"The Apple iPod iTunes Anti-Trust Litigation"

Filing 367

REDACTION to 366 Redacted Document Declaration of Thomas R. Merrick in Support of Motion for Additional Discovery Pursuant to Rule 56(f) by Melanie Tucker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Merrick, Thomas) (Filed on 4/26/2010)

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1 ROBBINS GELLER RUDMAN & DOWDLLP 2 JOHN 1. 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 5 Telephone: 619/231-1058 619/231-7423 (fax) 6 johns@rgrdlaw.com bonnys@rgrdlaw.com 7 tmerrick@rgrdlaw.com proach@rgrdlaw.com 8 THE KA TRIEL LAW FIRM 9 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 10 Washington, DC 20007 Telephone: 202/625-4342 11 202/330-5593 (fax) rak@katriellaw.com 12 Co- Lead Counsel for Plaintiffs 13 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN JOSE DIVISION is 20Th) Document Relates To: )SUPPORT OF THOMAS R. FOR MERRICK IN DECLARATION OF MOTION 19 ) 18 LITIGATION ) 17 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(HRL) ) CLASS ACTION ALL ACTIONS. ) ADDITIONAL DISCOVERY PURSUANT Judge: Date: Time: Location: 21 ) TO RULE 56(t) 22 23 Hon. James Ware May 10,2010 9:00 am 8, 4th Floor 24 REDACTED 25 26 27 28 520777 1 1 I, THOMAS R. MERRICK, declare as follows: 2 1. I am an attorney duly licensed to practice before all of the courts of the State of 3 California. I am an associate at the law firm of Robbins Geller Rudman & Dowd LLP, Co-Lead 4 Counsel for Plaintiffs in this action. I make this declaration on personal knowledge in support of 5 Plaintiffs' motion for additional discovery pursuant to Rule 56(t) of the Federal Rules of Civil 6 Procedure. 7 2. I have personal knowledge of the procedural history of this action, the scope of 8 discovery Plaintiffs require in order to fully respond to Apple's summary judgment motion, and the 9 reasons the discovery is necessary. I also have personal knowledge of the parties' meet and confer 10 efforts. 11 12 of 3. On December 28,2009, Plaintiffs served their Second Set of Requests for Production Paula M. Roach Pursuant to 56(f) Documents and Second Set ofInterrogatories. Declaration of 13 ofthe Rules of Civil Procedure in Support of Plaintiffs ' Opposition to Apple's Motion to Dismiss or, 14 Alternatively, for Summary Judgment ("Roach Decl."), ~13. On February 28, 2010, the Court 15 directed the parties that discovery was open and reaffirmed that "Plaintiffs may proceed with 16 discovery at this time." Dkt. No. 324 at 2; see also Roach Dec!., ~14. 17 4. Despite its duty to produce responsive documents to all ofthe requests, Apple refused 18 to do so until Plaintiffs specified which discovery was needed to respond to Apple's motion for 19 summary judgment. On February 26,2010, during a telephonic meet and confer, Apple stated that it 20 was not going to respond to all of the requests in Plaintiffs' second set of discovery because it was 21 still of the opinion that discovery should be stayed pending the Court's ruling on Apple's dispositive 22 motion. Plaintiffs disagreed with this position but in an effort to move discovery forward 23 expeditiously, identified the discovery requests for which responsive discovery was required to 24 provide an adequate response. 25 26 end of 5. Apple has stated that production concerning these requests will be completed by the May, 2010. 6. 27 On March 22, 2010, the day Plaintiffs filed their opposition to Apple's alternative 28 motion for summary judgment, Apple produced documents related to a subset of Plaintiffs' Rule 520777_1 DECL OF THOMAS R. MERRICK IN SUPPORT OF PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION FOR ADDITIONAL DISCOVERY PURSUANT TO RULE 56(F) - C-05-00037-JW(HRL) -1- 1 30(b)(6) document requests served on April 9, 2009. Apple represented that this was the last batch 2 of documents responsive to the subset of30(b )(6) requests. However, on April 21,2010, Plaintiffs 3 received a production of an additional 147 pages of documents responsive to these requests. 4 7. Plaintiffs have completed review of the Rule 30(b)(6) production to date and have 5 sought production of additional documents pursuant to the original requests, including information 6 concerning Apple's understanding of how Harmony works technically; specifications, design 7 documents and diagrams regarding those changes in FairPlay that broke Harmony; documents that 8 describe the relationship between iTunes software updates and iPod firmware updates; documents 9 that indicate how certain of Apple's observations concerning Harmony affected the FairPlay 10 redesign; source code related to iTunes software updates 4.6 and 4.7; and source code related to 11 iTunes software updates (other than 4.6 and 4.7) and iPod firmware updates that addressed the 12 software that Apple describes as "hacks." On April 22, 2010, during a meet and confer, Apple 13 indicated that it would consider producing some of this information related to the FairPlay redesign 14 in iTunes 4.7. The parties continue to meet and confer on the issue. However, at this point, it is 15 unclear when Apple's Rule 30(b)( 6) related production will be complete. 16 8. On April 5, 2010, Apple produced nine additional amendments to the original requests, served on December 17 contracts with the major labels in response to Plaintiffs' second set of 18 28, 2009. To date, Apple has not produced any additional communications with the labels 19 concerning the contracts. 20 9. On April 8,2010, Apple produced two contracts between Apple and Motorola in requests, served on December 28,2009. 21 response to Plaintiffs' second set of 22 23 24 25 26 27 28 520777_1 DECL OF THOMAS R. MERRICK IN SUPPORT OF PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION FOR ADDITIONAL DISCOVERY PURSUANT TO RULE 56(F) - C-05-00037-JW(HRL) -2- 1 2 3 4 5 11. Attached hereto are true and correct copies of the following documents: Exhibit A: Exhibit B: Letter from Thomas Merrick to Robert Mittelstaedt, dated June 18, 2009 (portions filed under seal); Email between Paula Roach and David Kiernan, dated August 3,2009; and 6 7 Exhibit C: Letter from Thomas Merrick to David Kiernan, dated April 19, 2010 (portions filed under seal). 8 9 10 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 26th day of April, 2010, at San Diego, California. 11 12 13 s/ Thomas R. Merrick THOMAS R. MERRICK 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 520777 1 DECL OF THOMAS R. MERRICK IN SUPPORT OF PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION FOR ADDITIONAL DISCOVERY PURSUANT TO RULE 56(F) - C-05-00037-JW(HRL) - 3 - CERTIFICATE OF SERVICE I hereby certify that on April 26, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF participants indicated on the attached Manual Notice List. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on April 26, 2010. s/ Thomas R. Merrick Thomas R. Merrick ROBBINS GELLER RUDMAN &DOWDLLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231-1058 619/231-7423 (fax) E-mail: tmerrick@rgrdlaw.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. . Francis Joseph Balint, Jr fbalint@bffb.com . Michael D Braun service@braunlawgroup.com . Michael D. Braun service@braunlawgroup.com,clc@braunlawgroup.com . Todd David Carpenter tcarpenter@bffb.com . Andrew S. Friedman rcreech @bffb.com,afriedman @bffb.com . Alreen Haeggquist alreenh@zhlaw.com,judyj@zhlaw.com . Roy A. Katriel rak@katriellaw.com,rk618@aol.com . Thomas J. Kennedy tkennedy@murrayfrank.com . David Craig Kiernan dkieman@jonesday.com,lwong@jonesday.com . Thomas Robert Merrick tmerrick@rgrdlaw.com,e_file_sd@rgrdlaw .com,e_file _sf@rgrdlaw.com . Caroline Nason Mitchell cnmitchell@jonesday.com,mlandsborough@ jonesday .com,ewallace@jonesday.com . Robert Allan Mittelstaedt ramittelstaedt@jonesday.com,ybennett@jonesday.com . Brian P Murray bmurray@murrayfrank.com . Paula Michelle Roach proach@rgrdlaw.com,e_file_sd@rgrdlaw.com . Elaine A. Ryan https://ecf.cand.uscourts.gov/cgi-binlMaiIList.pl?3 263566577 59592- L_366 _ 0-1 4/26/2010 CAND-ECF- Page 2 of2 eryan@bffb.com,pjohnson@bffb.com . Jacqueline Sailer jsailer@murrayfrank.com . Michael Tedder Scott rnichaelscott@jonesday.com,amhoward@jonesday.com . Craig Ellsworth Stewart cestewart@jonesday.com,mlandsborough@jonesday.com . John J. Stoia, Jr jstoia@rgrdlaw.com . Bonny E. Sweeney bonnys@rgrdlaw.com,christinas@rgrdlaw .com,E_file_sd@rgrdlaw.com,proach @rgrdlaw.com . Helen I. Zeldes helenz@zhlaw.com 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. . (No manual recipients) https://ecf.cand.uscourts.gov/cgi-binlMailList.pl?3 263566577 59 592- L_366_ 0- i 4/26/2010