"The Apple iPod iTunes Anti-Trust Litigation"

Filing 413

Declaration of David Kiernan in Support of Apple Inc.'s Administrative 412 Motion to Shorten Time filed by Apple Inc.. (Kiernan, David) (Filed on 12/27/2010) Modified on 12/28/2010 (counsel failed to properly link to motion.)(cv, COURT STAFF).

"The Apple iPod iTunes Anti-Trust Litigation"

Doc. 413

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Robert A. Mittelstaedt #60359 [e-mail] Craig E. Stewart #129530 [e-mail] David C. Kiernan #215335 [e-mail] Michael T. Scott #255282 [e-mail] JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

THE APPLE iPOD iTUNES ANTITRUST LITIGATION

Case No. C 05-00037-JW (HRL) [CLASS ACTION] DECLARATION OF DAVID C. KIERNAN IN SUPPORT OF APPLE INC.'S ADMINISTRATIVE MOTION TO SHORTEN TIME

I, David C. Kiernan, under penalty of perjury, declare as follows: 1. I am an attorney with the law firm of Jones Day, counsel of record for Defendant

Apple Inc. I am an active, licensed member of the State Bar of California. I make this declaration in support of Apple's Administrative Motion to Shorten Time for Briefing and Hearing Defendant's Motion to Compel. I submit this declaration based on personal knowledge. 2. On October 27, 2010, Apple served Plaintiffs with 22 interrogatories and six

requests for production of documents. The interrogatories asked for facts supporting specific contentions in Plaintiffs' amended complaint. The six document requests sought documents
DECL. OF DAVID C. KIERNAN ISO APPLE'S ADMIN. MOT. TO SHORTEN TIME., CASE NO. C 05-00037-JW (HRL)

Dockets.Justia.com

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relating to their contentions and their denial of companion requests for admissions. Plaintiffs failed to provide substantive answers to 20 of the 22 interrogatories or to produce documents in response to three document requests. The parties have met and conferred regarding these requests, but have reached an impasse regarding the timing of Plaintiffs' responses that requires Apple to move to compel. 3. On December 24, 2010, I discussed the outstanding discovery with Plaintiffs'

counsel, Alexandra Bernay. During the call, Ms. Bernay said that she believed that a motion to compel would be unnecessary because Plaintiffs will supplement and provide complete responses to all of the outstanding discovery. With respect to the majority of the outstanding interrogatories, Ms. Bernay represented that Plaintiffs will provide complete responses by March 28, 2011, the due date for Apple's reply in support of its motion for summary judgment. Plaintiffs' only basis for not providing responses sooner is that they purportedly need three additional months to review documents recently produced by Apple and draft the responses. Thus the only remaining dispute is over timing. I explained that Apple would still file a motion to compel due to the dispute over timing and to preserve its right to move to compel given that such motions must be filed by December 27, 2010. 4. On December 9, 2010, Apple filed with this Court a Motion for Protective Order

Preventing the Deposition of Steve Jobs, which is currently scheduled for hearing on January 18, 2011. On December 22, 2010, Apple asked Plaintiffs to stipulate to shorten time for Apple's Motion to Compel so that it could be heard by the Court at the same time as Apple's Motion for Protective Order. Plaintiffs would not consent. 5. Attached as Exhibit A is a true and accurate copy of an email from Alexandra

Bernay stating that Plaintiffs would not consent to Apple's request to shorten time. 6. Over the course of this case, the parties have stipulated to various briefing

schedules. I am unaware of Apple requesting an order to shorten time for briefing on discovery or other issues in this case. 7. The requested time modification would enable this Court to hear Apple's Motion

for Protective Order and Motion to Compel on the same date, a solution that will spare time and -2DECL. OF DAVID C. KIERNAN ISO APPLE'S ADMIN. MOT. TO SHORTEN TIME., CASE NO. C 05-00037-JW (HRL)

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expense for both parties and the court. I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and correct. This declaration was executed on December 27, 2010, in Lincoln, Nebraska.

/s/ David C. Kiernan David C. Kiernan

SFI-657900v1

-3-

DECL. OF DAVID C. KIERNAN ISO APPLE'S ADMIN. MOT. TO SHORTEN TIME., CASE NO. C 05-00037-JW (HRL)

Exhibit A

Subject:
From: To: History:

RE: Potential motion to compel
Xan Bernay Michael Scott, David Kiernan

1212212010 03:39 PM

This message has been forwarded.

We w i l l n o t a g r e e t o s h o r t e n t i m e f o r d e f e n d a n t ' s p o t e n t i a l m o t i o n t o compel.

Xan -----Original Message----From: Michael Scott [mailto:[e-mail]] S e n t : W e d n e s d a y , D e c e m b e r 2 2 , 2 0 1 0 1 : 3 8 PM To: Xan Bernay; David Kiernan Subject: Potential motion to compel Xan, While Apple hopes i t will be unnecessary, i t recognizes that a motion to compel discovery responses from P l a i n t i f f s may be needed. Will plaintiffs agree to shorten time regarding the motion so that i t could be heard by Judge Lloyd on the same day as Apple's motion for a protective order regarding Steve Jobs? Thank you, Mike T h i s e - m a i l ( i n c l u d i n g a n y a t t a c h m e n t s ) may c o n t a i n i n f o r m a t i o n t h a t i s private, confidential, or protected by attorney-client or other privilege. I f you received t h i s e-mail in error, please delete i t from your system without copying i t and notify sender by reply e-mail, so that our records can be corrected.

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