Case 2:22-cv-01599-KKE Document 89 Filed 03/22/24 Page 1 of 6
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`The Honorable Kymberly K. Evanson
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`STEVEN FLOYD, on behalf of himself and all
`others similarly situated,
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`Plaintiff,
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`v.
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`AMAZON.COM, INC., a Delaware
`corporation, and APPLE INC., a California
`corporation,
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`Defendants.
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`Case No. 2:22-cv-01599-KKE
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`JOINT STATEMENT OF DISCOVERY
`DISPUTES
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`The parties have met-and-conferred extensively on discovery issues and, as to
`Defendants’ productions, have narrowed their disputes to the matters outlined in this joint
`statement submitted in accordance with this Court’s Procedures for Civil Cases.
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`JOINT STATEMENT OF DISCOVERY DISPUTES
`Case No. 2:22-cv-01599-KKE
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`Case 2:22-cv-01599-KKE Document 89 Filed 03/22/24 Page 2 of 6
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`I.
`Plaintiff’s Statement
`Plaintiff alleges that Amazon and Apple have unlawfully restrained trade by entering an
`agreement (called the Global Tenets Agreement (“GTA”)) that strictly limits the number of
`horizontal competitors permitted to sell iPhones and iPads on Amazon’s marketplace. The parties
`have negotiated discovery requests for months, and Plaintiff has agreed to narrow his requests
`substantially. But a few important disputes remain that require the Court’s intervention.
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`Canadian Data. A standard methodology for proving antitrust injury and damages is to
`compare sales data from the relevant market to sales data for a geographic market in which the
`challenged restraint did not operate. See Areeda & Hovenkamp, “Antitrust Law: An Analysis of
`Antitrust Principles and Their Application,” at ¶¶ 340a2, 392; Frame-Wilson v. Amazon.com, Inc.,
`2023 WL 4201679, at *3 (W.D. Wash., June 27, 2023). This is called a “yardstick” model.
`Yardstick models can be used alone, or in conjunction with studies comparing prices before and
`after a restraint’s imposition (often called “before/after” models). See In re Live Concert Antitrust
`Litig., 247 F.R.D. 98, 145–46 (C.D. Cal. 2007) (holding that plaintiffs’ expert could use
`before/after and yardstick models to establish antitrust damages); In re DRAM Antitrust Litig.,
`2006 WL 1530166, at *8–9 (N.D. Cal. June 5, 2006) (substantially same).
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`Plaintiff requested Canadian data to construct a yardstick model. Canadian data will permit
`this critical analysis because, as Defendants have confirmed, the GTA was introduced in Canada
`nearly two years after it was implemented in the United States. Because there was a substantial
`period in which the GTA was operative in the United States, but not Canada, the Canadian data
`can be used for comparison purposes to isolate and measure the effect of the GTA on prices. That
`is the central issue in this case. Defendants have no sound objection to producing Canadian data.
`Just last year, Amazon resisted producing foreign transactional data in another antitrust case in this
`district where plaintiffs sought to perform a geographic comparison. See Frame-Wilson, 2023 WL
`4201679, at *3. Judge Martinez held that foreign transactions were relevant, even though the
`plaintiffs’ claims arose from domestic purchases, because foreign markets could be used as
`“‘benchmarks’ for Plaintiffs’ expert analysis.” Id. at *3. Judge Martinez concluded that “[t]he data
`from external markets has a critical role to play in determining damages in this case.” Id. at *4.
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`As in Frame-Wilson, Defendants also have not shown that pulling data for one additional
`region will be unduly burdensome, much less disproportional to the needs of this large antitrust
`case. See id. Despite repeated requests, Defendants failed to quantify any burden in meet-and-
`confers, offering only generalities. Amazon’s only particularized objection was that Amazon
`sellers might misclassify items such that data pulled for “iPhones and iPads” could sweep in some
`other products (or exclude some miscategorized iPhones or iPads). This is not a reason to withhold
`the data entirely. Relevant documents and data cannot be withheld because they may contain some
`non-responsive information. And even if Amazon had quantified the burden of scrubbing its
`Canadian data of miscategorized products, any such burden would be entirely self-imposed. It
`would be akin to redacting for relevance, which is not generally permitted and certainly not a
`“burden” parties can invoke to resist production of highly relevant data.
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`Foreign Documents: As evidenced by its name, the GTA is a “global” agreement. It
`applies in nearly all countries where Amazon operates. The GTA has been investigated by
`competition authorities in Italy and Spain, each of which found the agreement anticompetitive and
`imposed fines.1 Despite this, Defendants object on relevance grounds to producing any documents
`that do not concern the United States. In an effort to compromise, Plaintiff substantially narrowed
`the requests for foreign documents, and we seek to compel only the two discrete categories.
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`First, Defendants should be compelled to produce their written submissions to the Italian
`and Spanish competition authorities that investigated the GTA. This should include any briefs,
`position papers, expert analyses or other written submissions. There is no meaningful burden in
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`1 The Italian fine was annulled purely on procedural grounds. See ECF No. 37 at n.17.
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`JOINT STATEMENT OF DISCOVERY DISPUTES - 1
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`handing over these materials, and they are obviously relevant. The purpose and effect of the GTA
`is a central issue in this case, as to which the parties have already staked out sharply contrasting
`positions. What Defendants and their consultants have said to foreign regulators on these topics,
`and the GTA generally, plainly bears on the claims and defenses in this case. Courts regularly
`compel production of communications with foreign regulators for precisely this reason. See, e.g.,
`In re Davol, Inc./C.R. Bard, Inc. Polypropylene Hernia Mesh Prods. Liab. Litig., 2019 WL
`341909, at *2–3 (S.D. Ohio Jan. 28, 2019) (compelling production of communications with six
`foreign regulators); Hodges v. Pfizer, 2015 WL 13804602, at *5–6 (D. Minn. Dec. 17, 2015)
`(substantially same); In re Vitamins Antitrust Litig., 2002 WL 34499542, at *16 (D.D.C. Dec. 18,
`2002) (same). Defendants’ invocation of “international comity” is misplaced given that the
`documents at issue state the positions of U.S. companies, originating from their U.S. headquarters.
`Unlike the decisions Defendants cite, no foreign regulator has opposed release of the specific
`documents at issue, and the policy statements Defendants cite apply to the general public’s right
`to obtain documents directly from regulatory bodies. They do not purport to limit U.S. companies
`discovery obligations in U.S. proceedings, much less proceedings governed by a stringent
`protective order.
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`Second, Defendants should be compelled to produce documents concerning the effect of
`the GTA on prices or competition in any geographic market. Because the GTA is a global
`agreement, its impact on prices or competition in any region is relevant to evaluating its impact in
`the United States. See, e.g., United States v. Dentsply Int’l, Inc., 2000 WL 654286, at *56 (D. Del.
`May 10, 2000). There is also no incremental burden in producing this category of documents
`because the parties have agreed to search terms and custodians, and Plaintiff is not insisting that
`these parameters be expanded. All we ask is that if Defendants identify documents within this
`category as part of the review they have already agreed to perform, they be produced.
`II.
`Defendants’ Statement
`As a threshold matter, the Court should defer all discovery disputes until after the motion
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`to amend or intervene (Dkt. 80) is resolved. There is currently no putative class representative in
`this case. Floyd has not responded to his counsel or participated in discovery, or substantively
`responded to interrogatories. Plaintiff’s counsel should not be pushing for more discovery. The
`parties have, however, been able to work out most issues surrounding Plaintiff’s offensive
`discovery requests. Defendants agreed on search terms and custodians, the relevant time period,
`and are reviewing millions of pages of documents. What remains is geographic scope: the demand
`that Defendants review and produce documents and data exclusively regarding foreign conduct in
`foreign markets in a case regarding conduct and alleged harm only in the U.S.
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`Canadian Data: Plaintiff’s counsel is seeking data showing every smartphone and tablet
`transaction from Amazon and Apple’s Canadian stores because they want to construct a
`hypothetical market without the GTA and compare the prices in that market (Canada) to the market
`with the GTA (the U.S.). Such data is irrelevant and not proportional to the needs of the case
`because it makes for an inapt comparison and does not address any facts underlying the complaint.
`To begin, Defendants have agreed to provide enough U.S. data for Plaintiff’s counsel to
`“measure the effect of the GTA on prices”: Defendants will produce data for a full 3 years
`before the GTA became effective, and nearly 5 years after. That is more than sufficient. Further,
`Plaintiff’s counsel’s request for Canadian data is inconsistent with Frame-Wilson, where the Court
`ordered international data be produced only because U.S. data that predated the alleged
`anticompetitive conduct was not available. 2023 WL 4201679, at *2–*3. Unlike in Frame-Wilson,
`Plaintiff’s counsel has ample data “from a period…that is not subject to the allegedly
`anticompetitive practice.” Id. Their demand for Canadian data is excessive and disproportional.
`Moreover, Canadian data is inapt: the GTA operated differently in Amazon’s Canadian store,
`which had distinct third-party sellers pre- and post-GTA as well as distinct customers, and Amazon
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`JOINT STATEMENT OF DISCOVERY DISPUTES - 2
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`Case 2:22-cv-01599-KKE Document 89 Filed 03/22/24 Page 4 of 6
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`Canada is not authorized (nor has it ever been) to sell iPhones—one of the two products at issue.
`Their request is also unduly burdensome. Amazon would have to duplicate its present efforts,
`because Amazon’s transaction-level sales data is stored in distinct, siloed data repositories
`managed by different teams. Amazon would also have to manually identify every product-specific
`identifier used for Canadian Apple products and smartphones and tablets over the last 8 years.
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`Foreign Documents: Defendants already agreed to produce any document that (1) has any
`U.S. material; (2) is “global” in scope, or (3) where it is unclear as to what country is at issue.
`First, discovery of documents relating solely to foreign countries is irrelevant. Plaintiff brings a
`single claim under U.S. antitrust law, for a U.S. market, alleging that conduct by two U.S.-based
`companies harmed a U.S. plaintiff and a putative class of U.S. purchasers. Conduct not affecting
`U.S. markets cannot give rise to a Sherman Act claim. See 15 U.S.C. § 6a; In re Foreign Exch.
`Benchmark Rates Antitrust Litig., 74 F. Supp. 3d 581, 600 (S.D.N.Y. 2015); Epic Games v. Apple
`Inc., 2020 WL 7779017, at *2 (N.D. Cal. Dec. 31, 2020). Tellingly, in seeking production of
`advocacy documents that apply foreign law to foreign economic data and then are confidentially
`submitted to foreign competition authorities, Plaintiff’s counsel rely on products liability cases.
`There, courts permitted discovery of defendants’ communications with foreign regulators only to
`prove the defendants’ knowledge of a product’s risks. See In re Davol, Inc./C.R. Bard, Inc.,
`Polypropylene Hernia Mesh Prod. Liab. Litig., 2019 WL 341909, at *2 (S.D. Ohio Jan. 28, 2019);
`Hodges v. Pfizer, Inc., 2015 WL 13804602, at *6 (D. Minn. Dec. 17, 2015). No such issue exists
`here. Second, requiring production of documents relating solely to foreign countries is not
`proportional. See Fed. R. Civ. P. 26(b)(1). Defendants have already agreed to an extensive review
`in response to Plaintiff’s counsel’s requests. Third, the Court should reject this request on the
`grounds of international comity. See In re Rubber Chems. Antitrust Litig., 486 F. Supp. 2d 1078,
`1081 (N.D. Cal. 2007). The factors courts employ do not support production. See Societe Nationale
`Industrielle Aerospatiale v. U.S. Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 544 n.28 (1987).
`Foreign Interests: Ordering production would undermine Spain and Italy’s “important
`substantive polices or interests” in the confidentiality of competition authority investigations.
`Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1476 (9th Cir. 1992). Under EU
`regulations, while antitrust appeals are pending, there is a general presumption that disclosure of
`evidence would “undermine … the protection of the purpose of the investigations relating to the
`proceeding.” ¶93EnBW, C-365/12P; see also EU Damages Directive, article 6.5(a); EnBW.
`“[T]hird parties … do not … have any right of access to the documents in the Commission’s file.”
`¶87EnBW, C-365/12P; see also Article 24, Italian Law No. 241/90 (same); Articles 42–43,
`Spanish Competition Act 15/2007 (confidentiality obligations).
`Importance of the Information: The outcome of the litigation “does not stand or fall on the
`present discovery” and “the evidence sought is cumulative of existing evidence.” Campbell v.
`Facebook Inc., 2015 WL 4463809, at *4 (N.D. Cal. July 21, 2015) (citation omitted) (denying
`motion to compel U.S.-based Facebook to produce foreign discovery). Neither the application of
`foreign law to the GTA nor the GTA’s effects outside the U.S. are relevant here.
`Origination Outside the U.S.: The Regulatory Submissions largely originated with foreign
`law firms who created the documents to submit to foreign competition authorities. “This factor
`weighs against requiring disclosure.” Richmark, 959 F.2d at 1475.
`Availability of Alternative Means for Securing the Information: “If the information sought
`can easily be obtained elsewhere, there is little or no reason to require a party to violate foreign
`law.” Id. at 1475. Although not relevant here, Plaintiff’s counsel already has access to the public
`version of the Italian authority’s since-annulled decision. Cf. In re Qualcomm Antitrust Litig., 2018
`WL 10731128, at *3 (N.D. Cal. Mar. 26, 2018) (holding plaintiff did not need confidential
`submissions because they had access to EC decision).
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`JOINT STATEMENT OF DISCOVERY DISPUTES - 3
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`DATED: March 22, 2024.
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`JOINT STATEMENT OF DISCOVERY DISPUTES - 4
`Case No. 2:22-cv-01599-KKE
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`HAGENS BERMAN SOBOL SHAPIRO LLP
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`By /s/ Steve W. Berman
`Steve W. Berman (WSBA No. 12536)
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`By /s/ Barbara A. Mahoney
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`Barbara A. Mahoney (WSBA No. 31845)
`1301 Second Avenue Suite 2000
`Seattle, WA 98101
`Telephone: (206) 623-7292
`Facsimile: (206) 623-0594
`steve@hbsslaw.com
`barabaram@hbsslaw.com
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`Ben M. Harrington (pro hac vice)
`Benjamin J. Siegel (pro hac vice)
`715 Hearst Avenue, Suite 300
`Berkeley, CA 94710
`Telephone: (510) 725-3000
`Facsimile: (510) 725-3001
`benh@hbsslaw.com
`bens@hbsslaw.com
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`Attorneys for Plaintiff and the Proposed Class
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`ORRICK, HERRINGTON & SUTCLIFFE LLP
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`By: /s/ Mark S. Parris
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` Mark S. Parris (WSBA No. 18370)
`mparris@orrick.com
`401 Union Street, Suite 3300
`Seattle, WA 98101
`Telephone: +1 206 839 4300
`Facsimile: +1 206 839 4301
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`WEIL GOTSHAL & MANGES, LLP
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`By: /s/ Mark A. Perry
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` Mark A. Perry (Pro Hac Vice)
`2001 M. Street NW, Suite 600
`Washington, DC 20036
`Telephone: +1 202 682 7000
`mark.perry@weil.com
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`Case 2:22-cv-01599-KKE Document 89 Filed 03/22/24 Page 6 of 6
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`By: /s/ Eric S. Hochstadt
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` Eric S. Hochstadt (Pro Hac Vice)
`767 Fifth Ave.
`New York, NY 10153-0119
` Telephone: +1 212 310 8000
`eric.hochstadt@weil.com
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`By: /s/ Brian G. Liegel
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` Brian G. Liegel (Pro Hac Vice)
`brian.liegel@weil.com
`1395 Brickell Avenue, Suite 1200
`Miami, FL 33131
`Telephone: +1 305 577 3180
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`Attorneys for APPLE INC.
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` By: /s/ John Goldmark
`
`
` John Goldmark, WSBA #40980
`MaryAnn Almeida, WSBA #49086
`DAVIS WRIGHT TREMAINE, LLP
`920 Fifth Avenue, Suite 3300
`Seattle, Washington, 98104
`Phone: (206) 622-3150
`Fax: (206) 757-7700
`Email:
`johngoldmark@dwt.com
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`maryannalmeida@dwt.com
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`Chad S. Hummel (pro hac vice)
`SIDLEY AUSTIN LLP
`1999 Avenue of the Stars, 17th Floor
`Los Angeles, CA 90067
`Phone: (310) 595-9500
`Fax: (310) 595-9501
`Email:
`chummel@sidley.com
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`Jonathan E. Nuechterlein (pro hac vice)
`Benjamin M. Mundel (pro hac vice)
`SIDLEY AUSTIN LLP
`1501 K Street, N.W.
`Washington, D.C. 20005
`Phone: (202) 736-8000
`Fax: (202) 736-8711
`Email:
`jnuechterlein@sidley.com
`bmundel@sidley.com
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`Attorneys for AMAZON.COM, INC.
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`JOINT STATEMENT OF DISCOVERY DISPUTES - 5
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