Opinion
No. CV 10-01610-RS
10-12-2011
IN RE APPLE IPHONE/IPOD WARRANTY LITIGATION This Document Relates To: ALL ACTIONS
Jeffrey L. Fazio Dina E. Micheletti [up]Fazio | Micheletti llp[/up] by Jeffrey L. Fazio Interim Co-Lead Class Counsel Steven A. Schwartz Timothy N. Mathews [up]Chimicles & Tikellis llp[/up] by Steven A. Schwartz Interim Co-Lead Class Counsel Penelope A. Preovolos Andrew D. Muhlbach Samuel J. Boone Lunier [up]Morrison | Foerster llp[/up] by Andrew D. Muhlbach Attorneys for Defendant, Apple, Inc.
Jeffrey L. Fazio (146043) (jlf@fazmiclaw.com)
Dina E. Micheletti (184141) (dem@fazmiclaw.com)
FAZIO | MICHELETTI LLP
Steven A. Schwartz (pro hac vice)(SAS@chimicles.com)
Timothy N. Mathews (pro hac vice)(TNM@chimicles.com)
C HIMICLES & T IKELLIS LLP
Interim Co-Lead Class Counsel
STIPULATION AND [PROPOSED] ORDER EXTENDING CLASS
CERTIFICATION BRIEFING SCHEDULE
RECITALS
1. The Stipulation and Order Regarding Schedule Governing Motion for Class Certification, filed on April 20, 2011 (Dock. No. 47) ("April Order") states as follows:
The current schedule is based on the parties' understanding that Apple will complete its initial document production by the end of June, 2011; that no substantial follow-up discovery or modifications to the key-word searches that informed Apple's discovery efforts will be necessary in order to draft Plaintiffs' class-certification brief; that the schedules of counsel and various witnesses will allow for the taking of depositions following the completion of Apple's initial document production; and that Plaintiffs will be able to obtain necessary third-party discovery prior to the filing of their motion for class certification. In the event circumstances warrant it, this schedule is subject to modification.
2. Pursuant to the April Order, the current deadline for plaintiffs to file their motion for class certification is October 21, 2011.
3. Discovery in this case is still ongoing. Depositions of Apple's FRCP 30(b)(6) designees began on September 6, 2011, are still in progress as of the filing of this stipulation. For various reasons, including the schedules of Apple's designees, those depositions are not expected to be completed until after the date on which Plaintiffs' class certification brief is presently due. Additionally, document production is not complete. Apple produced significant documents in August, which are still being reviewed by plaintiffs' counsel, and additional documents are being collected and produced by Apple.
4. Third-party discovery is not complete. While third-party deposition subpoenas were served on 3M Company and AT&T Mobility LLC, protective orders were not finalized for those parties' production until May 31 and August 19, 2011, respectively. A motion to compel was required to resolve substantive disputes with 3M Company regarding the scope of its production, and was not finally resolved until August 31, 2011, when Judge David S. Doty of the U.S. District Court for the District of Minnesota overruled 3M's objection to the Magistrate Judge's order granting in part plaintiffs' motion to compel. 3M produced documents on August 12, September 12, and September 26, 2011. AT&T Mobility produced documents comprising over 58,000 pages on August 26, 2011. Plaintiffs' counsel are still in the process of reviewing all of this production and anticipate that the production may be found incomplete, requiring further "meet and confer" discussions and possible motion practice. Plaintiffs have also served a third-party deposition subpoena on Hon Hai Corporation, and are in the process of conferring with counsel for that entity regarding its anticipated production.
5. The parties have agreed to participate in a mediation on October 13, 2011 with the Hon. Edward A. Infante (Ret.) of JAMS. This was the earliest workable date available after the parties (including plaintiffs' counsel in the parallel state court action) agreed to participate in mediation. Plaintiffs reasonably have been focusing their efforts on preparing for the mediation rather than preparing their class certification motion papers. If the matter does not settle during the scheduled mediation, the eight days remaining to prepare the class certification motion papers will be insufficient.
6. The parties agree that circumstances warrant modification of this deadline and the remaining briefing schedule.
STIPULATION
Accordingly, by and through their counsel, the parties hereby stipulate to modify the Stipulation and Order Regarding Schedule Governing Motion for Class Certification, filed on April 20, 2011 (Dock. No. 47) by extending all deadlines by approximately three months, as follows:
1. Plaintiffs will file their motion for class certification on or before January 31, 2012.
2. In the event Plaintiffs submit testimony in support of their opening brief, Defendant Apple, Inc. ("Apple") shall file its opposition to the motion for class certification on April 2, 2012, so as to provide Apple with sufficient opportunity to depose Plaintiffs' declarants about the matters set forth in their declarations, to the extent those declarants have not already been deposed about those matters. If Plaintiffs do not submit testimony in support of their opening brief, Apple's opposition papers shall be due March 2, 2012.
3. In the event Apple submits testimony in support of its opposition brief and Plaintiffs have submitted testimony in support of their opening brief, Plaintiffs' reply papers shall be filed on June 4, 2012, so as to provide Plaintiffs with sufficient opportunity to depose Apple's declarants about the matters set forth in their declarations, to the extent those declarants have not already been deposed about those matters. If Apple submits testimony in support of its opposition brief, but Plaintiffs have not submitted testimony in support of their opening brief, Plaintiffs' reply brief shall be due May 2, 2012. If Apple does not submit testimony in support of its opposition brief, but Plaintiffs have submitted testimony in support of their opening brief, Plaintiffs' reply brief shall be due May 2, 2012. If neither party submits testimony in support of the opening and opposition briefs, Plaintiffs' reply brief shall be due April 2, 2012.
4. Plaintiffs shall have the opportunity to submit expert rebuttal testimony in support of their reply brief.
5. The hearing date for Plaintiffs' class-certification motion shall be set on or about the time Plaintiffs file their reply brief.
Jeffrey L. Fazio
Dina E. Micheletti
FAZIO | MICHELETTI LLP
by Jeffrey L. Fazio
Interim Co-Lead Class Counsel
Steven A. Schwartz
Timothy N. Mathews
CHIMICLES & TIKELLIS LLP
by Steven A. Schwartz
Interim Co-Lead Class Counsel
Penelope A. Preovolos
Andrew D. Muhlbach
Samuel J. Boone Lunier
MORRISON | FOERSTER LLP
by Andrew D. Muhlbach
Attorneys for Defendant, Apple, Inc.
ATTESTATION OF FILER
I, Kimberly A. Kralowec, hereby attest that concurrence in the filing of this document has
been obtained from each of the other signatories. See N.D. Cal. Gen. Order No. 45, para. X(B).
By: Kimberly A. Kralowec
THE KRALOWEC LAW GROUP
PURSUANT TO STIPULATION, AND GOOD CAUSE APPEARING, IT IS SO ORDERED.
The Honorable Richard Seeborg
United States District Judge