"The Apple iPod iTunes Anti-Trust Litigation"

Filing 625

ORDER DENYING AS MOOT Plaintiffs' Motion to Compel Production of Date (Docket No. 556 ) and DENYING Plaintiffs' Request for Fees and Costs. Signed by Magistrate Judge Howard R. Lloyd on 5/6/2011. (hrllc1, COURT STAFF) (Filed on 5/6/2011)

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1 ** E-filed May 6, 2011 ** 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California NOT FOR CITATION 8 United States District Court 7 SAN JOSE DIVISION 11 THE APPLE IPOD ITUNES ANTITRUST LITIGATION, 12 ORDER DENYING AS MOOT PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DATA AND DENYING PLAINTIFFS’ REQUEST FOR FEES AND COSTS 13 14 15 16 No. C05-00037 JW (HRL) ____________________________________/ [Re: Docket No. 556] Plaintiffs in this class action are purchasers of Apple, Inc.’s (“Apple”) iPods and of digital 17 music files from Apple’s iTunes Store who allege that Apple unlawfully maintained duel 18 monopolies in the markets for portable digital media players and digital audio downloads by using 19 pretextual updates to its FairPlay DRM and other software that were intended to, and had the effect 20 of, excluding competitors from these markets. See Docket No. 322. 21 On March 29, 2011, Plaintiffs filed a motion to compel the production of certain reseller 22 data. Docket No. 556. The parties had been negotiating over the production of this data for some 23 time. See id. at 4-5. On April 1, 2011, Apple produced the requested data. Docket No. 585 at 3. It 24 produced corrected data on April 11, 2011. Id. 25 At oral argument, the parties agreed that Apple has produced the data at issue in Plaintiffs’ 26 motion to compel. Apple also represented that Plaintiffs’ questions about that data, to the extent they 27 have any, will be answered promptly, and the Court expects as much. Thus, Plaintiffs’ motion to 28 compel the production of data is DENIED as moot. In their reply brief, though, Plaintiffs’ say that, under Federal Rule of Civil Procedure 37, 1 2 they are entitled to their reasonable expenses incurred in making their motion. Docket No. 613 at 1- 3 2. Rule 37 states: If [a] motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if: 4 5 6 7 (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. 8 9 For the Northern District of California United States District Court 10 11 12 FED. R. CIV. P. 37(a)(5)(A). In addition to the fact that Plaintiffs’ request for fees and costs was raised for the first time in 13 14 their reply brief,1 Plaintiffs’ request will not be granted because Apple’s failure to produce the data 15 sooner appears to be substantially justified. At the motion hearing, Apple plausibly explained that it 16 believed that the data sought by Plaintiffs only existed in a location from which it would have been 17 extremely costly to extract. In order to avoid unnecessary expense, Apple looked for the data in 18 other locations from which extraction would be cheaper. After Plaintiffs’ filed their motion to 19 compel, Apple located the data in such a location, and produced it forthwith. Plaintiffs suggest that 20 Apple purposefully delayed its search for improper reasons, but this suggestion is unpersuasively 21 conclusory. Plaintiffs’ request for attorney’s fees and costs is DENIED. IT IS SO ORDERED. 22 23 Dated: May 6, 2011 24 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 25 26 1 27 28 This District’s civil local rules require that when, in connection with a dispute about disclosure or discovery, a party moves for an award of attorney fees or other form of sanction under Rule 37, the motion must be separately filed and noticed for hearing in accordance with Civil Local Rule 7-2. See Civ. L.R. 7-8, 37-4. Plaintiffs did not adhere to these rules, which deprived Apple of an opportunity to present its side of the story until the motion hearing. 2 1 C05-00037 JW (HRL) Notice will be electronically mailed to: 2 Alexandra Senya Bernay Alreen Haeggquist Andrew S. Friedman Bonny E. Sweeney 3 4 5 Brian P Murray Carmen Anthony Medici Caroline Nason Mitchell 6 7 8 9 For the Northern District of California United States District Court 10 11 12 13 Craig Ellsworth Stewart David Craig Kiernan Elaine A. Ryan Francis Joseph Balint, Jr George A. Riley Helen I. Zeldes Jacqueline Sailer John J. Stoia , Jr Michael D Braun Michael D. Braun Michael Tedder Scott Robert Allan Mittelstaedt Roy Arie Katriel Thomas J. Kennedy Thomas Robert Merrick 14 Todd David Carpenter xanb@rgrdlaw.com alreenh@zhlaw.com, judyj@zhlaw.com afriedman@bffb.com, khonecker@bffb.com, rcreech@bffb.com bonnys@rgrdlaw.com, christinas@rgrdlaw.com, E_file_sd@rgrdlaw.com bmurray@murrayfrank.com cmedici@rgrdlaw.com, slandry@rgrdlaw.com cnmitchell@jonesday.com, ewallace@jonesday.com, mlandsborough@jonesday.com cestewart@jonesday.com, mlandsborough@jonesday.com dkiernan@jonesday.com, lwong@jonesday.com eryan@bffb.com, nserden@bffb.com fbalint@bffb.com griley@omm.com, cchiu@omm.com, lperez@omm.com helenz@zhlaw.com jsailer@murrayfrank.com jstoia@rgrdlaw.com service@braunlawgroup.com service@braunlawgroup.com, clc@braunlawgroup.com michaelscott@jonesday.com, amhoward@jonesday.com ramittelstaedt@jonesday.com, mlandsborough@jonesday.com rak@katriellaw.com, rk618@aol.com tkennedy@murrayfrank.com tmerrick@rgrdlaw.com, e_file_sd@rgrdlaw.com, e_file_sf@rgrdlaw.com tcarpenter@bffb.com, pjohnson@bffb.com, rcreech@bffb.com 15 16 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. 17 18 19 20 21 22 23 24 25 26 27 28 3