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STATE
OFNEW
YORKOFFICE
OF
THE
ATTORNEY
GENERAL
ANDREW
M.
CUOMO
120
BROADWAY
JERI-.MY
R.
KASHA
Attorney General
SUITE26CNEW
YORK,
NEW
YORK
10271
ASSISTAI'T
ATTOR1>EY
GENERAL
Tel 212--t1&-8277
Fax
212-416-6015
Jeremy
Xasha@oag
stale
ny.
us
June 18, 2009
ORAL ARGUMENT REQUESTEDCORRECTED VERSION
Bv
Overnight Delivery
&
Electronic Filing
Hon. Joseph C. SperoUnited States Magistrate JudgeUnited States District CourtNorthern District
of
California
450
Golden Gate AvenueSan Francisco, California 94102Re:
State
o{New
York
v.
Micron Technology, Inc., et al..
<;
06-6436 PJH, M-02-1486 PJHDear Judge Spero:Plaintiff State
of
New
York moves for an order compelling the Micron, NEC, lnfineon,Elpida,
Hynix
and Mosel Vitelic Defendants to produce fully unredacted versions
of
settlementagreements between those
Defendants
and third-party computer manufacturers
("OEMs"
and the;'OEM Settlements"), as well as related documents and 30(b)(6) testimony, which the Court hasalready ordered are subject
of
New
York's
legitimate discovery.
New
York also seeks an orderrequiring Defendants to specificaIly identify documents
by
production numbers and to identifyand provide discovery on their universal
"catch-air'
affirmative defenses.In accordance with the procedures set forth
in
~
 
8
of
the Civil Standing Orders forMagistrate Joseph C. Spero (rev. 11/3/08),
New
York and Defendants make this motion jointlyby this Joint Letter, incorporating both
sides'
argument, with exhibits.
I
New
York had understood that Elpida agreed to a compromise proposal made last week.However, on the afternoon
of
the day before filing, Elpida interposed a new requirement that wasunacceptable to New York and a compromise could not be reached.
CaseM:02-cv-01486-PJH Document1966 Filed06/19/09 Page1 of 20
 
Despite repeated requests and seven formal notices by New York, Ex.
18,
Defendantsrefused to participate
in
a final '"in-person" meet and confer unti
I
June
17,2009,
one day beforethe deadline for submission
of
this letter-brief. New York understand that the
Court's
requires"'lead counsel" to be present
in
person at such a meet and confer. However, none
of
the lawyerswith whom New York has previously communicated concerning these issues
or
this case were
in
fact present in-person. Instead, various lawyers from defendants' New York offices werephysically present on
behalf
of
defendants -although New York had had no previous contactthem and they did not participate
in
the meet and confer -while litigating defense counselparticipated on the phone.
New
York had previollsly advised Defendants that
it
was unsurewhether this approach was consistent with the
Court's
rules, but would proceed as Defendantswished, so long as the matter was fully disclosed to the Court.This motion turns largely on questions as to the appropriate legal standards which (a)govern the defenses that defendants have interposed against New
York's
assignment law claimsand (b) therefore prescribe the proper bounds
of
relevance and discovery. New York provideddefendants with the authorities on which
it
relies
in
its part
of
the letter-brief more than
one
month ago, on May
15,2009,
and then a revised draft a week ago. But New York has had noopportunity to respond to the authorities cited
by
defendants
in
their part
of
the joint letter-brief,since defendants refused, despite repeated requests, to disclose those authorities to New Yorkduring the meet and confer
process?
New York will therefore provide supplementary briefing
if,
after a reasonable opportunity to review defendants' submission,
it
believes a short additionalsubmission would be helpful to the Court.A Proposed Order
is
attached
as
Exhibit
1.
New York requests oral argument, either
in
person
or
by telephone.
New
York apologies for the length
of
this letter brief, but has madeevery effort to minimize the argument and number
of
exhibits, while at the same time presentingthese various complex issues coherently for the
Court's
resolution.
I.
New
York's
Position
The Court recently granted New
York's
motion allowing discovery on 90 out
of
31
7asserted affirmative defenses.
3
Ex. 2.
Chief
among those, from New
York's
perspective,
is
discovery relating to the
OEM
Settlements, which defendants have asserted as the basis for anaffirmative defense. ]n essence, Defendants argue that the
OEM
Settlements gave them globalreleases that extinguished claims that had been assigned to New York by those same
OEMs-
even though
it
is
indisputable that
New
York was not party to
or
aware
of
those settlements orreleases. New York denies
Defendant's
position as a matter
of
fact and law. The issue on thismotion is whether
New
York will obtain the full and fair discovery necessary to test Defendants'defenses. Judge Hamilton has already ruled that New York
is
entitled to this discovery.
2
By letter dated May 12, 2009, Micron identified a handful
of
cases, which are addressed
in
Part I.F.
of
New
York's
motion below.
See
Ex. 20. However, these cases do not address thecore issues
of
notice and
due
diligence.
3
]n the interest
of
economy, New York deliberately did not seek discovery on theremaining 227 affirmative defenses.
2
CaseM:02-cv-01486-PJH Document1966 Filed06/19/09 Page2 of 20
 
First, Defendants have redacted pertinent provisions
of
the OEM
S e t t l e m e n t s . ~
 
Forexample, even where the discovery
is
by definition focused on issues
of
assignment and potentialdouble recovery, Micron has entirely redacted provisions titled
__
"
See.
e.g.
.••••••
There are many such examples, detailed below and
in
the
annexed exhibits.
In
other cases,Defendants have redacted non-prejudicial information, such as the date
of
the execution
of
theagreement. the choice
of
law provision, notice provisions,
or
the merger clause. In particular,Defendants have also redacted the settlement amounts, which
is
relevant to the due diligenceanalysis as well as other issues.Second, Defendants are also refusing to produce documents relating to the
OEM
Settlements other than the heavily redacted settlement agreements themselves, and they refuse toproduce 30(b)(6) witnesses to testify as to the circumstances
of
the
OEM
Settlements, relying,
inter
alia.
on privilege.
As
discussed below, Defendants cannot assert privilege as both a swordand shield
in
this manner. In any events, Defendants also refuse to provide a privilege log.More broadly, defendants have no basis to refuse to produce these materials or to insist, as
some
of
them have
in
meet and confer discussions, that it is their prerogative to unilaterally decidewhich documents are
somehow "relevant."
Third, with respect
to
other affirmative defenses at issue
in
this phase
of
discovery, NewYork seeks an order requiring Defendants to specifically identitY documents by productionnumber. as well as transcripts and expert reports by full name and date.Lastly, Defendants should be ordered to identitY affirmative defenses, which they purportto adopt by reference without any specification,
and
they should be compelled to produceappropriate discovery with respect to any such defenses that are within the ambit
of
the
90
defenses that the
Court
has already ruled are legitimately subject
of
discovery at this time.A. Background
Plaintiff
represents the State
of
New York and its various departments and agencies,natural persons
in
New
York, and certain local entities that have authorized the Attorney Generalto bring this action
on
their behalf. Ex. 5 at
~
 
10. In addition, New York also asserts claims thatwere assigned to the State
of
New
York by various
OEMs
(e.g.,
Dell or
HP
or
IBM).
!d.
~ ~
 
7280. These claims were assigned to
New
York in a clause
in
the standard "Centralized Contracts"that
New
York's
procurement agency enters with all vendors. Specifically, the assignmentclause states:75.
ASSIGNMENT
OF
CLAIM
Contractor hereby assigns to theState any and all its claims for overcharges associated with this
~
 
In
the context
of
the ongoing meet
&
confer discussions, certain defendants agreed toproduce some, but not all,
of
these redacted provisions. Since a compromise
could
not bereached.
it is
unclear what Defendants' position now
is
with respect to these.3
CaseM:02-cv-01486-PJH Document1966 Filed06/19/09 Page3 of 20
of 00

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