Case 3:14-cv-03264-JD Document 2096 Filed 04/20/18 Page 1 of 3
`Joseph Saveri Law Firm, Inc.
`601 California St., Suite 1000
`San Francisco, CA 94108
` 
`April 20, 2018
`
`
`Via ECF and Hand Delivery
`
`Hon. Judge James Donato
`United States District Court
`450 Golden Gate Avenue
`Courtroom 11, 19th Floor
`San Francisco, California 94102
`
`REDACTED VERSION OF LETTER BRIEF SOUGHT TO BE SEALED
`
`Re: In re Capacitors Antitrust Litigation, No. 17-md-2801 – Direct Purchaser Plaintiffs’ Motion
`to Compel Panasonic to Produce the Custodial Documents of Takuya Abiru
`
`Your Honor:
`
`Direct Purchaser Plaintiffs (“Plaintiffs”) respectfully request the Court to order Defendants
`Panasonic Corporation and Panasonic Corp. of North America (collectively, “Panasonic”) to
`produce documents from the custodial files of Mr. Takuya Abiru, a current employee of Panasonic.
`Plaintiffs are taking Mr. Abiru’s deposition on April 25-26, 2018, and intend to hold the deposition
`open pending the Court’s order, pursuant to Paragraph 12 of the Court’s Standing Order on Civil
`Discovery.1 See Ex. 1 (Deposition Notice). The parties met and conferred but remain at an impasse.
`
`Panasonic (the ACPERA applicant) objects only on the ground that Mr. Abiru was not included in
`the initial set of document custodians negotiated in 2015 at the outset of discovery. Since that time,
`Plaintiffs have requested custodial files from a limited number of additional custodians, and have not
`yet filed a motion on this issue. Mr. Abiru was directly implicated in the cartel and is likely to
`possess responsive, non-duplicative documents. Discovery also shows that Mr. Abiru is aware of
`collusive conduct by others at Panasonic and Sanyo.
`1. Liberal Discovery Rules Support Plaintiffs’ Request for Mr. Abiru’s Documents
`
`Discovery is an ongoing process, and its purpose “is to provide a mechanism for making relevant
`information available to the litigants.” Burlington N. & Santa Fe Ry. v. United States Dist. Court,
`408 F.3d 1142, 1148-49 (9th Cir. 2005); see also Comput. Task Grp., Inc. v. Brotby, 364 F.3d 1112,
`1117 (9th Cir. 2004) (same). The Federal Rules create “a ‘broad right of discovery’ because ‘wide
`access to relevant facts serves the integrity and fairness of the judicial process by promoting the
`search for the truth.’” Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995) (quoting Shoen v.
`Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993)). Particularly in antitrust cases courts recognize that
`“broad discovery may be needed to uncover evidence of invidious design, pattern, or intent.” In re
`Cathode Ray Tube (CRT) Antitrust Litig., 2014 U.S. Dist. LEXIS 151222, *68 (quoting In re
`Urethane Antitrust Litig., 261 F.R.D. 570, 573 (D. Kan. 2009)) (internal quotation marks omitted).
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`1 Plaintiffs note that Panasonic has not brought a motion for a protective order to postpone the
`deposition. Thus, if the Court overrules Panasonic’s objection after the deposition, Plaintiffs
`intend to schedule a follow-up deposition to examine Mr. Abiru on his custodial files. See Standing
`Order ¶ 12.
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`1
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`Case 3:14-cv-03264-JD Document 2096 Filed 04/20/18 Page 2 of 3
`Joseph Saveri Law Firm, Inc.
`601 California St., Suite 1000
`San Francisco, CA 94108
` 
`Plaintiffs are not required to submit all requests at the outset of discovery, as such a rule would
`require plaintiffs to divine the very information that the discovery process is intended to provide.
`
`Facts discovered in the litigation since 2015 give rise to Plaintiffs’ decision to depose Mr. Abiru
`and current request to see his files. This request is proportional to the needs of the case, and
`Panasonic has not objected on the basis of any substantiated undue burden.
`2. Mr. Abiru’s Files Uniquely Document His Own Knowledge and Cartel Participation
`
`Specifically, discovery in this case has uncovered that Mr. Abiru, on behalf of Panasonic, was a
`registered meeting member of “ECC” meetings in 2001 and 2003 as well as TC meetings in 2002.
`See Depo. Ex. 1854; Depo. Ex. 1626; Depo. Ex. 1627.2 Documents produced by Defendant
`KEMET further reveal that Mr. Abiru had a long history of meeting with Daniel Persico, Per Olof
`Loof, and other KEMET employees, to exchange competitor information, including regarding
`Nichicon and Sanyo. See, e.g., KEM1438692. For example, a May 8, 2002 KEMET report
`documents a meeting at which six Panasonic and KEMET employees, including Mr. Persico and
`Mr. Abiru, discussed topics such as future capacitors manufacturing capacity and market growth,
`as well the establishment of
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` Depo. Ex. 2791. Information exchanges continued until at least
`October 2007. As reported in a note produced from Mr. Loof’s custodial files, titled
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` KEM1104308.
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`Panasonic also has admitted that Mr. Abiru, as the head of the industrial sales division, was in
`charge of compliance in that division and was responsible for authorizing attendance at competitor
`meetings. See Panasonic Rule 30(b)(6) Depo. Tr. (Feb. 7, 2018) at 107. Documents produced in
`this litigation confirm that Mr. Abiru knew of other Panasonic employees’ attendance at cartel
`meetings, including the content of the collusive discussions that took place at those meetings. See
`Depo. Ex. 57; Depo. Ex. 1877. At least as to certain meetings, it is clear that Mr. Abiru also
`understood that such meeting attendance or communications violated Panasonic’s antitrust
`compliance policies. See Depo. Ex. 855 (email from Mr. Abiru reprimanding staff for continuing to
`exchange competitor information
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` and adding that such
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`. From Panasonic’s productions to-date, however, it remains unclear
`whether Mr. Abiru ever reported or took any disciplinary actions in response to such violations.
`3. Plaintiffs Do Not Have Other Means of Obtaining the Same Information
`
`Although other discovery has provided glimpses of Mr. Abiru’s personal involvement in and
`knowledge of Panasonic’s and other Defendants’ participation in the capacitors cartel, Mr. Abiru’s
`own custodial files are certain to contain more expansive and detailed information on these topics.
`Information in Mr. Abiru’s files has not been otherwise produced, in part because Panasonic
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`2
`Plaintiffs will provide supporting documents cited in this letter to the Court upon request.
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`2
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`Case 3:14-cv-03264-JD Document 2096 Filed 04/20/18 Page 3 of 3
`Joseph Saveri Law Firm, Inc.
`601 California St., Suite 1000
`San Francisco, CA 94108
` 
`presented an undereducated and bandying witness as its Rule 30(b)(6) designee. See ECF No. 147.
`
`Moreover, Mr. Abiru’s role as a non-legal compliance officer in charge of Panasonic’s capacitors
`unit likely means that his custodial files contain non-privileged documents about Panasonic’s
`internal investigations into the conspiracy. See Largan Precision Co v. Genius Elec. Optical Co., No.
`13-cv-02502-JD, 2015 U.S. Dist. LEXIS 2072, at *16 (N.D. Cal. Jan. 8, 2015); United States v. ISS
`Marine Servs., 905 F. Supp. 2d 121, 134-38 & nn.8-9 (D.D.C. 2012). Furthermore, because
`Panasonic inappropriately—and uncooperatively—withheld or clawed back key documents on the
`bases of improper privilege or work-product assertions,3 Plaintiffs do not have other means to
`access information concerning compliance investigations contained in Mr. Abiru’s files.
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`For the foregoing reasons, the Court should grant Plaintiffs’ Motion to Compel and order
`Panasonic to produce Mr. Abiru’s custodial files within fourteen days of the Court’s order.
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`*
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`*
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`*
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`Respectfully,
`
`Joseph Saveri Law Firm, Inc.
`
`/s/ Joseph R. Saveri
`Interim Lead Class Counsel for Direct Purchaser Plaintiffs
`
`cc: All Counsel (via email)
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`
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`                                                            
`3 For example, Panasonic’s privilege or clawback logs indicate that a large number of the withheld
`documents involved compliance unit employees in cursory roles (such as in the CC field) or
`involved non-attorney employees of the central compliance department. In addition, Mr. Abiru’s
`name appears on multiple log entries of communications between entirely non-legal staff—i.e.,
`without any central compliance department staff, even in the carbon copy field.
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`3
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