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The Apple Ipod Itunes Antitrust Litigation

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


May 6, 2011

THE APPLE IPOD ITUNES ANTITRUST LITIGATION,

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed May 6, 2011 **

NOT FOR CITATION

United States District Court For the Northern District of California

ORDER DENYING AS MOOT PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DATA AND DENYING PLAINTIFFS' REQUEST FOR FEES AND COSTS

[Re: Docket No. 556]

Plaintiffs in this class action are purchasers of Apple, Inc.'s ("Apple") iPods and of digital 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 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' 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, they are entitled to their reasonable expenses incurred in making their motion. Docket No. 613 at 1-3

2. Rule 37 states: 4

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: (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.

In addition to the fact that Plaintiffs' request for fees and costs was raised for the first time in their reply brief,*fn1 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. 22

IT IS SO ORDERED.

C05-00037 JW (HRL) Notice will be electronically mailed to: Alexandra Senya Bernay xanb@rgrdlaw.com Alreen Haeggquist alreenh@zhlaw.com, judyj@zhlaw.com Andrew S. Friedman afriedman@bffb.com, khonecker@bffb.com, rcreech@bffb.com Bonny E. Sweeney bonnys@rgrdlaw.com, christinas@rgrdlaw.com, E_file_sd@rgrdlaw.com Brian P Murray bmurray@murrayfrank.com Carmen Anthony Medici cmedici@rgrdlaw.com, slandry@rgrdlaw.com Caroline Nason Mitchell cnmitchell@jonesday.com, ewallace@jonesday.com, mlandsborough@jonesday.com Craig Ellsworth Stewart cestewart@jonesday.com, mlandsborough@jonesday.com 7 David Craig Kiernan dkiernan@jonesday.com, lwong@jonesday.com Elaine A. Ryan eryan@bffb.com, nserden@bffb.com 8 Francis Joseph Balint, Jr fbalint@bffb.com George A. Riley griley@omm.com, cchiu@omm.com, lperez@omm.com 9 Helen I. Zeldes helenz@zhlaw.com Jacqueline Sailer jsailer@murrayfrank.com John J. Stoia , Jr jstoia@rgrdlaw.com Michael D Braun service@braunlawgroup.com Michael D. Braun service@braunlawgroup.com, clc@braunlawgroup.com Michael Tedder Scott michaelscott@jonesday.com, amhoward@jonesday.com United States District Court Robert Allan Mittelstaedt ramittelstaedt@jonesday.com, mlandsborough@jonesday.com Roy Arie Katriel rak@katriellaw.com, rk618@aol.com Thomas J. Kennedy tkennedy@murrayfrank.com Thomas Robert Merrick tmerrick@rgrdlaw.com, e_file_sd@rgrdlaw.com, e_file_sf@rgrdlaw.com Todd David Carpenter tcarpenter@bffb.com, pjohnson@bffb.com, rcreech@bffb.com

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.


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