"The Apple iPod iTunes Anti-Trust Litigation"

Filing 261

Declaration of Bonny E. Sweeney in Support of 260 Memorandum in Opposition to Apple's Administrative Motion to Set Briefing Schedule for Decertification Motion filed byMelanie Tucker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 260 ) (Sweeney, Bonny) (Filed on 9/23/2009)

"The Apple iPod iTunes Anti-Trust Litigation"

Doc. 261

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1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 JOHN J. STOIA, JR. (141757) BONNY E. SWEENEY (176174) 3 THOMAS R. MERRICK (177987) 655 West Broadway, Suite 1900 4 San Diego, CA 92101 Telephone: [phone] (fax) [e-mail] 6 [e-mail] [e-mail] 7 THE KATRIEL LAW FIRM 8 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 9 Washington, DC 20007 Telephone: [phone] (fax) [e-mail] 11 Co-Lead Counsel for Plaintiffs 12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 THE APPLE IPOD ITUNES ANTI-TRUST 17 LITIGATION 18 19 20 21 22 23 24 25 26 27 28 This Document Relates To: CHAROENSAK v. APPLE COMPUTER, INC., No. C-05-00037-JW TUCKER v. APPLE COMPUTER, INC., No. C-06-04457-JW ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Lead Case No. C-05-00037-JW(RS) CLASS ACTION DECLARATION OF BONNY E. SWEENEY IN SUPPORT OF OPPOSITION TO APPLE'S ADMINISTRATIVE MOTION TO SET BRIEFING SCHEDULE FOR DECERTIFICATION MOTION

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I, BONNY E. SWEENEY, declare as follows: 1. I am an attorney duly licensed to practice before all of the courts of the State of

3 California. I am a member of the law firm of Coughlin Stoia Geller Rudman & Robbins, LLP, one 4 of the counsel of record for Direct Purchaser Plaintiffs in the above-entitled action. I have personal 5 knowledge of the matters stated herein, and, if called upon, I could and would competently testify 6 thereto. 7 2. On January 18, 2007, Direct Purchaser Plaintiff propounded her first set of requests

8 for production of documents on Apple. 9 3. On February 23, 2007, Apple responded to each of Direct Purchaser Plaintiff's

10 discovery requests with objections. Counsel for Apple further suggested that discovery initially be 11 limited to class certification issues. 12 4. The parties continued to meet and confer regarding Direct Purchaser Plaintiffs'

13 document requests. On July 20, 2007, the Court ruled that discovery should be limited to: (1) class 14 certification issues; (2) the preliminary issues of Apple's organizational structure and document 15 retention policies; (3) Direct Purchaser Plaintiffs' iPod and computer hard drives; and (4) documents 16 whose production would impose only a de minimus burden on either party. See Dkt. No. 128. 17 5. Direct Purchaser Plaintiffs reiterated their position that cost, sales, profit, loss and

18 revenue data were relevant to class certification issues. On September 26, 2007, Apple refused again 19 to provide the outstanding documents, claiming that they were "merit" based and not "class" related. 20 Apple never objected to the relevancy of the documents to the litigation. See Ex. A, attached hereto. 21 6. On December 7, 2007, Direct Purchaser Plaintiffs filed a motion to compel seeking

22 the production of: (1) unredacted copies of spreadsheets previously produced in redacted form 23 containing iPod profit, loss, sales and revenue data, by model, including all documents used to 24 generate the spreadsheets; and (2) documents showing the cost of manufacture, production, and 25 number of iPods sold and the revenue generated from the sale of these products, by model and by 26 quarter. See Dkt. No. 137. 27 28
DEC OF BONNY E. SWEENEY ISO OPPOSITION TO APPLE'S ADMINISTRATIVE MOTION TO SET BRIEFING SCHEDULE FOR DECERTIFICATION MOTION - C-05-00037-JW(RS)

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1

7.

On December 21, 2007, Apple filed its opposition to Direct Purchaser Plaintiffs'

2 motion to compel, again contending that Direct Purchaser Plaintiffs were not entitled to the 3 discovery because it was not related to class certification. See Dkt. No. 142. Direct Purchaser 4 Plaintiffs filed their reply on January 2, 2008. See Dkt. No. 147. 5 8. On January 16, 2008, at the scheduled hearing on Direct Purchaser Plaintiffs' motion

6 to compel, Apple's counsel Robert A. Mittelstaedt stated to me that we should be able to reach a 7 compromise on the requested documents. He stated that Apple would produce exemplars of the type 8 of data available so that Direct Purchaser Plaintiffs' expert, Professor Roger G. Noll, could make a 9 determination on the sufficiency of the data available. I tentatively agreed to this proposal, 10 depending on the nature of the exemplars. 11 9. On January 30, 2008, I wrote Mr. Mittelstaedt to follow up on the production of

12 exemplar data. Ex. B, attached hereto. In his response, Mr. Mittelstaedt stated: 13 14 15 16 See Ex. C, attached hereto. 17 10. 18 reiterated his understanding that Professor Noll was not going to run an actual damages study at this 19 stage and so exemplar data was sufficient. See Ex. D, attached hereto. 20 11. 21 of Class Counsel on July 21, 2008. Dkt. No. 165. Professor Noll submitted a declaration in support 22 of Direct Purchaser Plaintiffs' motion. Dkt. No. 166, Ex. 1. 23 12. 24 Michelle Burtis "within a couple months" before Professor Noll's deposition. See Ex. E, attached 25 hereto. 26 13. 27 Certification on October 17, 2008. Dkt. No. 177. Apple's opposition was not supported by a 28
DEC OF BONNY E. SWEENEY ISO OPPOSITION TO APPLE'S ADMINISTRATIVE MOTION TO SET BRIEFING SCHEDULE FOR DECERTIFICATION MOTION - C-05-00037-JW(RS)

To be clear, I did not agree to, or anticipate, that we would produce that actual data beyond an exemplar of the type of data that are available. I understood that your expert wanted to know what type of data is available rather than acquiring all the data now because he does not intend to actually produce a damages study at this point. That's the compromise we reached, and I thought that met your pre-cert needs.

To be sure, on February 1, 2008, Mr. Mittelstaedt produced an exemplar of data and

Direct Purchaser Plaintiffs filed their Motion for Class Certification and Appointment

Professor Noll was deposed on September 19, 2008. Apple retained its expert Dr.

Apple filed its Opposition to Direct Purchaser Plaintiffs' Motion for Class

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1 declaration from Dr. Burtis or any other expert. The Court granted Direct Purchaser Plaintiffs' 2 motion in part on December 22, 2008. Dkt. No. 196. 3 14. On April 9, 2009, Direct Purchaser Plaintiffs served a Rule 30(b)(6) deposition notice

4 and related document requests. The parties have met and conferred several times with regard to 5 these requests. Apple has not produced a single document or witness to date. 6 15. On May 22, 2009, Direct Purchaser Plaintiffs served their amended first set of

7 requests for production of documents, interrogatories, and request for admission. Apple served its 8 responses and objections on July 20, 2009, July 21, 2009, and July 24, 2009, respectively. The 9 parties have met and conferred several times with regard to Apple's responses and Apple has yet to 10 produce a single document. 11 16. On September 22, 2009, Direct Purchaser Plaintiffs requested that Apple respond to

12 several outstanding requests by September 25, 2009. See Ex. F, attached hereto. 13 17. I have communicated with Direct Purchaser Plaintiffs' expert, Professor Noll, and he

14 is traveling and unavailable much of September and October. He is out of town October 7 through 15 15, 2009 but is available for deposition on October 19 or 20, 2009. 16 18. While it is true, as Apple notes, that the Direct Purchaser Plaintiffs are represented by

17 several lawyers, I argued the class certification motion, defended Professor Noll's deposition, have 18 been working with Professor Noll, and will be deposing Apple's expert. I have several previously 19 scheduled hearings in the beginning of October, as well as long-scheduled personal travel that 20 hampers my ability to participate in preparing the opposition to Apple's brief by October 5, 2009. 21 Specifically, I will be deposing Apple's expert in San Francisco on September 30, 2009. The 22 following day I travel to Vermont for "parents' weekend" at the college where my son is a freshman. 23 On October 4, 2009 I travel to San Jose for the October 5, 2009 hearing in this case. That same day, 24 after the hearing, I fly to New York to prepare for and argue motions scheduled for hearing in the 25 Eastern District of New York on October 7 and 8, 2009. 26 19. Near the end of the day on Friday, September 18, 2009, Mr. Mittelstaedt called me to

27 request that Direct Purchaser Plaintiffs' file their opposition by October 5, 2009. I explained that 28
DEC OF BONNY E. SWEENEY ISO OPPOSITION TO APPLE'S ADMINISTRATIVE MOTION TO SET BRIEFING SCHEDULE FOR DECERTIFICATION MOTION - C-05-00037-JW(RS)

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1 scheduling conflicts did not permit an earlier filing. This position was reiterated several times over 2 email. See Ex. G, attached hereto. 3 20. Shortly after learning that Professor Noll was traveling and unavailable the week of

4 October 12, 2009, I informed Mr. Mittelstaedt. See Ex. G at 1. Due to Professor Noll's 5 unavailability, Direct Purchaser Plaintiffs agreed not to oppose any request by Apple to file its reply 6 on October 23, 2009 or later. See Ex. G at 1. 7 I declare under penalty of perjury under the laws of the United States that the foregoing is

8 true and correct. Executed this 23rd day of September, 2009, at San Diego, California. 9 10
S:\CasesSD\Apple Tying\DEC00061938.doc

s/ Bonny E. Sweeney BONNY E. SWEENEY

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DEC OF BONNY E. SWEENEY ISO OPPOSITION TO APPLE'S ADMINISTRATIVE MOTION TO SET BRIEFING SCHEDULE FOR DECERTIFICATION MOTION - C-05-00037-JW(RS)

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CERTIFICATE OF SERVICE I hereby certify that on September 23, 2009, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail 4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have 5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF 6 participants 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 September 23, 2009. 9 10 11 12 13 14 E-mail:[e-mail] 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: [phone] (fax) s/ Bonny E. Sweeney BONNY E. SWEENEY

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