United States Of America v. Apple Inc.

Filing 1

CASE TRANSFERRED IN from the United States District Court - Western District of Washington at Seattle; Case Number: 12-mc-186. Original file certified copy of transfer order and docket entries received.Document filed by Amazon.Com.(sjo) (Additional attachment(s) added on 10/19/2012: # 1 Exhibit, # 2 Exhibit) (sjo). (Additional attachment(s) added on 10/19/2012: # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit) (sjo).

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Case 2:12-mc-00186-MJP Document 3 Filed 09/17/12 Page 1 of 4 Chief Judge Marsha J. Pechman 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 8 9 IN RE ELECTRONIC BOOKS ANTITRUST LITIGATION NOTICE OF MULTIDISTRICT LITIGATION 10 11 12 Case No. 12-mc-00186-MJP Action Pending in: United States District Court, Southern District ofNew York (11-md-02293-DLC) 13 14 15 16 Amazon.com, Inc. ("Amazon") moved on Friday to quash a non-party subpoena served on it by defendants in a consolidated multidistrict litigation ("MDL") pending before The Honorable Denise Cote in the Southern District ofNew York. In a highly confidential 17 submission, defendants requested permission from Judge Cote, also on Friday, to move to 18 19 compel Amazon's compliance with that same subpoena. Defendants respectfully request that 20 this Court transfer Amazon's motion to Judge Cote so that it can be considered with related 21 issues in the MDL. 22 23 24 It is common for the court handling an MDL litigation to resolve discovery disputes arising from subpoenas served in other districts. Federal law provides that an MDL judge may "exercise the powers of a district judge in any district for the purpose of conducting pretrial 25 depositions in such coordinated or consolidated pretrial proceedings." 28 U.S.C. ยง 1407(b). The 26 NOTICE OF MULTIDISTRICT LITIGATION- 1 CASE NO. 12-MC-00186-MJP Case 2:12-mc-00186-MJP Document 3 Filed 09/17/12 Page 2 of 4 vast majority of federal courts to consider the issue have interpreted Section 1407(b) as 2 3 conferring jurisdiction on the MDL judge over disputes relating to non-party document subpoenas. See., e.g., U.S. ex. rei. Pogue v. Diabetes Treatment Ctrs. ofAmerica, Inc., 444 F.3d 4 462, 469 n. 4 (6th Cir. 2006) ("the rationale underlying the MDL statute ... requires the 5 6 conclusion that Section 1407(b)'s grant of authority applies to both deposition subpoenas and 7 documents-only subpoenas"); In re Welding Rod Prods. Liab. Litig., 406 F. Supp. 2d 1064, 8 1066-7 (N.D. Cal. 2005) (transferring motion to quash document subpoena to MDL judge, who 9 was "readily familiar with the underlying issues" and explaining that "most courts" apply 10 11 Section 1407(b) to document subpoenas); In re Subpoenas Served on Wilmer, Cutler & Pickering and Goodwin Proctor LLP, 255 F. Supp. 2d 1, 2 (D.D.C. 2003) (remitting motion to 12 13 14 quash subpoena duces tecum to MDL judge, who was "already familiar with [the] massive litigation" and had consented to hearing motions to quash). 1 The sole case cited by Amazon, 15 SEC v. CMKM Diamonds, Inc., 656 F.3d 829 (9th Cir. 2011), is inapposite because it did not 16 involve an MDL and has nothing to do with Section 1407(b). 17 18 There are clear efficiencies in having a single court adjudicate discovery disputes in an MDL such as this, involving 30 different actions from 3 different districts. Furthermore, Judge 19 Cote has presided over these actions for approximately nine months, she is familiar with the 20 21 22 23 24 25 26 issues and parties in the case, and she already has presided over discovery disputes on related 1 Three years before the holding in In re Welding, another court in the Northern District of California held that Section 1407(b) does not apply to document subpoenas. See VISX, Inc. v. Nidek Co., 208 F.R.D. 615,616 (N.D. Cal. 2002). But several courts have criticized and disagreed with the holding in VISX. See In re Welding, 406 F. Supp. 2d at I 066 (explaining that VISX's holding does not comport with the purpose of Section 1407 and is contrary to the weight of authority); U.S. ex rei. Pogue v. Diabetes Treatment Centers of America, Inc., 238 F. Supp.2d 270, 275 (D.D.C. 2002) (disagreeing with VISXbecause most courts have extended Section 1407 to the enforcement of document subpoenas); HCA, Inc. v. U.S. ex rei. Pogue, No. 3:02-MC-0047, 2002 WL 31953748, at *4 (M.D. Tenn. Nov. 21, 2002) (disagreeing with VISX's holding because it contained "little analysis ofthe purpose of section 1407(b) or other case law" and finding the reasoning of contrary cases "more persuasive"). NOTICE OF MUL TIDISTRICT LITIGATION- 2 CASE NO. 12-MC-00186-MJP Case 2:12-mc-00186-MJP Document 3 Filed 09/17/12 Page 3 of 4 issues in the MOL-including another dispute between two parties that relates to Amazon. The 2 parties, recognizing these efficiencies, agreed in their Initial Report that Judge Cote would "to 3 the full extent allowed by law ... hear any discovery disputes regarding non-party subpoenas 4 served in connection with the actions, including motions to quash or modify and motions to 5 6 compel." (Attached as Exhibit A.) In reviewing this section of the draft Joint Initial Report at a 7 status conference, Judge Cote confirmed that she was "happy" to "exercise jurisdiction over 8 discovery disputes." (See Transcript of6/22/2012 Status Conference (attached as Exhibit B) at 9 28:5-9.) Accordingly, defendants, as required by Judge Cote's rules, have filed a pre-motion 10 11 letter bringing the dispute with Amazon before the MDL court. For these reasons, defendants respectfully request that this Court transfer the present 12 dispute to Judge Cote to be considered as part of the MDL. 13 14 DATED: September 17,2012. By s/Christopher B. Wells Christopher B. Wells, WSBA No. 08302 wellsc@lanepowell.com 15 16 17 By s/Michelle K. Peterson Michelle K. Peterson, WSBA No. 33598 petersonm@lanepowell.com 18 19 LANE POWELL PC 1420 Fifth A venue, Suite 41 00 Seattle, WA 98101 (206) 223-7000 20 21 Attorneys for Apple Inc. 22 23 24 25 26 NOTICE OF MULTIDISTRICT LITIGATION- 3 CASE NO. 12-MC-00186-MJP Case 2:12-mc-00186-MJP Document 3 Filed 09/17/12 Page 4 of 4 CERTIFICATE OF SERVICE 2 The undersigned certifies under penalty of perjury under the laws of the State of 3 Washington, that on the 17th day of September, 2012, the document attached hereto was 4 presented to the Clerk of the Court for filing and uploading to the CM/ECF system. 5 accordance with their ECF registration agreement and the Court's rules, the Clerk of the Court 6 will send e-mail notification of such filing to all CM/ECF participants and any non-CM/ECF 7 participants will be served in accordance with the Federal Rules of Civil Procedure. 8 Majorie Alison Walter KIPLING LAW GROUP PLLC 3601 FREMONT AVENUE N STE 414 SEATTLE, WA 98103 206-545-0347 Email: walter@kiplinglawgroup.com 9 10 11 12 0 D 13 0 D 14 15 D D byCMIECF by Electronic Mail by Facsimile Transmission by First Class Mail by Hand Delivery by Overnight Delivery 19 Michael E Kipling KIPLING LAW GROUP PLLC 3601 FREMONT AVENUE N STE 414 SEATTLE, WA 98103 206-545-0345 Fax: 206-545-0350 Email: kipling@kiplinglawgroup.com 20 0 16 17 18 21 22 23 D D D D D byCM!ECF by Electronic Mail by Facsimile Transmission by First Class Mail by Hand Delivery by Overnight Delivery 24 s/ Peter C. Elton Peter C. Elton 25 26 NOTICE OF MUL TIDISTRICT LITIGATION- 4 CASE NO. 12-MC-00186-MJP In

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