Antitrust Law Daily Wrap Up, ANTITRUST—NDCal: Some Battery Producers Required to Produce Grand Jury Documents Before Filing of Consolidated Complaints in Lithium Ion Battery Litigation, (May 23, 2013)

By Jeffrey May, J.D.

In multi-district civil antitrust litigation, defending battery manufacturers LG Chem, Maxell Corporation, and Samsung SDI have been ordered by the federal district court in Oakland, California, to produce the documents that they had already been produced to the Department of Justice or any grand jury in related investigations, even though consolidated complaints had not yet been filed. The court stayed discovery, however, with respect to three other manufacturers and their affiliates who successfully argued that the burdens of production outweighed the benefits of disclosure of the information (In Re: Lithium Ion Batteries Antitrust Litigation, May 21, 2013, Rogers, Y.).

The plaintiffs, direct and indirect purchasers of lithium ion batteries, sought production from the defendants of: “All documents that YOU produced to the United States Department of Justice and/or any grand jury in response to or in connection with any investigation relating to Lithium-Ion Rechargeable Batteries and/or Lithium-Ion Rechargeable Battery Products.”

The court rejected the defendants' arguments that, because there was no operative complaint from which to gauge the relevance of a discovery request , discovery was premature and that the Federal Rules of Civil Procedure did not countenance pre-complaint discovery. There were more than 70 complaints on file, the court noted. In addition, the court refused to disallow discovery simply because the defendants anticipated filing motions to dismiss. “With no motion to dismiss pending, it is premature to disallow discovery on the basis that a yet-to-be-filed complaint may fail to state a plausible claim for relief,” the court explained.

Burden. Sony Corporation, Panasonic Corporation, and Sanyo Electric Co, Ltd, along with their related entities, successfully argued that production of the requested documents would be unduly burdensome. Thus, the court stayed the discovery as to these defendants

Sony, Panasonic, and Sanyo contended that the review and production of the documents would be substantial. According to the Sony defendants, responding to the discovery request would require Sony to review nearly 200,000 pages of documents at a cost of approximately $250,000. As to the Panasonic and Sanyo defendants, they produced over 500,000 pages of documents to the Justice Department and estimated that producing the requested information for the private litigation would require almost 4,000 hours of additional attorney time. The court agreed with these defendants that the burdens outweighed the benefits of disclosure of the information.

The case is No. 13-MD-2420-YGR, MDL No. 2420.

Attorneys: Bruce L. Simon (Pearson, Simon & Warshaw, LLP), R. Alexander Saveri (Saveri & Saveri, Inc.), and Joseph J. Tabacco, Jr. (Berman DeValerio) for Direct Purchaser Plaintiffs. Nanci Eiko Nishimura (Cotchett Pitre & McCarthy LLP), Jeff D. Friedman (Hagens Berman Sobol Shapiro LLP), and Eric B. Fastiff (Lieff, Cabraser, Heimann & Bernstein, LLP) for Indirect Purchaser Plaintiffs. Kenneth P. Ewing (Steptoe & Johnson LLP) for LG Chem Ltd. Jeffrey L. Kessler (Winston & Strawn LLP) for Panasonic Corp. John C. Dwyer (Cooley LLP) for Sony Corp. Michael W. Scarborough (Sheppard Mullin Richter & Hampton LLP) for Samsung SDI America Inc. Matthew McDonnell Walsh (Winston & Strawn LLP) for Panasonic Corp. Craig P. Seebald (Vinson & Elkins LLP) for Hitachi Ltd. Dennis Schmelzer (Vinson & Elkins LLP) for Maxell Corp.

Companies: LG Chem, Ltd.; LG Chem America, Inc.; Maxell Corporation of America; Samsung SDI America, Inc.; Samsung SDI Co.; Panasonic Corp.; Sony Corp.; Sanyo Electric Co, Ltd.

Cases: Antitrust CaliforniaNews