"The Apple iPod iTunes Anti-Trust Litigation"

Filing 367

REDACTION to 366 Redacted Document Declaration of Thomas R. Merrick in Support of Motion for Additional Discovery Pursuant to Rule 56(f) by Melanie Tucker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Merrick, Thomas) (Filed on 4/26/2010)

1 ROBBINS GELLER RUDMAN & DOWDLLP 2 JOHN 1. 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]

619/231-7423 (fax)
6 [e-mail]

[e-mail]
7 [e-mail]

[e-mail]
8
THE KA TRIEL 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

14

UNITED STATES DISTRICT COURT
15

NORTHERN DISTRICT OF CALIFORNIA
16

SAN JOSE DIVISION

is 20Th) Document Relates To: )SUPPORT OF THOMAS R. FOR MERRICK IN DECLARATION OF MOTION

19 )

18 LITIGATION )

17

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

ALL ACTIONS. ) ADDITIONAL DISCOVERY PURSUANT
Judge: Date: Time: Location:

21 ) TO RULE 56(t)

22
23

Hon. James Ware May 10,2010 9:00 am 8, 4th Floor

24

REDACTED
25

26 27 28

520777 1

1 I, THOMAS R. MERRICK, declare as follows:
2
1.

I am an attorney duly licensed to practice before all of the courts of the State of

3 California. I am an associate at the law firm of Robbins Geller Rudman & Dowd LLP, Co-Lead
4 Counsel for Plaintiffs in this action. I make this declaration on personal knowledge in support of
5 Plaintiffs' motion for additional discovery pursuant to Rule 56(t) of the Federal Rules of Civil

6 Procedure.

7

2.

I have personal knowledge of the procedural history of this action, the scope of

8 discovery Plaintiffs require in order to fully respond to Apple's summary judgment motion, and the
9 reasons the discovery is necessary. I also have personal knowledge of

the parties' meet and confer

10 efforts.
11
12 of

3.

On December 28,2009, Plaintiffs served their Second Set of

Requests for Production
Paula M. Roach Pursuant to 56(f)

Documents and Second Set ofInterrogatories. Declaration of

13 ofthe Rules of Civil Procedure in Support of

Plaintiffs ' Opposition to Apple's Motion to Dismiss or,

14 Alternatively, for Summary Judgment ("Roach Decl."), ~13. On February 28, 2010, the Court

15 directed the parties that discovery was open and reaffirmed that "Plaintiffs may proceed with

16 discovery at this time." Dkt. No. 324 at 2; see also Roach Dec!., ~14.
17

4.

Despite its duty to produce responsive documents to all ofthe requests, Apple refused

18 to do so until Plaintiffs specified which discovery was needed to respond to Apple's motion for

19 summary judgment. On February 26,2010, during a telephonic meet and confer, Apple stated that it
20 was not going to respond to all of

the requests in Plaintiffs' second set of discovery because it was

21 still of

the opinion that discovery should be stayed pending the Court's ruling on Apple's dispositive

22 motion. Plaintiffs disagreed with this position but in an effort to move discovery forward

23 expeditiously, identified the discovery requests for which responsive discovery was required to

24 provide an adequate response.
25
26 end of

5.

Apple has stated that production concerning these requests will be completed by the

May, 2010.
6.

27

On March 22, 2010, the day Plaintiffs filed their opposition to Apple's alternative

28 motion for summary judgment, Apple produced documents related to a subset of Plaintiffs' Rule
520777_1

DECL OF THOMAS R. MERRICK IN SUPPORT OF PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION FOR ADDITIONAL DISCOVERY PURSUANT TO RULE 56(F) - C-05-00037-JW(HRL)

-1-

1 30(b)(6) document requests served on April

9, 2009. Apple represented that this was the last batch

2 of documents responsive to the subset of30(b )(6) requests. However, on April 21,2010, Plaintiffs
3 received a production of an additional 147 pages of documents responsive to these requests.

4

7.

Plaintiffs have completed review of

the Rule 30(b)(6) production to date and have

5 sought production of

additional documents pursuant to the original requests, including information

6 concerning Apple's understanding of how Harmony works technically; specifications, design

7 documents and diagrams regarding those changes in FairPlay that broke Harmony; documents that
8 describe the relationship between iTunes software updates and iPod firmware updates; documents

9 that indicate how certain of Apple's observations concerning Harmony affected the FairPlay

10 redesign; source code related to iTunes software updates 4.6 and 4.7; and source code related to

11 iTunes software updates (other than 4.6 and 4.7) and iPod firmware updates that addressed the
12 software that Apple describes as "hacks." On April 22, 2010, during a meet and confer, Apple
13 indicated that it would consider producing some of

this information related to the FairPlay redesign

14 in iTunes 4.7. The parties continue to meet and confer on the issue. However, at this point, it is
15 unclear when Apple's Rule 30(b)( 6) related production will be complete.
16
8.

On April 5, 2010, Apple produced nine additional amendments to the original
requests, served on December

17 contracts with the major labels in response to Plaintiffs' second set of

18 28, 2009. To date, Apple has not produced any additional communications with the labels

19 concerning the contracts.
20
9.

On April 8,2010, Apple produced two contracts between Apple and Motorola in
requests, served on December 28,2009.

21 response to Plaintiffs' second set of

22
23

24
25

26

27
28
520777_1

DECL OF THOMAS R. MERRICK IN SUPPORT OF PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION FOR ADDITIONAL DISCOVERY PURSUANT TO RULE 56(F) - C-05-00037-JW(HRL)

-2-

1

2
3

4
5

11. Attached hereto are true and correct copies of

the following documents:

Exhibit A:
Exhibit B:

Letter from Thomas Merrick to Robert Mittelstaedt, dated June 18, 2009 (portions filed under seal);
Email between Paula Roach and David Kiernan, dated August 3,2009; and

6 7
Exhibit C:

Letter from Thomas Merrick to David Kiernan, dated April 19, 2010
(portions filed under seal).

8

9
10

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed this 26th day of April, 2010, at San Diego, California.

11

12
13

s/ Thomas R. Merrick THOMAS R. MERRICK

14
15

16 17 18 19

20
21
22

23

24
25

26
27
28
520777 1

DECL OF THOMAS R. MERRICK IN SUPPORT OF PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION FOR ADDITIONAL DISCOVERY PURSUANT TO RULE 56(F) - C-05-00037-JW(HRL) - 3 -

CERTIFICATE OF SERVICE
I hereby certify that on April 26, 2010, I electronically filed the foregoing with the Clerk of

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

I certify under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on April 26, 2010.
s/ Thomas R. Merrick Thomas R. Merrick

ROBBINS GELLER RUDMAN

&DOWDLLP
655 West Broadway, Suite 1900 San Diego, CA 92101-3301
Telephone: [phone]

619/231-7423 (fax)

E-mail:

[e-mail]

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