proposed schedule is appropriate and will 12 assist the parties in moving the case forward. 13 14 2. Apple's Position Apple believes that setting a schedule for discovery, post-discovery motions and trial should 15 be deferred until the disposition of Apple's anticipated dispositive motion against Plaintiffs' 16 remaining claims. Apple intends to move against those claims under Rule 12(c) or Rule 56 on the 17 ground the alleged conduct is not exclusionary or otherwise unlawful. Apple proposes to file its 18 motion following the completion of Plaintiffs' requested Rule 30(b)(6) deposition on the subject of 19 Apple's software updates to its DRM. Apple anticipates that the deposition will occur in July 2009 20 and thus expects to file its motion by September 1. The Court's ruling on that motion will either 21 resolve the case or likely substantially define the issues for further discovery, motion practice or 22 potential trial. Accordingly, Apple believes that it makes sense to defer further discovery and the 23 setting of a detailed pretrial schedule until after the Court has ruled on the motion and it is known 24 whether any further proceedings are necessary. 25 If the Court were to set a schedule now, Apple believes that the Plaintiffs' proposed schedule 26 is objectionable and should be revised in the following respects: (1) the deadline for dispositive 27 motions should be after the close of all discovery (including experts), rather than after the close of 28 fact discovery, (2) the exchange of expert reports should be staggered (Plaintiffs' reports, Apple's JOINT CASE MANAGEMENT STATEMENT - C-05-00037-JW(RS) -2- 1 reports, Plaintiffs' rebuttal reports) rather than simultaneous, and (3) the dates for the final pretrial 2 order and hearing should be triggered beginning at least 90 days from the date on which the 3 dispositive motions are resolved. 4 5 C. Discovery Limitations The parties agree to coordinate with each other to identify, schedule, and examine witnesses 6 at deposition. The parties agree to work in good faith to determine the schedule of depositions going 7 forward. For good cause shown, the parties may move the Court and seek additional depositions 8 from the Court should they believe in good faith that an additional deposition may provide 9 necessary. 10 11 1. Specific Limits Proposed by Plaintiffs Plaintiffs propose that the limits on the number of depositions imposed by the Federal Rules 12 of Civil Procedure shall not apply to this matter, subject to the limitations set forth by the Court. 13 Plaintiffs request permission to take 20 depositions. Plaintiffs intend to take a number of depositions 14 pursuant to Fed. R. Civ. P. 30(b)(6) and propose that any 30(b)(6) deposition not count within their 15 20 deposition proposal. Plaintiffs have already served one 30(b)(6) deposition notice concerning 16 software updates and it is unclear at this time how many deponents will be designated. Additionally, 17 Plaintiffs are likely to depose current and former officers and management personnel of Apple. 18 19 2. Specific Limits Proposed by Apple The Court should limit Plaintiffs to 15 days of deposition, including 30(b)(6) depositions. As 20 Plaintiffs note, they have already served a 30(b)(6) deposition concerning software updates. 30(b)(6) 21 depositions are very onerous on defendants and there is no basis to exclude them from the normal 22 limitations on deposition discovery. Apple's proposal gives Plaintiffs substantially more than the 23 number of deposition days allowed by the Federal Rules and is sufficient. 24 II. 25 CLASS NOTICE With the benefit of the Court's May 15, 2009 ruling on Apple's Rule 12(c) motion with 26 respect to Plaintiffs' tying claim, Plaintiffs are now preparing the substantive content of the class 27 notice and notice plan, which will be submitted to the Court. From discussions at a prior case 28 management conference, Plaintiffs understand that the Court prefers a joint class notice, notifying JOINT CASE MANAGEMENT STATEMENT - C-05-00037-JW(RS) -3- 1 direct and indirect purchaser classes of the pending litigation in the same notice, in order to avoid 2 confusion. Plaintiffs agree that a joint notice is appropriate. Accordingly, Plaintiffs will wait for the 3 indirect purchaser class certification order and will, as appropriate, consult with counsel for the 4 indirect purchaser Plaintiffs on the notice content and notice plan. Apple concurs that a decision 5 about the content of the class notice should be deferred at this time. 6 DATED: May 22, 2009 7 8 9 10 11 12 13 14 15 16 Co-Lead Counsel for Plaintiffs 17 18 19 20 21 22 23 24 25 26 27 28 MURRAY, FRANK & SAILER LLP BRIAN P. MURRAY JACQUELINE SAILER 275 Madison Avenue, Suite 801 JOINT CASE MANAGEMENT STATEMENT - C-05-00037-JW(RS) COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP BONNY E. SWEENEY s/ Bonny E. Sweeney BONNY E. SWEENEY 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) THE KATRIEL LAW FIRM ROY A. KATRIEL 1101 30th Street, N.W., Suite 500 Washington, DC 20007 Telephone: 202/625-4342 202/330-5593 (fax) BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. ANDREW S. FRIEDMAN FRANCIS J. BALINT, JR. ELAINE A. RYAN TODD D. CARPENTER 2901 N. Central Avenue, Suite 1000 Phoenix, AZ 85012 Telephone: 602/274-1100 602/274-1199 (fax) BRAUN LAW GROUP, P.C. MICHAEL D. BRAUN 12304 Santa Monica Blvd., Suite 109 Los Angeles, CA 90025 Telephone: 310/442-7755 310/442-7756 (fax) -4- 1 2 3 4 5 6 New York, NY 10016 Telephone: 212/682-1818 212/682-1892 (fax) GLANCY BINKOW & GOLDBERG LLP MICHAEL GOLDBERG 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067 Telephone: 310/201-9150 310/201-9160 (fax) Additional Counsel for Plaintiffs 7 DATED: May 22, 2009 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOINT CASE MANAGEMENT STATEMENT - C-05-00037-JW(RS) S:\CasesSD\Apple Tying\CMS00059535.doc JONES DAY ROBERT A. MITTELSTAEDT CAROLINE M. MITCHELL TRACY STRONG s/ Robert A. Mittelstaedt ROBERT A. MITTELSTAEDT 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: 415/626-3939 415/875-5700 (fax) Attorneys for Defendant, Apple, Inc. -5- 1 2 CERTIFICATE OF SERVICE I hereby certify that on May 22, 2009, I electronically filed the foregoing with the Clerk of 3 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 May 22, 2009. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 s/ Bonny E. Sweeney BONNY E. SWEENEY 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 D Braun service@braunlawgroup.com Michael D. Braun service@braunlawgroup.com Michael S. Friedman rcreech@bffb.com,afriedman@bffb.com Andrew Haeggquist alreenh@zhlaw.com,juliew@zhlaw.com Alreen 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@murrayfrank.com Brian Sailer jsailer@murrayfrank.com Jacqueline Richard Sand , Esq invalidaddress@invalidaddress.com Adam Ellsworth Stewart cestewart@jonesday.com,mlandsborough@jonesday.com Craig J. Stoia , Jr jstoia@csgrr.com John https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?108763720326947-L_497_0-1 5/22/2009 CAND-ECF Page 2 of 2 Strong tstrong@jonesday.com,dharmon@jonesday.com Tracy E. Sweeney bonnys@csgrr.com,E_file_sd@csgrr.com,christinas@csgrr.com Bonny I. Zeldes helenz@zhlaw.com Helen 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?108763720326947-L_497_0-1 5/22/2009