"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).

EXHIBITD

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
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Telephone: [phone]

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619/231-7423 (fax) [e-mail] [e-mail] 7 [e-mail] [e-mail]
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THE KA TRIEL LAW FIRM

ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 10 Washington, DC 20007
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Telephone: [phone]
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202/330-5593 (fax) [e-mail]
Co~ Lead Counsel for Plaintiffs

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(Additional counsel appear on signature page.)
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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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Ts 20 hi)Document Relates To: ) PLAINTIFFS' SECOND SET OF INTERROGATORIES TO DEFENDANT
ALL ACTIONS. ) APPLE, INC.

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18 LITIGATION )

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

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1 Pursuant to Rule 33 of

the Federal Rules of

Civil Procedure, Plaintiffs Somtai Charoensak,

2 Mariana Rosen, and Melanie Tucker, individually and on behalf of all others similarly situated, by
3 and through their undersigned counsel, hereby request that Defendant Apple, Inc. ("Apple") respond
4 to the following interrogatories within 30 days of the date hereof.

5 I. DEFINITIONS
6 The following definitions apply to each of

the interrogatories set forth herein and are deemed

7 to be incorporated in each of said interrogatories:
8 1. "You," "your," "yourself' or "defendant" means Apple, Inc.
9 2. "Apple" means defendant Apple, Inc. and any of

its predecessors, successors, parents,

10 subsidiaries, affiliates, segments, divisions, operating units or business lines (foreign and domestic),

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

13 3." Affirmative defense" means the specific affirmative defenses identified by Apple in

14 its Answer and Defenses to Plaintiffs' Consolidated Complaint (Dkt. No. 110), filed June 6, 2007.
15 4. "Content provider(s)" means any provider of digital audio and/or video files that

16 contracts or contracted with Apple for resale of the digital audio and/or video files through the

17 iTunes Store.
18 5. "Consolidated Complaint" means the Consolidated Complaint (Dkt. No. 107), filed
19 April

19, 2007.

20 6. "DRM" means digital rights management software and technology.
21 7. "FairPlay" means Apple's proprietary digital rights management technology.

22 8. "iTunes Store" means Apple's online music store, formally known as the iTunes

23 Music Store, through which Apple sells digital audio and video files.
24 9. "Online music store" means any place on the internet from which digital audio and/or
25 video files may be purchased and downloaded.

26 10. "iPod" refers to the portable digital media players manufactured by Apple, including,
27 but not limited to, all generations ofiPod, iPod Touch, iPod Photo, iPod Mini, iPod Nano, and iPod
28 Shuffle, that were released during the Relevant Time Period.
PLTFS' SECOND SET OF INTERROGATORIES TO DEF APPLE, INC. - C-05-00037-JW(RS) - 1 -

1 11. "Portable digital media player" means any device that can be easily transported, is

2 capable of playing a digital audio file, but does not employ external media such as compact discs,
3 cartridges, cassettes, or compact flash cards.

4 12. "Digital audio file" means a computer file regardless of format, that can be played on
5 a computer or portable digital media player.

6 13. "Digital video file" meaÌis a computer file containing video data, regardless of format,
7 that can be played on a computer or portable digital media player.

8 14. "Document(s)" is intended to be interpreted in the broadest possible sense and

9 includes, but is not limited to, all electronic data and all communications which are stored or
1 0 retrievable or recorded in any manner and also includes, without limitation, any writing or other
11 record ofinformation or images, including, but not limited to, print, handwriting, photographs, film,

12 recordings, memoranda, books, records, accounts, ledgers, vouchers, invoices, drafts, bills, charge
13 slips, letters, e-mail, compact discs, CD-

ROMs, magnetic tape, videotape, magnetic or optical disks,

14 floppy disks, PowerPoint or other presentation software systems, metadata belonging to any

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

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

17 tabulations, studies, surveys, legal complaints and other pleadings, affidavits, interrogatories, legal
18 briefs, legal motions,

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

19 contracts; agreements, diaries, telephone records, desk calendars, appointment books, circulars,
20 charts, transcripts, news releases, trade releases, advertisements, press books, teletype messages,
21 licenses, financial statements, stenographers' notebooks, punchcards, computer printouts and data,
22 telecopier or facsimile transmissions and printouts, letters of credit, stock certificates and securities.
23 The term "document" also includes preliminary drafts or revisions or copies of any such document if
24 the copy is in any way different from the original, now in your possession, custody or control, or in

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

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OF INTERROGATORIES TO DEF APPLE, INC. - C-05-00037-JW(RS) - 2-

PLTFS' SECOND SET

1 15. The phrase "burning and ripping" is used herein in the same manner as used at page 1

2 of Apple's Memorandum in Opposition to Motion for Class Certification (Dkt. No. 177), filed
3 October 17, 2008.

4 16. "Terms of Service agreements" refers to the agreements between Apple and

5 purchasers of digital audio and/or video files from the iTunes Store that states the terms governing
6 use of

the iTunes Store.

7 II. INSTRUCTIONS
8 1. Pursuant to Rule 26( c) of the Federal Rules of

Civil Procedure, these interrogatories

9 are continuing in nature so that if, after answering, you acquire additional responsive knowledge or

10 information, Plaintiffs direct that you serve supplemental answers upon Plaintiffs within seven days
11 after acquiring such additional knowledge or information.
12 2. If at any time after answering these interrogatories you determine that an answer you

13 provided was false, you must immediately notify Plaintiffs' counsel and provide amended answers

14 as soon as reasonably possible.
15 3. If you refuse to respond to any of the interrogatories based on a claim of privilege
16 pursuant to Rule 26(b )(5) of the Federal Rules of Civil Procedure, you must provide a

statement of

17 the claim of

privilege and all facts relief

upon in support of

that claim, including the parties involved,

18 any dates involved, the relevant subject matter of

the privileged material, any documents supporting

19 the privileged information, including the dates, authors, recipients, title and subject matter, and
20 present 10cation of any documents involved.. In the case of attorney work-product privilege, you
21 must also identify the

litigation for which the work-product was prepared.

22 4. If you answer any interrogatory by reference to business records pursuant to Rule
23 33(d) ofthe Federal Rules of

Civil Procedure, identify such records by Bates number and the name

24 of your employee certifying the documents as business records for purposes of answering the
25 interrogatory.

26 III. RELEVANT TIME PERIOD

27 Unless otherwise indicated, these interrogatories relate to the period between January 1,2000
28 and the present (the "Relevant Time Period"). Your responses should reflect information for the
OF INTERROGATORIES TO DEF APPLE, INC. - C-05-00037-JW(RS) - 3-

PLTFS' SECOND SET

1 entire Relevant Time Period. Where your responses relate to only a portion of

the Relevant Time

2 Period, indicate the date or dates to which your response relates.

3 iv. INTERROGATORIES
4 INTERROGATORY

NO. 9:

5 Identify all geographic markets in which you sell iPods and state all factors used to define
6 and segregate those geographic markets.
7 INTERROGATORY

NO. 10:

8 For each model of iPod, specify each product that you consider competes with that iPod
9 modeL.

10 INTERROGATORY

NO. 11:

11 State each product that you consider competes with the digital audio and/or video files

12 purchased through the iTunes Store.
13 INTERROGATORY

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NO. 12:

14 For each quarter during the relevant time period, state your market share in the portable

15 digital media player market, the digital audio file market, and the digital video file market and
16 describe the methods used to measure that market share.
17 INTERROGATORY

NO. 13:

18 State all facts upon which your denial of paragraph 18 of the Consolidated Complaint is

19 based, including, but not limited to, identifying all persons by name and address who have
20 knowledge of those facts and identify all documents that support your deniaL.

21 INTERROGATORY NO. 14:

22 State all facts upon which your denial of paragraph 54 of the Consolidated Complaint is

23 based, including, but not limited to, identifying all persons by name and address who have
24 knowledge of those facts and identify all documents that support your deniaL.

25 INTERROGATORY

NO.

15:

26 State all facts upon which your denial of paragraph 76 of the Consolidated Complaint is

27 based, including, but not limited to, identifying all persons by name and address who have
28 knowledge of those facts and identify all documents that support your deniaL.

PLTFS' SECOND SET OF INTERROGATORIES TO DEF APPLE, INC. - C-05-00037-JW(RS) - 4-

1 INTERROGATORY

NO. 16:

2 Do you contend that any content provider required that you implement FairPlay on all digital
3 audio and/or video files sold through the iTunes Store? If so, state all facts upon which you base

4 your response including, but not limited to, identifying all persons by name and address who have
5 knowledge of

those facts and identifying all documents that support your response.
NO. 17:

6 INTERROGATORY

7 Do you contend that implementing FairPlay was the least restrictive means by which you
8 could protect the intellectual property rights associated with the digital audio and/or video files sold

9 by you through the iTunes Store? If so, state all facts upon which you base your response including,
those facts
10 but not limited to, identifying all persons by name and address who have knowledge of

11 and identifying all documents that support your response.
12 INTERROGATORY

NO. 18:
"burning and ripping" does not effect the quality of

the

13 Do you contend that the process of

14 digital audio files sold through the iTunes Store? If so state all facts upon which you base your

15 response including, but not limited to, identifying all persons by name and address who have
16 knowledge of

those facts and identifying all documents that support your response.
NO. 19:
"burning and ripping" to eliminate Fairplay from digital
Service agreements throughout the entire relevant

17 INTERROGATORY

18 Do you contend that the process of

19 audio files has been permitted under the Terms of

20 time period? If so, state all facts upon which you base your response, including, but not limited to,
those facts and identifying all 21 identifying all persons by name and address who have knowledge of

22 documents that support your response.
23 INTERROGATORY

NO. 20:

24 With respect to your fourth affirmative defense wherein you allege, "(t)he plaintiffs and/or
25 others claimed to be members of

the putative class have not suffered and will not suffer any injury

26 that is cognizable under the antitrust laws," state all facts upon which this defense is based,
27 including, but not limited to, identifying allpersons by name and address who have knowledge of

28 those facts and identifying all documents that support those facts.
PLTFS' SECOND SET OF INTERROGATORIES TODEF APPLE, INC. - C-05-00037-JW(RS) - 5 -

1 INTERROGATORY

NO. 21:

2 With respect to your fifth affirmative defense in which you state, "(t)he activities of Apple
3 alleged in the Complaint do not give rise to antitrust liability because they did not result in adverse
4 effects on competition or, in the alternative, any such effects were outweighed by the proI S competitive benefits of

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the activities," state all facts upon which your defense is based, including,

6 but not limited to, identifying all persons by name and address who have knowledge of those facts

7 and identifying all documents that support those facts.
8 INTERROGATORY

NO. 22:

9 With respect to your sixth affirmative defense in which you state, "Defendant Apple has at

10 all times and in all relevant manners acted reasonably, as necessary to serve legitimate business
11 purposes, in furtherance of trade, in good faith, and with the purpose and effect of promoting,

12 encouraging, or increasing competition. Apple has not acted with the purpose or intent to suppress
13 or restrain competition," state all facts upon which your defense is based, including, but not limited
those facts and identifying
14 to, identifying all persons by name and address who have knowledge of

15 all documents that support those facts.

16 DATED: December 29,2009
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COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK

PA/2MOROACH
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PAULA M. ROACH

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655 West Broadway, Suite 1900 San Diego, CA 92101
Telephone: [phone]

619/231-7423 (fax)

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THE KA TRIEL LAW FIRM ROY A. KATRIEL 1101 30th Street, N.W., Suite 500 Washington, DC 20007
Telephone: [phone]

202/330-5593 (fax)

Co-Lead Counsel for Plaintiffs

PLTFS' SECOND SET OF INTERROGATORIES TO DEF APPLE, INC. - C-05-00037-JW(RS) - 6-

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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]

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602/274-1199 (fax)

BRAUN LAW GROUP, P.C.
MICHAEL D. BRAUN

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

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310/442-7756 (fax)

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MURRA Y, FRANK & SAILER LLP BRIAN P. MURRAY JACQUELINE SAILER 275 Madison Avenue, Suite 801 New York, NY 10016
Telephone: [phone]

212/682-1892 (fax)

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GLANCY BINKOW & GOLDBERG LLP MICHAEL GOLDBERG 180 1 Avenue of the Stars, Suite 311 Los Angeles, CA 90067
Telephone: [phone]

310/201-9160 (fax)

Additional Counsel for Plaintiffs

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PLTFS' SECOND SET OF INTERROGATORIES TO DEF APPLE, INC. - C-05-00037-JW(RS) - 7 -

DECLARATION OF SERVICE BY ELECTRONIC MAIL AND U.S. MAIL
2 I, the undersigned, declare:
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1. 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 18 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 92101.

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2.

That on December 29,2009, declarant served the PLAINTIFFS' SECOND SET OF

8 INTERROGATORIES TO DEFENDANT APPLE, INC. via Electronic Mail to the parties listed on
9 the attached Service List.

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3.

That on December 29,2009, declarant served the PLAINTIFFS' SECOND SET OF

11 INTERROGATORIES TO DEFENDANT APPLE, INC. by depositing a true copy thereof in a

12 United States mailbox at San Diego, California in a sealed envelope with postage thereon fully
13 prepaid and addressed to the parties listed on the attached Service List.

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4.

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

15 places so addressed.
16 I declare under penalty of perjury that the foregoing is true and correct. Executed this 29th
17 day of December, 2009, at San Diego, California.
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0i&\ft¥j

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-=sHONDA L. LA R&

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