In Re: Apple iPhone 3G and 3GS MMS Marketing and Sales Practices Litigation

Filing 34

Memorandum 17 by AT&T Mobility LLC on Discovery (Attachments: # 1 Exhibit A - D.E. 38 - 2010.02.23 CTO-3, # 2 Exh. B - Excerpts from Jan. 15, 2010 Hearing Transcript, # 3 Exh. C - FEMA Formaldehyde Order re Discovery Bifurcation)(Reference: 2:09-md-2116)(Roman, Tracy)

In Re: Apple iPhone 3G and 3GS MMS Marketing and Sales Practices Litigation

Doc. 34 Att. 1

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ***************************************************************** IN RE: APPLE iPHONE 3G AND 3GS MMS MARKETING AND SALES PRACTICES LITIGATION

MDL NO. 2116 NEW ORLEANS, LOUISIANA JANUARY 15, 2010, 9:30 A.M.

***************************************************************** TRANSCRIPT OF STATUS CONFERENCE HEARD BEFORE THE HONORABLE CARL J. BARBIER UNITED STATES DISTRICT JUDGE

LAW OFFICES OF SCOTT R. BICKFORD BY: SCOTT R. BICKFORD, ESQUIRE 338 LAFAYETTE STREET NEW ORLEANS, LA 70130 THE MURRAY LAW FIRM BY: STEPHEN MURRAY, ESQUIRE 650 POYDRAS STREET, SUITE 1100 NEW ORLEANS, LA 70130 CLIMACO, LEFKOWITZ, PECA, WILCOX & GARAFOL BY: JOHN R. CLIMACO, ESQUIRE 55 PUBLIC SQUARE CLEVELAND, OH 44113 DANIEL BECNEL LAW OFFICES BY: DANIEL BECNEL, ESQUIRE 106 WEST 7TH STREET RESERVE, LA 70084

Dockets.Justia.com

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FOR THE DEFENDANT:

IRWIN, FRITCHIE, URQUHART & MOORE BY: QUENTIN URQUHART, JR., ESQUIRE 400 POYDRAS STREET NEW ORLEANS, LA 70130 JONES WALKER BY: GARY J. RUSSO, ESQUIRE 600 JEFFERSON STREET, SUITE 1600 LAFAYETTE, LA 70501 CROWELL & MORING BY: KATHLEEN T. SOOY, ESQUIRE TRACY A. ROMAN, ESQUIRE 1001 PENNSYLVANIA AVENUE, NW WASHINGTON, DC 20004 MORRISON FORESTER BY: PENELOPE PREOVOLOS, ESQUIRE HEATHER A. MOSER, ESQUIRE 425 MARKET STREET SAN FRANCISCO, CA 94105

ALSO PRESENT:

BRIAN STRANGE, ESQUIRE JAMES DUGAN, ESQUIRE RONNIE PENTON, ESQUIRE DOUGLAS MOORE, ESQUIRE LAWRENCE CENTOLA, ESQUIRE DAVID CIALKOWSKI, ESQUIRE ANITA JASKOT, ESQUIRE E. KIRK WOOD, ESQUIRE TIMOTHY BLOOD, ESQUIRE PETER CAMBS, ESQUIRE DANIEL GERMAIN, ESQUIRE TIM ENGELMEYER, ESQUIRE MAX MARX, ESQUIRE JOEL SCHWARTZ, ESQUIRE PATRICK WARNER, ESQUIRE FRANK PISCITELLI, ESQUIRE GARY DOUGLAS, ESQUIRE VIRGINIA ANELLO, ESQUIRE MICHAEL ECUYER, ESQUIRE J. ANDREW MEYER, ESQUIRE

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OFFICIAL COURT REPORTER:

CATHY PEPPER, CRR, RMR, CCR 500 POYDRAS STREET, ROOM B406 NEW ORLEANS LA 70130 [phone] TRANSCRIPT

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY. PRODUCED BY COMPUTER.

INDEX

AGENDA

PAGE

INTRODUCTION OF COUNSEL................................ FILING OF ADDITIONAL COMPLAINTS........................ MASTER COMPLAINT....................................... SCOPE OF DISCOVERY..................................... AMENDMENT OF THE PLEADINGS............................. FILING RESPONSIVE PLEADINGS OR INITIAL MOTIONS......... TIMING AND SCOPE OF DISCOVERY.......................... DESIGNATING LIAISON COUNSEL ON THE DEFENSE SIDE........ DATE OF NEXT STATUS CONFERENCE IS FRIDAY, MARCH 12TH, AT 9:30................................................

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this question, there will be discovery on the arbitration issue as well. THE COURT: arbitration issue? MR. BICKFORD: THE COURT: Well, if, in fact, the arbitration -What kind of discovery would you have an

Wouldn't that be a --- is unconscionable under the terms of

MR. BICKFORD:

the law; in other words, if, in fact, where the arbitration -THE COURT: factual issue? Wouldn't that be a legal issue, not a

I'm trying to get some understanding of what kind

of discovery you would need on that. MR. BICKFORD: For instance, I don't know what

agreements -- AT&T and Apple have a monopoly with regard to the iPhone. I don't know what kind of joint agreements they have I

between themselves which may abrogate the arbitration, itself. don't know what kind of agreements they have or memos that go back and forth with regard to arbitration.

I don't know how they

communicated in the arbitration clause to individual consumers, whether or not that was done electronically, whether or not it was done five days after people bought the phone already. of the agreements -THE COURT: I don't know enough about this, but you buy Do you get A lot

one of these phones, you sign some sort of agreement? an agreement? MR. BICKFORD: No, it's done electronically.

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THE COURT:

Every time I go on the Internet to do

anything, I've got to say "I accept," and you accept, and God knows what you're accepting when you accept something, but everybody just says "I accept" now, I guess, if you want to get through the web page. MR. BICKFORD: But I can buy the phone at an Apple store

and then go and sign up with AT&T separately. THE COURT: What I'm saying, one way or another, you're It's in the agreement. Whatever

signing up for some agreement. it is, it is.

I just don't understand what kind of discovery It seems to me they could tee that

you're going to need on that. up as a legal issue.

Once they tee it up and you file your

opposition, you'll show there is a need for some limited discovery. I can't envision it now, but maybe you're right. There has been extensive discovery, for

MR. BICKFORD:

instance, in the Eleventh Circuit in a similar AT&T arbitration issue granted by the Court there because there are conscionability issues with regard to the arbitration clause, how it's communicated to people, where it is, how it affects people, whether they have the opportunity, whether or not it's binding, whether or not it is, in fact, an agreement that they have in place that I have a choice of, given the consumer product I'm buying. So there is a variety of issues that need to be discovered with regard to the case. As I said, whether or not

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there are other legal agreements that go between the two companies in terms of the way they set this up -- because Apple does not have an arbitration agreement contained in their contracts. AT&T claims they do, in certain cases. Do they not? Do they have

it for all the people here?

It is something that

is going to raise a number of factual issues in order to brief. I've looked at the law. The laws that the courts

have looked at in arbitration cases are heavily fact-dependent in terms of whether or not the arbitration agreement is unconscionable in terms of how it's applied to individual consumers. That's part of the track of discovery. The other

part of the track of discovery becomes, you know, in terms of -so that we're not wasting a half a year and not doing any discovery is going forward in terms of class certification issues as well as issues on the merits. THE COURT: MR. RUSSO: Let me hear from the other side. Your Honor, on behalf of ATTM, you have

actually articulated our position in what we've suggested to Scott earlier. that regard. We actually thought we had made some progress in

Our suggestion, Your Honor, is allow us to file our We'll meet and confer Because we're not

motion to enforce the arbitration clause.

with the plaintiffs to talk about discovery.

suggesting right now that there is absolutely no way any discovery is going to be conducted, but we'd like to hear what

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they have to say.

They'll see our briefs.

They can review them.

We'll meet and confer, and if we can't agree, we'll come back to Your Honor for some direction on that point. Rather than have that discussion now, we would like to get our motion filed, have our discussion with them and see if there really is an issue. MR. BICKFORD: There may not be one.

Which is why we asked the Court for the

briefing schedule on these issues with regard to the scope and need for discovery, because I think that there are several complicated issues that we would like to apprise the Court of more fully. We think we can do -How much time do you want to do that?

THE COURT:

That's probably a good suggestion. MR. BICKFORD: I think there is a suggested time

schedule that we put in the our brief, which is essentially mid-February basis, we both file briefs simultaneously with the Court and then some time shortly thereafter, we file replies to each side's brief so that the issue is laid out before the Court, and then at a monthly status conference, the Court, having had a chance to review it, we can either argue our positions or the Court could ask us questions with regards to its concerns about them. MR. RUSSO: Your Honor, our only concern with that is we

have not suggested there is not going to be any discovery, but we hope to get the pleadings amended, see what the issues are,

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determine what motions we need to file.

At which point, we sit

down and confer with plaintiffs on what discovery is necessary. THE COURT: I kind of sense that you all know what the This is not that It's a

issues are now from what's been filed.

complicated a case in terms of what's alleged here. pretty simple, straightforward case.

It's alleged that the

defendants misrepresented some feature of this phone when they marketed it. I think you know what the issues are. was all fully disclosed. You said it

It's not a complicated case to me.

We've got all of these lawyers here, but it boils down to, it seems to me, a pretty simple, straightforward -- there may be some difficult legal issues, like arbitration and some of these other issues, but the case, itself, seems pretty basic and simple to me. MR. URQUHART: Your Honor, if I could just be heard just

briefly at this point, and I'm going to have Ms. Preovolos address it specifically. I believe there are some factual issues

that are worth getting clarified early before we go down the discovery path, and I'll let Ms. Preovolos -THE COURT: Well, then, it seems to fit with what

Mr. Bickford is suggesting is that each side get, I think he's asking for about 30 days from now to file briefs on these various issues, to lay out your positions, and certainly I would encourage you all to meet and talk to each other, to see to what

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REPORTER'S CERTIFICATE

I, Cathy Pepper, Certified Realtime Reporter, Registered Merit Reporter, Registered Professional Reporter, Certified Court Reporter of the State of Louisiana, Official Court Reporter for the United States District Court, Eastern District of Louisiana, do hereby certify that the foregoing is a true and correct transcript, to the best of my ability and understanding, from the record of the proceedings in the above-entitled and numbered matter.

s/Cathy Pepper Cathy Pepper, CRR, RMR, CCR Official Court Reporter United States District Court