Unites States of America v. Apple, Inc. et al
Letter addressed to Judge Denise L Cote from Steve W Berman dated 4/30/2012 re: We submit an alternative Stay Order for the court's consideration. Document filed by Shilpa Grover et al.Filed In Associated Cases: 1:11-md-02293-DLC, 1:12-cv-02826-DLC(cd)
Sieve W, Berman i
1918 EIGHTH AVENUE. SUITE 3300'
SEATTLE. WA 9af!l) (1 ( ,
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April 30, 2012
Via Hand Delivery
The Honorable Denise L. Cote
United States District Court Judge
Southern District ofNew York
500 Pearl St., Room 1610
New York, NY 10007-1312
Re: In re: Electronic Books Antitrust Litig., No. II-md-02293 (DLC);
United States ofAmerica v. AJ!Ple. et aI.. No. 12 Civ. 2826 (DLC)
Dear Judge Cote:
We write on behalf of class plaintiffs concerning the "Settling Defendants"'l
Proposed Stay Order. We sought a modification to the Settling Defendants' Proposed
Stay Order, which they rejected, requiring the Settling Defendants to produce discovery
materials already produced (document discovery) or generated (deposition transcripts)
during the federal and state pre-filing investigations. There is almost no burden and
production will advance efficient case management.
With respect to burden, "re-producing" extant discovery will involve merely
copying electronic discovery - in essence copying a DVD or hard drive and electronic
versions of deposition testimony. This will likely require, at most, a few hours of work
Moreover, our proposed protective order regarding confidential information treats these
documents as Highly Confidential during the period the Settling Defendants are making
any additional confidential designations to discovery materials already generated. So
there is no burden that could be credibly asserted that would detract from the Settling
Defendants' settlement negotiations.
Efficient case management also supports our proposed modification. We believe
in good faith that a number of states will not join the state Attorney Generals' settlement
and/or litigation. Thus, any agreement between the states and the Settling Defendants
1 Settling Defendants refers to Defendants HarperCollins Publishers L.L.C., Hachette Book Group,
Inc., and Hachette Digital, Inc.
010260-11 517238 VI
WASHINGTON, f) (
April 30, 2012
The Hon. Denise L. Cote
will, at most, likely cover only a subset of consumers in the United States. For the
remainder of the consumers in the United States, the class claims will certainly proceed
against the Settling Defendants. And regardless of the settlement posture, the evidence
the Settling Defendants possess will be discoverable, as they are co-conspirators in the
Also, if the Court adopts the Settling Defendants' Proposed Stay Order, it will
unnecessarily balkanize and slow the claims in the case. Case management will be
optimized by keeping issues, such as discovery, on similar tracks when feasible. Having
the Settling Defendants produce discovery already generated will allow the class
plaintiffs to immediately start reviewing the materials to ensure the timing of future
discovery events can be coordinated without slowing the process.
Finally, the Settling Defendants stated they will soon present their settlement with
the state Attorneys Generals, and they claim to want out of this case quickly. When and
if this occurs, the Court will apply a similar standard for approval of a class settlement.
See, e.g., In re Toys "R" Us Antitrust Litig., 191 F.R.D. 347, 352 (E.D.N.Y. 2000).
That is, the Court will be asked to "bless" the settlements as fair, reasonable and
adequate. We believe class counsel could be in a unique position to assist the Court at
that stage. This is particularly important here where the settlements occurred before a
single claim or defense has been tested, and the Court has not had the opportunity to view
the evidence and potential damages. But to help in this role, it is important we have the
very discovery the states had when deciding to settle.
Accordingly, we respectfully submit an alternative [Proposed] Stay Order for the
HAGENS BERMAN SOBOL SHAPIRO LLP
Steve W. Berman
Cc: All counsel of record (bye-mail with enclosure)
010260-11 517238 VI
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
No. II-md-02293 (DLC)
IN RE ELECTRONIC BOOKS ANTITRUST
This Document Relates to:
UNITED STATES OF AMERICA,
No. 12-md-02826 (DLC)
APPLE, INC., ET AL.,
THE STATE OF TEXAS et aI.,
No. 12-md-00324 (DLC)
PENGUIN GROUP (USA) INC. et al.
[PROPOSED] STAY ORDER
IT IS HEREBY ORDERED that discovery in these actions are stayed until July 11, 2012,
as to Defendants HarperCollins Publishers L.L.C., Hachette Book Group, Inc. and Hachette
010260-1\ 517214 VI
Digital, Inc. (together, "Settling Defendants"I). Notwithstanding, within ten days of entry of a
protective order governing treatment of confidential information by this Court, the Settling
Defendants shall produce to the counsel for the putative class plaintiffs all documents, data and
written discovery responses that the Settling Defendants previously provided to the Department
of Justice or any state Attorney General's office relating to this action. Within the same time
period, the Settling Defendants shall also provide to the counsel for the putative class plaintiffs
all deposition transcripts of testimony relating to this action.
In addition, the Settling Defendants may participate in any deposition (of any other party
or non-party) occurring during that period should they so choose. Except for good cause shown,
Settling Defendants shall not seek duplicative discovery of any other party after the period of the
stay. Neither Settling Defendants (individually or collectively) nor any other party to this action
is prohibited from seeking an extension of such stay should circumstances require.
HONORABLE DENISE L. COTE
UNITED STATES DISTRICT JUDGE
The term "Settling Defendants" does not include Defendants Simon & Schuster, Inc. and
Simon & Schuster Digital Sales, Inc., as those entities have yet to reach agreement in principal
with any state Attorneys General, and the litigating states are opposing any such stay as to these
Defendants at this time.
010260·11 517214 VI