"The Apple iPod iTunes Anti-Trust Litigation"

Filing 119

MOTION to clarify whether the discovery bifurcation provision of the case management order Pursuant to Civil Local Rule 7-11 filed by Melanie Tucker. (Sweeney, Bonny) (Filed on 7/9/2007) Modified on 7/11/2007 (cv, COURT STAFF).

"The Apple iPod iTunes Anti-Trust Litigation"

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1 LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 BONNY E. SWEENEY (176174) GREGORY S. WESTON (239944) 3 655 West Broadway, Suite 1900 San Diego, CA 92101 4 Telephone: [phone] (fax) 5 [e-mail] [e-mail] 6 THE KATRIEL LAW FIRM 7 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 8 Washington, DC 20007 Telephone: [phone] (fax) [e-mail] 10 Co-Lead Counsel for Plaintiffs 11 [Additional counsel appear on signature page.] 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN JOSE DIVISION 15 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW 16 LITIGATION ) ) CLASS ACTION 17 ) ) PLAINTIFFS' MOTION FOR This Document Relates To: 18 ) ADMINISTRATIVE RELIEF PURSUANT ) TO CIVIL LOCAL RULE 7-11 ALL ACTIONS. 19 ) 20 21 22 23 24 25 26 27 28

Dockets.Justia.com

Case 5:05-cv-00037-JW

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By this motion for administrative relief pursuant to Civil Local Rule 7-11, Melanie Tucker,

2 Somtai Troy Charoensak and Mariana Rosen (collectively "Plaintiffs") hereby request the Court to 3 clarify whether the discovery bifurcation provision of the case management order that governed one 4 of the two cases consolidated into The Apple iPod iTunes Anti-Trust Litigation now governs the 5 consolidated action. Plaintiffs oppose such bifurcation, for the reasons that follow: 6 I. 7 Procedural Background of Slattery/Charoensak v. Apple The first of the two actions consolidated into The Apple iPod iTunes Anti-Trust Litigation

8 was filed on January 3, 2005, Slattery v. Apple Computer, Inc. ("Slattery/Charoensak action"). The 9 second action, Tucker v. Apple Computer, Inc. ("Tucker action") was filed on July 21, 2006. 10 Between the two actions, Defendant Apple Computer, Inc. ("Defendant") has filed a total of three 11 motions to dismiss, the most recent one rejected by this Court's December 20, 2006 Order Denying 12 Defendant's Motion to Dismiss in the Tucker action. 13 In the Slattery/Charoensak action, the parties filed their first joint case management

14 statement on October 31, 2005, with Defendant requesting and Plaintiffs opposing an order 15 bifurcating discovery into "class" and "merits" issues. The Court declined Defendant's request 16 when it issued its case management order on November 15, 2005. On December 20, 2005, Plaintiffs 17 submitted documents responsive to Defendant's first set of requests for production. On January 30, 18 2006, Defendant deposed named Plaintiff William Thomas Slattery, and on the same date Plaintiffs 19 served their first set of requests for production and first set of interrogatories upon Defendant. On 20 November 21, 2006, the Court entered a second case management order, this time agreeing to 21 Defendant's request to bifurcate discovery. 22 II. 23 Procedural Background of Tucker v. Apple On January 17, 2007, Plaintiff Melanie Tucker in the Tucker action served her first discovery

24 requests. While no bifurcation order had been issued in this second action, Plaintiffs, mindful that 25 discovery had been bifurcated in the Slattery/Charoensak action, sought to meet and confer with 26 Defendant to narrow the requests to issues bearing on class certification, and informally agreed 27 without prejudice to proceed as if discovery had been bifurcated. 28
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After the Court consolidated the two actions, Plaintiffs continued informally to proceed as if

2 discovery had been bifurcated in the consolidated action. However, after several months of delay by 3 Defendant, Plaintiffs have concluded that continuing to "meet and confer" with Defendant to 4 determine which requests relate to class certification and which do not is unfeasible. Defendant 5 objected to all of Tucker's first set of requests for production of documents, first set of 6 interrogatories, and first set of requests for admission based on Defendant's contention that "this 7 Court's November 21, 2006 Order Following Further Case Management Conference in Charoensak, 8 et al. v. Apple Computer, Inc., No. 05-00037 . . . applies to this related case" and that Plaintiffs' 9 requests "do not relate to class certification issues." 10 Defendant has yet to produce any documents in response to the requests served on

11 January 17, 2007. As of today, nearly two and a half years after the first action was filed, and after 12 more than 20 meet and confer letters, calls, and e-mails, Defendant has only produced 66 pages of 13 documents in total, 58 pages of which were not even deemed "confidential" by Defendant because 14 they are simply print-outs from Defendant's webpage. 15 Further, despite Plaintiffs' willingness to agree to an informal limit on discovery, Defendant

16 did not similarly limit its own discovery requests to Plaintiffs. For example, Defendant demanded 17 Tucker provide to Defendant for inspection and copying her computer's hard drive, which contains 18 many personal items such as private letters and photographs, all of her CDs and DVDs, and any 19 credit card statement that contains a purchase of a CD or DVD. Sweeney Decl., ¶6. 20 III. 21 Request for Clarification Plaintiffs no longer view it practical to proceed informally as if discovery has been

22 bifurcated, and are opposed to a formal bifurcation order. Plaintiffs therefore respectfully request 23 that the Court agree to the attached Proposed Order Governing Discovery clarifying that the 24 November 21, 2006 Slattery/Charoensak action case management order does not apply to The Apple 25 iPod iTunes Anti-Trust Litigation. In the alternative, if the Court desires that the discovery process 26 in the consolidated action be bifurcated, Plaintiffs have attached an Alternative Proposed Order 27 Governing Discovery which limits discovery to class certification issues; preliminary issues such as 28 Defendant's organizational structure; and documents whose production would impose only a de
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1 minimis burden on Plaintiffs or Defendant, such as all documents already produced in European 2 litigation and government investigations involving similar antitrust claims against Defendant, and 3 documents and deposition transcripts produced by Defendant as a third-party litigant in the In re 4 Napster, Inc. Copyright Litigation, No. MDL-00-1369 (MHP) (N.D. Cal.). 5 DATED: July 9, 2007 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLTFFS' MOTION FOR ADMIN RELIEF PURSUANT TO CIVIL L.R. 7-11 - C-05-00037-JW

Respectfully submitted, LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP BONNY E. SWEENEY GREGORY S. WESTON

s/BONNY E. SWEENEY BONNY E. SWEENEY 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: [phone] (fax) THE KATRIEL LAW FIRM ROY A. KATRIEL 1101 30th Street, N.W., Suite 500 Washington, DC 20007 Telephone: [phone] (fax) Co-Lead Counsel for Plaintiffs BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. ANDREW S. FRIEDMAN FRANCIS J. BALINT, JR. ELAINE A. RYAN TODD D. CARPENTER 2901 N. Central Avenue, Suite 1000 Phoenix, AZ 85012 Telephone: [phone] (fax) BRAUN LAW GROUP, P.C. MICHAEL D. BRAUN 12400 Wilshire Blvd., Suite 920 Los Angeles, CA 90025 Telephone: [phone] (fax)

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MURRAY, FRANK & SAILER LLP BRIAN P. MURRAY JACQUELINE SAILER 275 Madison Avenue, Suite 801 New York, NY 10016 Telephone: [phone] (fax) GLANCY BINKOW & GOLDBERG LLP MICHAEL GOLDBERG 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067 Telephone: [phone] (fax) Additional Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on July 9, 2007, I electronically filed the foregoing with the Clerk of the

3 Court using the CM/ECF system which will send notification of such filing to the e-mail addresses 4 denoted on the attached Electronic Mail Notice List, and I hereby certify that I have mailed the 5 foregoing document or paper via the United States Postal Service to the non-CM/ECF participants 6 indicated on the attached Manual Notice List. 7 I certify under penalty of perjury under the laws of the United States of America that the

8 foregoing is true and correct. Executed on July 9, 2007. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ BONNY E. SWEENEY BONNY E. SWEENEY LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: [phone] (fax) E-mail:[e-mail]

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Mailing Information for a Case 5:05-cv-00037-JW
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case. David Braun [e-mail]
Michael

S. Friedman [e-mail],[e-mail]
Andrew

A. Katriel [e-mail],[e-mail]
Roy

Nason Mitchell [e-mail],[e-mail],[e-mail]
Caroline

Allan Mittelstaedt [e-mail],[e-mail]
Robert

P Murray [e-mail]
Brian

Sailer [e-mail]
Jacqueline

Richard Sand , Esq [e-mail]
Adam

J. Stoia , Jr [e-mail]
John

Strong [e-mail],[e-mail]
Tracy

E. Sweeney [e-mail],[e-mail],[e-mail]
Bonny

Steven Weston [e-mail]
Gregory

Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients.
Francis Joseph Balint , Jr

https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?622469229890884-L_390_0-1

7/9/2007

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Bonnett Fairbourn Friedman & Balint, P.C 2901 North Central Avenue Suite 1000 Phoenix, AZ 85012-3311 Todd David Carpenter Bonnett, Fairbourn, Friedman, & Balint 2901 N. Central Avenue Suite 1000 Phoenix, AZ 85012 Elaine A. Ryan Bonnett Fairbourn Friedman & Balint, P.C 2901 N. Central Avenue Suite 1000 Phoenix, AZ 85012

https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?622469229890884-L_390_0-1

7/9/2007