"The Apple iPod iTunes Anti-Trust Litigation"

Filing 313

Memorandum in Opposition re 310 MOTION to Continue Apple Inc.s Administrative Motion to Continue the Hearing on Plaintiffs' Motion to Compel filed byMelanie Tucker. (Attachments: # 1 Proposed Order)(Roach, Paula) (Filed on 1/19/2010)

"The Apple iPod iTunes Anti-Trust Litigation"

Doc. 313

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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) PAULA M. ROACH (254142) 4 655 West Broadway, Suite 1900 San Diego, CA 92101 5 Telephone: [phone] (fax) 6 [e-mail] [e-mail] 7 [e-mail] [e-mail] 8 THE KATRIEL LAW FIRM 9 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 10 Washington, DC 20007 Telephone: [phone] (fax) [e-mail] 12 Co-Lead Counsel for Plaintiffs 13 [Additional counsel appear on signature page.] 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN JOSE DIVISION 17 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(HRL) ) 18 LITIGATION ) CLASS ACTION ) 19 ) PLAINTIFFS' RESPONSE TO APPLE This Document Relates To: 20 ) INC.'S ADMINISTRATIVE MOTION TO ) CONTINUE THE HEARING ON ALL ACTIONS. 21 ) PLAINTIFFS' MOTION TO COMPEL 22 23 24 25 26 27 28

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Through its Administrative Motion to Continue the Hearing on Plaintiffs' Motion to Compel

2 ("Apple's Motion"), Apple, Inc. ("Apple") seeks, yet again, to delay the production of relevant 3 discovery in this litigation which has been pending for almost five years.1 Despite the Court's 4 December 21, 2009 Order sua sponte decertifying Plaintiffs' monopoly claims ("Decertification 5 Order"), Plaintiffs' claims have not been dismissed, the Court has clearly indicated time and time 6 again that discovery is open, and there is no reason to further delay what progress has been made to 7 date with regard to discovery. The current motion to compel seeks production of a narrow set of 8 documents and responses to four interrogatories concerning issues of, inter alia, Apple's software 9 updates, market definition, market power, and damages, all of which are relevant to Plaintiffs' 10 monopoly claims. These requests were served over nine months ago when only Plaintiffs' monopoly 11 claims were certified. If Plaintiffs elect to amend their complaint to clarify their monopoly claims 12 per the Court's Decertification Order, the substance of these claims will not change. Thus, even with 13 an amended complaint, the outstanding discovery is still relevant. 14 Plaintiffs have spent the last nine months diligently pushing Apple to produce relevant

15 information and documents and have been met time and time again with tactical delay. Nothing but 16 additional delay will be served by continuing the hearing on Plaintiffs' motion to compel until after 17 the scheduled February 22, 2010 case management conference. Moreover, if Plaintiffs are forced to 18 wait through another round of motions to dismiss and class certification briefing as Apple suggests 19 (see Apple's Motion at 4), they will be highly prejudiced and will be forced to engage in duplicative 20 efforts to obtain the current discovery. 21 22 23 24
1 its filing of this motion on Friday, January 15, 2010 at 4:09 25 that the Apple completed entirely offline from 5:00 p.m. that same day until Monday,p.m., knowing ECF system was January 18 at 12:00 p.m., a federal holiday. Due to a filing in another case, Plaintiffs' counsel was unable to 26 access this motion and its supporting papers until Monday afternoon. Thus, Plaintiffs' counsel had one 27 11(bday to respond instead of the four days permitted under the Local Rules. See Local Rule 7). 28

Accordingly, Plaintiffs respectfully request that the Court deny Apple's Motion.

PLAINTIFFS' RESPONSE TO APPLE INC.'S ADMINISTRATIVE MOTION TO CONTINUE THE HEARING ON PLAINTIFFS' MOTION TO COMPEL - C-05-00037-JW(HRL)

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The Court's December 21, 2009 Order On December 21, 2009, the Court sua sponte vacated its Order certifying Rule 23(b)(2) and

3 23(b)(3) classes "to give consideration to class definitions based on clearly stated monopoly claims 4 delineating what anticompetitive conduct Apple is alleged to have engaged in and when it allegedly 5 took place." Decertification Order at 11. The Court invited Plaintiffs to file an amended complaint 6 or, if Plaintiffs declined to do so, for Apple to file a motion for judgment on the pleadings. The 7 Court did not dismiss Plaintiffs' claims. 8 Instead, the Court merely requested that Plaintiffs re-plead their allegations so that the

9 monopoly claims were clear, separate and apart from any claims of tying which the Court had 10 previously dismissed. As the Court recognized: 11 12 13 [T]he [current] monopoly claims interweave allegations that there were technological ties between Apple products when they were first introduced to the market (which, without more, is not anticompetitive conduct) and allegations that Apple made technological modifications to its products for the express purpose of maintaining monopoly power (which could support a monopoly claim).

14 Id. at 2. Thus, Plaintiffs do not intend to allege different claims but instead will simply clarify their 15 "allegations that Apple made technological modifications to its products for the express purpose of 16 maintaining monopoly power." See id. Plaintiffs will do this in light of the Court's previous Orders 17 regarding tying and class certification. However, the general essence of their claims, that Apple took 18 assertive action through the use of software updates intended to prevent competition in the relevant 19 markets, will not change. 20 II. 21 Through this motion, Apple contends that Plaintiffs' pending motion to compel should be 22 continued until after the scheduled case management conference. However, as Apple explains, it 23 really seeks to stay discovery all together until "at a minimum" the Court makes a decision on the 24 sufficiency of the allegations in Plaintiffs' amended complaint. Apple's Motion at 4. As is evident 25 from Apple's conduct throughout the course of this litigation, their current motion is yet another 26 attempt to delay discovery and its inevitable production of relevant information. Apple should not 27 be able to continue to hold-up this process. 28
PLAINTIFFS' RESPONSE TO APPLE INC.'S ADMINISTRATIVE MOTION TO CONTINUE THE HEARING ON PLAINTIFFS' MOTION TO COMPEL - C-05-00037-JW(HRL)

Plaintiffs Will Be Prejudiced if Not Permitted to Go Forward with Their Pending Motion to Compel

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Over the course of nine months, Plaintiffs have met and conferred with Apple concerning the

2 pending requests over three dozen times.2 Plaintiffs' requests were drafted and served to gain 3 information relevant to Plaintiffs' monopoly claims. Indeed, when Plaintiffs served the requests that 4 are the subject of the pending motion to compel in April and May of 2009, only the certified 5 monopoly claims were at issue. Thus, the discovery requests were aimed specifically at those 6 claims. For example, the outstanding Rule 30(b)(6) requests all concern Apple's software updates, 7 an affirmative technological modification, that were intended to maintain Apple's monopoly power 8 in the relevant markets. Additionally, several of Plaintiffs' Amended Document Requests concern 9 questions of market definition and market power, both of which are relevant to Plaintiffs' monopoly 10 claims. 11 Apple has successfully stalled production by continually rescinding promises to produce and

12 providing empty assurances that it is looking into the manner in which certain information is kept. 13 See Plaintiffs' Motion to Compel Further Response from Apple, Inc. ("Motion to Compel") at 16-18. 14 Indeed, through this motion, Apple once again makes the same hollow statement that it "is 15 investigating what alternative information is available" with regard to Plaintiffs' interrogatories, 16 which it first made more than six months ago in its original objections. See Declaration of David C. 17 Kiernan in Support of Apple Inc.'s Administrative Motion to Continue the Hearing on Plaintiffs' 18 Motion to Compel ("Kiernan Decl.") at 3; see also Motion to Compel at 17. If discovery is stayed as 19 Apple suggests, Plaintiffs will be forced to start the laborious meet and confer process all over again 20 and revisit discovery issues that could be resolved immediately. 21 22 23 24 25 26
2 This is directly contrary 27 filing their motion to compel. to Apple's contention that Plaintiffs did not meet and confer prior to 28

PLAINTIFFS' RESPONSE TO APPLE INC.'S ADMINISTRATIVE MOTION TO CONTINUE THE HEARING ON PLAINTIFFS' MOTION TO COMPEL - C-05-00037-JW(HRL)

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Accordingly, because the pending requests are relevant even if Plaintiffs seek to amend their

2 complaint and Plaintiffs will be prejudiced by further delay if their Motion to Compel is continued or 3 discovery is stayed, Apple's motion should be denied in its entirety. 4 DATED: January 19, 2010 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLAINTIFFS' RESPONSE TO APPLE INC.'S ADMINISTRATIVE MOTION TO CONTINUE THE HEARING ON PLAINTIFFS' MOTION TO COMPEL - C-05-00037-JW(HRL)

Respectfully submitted, COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK PAULA M. ROACH

s/ Paula M. Roach PAULA M. ROACH 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 12304 Santa Monica Blvd., Suite 109 Los Angeles, CA 90025 Telephone: [phone] (fax)

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PLAINTIFFS' RESPONSE TO APPLE INC.'S ADMINISTRATIVE MOTION TO CONTINUE THE HEARING ON PLAINTIFFS' MOTION TO COMPEL - C-05-00037-JW(HRL)
I:\DeeM\Apple Tying-Rsp to Cont of MTC.doc

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 January 19, 2010, I electronically filed the foregoing with the Clerk

3 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 January 19, 2010. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ PAULA M. ROACH PAULA M. ROACH 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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