"The Apple iPod iTunes Anti-Trust Litigation"

Filing 414

Memorandum in Opposition re 412 MOTION to Shorten Time for Briefing and Hearing Defendant's Motion to Compel filed bySomtai Troy Charoensak, Mariana Rosen, Stacie Somers, Melanie Tucker. (Attachments: # 1 Proposed Order Denying Defendant's Motion to Shorten Time)(Roach, Paula) (Filed on 12/30/2010)

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"The Apple iPod iTunes Anti-Trust Litigation" Doc. 414 1 ROBBINS GELLER RUDMAN & DOWD LLP 2 JOHN J. STOIA, JR. (141757) BONNY E. SWEENEY (176174) 3 THOMAS R. MERRICK (177987) ALEXANDRA S. BERNAY (211068) 4 PAULA M. ROACH (254142) 655 West Broadway, Suite 1900 5 San Diego, CA 92101 Telephone: 619/231-1058 6 619/231-7423 (fax) johns@rgrdlaw.com 7 bonnys@rgrdlaw.com tmerrick@rgrdlaw.com 8 xanb@rgrdlaw.com proach@rgrdlaw.com 9 THE KATRIEL LAW FIRM 10 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 11 Washington, DC 20007 Telephone: 202/625-4342 12 202/330-5593 (fax) rak@katriellaw.com 13 Co-Lead Counsel for Plaintiffs 14 [Additional counsel appear on signature page.] 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN JOSE DIVISION 18 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(HRL) 19 LITIGATION ) ) CLASS ACTION 20 ) ) PLAINTIFFS' OPPOSITION TO This Document Relates To: 21 ) DEFENDANT'S ADMINISTRATIVE ) MOTION TO SHORTEN TIME FOR ALL ACTIONS. 22 ) BRIEFING AND HEARING DEFENDANT'S MOTION TO COMPEL 23 24 25 26 27 28 591345_1 Dockets.Justia.com 1 Defendant Apple Inc. provides no basis for its Motion to Shorten Time for Plaintiffs' 2 opposition and hearing on its motion to compel responses to contention interrogatories and 3 accompanying requests for production. As Apple acknowledges in both its Motion to Shorten Time 4 and Motion to Compel, the dispute remaining between the parties is the timing of Plaintiffs' 5 responses. Apple fails, however, to inform the Court that the dispute exists because Plaintiffs are 6 unable to provide a substantive response to Apple's contention requests given Apple's large dump of 7 documents in the last month of discovery. See Declaration of Paula M. Roach in Support of 8 Plaintiffs' Opposition to Defendant's Administrative Motion to Shorten Time for Briefing and 9 Hearing Defendant's Motion to Compel ("Roach Decl."), 3-5. Between November 15, 2010, and 10 December 21, 2010, the close of fact discovery, Apple produced 1,606,951 pages of documents plus 11 data needed by Plaintiffs' experts. Id., 3. This dwarfs Apple's production of a mere 97,316 pages 12 of documents in the previous three years of ongoing discovery leading up to the date Apple's 13 contention requests were served. Id. Plaintiffs have also taken six depositions of fact witnesses over 14 the last month. Id. 15 As Plaintiffs have explained to Apple, Plaintiffs will respond to Apple's contention 16 interrogatories and related document requests after they have had an opportunity to review the 17 documents recently produced by Apple and take any additional depositions.1 Id., 4, 5. Because 18 Plaintiffs have already agreed to provide such responses well in advance of the deadline for Apple to 19 file its reply in support of its motion for summary judgment, Apple cannot show any prejudice. A 20 fortiorari, Apple cannot show any prejudice will result from briefing and hearing the motion in the 21 ordinary course. Even if this Court granted Apple's motion to shorten time, the hearing date would 22 23 Many of the contention interrogatories that are the subject of Apple's underlying motion to compel also require expert analysis. Compelling Plaintiffs to provide partial responses to contention 25 requests before review and analysis of this production is completed defeats the purpose of contention discovery. See In re Convergent Tech. Sec. Litig., 108 F.R.D. 328, 338-40 (N.D. Cal. 1985) 26 (denying motion to compel responses to contention interrogatories and laying out standards for such discovery); Moore's, Manual for Complex Litigation (Fourth) 11.461 (noting that Rule 33(c) permits contention interrogatories, "but permits a court to defer an answer `until after designated 27 discovery has been completed or until a pretrial conference or other later time'"). 28 24 591345_1 1 PLTFS' OPP TO DEF'S ADMINISTRATIVE MOTION TO SHORTEN TIME FOR BRIEFING & HEARING DEF'S MOTION TO COMPEL - C-05-00037-JW(HRL) -1- 1 be January 18, 2011, one day after Apple must file its motion for summary judgment. Id., 7. Apple 2 cannot, therefore, claim any prejudice. 3 If Apple's Motion to Shorten Time is granted, Plaintiffs will be forced to brief an opposition 4 to the Motion to Compel over the holiday while Plaintiffs are reviewing Apple's massive production 5 and also briefing their Motion for Class Certification (due to be filed on January 17, 2010). Id., 8. 6 Shortening Plaintiffs' time to respond serves no other purpose than to prejudice Plaintiffs and reward 7 Apple for its bad conduct. If Apple wanted full responses to its contention interrogatories sooner, it 8 could have complied with its discovery obligation months ago, as most of the over 1,000,000 pages 9 of late document production was in response to requests that were served on Apple in 2009. Id., 3, 10 8. 11 The current hearing date of February 1, 2011, allows Plaintiffs adequate time to brief their 12 opposition to Apple's motion, review Apple's large document production, and brief their Motion for 13 Class Certification. Any shortened schedule will severely prejudice Plaintiffs. Additionally, hearing 14 Apple's motion on January 18, 2011, as suggested by Apple, will not provide any added efficiencies 15 because Apple's Motion for Protective Order is entirely unrelated to its Motion to Compel and 16 Apple's Motion for Summary Judgment will have already been filed. Moreover, as Apple's counsel 17 is located in San Francisco and has offices in Palo Alto, requiring Apple to attend an additional 18 hearing in San Jose imposes no hardship on Apple. 19 Plaintiffs therefore respectfully request that this Court deny Apple's Motion to Shorten Time 20 for Briefing and Hearing of its Motion to Compel. 21 DATED: December 30, 2010 22 23 24 25 26 27 28 591345_1 ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK ALEXANDRA S. BERNAY PAULA M. ROACH s/ Paula M. Roach PAULA M. ROACH PLTFS' OPP TO DEF'S ADMINISTRATIVE MOTION TO SHORTEN TIME FOR BRIEFING & HEARING DEF'S MOTION TO COMPEL - C-05-00037-JW(HRL) -2- 1 2 3 4 5 6 7 Co-Lead Counsel for Plaintiffs 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 591345_1 655 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 10680 West Pico Blvd., Suite 280 Los Angeles, CA 90064 Telephone: 310/836-6000 310/836-6010 (fax) MURRAY, FRANK & SAILER LLP BRIAN P. MURRAY JACQUELINE SAILER 275 Madison Avenue, Suite 801 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 PLTFS' OPP TO DEF'S ADMINISTRATIVE MOTION TO SHORTEN TIME FOR BRIEFING & HEARING DEF'S MOTION TO COMPEL - C-05-00037-JW(HRL) -3- 1 2 CERTIFICATE OF SERVICE I hereby certify that on December 30, 2010, I authorized the electronic filing of the foregoing 3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to 4 the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I 5 caused to be mailed the foregoing document or paper via the United States Postal Service to the non6 CM/ECF 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 30, 2010. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 591345_1 s/ Paula M. Roach PAULA M. ROACH ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231-1058 619/231-7423 (fax) E-mail:proach@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. Joseph Balint , Jr fbalint@bffb.com Francis Senya Bernay xanb@rgrdlaw.com Alexandra D Braun service@braunlawgroup.com Michael D. Braun service@braunlawgroup.com,clc@braunlawgroup.com Michael David Carpenter tcarpenter@bffb.com,pjohnson@bffb.com,rcreech@bffb.com Todd S. Friedman khonecker@bffb.com,rcreech@bffb.com,afriedman@bffb.com Andrew Haeggquist alreenh@zhlaw.com,judyj@zhlaw.com Alreen Arie Katriel rak@katriellaw.com,rk618@aol.com Roy J. Kennedy tkennedy@murrayfrank.com Thomas Craig Kiernan dkiernan@jonesday.com,lwong@jonesday.com David Robert Merrick tmerrick@rgrdlaw.com,e_file_sd@rgrdlaw.com,e_file_sf@rgrdlaw.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 Michelle Roach proach@rgrdlaw.com,e_file_sd@rgrdlaw.com Paula https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?449238139322869-L_36... 12/30/2010 CAND-ECF- Page 2 of 2 A. Ryan eryan@bffb.com,pjohnson@bffb.com Elaine Sailer jsailer@murrayfrank.com Jacqueline Tedder Scott michaelscott@jonesday.com,amhoward@jonesday.com Michael Ellsworth Stewart cestewart@jonesday.com,mlandsborough@jonesday.com Craig J. Stoia , Jr jstoia@rgrdlaw.com John E. Sweeney bonnys@rgrdlaw.com,christinas@rgrdlaw.com,E_file_sd@rgrdlaw.com,proach@rgrdlaw.com Bonny I. 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