Best Buy Co., Inc. et al v. AU Optronics Corp. et al, No. 3:2010cv04572 - Document 12 (N.D. Cal. 2011)

Court Description: ORDER granting extension of time to answer (Best Buy v. AU) (tf, COURT STAFF) (Filed on 2/11/2011)

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Best Buy Co., Inc. et al v. AU Optronics Corp. et al 1 Doc. 12 7 Michael R. Lazerwitz (PRO HAC VICE) Jeremy J. Calsyn (State Bar No. 205062) Lee F. Berger (State Bar No. 222756) CLEARY GOTTLIEB STEEN & HAMILTON LLP 2000 Pennsylvania Avenue NW, Suite 9000 Washington, DC 20006 (202) 974-1500 (Phone) (202) 974-1999 (Facsimile) mlazerwitz@cgsh.com jcalsyn@cgsh.com lberger@cgsh.com 8 Counsel for Defendants LG Display Co., Ltd. and LG Display America, Inc. 9 [Additional counsel listed on signature page] 2 3 4 5 6 10 11 12 13 14 Roman M. Silberfeld (State Bar No. 62783) Michael A. Geibelson (State Bar No. 179970) ROBINS, KAPLAN, MILLER & CIRESI LLP 2049 Century Park East, Suite 3400 Los Angeles, CA 90067-3208 Telephone: 310-552-0130 Facsimile: 310-229-5800 15 Counsel for Plaintiffs 16 [Additional counsel listed on signature page] 17 18 19 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO DIVISION) 20 21 22 23 CASE NO. 3:07-md-1827 SI INDIVIDUAL ACTION NO. 10-cv-4572 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, PRODUCTION OF DATA, AND [PROPOSED] ORDER BEST BUY CO., INC., et al., Plaintiffs, v. AU OPTRONICS CORPORATION, et al., Defendants. 24 Assigned to Hon. Susan J. Illston, United States District Judge 25 26 27 28 1 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, AND PRODUCTION OF DATA Case No. 3:07-md-1827 SI / Case No. 10-cv-4572 Dockets.Justia.com 1 Whereas the undersigned counsel, on behalf of their respective clients, plaintiffs Best Buy Co., Inc., 2 Best Buy Purchasing LLC, Best Buy Enterprise Services, Inc., Best Buy Stores, L.P., Best Buy China 3 Ltd., and Magnolia Hi-Fi, Inc. (collectively, “Best Buy”) filed a complaint in the above-captioned 4 case against AU Optronics Corporation, AU Optronics Corporation America, Chimei Innolux 5 Corporation f/k/a Chi Mei Optoelectronics Corporation, Chi Mei Optoelectronics USA, Inc., CMO 6 Japan Co., Ltd., Epson Imaging Devices Corporation, Epson Electronics America, Inc., Seiko Epson 7 Corporation, HannStar Display Corporation, Hitachi, Ltd., Hitachi Displays, Ltd., Hitachi Electronic 8 Devices (USA), Inc., LG Display Co., Ltd., LG Display America, Inc., Sharp Corporation, Sharp 9 Electronics Corporation, and Tatung Company of America, Inc., (collectively, “Stipulating 10 Defendants”), among other defendants, on October 8, 2010 (“Complaint”); 11 Whereas Best Buy wishes to avoid the burden and expense of serving process on the Stipulating 12 Defendants; 13 Whereas the Stipulating Defendants desire a reasonable amount of time to respond to the Complaint; 14 Whereas Best Buy agrees to produce certain data relevant to its claims and the claims of other 15 plaintiffs in related cases; and 16 Whereas Best Buy and the Stipulating Defendants believe that proceeding on a unified response date 17 and setting a production date for certain data will create efficiency for the Court and the parties by 18 reducing duplicative motion practice and avoiding needless discovery disputes; 19 THEREFORE, Best Buy and the Stipulating Defendants hereby agree: 20 1. The Stipulating Defendants waive service of the Complaint under Federal Rule of Civil 21 Procedure 4(d). This stipulation does not constitute a waiver by the Stipulating Defendants of 22 any other substantive or procedural defense, including but not limited to the defense of lack of 23 personal or subject matter jurisdiction and improper venue. 24 2. The Stipulating Defendants’ deadline to move to dismiss, answer, or otherwise respond to the 25 Complaint will be 90 days from the execution of this stipulation, subject to Federal Rule of 26 Civil Procedure 6(a)(1). 27 28 2 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, AND PRODUCTION OF DATA Case No. 3:07-md-1827 SI / Case No. 10-cv-4572 1 3. By 30 calendar days from the execution of this stipulation, Best Buy will produce data 2 responsive to the requests in Annex A, except with respect to purchase-for-resale data and 3 sales data for the 2008 calendar year, which data Best Buy will use its best efforts to produce 4 within 60 days. All data produced under this stipulation supersedes data produced in response 5 to class plaintiffs’ subpoena on Best Buy dated March 4, 2008. Neither this stipulation nor 6 any production made under this stipulation may serve as a limit on any further discovery 7 requests or objections to future discovery requests by Best Buy or Stipulating Defendants. 8 4. consumption. 9 10 Best Buy’s claims do not include claims based on any product purchased for Best Buy’s own 5. Best Buy does not yet know and cannot yet identify the manufacturer of the TFT-LCD panels 11 contained in the TFT-LCD televisions, notebook computers, monitors, and other finished 12 products it purchased. 13 DATED: February 9, 2011 14 15 16 17 18 19 20 By: /s/ Michael R. Lazerwitz Michael R. Lazerwitz (Pro Hac Vice) Jeremy J. Calsyn (State Bar No. 205062) Lee F. Berger (State Bar No. 222756) CLEARY GOTTLIEB STEEN & HAMILTON LLP 2000 Pennsylvania Ave., NW Washington, DC 20006 (202) 974-1500 (Phone) (202) 974-1999 (Facsimile) mlazerwitz@cgsh.com Counsel for Defendants LG Display Co., Ltd. and LG Display America, Inc. 21 22 23 24 25 26 27 By: /s/ Christopher A. Nedeau Christopher A. Nedeau (State Bar No. 81297) NOSSAMAN LLP 50 California Street, 34th Floor San Francisco, California 94111-4799 (415) 398-3600 (Phone) (415) 398-2438 (Facsimile) cnedeau@nossaman.com Counsel for Defendants AU Optronics Corporation and AU Optronics Corporation America 28 3 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, AND PRODUCTION OF DATA Case No. 3:07-md-1827 SI / Case No. 10-cv-4572 1 2 3 4 5 6 7 8 9 10 By: /s/ Steven Cherry Steven Cherry Adam Raviv WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006-3642 (202) 663-6000 (Phone) (202) 663-6363 (Facsimile) steven.cherry@wilmerhale.com Nathan L. Walker (State Bar No. 206128) WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 (650) 858-6000 (Phone) (650) 858-6100 (Facsimile) Nathan.Walker@wilmerhale.com 11 12 13 14 15 16 17 18 19 20 21 22 Counsel for Defendants Chimei Innolux Corporation f/k/a Chi Mei Optoelectronics Corporation, and Chi Mei Optoelectronics USA, Inc., CMO Japan Co., Ltd., By: /s/ Stephen P. Freccero Morrison & Foerster LLP MELVIN R. GOLDMAN (State Bar No. 34097) STEPHEN P. FRECCERO (State Bar No. 131093) DEREK F. FORAN (State Bar No. 224569) 425 Market Street San Francisco, California 94105-2482 (415) 268-7000 (Phone) (415) 268-7522 (Facsimile) MGoldman@mofo.com SFreccero@mofo.com DForan@mofo.com Attorneys for Defendants EPSON IMAGING DEVICES CORPORATION, EPSON ELECTRONICS AMERICA, INC., and SEIKO EPSON CORPORATION 23 24 25 26 27 28 4 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, AND PRODUCTION OF DATA Case No. 3:07-md-1827 SI / Case No. 10-cv-4572 1 2 3 4 5 6 7 By: /s/ Ramona M. Emerson Hugh F. Bangasser (Pro Hac Vice) Ramona M. Emerson (Pro Hac Vice) K&L Gates LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98004-1158 (206) 623-7580 (Phone) (206) 623-7022 (Facsimile) hugh.bangasser@klgates.com ramona.emerson@klgtes.com 11 Jeffrey L. Bornstein (State Bar No. 99358) K&L GATES LLP 4 Embarcadero Center, Suite 1200 San Francisco, CA 94111-5994 (415) 882-8200 (Phone) (415) 882-8220 (Facsimile) jeff.Bornstein@klgates.com 12 Counsel for Defendant HannStar Display Corporation 8 9 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 By: /s/ Kent M. Roger Kent M. Roger (State Bar No. 95987) Michelle Kim-Szrom (State Bar No. 252901) MORGAN LEWIS & BOCKIUS LLP One Market, Spear Street Tower San Francisco, CA 94105-1126 (415) 442-1000 (Phone) (415) 442-1001 (Facsimile) kroger@morganlewis.com mkim-szrom@morganlewis.com Counsel for Defendants Hitachi, Ltd., Hitachi Displays, Ltd. and Hitachi Electronic Devices (USA), Inc. By: /s/ Fusae Nara John M. Grenfell (State Bar No. 88500) Jacob R. Sorensen (State Bar No. 209134) Fusae Nara (pro hac vice) PILLSBURY WINTHROP SHAW PITTMAN LLP 50 Fremont Street San Francisco, CA 94105 (415) 983-1000 (Phone) (415) 983-1200 (Facsimile) john.grenfell@pillsbusylaw.com jake.sorensen@pillsburylaw.com 28 5 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, AND PRODUCTION OF DATA Case No. 3:07-md-1827 SI / Case No. 10-cv-4572 1 fusaenara@pillsburylaw.com 2 Counsel for Defendants Sharp Corporation and Sharp Electronics Corporation 3 4 5 6 7 By: /s/ Patrick J. Ahern Patrick J. Ahern (pro hac vice) BAKER & MCKENZIE LLP 130 East Randolph Drive Chicago, IL 60601 (312) 861-3735 (Phone) (312) 698-2034 (Facsimile) patrick.ahern@bakermckenzie.com 8 Counsel for Defendant Tatung Co. of America, Inc. 9 10 11 12 13 14 15 16 17 18 19 By: /s/ Michael A. Geibelson Roman M. Silberfeld (State Bar No. 62783) Michael A. Geibelson (State Bar No. 179970) ROBINS, KAPLAN, MILLER & CIRESI LLP 2049 Century Park East, Suite 3400 Los Angeles, CA 90067-3208 Telephone: 310-552-0130 Facsimile: 310-229-5800 Elliot S. Kaplan (Pending Pro Hac Vice Application) K. Craig Wildfang (Pending Pro Hac Vice Application) ROBINS, KAPLAN, MILLER & CIRESI LLP 800 LaSalle Avenue 2800 LaSalle Plaza Minneapolis, MN 55402 Telephone: 612-349-8500 Facsimile: 612-339-4181 20 21 22 Counsel for Plaintiffs Attestation: The filer of this document attests that the concurrence of the other signatories thereto has been obtained. 23 /s/ Michael R. Lazerwitz 24 25 26 SO ORDERED 2/10/11 By: _______________________________________ Judge of the U.S. District Court, N.D. California 27 28 6 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, AND PRODUCTION OF DATA Case No. 3:07-md-1827 SI / Case No. 10-cv-4572 1 ANNEX A: Best Buy’s Production of Data 2 STIPULATED DEFINITIONS 3 The words and phrases used in this Annex A shall have the meanings ascribed to them under the 4 Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the 5 Northern District of California. In addition, the following terms shall have the meanings set forth 6 below whenever used in any Request for Production of Documents. 7 8 1. “Acquired” or “acquisition” means or refers to, without limitation, anything given, purchased, received or that Best Buy came to possess. 9 2. “Document” and “documents” shall have the meaning ascribed to them under the 10 Federal Rules of Civil Procedure and shall also mean all electronically stored 11 information (“ESI”) including, without limitation, electronic data or data compilations, 12 electronic files, e-mail and other electronic communications saved to or located on 13 hard disks, file servers, floppy disks, CDs, DVDs, backup tapes, thumb drives, or any 14 other electronic media, whether or not in tangible or electronic form. 15 3. “Including” or “includes” means without limitation. 16 4. “TFT-LCD Panel” means a flat panel display screen, called a Thin Film Transistor 17 Liquid Crystal Display, that consists of a liquid crystal compound containing pixels 18 that are sandwiched between two pieces of glass called substrates, and each pixel has a 19 transistor built into it and changes polarization of light when voltage is applied to that 20 transistor; and, as used herein, the term “TFT-LCD Panel” includes a module 21 consisting of a TFT-LCD Panel attached to a backlight, a driver, and other elements 22 needed for the TFT-LCD Panel to modulate illumination and generate images. 23 5. “TFT-LCD Product” means a product or finished good that contains a TFT-LCD 24 25 Panel. 6. The term “person” or “persons” includes any natural person, public entity, partnership, 26 corporation, association, firm, trust, joint venture, agency, board, authority, 27 commission or other such entity. 28 7 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, AND PRODUCTION OF DATA Case No. 3:07-md-1827 SI / Case No. 10-cv-4572 1 7. “Type” means the product name, brand, model and product/serial number. 2 8. “Best Buy” means each of Plaintiffs Best Buy Co., Inc., Best Buy Purchasing LLC, 3 Best Buy Enterprise Services, Inc., Best Buy Stores, L.P., Best Buy China Ltd., and 4 Magnolia Hi-Fi, Inc. and each of their parent companies and subsidiaries. 5 9. “Net Purchase Price” “Contains the cost of the SKU for this Shipment/Location 6 combination based on the purchase order cost for the item.” OR “The unit cost for the 7 SKU on the order, including discounts (deal/bracket/allowance), but not landed cost 8 components.” 9 STIPULATED INSTRUCTIONS 10 1. The scope of documents subject to production in response to the production requests below 11 include all documents in Best Buy’s possession, custody, or control, wherever located, 12 including without limitation any document available to Best Buy upon request from its 13 parents, affiliates, subsidiaries, employees, officers, directors, attorneys, accountants, 14 financial advisors, consultants, private investigators, or other agents or persons acting or 15 purporting to act on Best Buy’s behalf, as required by the Federal Rules of Civil Procedure 16 and the applicable local rules. 17 2. All electronically stored information shall be produced in accordance with the Protocol 18 Governing the Production of Electronically Stored Information, attached as Exhibit A to the 19 Joint Case Management Conference Statement filed in this matter on January 10, 2008, and 20 binding on Best Buy under the Special Master’s Order of March 12, 2010 (Dkt. No. 1595). 21 Documents originating in paper or other hard copy format should be produced in 300 DPI 22 Group IV Monochrome Tagged Image File Format (.TIFF or .TIF) files. TIFF files shall be 23 produced in single-page format along with image load files (.DII file and .OPT file and .LFP 24 file). All documents are to be provided with multi-page searchable text (.TXT) files. These 25 text files and image load files should indicate page breaks to the extent possible, as well as 26 Production Number Begin, Production Number End, Production Attachment Range Number 27 Begin, Production Attachment Range Number End, and Production Document Page Count. 28 8 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, AND PRODUCTION OF DATA Case No. 3:07-md-1827 SI / Case No. 10-cv-4572 1 As well, each .TIFF image should be branded with the applicable Bates number and 2 confidentiality designation. 3 3. The production requests in this Annex are designed to capture, among other things, 4 acquisitions, sales, and transfer pricing, and to permit the tracing of products throughout 5 various plaintiffs. For example, if Best Buy Purchasing LLC purchased a TFT-LCD Product 6 from a manufacturer and then sent that TFT-LCD Product to Best Buy Stores L.P., which in 7 turn sold the TFT-LCD Product to a consumer, Best Buy Purchasing LLC’s data would show 8 both the acquisition from the manufacturer and the sale to Best Buy Stores L.P., and Best Buy 9 Stores L.P.’s data would show the acquisition from Best Buy Purchasing LLC and the sale to 10 the consumer. Further, the linking data would enable tracing of that TFT-LCD Product from 11 Best Buy Purchasing LLC’s acquisition from the manufacturer, through the various plaintiffs 12 and their parents and subsidiaries, to the sale of the TFT-LCD Product to a consumer. 13 14 15 STIPULATED PRODUCTION NO. 1: Purchase-For-Resale Data a. Best Buy will produce for the period January 1, 2003 through December 31, 2008, for each 16 TFT-LCD Panel or TFT-LCD Product Best Buy acquired that Best Buy subsequently resold, 17 data regarding that acquisition in the following categories: the purchase date; the vendor; the 18 TFT-LCD Panel or TFT-LCD Product name; the TFT-LCD Panel or TFT-LCD Product 19 brand; the TFT-LCD Panel or TFT-LCD Product model; the quantity purchased; the TFT- 20 LCD Panel’s or TFT-LCD Product’s manufacturer; the Net Purchase Price; the purchase 21 order number; the shipping identification number, and the SKU number. 22 b. Best Buy will produce data adequate to tabulate aggregate purchase totals by SKU for any 23 selected period from January 1, 1996 through December 31, 2002. The purchase data 24 provided under this section 1(b) is reflected in the Point of Sale data provided under 25 Production No. 2. The purchase data provided under this section 1(b) is constructed by 26 totaling the field called Tot Xtnd SKU Cost AMT by SKU from January 1, 1996 through 27 December 31, 2002. 28 9 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, AND PRODUCTION OF DATA Case No. 3:07-md-1827 SI / Case No. 10-cv-4572 1 2 3 STIPULATED PRODUCTION NO. 2: Sales Data a. Separately for each Best Buy entity, Best Buy will produce, for the period January 1, 1996 4 through December 31, 2008, for each sale by Best Buy of any TFT-LCD Panel or TFT-LCD 5 Product, data regarding that sale in the following categories: sale date; sale location by store 6 number; product name; product brand; quantity sold; net sales price; approximate net 7 purchase price; transaction keys, and SKU numbers. 8 9 b. Additional data can be gleaned from the other data provided, such as product descriptions from SKUs, and classes and subclasses of products. 10 STIPULATED PRODUCTION NO. 3: Linking Data 11 Best Buy states that it does not have data sufficient to track or link individual products sold to 12 individual products purchased for each sale to a customer, in other words, the purchase information 13 provided in response No. 1 to purchases identified in documents in Response No. 2. Best Buy will 14 identify people who can discuss Best Buy’s inventory control practices with respect to the TFT-LCD 15 Panels and TFT-LCD Products. 16 STIPULATED PRODUCTION NO. 4: Other Codes In Data Sets 17 Best Buy will provide the SKU information referenced above in Production No. 1 and Production No. 18 2, the product class and subclass information to which they belong that is contained in Best Buy’s 19 SKU look-up table for the included products and that discloses how Best Buy groups SKUs into 20 classes and subclasses) and that contains its narrative product descriptions for each SKU number. To 21 the extent the data provided under Production No. 1 and Production No. 2 above contain other codes, 22 symbols, or abbreviations (other than with respect to the product descriptions in the SKU look-up 23 table referred to in the preceding sentence), Best Buy will produce a key explaining the meaning of 24 any such codes, symbols, or abbreviations. 25 26 27 28 10 STIPULATION OF EXTENSION OF TIME TO RESPOND TO COMPLAINT, WAIVER OF SERVICE, AND PRODUCTION OF DATA Case No. 3:07-md-1827 SI / Case No. 10-cv-4572

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