"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)

EXHIBIT C
Redacted

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1

Robbins Geller
Atlanta

Rudman & Dowd LLP

Boca Raton

Melville New York

Philadelphia
San Diego

San Francisco Washington, DC

Thomas R. Merrick [e-mail]
April

19 2010

VIA E-MAIL &U.S.MAIL

David C. Kiernan
Jones Day

555 California Street, 26th Floor
San Francisco, CA 94104

Re: The Apple iPod iTunes Anti- Trust Litigation,
No. C-05-00037-JW (N.D. CaL.)

Dear David:

On March 22, 2010, Plaintiffs received Apple's last production responsive to the initially agreed upon categories of documents pursuant to Plaintiffs' Rule 30(b)(6) deposition notice 9, 2009. As you may recall, after several meet and related document requests served on April and confers, the parties agreed that Apple would initially produce a subset of documents

concerning: (1) updates to FairPlay that related to competitors' attempts to create
interoperability; (2) documents sufficient to identify the relevant software updates; (3)
Real

Networks' Harmony; and (4) communications with the record labels regarding the

software the relevant software updates. In total, Plaintiffs have received approximately 1,000

documents (totaling 3,700 pages) relevant to these categories.
Plaintiffs have reviewed Apple's this production and found the following deficiencies:
(1) Apple's production is limited to internal emails, email attachments and two

internal instant messages. Notably missing are notes, minutes or other memorializations of meetings attended by Apple concerning the relevant software updates. However. there is

evidence that such meetings took place.
Redacted

While at least some of the email correspondence concerning the existence of these meetings was produced, no minutes, notes, or other memorializations of the meetings were produced. Additionally, to the extent other internal meetings or meetings with other third parties took place concerning the software updates, Plaintiffs are entitled to these documents. Please produce accordingly.

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David C. Kiernan April 19 2010
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(2) Additionally, Apple has not produced any notes, instructions, memoranda or

other communications provided to developers or other persons responsible for creating and
implementing the software updates. Plaintiffs find it hard to believe that separate and apart

from email correspondence, all other communications at Apple concerning the software
updates were oraL. Please produce any documents that reflect these communications.
(3) Moreover, it seems that the focus of the document production is related to

iTunes software updates. Plaintiffs also sought production of documents related to the
relevant iPod updates. The agreed upon search terms should have captured these documents.

Please confirm that these documents were not withheld from production. If they were, please
produce accordingly.

Redacted

Apple agreed to produce all documents having to do with RealNetworks, however, this communication was not produced. Please produce accordingly.
Although the parties agreed that Apple would produce the subset of responsive
documents described above, Plaintiffs repeatedly reserved their rights to seek response to all of the document requests. See 6/18/09 Letter from Merrick to Mittelsteadt, at 1; 813/09 Email

from Roach to Kiernan. Accordingly, in light of Apple's pending motion and after review of the current production, Plaintiffs seek the following additional documents regarding the iTunes and iPod updates pursuant to the Rule 30(b)(6) related document requests:

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Robbins Geller
Rudman & Dowd LLP

David C. Kiernan

April 192010
Page 3

(A) Documents concerning Apple's understanding of how Harmony works. This would include internal emails, to the extent not produced, memos, instructions, notes, and
documents concerning Harmony's code;
(B) Specifications, design documents, and diagrams regarding those changes to

FairPlay that broke Harmony. This would include any changes to iTunes software, iPod
firmware, or QuickTime, to the extent these changes were made. For example, if the FairPlay change required updates to iTunes and the iTunes Store and iPod firmware and QuickTime,
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then we want documents that address all of those topics;
(C) Documents that describe the relationship between iTunes software updates and iPod firmware updates; Redacted
(D)

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(E)

Code related to iTunes software updates 4.6 and 4.7; and

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(F) Code related to ˇTunes software updates (other than 4.6 and 4.7) and iPod
firmware updates that addressed "hacks."
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As the date for Plaintiffs' related Rule 30(b)(6) deposition is rapidly approaching,

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Plaintiffs seek production of the above documents as soon as possible. Please let us know if you have any questions.

~
TRM:hsb
cc: Bonny Sweeney (via email)
Paula Roach (via email)

Very truly yours,
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THOMAS R. MERRIC

Robert A. Mittelstaedt (via email)
Michael T. Scott (via email)

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