Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 1 of 19
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`Charles E. Tompkins (admitted pro hac vice)
`Jordan D. Shea (admitted pro hac vice)
`Williams Montgomery & John Ltd.
`233 S. Wacker Drive, Suite 6100
`Chicago, IL 60606
`Telephone: (312) 443-3200
`Facsimile: (312) 630-8500
`CET@willmont.com
`JDS@ willmont.com
`
`Lesley E. Weaver (State Bar Number 191305)
`lweaver@blockesq.com
`BLOCK & LEVITON LLP
`520 3rd Street, Suite 180
`Oakland, CA 94607
`Telephone: (415) 968-8992
`Facsimile: (617) 507-6020
`
`Attorney for Plaintiff
`(Additional counsel listed on signature page)
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`
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`
`
`In re Capacitors Antitrust Litigation
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`
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`This document relates to:
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`DIRECT PURCHASER CLASS ACTION AND
`FLEXTRONICS INTERNATIONAL USA, INC.’S
`INDIVIDUAL ACTION
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`Case No. 3:14-CV-03264-JD
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`
`NOTICE OF MOTION AND
`MEMORANDUM OF LAW IN SUPPORT
`OF INDIVIDUAL (NON CLASS)
`PLAINTIFF FLEXTRONICS
`INTERNATIONAL USA, INC.’S MOTION
`FOR ORDER (1) COMPELLING INTERIM
`LEAD COUNSEL FOR THE DIRECT
`PURCHASER PLAINTIFFS TO PROVIDE
`ACCESS TO THE DISCOVERY RECORD
`AND (2) MODIFYING THE ORDER
`APPOINTING INTERIM LEAD COUNSEL
`FOR THE DIRECT PURCHASERS,
`DOCKET 319
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`October 7, 2015
`Date:
`10:00 a.m.
`Time:
`Courtroom: 11, 19th Floor
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`Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 2 of 19
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ..................................................................................................................... iii 
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`I. 
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`II. 
`
`STATEMENT OF THE ISSUED PRESENTED ............................................................................1 
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`INTRODUCTION AND SUMMARY OF ARGUMENT ..............................................................1 
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`III. 
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`STATEMENT OF FACTS ..............................................................................................................4 
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`A. 
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`B. 
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`C. 
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`D. 
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`E. 
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`Individual Plaintiff Flextronics ............................................................................................4 
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`Procedural History Relevant to Flextronics’s Individual Action. ........................................4 
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`Differences Between Flextronics’s Individual Action and the DPP Class Action ..............5 
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`Flextronics’s Efforts to Obtain Access to the Record from DPP Counsel ..........................7 
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`Flextronics’s Efforts to Participate In Discovery .................................................................8 
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`IV. 
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`ARGUMENT .................................................................................................................................10 
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`A. 
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`B. 
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`C. 
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`The Court Did Not Merge the DPP Class Action With Flextronics’s Individual
`Action. ................................................................................................................................10 
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`DPP Counsel Cannot Adequately Represent Flextronics Given Differences
`Between Flextronics’s Individual Action and the DPP Class Action. ...............................10 
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`This Court Should Modify Its Order Appointing Direct Purchaser To Permit
`Flextronics to Protect Its Individual Interest. .....................................................................12 
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`1. 
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`2. 
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`3. 
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`Flextronics’s Individual Interests Warrant Implementing Procedures to
`Protect Its Interests Beyond Merely the Opt Out Provisions of Fed. R. Civ.
`23(b)(3). .................................................................................................................12 
`
`The Court’s Instructions at the Status Conference Are Insufficient to
`Protect Flextronics’s Interest. ................................................................................13 
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`This Court Should Amend The Order Appointing Lead Counsel to Require
`DPP Class Counsel to Provide Flextronics Access to the Record and to
`Coordinate Discovery With Flextronics. ...............................................................13 
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`V. 
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`CONCLUSION ..............................................................................................................................14 
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`ii
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`Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 3 of 19
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`TABLE OF AUTHORITIES
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`
`Cases 
`Accord Weeks v. Bareco Oil Co.,
`125 F.2d 84 (7th Cir. 1941) .................................................................................................................12
`
`Comcast v. Behrend,
`No. 11-864, 133 S. Ct. 1426 (2013) .......................................................................................................2
`
`Gelboim v. Bank of America Corp.,
`135 S. Ct. 897 (Jan. 21, 2015)..............................................................................................................10
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`In re Brand Name Prescription Drugs Antitrust Litig.,
`171 F.R.D. 213 (N.D. Ill. 1997) ...........................................................................................................12
`
`In re Capacitors Antitrust Litig.,
`Master File No. 14-cv-03264-JD, 2015 WL 3398199 (N.D. Ca. May 26, 2015) ..................................4
`
`In re Graphic Processing Units Antitrust Litig.,
`253 F.R.D. 494 (N.D. Cal. 2008) .........................................................................................................11
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`In re Korean Air Lines Co., Ltd.,
`642 F.3d 685 (9th Cir. 2011) ................................................................................................................10
`
`In re Optical Disk Drive Antitrust Litig.,
`303 F.R.D. 311 (N.D. Cal. 2014) .........................................................................................................11
`
`In re Refrigerant Compressors Antitrust Litig.,
`731 F.3d 586 (6th Cir. 2013) ................................................................................................................13
`
`In re TFT-LCD (Flat Panel) Antitrust Litig.,
`37 F. Supp. 3d 1102 (N.D. Cal. 2014) .................................................................................................12
`
`Johnson v. Manhattan Railway,
`289 U.S. 479 (1933) .............................................................................................................................10
`
`Matthews v. Eldridge,
`424 U.S. 319 (1976) .............................................................................................................................12
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`McCubbrey v. Boise Cascade Home & Land Corp.,
`71 F.R.D. 62 (N.D. Cal. 1976) .............................................................................................................12
`
`Phillips Petroleum v. Shutts,
`472 U.S. 797 (1985) .............................................................................................................................12
`
`Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co.,
`559 U.S. 393 (2010) .............................................................................................................................10
`
`Tulsa Prof’l Collection Servs. v. Pope,
`485 U.S. 478 (1988) .............................................................................................................................12
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`Wal-Mart Stores, Inc. v. Dukes, et al.,
`131 S. Ct. 2541 (2011) ...........................................................................................................................7
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`iii
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`Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 4 of 19
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`Statutes 
`Foreign Trade Antitrust Improvements Act,
`15 U.S.C.§ 6(a) (“FTAIA”) ......................................................................................................... passim
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`28 U.S.C. § 1407 ........................................................................................................................................10
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`28 U.S.C. § 734 ..........................................................................................................................................10
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`Other Authorities 
`Bob Marshall & Leslie Marks, The Economics of Collusion,
`111-113 (MIT Press 2012) .....................................................................................................................6
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`Rules 
`Adv. Comm. Notes, Fed R. Civ. P. 23, 28 U.S.C.App., 698 (1966) ......................................................4, 12
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`Fed. R. Civ. P. 30(b)(6)............................................................................................................................3, 9
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`Fed. R. Civ. P. 23(b)(3)..........................................................................................................................2, 12
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`Fed. R. Civ. P. 42 .......................................................................................................................................10
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`Model Rule of Professional Conduct 1.7(a) ..............................................................................................11
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`Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 5 of 19
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`PLEASE TAKE NOTICE that on October 7, 2015, at 10:00 a.m. or as soon thereafter as this
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`NOTICE OF MOTION
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`matter may be heard, before the Honorable James Donato, San Francisco Courthouse, Courtroom 11 –
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`19th Floor 450 Golden Gate Avenue, San Francisco, CA 94102, Plaintiff Flextronics International USA,
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`Inc. (“Flextronics”) will and hereby does move this Court for an order (1) Compelling Interim Lead
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`Counsel for the Direct Purchaser Plaintiffs to Provide Access to the Discovery Record and (2) Modifying
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`the Order Appointing Interim Lead Counsel for the Direct Purchasers, Docket 319.
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`In support of this Motion, Flextronics relies upon this Notice of Motion and Motion, the
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`Memorandum of Points and Authorities in support thereof, the Declaration of Charles E. Tompkins
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`sworn to on September 2, 2015, and such other materials and information that the Court may properly
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`consider at or before the hearing on this Motion.
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`STATEMENT OF THE ISSUED PRESENTED
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`Individual Plaintiff Flextronics International, USA, Inc. (“Flextronics”) requests an Order
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`I.
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`compelling Interim Lead Counsel for the Direct Purchaser Plaintiffs (“DPP Counsel”) to provide
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`Flextronics access to the discovery record. Flextronics also requests that this Court’s Order Appointing
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`Interim Lead Counsel, Dkt. 319, be amended to codify this Court’s prior instruction that DPP Counsel
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`and Flextronics are to “work together” with regard to discovery and other matters. A Proposed Order is
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`attached as Exhibit B to this memorandum.
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`Defendants and Interim Lead Counsel for the Indirect Purchasers take no position with regard
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`to the relief requested herein. Efforts to confer with DPP Counsel regarding the relief requested are set
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`forth herein.
`II.
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`INTRODUCTION AND SUMMARY OF ARGUMENT
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`The individual action filed by Flextronics alleges specific conspiratorial agreements among
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`varying sub-groups of the Defendants that targeted the prices paid by specific large purchasers
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`Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 6 of 19
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`(hereinafter, the “sub-group agreements”).1 The sub-group agreements targeting Flextronics or its
`customers allegedly damaged Flextronics over and above any damages inflicted by the market-wide
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`conspiracy alleged by the DPP Class. See Complaint, Ex. 1, at ¶415; infra at Section III.C. Proving the
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`sub-group conspiracies is thus one of Flextronics’s key goals in this litigation. DPP Counsel cannot
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`adequately represent Flextronics in its effort to prove its individual allegations because evidence tending
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`to support the existence and effect of the sub-group agreements may also tend to support defense
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`arguments to the effect that variations in antitrust impact or damages among members of the class render
`class certification improvident.2
`Similarly, evidence demonstrating that varying sub-group agreements significantly affected the
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`prices paid by certain individual class members also may support defense arguments that any class-wide
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`expert impact or damages analysis is inadmissible because it does not “fit” with the evidence of the sub-
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`group conspiracies. See Comcast v. Behrend, No. 11-864, 133 S. Ct. 1426, 1432-1433 (2013). Evidence
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`of the sub-group conspiracies may also suggest variations among putative class members regarding the
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`application of the Foreign Trade Antitrust Improvements Act, 15 U.S.C.§ 6(a) (“FTAIA”). Prices set by
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`certain sub-group conspiracies that directly and foreseeably inflate prices paid by Microsoft, Apple or
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`Flextronics may be actionable under the Sherman Act, while sub-group conspiracies that foreseeably
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`impact only foreign markets may not be. See Complaint, at ¶¶417,424.
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`Recognizing Flextronics’s interest in proving its individual allegations, this Court ruled that
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`Flextronics could actively participate in this litigation to develop and prove its individual allegations in
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`coordination with DPP Counsel. See Declaration of Charles E. Tompkins (“Tompkins dec.”), attached as
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`Ex A, ¶ 5; Transcript, Ex. 2, at 12:5-7 (Flextronics and DPP Counsel should “work together on discovery
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`and other matters” and Flextronics can “carve out its own thing”). This was a sensible approach:
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`effective coordination of litigation efforts preserves the resources of the Court and litigants and
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`1 See Declaration of Charles E. Tompkins (“Tompkins dec.”), attached as Ex A, at ¶1. Second Amended
`Consolidated Class Action Complaint of the DPP Class and Individual Complaint of Flextronics (the
`“Complaint”), attached to Tompkins dec. at Ex 1, at ¶¶415-428. Transcript of July 8, 2015 Status
`Conference (“Transcript”), attached to Tompkins dec. at Ex. 2, at pp. 11-14 (discussing Flextronics’s
`individual allegations). For ease of reference, all numbered exhibits refer to material attached to the
`Tompkins declaration. Exhibits identified by letter are attached to this Memorandum.
`2 Flextronics takes no position regarding the merits of these potential defense arguments or the propriety
`of certifying any putative class pursuant to Fed. R. Civ. P. 23(b)(3).
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`Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 7 of 19
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`minimizes the likelihood of duplicative discovery. Since the Court ruled, Flextronics has sought access
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`to the discovery record to participate in discovery. See Section III.D, infra. DPP Counsel, however, has
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`refused to permit Flextronics access to the discovery record or to coordinate discovery efforts.
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`Indeed, despite nearly two months of prodding, and two written promises to do so, DPP Counsel
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`has not even proposed terms under which, in DPP Counsel’s view, Flextronics could have access to the
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`record. See Section III.D, infra. DPP Counsel also has excluded Flextronics from discovery
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`conferences with Defendants; failed to include Flextronics in drafting interrogatories that Defendants
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`predictably now contend should count against Flextronics for purposes of discovery limits; and failed to
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`consult Flextronics (even regarding scheduling) before issuing a notice of deposition pursuant to Fed. R.
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`Civ. 30(b)(6).
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`DPP Counsel’s approach prevents Flextronics from proving its individual allegations, creates
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`satellite disputes that waste the resources of the litigants and the Court, and imperils the Court’s
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`schedule. Flextronics cannot access the record through other means. Defendants have informed
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`Flextronics that they will not re-produce material previously produced to DPP Counsel. Defendants also
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`have taken the position that Flextronics may participate in discovery only through DPP Counsel. See
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`Section III.E, infra. Flextronics thus has no mechanism to prepare its case in support of Flextronics’s
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`individual allegations absent Court relief.
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`Nor can Flextronics fully respond to Defendants’ discovery on the schedule set by the Court.
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`Defendants served Flextronics with contention interrogatories purporting to address Flextronics’s
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`individual allegations. See Defendants’ Second Set of Interrogatories to Flextronics, Ex. 5. Flextronics
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`objects to the interrogatories, but has agreed to respond using the limited material to which Flextronics
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`has access pending resolution of this Motion. Tompkins dec. ¶ 9. Flextronics’s responses, however, will
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`require supplementation because Flextronics does not have access to the vast majority of the discovery
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`record. Further delay will put Flextronics in the position of seeking extensions that would have been
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`unnecessary had DPP Counsel timely negotiated in good faith regarding access to the record and
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`coordinated discovery efforts with Flextronics. Flextronics therefore respectfully requests that the Court:
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`(1) compel the DPP Class to produce the discovery material produced to the DPP Class by Defendants
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`thus far; and (2) modify the Order Appointing Interim Lead Counsel for the Direct Purchaser Class, Dkt.
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`Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 8 of 19
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`319, to require DPP Counsel to coordinate their litigation efforts with Flextronics. See Proposed Order,
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`Ex. B.
`III.
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`STATEMENT OF FACTS
`A. Individual Plaintiff Flextronics
`Flextronics is a global manufacturer of electronics and other goods for corporate customers
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`around the world, including many of the largest electronics companies in the United States. See
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`Consolidated Complaint ¶ 32. Flextronics purchased at least hundreds of millions of electrolytic and
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`film capacitors during the alleged conspiracy period. Id. ¶ 419. Flextronics’s financial interest in this
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`litigation thus dwarfs any other plaintiff’s. The case management structure should reflect Flextronics’s
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`interest in individual litigation. See Adv. Comm. Notes, Fed R. Civ. P. 23, 28 U.S.C.App., at 698 (1966)
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`(courts overseeing class actions should “consider the interests of individual members of the class in
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`controlling their own litigations and carrying them on as they see fit.”).
`B. Procedural History Relevant to Flextronics’s Individual Action.
`Flextronics made several efforts to coordinate its litigation efforts before and after filing its
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`Complaint. On May 26, 2015, this Court resolved motions to dismiss markedly different complaints
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`filed by the Indirect Purchaser Plaintiff (“IPP”) Class and the DPP class. See Memorandum Opinion and
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`Order, In re Capacitors Antitrust Litig., Master File No. 14-cv-03264-JD, 2015 WL 3398199, at *1, 2
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`(N.D. Ca. May 26, 2015). The following Friday Flextronics filed an individual complaint. See
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`Complaint, Flextronics International USA, Inc. v. NEC Tokin, et al., 5:15-cv-02517, Dkt.1. On June 3,
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`2015, Flextronics counsel asked DPP Counsel to include Flextronics in discussions regarding document
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`custodians and search terms. See Tompkins dec. ¶¶10-11, Ex. 6. On June 17, 2015, Flextronics, having
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`agreed to the protective order, sought access to an un-redacted version of the DPP and IPP Complaints.
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`See Tompkins dec. ¶12, Ex. 7. Although both communications specifically requested a response, see id.
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`¶¶11, 13, none was received.
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`Flextronics’s action was related to the class action on June 22, 2015. See Order, In re Capacitors
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`Antitrust Litig., No. 3:14-cv-3264-JD, at Dkt. 751. Defendants and Flextronics set a Rule 26 conference
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`for July 13, 2015. See Transcript at 10:20-21. Flextronics again sought to abide by the Court’s schedule
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`and coordinate with the DPP Class. See Plaintiff Flextronics’s Initial Status Conference Statement, No.
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`Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 9 of 19
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`3:14–cv-3264, Dkt. 757, at 2-3 (July 7, 2015). The Court held a Status Conference on July 8, 2015 (the
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`“Conference”). DPP Counsel and Defendants both have relied on the Court’s comments at the
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`Conference to argue that Flextronics is not entitled to participate in discovery except as permitted by
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`DPP Counsel. See Tompkins dec., Ex A, ¶¶, 14, 24, 39, 43.
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`Although Flextronics’s action alleges the same market-wide conspiracy as the DPP Class action,
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`Flextronics’s individual action also addresses “individual issues” that animated Flextronics’s interest in
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`individual litigation – the reasons Flextronics “filed our own complaint.” Id. at 11:4-7. As discussed in
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`Section III.C, infra, and explained at the Conference, Flextronics’s individual concerns largely arise from
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`Flextronics’s allegations that “some elements of the conspiracy were targeted specifically at Flextronics
`and its customers.” Id. at 11:9-15.3 The Court thus ordered Flextronics and the DPP Class to file a
`consolidated complaint including Flextronics’s individual allegations and to “work together on discovery
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`and everything else,” and for Flextronics to “carve out your own thing.” Id. at 11: 5-7; 13:1-15.
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`The Court subsequently issued a Minute Order addressing only the consolidated complaint:
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`For the newly-filed, related action of Flextronics v. NEC TOKIN, Case No. 3:15-cv-02517, the Court
`consolidates that case into In re Capacitors Antitrust Litigation, Case No. 3:14-cv-3264, and will
`close the Flextronics case for administrative purposes. Counsel for Flextronics represented that it has
`unique issue not shared with other DPP plaintiffs. Flextronics may raise those issues when appropriate
`in separate briefs, but only for specific issues on which Flextronics has a unique and individualized
`position.
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`Flextronics counsel and the interim lead class counsel for direct purchaser plaintiffs are to meet and
`confer so that the DPPs’ complaint can be amended to include Flextronics’ allegations. The new
`allegations relating to Flextronics should be easy to find, and the amendment should not add any other
`new allegations. The amended complaint should be filed by July 17, 2015.
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`See Minute Order, Dkt. 774, at 2. The Minute Order did not provide any instructions regarding discovery
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`modifying the Court’s initial admonition that DPP Counsel and Flextronics should “work together on
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`discovery and everything else” and Flextronics should “carve out [its] own thing.” Id. at 11: 5-7.
`C. Differences Between Flextronics’s Individual Action and the DPP Class Action
`Flextronics’s specific allegations involve the pricing effect of specific alleged conspiratorial
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`agreements among some but not all Defendants that targeted Flextronics and its customers (previously
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`3 Flextronics has other individual interests worthy of protection. These include an interest in its choice of
`defendants and an interest in litigating in a manner consistent with Flextronics’s business interests.
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`Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 10 of 19
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`defined as the “sub-group agreements”). Flextronics (but not the DPP Class) alleges that:
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`certain Defendants adjusted the price and market availability of their products based on specific
`agreements among some but not all other Defendants to fix, raise, maintain, and/or stabilize
`prices of Capacitors sold to or for specific purchasers of Capacitors, including Flextronics.
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`Complaint at ¶415. The sub-group agreements specifically targeted Flextronics and its customers,
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`including Flextronics’s customers in the United States. See id. at ¶418(c) – (e). The precise
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`membership of each sub-group varied depending on which Defendants supplied the particular conspiracy
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`target in question. Id. Specific sub-group agreements targeted Flextronics customers Apple; Digi-Key;
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`Benchmark Electronics; Rockwell Automation; Intel; Dell; HP; and Microsoft, among others. See id. at
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`¶¶418(c)(d), 424. Flextronics and its targeted customers were therefore the victim of both the overall
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`conspiracy alleged by DPP Counsel and additional sub-group agreements that caused damage over and
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`above the damage inflicted by the overall conspiracy. Id. at ¶424.
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`The sub-group agreements are of particular concern to Flextronics. Flextronics typically is the
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`direct purchaser of capacitors used in the manufacture of electronics for its customers. Id. at ¶422.
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`Flextronics’s purchase price is strongly associated with the price Flextronics’s customers would pay for
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`those same capacitors were the customer itself buying the capacitors directly. See id. at ¶¶427-29
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`(specific agreements targeting Flextronics’s customers directly caused Flextronics to pay inflated prices
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`for capacitors purchased in order to manufacture goods for those customers). The relationship between
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`Flextronics’s price and the customer’s price is especially strong in the case of large customers such as the
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`entities targeted by the sub-group conspiracies. See id.
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`Defendants likely invested greater resources into monitoring and policing the sub-group
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`agreements than any market-wide agreements. See Marshall & Marx, The Economics of Collusion, at pp.
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`111-123. The additional investment would be justified by the added ‘bang for the buck’ achieved by
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`targeting large purchasers and the increased likelihood that cartel participants can accurately detect
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`cheating on agreements among fewer conspirators than targeting purchasers that typically rely upon
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`relatively transparent mechanisms, like competitive bidding, to reach price agreements. Id. The sub-
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`group agreements potentially inflicted damages on Flextronics over and above any damages caused by
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`the overall conspiracy alleged by the DPP Class. See Complaint, at ¶¶427-29.
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`Flextronics has an obvious incentive to prove its sub-group agreement allegations and to
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`Case 3:14-cv-03264-JD Document 869 Filed 09/02/15 Page 11 of 19
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`incorporate the pricing effects of the sub-group agreements into Flextronics’s damages analysis. DPP
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`Counsel’s interest in proving the existence and effect of the sub-group agreements, in contrast, conflicts
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`with DPP Counsel’s interest obtaining class certification. Evidence of the sub-group conspiracies may
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`tend to support the contention that the impact of the conspiracy on any individual class member varies
`depending on which (if any) sub-group agreements targeted that particular class member.4 It defies
`common experience to think that DPP Counsel will focus on proving the existence or effect of the sub-
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`group agreements to the same extent as Flextronics given DPP Counsel’s very significant interest in
`obtaining certification of the putative direct purchaser class.5
`Flextronics’s sub-group allegations also are relevant to the question whether certain overcharges
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`are within the ambit of the Sherman Act or excluded by operation of the FTAIA. Sub-group agreements
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`targeting United States entities by name plainly had a direct and foreseeable impact on U.S. commerce.
`See 15 U.S.C § 6(a).6 In contrast, certain sub-groups agreements targeting only foreign commerce may
`be outside the ambit of the Sherman Act. Id. The sub-group agreements thus potentially could serve as
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`the basis for a defense argument that individual FTAIA defenses preclude class certification. See Wal-
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`Mart Stores, Inc. v. Dukes, et al., 131 S. Ct. 2541, 2560-2561 (2011).
`D. Flextronics’s Efforts to Obtain Access to the Record from DPP Counsel
`Flextronics first requested that DPP provide Flextronics access to or copy of the discovery record
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`on July 9, 2015. See Tompkins dec. ¶15, Ex. 8. Flextronics asked again on July 15th, 17th, and 23rd. Id.
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`¶¶17-19, Exs. 10, 11, 12. The July 23rd request included an unsolicited offer to pay reasonable costs
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`associated with Flextronics’s access to the database. Id. at ¶19, Ex. 12. Flextronics never received a
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`substantive proposal regarding any aspect of the issue. See id. at ¶20. DPP Counsel would not even state
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`whether in their view Flextronics was entitled to the record. Id. Only after Flextronics indicated that it
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`4 It is, of course, impossible to reach a firm conclusion on this point because Flextronics has been unable
`to review the discovery produced by Defendants.
`5 The proper way to estimate the pricing effects of the sub-group agreements in any expert damages
`analysis is a particular area of concern. Flextronics informed DPP Counsel on August 11th that
`Flextronics intended to create an individual damages estimate and needed immediate access to the data
`produced by Defendant. See August 11 Letter from Tompkins to Saveri, Ex. 16, n.1. Flextronics
`received no response.
`6 Sub-group conspiracies targeting United States entities for which Flextronics directly purchased
`capacitors give rise to a claim by Flextronics. See Complaint ¶424.
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`would seek Court relief did DPP Counsel confer regarding access to the record. See id. at ¶¶22-24.
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`That conference took place on August 10, 2015. See id. at ¶24. DPP Counsel and Flextronics
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`agreed that the Court’s comments at the Conference suggested that the Court (unsurprisingly) did not
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`intend for Flextronics to pursue independent discovery duplicative of the DPP Class, and assumed
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`Flextronics would coordinate with the DPP Class to obtain the discovery record. Id., ¶24, Ex. 16 (August
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`11, 2015 letter from Tompkins to Saveri). Flextronics and DPP Counsel agreed they would exchange
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`written “bullet point lists” governing discovery coordination and confer further on August 14th. Id. ¶25.
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`Flextronics sent its bullet point letter on August 11th. Id. at ¶26. DPP Counsel never sent anything. Id.
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`¶27.
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`On August 14, 2015, DPP Counsel indicated again that their primary concern was that Flextronics
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`pay for access to a unified document database. Id. at ¶28. Flextronics had already agreed to reimburse
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`DPP Counsel for a reasonable share of document and data hosting costs and the like, and thus repeated
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`the request for a concrete proposal. Id. DPP Counsel again promised to send a proposal. Id. The parties
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`scheduled a further conference for August 18, 2015, to review and discuss the forthcoming proposal. Id.
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`¶ 29. Shortly before the call, DPP Counsel asked to postpone the call one day. Id. DPP Counsel later
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`sent an electronic copy of a case DPP Counsel thought relevant to the cost discussion. Id. ¶ 30.
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`Flextronics responded with questions regarding application of the case to this action and a request to
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`reschedule the cancelled call. Id. DPP Counsel did not respond. Id.
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`On August 21, 2015, Flextronics again requested that DPP Counsel reschedule the cancelled call.
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`Id. ¶31. Flextronics received no response. Id. Accordingly, on August 24, 2015, Flextronics indicated
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`by letter to DPP Counsel that Flextronics would seek relief from the Court absent agreement on access to
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`the discovery record. Id. ¶32, Ex. 20. DPP Counsel on August 24, 2015, explained the delay by saying
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`he had been “attending to other matters” and would “get [Flextronics] something today.” Id. ¶ 33. That
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`was the last Flextronics has heard from DPP Counsel on this topic. Id. ¶¶ 33-35
`E. Flextronics’s Efforts to Participate In Discovery
`In an effort to maintain the schedule despite DPP Counsel’s conduct, on August 13, 2015,
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`Flextronics requested that all Defendants produce a copy of the document