Fenerjian v. Nong Shim Company, Ltd et al

Filing 337

Exhibit to 334 Order on Stipulation. Signed by Magistrate Judge Donna M. Ryu on 4/6/2016. (vlkS, COURT STAFF) (Filed on 4/12/2016)

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[DRAFT]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE KOREAN RAMEN ANTITRUST
LITIGATION,

Case No.13-CV-04115-WHO-DMR

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THIS DOCUMENT RELATES TO:
All Actions

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United States District Court
Northern District of California

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REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE TO OBTAIN
TESTIMONY FROM A FORMER OTTOGI CO., LTD. EMPLOYEE PURSUANT TO THE
HAGUE CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD
IN CIVIL AND COMMERCIAL MATTERS

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The United States District Court of the Northern District of California presents its
compliments to the Appropriate Judicial Authority of the Republic of Korea and requests
international judicial assistance to obtain evidence to be used in a civil litigation proceeding that is
presently pending before this District Court. A trial date in this action has not yet been scheduled.
This Court requests the assistance described herein as necessary in the interests of justice.
This request is made pursuant to, and in conformity with, Chapter 1 of the Hague Convention of 18
March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague
Convention”), to which both the United States and the Republic of Korea are signatories, and Rule
28 of the United States Federal Rules of Civil Procedure. Specifically, the District Court requests
assistance in obtaining testimony from __________________, a former employee of Ottogi Co., Ltd.
(“Ottogi Korea”).
The District Court asserts that the evidence sought is directly relevant to the issues in dispute
and is not sought for the purpose of obtaining pre-trial discovery of documents within the meaning
of Article 23 of the Hague Convention. This Request fully complies with the Republic of Korea’s
reservations made under the Hague Convention.
1. SENDER:
The Honorable Donna M. Ryu
United States Magistrate Judge
United States District Court
Northern District of California
Oakland Courthouse
1301 Clay Street, Oakland CA 94612
010-8170-3115/1/AMERICAS

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2. CENTRAL AUTHORITY OF REQUESTED STATE:
National Court Administration
Attn.: Director of International Affairs
Seocho-daero 219
Seocho-gu
SEOUL 137-750
Republic of Korea
3. PERSONS TO WHOM THE EXECUTED REQUEST IS TO BE RETURNED:

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Plaintiffs’ United States Legal Representatives

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Christopher L. Lebsock
HAUSFELD LLP
600 Montgomery St., Suite 3200
San Francisco, CA 94111
Tel: [phone]
Email: [e-mail]

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Plaintiffs’ South Korean Legal Representative
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KweonsikSeo
DR & AJU LLC
7/11/12/13/15 F., Donghoon Tower, 317 Teheran-ro
Gangnam-gu, Seoul 135-513, the Republic of Korea
Tel: [phone]
Email: [e-mail]
Defendants’ Legal Representatives
Joel S. Sanders
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street, Suite 3000
San Francisco, California 94105
Tel: [phone]
Minae Yu
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Tel: [phone]
Email: [e-mail]

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On behalf of:

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The Honorable Donna M. Ryu
United States Magistrate Judge
United States District Court
Northern District of California
Oakland Courthouse
1301 Clay Street, Oakland CA 94612

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4. DATE BY WHICH REQUESTING AUTHORITY REQUIRES RECEIPT OF
RESPONSE TO LETTER OF REQUEST:

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Date: April 22, 2016

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Reason for urgency: In order to complete depositions in a timely manner as non-expert
discovery ends on April 29, 2016.

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IN CONFORMITY WITH ARTICLE 3 OF THE CONVENTION, THE UNDERSIGNED
APPLICANT HAS THE HONOR TO SUBMIT THE FOLLOWING INFORMATION
REGARDING THE INSTANT REQUEST:

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5.

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REQUESTING JUDICIAL AUTHORITY (Article 3, a):

The Honorable Donna M. Ryu
United States Magistrate Judge
United States District Court
Northern District of California
Oakland Courthouse
1301 Clay Street, Oakland CA 94612

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a.

b.

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TO THE COMPETENT AUTHORITY OF (Article 3, a):
National Court Administration
Attn: Director of International Affairs
Seocho-daero 219
Seocho-gu
SEOUL 137-750
Republic of Korea

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c.

NAME OF THE CASE AND IDENTIFYING NUMBER:

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In Re Korean Ramen Antitrust Litigation
Case No. 13-CV-4115-WHO-DMR

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NAMES AND ADDRESSES OF THE PARTIES AND THEIR
REPRESENTATIVES (Article 3,b):
a. Plaintiffs

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Direct Purchaser Class Plaintiffs

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The Plaza Market
Pacific Groservice, Inc. d/b/a/ Pitco Foods
Summit Import Corporation
Rockman Company U.S.A. Inc.

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Plaintiffs’ U.S. Legal Representatives
Christopher L. Lebsock
Bonny Sweeney
Stephanie Cho
HAUSFELD LLP
600 Montgomery Street, Suite 3200
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San Francisco, CA 94104

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Lee Albert
Greg Linkh
GLANCY PRONGAY & MURRAY LLP
122 East 42nd Street, Suite 2920
New York, NY 10168
Tel: [phone]
Fax: [phone]

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YoungKi Rhee
WE THE PEOPLE LAW GROUP
15F The Salvation Army Bldg., 476
Chungjeongro 3-Ka
Seodaemun-Ku, Seoul 120-837, Korea

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Seok Young Shin
DR & AJU Law Firm
7/11/12/13F, Donghoon Tower
702-19, Yeoksam-dong,
Gangnam-gu, Seoul
135-513 Korea

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Indirect Purchaser Class Plaintiffs

Plaintiffs’ U.S. Legal Representatives

Stephen Fenerjian
Joyce Beamer
Kendal Martin
Nicho1as Halloran
Anthony An
Eleanor Pelobello
Jill Bonnington
Kenny Kang
Christina Nguyen
Thu-Thuy Nguyen

Alan R. Plutzik
Daniel E. Birkhaeuser
BRAMSON, PLUTZIK, MAHLER
& BIRKHAEUSER LLP
2125 Oak Grove Road
Walnut Creek, CA 94598
Robert A. Izard
Mark P. Kindall
Nicole A. Veno
IZARD NOBEL LLP
29 South Main Street, Suite 305
West Hartford, CT 06107

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b. Defendants
Defendants

Defendants’ U.S. Legal Representatives

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Nongshim Co., Ltd.
Nongshim America, Inc.

Mark C. Dosker
Anne Choi Goodwin
Kate E. Kim
SQUIRE PATTON BOGGS (US) LLP

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275 Battery Street, Suite 2600
San Francisco, California 94111

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Ottogi Corporation, Ltd.
Ottogi America, Inc.

Joel S. Sanders
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street, Suite 3000
San Francisco, California 94105

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Minae Yu
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197

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Samyang Foods Co. Ltd.

Elizabeth Mann
Michael D. Shapiro
Justin Dickerson
MAYER BROWN LLP
350 South Grand Avenue, 25th Floor
Los Angeles, CA 90071-1503

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7. a.

NATURE OF THE PROCEEDINGS (Article 3, c):

The evidence requested relates to an antitrust case that was commenced between July and
September of 2013 when various direct and indirect purchasers of Defendants’ Korean Ramen
Noodles in the U.S. filed price-fixing lawsuits against the Defendants alleging that the
Defendants conspired to raise the price of Korean Ramen Noodles. The Defendants in this case
are Nongshim Co., Ltd., Ottogi Co. Ltd., and Samyang Foods Co. Ltd., (collectively, the
“Korean Defendants”), alongside their U.S. subsidiaries which are Nongshim America, Inc. and
Ottogi America Inc. respectively (“U.S. Defendants”, collectively “Defendants”). The plaintiffs
allege that the conspiracy began as early as December of 2000, and continued until at least
February of 2010, in violation of the United States antitrust laws, including Section 1 of the
Sherman Act of 1890 (“Sherman Act”), 15 U.S.C. §1, and Sections 4 and 16 of the Clayton Act
of 1914 (“Clayton Act”), 15 U.S.C. §§15, 26.
In 2014, the various class actions were consolidated and plaintiffs filed two consolidated
complaints: a direct purchaser consolidated complaint and an indirect purchaser consolidated
complaint. The direct purchaser plaintiffs (“DPPs”) are comprised of distributors and retailers of
Korean Ramen Noodles purchased in the U.S. The indirect purchaser plaintiffs (“IPPs”) are
individuals who made purchases of Korean Ramen Noodles at retail locations in their respective
states.
These actions are now pending before the U.S. District Court for the Northern District of
California with the case caption In Re Korean Ramen Antitrust Litigation, No. 13-cv-4115WHO-DMR (N.D. Cal.).
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b.

SUMMARY OF PLAINTIFFS’ CASE:

On March 24, 2014, Plaintiffs filed an amended Complaint, alleging that the Korean
Defendants had colluded to increase prices of Korean Ramen Noodles and keep such prices
inflated for approximately 10 years. Plaintiffs allege that collusion manifested itself in at least
two formal in-person meetings between the Korean Defendants (in 2001 and 2008) and email
communications.
The Defendants also sold their Korean Ramen Noodles in the United States. Plaintiffs
allege that the Defendants’ conspiracy affected the price of Korean Ramen Noodles sold in the
United States in violation of U.S. antitrust laws and that they concealed the existence of the
conspiracy. Plaintiffs allege that, as a result of the unlawful conspiracy, Plaintiffs and other
purchasers of Korean Ramen Noodles in the United States paid artificially high prices for
Defendants’ Korean Ramen Noodles and thereby suffered injury and monetary damages.
c.

SUMMARY OF DEFENSE:

Defendants deny Plaintiffs’ substantive allegations of wrongdoing. Defendants assert that
they never agreed to fix or increase prices of Korean Ramen Noodles as alleged by Plaintiffs,
that Plaintiffs were not injured or damaged, and that Defendants’ activities were lawful at all
times. Defendants also deny that they concealed any wrongdoing and assert various affirmative
defenses.
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EVIDENCE TO BE OBTAINED (Article 3,d):
Mr. _________,’s knowledge as to whether there was any price fixing in the
Korean Ramen industry, including his knowledge of and participation in
communications and meetings between the Defendants concerning the pricing of
Korean Ramen Noodles. Mr. ____________’s knowledge of any efforts to
conceal the existence of communications or meetings between Defendants
concerning the pricing of Korean Ramen Noodles. Mr. ___________’s
knowledge as to whether there was any price fixing of Ramen Noodles sold in the
United States and whether any price fixing in the Korean Ramen industry affected
the price of Ramen Noodles sold in the United States.

b. PURPOSE OF THE EVIDENCE SOUGHT

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The Plaintiffs contend that the former Ottogi Korea employee listed above in Section 8.a was an
active participant in the alleged price fixing conspiracy. This suggests to the Plaintiffs that the
former Ottogi Korea employee can provide important evidence of the purported price-fixing
conspiracy alleged and that their testimony will be important evidence for submission at trial and
other proceedings in the litigation.
The Defendants contend that the former Ottogi Korea employee can confirm that he has no
knowledge or evidence of a conspiracy by the Defendants concerning the prices of Ramen
Noodles sold in the United States.
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This Request fully complies with the Republic of Korea’s reservations under the Hague
Convention.
9. IDENTITY AND ADDRESS OF PERSON TO BE EXAMINED (Article 3, e):

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10.

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QUESTIONS TO BE PUT TO THE PERSON TO BE EXAMINED OR STATEMENT
OF THE SUBJECT MATTER ABOUT WHICH THEY ARE TO BE EXAMINED
(Article 3, f):
The subject matter to be examined includes:

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Mr. _____________’s knowledge as to whether there was any price fixing in the
Korean Ramen industry, including his knowledge of and participation in
communications and meetings between the Defendants concerning the pricing of
Korean Ramen Noodles. Mr. ______________’s knowledge of any efforts to
conceal the existence of communications or meetings between Defendants
concerning the pricing of Korean Ramen Noodles. Mr. ___________’s
knowledge as to whether there was any price fixing of Ramen Noodles sold in the
United States and whether any price fixing in the Korean Ramen industry affected
the price of Ramen Noodles sold in the United States.

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ANY REQUIREMENT THAT THE EVIDENCE BE GIVEN ON OATH OR
AFFIRMATION AND SPECIFIC FORM TO BE USED (Article 3, h):

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The District Court requests that, in executing the Letter of Request, the testimony of the
witness be given under oath, under penalty of perjury: “I [name of deponent] swear that the
testimony that I am about to give is the truth, the whole truth and nothing but the truth, so help me
God.”
In the event the laws of the Republic of Korea do not permit the swearing of an oath by a
particular witness, the witness should be instructed of the consequences for giving untruthful and
false answers under the laws of the Republic of Korea.

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12.

SPECIAL METHODS OR PROCEDURES TO BE FOLLOWED (Articles 3, I & 9):

The District Court requests, pursuant to Chapter 1, Article 9 of the Hague Convention, that
the following special procedures be observed:

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A. That only the appropriate court and its personnel, the parties’ representatives or their
designees, interpreters, a videographer and a U.S. verbatim court reporter be permitted to
attend and participate in the hearing at which the witness will be examined;
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B. That Plaintiffs’ legal representatives or their designees first be permitted to examine the
witness on the subjects set forth above and that Defendants’ legal representatives or their
designees thereafter be permitted to cross-examine the witness on the matters elicited
during his direct testimony;

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C. That in addition to any official transcript that may be made by a Korean court, a U.S.
court reporter be permitted to make a verbatim record of the witness’ examination, at
Plaintiffs’ expense;

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D. That the parties’ representatives or their designees be permitted to object orally to any
questions posed by an opposing party’s representative or designee, thereby preserving
their objections to be ruled upon at a later time by the U.S. District Court;

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E. That a videographer be permitted to attend the hearing and make a video recording of the
witness while he testifies;

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F. That a total of seven hours of examination time over the span of one day be allotted to
permit questions on the specified subject matter areas listed herein at item 10 to be
answered by the witness; and

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G. That, during his oral examination, the witness may be shown documents.

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CONFIDENTIALITY
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The District Court additionally requests that the confidentiality of any evidence produced as
a result of this Request be maintained pursuant to the laws of the Republic of Korea as well as
pursuant to the Protective Order issued by the District Court in the U.S. case. A copy of the
Protective Order operative in the U.S. case is attached hereto as Schedule A.

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Pursuant to the Protective Order, the District Court respectfully requests that any testimony
provided by the witness or documents shown to the witness, to the extent subject to the protective
order, be treated confidentially in accordance with that order.
13.

REQUEST FOR NOTIFICATION OF THE TIME AND PLACE FOR THE
EXECUTION OF THE LETTER OF REQUEST (Article 7):

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It is respectfully requested that testimony be taken at such place, date or time as agreed to by
the respective representatives of the parties.
In conformity with Article 7 of the Hague Evidence Convention, the District Court requests
that the Plaintiffs’ Korean Legal Representative, KweonsikSeo, and the District Court’s designees in
the United States, Christopher Lebsock and Mark C. Dosker and Kate E. Kim, act as liaison between
the Director of International Affairs of the Republic of Korea and the parties to ensure that they are
timely advised of the Director’s decisions with respect to the aforementioned Article 9 requests and
to ensure that all participants are advised of the date and location of deposition for the execution of
the Request. Plaintiffs’ counsel, or Plaintiffs’ Korean Legal Representative, will arrange for court
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reporters, videographers and interpreters as permitted by the Director of International Affairs.
Plaintiffs’ U.S. counsel designee, Christopher Lebsock, and Defendants’ counsel designees, Mark C.
Dosker and Kate E. Kim, may also communicate with the Korean judicial authorities as needed for
clarification with respect to any aspect of the content of this Request. Contact details for these
designees are listed below:

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a.

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Plaintiffs’ Korean Legal Representative
KweonsikSeo
DR & AJU LLC
7/11/12/13/15 F., Donghoon Tower, 317 Teheran-ro
Gangnam-gu, Seoul 135-513, the Republic of Korea
Tel: [phone]
Email: [e-mail]

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b.

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Christopher L. Lebsock
HAUSFELD LLP
600 Montgomery St., Suite 3200
San Francisco, CA 94111
Tel: [phone]
Email: [e-mail]

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c.

Defendants’ Counsel Designees
Joel S. Sanders
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street, Suite 3000
San Francisco, California 94105
Tel: [phone]

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Minae Yu
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Tel: [phone]
Email: [e-mail]

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Plaintiffs’ Counsel U.S. Designee

14.

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REQUEST FOR ATTENDANCE OR PARTICIPATION OF JUDICIAL
PERSONNEL OF THE REQUESTING AUTHORITY AT THE EXECUTION OF
THE LETTER OF REQUEST

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None.

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SPECIFICATION OF PRIVILEGE OR DUTY TO REFUSE TO GIVE EVIDENCE
UNDER THE LAWS OF THE STATE OF ORIGIN:

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A witness may refuse to answer any question propounded pursuant to Section 13 of the
Hague Convention and the subject matters listed in item 10, above, if such answer would disclose
a confidential communication between the witness and his attorney.
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FEES AND COSTS (Article 14, 26):
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It is requested that, once the Letter of Request is executed, the Director of International
Affairs submit a note of fees and costs that are reimbursable under the second paragraph of Article
14 or Article 26 of the Hague Convention to this Court and to Plaintiffs’ Counsel Designee,
Christopher Lebsock:
Chambers of the Honorable Donna M. Ryu
United States Magistrate Judge
United States District Court
Northern District of California
Oakland Courthouse
1301 Clay Street, Oakland CA 94612
United States of America
Christopher L. Lebsock
HAUSFELD LLP
600 Montgomery St., Suite 3200
San Francisco, CA 94111
Tel: [phone]
Email: [e-mail]
The District Court will assure that Plaintiffs’ representatives and Defendants’
representatives timely reimburse the Director of International Affairs in full for all costs incurred
in the taking of the evidence sought.
This District Court expresses its gratitude and assures the appropriate judicial authorities of
the Republic of Korea that it stands ready and willing to render similar assistance to the Korean
courts when requested. The District Court takes this opportunity to extend to the courts of the
Republic of Korea its highest consideration.

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April 6
Dated: __________________, 2016

______________________________
By Honorable Donna M. Ryu
U.S. Magistrate Judge
United States District Court
Northern District of California
1301 Clay Street, Oakland CA 94612
U.S.A.

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M. Ryu
Donna
Judge

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(Seal of Court)

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Attachments:

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Schedule A: Stipulated Amended Confidentiality Protective Order, dated May 8, 2015

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