"The Apple Ipod Itunes Anti-Trust Litigation" - Document No. 133

"The Apple iPod iTunes Anti-Trust Litigation" Doc.
133
1 COUGHLIN STOIA GELLER

RUDMAN & ROBBINS LLP
2 BONNY E. SWEENEY (176174)
GREGORY S. WESTON (239944)
3 655 West Broadway, Suite 1900
San Diego, CA 92101
4 Telephone: 619/231-1058
619/231-7423 (fax)
5 bonnys@csgrr.com
gweston@csgrr.com
6
THE KATRIEL LAW FIRM
7 ROY A. KATRIEL (pro hac vice)
1101 30th Street, N.W., Suite 500
8 Washington, DC 20007
Telephone: 202/625-4342
9 202/330-5593 (fax)
rak@katriellaw.com
10
Co-Lead Counsel for Plaintiffs
11
[Additional counsel appear on signature page.]
12
UNITED STATES DISTRICT COURT
13
NORTHERN DISTRICT OF CALIFORNIA
14
SAN JOSE DIVISION
15
THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW
16 LITIGATION )
) CLASS ACTION
17 )
This Document Relates To: ) NOTICE OF MOTION AND MOTION TO
18 ) COMPEL DEFENDANT APPLE, INC.’S
ALL ACTIONS. ) PRODUCTION OF DOCUMENTS
19 ) RELATING TO CLASS CERTIFICATION
20 DATE: January 8, 2008

TIME: 10:00 a.m.
21 COURTROOM: 5, 4th Floor
JUDGE: Hon. Patricia V. Trumbull
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Dockets.Justia.com
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on January 8, 2008, or as soon thereafter as the matter may be
3 heard, in Courtroom 5, 4th Floor, of the above-captioned Court, located at 280 South First St., San
4 Jose, California, before the Honorable Patricia V. Trumbull, Plaintiffs Melanie Tucker (“Tucker”),
5 Mariana Rosen (“Rosen”) and Somtai Troy Charoensak (“Charoensak”) (collectively, “Plaintiffs”)
6 will and hereby do through undersigned counsel, move this Court pursuant to Federal Rules of Civil
7 Procedure, Rule 37(a), for an order compelling Apple Inc.’s (“Apple”) production of a limited set of
8 documents relevant to the issue of class certification. The relevance of the documents sought is
9 described below.
10 In accordance with Local Rule 37-1(b), and as set out in the contemporaneously filed
11 Declaration of Bonny E. Sweeney in Support of Motion to Compel Production of Documents
12 (“Sweeney Decl.”), Plaintiffs have made good faith efforts to confer with Apple in an attempt to
13 resolve this dispute without the need for Court intervention. However, the parties have reached an
14 impasse on the issues subject to this matter.
15 In addition to the foregoing declarations, this Motion is supported by the Memorandum of
16 Points and Authorities, the pleadings on file in this action, and on such other and further matters,
17 evidence and arguments as may be presented to the Court before or at the hearing on the Motion.
18 MEMORANDUM OF POINTS AND AUTHORITIES

19 I. INTRODUCTION
20 Plaintiffs contend that Apple sells online digital music files and digital video files
21 (collectively, “digital entertainment files”) in a format that has been deliberately altered via Apple’s
22 so-called “FairPlay” restrictions to render them portably playable only on the portable digital music
23 players sold by Apple, known as the iPod, the iPod shuffle and the iPod nano (collectively, “iPod”).
24 Plaintiffs filed their Consolidated Complaint for Violations of Sherman Antitrust Act, Clayton Act,
25 Cartwright Act, California Unfair Competition Law, Consumer Legal Remedies Act, and California
26 Common Law of Monopolization (“Complaint”) on April 19, 2007. Plaintiffs allege that, given
27 Apple’s 85% share of the online digital music file market and 90% share of the digital video file
28 market, Apple’s actions amount to an unlawful tying arrangement in violation of §1 of the Sherman
NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT APPLE, INC.’S PRODUCTION OF
DOCUMENTS RELATING TO CLASS CERTIFICATION - C-05-00037-JW -1-
1 Act and monopolization or attempted monopolization of the portable player market and the online
2 digital entertainment market prohibited by §2 of the Sherman Act. Complaint, ¶¶5, 7 & Counts I, II
3 & III.1 The Court has already ruled that Plaintiffs have alleged viable federal and state antitrust
4 claims. Slattery v. Apple Computer, Inc., No. 05-00037 JW, 2005 WL 2204981, at *3 (N.D. Cal.
5 Sept. 9, 2005); Tucker v. Apple Computer, Inc., 43 F. Supp. 2d 1090 (N.D. Cal. 2006); see generally,
6 Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 462, 112 S. Ct. 2072, 119 L. Ed.
7 2d 265 (1992).
8 On January 18, 2007, prior to the consolidation of the Tucker and Charoensak actions,
9 Tucker served Apple with Plaintiff Melanie Tucker’s First Set of Requests for Production of
10 Documents to Defendant Apple Inc. Sweeney Decl., Ex. A. On February 23, 2007, Apple
11 responded to each of Plaintiff’s discovery requests with boilerplate objections, made no initial effort
12 to produce any documents, refused to present witnesses, and asserted that Plaintiff Tucker was
13 entitled to discovery relating only to class certification. See Sweeney Decl., Ex. B (Defendant’s
14 Objections to Plaintiff Melanie Tucker’s First Set of Requests for Production to Apple Inc.).
15 Although a number of the discovery disputes have been successfully resolved through the meet and
16 confer process, the parties have reached an impasse with respect to: (1) unredacted copies of
17 spreadsheets (including all documents used to generate these spreadsheets) already produced by
18 Apple in redacted form in the Charoensak matter before consolidation; and (2) documents showing
19 the cost of manufacture, production, and number of Apple iPod products sold and the revenue
20 generated from the sales of those products.
21 II. REQUESTED DISCOVERY

22 A. Plaintiff’s First Set of Requests for Production of Documents
23 Two outstanding document requests are at issue here:
24 Request No. 10: Full copies of the spreadsheets for which excerpts were produced to
Somtai Troy Charoensak and marked APPLE CHAR 00059 through APPLE CHAR
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Plaintiffs seek injunctive and monetary relief for these violations under the Clayton Act, 15
27 U.S.C. §§15 & 26. Complaint, ¶¶31-38.
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1 00066 and all Documents used in the production of these Documents, including but
not limited to all Profit and Loss Statements for all iPod models.
2
The spreadsheets responsive to Request No. 10, labeled APPLE CHAR 00059-64 are
3
described by Apple as “redacted Profit and Loss statements for the iTunes Store” and “[c]ost,
4
revenue, profit or loss data.” Sweeney Decl., Ex. C at 1. Apple has agreed to produce “redacted
5
information” from the statements about the number of movies, TV shows and music videos, but
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illogically objects to producing any financial data from the statements. Id. Further, Apple refuses to
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produce full and unredacted copies of the documents labeled APPLE CHAR 00065-66 because the
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information was similarly derived from the Profit and Loss statements. Id.
9
Request No. 19: All Documents necessary to allow the calculation for each quarter
10 since the introduction of the iPod for each model that iPod has [sic] sold, the number
of iPods that have been purchased, Apple’s total revenue from the sale of each iPod
11 model and Apple’s Cost of Manufacturing and cost of sale for each iPod model.
12 In response to Request No. 19, Apple has agreed to produce documents sufficient to show the
13 number of iPods purchased each quarter on a per model basis, but has steadfastly refused to provide
14 the cost and revenue data similar to that required by Plaintiffs’ Request No. 10. Sweeney Decl.,
15 Ex. C at 1.
16 B. Plaintiffs’ Efforts to Meet and Confer

17 On February 23, 2007, Apple first responded to each of Plaintiff’s discovery requests with
18 boilerplate objections. See Sweeney Decl., Ex. B. In response to Apple’s suggestion that discovery
19 initially be limited to class certification issues, Plaintiffs, while reserving their right to challenge any
20 discovery bifurcation, identified those requests most relevant to class certification, including
21 Plaintiffs’ Requests Nos. 10 and 19. See Sweeney Decl., Ex. D at 1-2. Apple thereafter requested
22 Plaintiff Tucker to further “set forth the bases for [her] position that the discovery specified . . .
23 relates to class issues.” See Sweeney Decl., Ex. E.
24 On May 24, 2007, Plaintiffs tentatively agreed to Apple’s “stepped discovery” proposal. The
25 agreement required Apple to respond immediately to “class certification discovery” and Plaintiffs
26 agreed to permit Apple to defer its responses to certain discovery requests pending the filing of
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1 Apple’s opposition to Plaintiffs’ forthcoming motion for class certification. See Sweeney Decl.,
2 Ex. F.2 Plaintiffs at that time specifically identified Request No. 19 as relevant to class certification.
3 Id. at 3. Plaintiffs also expressly confirmed Apple’s agreement to produce all documents responsive
4 to Request No. 10. Id. at 2.
5 On May 31, 2007, Apple confirmed its willingness to produce the unredacted spreadsheets
6 responsive to Request No. 10, but refused to comply with the full extent of the request. See Sweeney
7 Decl., Ex. G at 2. Absent from Apple’s confirmation was an affirmation that it would provide “all
8 documents used in the production” of the unredacted spreadsheets as required by Plaintiffs’ Request
9 No. 10. Id. Further, Apple reiterated its objection to producing cost and revenue data responsive to
10 Request No. 19, without elaborating on its contention that such data was not relevant to class
11 certification. Id.
12 On June 8, 2007, Plaintiffs offered yet another concession to Apple by agreeing to accept
13 production of the underlying documents responsive to Request No. 10 according to either version of
14 the electronic discovery format agreement (the operative agreement in the Charoensak action or the
15 current agreement applicable to the consolidated action) or in native computer file format. See
16 Sweeney Decl., Ex. H at 2. On June 15, Apple inexplicably reversed course and informed Plaintiffs
17 that it would not produce the spreadsheets responsive to Request No. 10 without redactions. See
18 Sweeney Decl., Ex. C at 1. Apple further cemented its position that it would not provide any of the
19 financial data from the profit and loss statements responsive to either Request Nos. 10 or 19. Id.
20 On July 20, 2007, Plaintiffs sought clarification from the Court as to whether the discovery
21 bifurcation provision of the Case Management Order that governed the Charoensak action was
22 applicable to this consolidated action. In response to Plaintiffs’ Motion for Administrative Relief,
23 this Court ordered the parties to respond to discovery either: (a) related to class certification; or
24 (b) “impos[ing] only a de minimis burden on either party.” See Sweeney Decl., Ex. I at 1, 2.
25 Following the Court’s Order specifically determining that Plaintiffs were entitled to seek discovery
26
27 2
At Apple’s request, Plaintiffs also provided Apple with narrowed supplemental requests.
Id. at 2-3.
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1 related to class certification, Plaintiffs reiterated their demand that Apple produce the responsive
2 revenue, profit and loss statements, and related documents and explain the basis of their
3 “confidentiality” objection. See Sweeney Decl., Ex. J at 2.
4 However, Apple has steadfastly refused. See Sweeney Decl., Ex. K; id., Ex. L at 1-2.
5 Despite Plaintiffs’ continuing efforts at resolution, Apple adamantly refuses to provide the
6 outstanding documents responsive to Plaintiffs’ Requests Nos. 10 and 19. Notably, Apple does not
7 contend that the data and documents Plaintiffs seek responsive to Requests Nos. 10 and 19 are
8 irrelevant. Apple contends only that such data is “merit” related discovery and is not “class” related.
9 See Sweeney Decl., Ex. L at 1 (“On Request No. 10 . . . the production of profit and loss statements
10 is not related to class certification issues . . . . We disagree that any merits-based discovery is
11 allowed simply because plaintiffs contend it is ‘de minimis.’”).
12 III. LEGAL ARGUMENT

13 A. Applicable Standard
14 The discovery right is a broad one, “based on the general principle that litigants have a right
15 to ‘every man’s evidence,’ and that wide access to relevant facts serves the integrity and fairness of
16 the judicial process by promoting the search for the truth.” Rivera v. NIBCO, Inc. 384 F.3d 822, 824
17 (9th Cir. 2004) (citation and quotation marks omitted). In general, “[p]arties may obtain discovery
18 regarding any matter, not privileged, that is relevant to the claim or defense of any party.” United
19 States ex rel. Englund v. Los Angeles, 235 F.R.D. 675,686 (E.D. Cal 2006) (quoting Fed. R. Civ. P.
20 26(b)(1)). The Federal Rules thus set forth a standard of relevance that is “generous,” and
21 “extremely broad.” Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y. 2004). Indeed, it is so broad
22 that, “[o]nce any possibility of relevance sufficient to warrant discovery is shown, the burden shifts
23 to the party opposing discovery to show the discovery is improper.” Id. at 106 (citation and
24 quotation marks omitted).
25 Pursuant to Federal Rules of Civil Procedure, Rule 37, a party may move to compel
26 discovery where another party fails to respond to a discovery request or where the party’s request is
27 evasive or incomplete. See Fed. R. Civ. P. 37(a)(2) - (3). A motion to compel discovery pursuant to
28 Rule 37(a) is addressed to the sound discretion of the trial court. See Comty. Sav. & Loan Ass’n v.
1 Fed. Home Loan Bank Bd., 68 F.R.D. 378, 381 (E.D. Wis. 1975). When the discovery sought
2 appears relevant on its face, the party resisting the discovery has the burden to establish the lack of
3 relevance by demonstrating that the requested discovery: (1) does not come within the broad scope
4 of relevance as defined under Rule 26(b)(1); or (2) is of such marginal relevance that the potential
5 harm the discovery may cause would outweigh the presumption in favor of broad disclosure. Soto v.
6 Concord, 162 F.R.D. 603, 609 (N.D. Cal. 1995)(citing Blakenship v. Hearst Corp., 519 F.2d 418,
7 419 (9th Cir. 1975).
8 B. The Revenue, Cost and Profit Documents Are Relevant to Class

Certification
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Few cases are better candidates for class-wide resolution than antitrust actions. Amchem
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Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997); In re
11
Tableware Antitrust Litig., 241 F.R.D. 644, 648 (N.D. Cal. 2007) (“Class actions play a particularly
12
vital role in the private enforcement of antitrust actions.”). Courts routinely certify antitrust cases,
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and in particular tying cases such as the one at bar, where plaintiffs are able to proffer expert
14
testimony which demonstrates a plausible theory whereby antitrust injury and damages may be
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proven on a class-wide basis. See, e.g., VISA Check/MasterMoney, 280 F.3d 124 (2d Cir. 2001)
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(affirming class certification in a tying case where plaintiffs’ expert provided credible means of
17
showing injury and damages class-wide); Bafus v. Aspen Realty, Inc., 236 F.R.D. 652, 658 (D. Idaho
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2006) (same; class certified in tying case).
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C. The Limited Discovery Plaintiffs Seek Is Relevant to Class-wide Proof
20 of Antitrust Injury
21 Antitrust injury is typically established for class certification purposes through expert opinion
22 that generally accepted economic methodologies are available to demonstrate such injury on a class
23 wide basis. VISA Check/MasterMoney, 280 F.3d at 133-35 (rejecting as “meritless” defendants’
24 argument that plaintiffs’ expert had not submitted sound methodology for demonstrating that VISA
25 and MasterCard’s tying policies injured all class members); In re Dynamic Random Access Memory
26 (DRAM) Antitrust Litigation), No. M 02-1486 PJH, 2006 WL 1530166, at *8 (N.D. Cal. June 5,
27 2006); Estate of Garrison v. Warner Bros. Inc., No. CV 95-8328 RMT, 1996 WL 407849, at *4
28
1 (C.D. Cal. June 25, 1996); see, e.g., Bafus, 236 F.R.D. 658 (expert declaration described what
2 appeared to be a viable method for determining economic effect on a class basis).
3 The highly targeted, limited discovery requested by plaintiffs – revenue, cost and sales
4 information – is pertinent to class certification. See, e.g., VISA Check/MasterMoney, 280 F.3d at 134
5 (methodologies of plaintiffs’ expert supported by reliance upon defendants’ internal financial data,
6 as produced in discovery, as to specific usage of defendants’ on-line and off-line debit cards); Bafus,
7 236 F.R.D. at 658 (class certified where plaintiffs’ economic expert based conclusions upon analysis
8 of documentation of the conditions of sale for members of the class group). Indeed, the discovery at
9 issue here is of a variety similar to the types of evidence relied upon in other class antitrust litigation,
10 such as DRAM, where Plaintiffs’ economic expert’s testimony was accepted by the court as a
11 plausible methodology for proving class wide antitrust injury. The DRAM expert reached his
12 conclusions through analysis of actual market share estimates, actual sales data, and actual price data
13 which had been produced in discovery. See DRAM, 2006 WL 1530166, at *9 (“Dr. Noll’s report,
14 supported by actual publication, market, and sales data produced thus far, provides an adequate
15 basis from which to conclude that the proof plaintiffs will adduce to establish defendants’ conspiracy
16 to fix prices, and the resulting effect of the conspiracy on all prices paid for DRAM, would be
17 common to all class members.”) (emphasis added).
18 In short, the type of discovery at issue on this motion was conducted in these other cases and
19 is clearly relevant to class here.3
20 D. The Limited Discovery Plaintiffs Seek Is Relevant to Class-wide Proof

of Antitrust Damages
21
Once antitrust injury is established, the overall burden of proving damages is eased under
22
both §1 and §2 of the Sherman Act. See Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 836; see,
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e.g., DRAM, 2006 WL 1530166, at *10. Plaintiffs will likely use one or more of the three most-used
24
methods for calculating damage on a class-wide basis: (1) the “before/after” method; (2) the
25
26 3
Moreover, academics have recognized that profit and loss information may be used to
27 Hovenkamp, market
demonstrate power in the relevant markets, an important issue here. See, e.g., Areeda &
Antitrust Law, ¶¶500-26 (2006 ed.) (reviewing methods of determining the
28 existence of market power).
1 “yardstick” approach; and/or (3) the “benchmark” analysis. Each is a well-accepted method for
2 determining class-wide impact and damages in the antitrust context. Regression analysis is an
3 economic technique often used in the estimation of damages especially for determining the degree of
4 overcharge. See A.B.A. Section of Antitrust Law, Proving Antitrust Damages: Legal and Economic
5 Issues, 1996, Chapter 5 at 145ff; Daniel L. Millimet. Both the “Yardstick” model and the “before
6 and after” approach have been upheld by numerous courts. See, e.g., In re Citric Acid Antitrust
7 Litig., No. 95-1092, C-95-2963 FMS, 1996 WL 655791, at *7 (N.D. Cal. Oct. 2, 1996) (upholding
8 before/after approach); In re Linerboard Antitrust Litig., 203 F.R.D. 197, 220 (E.D. Pa. 2001)
9 (upholding the “yardstick” approach).
10 E. Production of the Outstanding Discovery Is Not Unduly Burdensome

11 Plaintiffs’ showing of relevance to class certification shifts the burden to Apple to
12 demonstrate why the requested discovery should not be had. Peat, Marwick, Mitchell & Co. v. West,
13 748 F.2d 540 (10th Cir. 1984); Melendez v. Greiner, No. 01 Civ.07888 SAF DF, 2003 WL
14 22434101, at *4 (S.D.N.Y. Oct. 23, 2003) (“[I]f the [objecting parties] wish to resist discovery on
15 the ground of burden, then they must adequately demonstrate the nature and extent of the claimed
16 burden.”). But Apple has not shown that the production of documents responsive to Requests Nos.
17 10 and 19 are in any way overly burdensome. See W. Res., Inc, v. Union Pac. R.R. Co., No. 00-
18 2043-CM, 2002 WL 1822432, at * 4 (D. Kan. July 23, 2002) (holding party resisting discovery has
19 the obligation to detail and explain the nature of the burden in terms of time, money and procedure
20 required to produce the requested documents). Rather, Apple has maintained only that production of
21 the documents sought in Requests Nos. 10 and 19 is not warranted because such information has no
22 bearing on “class certification.” See Sweeney Decl. Ex. K at 1, 2. As demonstrated above, that
23 contention is wrong.
24 Indeed, it is commonplace for courts to grant motions to compel discovery of revenue, sales
25 and cost information when relevant to the issues presented. See, e.g., In re NASDAQ Market-Makers
26 Antitrust Litig., 929 F. Supp. 723, 726 (S.D.N.Y. 1996) (motions to compel granted in antitrust
27 action; discovery allowed to pursue documents including those setting forth revenues costs, profits,
28 or losses derived from trading NASDAQ securities, reasoning that the “financial information, in
1 particular, is relevant, in that it may show that common questions predominate for purposes of class
2 certification”); In re Folding Carton Antitrust Litig., 76 F.R.D. 420, 427 (N.D. Ill. 1977) (Motion to
3 Compel financial information by plaintiffs in price-fixing antitrust action granted where such
4 information “may help plaintiffs determine whether or not defendants enjoyed unreasonably high or
5 excessive profits.”) Citicorp v. Interbank Card Ass’n, 87 F.R.D. 43, 47 (S.D.N.Y. 1980) (discovery
6 of sales and profit data against third parties Amexco and Barclay’s allowed in antitrust action;
7 relevancy for discovery purposes is interpreted broadly and “it would therefore be nearly impossible
8 for the parties in this case to analyze and define the relevant market without information that only
9 Amexco can provide”); Storch v. Ipco Safety Prods. Co. of Pa., No. Civ. A. 96-7592, 1997 WL
10 401589, at *2 (E.D. Pa. Jul. 16, 1997) (motion to compel sales information granted where “such data
11 is relevant for purposes of determining the damages of the plaintiff”); Watson Indus., Inc. v. Murata
12 Mfg. Co., Ltd., No. 02-C-524-C, 2003 WL 23162874 (W.D. Wis. Dec. 4, 2003) (motion to compel
13 worldwide sales information granted); Sinco, Inc. v. B&O Mfg., Inc., No. 03-5277 (JRT/FLN), 2005
14 WL 1432202 (D. Minn. May 23, 2005) (motion to compel granted; discovery allowed included
15 number and amount of units of each product manufactured and sold, cost of manufacturing such
16 products, and documents reflecting profits generated). Confidentiality orders, such as the one
17 stipulated to and in place in this litigation, are adequate to protect against disclosure of any
18 particularly sensitive sales or revenue information. See, e.g., Citicorp, 87 F.R.D. at 46-47.
19 Moreover, motions to compel discovery of the types at issue here are routinely granted even
20 when a producing party is heard to claim that production of summary information is sufficient. See,
21 e.g., Phase Four Indus., Inc. v. Marathon Coach, Inc., No. C-04-4801 JW PVT, 2007 WL 2429448,
22 at *1-*2 (N.D. Cal. Aug. 23, 2007) (motion to compel granted in relevant part; sales information and
23 profit and loss statements relevant and production of spreadsheet that summarized sales and profit
24 and loss information was insufficient; underlying documentation must be produced including “all
25 documents showing sales and gross profits” as well as “profit and cost data in a format that is clear
26 and comprehensible”).
27 In any event, the burden on Apple to produce the requested documents is surely minimal at
28 best. Apple has already produced the spreadsheets responsive to Request No. 10 with redacted data.
1 Apple can hardly contend that producing the documents in un-redacted form is more burdensome
2 than its redacted production. Nor can the production of sales and costs reports, no doubt routinely
3 generated and maintained by Apple, amount to undue hardship. Apple has failed to articulate the
4 time or expense involved in responding to the requested discovery is unduly burdensome. For this
5 reason, even assuming arguendo that the documents were not relevant to class certification, they
6 should be produced under this Court’s Order of July 20, 2007.
7 IV. CONCLUSION
8 For the reasons stated herein, Plaintiffs respectfully request this Court to issue an Order
9 compelling Apple to produce all documents responsive to Requests Nos. 10 and 19 of Plaintiff’s
10 First Set of Requests for Production of Documents to Defendant Apple Inc.
11 DATED: December 3, 2007 Respectfully submitted,

13 BONNY E. SWEENEY
GREGORY S. WESTON
14
15
s/BONNY E. SWEENEY
16 BONNY E. SWEENEY

San Diego, CA 92101
18 Telephone: 619/231-1058
619/231-7423 (fax)
19
THE KATRIEL LAW FIRM
20 ROY A. KATRIEL
1101 30th Street, N.W., Suite 500
21 Washington, DC 20007
Telephone: 202/625-4342
22 202/330-5593 (fax)
23 Co-Lead Counsel for Plaintiffs
24
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DOCUMENTS RELATING TO CLASS CERTIFICATION - C-05-00037-JW - 10 -
1
BONNETT, FAIRBOURN, FRIEDMAN
2 & BALINT, P.C.
ANDREW S. FRIEDMAN
3 FRANCIS J. BALINT, JR.
ELAINE A. RYAN
4 TODD D. CARPENTER
2901 N. Central Avenue, Suite 1000
5 Phoenix, AZ 85012
Telephone: 602/274-1100
6 602/274-1199 (fax)
7 BRAUN LAW GROUP, P.C.

MICHAEL D. BRAUN
8 12304 Santa Monica Blvd., Suite 109
Los Angeles, CA 90025
9 Telephone: 310/442-7755
310/442-7756 (fax)
10
MURRAY, FRANK & SAILER LLP
11 BRIAN P. MURRAY
JACQUELINE SAILER
12 275 Madison Avenue, Suite 801
New York, NY 10016
13 Telephone: 212/682-1818
212/682-1892 (fax)
14
GLANCY BINKOW & GOLDBERG LLP
15 MICHAEL GOLDBERG
1801 Avenue of the Stars, Suite 311
16 Los Angeles, CA 90067
Telephone: 310/201-9150
17 310/201-9160 (fax)
18 Additional Counsel for Plaintiffs

S:\CasesSD\Apple Tying\MOT00047335.doc
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DOCUMENTS RELATING TO CLASS CERTIFICATION - C-05-00037-JW - 11 -
1 CERTIFICATE OF SERVICE
2 I hereby certify that on December 3, 2007, I electronically filed the foregoing with the Clerk
3 of the Court using the CM/ECF system which will send notification of such filing to the e-mail
4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have
5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF
6 participants indicated on the attached Manual Notice List.
7 I certify under penalty of perjury under the laws of the United States of America that the
8 foregoing is true and correct. Executed on December 3, 2007.
9
s/ BONNY E. SWEENEY
10 BONNY E. SWEENEY
San Diego, CA 92101-3301
13
Telephone: 619/231-1058
14 619/231-7423 (fax)
15 E-mail:BonnyS@csgrr.com
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"The Apple Ipod Itunes Anti-Trust Litigation" - Document No. 133

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"The Apple Ipod Itunes Anti-Trust Litigation" - Document No. 133

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1 COUGHLIN STOIA GELLER

20 DATE: January 8, 2008

11 Declaration of Bonny E. Sweeney in Support of Motion to Compel Production of Documents

14 impasse on the issues subject to this matter.

15 In addition to the foregoing declarations, this Motion is supported by the Memorandum of

18 MEMORANDUM OF POINTS AND AUTHORITIES

20 generated from the sales of those products.

21 II. REQUESTED DISCOVERY

16 B. Plaintiffs’ Efforts to Meet and Confer

23 relates to class issues.” See Sweeney Decl., Ex. E.

4 to Request No. 10. Id. at 2.

3 “confidentiality” objection. See Sweeney Decl., Ex. J at 2.

11 allowed simply because plaintiffs contend it is ‘de minimis.’”).

12 III. LEGAL ARGUMENT

24 quotation marks omitted).

7 419 (9th Cir. 1975).

8 B. The Revenue, Cost and Profit Documents Are Relevant to Class

2 appeared to be a viable method for determining economic effect on a class basis).

17 common to all class members.”) (emphasis added).

20 D. The Limited Discovery Plaintiffs Seek Is Relevant to Class-wide Proof

9 (upholding the “yardstick” approach).

10 E. Production of the Outstanding Discovery Is Not Unduly Burdensome

6 should be produced under this Court’s Order of July 20, 2007.

10 First Set of Requests for Production of Documents to Defendant Apple Inc.

11 DATED: December 3, 2007 Respectfully submitted,

12 COUGHLIN STOIA GELLER

17 655 West Broadway, Suite 1900

23 Co-Lead Counsel for Plaintiffs

7 BRAUN LAW GROUP, P.C.

18 Additional Counsel for Plaintiffs

6 participants indicated on the attached Manual Notice List.

8 foregoing is true and correct. Executed on December 3, 2007.

Mailing Information for a Case 5:05-cv-00037-JW

z Francis Joseph Balint , Jr

z Michael David Braun

z Caroline Nason Mitchell

z Robert Allan Mittelstaedt

z Adam Richard Sand , Esq

z Gregory Steven Weston

Manual Notice List

Todd David Carpenter

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