"The Apple iPod iTunes Anti-Trust Litigation"

Filing 625

ORDER DENYING AS MOOT Plaintiffs' Motion to Compel Production of Date (Docket No. 556 ) and DENYING Plaintiffs' Request for Fees and Costs. Signed by Magistrate Judge Howard R. Lloyd on 5/6/2011. (hrllc1, COURT STAFF) (Filed on 5/6/2011)

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** E-filed May 6, 2011 **

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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THE APPLE IPOD ITUNES ANTITRUST
LITIGATION,

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ORDER DENYING AS MOOT
PLAINTIFFS’ MOTION TO COMPEL
PRODUCTION OF DATA AND
DENYING PLAINTIFFS’ REQUEST
FOR FEES AND COSTS

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No. C05-00037 JW (HRL)

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[Re: Docket No. 556]

Plaintiffs in this class action are purchasers of Apple, Inc.’s (“Apple”) iPods and of digital

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music files from Apple’s iTunes Store who allege that Apple unlawfully maintained duel

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monopolies in the markets for portable digital media players and digital audio downloads by using

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pretextual updates to its FairPlay DRM and other software that were intended to, and had the effect

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of, excluding competitors from these markets. See Docket No. 322.

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On March 29, 2011, Plaintiffs filed a motion to compel the production of certain reseller

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data. Docket No. 556. The parties had been negotiating over the production of this data for some

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time. See id. at 4-5. On April 1, 2011, Apple produced the requested data. Docket No. 585 at 3. It

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produced corrected data on April 11, 2011. Id.

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At oral argument, the parties agreed that Apple has produced the data at issue in Plaintiffs’

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motion to compel. Apple also represented that Plaintiffs’ questions about that data, to the extent they

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have any, will be answered promptly, and the Court expects as much. Thus, Plaintiffs’ motion to

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compel the production of data is DENIED as moot.

In their reply brief, though, Plaintiffs’ say that, under Federal Rule of Civil Procedure 37,

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they are entitled to their reasonable expenses incurred in making their motion. Docket No. 613 at 1-

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2. Rule 37 states:
If [a] motion is granted — or if the disclosure or requested discovery is provided after
the motion was filed — the court must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the movant’s reasonable expenses
incurred in making the motion, including attorney's fees. But the court must not order
this payment if:

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(i)

the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;

(ii)

the opposing party’s nondisclosure, response, or objection was substantially
justified; or

(iii)

other circumstances make an award of expenses unjust.

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For the Northern District of California

United States District Court

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FED. R. CIV. P. 37(a)(5)(A).
In addition to the fact that Plaintiffs’ request for fees and costs was raised for the first time in

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their reply brief,1 Plaintiffs’ request will not be granted because Apple’s failure to produce the data

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sooner appears to be substantially justified. At the motion hearing, Apple plausibly explained that it

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believed that the data sought by Plaintiffs only existed in a location from which it would have been

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extremely costly to extract. In order to avoid unnecessary expense, Apple looked for the data in

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other locations from which extraction would be cheaper. After Plaintiffs’ filed their motion to

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compel, Apple located the data in such a location, and produced it forthwith. Plaintiffs suggest that

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Apple purposefully delayed its search for improper reasons, but this suggestion is unpersuasively

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conclusory. Plaintiffs’ request for attorney’s fees and costs is DENIED.
IT IS SO ORDERED.

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Dated: May 6, 2011

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HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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This District’s civil local rules require that when, in connection with a dispute about disclosure or
discovery, a party moves for an award of attorney fees or other form of sanction under Rule 37, the
motion must be separately filed and noticed for hearing in accordance with Civil Local Rule 7-2.
See Civ. L.R. 7-8, 37-4. Plaintiffs did not adhere to these rules, which deprived Apple of an
opportunity to present its side of the story until the motion hearing.
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C05-00037 JW (HRL) Notice will be electronically mailed to:

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Alexandra Senya Bernay
Alreen Haeggquist
Andrew S. Friedman
Bonny E. Sweeney

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Brian P Murray
Carmen Anthony Medici
Caroline Nason Mitchell

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For the Northern District of California

United States District Court

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Craig Ellsworth Stewart
David Craig Kiernan
Elaine A. Ryan
Francis Joseph Balint, Jr
George A. Riley
Helen I. Zeldes
Jacqueline Sailer
John J. Stoia , Jr
Michael D Braun
Michael D. Braun
Michael Tedder Scott
Robert Allan Mittelstaedt
Roy Arie Katriel
Thomas J. Kennedy
Thomas Robert Merrick

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Todd David Carpenter

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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