Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 1 of 27
`
`
`Joseph R. Saveri (State Bar No. 130064)
`Andrew M. Purdy (State Bar No. 261912)
`Matthew S. Weiler (State Bar No. 236052)
`James G. Dallal (State Bar No. 277826)
`Ryan J. McEwan (State Bar No. 285595)
`JOSEPH SAVERI LAW FIRM, INC.
`555 Montgomery Street, Suite 1210
`San Francisco, California 94111
`Telephone:
`(415) 500-6800
`Facsimile:
`(415) 395-9940
`E-mails:
`
`jsaveri@saverilawfirm.com
`apurdy@saverilawfirm.com
`mweiler@saverilawfirm.com
`jdallal@saverilawfirm.com
`rmcewan@saverilawfirm.com
`
`
`Interim Lead Counsel for Direct Purchaser Plaintiffs
`
`Joseph W. Cotchett (State Bar No. 36324)
`Steven N. Williams (State Bar No. 175489)
`Adam J. Zapala (State Bar No. 245748)
`Elizabeth Tran (State Bar No. 280502)
`COTCHETT, PITRE & McCARTHY, LLP
`840 Malcolm Road, Suite 200
`Burlingame, CA 94010
`Telephone: (650) 697-6000
`Facsimile:
`(650) 697-0577
`E-mails:
`jcotchett@cpmlegal.com
`
`swilliams@cpmlegal.com
`
`azapala@cpmlegal.com
`
`etran@cpmlegal.com
`
`Interim Lead Counsel for Indirect Purchaser Plaintiffs
`
`[Additional Counsel Listed on Signature Page]
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`IN RE CAPACITORS ANTITRUST
`LITIGATION
`
`
`THIS DOCUMENT RELATES TO: ALL
`ACTIONS
`
`
`
` Master File No.: 3:14-cv-03264-JD
`
`JOINT STATUS CONFERENCE
`STATEMENT
`
`Date:
`Time:
`Place:
`Judge:
`
`January 13, 2016
`10:00 a.m.
`Courtroom 11, 19th Floor
`Hon. James Donato
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`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 2 of 27
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`In advance of the Case Status Conference set by the Court for Wednesday, January 13, 2016,
`at 10:00 a.m., Defendants,1 Direct Purchaser Plaintiffs (“DPPs”), and Indirect Purchaser Plaintiffs
`(“IPPs” and, together with DPPs, the “Plaintiffs”2), hereby submit this Joint Status Conference
`
`Statement.
`I.
`A.
`
`DEVELOPMENTS SINCE THE PARTIES’ LAST STATUS CONFERENCE
`Class Certification Schedule
`
`This Court held a previous Status Conference on September 30, 2015. Dkt. 917. At the
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`September 30, 2015 status conference, and in the Court’s subsequent Minute Entry, the Court
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`directed the parties to submit a stipulation on a modified schedule for briefing class certification. Id. at
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`3. The Court also directed DPPs and Flextronics to submit an agreement or a statement that they had
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`reached or not reached agreement on the cost-sharing and other coordination issues addressed at the
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`hearing, and directed the parties to propose a stipulated order on IPPs’ efficiency proposals regarding
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`production of transactional sales data and related background information. Id.
`
`On October 7, 2015, the parties filed a joint stipulation and proposed order requesting a
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`briefing schedule for resolution of their dispute regarding the class certification briefing schedule.
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`Dkt. 920. On October 9, 2015, the Court issued an order denying the parties’ request for a briefing
`
`schedule, and granted a four-month extension of all class certification deadlines. Under the order,
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`class certification motions must be filed by June 13, 2016, oppositions are due on September 2, 2016,
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`and reply briefs are due on October 27, 2016, and the hearing on class certification motions will take
`
`place on November 16, 2016. Dkt. 924.
`
`
`
`1 In keeping with the Court’s expressed preference for attendance by lead counsel at status
`conferences in the October 30, 2014 Minute Order, lead counsel for the undersigned Defendants are
`making every effort to attend the status conference in person. Lead counsel for AVX, the ELNA
`Defendants, Hitachi Chemical Defendants, Nitsuko, Shinyei Defendants, and Shizuki Defendants
`will be unable to attend the conference due to pre-existing obligations; these Defendants will be
`represented at the hearing by other of their counsel of record who will be fully prepared to address
`any issues that arise.
`2 This Joint Status Conference Statement is also filed on behalf of Plaintiff Flextronics International
`USA, Inc. (“Flextronics”). Flextronics, however, has no ripe disputes with Defendants at this time.
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 3 of 27
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`B.
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`Defendants’ FTAIA Motions for Summary Judgment
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`On October 1, 2015, Defendants filed a Motion for Partial Summary Judgment Dismissing
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`Plaintiffs’ Indirect Purchaser Claims Based on Foreign Sales Or, in the Alternative, to Simplify the
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`Issues Under Fed. R. Civ. P. 16 (Dkt. 911), and a Motion for Partial Summary Judgment Dismissing
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`DPPs’ Sherman Act Claims for Foreign Transactions or, in the Alternative, to Simplify the Issues
`
`Under Fed. R. Civ. P. 16 (Dkt. 915). Defendants included 19 fact declarations in support of their
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`motions. See Dkt. 910-12, 914-16.
`
`On October 19, 2015, the parties filed a joint stipulation and proposed order extending the
`
`schedule on Defendants’ FTAIA motions to allow for Plaintiffs to take the depositions of the fact
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`declarants. Dkt. 930. On October 21, 2015, the Court granted and entered the parties’ stipulation
`
`extending the schedule for remaining briefing on Defendants’ FTAIA motions. Dkt. 934. Under the
`
`stipulated schedule, Plaintiffs’ Opposition briefs were due on November 23, 2015, and Defendants’
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`Reply briefs were due on December 18, 2015. Id. The hearing on the FTAIA motions is set for
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`January 13, 2016.
`
`On November 23, 2015, IPPs filed their Opposition to Defendants’ FTAIA motion. Dkt. 965.
`
`Also on November 23, 2015, DPPs and Flextronics filed their Opposition to Defendants’ FTAIA
`
`motion. Dkt. 967-69. DPPs also submitted a related Request for Denial or Continuance of Summary
`
`Judgment Under Fed. R Civ. P. 56(d). Dkt. 970. Flextronics also submitted a Declaration in Support
`
`of DPPs’ and Flextronics’s Opposition, and submitted an additional Request for relief under Rule
`
`56(d). Dkt. 966.
`
`On December 16, 2015, DPPs filed a Supplement to DPPs’ and Flextronics’s Opposition to
`
`Defendants’ FTAIA motion, addressing two depositions of facts witnesses who submitted
`
`declarations in support of Defendants’ Motion that took place after the deadline for filing Opposition
`
`briefs. Dkt. 981.
`
`On December 18, 2015, Defendants filed their replies in support of their FTAIA motion. See
`
`Dkt. 987, 985. In addition to Defendants’ joint Reply, the Taitsu Defendants filed a separate reply
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`brief addressing DPPs’ claims. Dkt. 989.
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 4 of 27
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`C.
`
`The Shizuki Defendants’ Motion to Dismiss
`
`On October 14, 2015, the Shizuki Defendants filed a Motion to Dismiss the Direct Purchaser
`
`Plaintiffs’ and Flextronics’s Second Amended Consolidated Complaint. Dkt. 927. On November 2,
`
`2015, DPPs and Flextronics filed an Opposition to the Shizuki Defendants’ Motion to Dismiss. Dkt.
`
`943. On November 10, 2015, the Shizuki Defendants filed their Reply brief. Dkt. 947. On December
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`30, 2015, the Court granted in part and denied in part the Shizuki Defendants’ motion to dismiss the
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`DPPs’ complaint. Dkt. 1003.
`D.
`Custodial Discovery Dispute with Nippon Chemi-Con Corporation
`
`On October 20, 2015, Plaintiffs filed a Discovery Letter Brief requesting an order directing
`
`Defendant Nippon Chemi-Con (“NCC”) to designate additional document custodians to replace
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`custodians previously designated for whom NCC did not have any available custodial documents or
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`ESI. Dkt. 932. On October 22, 2015, the Court issued an order directing NCC to respond to
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`Plaintiffs’ Discovery Letter Brief by October 29, 2015. Dkt. 935. On October 29, 2015, NCC filed its
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`Response. Dkt. 941.
`
`On November 6, 2015, the Court held a telephonic hearing on Plaintiffs’ Discovery Letter
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`Brief. As memorialized in a November 9, 2015 Minute Order, the Court permitted Plaintiffs to
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`“obtain the ESI for the four substitute custodians identified in plaintiffs’ letter (Dkt. No. 932). So
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`long as plaintiffs split the cost of that additional discovery with NCC.” The Court directed NCC to
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`provide Plaintiffs a reasonable and well-documented estimate of the cost of this additional discovery,
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`directed the parties to meet and confer in an effort to reach agreement, and held that the parties could
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`seek the Court’s additional assistance in the event they failed to reach agreement. Dkt. 946. On
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`January 4, 2016, after several meet and confer meetings and reaching impasse on the issue, Plaintiffs
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`and NCC submitted a joint discovery letter for this Court’s consideration. Dkt. 1004.
`E.
`Toshin Kogyo Co., Ltd.’s Default
`
`The Court has denied four motions to dismiss filed on behalf of Defendant Toshin Kogyo Co.,
`
`Ltd. by Mr. Kenji Kasahara, an individual who is not a member of the bar of this Court. On
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`September 28, 2015, the Court issued an order directing Toshin Kogyo to show cause, in writing, why
`
`the Court should not impose upon Toshin Kogyo sanctions in the form of a pre-filing order restricting
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 5 of 27
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`its ability to further file papers through Mr. Kasahara or any other person who is not a member of the
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`bar of this Court. On October 23, 2015, the Court issued an order holding that the Clerk’s Office must
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`reject and return to the sender any papers that may be presented on behalf of Toshin Kogyo Co., Ltd.,
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`if they are submitted by Kenji Kasahara or any other person who is not a member of the bar of this
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`Court. Dkt. 937.
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`Plaintiffs intend to move the Court for a default judgment with respect to Toshin Kogyo Co.,
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`Ltd.
`F.
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`Nissei Electric Co., Ltd.’s Motion to Dismiss
`
`On November 20, 2015, Defendant Nissei Electric Co., Ltd. (“Nissei”) filed a Motion to
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`Dismiss for Lack of Personal Jurisdiction. Dkt. 963. On December 2, 2015, Plaintiffs and Nissei filed a
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`stipulation and proposed order enlarging time for the briefing schedule to permit the parties to
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`negotiate a schedule for the taking of discovery relevant to Nissei’s motion. Dkt. 975. On December
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`4, 2015, the Court so ordered the stipulation. Dkt. 977.
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`On December 17, 2015, Plaintiffs and Nissei filed a further stipulation and proposed order
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`regarding a schedule for discovery and briefing on Nissei’s motion. Dkt. 982. The Court issued an
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`order setting a modified schedule for discovery and briefing on Nissei’s Motion to Dismiss. Dkt. 988.
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`In accordance with the parties’ stipulation and this Court’s order, on December 21, 2015, Plaintiffs
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`served Nissei with discovery relevant to its jurisdictional motion.
`G.
`The Court’s Ruling on Defendants’ Motions to Dismiss
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`On December 30, 2015, the Court issued an order (1) granting Defendants’ motion to dismiss
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`the IPPs’ complaint as to non-California state law claims; (2) denying Hitachi Chemical Co. America,
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`Ltd.’s motion to dismiss the IPPs’ complaint; (3) denying AVX’s motion to dismiss the DPPs’
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`complaint; (4) denying the Holy Stone Defendants’ motion to dismiss the DPPs’ complaint; (5)
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`denying Hitachi Chemical Co. America, Ltd.’s motion; and granting in part and denying in part the
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`Shizuki Defendants’ motion to dismiss the DPPs’ complaint, dismissing the claims against American
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`Shizuki Corporation. Dkt. 1003.
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`IPPs can amend their complaint by January 27, 2016, but only for the purposes of identifying
`
`named Plaintiffs in states other than California who sufficiently suffered Article III injury. DPPs can
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 6 of 27
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`amend their complaint by January 27, 2016, but only for the purposes of adding factual allegations
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`against ASC. Id.
`H. Miscellaneous Matters
`
`On October 5, 2015, the Court entered as an order the parties’ Stipulation on Non-Party
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`Discovery. Dkt. 918.
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`On October 8, 2015, the Court denied Direct Purchaser Plaintiffs’ September 4, 2015 Motion
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`for Administrative Relief to Consider Whether Cases Should Be Related or a Sua Sponte Judicial
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`Referral for Purpose of Determining Relationship (Dkt. 876). Dkt. 923.
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`On November 11, 2015, the parties submitted a proposed stipulation concerning discovery of
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`documents produced to non-U.S. antitrust enforcement authorities (Dkt. 949), which the Court
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`entered as an order on November 16, 2015. Dkt. 953.
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`On December 4, 2015, DPPs and Defendant Fujitsu, Ltd. (“Fujitsu”) filed a stipulation and
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`proposed order extending the existing stay of proceedings as to Fujitsu pending completion of
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`settlement. Dkt. 978.
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`On December 8, 2015, the Court issued an order granting DPPs’ and Fujitsu’s stipulation
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`requesting an extension of the litigation stay as to Fujitsu until January 11, 2016, but advised that it
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`would not grant any further extensions. Dkt. 980.
`II.
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`REPORT ON DISCOVERY MATTERS
`A. Scheduling of Merits Deposition Discovery
`1.
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`Plaintiffs’ Statement
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`On December 10, 2015, Plaintiffs contacted counsel for Hitachi, Matsuo, Okaya, Shinyei, and
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`the Taitsu Defendants, seeking to meet and confer regarding the scheduling of depositions of the
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`following individuals for depositions beginning in mid-February 2016.
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`Name
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`Defendant
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`Title/Responsibility
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`Sadaaki Mori
`
`Hitachi
`
`Manager of Capacitor Sales
`Department
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 7 of 27
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`Name
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`Defendant
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`Title/Responsibility
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`Satoshi Okubo
`
`Matsuo
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`Akihiko Ikazaki
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`Okaya
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`Kiyomi Kato
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`Shinyei
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`Shinobu Ishigami
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`Taitsu
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`Overseas Sales Department,
`Sales Division
`
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`Manager, Market
`Development Dept., Sales
`Development Headquarters
`
`
`Manager, Tokyo Sales
`Group, Condenser Sales
`Department;
`Sales Manager; Division
`Manager – Sales
`
`General Manager,
`Engineering and Sales
`Department;
`Head of Sales
`
`
`
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`As of the date of this status conference statement, Plaintiffs are aware only of the Taitsu
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`witness’s availability for deposition. Taitsu’s counsel informed Plaintiffs on a December 15, 2015
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`teleconference that Mr. Ishigami would be available in or about February 15, 2016 for deposition only
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`in Japan. Matsuo’s counsel informed Plaintiffs on a December 15, 2015 teleconference that Mr.
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`Okubo will assert the Fifth Amendment and refuse to answer questions at deposition. Plaintiffs
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`informed Matsuo the same day that notwithstanding the invocation of the Fifth Amendment,
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`Plaintiffs intended to proceed with the deposition and again asked for Mr. Okubo’s availability.
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`Matsuo’s counsel has not responded. Instead, on January 5, 2016, Matsuo’s counsel noted—for the
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`first time—that Mr. Okubo was once employed by ELNA, and that any scheduling of his deposition
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`needs to involve ELNA’s counsel. Matsuo has not yet provided a response nor obtained a deposition
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`date. Hitachi’s counsel indicated in a January 5, 2016 teleconference that its witnesses would be made
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`available, but that Hitachi preferred having a global discussion among the parties regarding deposition
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`scheduling and protocol prior to Mr. Mori being deposed. On January 6, 2016, the Okaya and Shinyei
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`Defendants informed Plaintiffs that they would be taking the same position as Hitachi.
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 8 of 27
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`Knowing the availability of these individuals is important not only because Plaintiffs must
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`allocate the time and effort preparing for these depositions, but also because Plaintiffs may have to
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`comply with significant and burdensome procedural requirements. In Japan, depositions of Japanese
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`citizens are only permitted to take place in either the U.S. Embassy in Tokyo or the U.S. Consulate in
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`Osaka. In either case, reservations for depositions must be made several weeks, and in some cases
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`months, in advance of a noticed date. Reservations will not be permitted until a deposition has been
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`noticed. And, both the Embassy and the Consulate have only limited space for attending lawyers, with
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`no phone access. Accordingly, to the extent that any depositions will occur in Japan, significant
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`cooperation between the parties will be required.
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`If Defendants do not provide Plaintiffs with a choice of dates, Plaintiffs will proceed with the
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`policy set forth in Rule 30 to notice and take depositions. Further, as additional depositions will be
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`noticed shortly, Plaintiffs expect that they will be scheduled promptly and in accordance with
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`paragraph 8 of Your Honor’s Standing Order regarding Civil Discovery.
`2.
`Defendants’ Statement
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`Regarding the scheduling of depositions, there are no issues ripe for the Court to decide.
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`Plaintiffs have emailed five Defendants to request depositions, and on Monday, January 4, Plaintiffs
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`requested a meet and confer with all parties to discuss logistics of all depositions. Defendants are
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`willing to participate in such a meet and confer and are determining scheduling availability for a
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`meeting. As described below, the five Defendants that received specific deposition requests are
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`participating in meet-and-confers with Plaintiffs to resolve logistical issues that apply to all
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`depositions and to resolve availability of individual witnesses.
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`Hitachi. Hitachi responded one day after receiving Plaintiffs’ December 10, 2015 request and
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`proposed multiple times for a call with Plaintiffs. Hitachi participated in an initial meet and confer
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`with the DPPs on January 5, 2016, during which Hitachi’s counsel requested that the parties conduct
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`the global discussion regarding logistics in order to better facilitate discussions about individual
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`depositions. Hitachi also asked Plaintiffs to provide at least a partial list of Hitachi witnesses that
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`Plaintiffs planned to depose in order to more efficiently coordinate a deposition schedule in the least
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`burdensome manner. The parties agreed to continue to meet and confer to discuss these issues.
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 9 of 27
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`Okaya. The Okaya Defendants have communicated with Plaintiffs multiple times since
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`receipt of Plaintiffs’ deposition request and even proposed times to confer which were ignored by
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`Plaintiffs. As they have told Plaintiffs, the Okaya Defendants will use their best efforts to make the
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`witness available for deposition in Japan as requested. Like the Hitachi Defendants, the Okaya
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`Defendants strongly prefer a global discussion regarding scheduling to so that the parties can be more
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`efficient by covering multiple depositions in any one trip.
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`Matsuo. Matsuo promptly responded to Plaintiffs’ request to depose Satoshi Okubo, and
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`scheduled a meet and confer call with Plaintiffs on December 15, 2015, only 3 business days after their
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`request. Since learning that Plaintiffs will pursue Mr. Okubo’s deposition, Matsuo’s counsel has
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`indicated that its witness will be made available, but that Plaintiffs must coordinate with all parties
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`regarding deposition scheduling and protocol. This is particularly relevant for Mr. Okubo, as he was
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`previously an employee of ELNA and Plaintiffs have apparently made no effort to contact ELNA’s
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`counsel.
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`Shinyei. The Shinyei Defendants have communicated with Plaintiffs since receipt of
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`Plaintiffs’ deposition request and proposed times to meet and confer to Plaintiffs. The Shinyei
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`Defendants also informed Plaintiffs that they would like to work with Plaintiffs to reach a mutual
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`agreement regarding a logical way to proceed with Plaintiffs’ request to take multiple depositions.
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`Like the Hitachi and Okaya Defendants, the Shinyei Defendants strongly prefer a global discussion
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`regarding deposition scheduling so that the parties can be more efficient by covering multiple
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`depositions in any one trip.
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`Taitsu. Taitsu promptly responded to Plaintiffs’ request to depose Shinobu Ishigami and held
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`a meet-and-confer call with Plaintiffs December 15, 2015. During the meet-and-confer, counsel for
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`Taitsu readily agreed to make Mr. Ishigami available for deposition for a wide range of dates. The
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`parties ultimately agreed upon the week of February 15, 2015. Plaintiffs further agreed that Mr.
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`Ishigami would be deposed in Japan.
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`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 10 of 27
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`B. Location of Depositions
`1.
`Plaintiffs’ Statement
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`As of the date of this statement, Plaintiffs have not yet had a group meet and confer with all
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`Defendants concerning the location of depositions. Consistent with Fed. R. Civ. P. 1 and the orderly
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`and efficient administration of this litigation, Plaintiffs believe that all depositions should
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`presumptively occur in the United States, and, specifically, in the Northern District of California—a
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`convenient location for both the Japan-based Defendants and the parties’ U.S.-based attorneys.
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`Notably, numerous courts overseeing complex antitrust class actions have ruled that this should be
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`the case. See, e.g., In re Vitamin Antitrust Litig., 2001 U.S. Dist. LEXIS 25070, *59 (D.D.C. Sept. 10,
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`2001) (“Vitamins”); Order re Discovery and Case Management Protocol, In re Cathode Ray Tube
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`Antitrust Litig., Case No. 3:07-cv-05944, ECF No. 1128 (N.D. Cal. Apr. 3, 2012) (“CRT”);
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`Amended Order on Joint Discovery Letter re Deposition Protocol and Joint Discovery Status Report
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`at § D, In re Lithium-ion Batteries Antitrust Litig., Case No. 4:13-md-02420, ECF No. 558 (N.D. Cal.
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`Nov. 18, 2014) (“Batteries”); Order re Depositions at ¶ 5, In re Static Random Access Memory
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`Antitrust Litig., Case No. M:07-cv-01819, ECF No. 672 (N.D. Cal. Apr. 10, 2009) (“SRAM”); and
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`Order re: Deposition Protocol at § V, In re TFT-LCD Antitrust Litig. (“Flat Panel”), Case No. 3:07-
`md-01827, ECF No. 1546 (N.D. Cal. Feb. 17, 2010).3 Accordingly, following this Status Conference,
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`Plaintiffs intend to meet and confer with Defendants regarding the submission of a stipulated order to
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`the Court regarding the location of the parties’ depositions in this action. Should Defendants insist
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`that all depositions occur in Japan (or elsewhere overseas), this will undoubtedly cause all parties to
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`3 See also, e.g., Order re Location of Depositions [Docket No. 705] at ¶ 5, In re Optical Disk Drive
`Antitrust Litig., Case No. 3:10-md-02143, ECF No. 707 (Oct. 24, 2012) (“It is the Court’s experience
`that, and the parties should consider whether, the United States, including but not limited to the
`Northern District of California, is often the most efficient and inexpensive location for the
`depositions of foreign resident witnesses.”); Amendment No. 1 to Discovery Plan at § B.6.b, In re
`Dynamic Random Access Memory Antitrust Litig., Case No. 4:02-md-01486, ECF No. 731 (Mar. 8,
`2006) (“DRAM”) (“The Court expects, to the extent a witness has traveled to the United States for
`business, or otherwise does business in the United States, generally that those witnesses[’]
`depositions will occur in the United States.”). At a hearing on December 22, 2015, the Special Master
`in In re Automotive Parts Antitrust Litigation, Master File No. 12-md-02311 (E.D. Mich.) (“Auto
`Parts”), found Vitamins persuasive and ordered all defendants to arrange for depositions of their
`current employees in the United States. The Special Master is expected to enter an order related to
`this ruling in January 2016.
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`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 11 of 27
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`incur significant and unnecessary expenses flying teams of lawyers, court reports and videographers
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`overseas. It will also undoubtedly alter this Court’s schedule, causing unnecessary delays in this
`litigation.
`2.
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`Defendants’ Statement
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`As Plaintiffs acknowledge above, the parties have not yet had a collective meet and confer with
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`all Defendants regarding the location of depositions and establishment of a deposition protocol.
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`Plaintiffs first requested this meet and confer two days ago, on January 4, 2016. As noted above,
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`Defendants are willing to participate and are coordinating schedules. Thus, there are no disputes that
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`are ripe for the Court’s resolution at this time.
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`However, Defendants disagree with Plaintiffs’ assertion that the depositions should
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`presumptively be held in the Northern District of California. The Rule 26(f) Stipulation and Order
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`governing discovery limits in this case allow Plaintiffs to depose up to 135 Defendant percipient
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`witnesses. Dkt. 725 at 1. When agreeing to this number, the parties did not discuss where the
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`depositions would occur, and Defendants expected that the majority of the depositions would be held
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`where the majority of the witnesses are located: in Japan. Indeed, courts in this district have found
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`that foreign witness’s deposition should be held in the forum where the witness resides and/or works.
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`See, e.g., In re Transpac. Passenger Air Trans. Antitrust Litig., No. C-07-05634, 2013 WL 6730165, at
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`*3 (N.D. Cal. Dec. 20, 2013) (rejecting Plaintiffs’ request to compel depositions in the U.S. instead of
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`Taiwan); Mech. Mktg. v. Sixxon Precision Mktg. Mach. Co., No. C 11-01844, 2012 U.S. Dist. LEXIS
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`123177, at *4 (N.D. Cal. Aug. 29, 2012) (rejecting Plaintiff’s motion to compel deposition in
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`California instead of Taiwan despite the fact that counsel for both parties and the court were located
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`in California). Notwithstanding this disagreement in positions, Defendants expect to resolve this issue
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`with Plaintiffs by collectively meeting and conferring and the establishing global deposition protocol.
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`Moreover, in light of the limited capacity at U.S. Embassy in Tokyo or the U.S. Consulate in Osaka,
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`Defendants are willing to consider conducting depositions in other locations close to the witnesses’
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`place of residence and/or employment, such as Taiwan or South Korea. But at this time, Defendants
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`and Plaintiffs both agree that there are not any issues regarding depositions that currently require the
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`Court’s intervention.
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`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 12 of 27
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`C. Plaintiffs’ and Nippon Chemi-Con’s Dispute Regarding Production of ESI from
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`Substitute Custodians
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`As set forth in Section I.D., supra, Plaintiffs and NCC have a dispute concerning substitute
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`custodians. This issue is fully briefed. Plaintiffs request argument on this issue at the Status
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`Conference. NCC defers to the Court whether such additional argument is necessary to decide the
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`matter, but will be prepared to do so in the event it would be helpful to the Court.
`D. Transactional Sales Data
`1.
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`Plaintiffs Statement
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`Since the parties’ last status conference, DPPs, IPPs, and their respective econometricians
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`have done much work organizing and analyzing Defendants’ voluminous transactional data sets—250
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`GB in total, spread across more than 30,000 files, covering between 8 to 14 years’ worth of data
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`depending on the Defendant—in order to understand the commerce at issue in this case. This work
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`has included, among other things: translating a substantial amount of foreign language data to English;
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`analyzing data to determine its content; decoding Defendant-specific data fields and determining the
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`import of the values contained within them; identifying incomplete, inconsistent, inaccessible and
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`missing data and seeking to cure these problems; and meeting and conferring with willing Defendants
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`to address certain of these issues that hinder Plaintiffs’ respective ability to organize the data for
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`analysis. Many of the problems with Defendants’ data identified by Plaintiffs and their
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`econometricians to date were highlighted in their respective oppositions to Defendants’ Motions for
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`Summary Judgment on the FTAIA. For example, certain Defendants fail to have consistent or even
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`complete means of identifying the billing or shipping addresses for their customers, or claim as the
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`U.S. sales price of their capacitors the their internal transfer price from the foreign corporate parent
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`to its U.S.-based subsidiary rather that the U.S. subsidiary’s sale price to its customers. Other
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`Defendants fail to even have sales price information of their U.S. based subsidiaries.
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`Despite the significant progress Plaintiffs have made in organizing and analyzing Defendants’
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`transactional data, issues remain—including those issues raised during the FTAIA-related discovery.
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`Most Defendants have agreed to meet and confer with Plaintiffs to address their additional questions
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`regarding form, content, and completeness of the transactional records memorialized in the raw data
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`JOINT STATUS CONFERENCE STATEMENT – MASTER FILE NO.: 3:14-CV-03264-JD
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`Case 3:14-cv-03264-JD Document 1005 Filed 01/06/16 Page 13 of 27
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`produced to date. Not all the meet and confers have been productive and, should this continue to be
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`the case, Plaintiffs will seek testimony at 30(b)(6) depositions regarding sales transactional issues to
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`get the answers they seek.
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`Contrary to Defendants’ statement below, DPPs and IPPs are now coordinating their efforts
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`regarding questions concerning transactional data. But any alleged burden on Defendants is illusory.
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`To the extent a Defendant has answered a question posed by one of the plaintiff groups, copying and
`pasting the same answer into a separate questionnaire by another plaintiff group is no burden at all.
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`That said, Plaintiffs are making efforts not to duplicate questions.
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`Further, Defendants’ statement below regarding the scope of their transactional sales data that
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`is discoverable and should be analyzed for determining the impact of Defendants’ anticompetitive
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`behavior and the damages Plaintiffs incurred as a result is incorrect. As set forth in the DPPs FTAIA
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`opposition brief, Defendants’ capacitors sales billed to and paid for by customers located in the
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`United States are not the only transactions pertinent to Plaintiffs’ claims. Other types of sales by
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`Defendants—e.g., Defendants’ sales to foreign affiliates or subsidiaries of U.S.-based parent
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`companies, import sales into the United States, sales to corporate families under a global pricing
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`policy—are all transactions that come within the scope of the Sherman Act.