AT&T Mobility LLC et al v. AU Optronics Corporation et al

Filing 173

ORDER TO MODIFY NOVEMBER 13, 2009 ORDER RE DEPONENTS ASSERTING THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION (tf, COURT STAFF) (Filed on 11/18/2011)

1
2
3
4
5

CHRISTOPHER A. NEDEAU (CA SBN 81297)
CARL L. BLUMENSTEIN (CA SBN 124158)
NOSSAMAN LLP
50 California Street, 34th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

6
7
8

Attorneys for Defendants
AU Optronics Corporation and
AU Optronics Corporation America

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA - SAN FRANCISCO DIVISION

11

IN RE: TFT-LCD (FLAT PANEL)
ANTITRUST LITIGATION

CASE NO. 3:07-md-1827 SI
MDL No. 1827

THIS DOCUMENT RELATES TO:

STIPULATION AND ORDER TO
MODIFY NOVEMBER 13, 2009 ORDER
RE DEPONENTS ASSERTING THE
FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

AT&T Mobility LLC et al v. AU Optronics
Corporation, et al., Case No. 09-cv-4997
Best Buy Co., Inc., et al. v. AU Optronics
Corporation, et al., Case No. 10-cv-4572
Costco Wholesale Corporation v. AU Optronics
Corporation, et al., Case No. 11-cv-0058
Dell Inc. et al. v. Sharp Corporation, et al.,
Case No. 10-cv-1064
Eastman Kodak Company v. Epson Imaging
Devices Corporation, et al., Case No. 10-cv-5452
Electrograph Systems, Inc., et al. v. Epson Imaging
Devices Corp., et al., Case No. 10-cv-0117
Motorola, Inc. v. AU Optronics Corporation, et al.,
Case No. 09-cv-5840
Target Corp. et al. v. AU Optronics Corporation,
et al., Case No. 10-cv-4945
TracFone Wireless, Inc. v. AU Optronics
Corporation, et al., Case No. 10-cv-3205

28
264070_1.DOC

1

Case No. 3:07-md-1827 SI

STIPULATION AND ORDER TO MODIFY NOVEMBER 13, 2009 ORDER RE DEPONENTS ASSERTING
THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION

1

WHEREAS the Court previously entered its November 13, 2009 Order re Deponents Asserting

2

the Fifth Amendment Privilege Against Self-Incrimination as Docket No. 1381 (hereafter

3

“November 13, 2009 Order”);

4

WHEREAS plaintiffs have taken civil depositions of six present and former employees and

5

officers of AUO or AUOA in which each of those individuals asserted his or her right not to testify

6

under the Fifth Amendment of the United States Constitution;

7

WHEREAS a superseding indictment was returned on June 10, 2010 against AU Optronics

8

Corporation (“AUO”) and AU Optronics Corporation America (“AUOA”), among others, in Case

9

No. CR-09-0110-SI (“the Criminal Case”);

10

WHEREAS the Court has scheduled a trial date of January 9, 2012 in the Criminal Case and has

11

scheduled a trial date of November 5, 2012 for certain Direct Action and Attorney General cases in the

12

above-captioned MDL proceeding and has scheduled other pretrial deadlines in those proceedings;

13

WHEREAS, upon stipulation of the class plaintiffs and the AUO defendants, the Court on

14

December 8, 2010 entered an Order to Modify November 13, 2009 Order re Deponents Asserting the

15

Fifth Amendment Privilege Against Self-Incrimination which was docketed as Docket No. 2192;

16

WHEREAS, the Direct Action Plaintiffs and defendants AUO and AUOA seek to provide for the

17

orderly completion of deposition discovery in the above-captioned proceedings and also to coordinate

18

between the parallel civil and criminal proceedings;

19

IT IS HEREBY STIPULATED AND AGREED by the Direct Action Plaintiffs and defendants

20

AUO and AUOA, by and through their undersigned liaison counsel and counsel and subject to the

21

concurrence of the Court, that the November 13, 2009 Order is hereby modified as follows:

22

1.

Any present officer or employee of AUO or AUOA, or any former officer or employee of

23

AUO or AUOA who remains represented by the below-signed counsel for AUO and AUOA, who at

24

deposition asserts or has asserted his or her right under the Fifth Amendment of the United States

25

Constitution not to testify will be bound by that assertion of the privilege in the trial of the above-

26

captioned cases and shall not be permitted to testify at trial unless, not later than December 9, 2011 (or

27

in the event that the trial date in the Criminal Case is continued and provided that the Criminal Case is

28

still to be tried before the above-captioned cases, 30 days before such continued trial date), notice is
264070_1.DOC

2

Case No. 3:07-md-1827 SI

STIPULATION AND ORDER TO MODIFY NOVEMBER 13, 2009 ORDER RE DEPONENTS ASSERTING
THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION

1

provided in writing that the below-signed counsel for AUO and AUOA have a good faith belief that

2

such witness intends to waive his or her Fifth Amendment right. Upon giving such notice, any revoking

3

deponent shall make himself or herself available for deposition in the above-captioned proceedings at

4

his or her expense in San Francisco, California, such deposition to be scheduled for a mutually agreeable

5

date and not later than 90 days after entry of judgment in the Criminal Case. These depositions shall be

6

permitted to occur on this schedule notwithstanding the fact discovery cut-off in the above-captioned

7

cases. If notice is given and the witness does not waive his or her Fifth Amendment right or fails to

8

appear for deposition, the witness will be bound by the assertion of the Fifth Amendment right in the

9

above-captioned cases. A revocation within the terms of this order does not guarantee the witness’s

10

right to submit an affidavit or to testify at trial, if plaintiffs make a sufficient showing of prejudice or if

11

the initial invocation represented an attempt to abuse, manipulate, or gain an unfair advantage in the

12

civil proceeding.

13

2.

Nothing in this order in any way impairs or forecloses any party’s right to seek relief

14

otherwise permitted by law, including but not limited to further modification of this order from the

15

Court or plaintiffs’ request for an adverse inference instruction based on a deponent’s assertion of his or

16

her Fifth Amendment right against self-incrimination.

17

3.

This Stipulation and Order shall not modify the November 13, 2009 order with respect to

18

any deponents who are not either (i) present employees of AUO or AUOA or (ii) former employees who

19

have continued to be represented in this action by the below-signed counsel for AUO and AUOA.

20

DATED: November 16, 2011

21

NOSSAMAN LLP
By:

/s/ Carl L. Blumenstein
Carl L. Blumenstein
Attorneys for Defendants
AU Optronics Corporation and
AU Optronics Corporation America

22
23
24

CROWELL & MORING LLP

25
By:

/s/ Jerome Murphy
Jerome Murphy
Liaison Counsel for Direct Action Plaintiffs

26
27
28
264070_1.DOC

3

Case No. 3:07-md-1827 SI

STIPULATION AND ORDER TO MODIFY NOVEMBER 13, 2009 ORDER RE DEPONENTS ASSERTING
THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION

1
2
3

Attestation: Pursuant to General Order 45, Part X-B, the filer attests that concurrence in the
filing of this document has been obtained from each of the signatories.

4
5
6

IT IS SO ORDERED.
11/17/11
Dated: ____________________
The Honorable Susan Illston
United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
264070_1.DOC

4

Case No. 3:07-md-1827 SI

STIPULATION AND ORDER TO MODIFY NOVEMBER 13, 2009 ORDER RE DEPONENTS ASSERTING
THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION