"The Apple iPod iTunes Anti-Trust Litigation"

Filing 347

REDACTION to 345 Declaration of Paula M. Roach Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure in Support of Plaintiffs' Opposition to Apple's Motion to Dismiss or, Alternatively, for Summary Judgment by Melanie Tucker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Roach, Paula) (Filed on 3/22/2010) Modified on 3/23/2010 (cv, COURT STAFF).

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Case5:05-cv-00037-JW Document347 Filed03/22/10 Page1 of 12 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 JOHN J. STOIA, JR. (141757) BONNY E. SWEENEY (176174) 3 THOMAS R. MERRICK (177987) PAULA M. ROACH (254142) 4 655 West Broadway, Suite 1900 San Diego, CA 92101 1 5 Telephone: 619/231-1058 619/231-7423 (fax) 6 johns@csgrr.com 7 8 THE KA TRIEL LAW FIRM bonnys@csgrr.com tmerrick@csgrr.com proach@csgrr.com ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 10 Washington, DC 20007 9 Telephone: 202/625-4342 11 202/330-5593 (fax) rak@katriellaw.com Co- Lead Counsel for Plaintiffs 12 13 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN JOSE DIVISION 1 8 LITIGATION ) 17 20This Document Relates TO ) DECLARA56(f) PAULA M. ROACH ) PURSUANT To: RULE TION OF OF THE 19 ) THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(HRL) ) CLASS ACTION 21 ) ALL ACTIONS. ) FEDERAL OPPOSITION TO APPLE'S PROCEDURE IN SUPPORT OF RULES OF CIVIL MOTION TO PLAINTIFFS' 22 DISMISS OR, AL TERN A TIVEL Y, FOR SUMMARY JUDGMENT 23 24 25 Judge: Date: Time: Location: Hon. James Ware April 26, 2010 9:00 am 8, 4th Floor 26 27 28 REDACTED 51128_~ Case5:05-cv-00037-JW Document347 Filed03/22/10 Page2 of 12 1 I, PAULA M. ROACH, declare as follows: 2 1. I am an attorney duly licensed to practice before all of the courts of the State of Coughlin Stoia Geller Rudman & Robbins LLP, Co- 3 California. I am an associate at the law firm of 4 Lead Counsel for Plaintiffs in this action. I make this declaration on personal knowledge pursuant to 5 Rule 56(f) of the Federal Rules of Civil Procedure to set forth discovery Plaintiffs need in order to 6 fully respond to Apple's motion for summary judgment, should this Court be inclined to rule on that 7 motion. 8 2. I have personal knowledge of the procedural history of this action, the scope of 9 discovery Plaintiffs require in order to fully respond to Apple's summary judgment motion, the 10 reasons this discovery is necessary, and the detriment Plaintiffs will suffer if they are not permitted lIto complete such discovery prior to a determination of Apple's motion. 12 I. 13 INTRODUCTION 3. Plaintiffs believe that the evidence submitted is more than sufficient for this Court to 14 deny Apple's motion in its entirety. Nevertheless, should the Court be inclined to grant any part of 15 Apple's motion, Plaintiffs respectfully request the right to take certain discovery to further oppose 16 Apple's motion. 17 4. Plaintiffs currently lack an adequate factual record on which to base a fair and 18 effective response to Apple's summary judgment motion. As set forth below and in Plaintiffs' 19 opposition to Apple's motion, Plaintiffs need discovery on: (1) Apple's negotiations and contracts 20 with all record labels; (2) Apple's intention to not license FairPlay; (3) the nature of Apple's 21 agreements with Hewlett Packard ("HP") and Motorola concerning the use of iTunes on non-Apple 22 products; (4) the technical aspects of Apple's software updates that disabled Harmony; (5) the 23 technical aspects of Harmony; (6) software updates that affected competitors' attempts to achieve 24 interoperability; (7) "hacks"; and (8) whether the alleged software programs intended to create 25 interoperability violated the Digital Millennium Copyright Act ("DMCA"). Despite Plaintiffs' 26 efforts to diligently pursue discovery on these matters, Plaintiffs have yet to receive complete 27 28 511280_1 DEC OF PMR PURSUANT TO RULE 56(F) OF THE FEDERAL RULES OF CIVIL PROCEDURE ISO 00037-JW(HRL) - 1 PL TFS' OPPO TO APPLE'S MTD OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT - C-05- Case5:05-cv-00037-JW Document347 Filed03/22/10 Page3 of 12 1 discovery from Apple. Still, Apple asks this Court to dispose of the related allegations on an 2 incomplete factual record. 3 II. 4 PROCEDURAL BACKGROUND 5. On December 22, 2008, the Court certified a plaintiff Class of iPod purchasers and the plaintiff 5 their monopoly claims. Dkt. No.1 96. Certification of Class triggered the beginning of 6 merits discovery. Accordingly, Plaintiffs began pursuing discovery on their monopoly claims. 7 6. On August 31,2009, Apple moved for decertification of Plaintiffs' Rule 23(b)(3) 8 damages class and reconsideration of the Rule 23(b )(2) injunctive relief class. Dkt. Nos. 240, 244. 9 The Court heard oral argument on these and Plaintiffs' related motions on November 23,2009. Dkt. 10 No. 301. During that hearing, the Court invited a Rule 1 2(b)( 6) motion by Apple but made clear that 11 discovery would remain open. See Ex. A, attached hereto ("This is not a Securities Litigation 12 Reform Act case where you can't go ahead with discovery while these things are going on and as far 13 as I'm concerned discovery is open and if you need help from the Court getting the information you 14 need, resort to that process."). Accordingly, Plaintiffs continued to serve discovery on Apple and 15 third parties and filed a motion to compeL. See Dkt. No. 306. 16 7. On December 21, 2009, the Court sua sponte decertified the plaintiff Class and 17 invited Plaintiffs to amend their complaint so as to more clearly delineate their Section 2 monopoly 18 claims separate and apart from their previously dismissed Section 1 tying claims. Following the 19 Court's direction, Plaintiffs filed their Amended Consolidated Complaint ("Amended Complaint") 20 on January 25,2010, and re-asserted their monopoly and related state and common law claims. Dkt. 21 No. 322. 8. 22 Apple filed its current motion concerning Plaintiffs' Amended Complaint on 23 February 22,2010. Dkt. No. 332. 24 III. PLAINTIFFS HAVE DILIGENTLY SOUGHT THE DISCOVERY NECESSARY TO RESPOND TO APPLE'S MOTION FOR SUMMARY 25 JUDGMENT 26 9. Plaintiffs have met their burden of diligently pursuing the discovery necessary to 27 respond to the instant motion for summary judgment and are now entitled to the discovery under 28 511280_1 DEC OF PMR PURSUANT TO RULE 56(F) OF THE FEDERAL RULES OF CIVIL PROCEDURE ISO PL TFS' OPPO TO APPLE'S MTD OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT - C-05- 00037-JW(HRL) - 2 - Case5:05-cv-00037-JW Document347 Filed03/22/10 Page4 of 12 1 Rule 56(f) ofthe Federal Rules of Civil Procedure. See BarovichAssocs. v. Aura Sys., Inc., No. 96- 2 55778, 1998 WL 10747, at * 1 (9th Cir. Jan. 9, 1998).1 From the period shortly after the Court 3 granted Plaintiffs' motion for certification to the present, Plaintiffs have served discovery and 4 diligently met and conferred with Apple to obtain discovery necessary to oppose any summary 5 judgment motion. 6 10. On April 9, 2009, Plaintiffs served a Rule 30(b)(6) deposition notice and related 7 document requests concerning Apple's use of software updates to exclude competition. Ex. B, 8 attached hereto. From May 2009 through the end of July 2009, the parties met and conferred several 9 times concerning the scope and relevance of these requests. On July 31,2009, the parties agreed that 10 Apple would begin producing documents responsive to: (1) software updates that affected 11 competitors' attempts to achieve interoperability; and (2) "hacks." Plaintiffs reserved their right to 12 obtain full production on all of their Rule 30(b)( 6) requests once this production was completed. 13 The parties met and conferred further concerning search terms and a list of custodians whose files 14 would be searched. 15 11. On October 15,2009, Apple produced its first installment of documents responsive to 16 the Rule 30(b)(6) requests. Plaintiffs received eight more installments of responsive documents 17 between October 22,2009 and March 22, 2010. Apple's last installment of documents responsive to 18 the 30(b)(6) requests was received on the day Plaintiffs' opposition to Apple's current motion for 19 summary judgment was filed. Plaintiffs are in the process of reviewing the documents for 20 preparation of the related Rule 30(b)(6) deposition. Apple has indicated that it will proffer one 21 witness for deposition. The parties are in the process of negotiating a deposition date for some time 22 in April 2010, or as soon as possible thereafter. 23 12. In addition to the Rule 30(b)(6) requests relating to Apple's software updates, 24 Plaintiffs also sought discovery concerning all elements of their monopoly claims. On May 22, 25 2009, Plaintiffs served amended first set of requests for production of documents, amended first set 26 27 1 Plaintiffs cite to Barovich pursuant to Ninth Circuit Rule 36-3. 28 511280 1 DEC OF PMR PURSUANT TO RULE 56(F) OF THE FEDERAL RULES OF CIVIL PROCEDURE ISO PLTFS' OPPO TO APPLE'S MTD OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT - C-05- 00037-JW(HRL) - 3 - Case5:05-cv-00037-JW Document347 Filed03/22/10 Page5 of 12 1 of interrogatories, and amended first set of requests for admission. These requests related to 2 definitions of the relevant markets, Apple's monopoly power in the relevant markets, Apple's 3 response to competition in the relevant markets, Apple's use of FairPlay or other DRM, and 4 damages. The parties met and conferred several times over the course of four months concerning the 5 scope and relevancy of these requests. On September 25,2009, the parties agreed to search terms 6 and custodians for production of documents responsive to these requests. Apple provided minimal 7 production including only updated organizational charts, revenue and sales charts, and limited 8 documents concerning Apple's assessment of relevant markets and licensing of FairPlay. According 9 to Apple, the additional production was delayed because it continued to focus its production on 10 documents responsive to the Rule 30(b)( 6) requests regarding software updates. 11 13. On December 28,2009, Plaintiffs served a second set of requests for production of 12 documents and second set of interrogatories. Exs. C, D, attached hereto. These requests focused on 13 questions of market definition, Apple's monopoly power, Apple's negotiations and contracts with 14 the record labels, Apple's relationships with Motorola and HP for use of iTunes on non-Apple 15 products, the effect of burning and ripping on the audio quality of music files, Apple's response to 16 RealNetworks, and Apple's communications with the record labels concerning Apple's use of 17 FairPlay, interoperability, and licensing of FairPlay. Plaintiffs also moved to compel further 18 response from Apple on January 5, 2010 with regard to their first set of requests for production of 19 documents and interrogatories. Dkt. No. 306. Additionally, Plaintiffs served the major record labels 20 with subpoenas seeking inter alia their contracts and negotiations with Apple related to iTS and their 21 reactions to RealNetworks and other Apple competitors. 22 14. However, after the Court's December 21,2009 decertification Order, Apple took the 23 position that discovery was no longer open and thus, refused to produce discovery responsive to 24 Plaintiffs' first or second sets of discovery requests until after this motion was decided. On February 25 18, 2010, the Court directed the parties that discovery was open and reaffirmed that "Plaintiffs may 26 proceed with discovery at this time." Dkt. No. 324 at 2. 27 28 511280_1 DEC OF PMR PURSUANT TO RULE 56(F) OF THE FEDERAL RULES OF CIVIL PROCEDURE iSO 00037-JW(HRL) - 4PLTFS' OPPO TO APPLE'S MTD OR, ALTERNA TIVEL Y, FOR SUMMARY JUDGMENT - C-05- Case5:05-cv-00037-JW Document347 Filed03/22/10 Page6 of 12 1 15. The parties subsequently resolved the issues related to Plaintiffs' motion to compel on 2 their first set of document requests and interrogatories. The parties also met and conferred and were 3 able to agree that Apple would focus its production efforts on completing the Rule 30(b)(6) 4 production on software updates and those requests Plaintiffs identified as being necessary for 5 adequate response to Apple's motion for summary judgment. Those topics include discovery related 6 to: (1) Apple's response to RealNetworks; (2) Apple's negotiations and contracts with all record 7 labels that provided content on iTS; (3) the effect of burning and ripping on sound quality; (4) 8 communications with the record labels concerning Apple's use of FairPlay, interoperability, and 9 licensing FairPlay; (5) Apple's relationships with HP and Motorola concerning the use ofiTunes on 10 non-Apple products; (6) Apple's costs of issuing the software updates; and (7) drafts related to Steve 11 Jobs' article "Thoughts on Music." Ex. C, (Request for Production ("RFP") Nos. 31-35,38-40,46, 12 54, 65); Ex. D, (Interrogatory Nos. 14-16, 18- 1 9). Apple also agreed to produce certain documents 13 related to market definition and monopoly power to the extent that these documents are readily 14 accessible. Apple has not begun production of these documents nor has it indicated how long 15 production will take. 16 iv. 17 18 DISCOVERY is BOTH NECESSARY AND RELEVANT TO THE COURT'S DETERMINATION OF APPLE'S MOTION FOR SUMMARY JUDGMENT 16. To date, Plaintiffs have only received documents related to their Rule 30(b)(6) the documents produced or 19 requests concerning software updates but have yet to complete review of 20 take the deposition. Still, Apple seeks to dispose of Plaintiffs' claims concerning Apple's willful 21 conduct related to its use of software updates and in doing so, Apple makes several arguments 22 concerning its contracts with the record labels who provided content on iTS, the technical aspects of 23 its software updates, the technical aspects of certain conduct of competitors, and Apple's inability to 24 cooperate with competitors. 25 17. As an initial matter, Plaintiffs should be permitted time to review the Rule 30(b)(6) 26 document production that was recently completed on March 22, 2010, determine whether additional 27 related discovery will be necessary, and take the Rule 30(b)(6) deposition concerning Apple's use of 28 511280_1 DEC OF PMR PURSUANT TO RULE 56(F) OF THE FEDERAL RULES OF CIVIL PROCEDURE ISO 00037-JW(HRL) - 5 PLTFS' OPPO TO APPLE'S MTD OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT - C-05- Case5:05-cv-00037-JW Document347 Filed03/22/10 Page7 of 12 1 software updates. Apple's use of software updates is central to Plaintiffs' claims and Apple's 2 motion for summary judgment. Amended Complaint, ~~52-67, filed Jan. 26,2010; Apple's Motion 3 to Dismiss or, Alternatively, for Summary Judgment ("Apple's Motion") at 1 0- 1 9. Apple contends 4 that RealNetworks' use of Harmony made Apple's products less secure, Apple would be required to 5 cooperate with RealNetworks in order to not disable Harmony, and the alleged software programs 6 intended to create interoperability were illegal hacks into FairPlay. Id. The Rule 30(b)(6) deposition 7 and related discovery will assist Plaintiffs in responding more fully to these arguments. lt will also 8 likely reveal additional sources of information that will likewise need to be evaluated. 9 18. Plaintiffs are also entitled to production related to RFP Nos. 31-35, 38-40, 46,54,65 10 from their Second Set of Requests for Production of Documents and Interrogatory Nos. 14-16 of 11 their Second Set of Interrogatories. RFP Nos. 31-35 and Interrogatory No. 16 relate to Apple's 12 contracts and communications with the record labels that sold content through the iTS. Apple 13 contends that the record labels required 14 15 16 17 18 19 20 Further discovery on Apple's communications with the record labels is 21 precisely the type of information Plaintiffs would like to uncover in order to respond to Apple's 22 motion. 23 19. Additionally, Plaintiffs have yet to obtain any discovery related to Apple's contracts 24 and negotiations with the non-major record labels. Public information obtained by Plaintiffs 25 suggests that at least some of the record labels that sold music through iTS did not require DRM 26 protection and thus, it was Apple's decision to apply such restrictions. See Merrick Decl., Ex. 6. 27 28 511280 i DEC OF PMR PURSUANT TO RULE 56(F) OF THE FEDERAL RULES OF CIVIL PROCEDURE ISO PLTFS' OPPO TO APPLE'S MTD OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT - C-05- 00037-JW(HRL) - 6 - Case5:05-cv-00037-JW Document347 Filed03/22/10 Page8 of 12 Further, Plaintiffs have yet to obtain full discovery related to the contract negotiations with the 2 record labels and their communications regarding Apple's use of FairPlay. 3 20. RFP Nos. 38 through 40 relate to Apple's relationships with HP and Motorola 4 concerning the use of iTunes software on HP computers and Motorola cell phones, non-Apple 5 products. Apple contends that cooperation with RealNetworks would have been impossible because 6 sharing sensitive technological information would have made Apple's products less secure. 7 However, Apple's previous relationships with HP and Motorola suggest that such cooperation was 8 possible and would not have been detrimental to Apple's security. Plaintiffs are entitled to this 9 discovery. 10 21. RFP No. 46 seeks production of all drafts of Steve Jobs' article titled "Thoughts on 11 Music." In this article Mr. Jobs discusses the requirements of the record labels to use DRM and 12 issue software updates, as well as the impossibility oflicensing FairPlay or otherwise working with 13 competitors. Accordingly, this information is relevant to Apple's motion and may provide important 14 evidence to rebut Apple's claims. 15 22. RFP No. 54 requests documents related to the costs of issuing software updates. This 16 is relevant to whether Apple elected to expend significant money issuing software updates in order to 17 maintain its monopolies and take supracompetitive profits on iPods in the long run. 18 23. Interrogatory Nos. 14 and 15 relate to Apple's response to RealNetworks and its 19 contention that it did not harm competition in the relevant markets. This information goes to the 20 heart of Apple's instant motion and thus, Plaintiffs are entitled to discover it. 21 24. Interrogatory Nos. 18 and 19 and RFP No. 65 relate to the effect of burning and 22 ripping on the sound quality ofthe music files and whether burning and ripping was permitted at all 23 under the iTS customer terms of service agreements. In its motion for summary judgment, Apple 24 claims that interoperability was not an issue because purchasers of iTS music could download their 25 music onto a non-iPod with "a few additional steps." See Apple's Motion at 9. 26 27 28 511280_1 DEC OF PMR PURSUANT TO RULE 56(F) OF THE FEDERAL RULES OF CIVIL PROCEDURE iSO 00037-JW(HRL) - 7 PLTFS' OPPO TO APPLE'S MTD OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT - C-05- Case5:05-cv-00037-JW Document347 Filed03/22/10 Page9 of 12 1 25. Further, Plaintiffs should be permitted to obtain discovery from the record labels 2 through the subpoenas served on December 1 1, 2009. Plaintiffs have met and conferred with the 3 labels and are in the process of agreeing to production. 4 26. In addition, Plaintiffs should be given time to seek discovery related to the technical 5 aspects of certain of Apple's software updates as well as the technical aspects of RealNetworks' 6 Harmony. In particular, Plaintiffs will need to determine inter alia what aspects of the relevant 7 software updates addressed RealNetworks and when they were designed, whether RealNetworks' 8 use of Harmony made FairPlay less secure, whether Apple would need to cooperate with 9 RealNetworks in order to not break Harmony, and whether the alleged software programs intended 10 to achieve interoperability violated the DMCA. In addition to obtaining discovery from Apple, 11 Plaintiffs will likely have to consult with technical experts to properly evaluate Apple's claims. This 12 is information central to Apple's current motion and would be appropriately sought in conjunction 13 with Plaintiffs' Rule 30(b)(6) deposition. 14 27. Upon completion of the relevant discovery production, Plaintiffs also intend to take 15 the deposition of Jeffrey Robbin concerning the issues raised in his declaration filed in support of 16 Apple's motion. 17 18 28. Attached hereto are true and correct copies of the following documents: Exhibit A: Relevant Excerpt from the November 23,2009 Hearing; Exhibit B: Plaintiffs' Rule 30(b)(6) Notice of 19 20 21 Videotaped Deposition and Rule 34 Request for Documents to Defendant Apple, Inc. Regarding Software Updates, dated April 9, 2009; Requests for Production of Exhibit C: Plaintiffs' Second Set of Documents, dated December 29,2009; and 22 23 Exhibit D: Plaintiffs' Second Set ofInterrogatories to Defendant Apple Inc., dated December 29,2009. 24 I declare under penalty of perjury under the laws of the United States of America that the 25 foregoing is true and correct. Executed this 22nd day of March, 2010, at San Diego, California. 26 27 28 s/ Paula M. Roach PAULA M. ROACH 511280_1 DEC OF PMR PURSUANT TO RULE 56(F) OF THE FEDERAL RULES OF CIVIL PROCEDURE ISO PLTFS' OPPO TO APPLE'S MTD OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT - C-05- 00037-JW(HRL) - 8 - Case5:05-cv-00037-JW Document347 Filed03/22/10 Page10 of 12 CERTIFICATE OF SERVICE 2 I hereby certify that on March 22,2010, I electronically filed the foregoing with the Clerk of 3 the Court using the CMIECF 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 March 22, 2010. 9 10 11 s/ Paula M. Roach PAULA M. ROACH 12 13 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231 -1058 14 15 619/231-7423 (fax) E-mail: proach@csgrr.com 16 17 18 19 20 21 22 23 24 25 26 27 28 511280_1 CAND-ECF-ase5:05-cv-00037-JW Document347 C Filed03/22/10 Page11 of 12 Page 1 of2 Mailing Information for a Case 5:05-cv-00037-JW Electronic Mail Notice List The following are those who are currently onthe list to receive e-mail notices for this case. . Francis Joseph Balint, Jr tbalint@bftb.com . Michael D Braun service@braunlawgroup.com . Michael D. Braun service@braunlawgroup.com,clc@braunlawgroup.com . Todd David Carpenter tcarpenter@bftb.com . Andrew S. Friedman rcreech@bftb.com,afriedman@bffb.com . Alreen Haeggquist alreenh@zhlaw.com,judyj @zhlaw.com . Roy A. Katriel rak@katriellaw.com,rk6 1 8@aol.com . Thomas J. Kennedy tkennedy@murrayfrank.com . David Craig Kiernan dkiernan@jonesday.com,lwong@jonesday.com . Thomas Robert Merrick tmerrick@csgrr.com . 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