"The Apple iPod iTunes Anti-Trust Litigation"

Filing 347

REDACTION to 345 Declaration of Paula M. Roach Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure in Support of Plaintiffs' Opposition to Apple's Motion to Dismiss or, Alternatively, for Summary Judgment by Melanie Tucker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Roach, Paula) (Filed on 3/22/2010) Modified on 3/23/2010 (cv, COURT STAFF).

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page1 of 12

EXHIBITB

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page2 of 12

IJ

Vl/qt
COUGHUN STOIA GELLER RUDMAN & ROBBINS LLP

2 BONNY E. SWEENEY (176174)
655 West Broadway, Suite i 900

3 San Diego, CA 92 l 01
Telephone: [phone] (fax)

[e-mail]
5
THE KA TRIEL LA W FIRM

6 ROY A. KATRIEL (pro hac vice)
1 101 30th Street, N. W., Suite 500
7 Washington, DC 20007
Telephone: [phone] (fax)

[e-mail]
9

Co-Lead Counsel for Plaintiffs
10

(Additional counsel appear on signature page.)
11

UNITED STATES DISTRICT COURT
12

NORTHERN DISTRICT OF CALIFORNIA
13

SAN JOSE DIVISION

T 17his Document Relates To: ) PLAINTIFFS' RULE 30(B)(6) NOTICE OF ) VIDEOTAPED DEPOSITION AND

16 )

15 LITIGA TION )

14

THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(RS)
) CLASS ACTION

LL ACTIONS. ) 18 ) ADEFENDANT RULE 34 REQUEST FOR DOCUMENTS TO APPLE, INC. REGARDING
SOFTWARE UPDATES
19

20
21

22
23 24 25

26

27
28

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page3 of 12

PLEASE TAKE NOTICE that pursuant to Fed. R. Civ. P. 30(b)(6), Plaintiffs, through their
2 attorneys, will take the deposition of the corporate dcsignee(s) of

defendant Apple. Inc. ("Apple" or

3 "Defendant") on May 27,2009, at i 0:00 3.m at the offices of Coughlin Stoia Geller Rudman &

4 Robbins LLP, 100 Pine Street, 26th Floor, San Francisco. California 94 i i i, or at another location

5 mutually agreed upon by the parties. The deposition will be before a person authorized by law to
6 administer oaths and will cC1htinue from one day to the next, excluding Sundays and holidays, until

7 the examination is completed.
8 Defendant is hereby notified of

its duty to designate and produce for deposition one or more
other persons who consent to

9 (if

necessary) of

its officers, directors, managing agents, employees, or

10 testify on its behalf as to all matters known or reasonably available to defendant concerning the

11 matters set forth below in Section iv. Each such designee produced to so testify has an affirmative
12 duty to have first reviewed all documents, reports and other matters known or reasonably known or
13 available to defendant, along with familiarizing themselves with all potential witnesses known or

14 reasonably available (not just current employees) to provide informed, binding answers at the

15 deposition.

16 Plaintiffs request that Defendant provide notice of the names of the individuals to be
17 produced for deposition at least 10 days prior to commencement of the deposition, setting forth the
18 matters on which each person will testify.

19 The deposition will be recorded using the stenographic method, through the instant visual
20 display of testimony, and

the deposition will be recorded by audio and videotape technology. The

21 deposition will be taken in accordance with and for all purposes permissible under the Federal Rules

22 of Civil Procedure.
23 PLEASE TAKE FURTHER NOTICE that pursuant to Fed. R. Civ. P. 34, Plaintiffs request
24 that Defendant produce copies or permit Plaintiffs to inspect and copy originals of

the documents set

25 forth below in Section V that are in the possession, custody or control of Defendant or its officers,
26 agents, employees, attorneys or any and all persons acting on its behalf within 30 days of service of
27 the requests for production. Plaintiffs request that the documents be madc available for inspection at

28

C-OS-00037-JW(RS) - i REQUEST FOR DOCUMENTS TO DEF APPLE, INC. RE SOFTWARE UPDATES -

PLAfNTIFFS' RULE 30(B)(6) NOTICE OF VIDEOTAPED DEPO AND RULE 34

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page4 of 12

the office of

Coughlin Stoia Geller Rudman & Robbins LLP, 655 West Broadway, Suite 1900, San

2 Diego, California 92101, unless such other date or place is mutually agreed upon by counsel for the

3 parties.
4 i. DEFINITIONS
5
i.

"You" or "Your" refers to Apple.
"Apple" means defendant Apple, Inc. and any of its predecessors, successors, parents,

6

2.

7 subsidiaries, affiliat~s, segments, divisions, operating units or business lines (foreign and domestic),

8 any of its present or former officers, directors, administrators, agents, employees, investigators,
9 accountants, attorneys and all other persons acting or purporting to act on its behalf.

io

3.

"Communication(s)" refers to any exchange of information by any means of

1 1 transmission, sending or receipt of information of any kind by or through any means including, but

12 not limited to, speech, writings, documents, language (machine, foreign or otherwise) of any kind,

13 computer electronics or electronic data, electronic mail (He-mail"), instant messages, voicemail,

14 sound, radio or video signals, telecommunication, telephone, teletype, facsimile, telegram,
15 microfilm, microfiche, photographic film of all types or other media of any kind. The tenTI

16 "communication" also includes, without limitation, all inquiries, discussions, conversations,
i 7 correspondence, negotiations, agreements, understandings, meetings, notices, requests, responses,
18 demands, complaints, or press, publicity or trade releases.
19

4.

"Concerning" shall mean constituting, analyzing, discussing, evaluating, estimating,

20 measuring, evidencing, reflecting, incorporating, effecting, including, or otherwise pertaining or
21 relating, either directly or indirectly, or being in any way logically or factually connected with the
22 subject matter of the inquiry or Request.

23

5.

"Digital Audio File" means a computer file containing audio data, regardless of

24 format, including without limitation, AAC, FLAC, MP3, Real Audio, WA V and WMA, that can be
25 played on a computer or other device that utilizes computer software (e.g., a Digital Music Player).

26

6.

"Digital Video File" means a computer file containing video data, regardless of

27 format, that can be played on a computer or Portable Digital Media Player.

28

C-05-00037-JW(RS) - 2REQUEST FOR DOCUMENTS TO DEF APPLE.

PLAfNTirr.s' RULE 30(8)(6) NOTICE OF VIDEOTAPED DEPO AND RULE 34 INC. RF. SOFT\Vi\RE UPDATES-

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page5 of 12

7. "Document(s)" is intended to be interpreted in the broadest possible sense and
2 includes, but is not limited to, all electronic data and all communications which are stored or

3 retrievable or recorded in any manner and also includes, without limitation, any \vriting or other
4 record ofinfonnation or images, including, but not limited to, print, handwriting, photographs, film,
5 recordings, memoranda, nooks, records, accounts, ledgers, vouchers, invoices, drafts, bills, charge
6 slips, letters, e-mail, compact discs, CD-ROMs,

magnetic tape, videotape, magnetic or optical disks,

7 floppy disks, PowerPoinl or other presentation software systems, metadata bel~nging to any

8 electronic document, telegrams, mailgrams, correspondence, notes and minutes of meetings,

9 conversations or telephone calls, resolutions, interoffice memoranda, work papers, reports, projects,

10 tabulations, studies, surveys, legal complaints and other pleadings, affidavits, interrogatories, legal
i i briefs, legal motions,

judgments, designs, drawings, schematics, maps, manuals, models, notebooks,

i 2 contracts, agreements, diaries, telephone records, desk calendars, appointment books, circulars,
13 charts, transcripts, news releases, trade releases, advertisements, press books, teletype messages,

14 licenses, financial statements, stenographers' notebooks, punchcards, computer printouts and data,

15 telecopier or facsimile transmissions and printouts, letters of credit, stock certificates and securities.
i 6 The term "document" also includes preliminary drafts or revisions or copies of any such document if
17 the copy is in any way different from the original, now in your possession, custody or contròl, or in

18 the possession, custody or control of your advisors, agents, employees, servants, representatives,
i 9 trustees, counselor other persons acting or purporting to act on your behalf.

20

8.

"DRM" refers to digital rights management software and technology, including

2 i Apple's FairPlay.

22

9.

"iPod" refers to all portable digital media players manufactured by Apple, including

23 but not limited to, all generations ofiPod, iPod Touch, iPod Photo, iPod Mini, ¡Pod Nano and iPod

24 Shuffle, which were released during the Relevant Time Period.
25
10.

"iPod Software" means the software application on an iPod used to download and

26 playback digital audio and video liles obtained from online music stores.
27
28

PLAINTIFFS' RULE 30(8)(6) NOTICE OF VIDEOTAPED DEPO AND RULE 34 REQUEST FOR DOCUMENTS TO DEF APPLE, INC. RE SOFTWARE UPDA TES .
C-OS-00037-JW(RS)
~ -J-

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page6 of 12

i I. "iTunes Software" means the computer software application used to playback digital

2 audio and video files on a Mac OS or Windows operating system.

J

.,

12.

"iTunes Store" means Apple's online store through which Apple sells digital audio

4 and video tiles to consumers.
5

i 3.

"Labels" means BMG Music, EMI Recorded Music Holdings, Inc., Sony Music,

6 UMS Recordings, Inc., and Warner Music Inc. and any of their predecessors, successors, parents,
7 subsidiaries, affiliates, segments, divisions, operating units or business lines (foreign and domestic),

8 any of

their present or former officers, directors, administrators, agents, employees, investigators,

9 accountants, attorneys and all other persons acting or purporting to act on their behalf.

10

14.

"Meeting" means the contemporaneous presence of

any natural persons, whether in

1 I person or by teleconferencing, video conferencing, via the internet or a company intranet, or

12 otherwise, whether or not such presence was by chance or pre-arrangement, and whether or not the
13 meeting was formal or informal or occurred in connection with some other activity.
14
15.

"Online Music Store" relates to any place on the internet from which digital audio or

i 5 video files may be purchased and downloaded.
16
16.

"Portable Digital. Media Player" means any device that can be easily transported,

17 weighs less than 12 ounces, is capable of playing a digital audio file and/or digital video file, and can

18 store more than 150 music files assuming an average file size of3.0 megabytes, but does not employ

19 external media such as compact discs, cartridges, cassettes or compact flash cards.
20
21 "Apple
17.

"Security Issue" is intended to have the same meaning as is used by Apple on its
security

updates"

webpage,

found

at

22 http://support.apple.com/kb/HTI222?viewlocale=en_US.

23

18.

"Software Update" means any change, upgrade, release and/or patch provided by

24 Apple for iTunes software or iPod software.
25

26
27

28

C-05-00037-JW(RS) _ 4 _

PLAINTIFFS' RULE 30(8)(6) NOTICE OF VIDEOTAPED DEPO AND RULE 34 REQUEST FOR DOCUMENTS TO OfF APPLE, INC. RE SOFTWARE UPDATES _

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page7 of 12

II. INSTRUCTIONS
2
l.

Whenever a reference to a business appears, the reference shall mean the business

3 entity, its affiliated companies, partnerships, divisions, subdivisions, directors, employees, agents,

4 clients or other representatives of affiliated third parties.
5

2.

Privilege/Redaction Log. If any documents are within the scope of any request for
¡

6 production but are not being produced or are being produced with portions redacted, pursuant to any

l.

7 claim of privilege or confidentiality:
8

(a)

state the nature of the privilege claimed (i.e., attorney-client, work-product,

9 etc.);
10

(b)

state the name of the defendant claiming the privilege and the name of the

11 attorney, if any, with respect to whom the privilege is claimed;
12

(c)

state the facts upon which you rely as the basis for claiming any privilege as to

i 3 the specific information or document; and

14

(d)

state the name of such document; identify the type of document (i.e., letter,

15 memo, etc.); set forth the subject matter thereof; identify the person who prepared it and each person

16 (if any) who signed it; identify each person to whom it was directed, circulated or shown; and
17 identify each person now in possession of the document. If any document is produced in redacted
18 form, the word "redacted" is to be placed in the redacted section of the document.

i9

3.

The documents to be produced pursuant to these requests specifically embrace, in

20 addition to documents within your possession, custody or control, documents within the possession,

21 custody or control of any of your agents, representatives, or attorneys. Such documents also
22 embrace originals, and identical copies (whether different from the original because of notes made

23 thereon or otherwise) of the documents described in the requests.
24
4.

Destruction Log. In the event that any document called for by the requests has been

25 destroyed or discarded, that document is to be identified by stating:
26
27

(a)

the nature of the document;

(b)

any addressor or addressee:

28

C-05-00037-JW(RS) - 5 -

PLAINTIFFS' RULE 30(13)(6) NOTICE OF VIDEOTAPED DEPO AND RULE 34 REQUEST FOR DOCUMENTS TO DEF APPLE, INC. RE SOFTWARE UPDATES -

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page8 of 12

(c) any indicated or blind copies;

2
3 appendices;

(d)

the document's date, subject matter, number of pages, and attachments or

4
5

(e)
(f)

all persons to whom the document was distributed, shown or explained;

its date of destruction or discard, manner of destruction or discard; and

6
7
5.

(g)

the persons authorizing or carrying out such destruction or discard.

The following requests are continuing in nature and in the event you become aware of

8 or acquire additional information relating or referring thereto, such additional information is to be
9 promptly produced.

10 III. RELEVANT TIME PERIOD
i 1 All subject matters and requests herein refer to the Relevant Time Period from April 1,2003 12 to the present, unless otherwise specifically indicated, and shall include all documents and
i 3 information that relate to such period even though prepared or published outside of the Relevant

14 Time Period.

15 IV.

SUBJECT MATTERS

16 Pursuant to Fed. R. Civ. P. 30(b)(6), Apple shall designate and produce for deposition one or

17 more officer(s), director(s), managing agent(s), or other person(s) to testify on its behalf, regarding ..
18 the following matters:
19
i.

The genesis, form, content, ternis, and substance of each software update.
Apple's policies, procedures, and/or guidelines concerning the genesis, form, content,

20

2.

21 and substance of software updates.
22
23
3. 4.

The processes used by Apple to create and distribute software updates.

The maiiner and extent to which each software update was described or otherwise

24 communicated to those asked to accept it.

25

5. 6.

The intended and unintended effects of each software update.
Apple's intended purpose of each software update.

26
27

28

C-OS-00037-JW(RS) - 6 REQUEST FOR DOCUMENTS TO DEF APPLE, fNC. RE SOfTW ARE UPDATES -

PLAfNTIFFS' RULE 30(B)(6) NOTICE OF VIDEOTAPED DEPO AND RULE 34

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page9 of 12

7. The organizational structure andior relationship of A pple and its consultants or other

2 persons who proposed, originated, developed, managed, created, memorialized or otherwise
3 contributed to the generation of each software update.

4

g.

Apple's policies, procedures, and protocols concerning the development and

5 distribution of software updates intended to address security issues with iTunes and iPod software.

6

9.

All communications regarding security issues with iTunes and iPod software for

7 which a software update was issued.
8

10.
i i.

Apple's investigation into. s~curity issues concerning iTunes and iPod software.

9
10

All software updates created and implemented as a result of a security issue.

12.

The nature and extent of Apple's response to Real Network's introduction of Real

1 I Harmony in 2004.
12

13.

The nature and extent of any labels concerning each software update.

13 V.
14

DOCUMENT REQUESTS
i.

All documents and communications that discuss, describe, explain, address, consider,

15 analyze, summarize or otherwise memorialize the form, content, substance, or nature of each

16 software update.
17

2.

All documents and communications that discuss, describe, explain, address, analyze,

18 summarize or otherwise membrialize the effects of each software update.
19

3.

All documents and communications that discuss or otherwise memorialize the effects

20 of any software update on a competitor.
21

4.

All notes, minutes or other memorialization of any meeting attended by Apple at

22 which reference was made to the nature, purpose or effect of any software update.
23
5.

All documents and communications which propose, describe, explain, address,
Real Harmony in

24 analyze, or otherwise relate to Apple's response to Real Network's introduction of

25 2004.

26

6.

All documents and communications which propose, describe, explain, address,

27 analyze, or otherwise relate to Apple's response to security issues with iTunes and iPod Software.
28

C-05-00037-JW(RS) _ 7 _

PLAINTIFFS' RULE 30(8)(6) NOTICE OF VIDEOTAPED DEPO AND RULE 34 REQUEST FOR DOCUMENTS TO DEf APPLE, INC. RE SOFTWARE UPDATES _

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page10 of 12

ì. All communications between Apple and the labels concerning software updates.

2
3 of

8.

All documents \.vhich depict or othenvise memorialize the organizational relationship

all Apple employees or consultants who propose, originate, develop, manage, create, or otherwise

4 contribute to the generation of each update.

5 DATED: April 9,2009
6 7
8

COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP BONNY E. SWEENEY

9

655 West Broa y, Suite 1900
10
I1

San Diego, CA 92 I 01 Telephone: 619/231 - 1 058

619/231-7423 (fax)
THE KA TRIEL LA W FIRM ROY A. KATRIEL 1101 30th Street, N.W., Suite 500

12 13

Washington, DC 20007
14
15
Telephone: [phone]

202/330-5593 (fax)

Co-Lead Counsel for Plaintiffs
16

17
18

19

BONNETT, F AIRBOURN, FRIEDMAN & BALINT, P.C. ANDREW S. FRIEDMAN FRANCIS J. BALINT, JR. ELAINE A. RYAN TODD D. CARPENTER
2901 N. Central Avenue, Suite 1000

20
21

Phoenix, ~ 85012
Telephone: [phone]

602/274- 1199 (fax)
BRAUN LAW GROUP, P.e. MICHAEL D. BRAUN

22
23

12304 Santa Monica Blvd., Suite 109 Los Angeles, CA 90025
Telephone: [phone]

24
25

310/442-7756 (fax)

26 BRIAN P. MURRA Y

MURRA Y, FRANK & SAILER LLP

27 275 Madison Avenue, Suite 801
Ne\v York, NY 10016 28 Telephone: [phone] I 8

JACQUELINE SAILER

C-05-00037-JW(RS) - 8 REQUEST FOR DOCUMENTS TO DEF APPLE, me. RE SOFTWARE UPDATES _

PLAINTIFFS' RULE 30(8)(6) NOTICE OF VIDEOTAPED DEPO AND RULE 34

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page11 of 12

2 i 2/682- 1 892 (fax)
2 3

GLANCY BINKOW & GOLDBERG LLP MICHAEL GOLDBERG
l 801 Avenue of the Stars, Suite 3 l i

Los Angeles, CA 90067
4
5

Telephone: 310/20 i -9 i 50
3 i 0/20 i -9 I 60 (fax)

Additional Counsel for Plaintiffs
6
S:\CasesSD\Apple Tying\NOT00056692.doc

7
8

9
10
11

12
13

14
15

16

17
18 19

20
21

22
23

24 25

26 27
28

C-05-00037-JW(RS) _ 9REQUEST FOR DOCUMENTS TO DEF APPLE, INC. RE SOFTWARE UPDA TrS -

PLAINTIFFS' RULE JO(B)(6) NOTICE OF VIDEOTAPED DEPO AND RLLE 34

Case5:05-cv-00037-JW Document347-2

Filed03/22/10 Page12 of 12

DECLARATION OF SERVICE BY MAIL
2 I, the undersigned, declare:
3
i. That declarant is and was, at all times herein mentioned, a citizen of

the United States

4 and a resident of the County of San Diego, over the age of i 8 years, and not a party to or interested

5 party in the within action; that declarant's business address is 655 West Broadway, Suite 1900, San
6 Diego, California 92 101.

7

2.

That on April

9, 2009, declarant served the PLAINTIFFS' RULE 30(B)(6) NOTICE

8 OF VIDEOTAPED DEPOSITION AND RULE 34 REQUEST FOR DOCUMENTS TO
9 DEFENDANT APPLE, INC. REGARDING SOFTWARE UPDATES by depositing a true copy
10 thereof in a United States mailbox at San Diego, California in a sealed envelope with postage

11 thereon fully prepaid and addressed to the parties listed on the attached Service List.
12

3.

That there is a regular communication by mail between the place of mailing and the

13 places so addressed.
14 I declare under penalty of perjury that the foregoing is true and correct. Executed this 9th

15 day of April, 2009, at San Diego, California.
16 17 18

c....

¿-ìJlHOY0AL..L~ úì t S ND

19

20
21

22
23

24
25

26
,.,~
L. I

28