Extent of Cooperation. (1) Within sixty (60) days of the Effective Date, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts to: (a) Produce the Sony Disclosure. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing; (b) Identify by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims; (c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and (d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement Agreement, and that are not included in the Sony Disclosure. (2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings of the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section. (3) Documents provided to Class Counsel in accordance with this section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each Document. (4) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreements. (5) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the Settling Defendants to disclose or produce any Documents or information prepared by or for counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, or to disclose or produce any Documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements. (6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure. (7) If any Documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documents. (8) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by section 8 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants. (9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law. (10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement. (11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction. (12) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.
Appears in 3 contracts
Sources: Settlement Agreement, Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Within sixty (60) days of the Effective Date, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, Counsel for the Settling Defendants will meet with Class Counsel in Canada, or at some other location mutually agreed to by the Parties, to provide an oral evidentiary proffer which will include information originating with the Settling Defendants that is not covered by privilege relating to the allegations in the Proceedings. The Parties agree that there shall be no audio or video recordings or written transcription of any statements made or information provided by Counsel for the Settling Defendants at the proffer. Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that any such written notes, and all statements made and information provided by Counsel for the Settling Defendants are privileged, will be kept strictly confidential, may not be directly or indirectly disclosed to any other Person, and will not be used by Class Counsel for any purpose other than for their own internal use in connection with the prosecution of the Proceedings.
(2) Within sixty (60) days of the Effective Date or at a time mutually agreed upon by the Parties, the Settling Defendants agree to use reasonable efforts to:
(a) Produce the Sony Disclosure. To to the extent that Plaintiffs later wish available, provide to obtain video recordings Class Counsel transactional sales data of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (related to Lithium Batteries and/or Lithium Battery Products for the period of January 1, 2000 to December 31, 2013, sold in Canada, the United States or retain a third party elsewhere, if and to edit) the extent such video recordings before disclosing them sales relate to Lithium Batteries and/or Lithium Battery Products that are known or expected to have been resold into Canada. The transactional sales data will be provided in order to comply with Excel or such other format as agreed upon by the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing processParties, and Plaintiffs agree shall be delivered as a separate production from the other Documents to promptly reimburse be delivered pursuant to section (2) or identified by ▇▇▇▇▇ number as part of the Settling Defendants for the reasonable costs production of such editingDocuments to be delivered pursuant to section (2);
(b) Identify to the extent available, provide to Class Counsel transactional costs data of the Settling Defendants related to Lithium Batteries and Lithium Battery Products for the period of January 1, 2000 to December 31, 2013, sold in Canada, the United States or elsewhere, if and to the extent such sales relate to Lithium Batteries and/or Lithium Battery Products that are known or expected to have been resold into Canada. The transactional costs data will be provided in Excel or such other format as agreed upon by way of the Parties, and shall be delivered as a separate production from the other Documents to be delivered pursuant to section (2) or identified by ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific number as part of the production of Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claimsto be delivered pursuant to section (2);
(c) provide the same letters of reasonable assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production transactional sales and cost data produced by the Settling Defendants; and, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(d) provide electronic copies of any Documents relating to Canadian sales which were considered produced by the Settling Defendants in the negotiation of this U.S. Litigation, including any Documents produced by the Settling Defendants pursuant to any U.S. Settlement Agreement, and that any pre-existing translations of those Documents;
(e) provide electronic copies of transcripts and video recordings (to the extent copies are not included in the Sony Disclosure.
(2possession of the Settling Defendants or their agent) Subject to the rules of evidenceall depositions and other testimony of current or former employees, any Court order with regard to confidentiality and the other provisions officers or directors of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits for use at trial or otherwise including all exhibits thereto, taken in the Proceedings for the purpose U.S. Litigation, and any pre-existing translations of supporting the submission into evidence in the Proceedings those transcripts;
(f) provide electronic copies of the Sony Disclosure any responses to written interrogatories provided by the Settling Defendants in accordance with this Settlement Agreement and/or the U.S. Litigation;
(g) provide electronic copies of any Documents produced by the Parties Settling Defendants to the Canadian Competition Bureau, the United States Department of Justice, the European Commission, and/or any other antitrust authority concerning the allegations raised in the Proceedings Proceedings, including any pre-existing translations of those Documents, but excluding any Documents created for the purpose of being so provided (without the need to identify to which government authority any particular Document was produced); and
(h) answer any questions or requests for information from Class Counsel that were created by, sent to, or received arise from the Documents provided to Class Counsel by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such including information or documents, originating with the Settling Defendants agree and being within their possession relating to use reasonable efforts the allegations in the Proceedings including, without limitation, information with respect to make available for testimony at trial dates, locations, subject matter, and identities of participants in any meetings or otherwise appropriate current employees discussions between competitors relating to the purchase, sale, pricing, discounting, marketing or distributing of the Settling Defendants, as is reasonably necessary Lithium Batteries and Lithium Battery Products for the prosecution period of the Proceedings andJanuary 1, specifically2000 to December 31, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section2013.
(3) The obligation to produce Documents pursuant to section (2) shall be a continuing obligation to the extent additional Documents are identified by the Settling Defendants following the initial productions pursuant to this Settlement Agreement.
(4) The Settling Defendants make no representation regarding and shall bear no liability with respect to the accuracy of or that they have, can or will produce a complete set of any of the Documents described in section (2), and the failure to do so shall not constitute a breach or violation of this Settlement Agreement.
(5) Documents provided to Class Counsel in accordance with this section 4.1(1(2) will be provided in the format in which they were produced in the U.S. Litigation, to the Canadian Competition Bureau, the United States Department of Justice, the European Commission and/or any other antitrust authority, and will include any pre-existing and non-privileged metadataelectronic coding. In addition, to the extent reasonably possible, where the Documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each Document.
(46) Nothing in this Settlement Agreement shall be construed to require the The Settling Defendants shall not object to perform the Plaintiffs’ participation in any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreements.
(5) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the Settling Defendants to disclose or produce any Documents or information prepared by or for counsel for the Settling Defendants, or that is not within the possession, custody or control evidentiary proffers and/or interviews of the Settling Defendants, or to disclose or produce any Documents or information ’ representatives that occur in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents they obtained on a privileged or co-operative basis from any party the U.S. Litigation pursuant to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this U.S. Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this sectionAgreements. The Settling Defendants shall, prior where possible, endeavor to disclosure or production, review the Documents or information provide notice to determine if they are protected by applicable non-disclosure agreements.
Class Counsel thirty (630) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each before such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosureproffers and/or interviews.
(7) If It is understood that the evidentiary proffers and/or interviews described in section 4.1(6) might take place before the Effective Date. In such event:
(a) any Documents protected by any privilege or information provided in the course of those evidentiary proffers and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently produced, such Documents interviews shall be promptly returned subject to the Settling Defendants terms and the Documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documents.
(8) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by section 8 protections of this Settlement Agreement. Unless ; and
(b) in the event that this Settlement Agreement is not approved, is terminated terminated, or otherwise fails to take effect for any reasonsreason, the Documents and information provided during the evidentiary proffers and/or interviews shall not be used by the Plaintiffs or Class Counsel, whether directly or indirectly, in any way for any reason, including, without limitation, against the Settling Defendants’ obligations to cooperate shall cease at Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the date Settling Defendants or of final judgment the truth of any claims or allegations in the Proceedings against Proceedings, and such information shall not be discoverable by any Person or treated as evidence of any kind, unless otherwise ordered by a Court. In order to give effect to this agreement, Class Counsel agrees to return all Defendantscopies of any Documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), these evidentiary proffers and/or interviews and to provide written confirmation to the Settling Defendants of having done so.
(9) 8) In the event that Class Counsel are unable to participate in the interviews that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreements and/or no interviews occur within sixty (60) days of the Effective Date, the Settling Defendants materially breach this section 4.1shall, at the Plaintiffs may move before the appropriate Court request of Class Counsel, upon reasonable notice, and subject to enforce the terms of this Settlement Agreementany legal restrictions, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties endeavor (to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is extent able) to make available at law.
a mutually convenient time, up to two (102) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable current or former officers, directors and/or or employees of the Settling DefendantsDefendants who have knowledge of the allegations raised in the Proceedings to provide information regarding the allegations raised in the Proceedings in a personal interview with Class Counsel and/or experts retained by Class Counsel. Such personal interviews shall not exceed one (1) business day or seven (7) hours for each individual. The employees shall be made available via videoconference or in Canada or such other place as agreed to by Counsel for the Settling Defendants and Class Counsel. Costs incurred by, if and the employee expenses of, the employees of the Settling Defendants fails in relation to cooperate such interviews shall be the responsibility of the Settling Defendants and costs of an interpreter or otherwise related to foreign language translation in accordance connection with subsections 4.1(1)interviews shall be the responsibility of Class Counsel. If an employee refuses to provide information, 4.1(2)and or otherwise cooperate, the provisions Settling Defendants shall endeavor (to the extent able) to make him/her available for an interview with Class Counsel and/or experts retained by Class Counsel. The failure of an employee to agree to make him or herself available, or to otherwise cooperate, with the Plaintiffs shall not constitute a violation of this Settlement Agreement.
(119) Subject to sections 4.1(9)the rules of evidence, the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, any Court order with regard to confidentiality and the Plaintiffs, the other provisions of this Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence ofAgreement, the Settling Defendants shall endeavor (to the extent able) to produce at trial or their through an acceptable affidavit, current or and/or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under representatives qualified to establish for admission into evidence the rules or laws of this or any other Canadian or foreign jurisdiction.
following: (12i) A material factor influencing the Settling Defendants’ decision transactional data provided pursuant to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and section 4.1(2)(a) (after Class Counsel agree has used best efforts to exercise good faith in seeking cooperation from authenticate the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.transactional data for use at trial without a live witness); and
Appears in 3 contracts
Sources: Settlement Agreement, Settlement Agreement, Settlement Agreement
Extent of Cooperation.
(1) Within sixty thirty (6030) days of the Effective DateDate of Execution, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, the Settling Defendants will use shall make reasonable best efforts to:to:
(a) Produce provide to Class Counsel existing electronic transactional data for sales by the Sony Disclosure. To Settling Defendants of Foam Products delivered in Canada during the Settlement Class Period, to the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions such data exists and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them is in order to comply with the Settling Defendants’ confidentiality power, possession or control, and disclosure obligationsto the extent that such data has not previously been provided pursuant to Section 12.2(1). Plaintiffs further agree that Counsel for the Settling Defendants shall have control over that editing process, and Plaintiffs agree agrees to promptly reimburse be reasonably available as necessary to respond to Class Counsel's questions regarding the electronic transactional data produced by the Settling Defendants for the reasonable costs of such editingDefendants;
(b) Identify by way provide to Class Counsel the transcript of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that 30(b)(6) examination of the Settling Defendants believe may support in the PlaintiffsU.S. Litigation, and if requested by Class Counsel, and at Class Counsel’s expense, any transcripts or video recordings of depositions of the Settling Defendants’ claimsemployees, directors or officers taken in the course of the U.S. Litigation;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data any documents produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement AgreementU.S. Litigation, other than productions from the Urethane Litigation produced in the U.S. Litigation, together with indices or a production log, if such exists and is in the Settling Defendants’ power, possession or control, failing which the Settling Defendants will not oppose any motion brought in the U.S. litigation for such production , and that are if requested by Class Counsel, and at Class Counsel’s expense, any productions by the Settling Defendants from the Urethane Litigation also produced in the U.S. Litigation;
(d) to the extent not included in the Sony Disclosure.
(2) Subject to the rules of evidenceproduction under Section 4.1(1)(c), provide any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings of the Sony Disclosure records provided by the Settling Defendants to the United States Department of Justice, or the Canadian Competition Bureau, concerning the allegations raised in accordance the Proceedings, including if available any indexes or listing of “hot documents”;
(e) through a meeting between counsel for the Settling Defendants and Class Counsel, that shall take place on a single day and last no more than five (5) hours, provide an evidentiary proffer, which will include information originating with this Settlement Agreement and/or any Documents produced by the Parties Settling Defendants and being within its possession relating to the allegations in the Proceedings that were created byincluding, sent towithout limitation, or received by the Settling Defendants. Ifinformation with respect to dates, locations, subject matter, and only ifparticipants in any meetings or discussions between competitors relating to the purchase, a Court should determine that affidavits are inadequate for the purpose sale, pricing, discounting, marketing or distributing of submitting into evidence of such information or documents, the Settling Defendants agree to use Foam Products in Canada;
(f) make reasonable best efforts to make available for testimony at trial up to three (3) current or otherwise appropriate current former directors, officers or employees of the Settling Defendants, selected by the Settling Defendants in good faith consultation with Class Counsel, which individuals shall have knowledge of the allegations in the Proceedings to provide information relating to the allegations in the Proceedings in a personal interview with Class Counsel and/or experts retained by Class Counsel in the Proceedings, at a location to be reasonably agreed. Each such interview shall take place on a single day and shall last no more than eight (8) hours, except for good cause, and counsel for the Settling Defendants shall be entitled to attend such interviews. The failure or refusal of any such current or former director, officer or employee to agree to make him or herself available or to otherwise cooperate with the Plaintiffs, shall not constitute a breach or violation of the obligations of the Settling Defendants under this Settlement Agreement, and shall not provide any basis for the termination of this Settlement Agreement, so long as the Settling Defendants comply with their obligations under this Section. In the event of such a failure or refusal, the Plaintiffs may seek orders from the appropriate Court requiring such current or former director, officer and/or employee to provide such information or otherwise cooperate pursuant to this Settlement Agreement; and
(g) where there is reasonably necessary a reasonable necessity for the evidence of the current or former directors, officers or employees of the Settling Defendants in the prosecution of the Proceedings andas determined by Class Counsel, specificallymake reasonable best efforts to make up to three (3) current or former directors, officers or employees of the Settling Defendants who have knowledge of the allegations in the Proceedings available to provide evidence at trial of the Proceedings in Canada, or to provide an affidavit or declaration and attend at a cross-examination in support of the certification or authorization motion or a summary judgment motion in the Proceedings. The failure or refusal of any such current or former director, officer or employee to agree to make him or herself available, to provide testimony, to provide an affidavit or declaration, to attend at a cross-examination or to otherwise cooperate with the Plaintiffs shall not constitute a breach or violation of the obligations of the Settling Defendants under this Settlement Agreement, and shall not provide any basis for the purpose termination of admitting into evidence this Settlement Agreement, so long as the Settling Defendants comply with their obligations under this Section. In the event of such failure or refusal, the Plaintiffs may seek orders from the appropriate Court requiring such current or former director, officer and/or employee to provide such information and/or Documents. The or otherwise cooperate pursuant to this Settlement Agreement.
(2) In addition to the other obligations to cooperate set out in this Section, the Settling Defendants shall be responsible for all associated costs incurred also, within thirty (30) days of the Date of Execution or at a time mutually agreed upon by such representatives in connection with fulfilling the Parties, make reasonable best efforts to provide existing expert reports commissioned by the Settling Defendants’ obligations under this section.Defendants to assess the effect or impact of the conduct alleged in the Proceedings, including any data underlying those reports.
(3) Documents provided The obligation to Class Counsel in accordance with provide documents pursuant to this section 4.1(1) will Section shall be provided in a continuing obligation to the format in which they were extent documents are produced in by the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced Settling Defendants in the U.S. Litigation contain ▇▇▇▇▇ stamps on their faceor to the United States Department of Justice, a field will be produced containing or the corresponding ▇▇▇▇▇ stamps of Canadian Competition Bureau, following the first page of each Documentinitial productions pursuant to this Settlement Agreement.
(4) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreementsjurisdiction.
(5) Nothing Except as provided in Section 4.1(1) and (2), nothing in this Settlement Agreement Section shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the Settling Defendants to disclose or produce any Documents documents or information prepared by or for counsel Counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, or to disclose or produce any Documents documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreementsReleasee.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) If any Documents documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently disclosed or produced, such Documents documents shall be promptly returned to the Settling Defendants and the Documents documents and the information contained therein shall not be disclosed or used directly or indirectly, except except with the express written permission of the Settling Defendants, and the production of such Documents documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documentsdocuments.
(8) 7) The Settling Defendants’ obligations to cooperate as particularized in this section Section shall not be affected by section 8 the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the The Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) . In the event that the Settling Defendants materially breach this section 4.1Section 4, the Plaintiffs Class Counsel may move before the appropriate Court Courts to either enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, Agreement or seek such other remedy that is available at lawpart thereof.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) 8) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their its desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not Defendants and to seek avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling Defendants.
(9) Subject to the rules of evidence, any court order with respect to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agree to produce at trial or through acceptable affidavits or other testimony in the Proceedings (including in relation to the certification and authorization motions), representatives qualified to establish for admission into evidence any of the Settling Defendants’ documents and information provided as cooperation pursuant to this Settlement Agreement, and agree to authenticate documents produced by the Defendants that were created by, sent to, or received by the Settling Defendants.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Within Before the expiration of sixty (60) days of from the Effective Date, or at a such other time mutually period as Class Counsel and the Settling Defendants may reasonably agree, Counsel for the Settling Defendants will meet with Class Counsel in Toronto or some other location in Canada or the United States, as agreed upon to by the Parties, subject to provide an oral evidentiary proffer over a period of up to three (3) business days. One (1) of those three (3) proffer days may take place prior to the Effective Date and shall take place prior to February 14, 2020, or such other provisions of this Settlement Agreementtime period as Class Counsel and the Settling Defendants may reasonably agree. Thereafter, Counsel for the Settling Defendants will make themselves available for reasonable follow-up conversations in connection with the proffer and will use reasonable best efforts to:
(a) Produce the Sony Disclosureto respond to questions posed by Class Counsel. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that The proffer shall include information originating with the Settling Defendants may edit (or retain a third party relating to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel allegations in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of Proceedings. Notwithstanding any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants are not included in the Sony Disclosure.
(2) Subject to the rules of evidenceprivileged, any Court order with regard to confidentiality and the other provisions of this Settlement Agreementwill be kept strictly confidential, and upon at least eight (8) weeks’ notice may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by the Court. Further, absent a Court order, Class Counsel will not attribute any factual information obtained from the proffer to the Settling Defendants, Defendants and/or Counsel for the Settling Defendants agree to Defendants. Notwithstanding the foregoing, Class Counsel may: (i) use reasonable efforts to provide affidavits for use at trial or otherwise information obtained from the proffer in the Proceedings prosecution of the Proceedings, including for the purpose of supporting developing the submission Distribution Protocol or any other allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) may rely on such information to certify that, to the best of Class Counsel’s knowledge, information and belief, such information has evidentiary support or will likely have evidentiary support after reasonable opportunity for further investigation or discovery, but, absent a Court Order, the Plaintiffs shall not introduce any information from a proffer into evidence in the Proceedings of the Sony Disclosure provided by record or subpoena any Counsel for the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, related to a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this sectionproffer.
(3) Documents provided to Class Counsel in accordance with this section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each Document.
(4) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreements.
(5) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the Settling Defendants to disclose or produce any Documents or information prepared by or for counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, or to disclose or produce any Documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) If any Documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documents.
(8) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by section 8 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.
Appears in 2 contracts
Sources: Settlement Agreement, Class Action Settlement Agreement
Extent of Cooperation. (1) Within sixty ninety (6090) days of the Effective Date, or at a time mutually agreed upon by the Parties, and subject to any confidentiality order in these Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants shall provide an evidentiary proffer, at a meeting between Counsel for the Settling Defendants and Class Counsel in Canada, or at a location mutually agreed to by the Parties, limited to relevant information with respect to Non- Settling Defendants, of up to seven (7) hours duration over one calendar day or otherwise as may be agreed, which will not include information originating with the Settling Defendants that is covered by privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, relating to the allegations in the Proceedings. The Plaintiffs and Class Counsel agree that they will not use reasonable efforts to:
(a) Produce the Sony Disclosureinformation provided in the proffer under this paragraph for any purpose other than the prosecution of the Proceedings against Non-Settling Defendants, and will not make public by filing with or disclosing to the court or otherwise any information beyond that which is reasonably necessary for the prosecution of the Proceedings, or as otherwise required by law. To Further, absent a Court order, Class Counsel will not attribute any information obtained from the extent that Plaintiffs later wish proffer to obtain video recordings of past the Settling Defendants and/or future depositions and live testimony, Counsel for the Plaintiffs Settling Defendants. The Parties agree that the Settling Defendants may edit (proffer itself is settlement privileged, does not constitute evidence, that there shall be no audio or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that recording or written transcription or record of any statements made or information provided by Counsel for the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse at the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement Agreementproffer, and that are not included Class Counsel may only make written notes of their own thoughts and impressions at the proffer for the purpose of formulating legal advice, pursuing litigation and/or for the purpose of advancing settlement discussions in the Sony Disclosureinterests of the Settlement Classes.
(2) Subject Within ninety (90) days of the Effective Date, or at a time mutually agreed upon by the Parties, provided that Class Counsel confirms that the requests are required in good faith as reasonably necessary for the prosecution of the proceeding at trial (or summary judgment), and subject to the rules of evidence, any Court confidentiality order with regard to confidentiality in these Proceedings and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to shall, only insofar as such production has not already occurred in the BC Action and production is not prohibited by law, use reasonable efforts to provide affidavits for use at trial or otherwise to Class Counsel:
(a) electronic copies of any Documents (including transactional data) that were produced in the Proceedings for U.S. Litigation by the purpose Settling Defendants including, but not limited to, any such Documents provided to U.S. plaintiffs pursuant to any U.S. Settlement Agreements and any pre-existing translations of supporting such documents;
(b) to the submission into evidence extent that transactional sales and costs data of the Settling Defendants is contained in the Proceedings production delivered pursuant to Section 4.1(2)(a), ▇▇▇▇▇ numbers and/or file name identifying the relevant records;
(c) electronic copies of transcripts of all depositions or other testimony of current or former employees, officers or directors of the Sony Disclosure provided Settling Defendants taken in the U.S. Litigation, including (to the extent they form part of the transcripts or can otherwise be readily located) all exhibits originating from the Settling Defendants, any pre-existing translations, corresponding errata sheets, and confidentiality designation letters, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(2)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2)(a);
(d) electronic copies of any responses to written interrogatories by the Settling Defendants in accordance with this Settlement Agreement and/or the U.S. Litigation, including all schedules thereto and any Documents pre- existing translations into English of those responses produced by to the Parties plaintiffs in the Proceedings that were created byU.S. Litigation, sent to, delivered as a separate production from the documents to be delivered pursuant to Section 4.1(2)(a) or received identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2)(a);
(e) electronic copies of any responses to requests to admit by the Settling Defendants. IfDefendants in the U.S. Litigation, including all schedules thereto and only ifany pre-existing translations into English of those responses produced to the plaintiffs in the U.S. Litigation, delivered as a Court should determine that separate production from the documents to be delivered pursuant to Section 4.1(2)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2)(a);
(f) electronic copies of any declarations or affidavits are inadequate for the purpose of submitting into evidence of such information current or documentsformer employees, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial officers or otherwise appropriate current employees directors of the Settling Defendants, including all schedules thereto and any pre-existing translations of those declarations or affidavits, in the U.S. Litigation or produced in the U.S. Litigation, delivered as is reasonably necessary for a separate production from the prosecution documents to be delivered pursuant to Section 4.1(2)(a) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2)(a);
(g) electronic copies of any Documents previously produced by the Settling Defendants to the Canadian Competition Bureau, the United States Department of Justice or the European Commission that are relevant to the allegations in the Proceedings and, specifically, (excluding Documents created for the purpose of admitting into evidence being so provided), and any pre-existing translations of such information and/or Documents. The ; and
(h) reasonable assistance in understanding the transactional sales and cost data produced by the Settling Defendants pursuant to Section 4.1(2) or otherwise in the Proceedings.
(3) The obligation to provide Documents pursuant to Section 4.1(2) shall be responsible for all associated costs incurred a continuing obligation to the extent Documents that are required to be provided under Section 4.1(2) are identified by such representatives the Settling Defendants following the initial productions pursuant to this Settlement Agreement, but in connection with fulfilling no event shall the Settling Defendants be obliged to provide Documents in addition to those listed in Section 4.1(2).
(4) As to additional Documents in the Settling Defendants’ obligations under this sectionpossession, custody, or control, the Settling Defendants will consider in good faith, but without obligation, any reasonable request by the Plaintiffs to collect and produce such documents, provided the request would not impose an undue burden on the Settling Defendants.
(35) Documents provided to Class Counsel in accordance with this section 4.1(1Section 4.1(2) will be provided in the format in which they were produced in the U.S. Litigation, to the Canadian Competition Bureau, the United States Department of Justice or the European Commission, and will include any pre-existing and non-privileged metadataelectronic coding. In addition, where the Documents documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each Documentdocument.
(46) Nothing in this Settlement Agreement shall require or be construed to require the Settling Defendants Releasees, or any of their present, former or future officers, directors or employees to perform any act, including the transmittal production or disclosure of any Documents or information, :
(a) which would violate or breach any federal, provincial, state, local or foreign law (including without limitation, any privacy or bank secrecy law, and including common law, civil law, statutes, policies, rules and regulations);
(b) which would violate or breach any Court or regulatory order, directive, instruction (including, without limitation, any protective order granted in the law U.S. Litigation, and instructions or directives from the U.S. Department of this Justice or any jurisdiction other regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction), in any applicable non-disclosure agreements.jurisdiction, including but not limited to Canada, and the United States;
(5c) Nothing in this Settlement Agreement shall requirewhich is subject to solicitor-client privilege, or shall be construed to require, the Settling Defendants litigation privilege or any representative other privilege, doctrine or employee of the Settling Defendants to disclose or produce any Documents or information prepared by or for counsel for the Settling Defendants, or that is law; or
(d) not within the possession, custody or control of the Settling Defendants, or to disclose or produce any Documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent Releasees;
(7) If Counsel for the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreementhave produced a relevant privilege log in the U.S. Litigation, the Settling Defendants will be allowed provide Class Counsel with a reasonable amount copy of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreementssuch log.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) 8) If any Documents protected by any privilege and/or any privacy law or other order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States are accidentally or inadvertently produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documents.
(8) The 9) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agree to use reasonable efforts to provide or obtain affidavits for use at trial or otherwise in the Proceedings for the sole purpose of supporting the submission into evidence of any information, transactional data and/or Documents provided by the Settling Defendants in accordance with this Settlement Agreement or as otherwise produced by the Settling Defendants in the Proceedings. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of the information, transactional data and/or Documents produced by the Settling Defendants’ , the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current officers, directors and/or employees of the Settling Defendants for the purpose of admitting into evidence any information, transactional data and/or Documents provided by the Settling Defendants to Class Counsel pursuant to Section 4 herein. The Plaintiffs will work to minimize any burden on the Settling Defendants pursuant to this section.
(10) The obligations of the Settling Defendants to cooperate as particularized in this section Section 4 shall not be affected by section 8 the release provisions contained in Section 7.1 of this Settlement Agreement. Unless If Class Counsel reach a settlement with all of the Non-Settling Defendants and any such settlement becomes effective in accordance with its terms or obtain final judgment against each of them in each of the Proceedings, then all obligations under this Settlement Agreement Section 4 shall cease and this Section 4 shall be of no further force or effect. For greater certainty, the Plaintiffs’ failure to strictly enforce any of the deadlines for the Settling Defendants to provide cooperation pursuant to this Section 4 is not approved, is terminated or otherwise fails to take effect for any reasons, a waiver of the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendantscooperation rights granted by Section 4.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(1011) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable knowledgeable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants such individual(s) fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and Subsection 4.1(9) and the provisions of this Settlement Agreement.
(1112) Subject to sections 4.1(9Sections 4.1(11) and 4.1(13), the provisions set forth in section this Section 4.1 are the exclusive means by which the Plaintiffs, the Class Counsel and Settlement Class Members and Class Counsel may obtain discovery, information, discovery or information or Documents from the Settling Defendants Releasees or their current or former officers, directors or directors, employees, and the agents or counsel. The Plaintiffs, the Class Counsel and Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants Releasees or their current or former officers, directors, employees, agents, agents or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(1213) In the event that the Settling Defendants materially breach this Section 4.1, the Plaintiffs may move before the Courts to enforce the terms of this Settlement Agreement, seek an order setting aside Section 4.1(12) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the Proceeding, or seek such other remedy that is available at law.
(14) A material factor influencing the decision by the Settling Defendants’ decision Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue undue, unreasonable or unreasonable disproportionate burden or expense on the Releasees.
(15) The scope of the Settling Defendants’ cooperation under this Settlement Agreement shall be limited to an alleged conspiracy to fix, raise, maintain or stabilize prices, allocate markets or customers or restrict output or capacity, of ODD and ODD Products sold in Canada during the Class Period.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
Extent of Cooperation. (1) Within sixty Prior to December 31, 2017, Counsel for the Settling Defendants met with Class Counsel in Canada or the United States, to provide an oral evidentiary proffer which included information originating with the Settling Defendants that was not covered by privilege relating to the allegations in the Proceedings and the Second Ontario Action. Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants are privileged, will be kept strictly confidential, may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court. Further, absent a Court order, Class Counsel will not attribute any factual information obtained from the proffer to the Settling Defendants and/or Counsel for the Settling Defendants. Notwithstanding the foregoing, Class Counsel may: (60i) use information obtained from the proffer in the prosecution of the Proceedings and the Second Ontario Action, including for the purpose of developing an allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) may rely on such information to certify that, to the best of Class Counsel’s knowledge, information and belief, such information has evidentiary support or will likely have evidentiary support after reasonable opportunity for further investigation or discovery, but, absent a Court Order, the Plaintiffs shall not introduce any information from a proffer into the record or subpoena any Counsel for the Settling Defendants related to a proffer.
(2) After the Effective Date, at the request of Class Counsel, the Settling Defendants shall provide to Class Counsel, within ninety (90) days of receiving the Effective Daterequest, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts tofollowing:
(a) Produce the Sony Disclosure. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that transactional sales data produced by the Settling Defendants pursuant to the U.S. Settlement Agreements. The transactional sales data shall be delivered in Microsoft Excel or such other format as may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that be agreed upon by Counsel for the Settling Defendants shall have control over that editing processand Class Counsel, and Plaintiffs agree shall be delivered as a separate production from the documents to promptly reimburse be delivered pursuant to Sections 4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the Settling Defendants for the reasonable costs production of such editingdocuments to be delivered pursuant to Section 4.1(2);
(b) Identify by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of reasonable assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost transactional sales data produced by the Settling Defendants; and, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(dc) provide electronic copies of any Documents relating to Canadian sales which were considered documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Electronic Throttle Bodies produced by the Settling Defendants in the negotiation of this Settlement AgreementU.S. Litigation, and that are not included in the Sony Disclosure.
(2) Subject to the rules of evidence, including any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits for use at trial documents produced or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings of the Sony Disclosure provided made available by the Settling Defendants in accordance with this pursuant to the U.S. Settlement Agreement and/or Agreements, including at any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. Iffuture date, and only if, a Court should determine that affidavits are inadequate for the purpose any pre-existing translations of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section.
(3) Documents provided to Class Counsel in accordance with this section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, those documents and will include any pre-existing and non-privileged metadataelectronic coding. In addition, where the Documents documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each Documentdocument;
(d) electronic copies of transcripts and video recordings of all depositions or other testimony of current or former employees, officers or directors of the Releasees, including all exhibits thereto and any pre-existing translations of those transcripts, taken in the U.S. Litigation, within ten (10) business days of said transcripts becoming available, but only to the extent permitted under the U.S. Protective Order (as defined in Section 4.2(4) below); and
(e) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure), including any pre-existing translations of those documents, produced by the Settling Defendants to the Canadian Competition Bureau and the United States Department of Justice, to the extent such productions are not duplicative.
(3) After the Certification Date, at the request of Class Counsel acting in good faith and as reasonably necessary for the ongoing prosecution of the Proceedings or the Second Ontario Action, the Settling Defendants shall make reasonable efforts to provide to Class Counsel, within ninety (90) days of receiving the request, or at a time mutually agreed upon by the Parties, the following:
(a) transactional cost data for the global production and sale of Electronic Throttle Bodies between January 1, 1998 and, at least, December 31, 2013, to the extent such data relates to Electronic Throttle Bodies known or expected to be included in Automotive Vehicles that were sold in Canada. Class Counsel may request, and the Settling Defendants shall make reasonable efforts to provide, additional transactional cost data for the period between January 1, 2014 and March 20, 2017, if Class Counsel determine that such information is reasonably necessary for the ongoing prosecution of the Proceedings and/or the Second Ontario Action. The transactional cost data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(3)(d) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(3);
(b) to the extent not previously produced pursuant to Section 4.1(2)(a), transactional sales data relating to the Settling Defendants’ global sales of Electronic Throttle Bodies, to the extent such data relates to Electronic Throttle Bodies known or expected to be included in Automotive Vehicles that were sold in Canada. The transactional sales data shall be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel;
(c) reasonable assistance to Class Counsel in understanding the transactional cost and/or sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel; and
(d) to the extent not already produced, any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure), including any pre-existing translations of those documents, that are relevant to the allegations in the Proceedings or the Second Ontario Action.
(4) Nothing in The obligation to produce documents pursuant to Sections 4.1(2) and (3) shall be a continuing obligation to the extent additional documents are identified by the Settling Defendants following the initial productions pursuant to this Settlement Agreement shall be construed to require or are produced in the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreementsU.S. Litigation.
(5) Nothing in this Settlement Agreement shall require, or shall be construed to require, the The Settling Defendants or shall not object to the Plaintiffs’ participation in any representative or employee of the Settling Defendants to disclose or produce any Documents or information prepared by or for counsel for the Settling Defendants, or that is not within the possession, custody or control evidentiary proffers and/or interviews of the Settling Defendants, or to disclose or produce any Documents or information ’ representatives that occur in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information U.S. Litigation pursuant to this the U.S. Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this sectionAgreements. The Settling Defendants shall, prior where possible, provide notice to disclosure Class Counsel thirty (30) days before any evidentiary proffer or production, review interview of representatives of the Documents or information Settling Defendants that occurs in the U.S. Litigation pursuant to determine if they are protected by applicable non-disclosure agreementsthe U.S. Settlement Agreements.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days It is understood that the evidentiary proffer described in Section 4.1(1) and the evidentiary proffers and/or interviews of witnesses described in Section 4.1(5) might take place before the Effective Date, . In such event:
(a) any documents or information provided in the contractual counterparties to non-disclosure agreements that apply course of those evidentiary proffers and/or interviews shall be subject to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) If any Documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently produced, such Documents shall be promptly returned to the Settling Defendants terms and the Documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documents.
(8) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by section 8 protections of this Settlement Agreement. Unless ; and
(b) in the event that this Settlement Agreement is not approved, is terminated terminated, or otherwise fails to take effect for any reasonsreason, the documents and information provided during the evidentiary proffers and/or interviews shall not be used by the Plaintiffs or Class Counsel, whether directly or indirectly, in any way for any reason, including, without limitation, against the Settling Defendants’ obligations to cooperate shall cease at Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the date Settling Defendants or of final judgment the truth of any claims or allegations in the Proceedings against or the Second Ontario Action, and such information shall not be discoverable by any Person or treated as evidence of any kind, unless otherwise ordered by a Court. In order to give effect to this agreement, Class Counsel agrees to return all Defendantscopies of any documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), these evidentiary proffers and/or interviews and to provide written confirmation to the Settling Defendants of having done so.
(97) In the event that any employee interviews provided for in the U.S. Settlement Agreements: (i) have already occurred; (ii) occur within six (6) months of the Effective Date, but Class Counsel is unable to attend or is not given reasonable advance notice of the time and location of the interviews; or (iii) do not occur within six (6) months of the Effective Date, the Settling Defendants materially breach this section 4.1shall, at the Plaintiffs may move before the appropriate Court request of Class Counsel, upon at least sixty (60) days’ notice, and subject to enforce the terms of this Settlement Agreementany legal restrictions, seek an order setting aside section 4.1(11) and allowing the Plaintiffs make reasonable efforts to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is make available at law.
a mutually convenient time, up to five (105) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable current or former officers, directors and/or or employees of the Settling DefendantsDefendants who have knowledge about the allegations in the Proceedings and the Second Ontario Action to provide information regarding the allegations raised in the Proceedings and the Second Ontario Action in a personal interview with Class Counsel and/or experts retained by Class Counsel. Class Counsel shall use reasonable efforts to limit this requirement to a single current employee. Such personal interviews shall take place in a North American location and shall not exceed one (1) business day or seven (7) hours for each individual. Costs incurred by, if and the employee expenses of, the employees of the Settling Defendants fails in relation to such interviews and costs of an interpreter or otherwise related to foreign language translation in connection with interviews shall be the responsibility of the Settling Defendants. If an employee refuses to provide information, or otherwise cooperate, the Settling Defendants shall use all reasonable efforts to make him/her available for an interview with Class Counsel and/or experts retained by Class Counsel. The failure of a current or former employee to agree to make him or herself available, or to otherwise cooperate in accordance with subsections 4.1(1)the Plaintiffs, 4.1(2)and the provisions shall not constitute a violation of this Settlement Agreement.
(11) 8) Subject to sections 4.1(9)the rules of evidence, the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, any court order with respect to confidentiality and the Plaintiffs, the other provisions of this Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence ofAgreement, the Settling Defendants agree to use reasonable efforts to produce at trial or their otherwise in the Proceedings or Second Ontario Action (including through affidavit evidence): (i) a current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) A material factor influencing representative qualified to establish for admission into evidence the Settling Defendants’ decision transactional sales data and cost information provided pursuant to execute Sections 4.1(2)(a) and (3)(a); (ii) a representative qualified to establish for admission into evidence any of the Settling Defendants’ documents provided as cooperation pursuant to Section 4.1(2) and (3) of this Settlement Agreement that is their desire to limit reasonable and necessary for the burden prosecution of the Proceedings and expense of this litigation. Accordingly, the Plaintiffs and Second Ontario Action (with Class Counsel agree using its best efforts to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative authenticate documents for use at trial or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.without use of a live witness); and
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Within sixty Upon execution of the Settlement Agreement, and in any case no later than seven (607) days from the execution of the Settlement Agreement but prior to the settlement approval motions contemplated in subsection 2.3, the Settling Defendant shall provide to Class Counsel:
(a) an initial written evidentiary proffer (the “Proffer”), on a confidential basis, supported by any documentation that the Settling Defendant wishes to provide at that time, which will provide a summary of the Settling Defendant’s knowledge of (i) the range, scope, nature, duration and impact of the alleged conspiracy by the defendants; and (ii) to the extent it is not provided in item (1) above, the details of Marine Acquisition’s role in the alleged conspiracy
(b) an opportunity to conduct a 1 hour interview (the “Initial Interview”) to answer questions about the Proffer. The Initial Interview shall not be transcribed and the Initial Interview (or notes or summaries relating to it) shall not be shared with anyone by Class Counsel until the Effective Date. After the Effective Date, Class Counsel may share notes/summaries of the Interview with counsel for the Intervenor but may not publicly file or otherwise disclose those note/summaries. The notes/summaries or any other information about the Initial Interview may only be used by Class Counsel and counsel for the Intervenor for purposes of evaluating the Actions and/or negotiating with the Non-Settling Defendants. For clarity, Class Counsel may use the information discussed in the Initial Interview in discussions with the Non-Settling Defendants prior to the Effective Date;
(c) Class Counsel shall be permitted to provide the Proffer to the the Intervener and the Non-Settling Defendants and their counsel on a confidential basis; and,
(2) Within thirty (30) days after the Effective Date, or at a time mutually agreed upon by the Parties, subject to any other provisions of this Settlement Agreement and any other legal restrictions, the Settling Defendant shall:
(a) make himself available, for video conferences or telephone conferences always as agreed between his lawyer and Class Counsel to provide information and to answer questions in respect of the matters at issue in the Actions, including, without limitation, his knowledge of the alleged conspiracy;
(b) the video conferences or telephone conferences referred to in sub- paragraph (b) above shall not exceed a total of 24 hours. Given that ▇▇. ▇▇▇▇▇▇▇▇ does not reside in Ontario, Class Counsel shall attempt to have the video or telephone conferences on consecutive days and in increments of no less than 6 hours for any one telephone or video conference;
(c) produce any Documents in his power, possession or control except to the extent that doing so would contravene a law or court order.
(3) The obligation to produce Documents pursuant to subsection 3.1(2)(c) shall be a continuing one to the extent that additional Documents are provided by the Settling Defendant to the U.S. DOJ, the Canadian Competition Bureau or any foreign governmental regulator relevant to the alleged conspiracy regarding Parking Heaters which is at issue in the Actions.
(4) Subject to the rules of evidence and any other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts to:
(a) Produce the Sony Disclosure. To the extent that Plaintiffs later wish Defendant agrees to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation of this Settlement Agreement, and that are not included in the Sony Disclosure.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits authenticate for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings trial, discovery, summary judgment motions and/or certification motions, any of the Sony Disclosure provided by Documents and, to the Settling Defendants in accordance with this Settlement Agreement and/or extent possible, any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling other Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Actions that were received by or originated from the Settling Defendants’ obligations under Defendant by way of an affidavit, unless the court orders otherwise. The Plaintiffs will work to minimize any burden on the Settling Defendant pursuant to this section.
(35) Documents provided The Settling Defendant also agrees to Class Counsel provide testimony at trial, by way of video conference, in accordance with this section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each DocumentOntario, BC or Quebec Actions as may be required unless otherwise ordered by the court. The Ontario and BC Plaintiffs and the Intervener agree to work to minimize any burden or inconvenience to the Settling Defendant pursuant to this section.
(4) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreements.
(56) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the Settling Defendants Defendant to disclose or produce any Documents or information prepared by or for counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, Defendant or to disclose or produce any Documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, including the deemed undertaking rule, or subject to solicitor-client privilege, litigation privilege, work product doctrine, common interest privilege, joint defence privilege or any other privilege, or to disclose or produce any information or Documents they the Settling Defendant obtained on a privileged or co-operative cooperative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony DisclosureReleasee.
(7) If any Documents are protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently disclosed or produced, such Documents shall be promptly returned to the Settling Defendants Defendant and the Documents and the information contained therein shall not be disclosed or used used, directly or indirectly, except with the express written permission of the Settling DefendantsDefendant, and the production of such Documents shall in no way be construed to have waived in any manner any privilege privilege, doctrine, law, or protection attached to such Documents.
(8) The obligations of the Settling Defendants’ obligations Defendant to cooperate as particularized in this section subsection 3.1 shall not be affected by section 8 the release provisions contained in Section 5 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, The obligations of the Settling Defendants’ obligations Defendant to cooperate shall cease at the date of final judgment in the Proceedings Actions as against all Defendants.
(9) In the event that If the Settling Defendants Defendant materially breach breaches this section 4.1Section 3.1, the Plaintiffs may move before the appropriate Court Courts to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this the Settlement Agreement, Agreement or seek such other remedy that is available at lawa part thereof.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9subsection 3.1(8), the provisions set forth in section 4.1 this subsection 3.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members Plaintiffs and Class Counsel may obtain discovery, information, information or Documents from the Settling Defendants or their current or former officers, directors or employees, Defendant and the Plaintiffs, the Settlement Class Members Plaintiffs and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, Defendant whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(1211) A material factor influencing the Settling Defendants’ Defendant’s decision to execute this Settlement Agreement is their his desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling DefendantsDefendant, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling DefendantsDefendant.
(12) The Plaintiffs shall reimburse the Settling Defendant for all reasonably incurred costs (excluding legal fees) in connection with, or in any way related to, the Settling Defendant’s obligations to provide evidence under this Agreement, including, without limitation, the costs of establishing any video-conference or teleconference connections and any necessary travel costs. The Settling Defendant’s counsel shall co-ordinate with the Plaintiffs’ counsel to make all necessary arrangements for the provision of the Settling Defendant’s evidence in advance on an agreed basis.
(13) In the event that the Settling Defendant is required to provide evidence at the request of the Non-Settling Defendants for any reason separately from the obligations to provide evidence under this agreement, the Settling Defendant reserves all rights to seek full reimbursement from the Non-Settling Defendants of any costs incurred in connection with the provision of such evidence and to otherwise establish the terms under which any such evidence might be provided.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Within sixty Subject to section 4.1(11), and no later than forty five (6045) days of after the Effective Date, or at a time mutually agreed upon by the Parties, and subject to any confidentiality order in these Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts toshall insofar as such production has not already been produced and production is not prohibited by law:
(a) Produce provide any pre-existing documents relevant to the Sony Disclosure. To the extent Released Claims that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that were produced by the Settling Defendants may edit (or retain a third party in the U.S. Litigation including, but not limited to edit) any such video recordings before disclosing them documents provided to counsel for the plaintiffs in order the U.S. Litigation pursuant to comply with any settlement agreements entered into between the plaintiffs in the U.S. Litigation and the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way provide to Class Counsel such transactional data of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support related to the Plaintiffs’ claimssubject matter of the Proceedings for the period of the Class Period and two years after the Class Period, as Class Counsel will, prior to the Effective Date, have identified and requested in writing be compiled and produced pursuant to this paragraph, in a form mutually acceptable to the Parties;
(c) provide the same letters of reasonable assistance to Class Counsel as were provided to US the Class Counsel in the US Litigation in understanding the transactional, production and cost transactional data produced by the Settling Defendants; and, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(d) provide electronic copies of transcripts of all depositions of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation; and to the extent relevant to the allegations in the Proceedings, provide electronic copies of any Documents relating additional depositions of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken at any future date in the U.S. Litigation within ten (10) business days of said transcripts becoming available; and
(e) the Settling Defendants will instruct their counsel and use reasonable efforts to Canadian sales which were considered answer any questions or requests for information from Class Counsel that arise from the documents provided to Class Counsel by the Settling Defendants, including information originating with the Settling Defendants and being within their possession relating to the allegations in the negotiation of this Settlement AgreementProceedings including, without limitation, information with respect to dates, locations, subject matter, and that are not included identities of participants in any meetings or discussions between competitors relating to the Sony Disclosurepurchase, sale, pricing, discounting, marketing or distributing of ODD and ODD Products for the period of the Class Period and two years after the Class Period.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the other provisions of Unless expressly provided otherwise in this Settlement Agreement, Section 4.1 constitutes the exclusive means by which the Plaintiffs, Settlement Class Members and upon at least eight (8) weeks’ notice to the Settling Defendants, Class Counsel may obtain discovery or information or documents from the Settling Defendants agree to use reasonable efforts to provide affidavits for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings of the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created bytheir present, sent toformer or future officers, directors or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this sectionemployees.
(3) Documents provided to Class Counsel in accordance with this section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each Document.
(4) Nothing in Section 4.1 or any other section of this Settlement Agreement shall require or be construed to require the Settling Defendants or any of their present, former or future officers, directors or employees to perform any act, including the transmittal or disclosure of any information, which would violate the any federal, provincial, state or local privacy law, any law of this a foreign jurisdiction, or any jurisdiction or applicable non-disclosure agreementscourt order.
(54) Nothing in Section 4.1 or any other section of this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the Settling Defendants to disclose or produce any Documents documents or information prepared by or for counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendantstheir counsel, or to disclose or produce any Documents documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdictionapplicable jurisdiction including but not limited to Canada and the United States, or subject to solicitor-solicitor- client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee Settling Defendant.
(5) Nothing in Section 4.1 or any other section of this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants to disclose or produce any Documents documents or information protected by applicable non-disclosure agreements. To the extent if the Settling Defendants are required reasonably believe that said disclosure or production will endanger any of their applications or agreements with government authorities in Canada or elsewhere in connection with any regulatory or criminal investigations relating to disclose ODD and ODD Products (without admitting that such applications or produce Documents agreements exist). If any documents or information pursuant to are withheld under this Settlement Agreementparagraph, the Settling Defendants will be allowed shall provide Class Counsel with a reasonable amount summary of time to conduct a review that ensures they receive the benefit types of this sectiondocuments and information withheld and the basis for withholding such information. The Settling Defendants shallshall act in good faith in supporting the efforts of the Plaintiffs to obtain permission from such government authorities to disclose the documents and information that have been withheld under this paragraph. If such permission is not obtained, prior said documents and information will continue to disclosure or production, review be withheld unless any of the Documents or information to determine if they are protected by applicable non-disclosure agreementsCourts order otherwise.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) If any Documents documents protected by any privilege and/or any privacy law or other order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the US are accidentally or inadvertently produced, such Documents documents shall be promptly returned to the Settling Defendants and the Documents documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documentsdocuments.
(7) If, in the course of the Proceedings, the Plaintiffs and/or Class Counsel conclude that it is reasonably necessary to disclose information or documents obtained from the Settling Defendants under Section 4.1, which are not otherwise publically available, to any of the Non- Settling Defendants or any other entities, the Plaintiffs and/or Class Counsel shall provide the Settling Defendants with a thirty (30)-day advance notice in writing setting out the proposed disclosure. The Settling Defendants reserve the right to oppose the proposed disclosure and/or take steps to protect their interests with respect of the information or documents in accordance with this Settlement Agreement and/or the order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States.
(8) The Subject to the rules of evidence, any court order with regard to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agree to use reasonable efforts to provide affidavits for use at trial in the Proceedings for the sole purpose of supporting the submission into evidence of any information, transactional data and/or documents provided by the Settling Defendants in accordance with this Settlement Agreement and for the prosecution of the Proceedings. If, and only if, a court should determine that affidavits are inadequate for the purpose of submitting into evidence of the information and/or documents produced by the Settling Defendants’ , the Settling Defendants agree to use reasonable efforts to make available for testimony at trial an appropriate current officer or employee of the Settling Defendants at the expense of Class Counsel, but solely as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence any information and/or documents provided by the Settling Defendants to Class Counsel pursuant to Section 4.1 herein.
(9) The obligations of the Settling Defendants to cooperate as particularized in this section Section 4.1 shall not be affected by section 8 the release provisions contained in Section 8.1 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section Section 4.1, the Plaintiffs Class Counsel may move before the appropriate Court Courts, on notice to the Settling Defendants, to either enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) A material factor influencing the decision by the Settling Defendants’ decision Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not Defendants and to seek avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue undue, unreasonable or unreasonable disproportionate burden or expense on the Settling Defendants. If Class Counsel reach a settlement with all of the Non-Settling Defendants or obtain final judgment against each of them in each of the BC Action, the Quebec Action and the Ontario Action, then all obligations under this Section 4 shall cease and this Section 4 shall be of no further force or effect.
(11) The scope of the Settling Defendants' cooperation under this Settlement Agreement shall be limited to an alleged conspiracy to fix, raise, maintain or stabilize price, allocate markets or customers or restrict output or capacity, of ODD and ODD Products sold during the Class Period, subject to the requirements of Section 4.1(1)(b)..
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) Within Before the expiration of sixty (60) days from the Effective Date, or such other time period as Class Counsel and the Settling Defendants may reasonably agree, Counsel for the Settling Defendants will meet with Class Counsel in Toronto or some other location in Canada or the United States, as agreed to by the Parties, to provide an oral evidentiary proffer over a period of up to three (3) business days. One (1) of those three (3) proffer days may take place prior to the Effective Date and shall take place on February 14, 2020 or thereabouts, or such other time period as Class Counsel and the Settling Defendants may reasonably agree. Thereafter, Counsel for the Settling Defendants will make themselves available for reasonable follow-up conversations in connection with the proffer and will use best efforts to respond to questions posed by Class Counsel. The proffer shall include information originating with the Settling Defendants relating to the allegations in the Proceedings and the Related Action. Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants are privileged, will be kept strictly confidential, and may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by the Court. Further, absent a Court order, Class Counsel will not attribute any factual information obtained from the proffer to the Settling Defendants and/or Counsel for the Settling Defendants. Notwithstanding the foregoing, Class Counsel may: (i) use information obtained from the proffer in the prosecution of the Proceedings and the Related Action, including for the purpose of developing the Distribution Protocol or any other allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) may rely on such information to certify that, to the best of Class Counsel’s knowledge, information and belief, such information has evidentiary support or will likely have evidentiary support after reasonable opportunity for further investigation or discovery, but, absent a Court Order, the Plaintiffs shall not introduce any information from a proffer into the record or subpoena any Counsel for the Settling Defendants related to a proffer.
(2) Unless expressly provided for otherwise in subsections (a)-(e) below, within sixty (60) days from the Effective Date, or at a later time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, the Settling Defendants will use reasonable efforts toshall provide to Class Counsel and in a manner that is in compliance with Settling Defendants' obligations to any Government Entity, the information set out in subsections (a)-(e) below. Class Counsel and Plaintiffs agree to request such cooperation only when and only to the extent reasonably necessary for their continued prosecution of the Proceedings and the Related Action:
(a) Produce in the Sony Disclosure. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree event that the Settling Defendants may edit or other Releasees are subsequently named in the U.S. Litigation:
(i) any transactional sales or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that other data produced by the Settling Defendants or other Releasees in the U.S. Litigation, including pursuant to any U.S. Settlement Agreements. Such transactional data shall have control over that editing process, and Plaintiffs agree to promptly reimburse be delivered in Microsoft Excel or such other format as may be agreed upon by Counsel for the Settling Defendants for and Class Counsel. The transactional sales data records shall be delivered as a separate production from the reasonable costs of such editing;
(bdocuments to be delivered pursuant to Sections 4.1(2)(a)(iii)-(vi) Identify or identified by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within number as part of the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claimsproduction of documents to be delivered pursuant to Section 4.1(2);
(cii) provide the same letters of reasonable assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost transactional sales data produced by the Settling Defendants; and, through Counsel for the Settling Defendants, including a reasonable number of telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between personnel or consultants knowledgeable about the sales data;
(diii) provide electronic copies of any Documents relating to Canadian sales which were considered documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Automotive Exhaust Systems produced by the Settling Defendants in the negotiation of this Settlement Agreement, and that are not included in the Sony Disclosure.
(2) Subject to the rules of evidence, any Court order with regard to confidentiality and the or other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings of the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section.
(3) Documents provided to Class Counsel in accordance with this section 4.1(1) will be provided in the format in which they were produced Releasees in the U.S. Litigation, including any documents produced by the Settling Defendants or other Releasees pursuant to any U.S. Settlement Agreements, and will include any pre-existing translations of those documents and any pre-existing and non-privileged metadataelectronic coding or metadata produced in the U.S. Litigation. In addition, where the Documents documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each Document.document;
(4iv) Nothing in this Settlement Agreement shall be construed to require electronic copies of transcripts and video recordings of all depositions or other testimony of current or former employees, officers or directors of the Settling Defendants to perform any actReleasees, including all exhibits thereto and any pre-existing translations of those transcripts, taken in the transmittal U.S. Litigation. If the transcripts or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreements.
video recordings become available more than sixty (560) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the Settling Defendants to disclose or produce any Documents or information prepared by or for counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, or to disclose or produce any Documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents they obtained on a privileged or co-operative basis days from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties transcripts or video recordings shall be provided within thirty (30) days of becoming available. The transcripts or video recordings shall be delivered as a separate production from the documents to non-disclosure agreements that apply be delivered pursuant to the Sony Disclosure to obtain consent to produce, Section 4.1(2) or identified by ▇▇▇▇▇ number as part of the Sony Disclosureproduction of documents to be delivered pursuant to Section 4.1(2);
(v) electronic copies of any responses to written interrogatories by the Releasees, information or Documents protected by each such nonincluding all schedules thereto and any pre-dislcosure agreementexisting translations of those responses, in the U.S. Litigation. If consent of a counterparty is not obtained, the Settling Defendants The responses to written interrogatories shall be entitled to remove all affected documents delivered as a separate production from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents to be delivered pursuant to Section 4.1(2) identified by ▇▇▇▇▇ number as part of the Sony Disclosure.
(7) If any Documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way documents to be construed delivered pursuant to have waived in any manner any privilege or protection attached to such Documents.Section 4.1(2);
(8) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by section 8 vi) electronic copies of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date declarations of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, officers or directors of the Releasees, including all schedules thereto and any pre-existing translations of those declarations, in the Plaintiffs, the Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.U.S.
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) The scope of the Settling Defendants’ obligations to cooperate under this Settlement Agreement as set out in this Section 4.1 is limited to only those Proceedings (and the Alleged Parts which are the subject of those Proceedings) which, at the time of the delivery of the cooperation specified herein, are ongoing against one or more Non-Settling Defendants. The cooperation shall be made available to Class Counsel in the applicable Proceeding. Notwithstanding the foregoing, in the Electric Powered Steering Assemblies Proceedings, the cooperation shall also be made available to Camp ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Siskinds Desmeules s.e.n.c.r.l to the extent that Camp ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ Desmeules s.e.n.c.r.l are assisting Ontario Counsel in the prosecution of those Proceedings. Cooperation will take place in a manner that is in compliance with the Settling Defendants’ obligations to Government Entities.
(2) All cooperation provided by Settling Defendants shall be treated as “Highly Confidential” under the terms of the U.S. Protective Order, until such time as an equivalent order is issued in the relevant Proceedings, at which point the cooperation shall be treated as “Highly Confidential” pursuant to the terms of such order. Cooperation will take place in a manner that is in compliance with JTEKT’s obligations to Government Entities.
(3) Within sixty (60) days from the Date of the Effective DateExecution, or at a such other time mutually agreed upon by period as Class Counsel and the PartiesSettling Defendants may reasonably agree, subject to the other provisions of this Settlement Agreement, Counsel for the Settling Defendants will use meet with Class Counsel at a location in North America selected by the Settling Defendants acting reasonably, to provide an oral evidentiary proffer which will include information originating with the Settling Defendants relating to the allegations in the Proceedings. The proffer shall not exceed two (2) business days. Counsel for the Settling Defendants shall make themselves available for reasonable efforts to:follow-up questions by Class Counsel.
(4) Unless expressly provided for otherwise below, within ninety (90) days from the Effective Date, or at a later time mutually agreed upon by the Parties, the Settling Defendants shall provide to Class Counsel the information set out in subsections (a)-(j) below.
(a) Produce transactional sales data regarding the Sony DisclosureAlleged Parts as has already been produced in the context of the U.S. Settlement Agreements and any pre-existing translations into English of such data. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (The transactional sales data will be provided in Excel or retain a third party to edit) such video recordings before disclosing them other format in order to comply which it was produced in connection with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing processU.S. Settlement Agreements, and Plaintiffs agree shall be delivered as a separate production from the documents to promptly reimburse be delivered pursuant to Section 4.1(4)(c) or identified by ▇▇▇▇▇ number as part of the Settling Defendants for the reasonable costs production of such editingdocuments to be delivered pursuant to Section 4.1(4)(c);
(b) Identify by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of reasonable assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost transactional sales data produced by the Settling Defendants; and, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel;
(dc) provide electronic copies of any Documents relating to Canadian sales which were considered documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding the Alleged Parts produced or made available by the Settling Defendants in the negotiation of this Settlement AgreementU.S. Litigation, and that are not included in the Sony Disclosure.
(2) Subject to the rules of evidence, including any Court order with regard to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits for use at trial or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings of the Sony Disclosure provided documents produced by the Settling Defendants in accordance with this pursuant to the U.S. Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. IfAgreements, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting any pre- existing translations into evidence English of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial and any pre-existing and non- privileged electronic coding or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section.
(3) Documents provided to Class Counsel in accordance with this section 4.1(1) will be provided in the format in which they were metadata produced in the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each Documentdocument;
(d) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure), including any pre-existing translations into English of those documents, provided to the United States Department of Justice relating to their investigation into the alleged antitrust violations with respect to the Alleged Parts, to the extent the productions are not duplicative;
(e) electronic copies of transcripts of all depositions or other testimony of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation, and any pre-existing translations into English. If transcripts become available more than sixty (60) days from the Effective Date, such transcripts shall be provided within thirty (30) days of becoming available. The transcripts shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(4)(c) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(4)(c);
(f) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation, and any pre-existing translations into English. If declarations or affidavits become available more than thirty (30) days from the Effective Date, such declarations or affidavits shall be provided within ten (10) days of becoming available. The declarations and affidavits shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(4)(c) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(4)(c);
(g) electronic copies of any responses to written interrogatories by the Releasees, including all schedules thereto, taken in the U.S. Litigation, and any pre-existing translations into English. The responses to written interrogatories shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(4)(c) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(4)(c);
(h) electronic copies of any responses to requests to admit provided by the Releasees in the U.S. Litigation and any pre-existing translations into English. The responses to requests to admit shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(4)(c) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(4)(c);
(i) the identity of all current and former employees, directors and officers of the Releasees who:
(i) were interviewed and/or prosecuted by the U.S. Department of Justice in connection with alleged price-fixing, bid rigging and market allocation of the Alleged Parts;
(ii) appeared before the grand jury in the U.S. Department of Justice investigation into alleged antitrust violations with respect to the Alleged Parts; or
(iii) were disclosed to the U.S. Department of Justice as having knowledge or information relating to the U.S. Department of Justice’s investigation into alleged antitrust violations with respect to the Alleged Parts; and
(j) after conducting a reasonable search and to the best of its knowledge, a list of Automotive Vehicles sold in Canada between January 1, 2000 and December 31, 2015 that contain the Alleged Parts manufactured or sold by the Settling Defendants.
(45) After the Effective Date, subject to the other provisions of this Settlement Agreement, Class Counsel may deliver a written request to the Settling Defendants pursuant to this Section. Within one hundred and twenty (120) days after Class Counsel’s delivery of this written request, or at a time mutually agreed upon by the Parties, the Settling Defendants agree to use reasonable efforts to provide to Class Counsel:
(a) further transactional sales data as it exists in the Settling Defendants electronic database at the time of the request regarding the Alleged Parts reflecting the Settling Defendants’ sales of the Alleged Parts during the applicable Class Period, if and to the extent pre-existing sales reflect that the sales data relate to Alleged Parts known or expected to be included in Automotive Vehicles that were sold in Canada. The transactional sales data will be provided in Excel or such other format as may be agreed upon by Counsel for the Settling Defendants and Class Counsel, and shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(4) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(4); and
(b) reasonable assistance in understanding the transactional sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel.
(6) The obligation to produce documents pursuant to Sections 4.1(4) and 4.1(5) shall be a continuing obligation to the extent additional documents are identified by the Settling Defendants following the initial productions pursuant to this Settlement Agreement.
(7) As to additional documents in the Settling Defendants’ possession, custody, or control concerning the Alleged Parts, the Settling Defendants will consider in good faith any reasonable request by the Plaintiffs to collect and produce such documents, provided the request would not impose an unreasonable burden on the Settling Defendants.
(8) The Settling Defendants shall not object to the Plaintiffs’ participation in any evidentiary proffers and/or interviews of the Settling Defendants’ representatives that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreements. The Settling Defendants shall, where possible, provide notice to Class Counsel thirty (30) days before any evidentiary proffer or interview of representatives of the Settling Defendants that occurs in the U.S. Litigation pursuant to the U.S. Settlement Agreements.
(9) After the Certification Date, at the request of Class Counsel acting in good faith, and as is reasonably necessary for the ongoing prosecution of the Proceedings, to the extent that the Settling Defendants make oral evidentiary proffers pursuant to the U.S. Settlement Agreements that contains information not previously proffered to the Plaintiffs pursuant to Section 4.1(3), and Class Counsel is unable to attend or is not given reasonable advance notice of the time and location of such proffers, the Settling Defendants shall make supplemental proffers to the Plaintiffs, provided that the information proffered in the U.S. is relevant to the Proceedings.
(10) It is understood that the evidentiary proffer described in Section 4.1(3) and the evidentiary proffers and/or interviews of witnesses described in Section 4.1(8) might take place before the Effective Date. In such event:
(a) any documents or information provided in the course of those evidentiary proffers and/or interviews shall be subject to the terms and protections of this Settlement Agreement; and
(b) in the event that this Settlement Agreement is not approved, is terminated, or otherwise fails to take effect for any reason, the documents and information provided during the evidentiary proffers and/or interviews shall not be used by the Plaintiffs or Class Counsel, whether directly or indirectly, in any way for any reason, including, without limitation, against the Settling Defendants as an admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by the Settling Defendants or of the truth of any claims or allegations in the Proceedings, and such information shall not be discoverable by any Person or treated as evidence of any kind, unless otherwise ordered by a Court. In order to give effect to this agreement, Class Counsel agrees to make reasonable efforts to return all copies of any documents received during, and destroy all copies of any notes taken during (or subsequent reports provided about), these evidentiary proffers and/or interviews and to provide written confirmation to the Settling Defendants of having done so.
(11) Subject to the rules of evidence, any Court order with respect to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agree to use reasonable efforts (which shall not include disciplining or terminating the employee) to produce through affidavit(s), declaration(s), and/or at trial or otherwise in the Proceedings a reasonable number of representatives (not to exceed three (3)) qualified to establish for admission into evidence (i) the Settling Defendants’ transactional sales and cost data provided pursuant to Sections 4.1 and 4.1(5)(a); (ii) any of the Settling Defendants’ documents provided as cooperation pursuant to Sections 4.1(4), 4.1(5), and 4.1(6) of this Settlement Agreement that is reasonable and necessary for the prosecution of the Proceedings (with Class Counsel using its best efforts to authenticate documents for use at trial or otherwise without use of a live witness); and (iii) information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to limit the number of witnesses and to the extent reasonably possible, a single witness will be used both to authenticate documents and provide the information at trial or otherwise contemplated by this Section in any Proceeding and provided that Class Counsel shall use all reasonable efforts to use written affidavits and/or declarations before requiring representatives to testify. It is agreed that JTEKT representatives will not be required to travel to Canada for any reason, including trial, unless ordered by the Court. The failure of a specific officer, director or employee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this Section except as regards the reasonable costs associated with travel and lodging in Canada should it be required.
(12) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreementsjurisdiction.
(513) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the Settling Defendants to disclose or produce any Documents documents or information prepared by or for counsel Counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, or to disclose or produce any Documents documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, attorney-client privilege, work product doctrine, litigation privilege, joint defence privilege or any other privilege, doctrine, or law, or to disclose or produce any information or Documents documents they obtained on a privileged or co-co- operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreementsReleasee. To the extent the The Settling Defendants are not required to disclose or produce Documents or information pursuant to this Settlement Agreementcreate a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, the Settling Defendants will provide Class Counsel with a copy of such log delivered as a separate production from the documents to be allowed a reasonable amount of time delivered pursuant to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure Section 4.1(4)(c) or production, review the Documents or information to determine if they are protected identified by applicable non-disclosure agreements.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, ▇▇▇▇▇ number as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent production of a counterparty is not obtained, the Settling Defendants shall documents to be entitled delivered pursuant to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony DisclosureSection 4.1(4)(c).
(714) If any Documents documents protected by any privilege or work product doctrine and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently disclosed or produced, such Documents documents shall be promptly returned to the Settling Defendants and the Documents documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documents.
(8) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by section 8 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.Sett
Appears in 1 contract
Sources: National Settlement Agreement
Extent of Cooperation. (1) Within sixty thirty (6030) days of the Effective Date, or at a time mutually agreed upon by the Parties, subject to any court order with respect to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants will agree to use reasonable efforts to:
(a) Produce provide to Class Counsel existing electronic transactional data for direct sales by the Sony Disclosure. To Settling Defendants of SRAM delivered in Canada during the Class Period, to the extent that Plaintiffs later wish such data has not previously been produced in the BC Action or provided pursuant to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that Section 12.2(1). Counsel for the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance be reasonably available as necessary to respond to Class Counsel as were provided to US Class Counsel in Counsel's questions regarding the US Litigation in understanding the transactional, production and cost electronic transactional data produced by the Settling Defendants; and;
(db) provide electronic copies to Class Counsel any transcripts or video recordings of all depositions of the Settling Defendants’ employees, directors or officers taken in the course of the U.S. Litigation concerning the allegations raised in the Proceedings with respect to the Class Period;
(c) to the extent not already provided in the BC Action, provide any Documents relating to Canadian sales which were considered pre-existing documents produced by the Settling Defendants in the negotiation U.S. Litigation concerning the allegations raised in the Proceedings with respect to the Class Period including, but not limited to any documents provided to counsel for the plaintiffs in the U.S Litigation pursuant to any settlement agreement entered into between the plaintiffs in the U.S. Litigation and the Settling Defendants;
(d) to the extent not already provided in the BC Action , and not included in production under Section 4.1(1)(c), provide any pre-existing documents provided by the Settling Defendants to the United States Department of Justice, the European Commission, the Canadian Competition Bureau, or any other state, federal or international government or administrative agency, without geographic limitation, concerning the allegations raised in the Proceedings with respect to the Class Period, excluding privileged documents created for the purpose of being so provided; and
(e) through a meeting between Counsel for the Settling Defendants and Class Counsel, provide an evidentiary proffer, which will include information originating with the Settling Defendants and being within their possession relating to the allegations in the Proceedings with respect to the Class Period including, without limitation, information with respect to dates, locations, subject matter, and participants in any meetings or discussions between competitors relating to the purchase, sale, pricing, discounting, marketing or distributing of SRAM Products in Canada during the Class Period.
(2) Following the Effective Date, the Settling Defendants shall, at the request of Class Counsel, upon reasonable notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, employees of the Settling Defendants who have knowledge of the allegations raised in the Proceedings to provide information regarding the allegations raised in the Proceedings in a personal interview with Class Counsel and/or experts retained by Class Counsel. The employees shall be made available in Korea or such other place as agreed to by Counsel for the Settling Defendants and Class Counsel. Costs incurred by, and the expenses of, the employees of the Settling Defendants in relation to such interviews shall be the responsibility of the Settling Defendants. Costs of an interpreter or otherwise related to foreign language translation in connection with interviews shall be the responsibility of Class Counsel. If an employee refuses to provide information, or otherwise cooperate, the Settling Defendants shall use reasonable efforts to make him/her available for an interview with Class Counsel and/or experts retained by Class Counsel. The failure of an employee to agree to make him or herself available, or to otherwise cooperate, with the Plaintiffs shall not constitute a violation of this Settlement Agreement, and that are not included in the Sony Disclosure.
(23) Subject to the rules of evidence, any Court court order with regard respect to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to use reasonable efforts to provide affidavits for use produce at trial and/or discovery or otherwise through acceptable affidavits or other testimony in the Proceedings Proceedings,
(i) a current representative qualified to establish for the purpose of supporting the submission admission into evidence the Settling Defendants’ sales of SRAM Products delivered in Canada during the Proceedings Class Period; (ii) representatives qualified to establish for admission into evidence any of the Sony Disclosure Settling Defendants' documents and information provided by the Settling Defendants in accordance with as cooperation pursuant to Section 4.1(1) of this Settlement Agreement and/or any Documents Agreement; and (iii) representatives qualified to establish for admission into evidence documents produced by the Parties in the Proceedings other Defendants that were created by, sent to, or received by the Settling Defendants. If, Defendants that Class Counsel and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is acting reasonably, agree may be reasonably necessary for the prosecution of the Proceedings and, specifically, for with respect to the purpose of admitting into evidence such information and/or DocumentsNon-Settling Defendants and may be presented to the Courts. The Settling Defendants failure of a specific officer, director or employee to agree to make him or herself available, or to otherwise cooperate with the Plaintiffs, shall not constitute a violation of this Settlement Agreement. The Plaintiffs shall be responsible for all associated costs incurred by such representatives reasonable expenses of any representative in connection with fulfilling the Settling Defendants’ obligations under relation to an attendance pursuant to this section.
(3) Documents provided to Class Counsel in accordance with this section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each DocumentSection 4.1(3).
(4) The obligation to provide documents pursuant to this Section shall be a continuing obligation to the extent documents are identified following the initial productions pursuant to this Settlement Agreement.
(5) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreementsjurisdiction.
(56) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the a Settling Defendants Defendant to disclose or produce any Documents documents or information prepared by or for counsel for the Settling Defendants, or that is not within the Settling Defendants’ possession, custody or control of the Settling Defendantscontrol, or to disclose or produce any Documents documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony DisclosureDefendant.
(7) If any Documents documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently disclosed or produced, such Documents documents shall be promptly returned to the Settling Defendants and the Documents documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documentsdocuments.
(8) The Settling Defendants’ obligations to cooperate as particularized in this section Section shall not be affected by section 8 the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the The Settling Defendants’ ' obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) . In the event that the Settling Defendants materially breach this section 4.1Section, the Plaintiffs Class Counsel may move before the appropriate Court Courts to either enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery Agreement or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, Agreement or seek such other remedy that is available at lawpart thereof.
(109) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are this Section 4.1are the exclusive means by which the Plaintiffs, the Class Counsel and Settlement Class Members and Class Counsel may obtain discovery, information, discovery or information or Documents from the Settling Defendants or their current or former officers, directors or employees, and the . The Plaintiffs, the Class Counsel and Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction. Notwithstanding the above in this Section 4.1(9), subject to the other provisions of this Settlement Agreement, the Plaintiffs are at liberty to exercise any rights they may have to seek to obtain discovery in the Proceedings of any current or former officer, director or employee of the Settling Defendants who is put forward to participate in employee interviews or provide testimony at trial or otherwise pursuant to Sections 4.1 (2) and (3) but who fails to cooperate in accordance with that Section and the provisions of this Settlement Agreement.
(1210) A material factor influencing the Settling Defendants’ ' decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, Defendants and agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling Defendants.
(11) The scope of the Settling Defendants' cooperation under this Settlement Agreement shall be limited to an alleged unlawful conspiracy to fix, raise, maintain or stabilize price, allocate markets or customers or restrict output or capacity, of SRAM Products sold during the Class Period.
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) Within Before the expiration of sixty (60) days of from the Effective Date, or at such other time period as Class Counsel and the Settling Defendants may reasonably agree, Counsel for the Settling Defendants will make themselves available for a time mutually meeting with Class Counsel in Toronto or some other location in Canada or the United States, as agreed upon to by the Parties, subject to the other provisions provide an oral evidentiary proffer over a period of this Settlement Agreementone (1) business day. Thereafter, Counsel for the Settling Defendants will make themselves available for reasonable follow-up conversations in connection with the proffer, and will use reasonable best efforts to:
(a) Produce the Sony Disclosureto respond to questions posed by Class Counsel. To the extent that Plaintiffs later wish to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that The proffer shall include information originating with the Settling Defendants may edit (or retain a third party relating to edit) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel allegations in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of Proceedings. Notwithstanding any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants are not included in the Sony Disclosure.
(2) Subject to the rules of evidenceprivileged, any Court order with regard to confidentiality and the other provisions of this Settlement Agreementwill be kept strictly confidential, and upon at least eight (8) weeks’ notice may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by the Court. Further, absent a Court order, Class Counsel will not attribute any factual information obtained from the proffer to the Settling Defendants, Defendants and/or Counsel for the Settling Defendants agree to Defendants. Notwithstanding the foregoing, Class Counsel may: (i) use reasonable efforts to provide affidavits for use at trial or otherwise information obtained from the proffer in the Proceedings prosecution of the Proceedings, including for the purpose of supporting developing the submission Distribution Protocol or any other allocation plan relating to any settlement or judgment proceeds, except the prosecution of any claims against Releasees; and (ii) may rely on such information to certify that, to the best of Class Counsel’s knowledge, information and belief, such information has evidentiary support or will likely have evidentiary support after reasonable opportunity for further investigation or discovery, but, absent a Court Order, the Plaintiffs shall not introduce any information from a proffer into evidence in the Proceedings of the Sony Disclosure provided by record or subpoena any Counsel for the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, related to a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this sectionproffer.
(3) Documents provided to Class Counsel in accordance with this section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each Document.
(4) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreements.
(5) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the Settling Defendants to disclose or produce any Documents or information prepared by or for counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, or to disclose or produce any Documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) If any Documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documents.
(8) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by section 8 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.
Appears in 1 contract
Sources: National Settlement Agreement
Extent of Cooperation. (1) Within sixty thirty (6030) days of after the Effective Date, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, the Settling Defendants Defendant will use reasonable efforts execute an irrevocable direction to U.S. Counsel directing them, once this Court issues the Canadian Protective Order on the terms contemplated in section 4.2(2), to:
(a) Produce provide electronic copies of any documents (as defined in Rule 30.01 of the Sony Disclosure. To the extent that Plaintiffs later wish to obtain video recordings Ontario Rules of past and/or future depositions and live testimony, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to editCivil Procedure) such video recordings before disclosing them in order to comply with the Settling Defendants’ confidentiality and disclosure obligations. Plaintiffs further agree that the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants for the reasonable costs of such editing;
(b) Identify by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling DefendantsDefendant in the U.S. Litigation, including any documents produced by the Settling Defendant pursuant to the U.S. Settlement Agreement, and any pre-existing translations of those documents; and provide to the extent relevant to the allegations in the Proceeding copies of any additional documents produced at any future date by the Settling Defendant in the U.S. Litigation, within thirty (30) days of said production in the U.S. Litigation (in the format produced therein), or, if any such documents have already produced, within thirty (30) days of the Canadian Protective Order being issued; and
(db) provide electronic copies of any Documents relating to Canadian sales which were considered by transcripts of all depositions of current or former employees, officers or directors of the Settling Defendants Releasees, including all exhibits thereto, taken in the negotiation of this Settlement Agreement, U.S. Litigation; and that are not included to the extent relevant to the allegations in the Sony DisclosureProceeding, provide electronic copies of any additional depositions of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken at any future date in the U.S. Litigation within thirty (30) days of said transcripts becoming available, or, if any such transcripts are already available, within thirty (30) days of the Canadian Protective Order being issued.
(2) The Settling Defendant shall not object to the Plaintiff’s participation in any evidentiary proffers and/or interviews of the Settling Defendant’s representatives that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreement. The Settling Defendant shall, as part of the irrevocable direction referenced in section 4.1(1), direct U.S. Counsel to, where possible, provide notice to Class Counsel thirty (30) days before the interview of representatives of the Settling Defendant.
(3) Subject to the rules of evidence, any Court court order with regard respect to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling DefendantsDefendant agrees to cooperate with the Plaintiff, by (a) providing assistance reasonably necessary to establish the Settling Defendants agree authenticity and admissibility of documents, (b) responding to use reasonable efforts to provide affidavits requests for use assistance in understanding the facts at issue in the Proceeding, and (c) producing at trial in person or otherwise in the Proceedings for the purpose of supporting the submission into evidence in the Proceedings of the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced affidavit, whichever is legally necessary and reasonably possible, representatives to testify as reasonably requested by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section.
(3) Documents provided to Class Counsel in accordance with this section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, and will include any pre-existing and non-privileged metadata. In addition, where the Documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each DocumentCounsel.
(4) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants Defendant to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreementsjurisdiction.
(5) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants Defendant or any representative or employee of the Settling Defendants Defendant to disclose or produce any Documents documents or information prepared by or for counsel Counsel for the Settling DefendantsDefendant, or that is not within the possession, custody or control of the Settling DefendantsDefendant, or to disclose or produce any Documents documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, joint defence privilege or any other privilege, doctrine, or law, or to disclose or produce any information or Documents documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreementsReleasee. To the extent the The Settling Defendants are Defendant is not required to disclose create a privilege log. However, if a relevant privilege log or produce Documents or other document containing identifying information pursuant to this Settlement Agreementregarding the withheld documents exists, the Settling Defendants will be allowed Defendant shall, as part of the irrevocable direction referenced in 4.1(1), direct U.S. Counsel to provide Class Counsel with a reasonable amount of time to conduct a review that ensures they receive the benefit copy of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreementsdocument.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) If any Documents documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently disclosed or produced, such Documents documents shall be promptly returned to U.S. Counsel for the Settling Defendants Defendant and the Documents documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling DefendantsDefendant, and the production of such Documents documents shall in no way be construed to have waived in any manner any privilege privilege, doctrine, law, or protection attached to such Documentsdocuments.
(8) 7) The Settling Defendants’ obligations Defendant’s obligation to cooperate as particularized in this section Section shall not be affected by section 8 the release provisions contained in Section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasonsreason, the Settling Defendants’ obligations Defendant’s obligation to cooperate shall cease at the date of final judgment in the Proceedings Proceeding against all Defendants.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court 8) Subject to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11Sections 4.1(9) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(94.1(10), the provisions set forth in section this Section 4.1 are the exclusive means by which the PlaintiffsPlaintiff, the Class Counsel and Settlement Class Members and Class Counsel may obtain discovery, information, discovery or Documents information or documents from the Settling Defendants Releasees or their current or former officers, directors or employees. The Plaintiff, Class Counsel and the Plaintiffs, the Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants Releasees or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(129) The Plaintiff may exercise any rights he has to seek to obtain discovery in the Proceeding as against an officer, director and/or employee of the Settling Defendant put forward to provide testimony at trial or otherwise pursuant to Section 4.1(3), if the current or former officer, director or employee of the Settling Defendant fails to cooperate in accordance with that Section and the provisions of this Settlement Agreement.
(10) In the event that the Settling Defendant materially breaches this Section 4.1, the Plaintiff may move before the Court to enforce the terms of this Settlement Agreement.
(11) A material factor influencing the Settling Defendants’ Defendant’s decision to execute this Settlement Agreement is their its desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling DefendantsDefendant, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling DefendantsDefendant.
(12) The scope of the Settling Defendant’s cooperation under this Settlement Agreement shall be limited to the allegations asserted in the Proceeding as presently filed.
(13) The Settling Defendant makes no representation regarding and shall bear no liability with respect to the accuracy of any of the documents or information described in this Section 4.1, or that they have, can or will produce a complete set of any of the documents or information described in this Section 4.1, and the failure to do so shall not constitute a breach or violation of this Settlement Agreement.
Appears in 1 contract
Sources: Class Action Settlement Agreement
Extent of Cooperation. (1) The scope of the Settling Defendants’ obligations to cooperate under this Settlement Agreement as set out in this Section 4.1 is limited to only those Proceedings (and the Alleged Parts which are the subject of those Proceedings) which, at the time of the delivery of the cooperation specified herein, are ongoing against one or more Non-Settling Defendants. The cooperation shall be made available to Class Counsel in the applicable Proceeding. Notwithstanding the foregoing:
(a) in the Bearings Proceedings the cooperation shall be made available to Ontario Counsel and Quebec Counsel only, and may not be disclosed to BC Counsel except to the extent the relevant information or documents were, are or become publicly available or as otherwise ordered by a Court; and
(b) in the Electric Powered Steering Assemblies and Manual Steering Columns Proceedings, the cooperation shall also be made available to Camp ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Siskinds Desmeules s.e.n.c.r.l to the extent that Camp ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Siskinds Desmeules s.e.n.c.r.l are assisting Ontario Counsel in the prosecution of those Proceedings.
(2) Cooperation will take place in a manner that is in compliance with the Settling Defendants’ obligations to Government Entities.
(3) Within sixty ninety (6090) days of the Effective Date, or at a such other time mutually agreed upon by period as Class Counsel and the PartiesSettling Defendants may reasonably agree, subject to the other provisions of this Settlement Agreement, Counsel for the Settling Defendants will use reasonable efforts to:
(a) Produce meet with Class Counsel in Canada, or at some other location mutually agreed to by the Sony Disclosure. To the extent that Plaintiffs later wish Parties, or by videoconference, to obtain video recordings of past and/or future depositions and live testimony, the Plaintiffs agree that provide an oral proffer which will include information originating with the Settling Defendants that is not covered by privilege relating to the allegations in the Proceedings. The proffer(s) shall not exceed seven (7) hours duration over one calendar day or otherwise as may edit (or retain a third party to edit) such video recordings before disclosing them be agreed in order to comply with respect of each of the Settling Defendants’ confidentiality and disclosure obligationsAlleged Parts. Plaintiffs further agree that Counsel for the Settling Defendants shall have control over that editing process, and Plaintiffs agree to promptly reimburse the Settling Defendants make themselves available for the reasonable costs of such editing;
(b) Identify follow-up questions by way of ▇▇▇▇▇ stamp numbers, if such numbering already exists, Class Counsel. Notwithstanding any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel in the US Litigation in understanding the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by Counsel for the Settling Defendants are privileged, will be kept strictly confidential, and may not included be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a Court. The Plaintiffs and Class Counsel agree that they will not use the information provided in the Sony Disclosure.proffer under this paragraph for any purpose other than the prosecution of the Proceedings against Non-Settling Defendants, and will not make public by filing with or disclosing to a Court or otherwise any information beyond that which is reasonably necessary for the prosecution of the Proceedings, or as otherwise required by law. Further, absent a Court order, Class Counsel will not attribute any information obtained from the proffer to the Settling Defendants and/or Counsel for the Settling Defendants. The Parties agree that the proffer itself is settlement privileged, does not constitute evidence, that there shall be no audio or video recording or written transcription or record of any statements made or information provided by Counsel for the Settling Defendants at the proffer, and that Class Counsel may only make written notes of their own thoughts and impressions at the proffer for the purpose of formulating legal advice, pursuing litigation and/or for the purpose of advancing settlement discussions in the interests of the Settlement Classes..
(24) Subject Unless expressly provided for otherwise below, within ninety (90) days from the Effective Date, or at a later time mutually agreed upon by the Parties, provided that Class Counsel confirms that the requests are required in good faith as reasonably necessary for the prosecution of the Proceedings at trial (or summary judgment), and subject to the rules of evidence, any Court confidentiality order with regard to confidentiality in these Proceedings and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree to shall use reasonable efforts to provide affidavits for use at trial to Class Counsel the information set out in subsections (a)-(i) below.
(a) transactional sales data regarding the Alleged Parts as has already been produced or otherwise as agreed to be produced in the Proceedings context of the U.S. Litigation or the U.S. Settlement Agreements and any pre-existing translations into English of such data. The transactional sales data will be provided in Excel or such other format in which it was produced in connection with the U.S. Litigation or U.S. Settlement Agreements, or such other form as may be agreed upon by the Parties, and shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(4)(c) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(4)(c);
(b) reasonable assistance in understanding the transactional sales data produced by the Settling Defendants, through Counsel for the purpose Settling Defendants, including a reasonable number of supporting written and/or telephonic communications with Class Counsel and/or the submission into evidence Plaintiffs’ experts and between technical personnel;
(c) electronic copies of any documents (as defined in the Proceedings Rule 30.01 of the Sony Disclosure provided Ontario Rules of Civil Procedure) regarding the Alleged Parts produced or made available by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs incurred by such representatives in connection with fulfilling the Settling Defendants’ obligations under this section.
(3) Documents provided to Class Counsel in accordance with this section 4.1(1) will be provided in the format in which they were produced in the U.S. Litigation, including any documents produced or as agreed to be produced by the Settling Defendants pursuant to the U.S. Settlement Agreements, and will include any pre-existing translations of into English of such documents, and any pre-existing and non-privileged metadataelectronic coding or metadata produced in the U.S. Litigation. In addition, where the Documents documents previously produced in the U.S. Litigation contain ▇▇▇▇▇ stamps on their face, a field will be produced containing the corresponding ▇▇▇▇▇ stamps of the first page of each Document.document;
(4d) Nothing electronic copies of any documents (as defined in this Settlement Agreement Rule 30.01 of the Ontario Rules of Civil Procedure), including any pre-existing translations into English of those documents, provided to or seized by Government Entities relating to their investigation into the alleged antitrust violations with respect to the Alleged Parts, to the extent the productions are not duplicative;
(e) electronic copies of transcripts and video recordings of all depositions or other testimony of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation, and any pre-existing translations into English. If transcripts or video recordings become available more than sixty (60) days from the Effective Date, such transcripts or video recordings shall be construed provided within thirty (30) days of becoming available. The transcripts or video recordings shall be delivered as a separate production from the documents to require be delivered pursuant to Section 4.1(4)(c) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(4)(c);
(f) electronic copies of any declarations or affidavits of current or former employees, officers or directors of the Releasees, including all exhibits thereto, taken in the U.S. Litigation, and any pre-existing translations into English. If declarations or affidavits become available more than thirty (30) days from the Effective Date, such declarations or affidavits shall be provided within ten (10) days of becoming available. The declarations and affidavits shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(4)(c) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(4)(c);
(g) electronic copies of any responses to written interrogatories by the Releasees, including all schedules thereto, taken in the U.S. Litigation, and any pre-existing translations into English. The responses to written interrogatories shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(4)(c) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(4)(c);
(h) electronic copies of any responses to requests to admit provided by the Releasees in the U.S. Litigation and any pre-existing translations into English. The responses to requests to admit shall be delivered as a separate production from the documents to be delivered pursuant to Section 4.1(4)(c) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(4)(c); and
(i) the identity of all current and former employees, directors and officers of the Releasees who:
(i) were interviewed and/or prosecuted by any Government Entity in connection with alleged price-fixing, bid rigging and market allocation of the Alleged Parts;
(ii) appeared before the grand jury in the U.S. Department of Justice investigation into alleged antitrust violations with respect to the Alleged Parts; or
(iii) were disclosed to the U.S. Department of Justice as having knowledge or information relating to the U.S. Department of Justice’s investigation into alleged antitrust violations with respect to the Alleged Parts; and
(j) to the extent known or reasonably ascertainable, a list of Automotive Vehicles sold in Canada between 2000 and July 21, 2016 that contain Bearings, Electric Powered Steering Assemblies, and Manual Steering Columns manufactured or sold by the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreementsDefendants.
(5) Nothing in After the Effective Date, subject to the other provisions of this Settlement Agreement shall requireAgreement, Class Counsel may deliver a written request to the Settling Defendants pursuant to this Section. Within one hundred and twenty (120) days after Class Counsel’s delivery of this written request, or shall be construed to requireat a time mutually agreed upon by the Parties, the Settling Defendants or any representative or employee of agree to use reasonable efforts to provide to Class Counsel:
(a) pre-existing further transactional sales data as it exists in the Settling Defendants electronic database at the time of the request regarding the Alleged Parts reflecting the Settling Defendants’ sales of the Alleged Parts during the applicable Class Period, if and to disclose the extent pre-existing sales data reflect that the sales data relate to Alleged Parts known or produce any Documents expected to be included in Automotive Vehicles that were sold in Canada. The transactional sales data will be provided in Excel or information prepared such other format as may be agreed upon by or Counsel for counsel the Settling Defendants and Class Counsel; and
(b) reasonable assistance in understanding the transactional sales data produced by the Settling Defendants, through Counsel for the Settling Defendants, or that is not within including a reasonable number of written and/or telephonic communications with Class Counsel and/or the Plaintiffs’ experts and between technical personnel.
(6) The obligation to produce documents pursuant to Section 4.1(4) and Section 4.1(5) shall be a continuing obligation to the extent additional documents are identified by the Settling Defendants following its initial productions pursuant to this Settlement Agreement.
(7) As to additional documents in the Settling Defendants’ possession, custody custody, or control concerning the Alleged Parts, the Settling Defendants will consider in good faith any reasonable request by the Plaintiffs to collect and produce such documents, provided the request would not impose an undue burden on the Settling Defendants.
(8) The Settling Defendants shall not object to the Plaintiffs’ participation in any evidentiary proffers and/or interviews of the Settling Defendants’ representatives that occur in the U.S. Litigation pursuant to the U.S. Settlement Agreements. The Settling Defendants shall, where possible, provide notice to Class Counsel thirty (30) days before any proffer or to disclose or produce any Documents or information in breach interview of any order, regulatory directive, rule or law representatives of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information that occurs in the U.S. Litigation pursuant to the U.S. Settlement Agreements. It is understood that such proffers and/or interviews of witnesses might take place before the Effective Date.
(9) After the Certification Date, at the request of Class Counsel acting in good faith, and as is reasonably necessary for the ongoing prosecution of the Proceedings, to the extent that the Settling Defendants make oral evidentiary proffers pursuant to the U.S. Settlement Agreements that contains information not previously proffered to the Plaintiffs pursuant to Section 4.1(3), and Class Counsel is unable to attend or is not given reasonable advance notice of the time and location of such proffers, the Settling Defendants shall make supplemental proffers to the Plaintiffs, provided that the information proffered in the U.S. is relevant to the Proceedings.
(10) Subject to the rules of evidence, any Court order with respect to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants will be allowed agree to use reasonable efforts to produce at trial or otherwise in the Proceedings (including through affidavit evidence) a reasonable amount number of time representatives qualified to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreements.
establish for admission into evidence (6i) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) If any Documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documents.
(8) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by section 8 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasons, the Settling Defendants’ obligations transactional sales data provided pursuant to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(9) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement, seek an order setting aside section 4.1(11Sections 4.1(4)(a) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
(10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(14.1(5)(a), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(9), the provisions set forth in section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees, and the Plaintiffs, the Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(12) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden or expense on the Settling Defendants.;
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) To the extent not previously provided to the Plaintiffs and subject to the limitations set forth in this Settlement Agreement, the Settling Defendant agrees to provide the cooperation set out in this section of the Settlement Agreement, provided, however, that the Settling Defendant or the Released Defendants shall not be required to provide cooperation: (i) in violation of any law, including without limiting the generality of the foregoing, any privacy, bank secrecy and other laws, regulations, and policies of Ontario, Quebec or any other Canadian or foreign jurisdiction, or in contravention of the terms of any protective order in the U.S. Litigation or similar order(s) in the Action or an instruction or directive to the contrary from the United States Department of Justice (“DOJ”) or any other regulatory authority or governmental body in Canada, the United States, the United Kingdom or any other jurisdiction; or (ii) with regard to conduct outside the scope of the Released Claims.
(2) All cooperation shall be coordinated in such a manner so that all unnecessary duplication and expense is avoided.
(3) Subject to the foregoing paragraphs, and subject to being satisfied of the sufficiency of Class Counsel’s data security systems and procedures in accordance with Section 4.2(2), the Settling Defendant will provide Class Counsel the Settlement Disclosure Documents within thirty (30) days of the Effective Date.
(4) Within sixty (60) days of after the Effective Date, or at a time mutually agreed upon by the Parties, subject to the other provisions of this Settlement Agreement, counsel for the Settling Defendants Defendant will use reasonable efforts to:
(a) Produce meet with Class Counsel in Toronto, or at a location mutually agreed to by the Sony Disclosure. To the extent that Plaintiffs later wish Parties, to obtain video recordings of past and/or future depositions and live testimonyprovide an evidentiary proffer which will include information, the Plaintiffs agree that the Settling Defendants may edit (or retain a third party to edit) such video recordings before disclosing them in order to comply if any, originating with the Settling Defendants’ confidentiality and disclosure obligationsDefendant that is not covered by privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, relating to the allegations in the Action. Plaintiffs further The Parties agree that there shall be no audio or video recording or written transcription or record of any statements made or information provided by counsel for the Settling Defendants shall have control over that editing processDefendant at the proffer, and Plaintiffs agree to promptly reimburse that Class Counsel may only make written notes of their own thoughts and impressions at the Settling Defendants proffer for the reasonable costs purpose of such editing;
(b) Identify by way formulating legal advice, pursuing litigation and/or for the purpose of ▇▇▇▇▇ stamp numbers, if such numbering already exists, any specific Documents within the Sony Disclosure that the Settling Defendants believe may support the Plaintiffs’ claims;
(c) provide the same letters of assistance to Class Counsel as were provided to US Class Counsel advancing settlement discussions in the US Litigation in understanding interests of the transactional, production and cost data produced by the Settling Defendants; and
(d) provide electronic copies of Settlement Classes. Notwithstanding any Documents relating to Canadian sales which were considered by the Settling Defendants in the negotiation other provision of this Settlement Agreement, and for greater certainty, it is agreed that any such written notes, and all statements made and information provided by counsel for the Settling Defendant are privileged, will be kept strictly confidential, may not included be directly or indirectly disclosed to any other Person, and shall not be used by Class Counsel for any purpose other than for their own internal use in connection with the Sony Disclosureprosecution of the Action against the Non-Settling Defendants and for no other purpose whatsoever.
(25) Subject to the rules of evidence, any Court court order with regard respect to confidentiality and the other provisions of this Settlement Agreement, and upon at least eight (8) weeks’ notice to the Settling Defendants, the Settling Defendants agree Defendant agrees to use reasonable efforts to provide produce at trial or through acceptable affidavits for use at trial or otherwise in the Proceedings trial: (i) a current representative qualified to establish for the purpose of supporting the submission admission into evidence the Settlement Disclosure Documents (after Class Counsel has used best efforts to authenticate documents for use at trial without a live witness); and (ii) a maximum of three representatives qualified to establish for admission into evidence information provided in the Proceedings cooperation pursuant to Section 4 of the Sony Disclosure provided by the Settling Defendants in accordance with this Settlement Agreement and/or any Documents produced by the Parties in the Proceedings Agreement, provided that were created by, sent to, or received by the Settling Defendants. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence of such information or documents, the Settling Defendants agree to Class Counsel shall use all reasonable efforts to make available for testimony limit this requirement to a single witness. To the extent reasonably possible, a single witness will be used both to authenticate documents and provide the information at trial contemplated by this paragraph. The failure of a specific officer, director, employee or otherwise appropriate former employee to agree to make him or herself available shall not constitute a violation of this Settlement Agreement. To the extent any of the Settling Defendant’s cooperation obligations require any current or former employees of the Settling DefendantsDefendant to travel from their principal place of business to another location, as is reasonably necessary Class Counsel shall reimburse the Settling Defendant for the prosecution half of the Proceedings and, specifically, for the purpose of admitting into evidence such information and/or Documents. The Settling Defendants shall be responsible for all associated costs reasonable travel expenses incurred by any such representatives person in connection with fulfilling the Settling Defendants’ obligations under this sectionDefendant’s cooperation obligations. Such reimbursement of travel expenses as set forth herein shall not exceed CAD$10,000 per person per event requiring travel. In no event shall Class Counsel be responsible for reimbursing such persons for time or services rendered.
(36) Other than providing the Settlement Disclosure Documents provided to Class Counsel, participating in any proffer under s. 4.1(4), and making available witnesses for trial as set out above, the Settling Defendant and the Released Defendants shall not be obligated to provide any additional cooperation. The Settling Defendant, acting reasonably, agrees to meet and confer in good faith regarding future requests from Class Counsel in accordance with this section 4.1(1) will be provided for additional cooperation in the format in which they were produced in event that documents, data, testimony, and/or other information are necessary for Class Counsel to obtain Court approval of the U.S. Litigationsettlement or to administer the settlement. The Settling Defendant and the Released Defendants need not agree to requests that are unreasonable or unduly burdensome, and will include any pre-existing and non-privileged metadataneed not agree to requests for which the Plaintiffs cannot demonstrate a substantial need that cannot be reasonably met through alternative means. In additionthe event they cannot agree, where such disputes shall be resolved by the Documents previously produced Court. Nothing in this subparagraph shall prohibit Class Counsel from making additional informal requests for information from the U.S. Litigation contain ▇▇▇▇▇ stamps on their faceSettling Defendant related to the Settlement Disclosure Documents, a field will be produced containing which the corresponding ▇▇▇▇▇ stamps Settling Defendant shall consider in good faith. In the event that the Settling Defendant declines to provide such information, Class Counsel reserves all rights to seek formal third-party discovery of such information, with the first page of each DocumentSettling Defendant and the Released Defendants reserving all rights to object to such discovery.
(4) Nothing in this Settlement Agreement shall be construed to require the Settling Defendants to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any jurisdiction or applicable non-disclosure agreements.
(57) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants Releasees or any representative or employee of the Settling Defendants Releasees to disclose or produce any Documents documents or information prepared by or for counsel for the Settling Defendant or the Released Defendants, or that is not within the possession, custody or control of the Settling DefendantsDefendant, or to disclose or produce any Documents documents or information in breach of any order, regulatory directive, instruction or policy, rule or law of this Ontario or any other Canadian or foreign jurisdiction, or subject to any privilege, including solicitor-client privilegeclient, litigation litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, or to disclose or produce any information or Documents documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee or to disclose or produce any Documents or information protected by applicable non-disclosure agreements. To the extent the Settling Defendants are required to disclose or produce Documents or information pursuant to this Settlement Agreement, the Settling Defendants will be allowed a reasonable amount of time to conduct a review that ensures they receive the benefit of this section. The Settling Defendants shall, prior to disclosure or production, review the Documents or information to determine if they are protected by applicable non-disclosure agreementsReleasee.
(6) The Settling Defendants will use reasonable best efforts to contact, within 30 days of the Effective Date, the contractual counterparties to non-disclosure agreements that apply to the Sony Disclosure to obtain consent to produce, as part of the Sony Disclosure, information or Documents protected by each such non-dislcosure agreement. If consent of a counterparty is not obtained, the Settling Defendants shall be entitled to remove all affected documents from the Sony Disclosure. The Settling Defendants shall produce the remaining, unaffected documents of the Sony Disclosure.
(7) 8) If any Documents documents protected by any privilege privilege, including solicitor-client, litigation, attorney work product, settlement, common-interest or joint defence privilege, or any other privilege, doctrine or law, and/or any privacy law or other rule or law of this Ontario or any applicable jurisdiction other Canadian or foreign jurisdiction, are accidentally or inadvertently disclosed or produced, such Documents documents shall be promptly returned to the Settling Defendants Releasees and the Documents documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling DefendantsReleasees, and the production of such Documents documents shall in no way be construed to have waived in any manner any privilege privilege, doctrine, law, or protection attached to such Documentsdocuments.
(8) 9) The Settling Defendants’ Defendant’s obligations to cooperate as particularized in this section Section shall not be affected by section 8 of the release provisions contained in this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reasonsreason, the Settling Defendants’ Defendant’s obligations to cooperate shall cease at the date of final judgment judgments in the Proceedings Action against all Defendants.
(910) In the event that the Settling Defendants materially breach this section 4.1, the Plaintiffs may move before the appropriate Court Subject to enforce the terms of this Settlement Agreement, seek an order setting aside section Sections 4.1(11) and allowing the Plaintiffs to obtain discovery or information from the Settling Defendants as if the Settling Defendants remained parties to the applicable Proceeding, set aside the approval of this Settlement Agreement, or seek such other remedy that is available at law.
4.1 (10) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceedings as against knowledgable officers, directors and/or employees of the Settling Defendants, if the employee of the Settling Defendants fails to cooperate in accordance with subsections 4.1(1), 4.1(2)and the provisions of this Settlement Agreement.
(11) Subject to sections 4.1(912), the provisions set forth in section this Section 4.1 are the exclusive means by which the Plaintiffs, the Class Counsel and Settlement Class Members and Class Counsel may obtain discovery, information, discovery or Documents information or documents from the Settling Defendants Releasees or their current or former officers, directors or employees, and the . The Plaintiffs, the Class Counsel and Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants Releasees or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(11) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Action as against the officers, directors and/or employees of the Settling Defendant put forward to provide evidence at trial or otherwise pursuant to Section 4.1(5), if the current or former officer, director or employee of the Settling Defendant fails to cooperate in accordance with that Section and the provisions of this Settlement Agreement.
(12) In the event that the Settling Defendant materially breaches this Section 4.1, the Plaintiffs may move before the Federal Court to enforce the terms of this Settlement Agreement.
(13) A material factor influencing the Settling Defendants’ Defendant’s decision to execute this Settlement Agreement is their the desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling DefendantsDefendant, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue or unreasonable burden burdens or expense on the Settling Defendant and the Released Defendants.
(14) The scope of the Settling Defendant’s cooperation under this Settlement Agreement shall be limited to the allegations asserted in the Action as presently filed.
(15) The Settling Defendant and the Released Defendants make no representation regarding, and shall bear no liability with respect to, the accuracy of documents or information described in this Section 4, nor do they represent that they have, can or will produce a complete set of any of such documents or information. A failure to produce a complete set of any documents or any inaccuracy in such documents or information shall not constitute a breach or violation of this Settlement Agreement.
Appears in 1 contract
Sources: National Settlement Agreement