"The Apple iPod iTunes Anti-Trust Litigation"

Filing 758

Administrative Motion to File Under Seal Apple's Opposition to Plaintiffs' Motion to Strike 750 filed by Apple Inc.. (Attachments: # 1 Proposed Order Granting Motion to Seal, # 2 Declaration of David Kiernan in Support of Motion to Seal, # 3 Exhibit 1 - 2 to Kiernan Declaration in Support of Motion to Seal, # 4 Opposition to Plaintiffs' Motion to Strike (ECF No. 750) REDACTED, # 5 Opposition to Plaintiffs' Motion to Strike (ECF No. 750) UNREDACTED, # 6 Declaration of Kiernan in Support of Apple's Opposition, # 7 Exhibit 1 to Kiernan Declaration in Support of Apple's Opposition REDACTED, # 8 Exhibit 1 to Kiernan Declaration in Support of Apple's Opposition UNREDACTED, # 9 Proposed Order Denying Plaintiffs' Motion to Strike)(Kiernan, David) (Filed on 1/27/2014)

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Robert A. Mittelstaedt (State Bar No. 60359)
[e-mail]
Craig E. Stewart (State Bar No. 129530)
[e-mail]
David C. Kiernan (State Bar No. 129530)
[e-mail]
Amir Q. Amiri (State Bar No. 271224)
[e-mail]
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
+1.415.626.3939
Facsimile:
+1.415.875.5700
Attorneys for Defendant
APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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THE APPLE IPOD ITUNES ANTITRUST
LITIGATION

Case No. 4:05-cv-00037 YGR
[PROPOSED] ORDER DENYING
PLAINTIFFS’ MOTION TO STRIKE
THE SUPPLEMENTAL REPORT OF
KEVIN MURPHY AND ROBERT
TOPEL DATED DECEMBER 20, 2013
(ECF NO. 750)

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[Proposed] Order Denying Motion to Strike
4:05-cv-00037 YGR

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Presently before the court is Plaintiffs’ Motion to Exclude the Supplemental Report of

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Kevin M. Murphy and Robert H. Topel Dated December 20, 2013 (ECF No. 750). Having

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reviewed the papers on file and considered the relevant arguments, this Court hereby DENIES the

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motion.

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Plaintiffs’ motion violates the local rules of civil practice, which require procedural and

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evidentiary objections to be included in opposition briefs, not in separate motions. See LR 7-3(a).

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Failure to comply with these rules is grounds to waive strike or deny the objections. See Apple

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Inc. v. Samsung Elecs. Co., No. 11-cv-01846-LHK, 2011 BL 304343, *3 (N.D. Cal. Dec. 2,

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2011); City of Royal Oak Retirement Sys. v. Juniper Networks, Inc., 880 F. Supp. 2d 1045, n. 2

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(N.D. Cal. 2012); Oak Point Partners, Inc. v. Lessing, No. 11-03328 LHK, 2012 U.S. Dist.

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LEXIS 133407, *3 n.2 (N.D. Cal. Sept. 18, 2012).

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Plaintiffs’ motion is also substantively wrong. The supplemental report filed by Drs.

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Murphy and Topel is a proper supplemental disclosure under Rule 26(e), as it merely updated

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their analysis and calculations, as necessitated by the new regression models presented for the

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first time in the rebuttal report of plaintiffs’ expert. Thus, the Court finds the supplemental report

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justified. See Fed. R. Civ. P. 37(c)(1). Moreover, plaintiffs have suffered no cognizable

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prejudice because they have deposed Apple’s experts on the supplemental report, and have had

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the last word with the submission of a responsive second rebuttal by their expert. See id. Further,

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the Court finds it would be unfair for plaintiffs’ expert to testify about the new regression models

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in his rebuttal report without permitting Apple’s experts to update their analysis and calculations

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based on the new regressions.

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Even applying the factors identified by the Ninth Circuit in determining preclusion

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sanctions, plaintiffs’ motion fails. The relevant factors, outlined in Wendt v. Host Int’l, Inc., 125

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F.3d 806 (9th Cir. 1997), include: “1) the public’s interest in expeditious resolution of litigation;

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2) the court’s need to manage its docket; 3) the risk of prejudice to the [party seeking exclusion];

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4) the public policy favoring disposition of cases on their merits; [and] 5) the availability of less

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drastic sanctions.” Id. at 814. Striking the supplemental report will not hasten the end of this

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case or alleviate this Court’s calendar. Plaintiffs do not need time to depose the experts or
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[Proposed] Order Denying Motion to Strike
4:05-cv-00037 YGR

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complete a new rebuttal report—they have already done both. Denying the motion furthers the

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public policy in favor of disposing of cases on their merits because all of the expert reports are

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now before this Court in connection with Apple’s motion for summary judgment and plaintiffs’

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opposition thereto. Finally, the availability of a less drastic approach weighs in favor of denying

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the motion because plaintiffs’ have already submitted a second rebuttal report responding to

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Apple’s supplemental report, to which Apple has no objection.

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Accordingly, the Court hereby DENIES plaintiffs’ motion (ECF No. 750).

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IT IS SO ORDERED.

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Dated: ______________, 2014

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Hon. Yvonne Gonzalez Rogers

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SFI-850994v1

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[Proposed] Order Denying Motion to Strike
4:05-cv-00037 YGR