In Re: Apple iPhone 3G and 3GS MMS Marketing and Sales Practices Litigation

Filing 179

MOTION for Protective Order by Defendant AT&T Mobility LLC . Motion Hearing set for 11/24/2010 09:30 AM before Judge Carl Barbier. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Notice of Hearing, # 4 Declaration of Richard Pianka in Support of Motion for Protective Order, # 5 Exhibit 1 to Pianka Declaration, # 6 Exhibit 2 to Pianka Declaration, # 7 Exhibit 3 to Pianka Declaration, # 8 Exhibit 4 to Pianka Declaration, # 9 Exhibit 5 to Pianka Declaration)(Reference: all cases)(Parasharami, Archis) Modified text on 10/15/2010 (sek, ).

In Re: Apple iPhone 3G and 3GS MMS Marketing and Sales Practices Litigation Doc. 179 Att. 5 EXHIBIT 1 Dockets.Justia.com UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CIVIL ACTION IN RE: APPLE iPHONE 3G AND 3GS "MMS" MARKETING AND SALES PRACTICES LITIGATION THIS DOCUMENT RELATES TO ALL CASES MDL No: 2116 SECTION "J" JUDGE BARBIER MAGISTRATE JUDGE WILKINSON To: AT&T Mobility. Through Counsel of record Gary J. Russo, Esq. Carmen M. Rodriguez, Esq. Jones, Walker P. O. Drawer 3408 Lafayette, LA 70502-3408 Kathleen Taylor Sooy Crowell & Moring LLP 1001 Pennsylvania Avenue N.W. Washington, DC 20004 COMES NOW, Plaintiffs, and pursuant to the Federal Rules of Civil Procedure, hereby serves Plaintiffs' First Request for Production propounded to AT&T Mobility. Plaintiffs would request that Defendant provide the following information within thirty (30) days after service of this request. REQUEST FOR PRODUCTION NO. 1: Documents relied upon or referenced by the following individuals in preparing their declarations attached as exhibits to the Memorandum of Points and Authorities in Support of Defendant AT&T Mobility LLC's Motion to Compel Arbitration Pursuant to the Federal Arbitration Act filed in this case: (a) (b) (c) (d) (e) (f) (g) Caroline Mahone-Gonzalez Darcy Pantano Ramon L. Menendez Harry Bennett Scott Williamson Richard J. Rives Larry B. White REQUEST FOR PRODUCTION NO. 2: Exemplars of all versions and drafts of AT&T Mobility's Terms and Conditions for Communication Services (i.e., "Service Agreements") in effect from January 2007 to present. REQUEST FOR PRODUCTION NO. 3: Exemplars of all versions and drafts of Service Agreements in effect prior to 2007 which include a requirement that disputes between AT&T Mobility and its customer be submitted to arbitration. REQUEST FOR PRODUCTION NO. 4: Documents concerning any internal discussions, marketing studies or analyses done by, on your behalf of, or used by you in conjunction with the drafting and implementation of any arbitration provisions distributed to your customers from 2007 to present, including but not limited to: (a) any discussions, studies or analyses regarding the readability of any arbitration provision language; (b) any discussions, studies or analyses concerning the likelihood of customers to read and / or understand any arbitration provisions; (c) any discussions, studies or analyses concerning the physical placement of any arbitration provisions in the box containing the customer's mobile phone, or any other location, rather than in the text of any contracts signed by the customer; (d) any discussions, studies or analyses concerning the placement of any arbitration provisions in advertising materials; and, (e) any discussions, studies or analyses concerning the placement of any arbitration provisions on any website or other publically available location on the internet. REQUEST FOR PRODUCTION NO. 5: Documents reflecting each and every method by which customers were provided any Service Agreements, any amendments to any Service Agreements, or any other documents you contend require arbitration of the disputes in this class action lawsuit. REQUEST FOR PRODUCTION NO. 6: Documents reflecting each and every method by which you informed customers of the terms and conditions of your Service Agreement. REQUEST FOR PRODUCTION NO. 7: Webpages, in native format, or screenshots in a reproduction reflecting the true color and appearance, reflecting AT&T Mobility's iPhone computerized activation process from January 2007 to present, including where consumers agree to the terms of the Service Agreement. REQUEST FOR PRODUCTION NO. 8: Webpages, in native format, or screenshots in a reproduction reflecting the true color and appearance, reflecting AT&T Mobility's webpages described in Requests for Admission, Numbers 6-11. REQUEST FOR PRODUCTION NO. 9: Documents reflecting each and every method by which you informed customers of the arbitration provisions in your Service Agreement. REQUEST FOR PRODUCTION NO. 10: Documents concerning any discussions, studies or analyses of the impact on you of the inclusion of any arbitration provisions in AT&T Mobility's Service Agreements, including, but not limited to: (a) any discussions, studies or analyses concerning the expected number of arbitration claims to be brought against you by customers; (b) any discussions, studies or analyses concerning the potential costs of arbitration to be incurred by you; (c) any discussions, studies or analyses concerning the potential impact of the arbitration provisions on lawsuits to be brought against you, including the impact of the arbitration provisions on the number of potential class actions to be brought against you; (d) any discussions, studies or analyses concerning the costs of arbitration to be incurred by customers bringing claims against you; and (e) any discussions, studies, or analyses concerning the potential financial impact of a "no class action" arbitration provision; (f) any discussions, studies, or analyses concerning any proposed arbitration provisions that were not adopted for use by you. REQUEST FOR PRODUCTION NO. 11: Documents containing, concerning or reflecting: (1) the total number of complaints submitted by customers to AT&T Mobility from January 2007 to present; (2) the total number of these complaints that were submitted to arbitration proceedings from January 2007 to present, and (3) the total number of these complaints you resolved informally without resort to arbitration, mediation, other any other alternative dispute resolution mechanism. REQUEST FOR PRODUCTION NO. 12: For any disputes between AT&T Mobility and its cellular telephone customer from 2007 to present submitted to arbitration: (a) a copy of or full description of the papers and documents filed by the parties to initiate the arbitration; (b) documents reflecting the total administrative fees paid, including the arbitration agency's administrative fees, the arbitrator's fees, and other expenses directly related to conducting the arbitration; (c) documents reflecting any other expenses incurred by AT&T Mobility in preparing for or participating in the arbitration process, including AT&T Mobility's attorneys' fees; (d) documents reflecting whether AT&T Mobility paid a $10,000 minimum award as provided the arbitration provisions of the Service Agreement because the arbitration award exceeded AT&T Mobility's last "written settlement offer made before an arbitrator was selected;" (e) (f) (g) documents reflecting the amount in dispute in each arbitration; the transcript(s) of the arbitrations; documents reflecting the outcome of each arbitration, including the amount awarded by the arbitrator, if any; (h) (i) arbitration. documents reflecting the decision of the arbitrator; and documents reflecting the names of the arbitrators who conducted each REQUEST FOR PRODUCTION NO. 13: For any disputes between AT&T Mobility and its cellular telephone customer from 2007 to present submitted to arbitration, documents concerning the payment of attorneys' fees relating to that arbitration, including but not limited to: (a) documents reflecting your payment to or on behalf of any customers of any arbitration costs, attorneys' fees, or expenses before, during, or after the arbitration proceedings were held; (b) documents reflecting your payment of "twice the amount of attorney's fees" incurred by a customer for the customer's attorney investigating, preparing and pursuing a claim in arbitration on behalf of that customer; (c) requests by customers for payment of attorneys' fees before, during, or after the arbitration proceedings were held; (d) requests by you to customers for payment of attorneys' fees before, during, or after the arbitration proceedings; and (e) rulings by the arbitrator on claimants' demands for attorneys' fees. REQUEST FOR PRODUCTION NO. 14: All documents concerning the selection of arbitrators in any arbitration proceedings submitted pursuant to any arbitration clauses contained in your Service Agreement, including but not limited to any documents regarding the qualifications of any arbitrators either selected or rejected by you during the arbitrator selection process or the reasons you ultimately selected or rejected a particular arbitrator. REQUEST FOR PRODUCTION NO. 15: Any documents reflecting how many times an arbitrator has ruled in favor of a consumer in any arbitration proceeding in which he or she has participated as an arbitrator. REQUEST FOR PRODUCTION NO. 16: Any documents reflecting the dollar amounts involved in disputes your customers have had with you, including but not limited to any reports showing the amounts in involved in customer disputes at any time or time periods from January 2007 to present, or any reports showing the specific or average refund or reversal of charge amounts given to your customers involved in a dispute with you at any time or time periods from January 2007 to present. REQUEST FOR PRODUCTION NO. 17: Any documents concerning or reflecting the availability of private counsel to represent customers individually in disputes with AT&T Mobility. REQUEST FOR PRODUCTION NO. 18: Any expert reports prepared on your behalf in any case challenging the enforceability of any of your arbitration provisions in any customer contract. REQUEST FOR PRODUCTION NO. 19: Any non-privileged documents reflecting the reasons you have advanced in support of an arbitration provision in any of your customer contracts in any case challenging the enforceability of that arbitration provision. REQUEST FOR PRODUCTION NO. 20: Any documents reflecting whether any of your customer contracts or arbitration provisions have allowed a customer to opt-out of any provision of that contract and any documents concerning the number of customers that have exercised any such opt-out right. REQUEST FOR PRODUCTION NO. 21: From 2007 to present, documents used to educate, instruct, or train your employees about the use of arbitration agreements in your contracts, and if any such materials have been changed, amended, or rewritten, any documents reflecting the amendments, alterations, or revisions made. REQUEST FOR PRODUCTION NO. 22: Documents evidencing or reflecting communications between you and any arbitration providers (including, but not limited to, the American Arbitration Association, the National Arbitration Forum, and JAMS) on the subjects of class action bans, classwide arbitration, and/or arbitration providers' policies relating to class action bans and/or classwide arbitration. REQUEST FOR PRODUCTION NO. 23: Documents evidencing or reflecting communications between others and any arbitration providers (including, but not limited to, the American Arbitration Association, the National Arbitration Forum, and JAMS) on the subjects of class action bans, classwide arbitration, and/or arbitration providers' policies relating to class action bans and/or classwide arbitration. REQUEST FOR PRODUCTION NO. 24: All documents evidencing or reflecting your decision to designate the American Arbitration Association as the arbitration provider in your arbitration agreement. REQUEST FOR PRODUCTION NO. 25: All documents evidencing or reflecting your negotiations with the American Arbitration Association with respect to your designation of it as the arbitration provider in your arbitration agreement. REQUEST FOR PRODUCTION NO. 26: All documents in your possession, custody, or control which express concern about the neutrality and/or conduct of the American Arbitration Association. REQUEST FOR PRODUCTION NO. 27: All documents provided to you by the American Arbitration Association which describe their services or the terms thereof. REQUEST FOR PRODUCTION NO. 28: All contracts containing an arbitration provision in which you are a party, other than contracts with your cellular telephone service customers. REQUEST FOR PRODUCTION NO. 29: For each classwide arbitration initiated against you, a copy of the arbitration demand and the arbitration award. REQUEST FOR PRODUCTION NO. 30: For each lawsuit filed by or against you in which you have sought to compel arbitration, a copy of the court's ruling on whether to compel arbitration. REQUEST FOR PRODUCTION NO. 31: All documents reflecting your demands for individual arbitration where an action has been filed against you that does not purport to be filed as a class action. REQUEST FOR PRODUCTION NO. 32: All documents reflecting your guidelines and procedures for responding to arbitrations filed by customers against you. REQUEST FOR PRODUCTION NO. 33: All correspondence between you and any state attorney generals relating to an arbitration provision or any portion thereof in any of your Service Agreements. REQUEST FOR PRODUCTION NO. 34: All documents reflecting any reasons for revisions of the arbitration provision included in your Service Agreements. REQUEST FOR PRODUCTION NO. 35: All documents that reflect a discussion or analysis of a "no class action" provision in the arbitration agreement as a means or strategy for preventing class actions from being prosecuted against you. REQUEST FOR PRODUCTION NO. 36: All documents that discuss the modification of the arbitration cost and expense provisions for customers initiating arbitration proceedings or responding to arbitration demands. REQUEST FOR PRODUCTION NO. 37: All documents reflecting correspondence between you and any arbitration providers relating to class action bans, classwide arbitration, and/or arbitration providers' policies relating to class action bans and/or classwide arbitration. Respectfully submitted: /s/ SCOTT R. BICKFORD SCOTT R. BICKFORD (1165) Martzell & Bickford 338 Lafayette St. New Orleans, LA 70130 Telephone: 504/581-9065 Facsimile: 504/581-7636 usdcedla@mbfirm.com