Extent of Cooperation. (1) 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. 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: (i) use information obtained from the proffer in the prosecution of the Proceedings, 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 request, or at a time mutually agreed upon by the Parties, the following: (a) 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 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 Sections 4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2); (b) reasonable assistance to Class Counsel 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; (c) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Fuel Injection Systems produced by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the U.S. Settlement Agreements, including at any future date, and any pre-existing translations of those documents and any pre-existing and non-privileged electronic coding. 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; (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, 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 Fuel Injection Systems between January 1, 1998 and, at least, December 31, 2013, to the extent such data relates to Fuel Injection Systems 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. 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 Fuel Injection Systems, to the extent such data relates to Fuel Injection Systems 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. (4) 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 or are produced in the U.S. Litigation. (5) 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. (6) 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 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 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. (7) 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 shall, at the request of Class Counsel, upon at least sixty (60) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, up to five (5) current or former officers, directors or employees of the Settling Defendants who have knowledge about the allegations 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. 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, and the expenses of, the employees of the Settling Defendants 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 with the Plaintiffs, shall not constitute a violation of this Settlement Agreement. (8) 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 to produce at trial or otherwise in the Proceedings (including through affidavit evidence): (i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to 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 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) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to 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 or otherwise contemplated by this Section. 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. (9) It is understood that the Settling Defendants are likely unable to make available for interviews, examinations or trial testimony, or any other court proceedings, the five (5) individuals referenced in Attachment A (filed under seal) of the plea agreement between Mitsubishi Electric Corporation and the United States of America (Case No. 2:13-cr-20710-PJK, E.D. Mich., ECF No. 9) who were not granted immunity from prosecution by the United States under that plea agreement, and may be unable to make available for interviews, examinations or trial testimony, or any other court proceedings any individual who is no longer an officer, director, or employee of the Settling Defendants, and that this shall not constitute a violation of this Settlement Agreement. (10) 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. (11) 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, joint defence privilege or any other privilege, doctrine, or law, 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. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, Counsel for the Settling Defendants have created a relevant privilege log, or there is some other pre-existing document containing identifying information regarding the withheld documents, the Settling Defendants will provide Class Counsel with a copy of such log or document. (12) 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 disclosed or 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, doctrine, law, or protection attached to such documents. (13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants. (14) Subject to Sections 4.1(15) and (16), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction. (15) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Procee
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) 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. 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: (i) use information obtained from the proffer in the prosecution of the Proceedings, 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 request, or at a time mutually agreed upon by the Parties, the following:
(a) 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 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 Sections 4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2);
(b) reasonable assistance to Class Counsel 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;
(c) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Fuel Injection Systems Electronic Control Units produced by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the U.S. Settlement Agreements, including at any future date, and any pre-existing translations of those documents and any pre-existing and non-privileged electronic coding. 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;
(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, 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 Fuel Injection Systems Electronic Control Units between January 1, 1998 1997 and, at least, December 31, 2013, to the extent such data relates to Fuel Injection Systems Electronic Control Units 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 20November 2, 20172016, if Class Counsel determine that such information is reasonably necessary for the ongoing prosecution of the Proceedings. 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 Fuel Injection SystemsElectronic Control Units, to the extent such data relates to Fuel Injection Systems Electronic Control Units 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.
(4) 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 or are produced in the U.S. Litigation.
(5) 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.
(6) 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 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 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.
(7) 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 shall, at the request of Class Counsel, upon at least sixty (60) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, up to five (5) current or former officers, directors or employees of the Settling Defendants who have knowledge about the allegations 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. 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, and the expenses of, the employees of the Settling Defendants 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 with the Plaintiffs, shall not constitute a violation of this Settlement Agreement.
(8) 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 to produce at trial or otherwise in the Proceedings (including through affidavit evidence):
(i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to 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 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) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to 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 or otherwise contemplated by this Section. 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.
(9) It is understood that the Settling Defendants are likely unable to make available for interviews, examinations or trial testimony, or any other court proceedings, the five (5) individuals referenced in Attachment A (filed under seal) of the plea agreement between Mitsubishi Electric Corporation and the United States of America (Case No. 2:13-cr-20710-PJK, E.D. Mich., ECF No. 9) who were not granted immunity from prosecution by the United States under that plea agreement, and may be unable to make available for interviews, examinations or trial testimony, or any other court proceedings any individual who is no longer an officer, director, or employee of the Settling Defendants, and that this shall not constitute a violation of this Settlement Agreement.
(10) 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.
(11) 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, joint defence privilege or any other privilege, doctrine, or law, 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. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, Counsel for the Settling Defendants have created a relevant privilege log, or there is some other pre-existing document containing identifying information regarding the withheld documents, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) 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 disclosed or 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, doctrine, law, or protection attached to such documents.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and (16), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(15) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceei
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
Extent of Cooperation. (1) 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 ProceedingsProceeding. 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 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 ProceedingsProceeding, 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 request, or at a time mutually agreed upon by the Parties, the following:
(a) 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 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 Sections 4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2);
(b) reasonable assistance to Class Counsel 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;
(c) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Fuel Injection Systems produced by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the U.S. Settlement Agreements, including at any future date, and any pre-existing translations of those documents and any pre-existing and non-privileged electronic coding. 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;
(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, 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 Fuel Injection Systems between January 1, 1998 and, at least, December 31, 2013, to the extent such data relates to Fuel Injection Systems 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. 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 Fuel Injection Systems, to the extent such data relates to Fuel Injection Systems 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.
(4) 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 or are produced in the U.S. Litigation.
(5) 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.
(6) 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 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 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.
(7) 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 shall, at the request of Class Counsel, upon at least sixty (60) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, up to five (5) current or former officers, directors or employees of the Settling Defendants who have knowledge about the allegations 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. 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, and the expenses of, the employees of the Settling Defendants 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 with the Plaintiffs, shall not constitute a violation of this Settlement Agreement.
(8) 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 to produce at trial or otherwise in the Proceedings (including through affidavit evidence):
(i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to 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 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) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to 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 or otherwise contemplated by this Section. 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.
(9) It is understood that the Settling Defendants are likely unable to make available for interviews, examinations or trial testimony, or any other court proceedings, the five (5) individuals referenced in Attachment A (filed under seal) of the plea agreement between Mitsubishi Electric Corporation and the United States of America (Case No. 2:13-cr-20710-PJK, E.D. Mich., ECF No. 9) who were not granted immunity from prosecution by the United States under that plea agreement, and may be unable to make available for interviews, examinations or trial testimony, or any other court proceedings any individual who is no longer an officer, director, or employee of the Settling Defendants, and that this shall not constitute a violation of this Settlement Agreement.
(10) 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.
(11) 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, joint defence privilege or any other privilege, doctrine, or law, 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. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, Counsel for the Settling Defendants have created a relevant privilege log, or there is some other pre-existing document containing identifying information regarding the withheld documents, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) 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 disclosed or 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, doctrine, law, or protection attached to such documents.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and (16), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(15) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Procee
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
Extent of Cooperation. (1) 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 ProceedingsProceeding 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 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 ProceedingsProceeding 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 request, or at a time mutually agreed upon by the Parties, the following:
(a) 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 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 Sections 4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2);
(b) reasonable assistance to Class Counsel 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;
(c) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Fuel Injection Systems produced by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the U.S. Settlement Agreements, including at any future date, and any pre-existing translations of those documents and any pre-existing and non-privileged electronic coding. 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;
(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, 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 Fuel Injection Systems between January 1, 1998 and, at least, December 31, 2013, to the extent such data relates to Fuel Injection Systems 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. 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 Fuel Injection Systems, to the extent such data relates to Fuel Injection Systems 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.
(4) 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 or are produced in the U.S. Litigation.
(5) 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.
(6) 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 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 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.
(7) 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 shall, at the request of Class Counsel, upon at least sixty (60) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, up to five (5) current or former officers, directors or employees of the Settling Defendants who have knowledge about the allegations 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. 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, and the expenses of, the employees of the Settling Defendants 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 with the Plaintiffs, shall not constitute a violation of this Settlement Agreement.
(8) 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 to produce at trial or otherwise in the Proceedings (including through affidavit evidence):
(i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to 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 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) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to 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 or otherwise contemplated by this Section. 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.
(9) It is understood that the Settling Defendants are likely unable to make available for interviews, examinations or trial testimony, or any other court proceedings, the five (5) individuals referenced in Attachment A (filed under seal) of the plea agreement between Mitsubishi Electric Corporation and the United States of America (Case No. 2:13-cr-20710-PJK, E.D. Mich., ECF No. 9) who were not granted immunity from prosecution by the United States under that plea agreement, and may be unable to make available for interviews, examinations or trial testimony, or any other court proceedings any individual who is no longer an officer, director, or employee of the Settling Defendants, and that this shall not constitute a violation of this Settlement Agreement.
(10) 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.
(11) 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, joint defence privilege or any other privilege, doctrine, or law, 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. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, Counsel for the Settling Defendants have created a relevant privilege log, or there is some other pre-existing document containing identifying information regarding the withheld documents, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) 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 disclosed or 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, doctrine, law, or protection attached to such documents.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and (16), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(15) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Procee
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) Prior to December 31March 15, 20172019, Counsel for the Settling Defendants met will meet with Class Counsel in Canada or the United States, to provide an oral evidentiary proffer which included will include information originating with the Settling Defendants that was not covered by privilege relating to the allegations in the ProceedingsProceeding 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, and may not be directly or indirectly disclosed to any other Person, unless disclosure is ordered by a 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 ProceedingsProceeding and the Second Ontario Action, including for the purpose of developing an 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) 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 request, or at a time mutually agreed upon by the Parties, the following:
(a) 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 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 Sections 4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2);
(b) reasonable assistance to Class Counsel 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;
(c) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Fuel Injection Systems produced by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the U.S. Settlement Agreements, including at any future date, and any pre-existing translations of those documents and any pre-existing and non-privileged electronic coding. 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;
(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, 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 Fuel Injection Systems between January 1, 1998 and, at least, December 31, 2013, to the extent such data relates to Fuel Injection Systems 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. 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 Fuel Injection Systems, to the extent such data relates to Fuel Injection Systems 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.
(4) 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 or are produced in the U.S. Litigation.
(5) 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.
(6) 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 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 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.
(7) 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 shall, at the request of Class Counsel, upon at least sixty (60) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, up to five (5) current or former officers, directors or employees of the Settling Defendants who have knowledge about the allegations 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. 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, and the expenses of, the employees of the Settling Defendants 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 with the Plaintiffs, shall not constitute a violation of this Settlement Agreement.
(8) 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 to produce at trial or otherwise in the Proceedings (including through affidavit evidence):
(i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to 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 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) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to 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 or otherwise contemplated by this Section. 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.
(9) It is understood that the Settling Defendants are likely unable to make available for interviews, examinations or trial testimony, or any other court proceedings, the five (5) individuals referenced in Attachment A (filed under seal) of the plea agreement between Mitsubishi Electric Corporation and the United States of America (Case No. 2:13-cr-20710-PJK, E.D. Mich., ECF No. 9) who were not granted immunity from prosecution by the United States under that plea agreement, and may be unable to make available for interviews, examinations or trial testimony, or any other court proceedings any individual who is no longer an officer, director, or employee of the Settling Defendants, and that this shall not constitute a violation of this Settlement Agreement.
(10) 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.
(11) 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, joint defence privilege or any other privilege, doctrine, or law, 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. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, Counsel for the Settling Defendants have created a relevant privilege log, or there is some other pre-existing document containing identifying information regarding the withheld documents, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) 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 disclosed or 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, doctrine, law, or protection attached to such documents.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and (16), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(15) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Procee
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) Prior to December 31Before the expiration of sixty (60) days from the Effective Date, 2017or such other time period as Class Counsel and the Settling Defendants may reasonably agree, Counsel for the Settling Defendants met will meet with Class Counsel in Canada or the United States, States to provide an oral evidentiary proffer which included over a period of up to one (1) business day. With agreement of Class Counsel and Counsel for the Settling Defendants, the proffer may be provided in-person, by telephone or by video teleconference. The proffer shall include information originating with the Settling Defendants that was not covered by privilege relating to the allegations in the ProceedingsProceeding. 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 a 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 ProceedingsProceeding, including for the purpose of developing an 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) 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 request, or at a time mutually agreed upon by the Parties, the following:
(a) 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 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 Sections 4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2);
(b) reasonable assistance to Class Counsel 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;
(c) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Fuel Injection Systems produced by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the U.S. Settlement Agreements, including at any future date, and any pre-existing translations of those documents and any pre-existing and non-privileged electronic coding. 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;
(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, 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 Fuel Injection Systems between January 1, 1998 and, at least, December 31, 2013, to the extent such data relates to Fuel Injection Systems 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. 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 Fuel Injection Systems, to the extent such data relates to Fuel Injection Systems 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.
(4) 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 or are produced in the U.S. Litigation.
(5) 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.
(6) 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 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 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.
(7) 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 shall, at the request of Class Counsel, upon at least sixty (60) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, up to five (5) current or former officers, directors or employees of the Settling Defendants who have knowledge about the allegations 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. 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, and the expenses of, the employees of the Settling Defendants 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 with the Plaintiffs, shall not constitute a violation of this Settlement Agreement.
(8) 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 to produce at trial or otherwise in the Proceedings (including through affidavit evidence):
(i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to 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 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) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to 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 or otherwise contemplated by this Section. 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.
(9) It is understood that the Settling Defendants are likely unable to make available for interviews, examinations or trial testimony, or any other court proceedings, the five (5) individuals referenced in Attachment A (filed under seal) of the plea agreement between Mitsubishi Electric Corporation and the United States of America (Case No. 2:13-cr-20710-PJK, E.D. Mich., ECF No. 9) who were not granted immunity from prosecution by the United States under that plea agreement, and may be unable to make available for interviews, examinations or trial testimony, or any other court proceedings any individual who is no longer an officer, director, or employee of the Settling Defendants, and that this shall not constitute a violation of this Settlement Agreement.
(10) 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.
(11) 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, joint defence privilege or any other privilege, doctrine, or law, 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. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, Counsel for the Settling Defendants have created a relevant privilege log, or there is some other pre-existing document containing identifying information regarding the withheld documents, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) 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 disclosed or 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, doctrine, law, or protection attached to such documents.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and (16), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(15) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Procee
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) 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. 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: (i) use information obtained from the proffer in the prosecution of the Proceedings, 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 request, or at a time mutually agreed upon by the Parties, the following:
(a) 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 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 Sections 4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2);
(b) reasonable assistance to Class Counsel 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;
(c) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Fuel Injection Systems Inverters produced by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the U.S. Settlement Agreements, including at any future date, and any pre-existing translations of those documents and any pre-pre- existing and non-privileged electronic coding. 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;
(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, 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 Fuel Injection Systems Inverters between January 1, 1998 and, at least, December 31, 2013, to the extent such data relates to Fuel Injection Systems Inverters 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. 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 Fuel Injection SystemsInverters, to the extent such data relates to Fuel Injection Systems Inverters 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.
(4) 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 or are produced in the U.S. Litigation.
(5) 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.
(6) 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 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 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.
(7) 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 shall, at the request of Class Counsel, upon at least sixty (60) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, up to five (5) current or former officers, directors or employees of the Settling Defendants who have knowledge about the allegations 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. 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, and the expenses of, the employees of the Settling Defendants 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 with the Plaintiffs, shall not constitute a violation of this Settlement Agreement.
(8) 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 to produce at trial or otherwise in the Proceedings (including through affidavit evidence):
(i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to 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 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) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to 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 or otherwise contemplated by this Section. 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.
(9) It is understood that the Settling Defendants are likely unable to make available for interviews, examinations or trial testimony, or any other court proceedings, the five (5) individuals referenced in Attachment A (filed under seal) of the plea agreement between Mitsubishi Electric Corporation and the United States of America (Case No. 2:13-cr-20710-PJK, E.D. Mich., ECF No. 9) who were not granted immunity from prosecution by the United States under that plea agreement, and may be unable to make available for interviews, examinations or trial testimony, or any other court proceedings any individual who is no longer an officer, director, or employee of the Settling Defendants, and that this shall not constitute a violation of this Settlement Agreement.
(10) 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.
(11) 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, joint defence privilege or any other privilege, doctrine, or law, 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. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, Counsel for the Settling Defendants have created a relevant privilege log, or there is some other pre-existing document containing identifying information regarding the withheld documents, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) 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 disclosed or 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, doctrine, law, or protection attached to such documents.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and (16), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(15) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the ProceeProceedings as against an officer, director and/or employee of the Set
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) 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. 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: (i) use information obtained from the proffer in the prosecution of the Proceedings, 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 request, or at a time mutually agreed upon by the Parties, the following:
(a) 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 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 Sections 4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2);
(b) reasonable assistance to Class Counsel 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;
(c) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Fuel Injection Occupant Safety Systems produced by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the U.S. Settlement Agreements, including at any future date, and any pre-existing translations of those documents and any pre-existing and non-privileged electronic coding. 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;
(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, 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 Fuel Injection Occupant Safety Systems between January 1, 1998 and, at least, December 31, 2013, to the extent such data relates to Fuel Injection Occupant Safety Systems 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 20December 4, 20172014, if Class Counsel determine that such information is reasonably necessary for the ongoing prosecution of the Proceedings. 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 Fuel Injection Occupant Safety Systems, to the extent such data relates to Fuel Injection Occupant Safety Systems 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.
(4) 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 or are produced in the U.S. Litigation.
(5) 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.
(6) 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 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 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.
(7) 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 shall, at the request of Class Counsel, upon at least sixty (60) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, up to five (5) current or former officers, directors or employees of the Settling Defendants who have knowledge about the allegations 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. 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, and the expenses of, the employees of the Settling Defendants 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 with the Plaintiffs, shall not constitute a violation of this Settlement Agreement.
(8) 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 to produce at trial or otherwise in the Proceedings (including through affidavit evidence):
(i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to 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 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) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to 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 or otherwise contemplated by this Section. 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.
(9) It is understood that the Settling Defendants are likely unable to make available for interviews, examinations or trial testimony, or any other court proceedings, the five (5) individuals referenced in Attachment A (filed under seal) of the plea agreement between Mitsubishi Electric Corporation and the United States of America (Case No. 2:13-cr-20710-PJK, E.D. Mich., ECF No. 9) who were not granted immunity from prosecution by the United States under that plea agreement, and may be unable to make available for interviews, examinations or trial testimony, or any other court proceedings any individual who is no longer an officer, director, or employee of the Settling Defendants, and that this shall not constitute a violation of this Settlement Agreement.
(10) 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.
(11) 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, joint defence privilege or any other privilege, doctrine, or law, 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. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, Counsel for the Settling Defendants have created a relevant privilege log, or there is some other pre-existing document containing identifying information regarding the withheld documents, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) 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 disclosed or 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, doctrine, law, or protection attached to such documents.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and (16), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(15) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the Proceethe
Appears in 1 contract
Sources: Settlement Agreement
Extent of Cooperation. (1) 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. 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: (i) use information obtained from the proffer in the prosecution of the Proceedings, 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 request, or at a time mutually agreed upon by the Parties, the following:
(a) 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 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 Sections 4.1(2)(c)-(e) or identified by ▇▇▇▇▇ number as part of the production of documents to be delivered pursuant to Section 4.1(2);
(b) reasonable assistance to Class Counsel 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;
(c) electronic copies of any documents (as defined in Rule 30.01 of the Ontario Rules of Civil Procedure) regarding Fuel Injection Systems Starters produced by the Settling Defendants in the U.S. Litigation, including any documents produced or made available by the Settling Defendants pursuant to the U.S. Settlement Agreements, including at any future date, and any pre-existing translations of those documents and any pre-pre- existing and non-privileged electronic coding. 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;
(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, 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 Fuel Injection Systems Starters between January 1, 1998 and, at least, December 31, 2013, to the extent such data relates to Fuel Injection Systems Starters 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. 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 Fuel Injection SystemsStarters, to the extent such data relates to Fuel Injection Systems Starters 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.
(4) 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 or are produced in the U.S. Litigation.
(5) 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.
(6) 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 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 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.
(7) 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 shall, at the request of Class Counsel, upon at least sixty (60) days’ notice, and subject to any legal restrictions, make reasonable efforts to make available at a mutually convenient time, up to five (5) current or former officers, directors or employees of the Settling Defendants who have knowledge about the allegations 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. 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, and the expenses of, the employees of the Settling Defendants 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 with the Plaintiffs, shall not constitute a violation of this Settlement Agreement.
(8) 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 to produce at trial or otherwise in the Proceedings (including through affidavit evidence):
(i) a current representative qualified to establish for admission into evidence the Settling Defendants’ transactional sales data and cost information provided pursuant to 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 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) representatives qualified to establish for admission into evidence information provided in cooperation pursuant to Section 4 of this Settlement Agreement, provided that Class Counsel shall use all reasonable efforts to 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 or otherwise contemplated by this Section. 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.
(9) It is understood that the Settling Defendants are likely unable to make available for interviews, examinations or trial testimony, or any other court proceedings, the five (5) individuals referenced in Attachment A (filed under seal) of the plea agreement between Mitsubishi Electric Corporation and the United States of America (Case No. 2:13-cr-20710-PJK, E.D. Mich., ECF No. 9) who were not granted immunity from prosecution by the United States under that plea agreement, and may be unable to make available for interviews, examinations or trial testimony, or any other court proceedings any individual who is no longer an officer, director, or employee of the Settling Defendants, and that this shall not constitute a violation of this Settlement Agreement.
(10) 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.
(11) 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, joint defence privilege or any other privilege, doctrine, or law, 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. The Settling Defendants are not required to create a privilege log. However, if a relevant privilege log was created in the context of the U.S. Litigation, Counsel for the Settling Defendants have created a relevant privilege log, or there is some other pre-existing document containing identifying information regarding the withheld documents, the Settling Defendants will provide Class Counsel with a copy of such log or document.
(12) 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 disclosed or 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, doctrine, law, or protection attached to such documents.
(13) The Settling Defendants’ obligations to cooperate as particularized in this Section shall not be affected by the release provisions contained in Section 6 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants.
(14) Subject to Sections 4.1(15) and (16), the provisions set forth in this Section 4.1 are the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery or information or documents from the Releasees. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Releasees, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction.
(15) The Plaintiffs may exercise any rights they have to seek to obtain discovery in the ProceeProceedings as against an officer, director and/or employee of the Settling
Appears in 1 contract
Sources: Class Action Settlement Agreement