In Re Dynamic Random Access Memory (DRAM) Indirect Purchaser Antitrust Litigation

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 MICHELE JONES, et al., Case No. 18-cv-02518-JSW (KAW) 8 Plaintiffs, ORDER REGARDING JOINT 9 v. DISCOVERY LETTER 10 MICRON TECHNOLOGY INC., et al., Re: Dkt. No. 103 11 Defendants. 12 Case No. 18-cv-3805-JSW (KAW) IN RE DYNAMIC RANDOM ACCESS 13 MEMORY (DRAM) DIRECT ORDER REGARDING JOINT PURCHASER ANTITRUST LITIGATION DISCOVERY LETTER [14] Re: Dkt. No. 52 [16] 17 The instant cases concern allegations that Defendants conspired to raise market prices for 18 Dynamic Random Access Memory (“DRAM”) products. DRAM is a semiconductor memory 19 device that is used in digital electronics, including mobile phones, personal computers, tablets, and 20 televisions. Plaintiffs represent two groups: direct purchasers (“DP”), who buy DRAM directly 21 from Defendants, and indirect purchasers (“IP”), who buy the products that DRAM has already 22 been incorporated into. The DP complaints have been consolidated into In re Dynamic Random 23 Access (DRAM) Direct Purchaser Antitrust Litigation, Case No. 18-cv-3805 (“DP Case”), while 24 the active IP case is Jones v. Micron Technology, Inc., Case No. 18-cv-2518 (“IP Case”).1 25 Pending before the Court are two identical discovery letters, in which Plaintiffs request 26 that the Court: (1) compel Defendants to produce documents provided to any regulatory or [27] 1 governmental authority since January 1, 2017, specifically a Chinese investigation; and (2) compel 2 the parties to promptly participate in a Rule 26(f) conference, or to produce the documents prior to 3 the Rule 26(f) conference.2 4 I. DISCUSSION 5 A. Production of Documents 6 Rule 26(d) provides that “[a] party may not seek discovery from any source before the 7 parties have conferred as required by Rule 26(f), except . . . when authorized by these rules, by 8 stipulation, or by court order.” In deciding whether to allow early discovery, courts apply a good 9 cause standard. Twitch Interactive, Inc. v. Johnston, Case No. 16-cv-3404-BLF, 2017 U.S. Dist. 10 LEXIS 44863 , at *5 (N.D. Cal. Mar. 27, 2017); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 11 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited 12 discovery, in consideration of the administration of justice, outweighs the prejudice to the 13 responding party.” Semitool, Inc., 208 F.R.D. at 276. 14 The Court finds that Plaintiffs have not established good cause because they have not 15 explained why they require expedited discovery. While Plaintiffs argue that other courts in this 16 district “routinely order the production of antitrust investigation documents pending the filing of 17 consolidated amended complaints,” the fact that other courts permit such production does not 18 establish why Plaintiffs require expedited discovery here. (See Discovery Letters at 2.) Similarly, 19 arguments that the burden to Defendants is minimal does not establish good cause, as Plaintiffs 20 must still establish that their need for expedited discovery outweighs any such burden. (See id. at 21 4.) 22 Moreover, the Court notes that in dismissing the IP Complaint’s Sherman Act claims, the 23 presiding judge specifically did not consider allegations regarding the Chinese investigation, [25] 2 Plaintiffs also request that the Court reset the date by which Plaintiffs are to file their amended complaints to forty-five days after the production of the documents. (Discovery Letters at 2.) In [26] the referral order, the presiding judge stated that the deadlines for the IP amended complaint and DP consolidated complaint will be set after the undersigned “rules on the dispute outlined in the [27] October 2, 2019 letter (namely, whether to compel production of certain documents or whether to 1 explaining that “[a]llegations concerning past or ongoing investigations are also not particularly 2 helpful to suggest a contemporary conspiracy: the scope of an investigation is not always evident 3 to the public or to the Court, and investigations that do not result in a finding of fact or admission 4 suggest only that a government body believed a circumstance appeared suspicious.” (IP Case, 5 Dkt. No. 98 at 26-27.) Further, “allegations of investigations outside of the United States are fully 6 unpersuasive: foreign laws may prohibit behavior that is lawful under § 1.” (Id. at 27.) While 7 Plaintiffs argue that other courts have permitted early discovery of documents provided to foreign 8 investigatory bodies, Plaintiffs again do not explain why such discovery is warranted in this case.3 9 Thus, for purposes of expedited discovery, the Court finds that Plaintiffs have failed to establish 10 any need for the requested documents prior to the Rule 26(f) conference. 11 B. Rule 26(f) Conference 12 Rule 26(f)(1) requires that “the parties must confer as soon as practicable--and in any event 13 at least 21 days before a scheduling conference is to be held or a scheduling order is due under 14 Rule 16(b).” At the Rule 26(f) conference, the parties must make their Rule 26 disclosures and 15 devise a proposed discovery plan, taking into consideration “the nature and basis of their claims 16 and defenses . . . .” Fed. R. Civ. P. 26(f)(2). 17 Plaintiffs request that Defendants be ordered to participate in a Rule 26(f) conference, 18 arguing that because “the case has been pending for over a year, it is appropriate and efficient for 19 the parties to hold a Rule 26(f) conference now.” (Discovery Letters at 5.) Defendants respond 20 that the current claims and defenses are not clear, as there is no operative complaint in the IP Case, 21 and DP Plaintiffs have been ordered to file a consolidated complaint. 22 The Court finds that a Rule 26(f) conference is premature, particularly when the presiding 23 judge will be setting briefing deadlines “on the expected motions to dismiss in the IP and DP 24 cases.” (IP Case, Dkt. No. 104 at 3.) Thus, even if the general subject matter of the cases is 25 known, the pleadings and scope of the specific claims are not settled, making it premature to make disclosures and discuss a discovery plan. See Zavala v. Kruse-Western, Inc., 2019 WL 3219254 , [27] 1 at *2 (E.D. Cal. July 17, 2019) (denying motion to compel a Rule 26(f) conference because 2 “(until the motion to dismiss is resolved, the actual claims and defenses at issue will be unclear’’); 3 Contentguard Holdings, Inc. v. ZTE Corp., Case No. 12cv1226-CAB (MDD), 2013 WL 4 12072533, at *2 (S.D. Cal. Jan. 16, 2013) (finding no good cause to require a Rule 26(f) 5 conference because “[u]ntil the motion to dismiss is resolved, the actual claims and defenses will 6 || be unclear. It would be inefficient and cause unnecessary expense for the parties to engage in 7 discovery on claims that may not survive and defenses and counterclaims that may not be 8 || asserted”). 9 Il. CONCLUSION 10 For the reasons stated above, the Court DENIES Plaintiffs’ request for expedited discovery 11 or a Rule 26(f) conference. q 12 IT IS SO ORDERED. 13. || Dated: October 23, 2019 14 oak A. Hide (ad 315 United States Magistrate Judge 2 16