"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)
1
** E-filed May 6, 2011 **
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
For the Northern District of California
NOT FOR CITATION
8
United States District Court
7
SAN JOSE DIVISION
11
THE APPLE IPOD ITUNES ANTITRUST
LITIGATION,
12
ORDER DENYING AS MOOT
PLAINTIFFS’ MOTION TO COMPEL
PRODUCTION OF DATA AND
DENYING PLAINTIFFS’ REQUEST
FOR FEES AND COSTS
13
14
15
16
No. C05-00037 JW (HRL)
____________________________________/
[Re: Docket No. 556]
Plaintiffs in this class action are purchasers of Apple, Inc.’s (“Apple”) iPods and of digital
17
music files from Apple’s iTunes Store who allege that Apple unlawfully maintained duel
18
monopolies in the markets for portable digital media players and digital audio downloads by using
19
pretextual updates to its FairPlay DRM and other software that were intended to, and had the effect
20
of, excluding competitors from these markets. See Docket No. 322.
21
On March 29, 2011, Plaintiffs filed a motion to compel the production of certain reseller
22
data. Docket No. 556. The parties had been negotiating over the production of this data for some
23
time. See id. at 4-5. On April 1, 2011, Apple produced the requested data. Docket No. 585 at 3. It
24
produced corrected data on April 11, 2011. Id.
25
At oral argument, the parties agreed that Apple has produced the data at issue in Plaintiffs’
26
motion to compel. Apple also represented that Plaintiffs’ questions about that data, to the extent they
27
have any, will be answered promptly, and the Court expects as much. Thus, Plaintiffs’ motion to
28
compel the production of data is DENIED as moot.
In their reply brief, though, Plaintiffs’ say that, under Federal Rule of Civil Procedure 37,
1
2
they are entitled to their reasonable expenses incurred in making their motion. Docket No. 613 at 1-
3
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:
4
5
6
7
(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.
8
9
For the Northern District of California
United States District Court
10
11
12
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
13
14
their reply brief,1 Plaintiffs’ request will not be granted because Apple’s failure to produce the data
15
sooner appears to be substantially justified. At the motion hearing, Apple plausibly explained that it
16
believed that the data sought by Plaintiffs only existed in a location from which it would have been
17
extremely costly to extract. In order to avoid unnecessary expense, Apple looked for the data in
18
other locations from which extraction would be cheaper. After Plaintiffs’ filed their motion to
19
compel, Apple located the data in such a location, and produced it forthwith. Plaintiffs suggest that
20
Apple purposefully delayed its search for improper reasons, but this suggestion is unpersuasively
21
conclusory. Plaintiffs’ request for attorney’s fees and costs is DENIED.
IT IS SO ORDERED.
22
23
Dated: May 6, 2011
24
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE
25
26
1
27
28
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.
2
1
C05-00037 JW (HRL) Notice will be electronically mailed to:
2
Alexandra Senya Bernay
Alreen Haeggquist
Andrew S. Friedman
Bonny E. Sweeney
3
4
5
Brian P Murray
Carmen Anthony Medici
Caroline Nason Mitchell
6
7
8
9
For the Northern District of California
United States District Court
10
11
12
13
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
14
Todd David Carpenter
xanb@rgrdlaw.com
alreenh@zhlaw.com, judyj@zhlaw.com
afriedman@bffb.com, khonecker@bffb.com, rcreech@bffb.com
bonnys@rgrdlaw.com, christinas@rgrdlaw.com,
E_file_sd@rgrdlaw.com
bmurray@murrayfrank.com
cmedici@rgrdlaw.com, slandry@rgrdlaw.com
cnmitchell@jonesday.com, ewallace@jonesday.com,
mlandsborough@jonesday.com
cestewart@jonesday.com, mlandsborough@jonesday.com
dkiernan@jonesday.com, lwong@jonesday.com
eryan@bffb.com, nserden@bffb.com
fbalint@bffb.com
griley@omm.com, cchiu@omm.com, lperez@omm.com
helenz@zhlaw.com
jsailer@murrayfrank.com
jstoia@rgrdlaw.com
service@braunlawgroup.com
service@braunlawgroup.com, clc@braunlawgroup.com
michaelscott@jonesday.com, amhoward@jonesday.com
ramittelstaedt@jonesday.com, mlandsborough@jonesday.com
rak@katriellaw.com, rk618@aol.com
tkennedy@murrayfrank.com
tmerrick@rgrdlaw.com, e_file_sd@rgrdlaw.com,
e_file_sf@rgrdlaw.com
tcarpenter@bffb.com, pjohnson@bffb.com, rcreech@bffb.com
15
16
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.
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?