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`EXHIBIT 1
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`EXHIBIT 1
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`

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`2:12-md-02311-MOB-MKM Doc # 1254-2 Filed 03/11/16 Pg 2 of 14 Pg ID 21563
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`Proskauer Rose LLP 1001 Pennsylvania Avenue, NW Suite 600 South Washington, DC 20004-2533
`
`Colin Kass
`d 202.416.6890
`f 202.416.6899
`ckass@proskauer.com
`www.proskauer.com
`
`
`
`October 29, 2015
`
`
`
`Via Email
`
`Ronnie S. Spiegel
`HAGENS BERMAN SOBOL SHAPIRO LLP
`1918 Eighth Avenue, Suite 3300
`Seattle, WA 98101
`ronnie@hbsslaw.com
`
`Re: In re Automotive Parts Antitrust Litig., 2:12-md-02311
`
`Dear Ronnie:
`
`We write on behalf of the Specified Subpoenaed Entities in response to your October 14th
`letter.1 We too share your desire to cooperate and to quickly identify issues on which we cannot
`agree. To that end, as we explain below, we believe the Parties and the SSEs should work
`towards a master document that sets forth our agreements as to any common issues, and
`identifies those areas in which we have reached impasse. We undertake to address each of the
`points raised during our October 2nd Summit Conference and your October 14th letter.2
`
`1.
`
`The Parties’ Failure to Justify Their Overwhelmingly Broad Subpoena
`
`As we mentioned at the Summit Conference, we believe that the Subpoena is facially
`unenforceable. We explained our concerns about the extraordinary breadth of the subpoena, the
`undue burdens it imposes, and the need to develop a workable approach for identifying what, if
`any, information the Parties truly need but either do not have, or cannot obtain from any source
`other than the SSEs. The law protects recipients of the subpoena, as non-parties, from being
`forced to undertake burdensome and costly efforts to compile information that is likely
`duplicative and at best of marginal relevance. The Parties have elsewhere in this litigation
`admitted that “a party that seeks discovery from an unnamed, or ‘absent,’ class member has the
`burden to show the necessity of the proposed discovery,” which requires that party to
`“affirmatively show that there is a particularized need’ for such discovery.” Dkt. 338, 12-cv-
`102. We therefore asked before, during and after the Summit Conference that the Parties
`reevaluate the subpoena in light of these principles – and in particular that the Parties identify
`
`
`1 The SSEs participating in the October 2nd Summit Conference, and who join this letter, are listed on Exhibit A.
`2 Again, this is not a comprehensive discussion of all objections to and issues with the Subpoena, and we do not
`waive any objections some of us have already formally preserved through written objections, and any objections we
`may raise in future written responses to the Subpoena.
`
`Beijing | Boca Raton | Boston | Chicago | Hong Kong | London | Los Angeles | New Orleans | New York | Newark | Paris | São Paulo | Washington, DC
`
`
`
`
`
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`Page 2
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`what specific information they genuinely need at this point in the litigation, and do not have and
`cannot get elsewhere.
`
`You have not done this. In response, the Parties have made no meaningful effort to
`revise the subpoena or reduce the immense burdens it imposes. Rather than identify the
`information already in the Parties’ possession and the missing information for which the Parties
`have a particularized need and cannot get elsewhere, the Parties take the position that every scrap
`of paper or bit of data that relates to the purchase of parts or the sale of cars in America is fair
`game.3 We clearly do not agree. The Parties’ approach is not proportional or fair. Furthermore,
`it is not consistent with applicable law, or even the positions the Parties themselves have
`previously taken in this litigation.
`
`More importantly, because the Parties have not tried to justify the scope and breadth of
`the subpoena, it is difficult to constructively discuss what, if any, information ought to be
`produced under the rule of proportionality. See Fed. R. Civ. P. 26(b)(1), effective Dec. 1, 2015
`(emphasizing that the “scope of discovery” is limited to that which is “proportional to the needs
`of the case”). We trust that, as our discussions proceed, the Parties will be more forthcoming
`about the information they currently possess and the basis for any contention of a particularized
`need.
`
`2.
`
`Non-OEM SSEs
`
`During the Summit Conference, we noted that over half of the at least 90 “OEM”
`subpoenas were not actually issued to an OEM. To address this concern, we proposed that the
`Parties hold these subpoenas in abeyance until the scope of the subpoenas had been negotiated
`with the OEM SSEs. By doing so, both the Parties and all SSEs will better understand the
`(revised) scope of each request, and can then make a more reasoned determination of whether
`discovery from the non-OEM SSEs is likely to materially advance the Parties’ ability to litigate
`their case.
`
`You appear to have rejected this proposal. Instead, you have created approximately six
`sub-classes of non-OEM SSEs and demanded full compliance with various requests for each.
`This approach is flawed because it imposes huge burdens before any determination of what the
`Parties truly need and can obtain under Rule 45. That said, we understand that the Parties have
`now withdrawn all but the following requests for certain non-OEM SSEs. That, however, does
`not reflect a genuine effort to narrow the scope of the subpoena to the non-OEM SSEs. The
`requests you eliminated, given the nature of the operations of the non-OEM SSEs, should not
`reasonably have been served on the non-OEM SSEs in the first place. The bulk of the burden for
`these entities lies in the remaining requests for which no concession has been made.
`
`
`
`3 Your letter notes that “not all Parties join in” your proposals. Apart from one discrepancy, however, you did not
`identify the specific positions of each Party. Each Party seeking enforcement of a subpoena, however, bears the
`burden of justifying the request. Accordingly, we need to know precisely which Party is seeking enforcement of
`each particular request and the basis on which that party seeks to establish a particularized need.
`
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`Page 3
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`
`Type of Entity
`
`Parties’ Proposed Scope of Subpoena
`
`Truck and Equipment SSEs
`
`Unspecified
`
`Finance and Credit
`
`Insurance
`
`Design
`
`R&D
`
`Banking and Capital
`
`Request Nos. 4(a)(3)(e), 4(a)(4), 4(a)(6),
`4(b)(2)(d), 4(c), 4(c)(2)(e), 4(c)(2)(f), 4(d),
`4(i), 4(k), 7, 9
`(limited
`to
`summary
`transactional data and summary documents),
`21, 29, 34, and 37 (as to Honda and Nissan)
`
`Request Nos. 4(b)(2)(e), 4(d), 4(k), and 9
`(limited to summary transactional data and
`summary documents)
`
`Request Nos. 1(g)(6)-(8), 1(g)(17), 14(a), 27,
`32, 33, 35, and 37 (as to Honda and Nissan)
`
`Request Nos. 1(g)(6)-(9), 1(g)(17), 1(k), 1(j),
`1(l), 4(h), 5, 8, 12, 13, 14, 15, 16, 17, 23(3)(a),
`24, 26, 27, 28, 33, 35, and 36
`
`summary
`to
`(limited
`Request Nos. 9
`transactional data and summary documents),
`10, 11, 13(a-b), 14, 16, 17, 18, 19, 21, 33, 34,
`and 37 (applies only to Honda and Nissan)
`
`
`As to these remaining requests, many issues still need to be addressed, some of which we
`discuss below. Until you provide further clarity concerning the scope of these requests,
`agreement would be premature. For example, if it turns out that downstream discovery should
`not include financing costs (which are wholly unconnected to component part costs), then it
`would be absurd for the finance and credit SSEs to search for any information. Nonetheless, the
`non-OEM SSEs will continue to participate in these discussions, and we can further address
`which, if any, of the requests should apply to them as we finalize the scope of each request.
`
`3.
`
`Smaller SSEs
`
`The Parties suggested limiting the subpoena to “smaller entities” with limited sales
`volume to Request Nos. 1, 3, 4, 5, 8, 12, 13, 14 (in part), 15 (in part), 21 (in part), 22, 23 (in
`part), 27, 28 (in part), and 33.4 These limitations do little to alleviate the burden on the smaller
`SSEs. More importantly, the Parties have not demonstrated how any discovery from such
`
`
`4 We note that you have not identified the “parts” of the various requests for which you seek only partial responses.
`
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`Page 4
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`smaller entities is relevant and justifies the significant burden the subpoena imposes. Any data
`or documents produced by such smaller SSEs would likely have zero impact on any statistical or
`regression models relevant to any issue in this case.
`
`Plaintiffs define “smaller” SSEs as “entities whose United States annual sales volume is
`less than 10,000 vehicles.” This constitutes less than 6/100ths of 1% of the 18 million annual car
`sales in the U.S — a level that by any reasonable standard would have to be regarded as
`remarkably trivial. If an OEM has less than 5% of the U.S. vehicle market, it is unlikely to have
`any impact on your statistical models or any relevant issue in the case. Thus, we intend to
`include in the category of “Small U.S. Sales Volume” any SSE with less than 5% market share.
`The subpoenas to the smaller SSEs should be withdrawn, or held in abeyance, unless and until
`the relevance and statistical impact of such discovery from them is demonstrated.
`
`4.
`
`Foreign OEMs
`
`You acknowledge in your letter that most domestic non-OEM SSEs do not have data or
`information from foreign entities within their corporate family. Accordingly, the SSEs will
`continue to construe the subpoena as limited to seeking information in the possession of the
`specific subpoenaed entity relating to the purchase of relevant components in the United States
`for vehicles sold to dealers in the United States.5
`
`5.
`
`Upstream Purchasing Data
`
`During the Summit Conference, we explained that the subpoena requested huge amounts
`of purchasing data covering over 55 component parts and well over 140 suppliers. During the
`call, the Parties conceded they already possess the purchasing information from each of these
`140 suppliers. Nonetheless, you claimed that you may need more – namely, information from
`unidentified, non-conspirator component suppliers. We explained, however, that the non-
`conspirator component suppliers are unlikely to constitute a substantial portion of the market and
`would not be an appropriate benchmark for any pricing model you may develop in the future.6
`At the end of the call, our understanding was that you were going to take this issue under
`advisement and revise your proposal. Your October 14th letter, however, is silent on the issue.
`This non-response does not further constructive conversation on this topic.7
`
`
`5 As noted below, because broad-based discovery of downstream (and other non-purchasing data) unrelated to the
`purchase of components is not relevant and is unduly burdensome, the domestic non-OEM SSEs that are unaffiliated
`with a properly served foreign OEM SSE would be unlikely to have discoverable information. Assuming you agree,
`we would be happy to provide you with a list of all such domestic non-OEM SSEs.
`6 It should be noted that, while the Parties suggested that they intended to present a damages model using the non-
`conspirator pricing data as a benchmark, they have not actually presented an economist affidavit attesting to this
`approach. Moreover, such an approach would not only be uncommon, it is likely to be flawed since the prices of
`non-conspirators could also be impacted by a conspiracy that raises overall market prices. In any event, to the extent
`that the Parties intend to use pricing information from non-conspirator suppliers, they should subpoena such non-
`conspirators to obtain this information.
`7 It should be noted that, elsewhere, the Parties have represented that they “produced over 16 million pages of
`documents,” and have “produced data on their own sales to OEMs in a limited number of actions.” Dkt. 331, 12-cv-
`
`
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`

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`2:12-md-02311-MOB-MKM Doc # 1254-2 Filed 03/11/16 Pg 6 of 14 Pg ID 21567
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`Upstream RFP Documents.
`
`
`
`Page 5
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`6.
`
`The Parties have also failed to demonstrate, or even address, a particularized need for
`upstream documents. As we explained during the Summit Conference, evidence of the existence
`of a conspiracy is in the hands of the alleged conspirators themselves. Documents relating to any
`RFP process, meetings or communications among the conspiring suppliers, and their joint (or
`independent) responses to such RFPs, are uniquely within their possession. If the Parties cannot
`prove or disprove the existence of the conspiracy through the information they already have, it is
`highly unlikely that the information in the SSEs’ possession will change that fact. As there has
`been no particularized showing of need, it would be unfair, unduly burdensome, and against the
`concept of proportionality to force the SSEs to expend time, effort, and resources searching for
`that information.
`
`In that regard, we note that the Direct Purchaser Plaintiffs – who must actually prove the
`conspiracy – have not joined the subpoena. Certainly, if they do not need it, the indirect
`purchasers and the twice-removed indirect purchasers don’t either.
`
`The defendants, likewise, have not identified any purchasing information that is uniquely
`in the possession of the SSEs that will materially impact their defenses. Because the defendants
`were intimately involved in the component selection process – and would have been in constant
`communication with the OEMs – they already have vast amounts of knowledge concerning each
`particular bid. Any additional production by the SSEs would be unreasonably cumulative or
`duplicative of the information already available to or in the possession of the Parties.8
`
`Moreover, even if there was some specific piece of information that the Parties lack, that
`would not justify a demand that each OEM conduct a search for that information. Putting aside
`that such information is not material, such particularized information is inconsistent with the
`class nature of the proceedings. Likewise, the defendants are not entitled to engage in absent
`class member discovery in an effort to litigate such individual issues at the class stage.9 This is
`precisely why “a party that seeks discovery from an unnamed, or ‘absent,’ class member has the
`burden to show the necessity of the proposed discovery,” and therefore, why the law requires it
`to “affirmatively show that there is a particularized need’ for such discovery.” Dkt. 338, 12-cv-
`102.
`
`102; Dkt. 979, 12-md-2311. Obviously, the defendants should finish their production of all their sales data in all
`relevant actions before any Party demands that the SSEs undertake that effort.
`8 Again, the Parties have not disclosed whether they have already searched for and produced to each other all the
`bidding information in their own files. Certainly, until that has been complete, it is at best premature to ask the
`OEMs to “fill gaps” that likely do not exist.
`9 The only information that defendants identified during the Summit Conference that they did not have (or did not
`comprehensively have) was so-called “target prices” for bids. The existence of a target price, however, does not
`speak to whether the defendants conspired or what prices would have been absent the conspiracy. Indeed, the very
`purpose of keeping a target price confidential is the expectation that a competitive bidding process will result in a
`price below the target. Moreover, the target price itself may be infected by a long-running conspiracy to the extent
`that target prices are based on historical pricing. In any event, regardless of the “relevance” of target prices, it does
`not justify the breathtaking scope of the searches your subpoena contemplates.
`
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`Downstream Sales Data.
`
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`Page 6
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`7.
`
`The Parties have also failed to address the downstream discovery issues that we raised
`during the Summit Conference. As noted, your subpoena seeks virtually every piece of
`information bearing on the value, pricing, or nature of the transaction for every vehicle sold in
`America over the last 20 years. This facially overbroad request would be unreasonable in any
`event, but here all the more so given the absence of any demonstrable showing of relevance –
`under the Special Master’s prior orders – because the requests are not limited to information
`directly discussing the impact of component costs on vehicle pricing. As the Parties have
`acknowledged, “downstream data [has been] already determined to be non-discoverable by the
`Special Master” each time that he has been presented with the issue. Dkt. 338, 12-cv-102. For
`example, the Special Master has already quashed requests seeking:
`
`
`
`
`
`
`
`
`
`
`
`“Financing and promotional” information
`
`“Dealer purchasing” information
`
`Dealership budgets and cost guidelines
`
`Dealer compensation, bonus, and fringe benefits.
`
`Vehicle gross profit, profit margin, operating profit, projected profit, net profit,
`and/or profit-and-loss statements, and month and annual sales and financial
`report[s] provided to an OEM.
`
`See Dkts. 338, 331, 352, 12-cv-102. These orders all came in the context of party discovery,
`which is not subject to the same limitations as non-party discovery. Moreover, the burden
`contemplated here is multitudes greater, since the subpoenas facially cover every vehicle sold in
`America over the last 20 years.
`
`That aside, the clear import of the Special Master’s decisions is that downstream
`information that is not directly tied to component prices “is irrelevant, not likely to lead to the
`discovery of relevant information,” and its production would be unduly “burdensome.” Id.
`
`The Parties have made no showing to the contrary. And as we explained during the
`
`Summit Conference, the downstream discovery you seek is neither necessary to litigate the case,
`nor likely to be useful. On the call, the Parties suggested that they would like this information to
`build a complex, bottoms-up model of vehicle pricing as it goes from a pile of disparate
`components, to production of a vehicle, to delivery on the dealer’s lot, and to the passage of title
`to the end customer or finance company. The Parties, however, have not shown why such a
`model is necessary to litigate the case, let alone that any such model could ever be constructed
`(and we doubt it could).
`
`The speculation by Parties’ counsel that this information might nonetheless be useful for
`this purpose ignores how economists normally calculate damages in antitrust cases. Generally,
`they run regressions. But regressions do not need to include every piece of information to
`
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`generate reliable results.10 In addition, because many of the OEMs have different systems and
`different availability of data, the concept of a bottoms-up model would appear unworkable
`because of the inevitable huge gaps and inconsistent datasets among all the OEMs. The Parties
`have not shown that their experts cannot control for various “downstream” related factors just as
`well using publicly available, macro-economic indicators (such as interest rates) as by granular,
`vehicle-specific information that may, or may not, be captured by the OEMs’ data systems.
`
`When we explained these issues during the Summit Conference, the Parties had no
`
`response. Instead, you requested the opportunity to confer with your group. In light of these
`concerns, and despite our position that downstream data is irrelevant, we had expected you to
`present a narrowed proposal for downstream discovery that was more manageable, directly tied
`to the Parties’ need and the pricing of components (the issue in the case), and likely to yield a
`consistent data set. Instead, you remained silent on the issue. Again, that is not a sufficient
`response to permit constructive discussion of these issues.
`
`8.
`
`Replacement Parts
`
`During the Summit Conference, we noted that the Parties appeared to have withdrawn
`their claims relating to replacement parts.11 In response, you state that certain unidentified public
`entity plaintiffs have asserted claims relating to replacement parts for wire harnesses. But you
`have not identified whether “any party is [still] seeking data and documents [from the SSEs]
`regarding replacement parts.” Accordingly, until otherwise notified, we will deem Exhibit B to
`the subpoena withdrawn.
`
`9.
`
`Time Period
`
`During the Summit Conference, we noted that the subpoena sought documents and data
`for every component at issue and every vehicle sold in the United States over a 22-year time
`period. In response, you offered to narrow the subpoena to about 18 years for most components
`and all vehicles. This continues to be unreasonably burdensome, especially in light of the
`Parties’ failure to identify the particular information they already possess and the information
`
`10 Standard econometric texts explain that absent concerns about omitted variable bias – which is not present here
`because there is no showing that a finance variable (for example) are both correlated with the component costs (the
`variable of interest) and prices (the dependent variable) – there is no need to include every variable that may impact
`the price of a vehicle.
`11 See Hrg. Tr. 21-22 (Dkt. 892, 12-md-2311) (“THE COURT: So if I understand you correctly, the auto dealers in
`the wire harness … have dropped the aftermarket – the replacement parts claims … those parts of their cases, okay,
`but the end payers have not? MS. SULLIVAN: No, the end payers have as well in the wire harness case. THE
`COURT: Okay. MS. SULLIVAN: So the question is whether they have also withdrawn or are intending to withdraw
`those claims in the other auto parts cases other than wire harnesses. …. MR. WILLIAMS: Good morning, Your
`Honor. Steve Williams for the end payers. It is good to see you again. What Ms. Sullivan has said is correct, and we
`did confirm that with her this morning, that we are not pursuing claims for replacement parts, we are pursuing
`claims for people who purchased automobiles -- vehicles with price-fixed parts in them. …. I apologize if I was not
`clear but, yes, what I said about pursuing claims for people who purchased or leased automobiles with the price-
`fixed parts in them applies across the board to all the cases we presently have filed. We are not pursuing damage
`claims for replacement parts, only parts. THE COURT: In any of the cases? MR. WILLIAMS: Correct.”)
`
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`needed. The Parties have already admitted that “document requests … covering a period of
`some fifteen years … obviously raise both burden and relevance concerns.” Dkt. 347, 12-cv-
`102. The subpoenas themselves also facially violate the Court’s Order governing ESI, which
`precludes “a party” from seeking information that was “created more than five (5) years before
`the filing of the lawsuit.” See Model Discovery Order, § 2.04(f)(2). This Order expressly
`applies to all subpoenas issued under Rule 45, absent “agreement … with the nonparty.” Id. §
`3.04. Here, the Parties have not shown good cause for requiring the SSEs to search for more
`dated information. The model order strikes a balance between burdens and benefits, recognizing
`that many cases involve historical facts.12 Accordingly, if any production of information is
`required, the time period should be limited to the period between January 2007 and the date of
`the subpoena, if information for this period is shown to be relevant and unavailable from other
`sources.13
`
`10.
`
`Prioritization
`
`In your letter, you divvy up the subpoena into “first priority requests” and “second
`priority requests.” While you acknowledge that you “are willing to prioritize the subpoena
`requests,” you do not indicate what you mean by that. While we understand that you are not
`withdrawing the second priority requests with prejudice, we assume that you mean that such
`requests will be held in abeyance indefinitely, that the Parties do not have a present intention of
`seeking compliance with such requests, and that the SSEs do not need to comply with them
`absent a showing of good cause by the Parties. If that is not correct, please let us know.14
`
`You have also proposed that the Parties prioritize transaction data over non-transactional
`data. We agree that non-transactional data is extremely burdensome to produce and unlikely to
`generate material, non-duplicative information.
` Accordingly, we agree that the non-
`transactional-data requests should be held in abeyance in the same way as your second priority
`requests.
`
`Your letter also reiterates your offer to “frontload production for cases that will come up
`first for class certification briefing.” As we have explained, however, the Parties and the SSEs
`need to develop an overarching plan for compliance with the subpoena. Producing in piecemeal
`fashion would not, as you assert, “lessen the burden of responding to the subpoena.” That said,
`we expect that as each request is negotiated, the Parties may find that a more limited universe of
`information will satisfy any need. To the extent appropriate, we may consider whether to first
`
`
`12 Your letter requests that the SSEs produce transaction data for the “before” period. But the fact that DOJ plea
`agreements were limited in time does not mean that the conspiracy arose at that time. Indeed, both the plea
`agreements and the Complaints allege that the conspiracies began “at least as early as” the stated period. Thus, the
`Parties have not established that there is a “before” period that is not infected by the conspiracies. As such, there is
`no reason for the SSEs to search that far back in time.
`13 Unlike document requests issued to parties, subpoenas are not continuing in nature. Accordingly, the end date for
`any document production will be the date of service of the subpoena.
`14 We also believe that the following requests should be included in the second priority list as well if not withdrawn
`altogether: Request Nos. 11 (inventory), 22 (communications with dealers), and 27 (data produced to regulators).
`
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`pull information for one or more component parts. We will need to address this, however, on a
`request-by-request basis.
`
`11.
`
`Costs
`
`During the Summit Conference (and before), the SSEs made it clear that we will not
`expend time, effort, and resources searching for or producing documents absent the Parties’
`agreement to fully reimburse our costs of compliance. As you know, the Federal Rules require
`that any order compelling production “must protect a person who is neither a party nor a party’s
`officer from significant expense resulting from compliance.” Fed. R. Civ. P. 45(d)(2)(B). In
`response, you say you are “not opposed to having a conversation … on costs or to discuss where
`cost-sharing may be appropriate,” but do not commit to actually pay for any costs. Instead, you
`assert that you “do not believe it would be reasonable” for any SSE “to refuse to engage in a
`conversation [on the scope of the subpoena] based on a demand for up-front costs.”
`
`The reason we raised the issue of costs was to have a “conversation … on costs,” not to
`avoid one. Contrary to your assertion, the SSEs have not “request[ed] that the Parties agree to
`pay all costs … ahead of any conversations with the Parties regarding” the scope of the
`subpoena.15 Indeed, the SSEs have led the substantive discussion concerning the scope of the
`subpoena from the outset, as evidenced by the Summit Conference and the subsequent
`correspondence. More to the point, your assertion that you are not opposed to having a
`“conversation on costs,” without actually indicating your position on the issue, does not advance
`the ball.
`
`From the outset, our position on costs has been clear: we are not prepared to search for or
`produce responsive documents absent an agreement on costs. Addressing this topic now is
`necessary because many courts have held that a subpoenaed entity’s right to reimbursement (as
`opposed to the amount of the reimbursement) must be established – either by agreement or court
`order – prior to producing documents. See, e.g., McCabe v. Ernst & Young, LLP, 221 F.R.D.
`423, 426 (D.N.J. 2004). That is why we have requested that the Parties agree to reimburse the
`SSEs for all costs, including all out-of-pocket costs and all attorneys’ fees, and provide fair
`compensation for any additional employee resources that must be devoted to this project. You
`have acknowledged that you may have some obligation to reimburse the SSEs for certain costs,
`but you have not presented any counter-proposal. We look forward to hearing one.16
`
`
`15 The Parties played the same game in their September 28th letter, suggesting that the “Parties cannot agree … to
`make payment of costs a condition of the summit.” But the whole idea of a Summit Conference was our idea, and –
`unlike the Parties – we never conditioned our participation in the meeting on anything. Rather, we specifically
`requested the Summit Conference to gain a “greater understanding of the Parties’ needs” so as to “minimize [the]
`costs that the Parties” will need to reimburse. See Sept. 17, 2015 Ltr. to S. Klein.
`16 In your September 28th letter, you assert that “discussion of costs is particular to each entity.” We do not agree.
`While certain costs may be unique to certain SSEs, the general principles governing the cost reimbursement are
`common. Certainly, you cannot contend that this subpoena – perhaps one of the broadest ever served – would not
`impose a “significant expense.” And the identification of categories of reimbursable expenses similarly raises
`common issues.
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`12.
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`Path Forward
`
`We understand that the Parties would like to “mov[e] forward with a schedule for
`providing written responses and objections.” While we are happy to discuss such a schedule, we
`think the better path forward is for the Parties and SSEs to work towards a final summary
`document that sets forth the agreements of the parties and clearly delineates any areas for which
`the Parties have reached impasse.
`
`While some SSEs have already served objections, we believe that serving further
`objections prior to resolution of the high-level common issues presented in this letter would be
`counter-productive and likely generate disputes that might be avoided through further discussion.
`It is difficult to object to requests that remain a moving target. The Parties have already
`modified the relevant time period, withdrawn certain requests for Non-OEM SSEs and smaller
`SSEs, withdrawn all requests in Exhibit B, and held in abeyance many other requests. Are we
`supposed to object to the requests as originally written, which are no longer operative? Or
`should we object to the requests as modified? Moreover, we suspect that, as the process moves
`forward, further compromises on the high-level issues raised in this letter can also be reached.
`Until we reach closure on these issues, written objections are premature. That said, if the Parties
`demand that the remaining SSEs serve objections to the subpoena’s requests as written, we will
`do so. We do not believe, however