Case: 1:21-cv-03860 Document #: 5-3 Filed: 07/20/21 Page 1 of 14 PageID #:574
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
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`APPLE INC.,
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`Movant
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`v.
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`BASECAMP, LLC,
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`Defendant.
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`Case No. 21-cv-3860
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`Underlying Litigation:
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`Cameron v. Apple Inc.,
` No. 4:19-cv-3074
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`In re Apple iPhone Antitrust Litigation,
` No. 4:11-cv-6714
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`U.S. District Court for the Northern
`District Of California
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`MEMORANDUM OF LAW IN SUPPORT OF APPLE INC.’S
`MOTIONS TO TRANSFER THE MOTION TO COMPEL
`AND EXPEDITE PROCEEDINGS
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`Case: 1:21-cv-03860 Document #: 5-3 Filed: 07/20/21 Page 2 of 14 PageID #:575
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`TABLE OF CONTENTS
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`PRELIMINARY STATEMENT .................................................................................................... 1
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`ARGUMENT .................................................................................................................................. 4
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`I.
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`APPLE’S MOTION TO TRANSFER SHOULD BE GRANTED......................... 4
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`A.
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`B.
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`Legal Standard for Motion to Transfer ....................................................... 4
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`Transfer to the Northern District of California Is Warranted
`Given the Procedural Posture, History, and Complexity of
`the Underlying Litigation in the Northern District of
`California .................................................................................................... 5
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`II.
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`APPLE’S MOTION TO EXPEDITE SHOULD ALSO BE
`GRANTED ............................................................................................................. 9
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`CONCLUSION ............................................................................................................................. 10
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`i
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`In re Braden,
`344 F. Supp. 3d 83 (D.D.C. 2018) ................................................................................... passim
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`Cont’l Auto. Sys., U.S., Inc. v. Omron Auto. Elecs., Inc.,
`No. 14 C 3731, 2014 WL 2808984 (N.D. Ill. June 20, 2014) ......................................... passim
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`In re Disposable Contact Lens Antitrust Litig.,
`306 F. Supp. 3d 372 (D.D.C. 2017) ...........................................................................................8
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`Wultz v. Bank of China, Ltd.,
`304 F.R.D. 38 (D.D.C. 2014) .............................................................................................4, 6, 7
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`Wyoming v. U.S. Dep’t of Agric.,
`208 F.R.D. 449 (D.D.C. 2002) ...................................................................................................8
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`Statutes
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`U.S. Code § 1657 .............................................................................................................................8
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`Other Authorities
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`Fed. R. Civ. P. 45(f) .................................................................................................................4, 6, 7
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`Federal Rule of Civil Procedure 23 .................................................................................................3
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`ii
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`Case: 1:21-cv-03860 Document #: 5-3 Filed: 07/20/21 Page 4 of 14 PageID #:577
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`Apple Inc. (“Apple”) submits this Motion to Transfer the Motion to Compel and Motion
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`to Expedite these proceedings (the “Transfer Motion”). Apple incorporates by reference its
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`separate Motion to Compel certain documents from Basecamp LLC (“Basecamp”) (the “Compel
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`Motion”), including the Declaration of Michael R. Huttenlocher, dated July 19, 2021, appended
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`thereto.
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`PRELIMINARY STATEMENT1
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`On December 8, 2020, Apple served Basecamp with a Rule 45 subpoena (the
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`“Subpoena”) seeking documents highly relevant to two ongoing antitrust class action cases
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`brought against Apple in the Northern District of California before U.S. District Judge Yvonne
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`Gonzalez Rogers and U.S. Magistrate Judge Thomas S. Hixson. These two class actions, one
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`brought by a putative class of app developers and the other by a putative class of app consumers,
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`essentially assert the same claims against Apple as asserted in a related, third antitrust action,
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`filed in August 2020 by Epic Games, Inc. (“Epic”), the developer of the popular Fortnite video
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`game, and which recently concluded in a three-week bench trial on May 24, 2021.2 Judge
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`Gonzalez Rogers and Magistrate Judge Hixson are intimately familiar with the facts of these
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`complex antitrust cases, and Magistrate Judge Hixson has issued at least eighteen orders deciding
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`at least 25 discovery disputes that arose in the coordinated discovery proceedings required of
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`these three actions, including disputes involving third party subpoenas.
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`On December 22, 2020, Basecamp interposed a set of objections and, later, produced a
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`limited number of documents in response to the Subpoena. Basecamp, however, objected to and
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`1 Apple respectfully refers this Court to the Declaration of Michael R. Huttenlocher, dated July 19, 2021, appended
`hereto, for a more fulsome recitation of the factual background.
`2 A fourth antitrust action filed by app marketplace SaurikIT, LLC in December 2020 has been related to these
`cases and is also pending before Judge Gonzales Rogers and Magistrate Judge Hixson. SaurikIT, LLC v. Apple, Inc.,
`20-cv-8733-YGR.
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`1
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`did not produce any documents responsive to requests 10, 11, and 25 (the “Relevant Requests”).
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`The Relevant Requests seek documents, information, and communications relating to
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`Basecamp’s relationship to and involvement with the Coalition for App Fairness (the
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`“Coalition”), and communications between Basecamp (including Basecamp’s counsel) and any
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`app developer regarding the subject matter of the antitrust litigation brought against Apple and/or
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`matters relating to app marketplaces and Apple’s guidelines and policies. In its written
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`objections to the Relevant Requests, Basecamp objected on the basis of relevance but agreed that
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`it would meet and confer with Apple to agree upon a reasonable scope of production. Notably,
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`Basecamp did not interpose any specific privilege objections to any of the Relevant Requests.
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`Apple and Basecamp met and conferred several times concerning the Relevant Requests
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`but could not come to agreement on a scope of production. Basecamp claimed that the requested
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`documents were irrelevant and too burdensome; Basecamp failed to articulate the alleged undue
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`burden or the costs associated of a search and production of relevant documents. After Apple
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`served a similar subpoena upon the Coalition, its PR firm and its executive director, as well as
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`Coalition members, including Yoga Buddhi Co., (“Yoga Buddhi”) and Match Inc. (“Match”),
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`Basecamp (who is represented by the same counsel as the Coalition, Yoga Buddhi, and Match)
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`asserted an additional frivolous objection, namely that the documents and communications
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`sought by the Relevant Requests were protected from disclosure by the First Amendment. On
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`July 1, 2021, Apple and Basecamp met and conferred about this newly asserted First
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`Amendment objection. Basecamp continued to stand on its blanket First Amendment objection
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`to the Relevant Requests, and refused to have the dispute heard by Magistrate Judge Hixson
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`despite his having heard and provided expedited decisions on more than a dozen discovery
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`disputes in these antitrust cases (including third party subpoenas).”
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`2
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`Like Basecamp, the Coalition, its PR firm, its executive director and Match also refused
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`to produce the documents at issue and also rejected Apple’s request to have the dispute heard
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`before the Northern District of California. Yoga Buddhi took a conspicuously different tack –
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`although Yoga Buddhi also initially objected to the production of Coalition documents, it
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`abruptly changed course after Apple indicated it was bringing the dispute to the Court and agreed
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`to produce newsletters sent out by the Coalition to Yoga Buddhi and other email
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`communications. It is clear that Yoga Buddhi made this strategic decision to avoid ripening a
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`conflict that would be heard in the Northern District of California where Yoga Buddhi is located.
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`Yoga Buddhi and its lawyers understood that if Yoga Buddhi continued to oppose production,
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`the dispute would be expeditiously heard by Judge Hixson, foiling Basecamp’s plan for a
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`delayed result made by a Court with less familiarity with the facts. As a result of this
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`gamesmanship, Apple is now forced to move to compel in three courts – District Court for the
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`District of Columbia, the Northern District of Texas and this Court – none of which are familiar
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`with the underlying proceedings.
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`Accordingly, this Court should transfer Apple’s accompanying Motion to Compel to the
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`Northern District of California to permit Judges Gonzalez Rogers and Hixson to resolve the
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`parties’ dispute. Basecamp’s asserted objections are inextricably intertwined with the facts
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`exposed in the underlying litigations in the Northern District of California as well as the parallel
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`disputes with the related Coalition entities. This dispute with Basecamp cries out for
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`adjudication by the Northern District of California and not the Northern District of Illinois, a
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`stranger to the underlying litigation.
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`As set forth more fully in the accompanying Motion to Compel, the documents Apple
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`seeks from Basecamp are relevant to the merits of Apple’s case and defenses as well as to
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`3
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`Apple’s class certification opposition, including the commonality, adequacy and predominance
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`prongs of Federal Rule of Civil Procedure 23. Given the impending deadline of Apple’s class
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`certification opposition on August 10, 2021 and the relevance of these materials to that
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`opposition, this Court should expedite the briefing of the Transfer and Compel Motions.
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`ARGUMENT
`I. APPLE’S MOTION TO TRANSFER SHOULD BE GRANTED
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`Because of the expedited timeline, procedural posture and complexity of the underlying
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`Consumer and Developer Class Actions, and the Northern District of California’s intimate
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`familiarity with these cases, this Court should transfer this dispute to the Northern District of
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`California. The burden placed on Basecamp by the transfer does not outweigh the exceptional
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`circumstances warranting transfer here.
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`A.
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`Legal Standard for Motion to Transfer
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`Where, as here, the subpoena compliance and issuing courts differ, the court where
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`subpoena compliance is required can transfer motions to quash or compel to the court that issued
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`the subpoena “if the court finds exceptional circumstances.” Fed. R. Civ. P. 45(f); see also
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`Cont’l Auto. Sys., U.S., Inc. v. Omron Auto. Elecs., Inc., No. 14 C 3731, 2014 WL 2808984, at
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`*2 (N.D. Ill. June 20, 2014) (granting motion to transfer pursuant to Fed. R. Civ. P. 45(f)); In re
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`Braden, 344 F. Supp. 3d 83, 89 (D.D.C. 2018). “‘[T]ransfer may be warranted in order to avoid
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`disrupting the issuing court’s management of the underlying litigation, as when the court has
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`already ruled on issues presented by the motion or the same issues are likely to rise in discovery
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`in many districts.’” Cont’l Auto. Sys., U.S., Inc., 2014 WL 2808984, at *2 (quoting Fed. R. Civ.
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`P. 45(f) Advisory Committee Notes); see also In re Braden, 344 F. Supp. 3d at 90 (holding that
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`courts weighing transfer under Rule 45(f) must ensure the “the efficient, fair and orderly
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`progress of ongoing litigation before the issuing court” and balance this against any “interest of
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`the nonparty in obtaining local resolution of a subpoena-related motion.”) (cleaned up); see also
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`Wultz v. Bank of China, Ltd., 304 F.R.D. 38, 46 (D.D.C. 2014) (“[C]ourts have found exceptional
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`circumstances warranting transferring subpoena-related motions . . . when transferring the matter
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`is in the interests of judicial economy and avoiding inconsistent results.” citation and internal
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`quotation marks omitted).)
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`B.
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`Transfer to the Northern District of California Is Warranted Given the
`Procedural Posture, History, and Complexity of the Underlying Litigation in
`the Northern District of California
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`Apple easily satisfies the standard of “exceptional circumstances” to justify transferring
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`the Compel Motion to the Northern District of California. First, beginning in August of 2019,
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`Judge Gonzalez Rogers entered comprehensive case management orders that have defined the
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`timeline for discovery and class certification matters in the Consumer and Developer Class
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`Actions. See, e.g., Cameron v. Apple, Inc., No. 19-cv-3074-YGR (D.E. 84); In re Apple iPhone
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`Antitrust Litigation, No. 11-cv-6714-YGR (D.E. 199). Most pressingly, Apple’s opposition to
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`the motions for class certification filed in the Consumer and Developer Class Actions is due on
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`August 10, 2021, and responsive documents to the Subpoena are relevant to Apple’s opposition
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`and, more broadly, to the merits of the underlying antitrust litigation.3 A court should transfer
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`where the rulings it “might issue could easily disrupt the [subpoena-issuing] court’s management
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`of the underlying litigation, both procedurally and substantively.” Global Agility Solutions Inc.
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`v. Melissa Barker, No. 1:20-MC-0314-RP-AWA, 2020 WL 2494635, at *2 (W.D. Tx. May 14,
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`2020).
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`3 As discussed in more detail in Apple’s Motion to Compel, the requested evidence is relevant, among other things:
`(1) to show the harm or benefits the developers perceive from the App Store and the policies at issue in the
`litigations, the positive experiences that developers have had with Apple’s App Review process (both through
`machine learning and human review), the importance to them of Apple’s security and privacy features for app
`development and customer acquisition, and the varying monetization strategies that developers are able to deploy;
`(2) to the pending motion for class certification, including whether there are individualized differences among
`developers that defeat predominance and issues concerning injury; and (3) to show witness bias.
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`Second, the underling litigation is complex, late-stage, and long-standing. The Consumer
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`and Developer Class Actions are two of four related, coordinated antitrust actions relating to
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`Apple’s App Store, bother are at the class certification stage, and the actions have been pending
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`since 2011 and 2019, respectively. Moreover, one of the four related actions has already been
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`tried to completion. In the course of the litigation, Judge Gonzalez Rogers and Magistrate Judge
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`Hixson have become very familiar with the underlying facts and related discovery issues, and
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`have resolved more than a dozen discovery disputes, including those that have implicated third-
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`party discovery. (Huttenlocher Decl. ¶ 12); see, e.g., Cameron v. Apple, Inc., No. 19-cv-3074-
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`YGR (D.E. 64, 98); In re Apple iPhone Antitrust Litigation, No. 11-cv-6714-YGR (D.E. 199).
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`Transfer is necessary where the court of compliance would have to “[d]elv[e] into the merits of
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`the litigation . . . [and thus] disrupt[] that court's management of the underlying litigation.”
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`Cont’l Auto. Sys., U.S., Inc., 2014 WL 2808984, at *2; see also In re Braden, 344 F. Supp. 3d at
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`90.
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`Third, Magistrate Judge Hixson has established a streamlined process for resolving
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`discovery disputes that requires relatively little briefing and affords an expedited decision, made
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`possible by his understanding of the issues in the underlying litigation. In re Braden, 344 F.
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`Supp. 3d at 92 (granting motion to transfer, in part, because the issuing court had established a
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`“streamlined process” for resolving discovery disputes). Basecamp refused to engage in this
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`streamlined process and insisted that Apple bring its motion to compel in this Court, foregoing
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`any considerations of judicial economy or having the best-positioned court decide the issues.
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`(Huttenlocher Decl. Ex. 13.); see Fed. R. Civ. P. 45(f) Advisory Committee Notes (noting that
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`judicial economy is a reason to grant a motion to transfer pursuant to Fed. R. Civ. P. 45(f); see
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`also Cont’l Auto. Sys., U.S., Inc., 2014 WL 2808984, at *2; Wultz, 304 F.R.D. at 46 (D.D.C.
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`6
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`Case: 1:21-cv-03860 Document #: 5-3 Filed: 07/20/21 Page 10 of 14 PageID #:583
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`2014) (conducing that “exceptional circumstances warranting transferring subpoena-related
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`motions . . . when transferring the matter is in the interests of judicial economy”). Granting
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`Apple’s motion best preserves the judicial resources of this Court and the parties.
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`Even more than that, Basecamp’s fellow app developer Yoga Buddhi – who is
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`represented by the same counsel as Basecamp – made a tactical decision to produce documents
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`in response to the Relevant Requests while Basecamp stands on its blanket relevance and First
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`Amendment privilege objections for the sole purpose of avoiding a connection between the
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`Subpoena and the Northern District of California and, in turn, avoiding adjudication of these
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`issues before Magistrate Judge Hixson.
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`Fourth, absent a transfer, there is genuine risk of inconsistent rulings. In addition to the
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`instant dispute, the Coalition, its executive director, is PR firm, and Match are seeking to have
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`the substantially same issues decided in the District for the District of Columbia (the Coalition)
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`and in the Northern District of Texas (Match), respectively. (Huttenlocher Decl. ¶¶ 22, 24.)
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`Litigating these issues in three separate courts – all of which are complete strangers to the
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`underlying litigation – creates a real and substantial risk of inconsistent rulings concerning the
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`applicability of the First Amendment privilege and the relevance of the materials requested by
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`Apple in the respective subpoenas served upon the parties. Accordingly, it is not just warranted
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`but necessary for the Court to transfer the instant dispute to the Northern District of California.
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`See Fed. R. Civ. P. 45(f) Advisory Committee Notes (noting that the risk of inconsistent rulings
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`is a reason to grant a motion to transfer pursuant to Fed. R. Civ. P. 45(f)); see also Cont’l Auto.
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`Sys., U.S., Inc., 2014 WL 2808984, at *2; Wultz, 304 F.R.D. at 46 (transferring subpoena-related
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`motions is warranted to avoid “inconsistent results”).
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`Fifth, the Court should transfer this dispute for the independent reason that the Northern
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`District of California is, without doubt, better positioned to adjudicate the merits of the instant
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`dispute given the history and complexity of the underlying litigations. This is especially true
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`where resolution of the dispute is necessary sufficiently in advance of the August 10, 2021
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`deadline for Apple’s opposition to class certification, and where Apple’s Motion to Compel will
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`require this Court to make detailed relevance determinations. There is no question that the
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`Northern District of California, which has been steeped in the underlying litigations for over 10
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`years (and intensively over the past two years), is more familiar with Apple’s arguments
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`concerning relevance than this Court (a stranger to the underlying litigations). Transfer is
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`necessary to allow the court most familiar with the litigations to evaluate the relevance of the
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`documents sought and “[compliance] courts must be ‘especially hesitant to pass judgment on
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`what constitutes relevant evidence.’” Cont’l Auto. Sys., U.S., Inc., 2014 WL 2808984, at *2
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`(quoting Truswal Systems Corp. v. Hydro–Air Eng'g, Inc., 813 F.2d 1207, 1212 (Fed.Cir.1987);
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`see also In re Braden, 344 F. Supp. 3d at 93; see also Lipman, 284 F. Supp. 3d at 13 (holding
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`that “[t]he centrality of the relevance assessment weighs in favor of transfer because determining
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`whether information is relevant requires nuanced legal analysis based on a full understanding of
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`the [u]nderlying [a]ction” (citation and internal quotation marks omitted)).
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`In addition, where, as here, a First Amendment privilege is asserted, the Court must
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`assess “whether the information [sought] goes to the ‘heart of the lawsuit.” Wyoming v. U.S.
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`Dep’t of Agric., 208 F.R.D. 449, 455 (D.D.C. 2002). This is a nuanced analysis better suited to
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`the court most familiar with the underlying litigations. See id. “Transfer is also necessary to
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`allow the court that issued the protective order to determine the impact of that order on
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`Respondents’ First Amendment privilege arguments.” In re Braden, 344 F. Supp. 3d at 93; see
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`8
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`also In re Disposable Contact Lens Antitrust Litig., 306 F. Supp. 3d at 382 (finding it relevant
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`that a “point of contention between the parties here is whether the protective order that has been
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`issued in the underlying [action] . . . is sufficient to mitigate the privacy concerns Respondent
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`has asserted in his challenge to the subpoena”).
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`Finally, Judge Gonzalez Rogers entered a protective order in the underlying litigation and
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`she is best-suited to assess the impact of that protective order on Basecamp’s First Amendment
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`privilege arguments. (Huttenlocher Decl. ¶ 13.)
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`II. APPLE’S MOTION TO EXPEDITE SHOULD ALSO BE GRANTED
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`Finally, Apple’s class certification motion is due on August 10, 2021. Given this
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`deadline and the relevance of the materials sought from Basecamp to Apple’s class certification
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`opposition, the Court should grant Apple’s Motion to Expedite Proceedings. It is well-settled
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`that courts “shall expedite the consideration of any action . . . if good cause therefor is shown.”
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`28 U.S. Code § 1657. Basecamp will suffer no prejudice from the proposed briefing schedule as
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`they have been well aware of these issues for months. Apple sent counsel for Basecamp a draft
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`of its section of a proposed joint letter brief to be submitted to Magistrate Judge Hixson
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`containing substantially the same legal arguments contained herein on July 7, 2021.
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`(Huttenlocher Decl. Ex. 13.)
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`*
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`*
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`*
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`9
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`Case: 1:21-cv-03860 Document #: 5-3 Filed: 07/20/21 Page 13 of 14 PageID #:586
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`CONCLUSION
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`For the reasons stated herein, Apple respectfully requests that the Court grant its Motion
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`to Transfer the Motion to Compel and Motion to Expedite Proceedings.
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`Dated: July 20, 2021
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`MCDERMOTT WILL & EMERY LLP
`
`By: /s/ Daniel Campbell
`Daniel Campbell
`444 West Lake Street
`Chicago, IL 60606-0029
`Tel: 312-372-2000
`Fax: 312-984-7700
`dcampbell@mwe.com
`
`John J. Calandra (motion for
`admission pro hac vice pending)
`Nicole Castle (motion for
`admission pro hac vice pending)
`Michael R. Huttenlocher (motion for
`admission pro hac vice pending)
`340 Madison Avenue
`New York, New York 10173
`Tel: 212-547-5400
`Fax: 212-547-5444
`jcalandra@mwe.com
`ncastle@mwe.com
`mhuttenlocher@mwe.com
`
`Attorneys for Apple Inc.
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`10
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`Case: 1:21-cv-03860 Document #: 5-3 Filed: 07/20/21 Page 14 of 14 PageID #:587
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`CERTIFICATE OF SERVICE
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`I, Daniel Campbell, an attorney, hereby certify that on July 20, 2021, I caused a true
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`and correct copy of the foregoing to be filed and served electronically via the court’s CM/ECF
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`system. Notice of this filing was sent via email to the following parties.
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`Brandon Kressin
`KANTER LAW GROUP
`1717 K Street NW
`Suite 900
`Washington, DC 20006
`Tel.: 202-792-3037
`brandon@kanterlawgroup.com
`Counsel for the Coalition for App Fairness
`
`
`/s/ Daniel Campbell
`Daniel Campbell
`444 West Lake Street
`Chicago, IL 60606-0029
`Tel: 312-372-2000
`Fax: 312-984-7700
`dcampbell@mwe.com
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