Apple Inc. is in hot water over its handling of discovery in a user privacy class action.
In a 13-page order issued on Wednesday, U.S. Magistrate Judge Paul Grewal in San Jose concluded that Apple likely violated a discovery order in the case by failing to produce key documents, including emails from deceased CEO Steve Jobs. The U.S. district judge overseeing the case, Lucy Koh, concurred with Grewal's findings in an order issued on Thursday.
iPhone owners sued Apple in 2010, alleging that the company gave private customer information to third-party app developers in violation of California's unfair competition law. San Francisco-based Audet & Partners LLP serves as liaison counsel for the plaintiffs, while Manhattan-based KamberLaw LLC is interim lead plaintiffs counsel.
The plaintiffs lawyers filled a motion to compel in September 2012, claiming that Apple refused to comply with valid document requests. Judge Grewal granted the motion in November, although he also ruled that some of the plaintiffs' requests were overbroad.
At a hearing before Judge Koh on February 28, a lawyer for the plaintiffs pointed out that Apple's recently filed motion for summary judgment relied on ten documents that Apple hadn't turned over during discovery. Koh asked Apple's counsel, S. Ashlie Beringer of Gibson Dunn, whether the company had compiled with Grewal's November discovery order. Beringer responded that the missing documents were versions of contracts that Apple had already produced. "I am confident that all documents Plaintiffs have sought have been produced," she said. Beringer added that Apple's lawyers had reviewed 100,000 Apple documents, and that only 3,000 of them were relevant to discovery requests.
Beringer corrected herself at a March 5 hearing before Judge Grewal. She said that her colleagues reviewed 8,000 documents over the previous weekend, including emails from Jobs and other top-level Apple execs, and realized that some needed to be produced. She said that company would be in compliance with its discovery obligations by March 18. Beringer called the failure to produce the documents "a mistake."
The flipflop did not sit well with Grewal. "Apple waited over three months from this court's order requiring it to produce responsive documents to actually check whether it had done so. This is unacceptable," he ruled. Grewal went on to add, "In light of Apple's performance in this case, the court cannot rely on [the company's] representations that this time it really has or will produce all responsive documents. Apple now must show the court that it has complied with its discovery obligations." The judge ordered Apple to explain its discovery processes in a brief due March 8 at 5 p.m. Grewal said that he would then determine if Apple had acted in good faith.
Koh wrote on Thursday that she "concurs" with Grewal. Koh denied Apple's motion for summary judgment, ruling that Apple can't make that request until it has complied with its discovery obligations.
We contacted plaintiffs counsel Audet and Apple counsel Beringer for comment, but neither immediately responded.