Apple Inc. has asked a federal judge to remove Cotchett, Pitre & McCarthy principals Joseph Cotchett and Mark Molumphy as lead plaintiffs attorneys in the multidistrict litigation over allegations that the company throttled aging iPhones, citing a “blatant and very serious violation” of a protective order.
In an April 9 motion for sanctions, Apple lawyer Theodore Boutrous, of Gibson, Dunn & Crutcher in Los Angeles, said both attorneys disclosed “highly confidential” documents during a hearing last month in San Jose on a renewed motion to dismiss the litigation. Such a “serious and intentional breach” of a protective order “directly attack[ed] the integrity of the proceedings before the court.”
“While even honest mistakes are unacceptable in this context, that is not what happened here. Mr. Cotchett and Mr. Molumphy made the calculated decision to violate the protective order,” Boutrous wrote. “Mr. Cotchett and Mr. Molumphy have proven themselves unwilling to respect the orders of the court. The documents at issue contain sensitive information not only about Apple’s business, but also about individual employees.”
Cotchett did not respond to a request for comment, and Molumphy declined to comment. Both are based in Burlingame. Their response is due April 23. But in an email last month, the lawyers criticized Apple for what they called its “mass designations of total secrecy.”
“These documents, amongst many others, demonstrate that Apple improperly used its mass designations to try to shield its practices from public scrutiny,” Cotchett wrote in a March 12 email attached to Apple’s sanctions motion.
Apple has asked for a May 30 hearing.
The lawsuits, coordinated before U.S. District Judge Edward Davila, allege that Apple surreptitiously slowed the speeds of certain iPhones. Apple has insisted that the decreased performance speed was necessary in order to stop unexpected shutdowns.
In October, Davila granted Apple’s dismissal as to some of the claims.
Plaintiffs attorneys filed a second amended complaint under seal, and both sides are fighting over how to craft a redacted version. Apple moved to dismiss again Jan. 24, which plaintiffs attorneys opposed Feb. 14.
According to Apple’s sanctions motion, Cotchett and Molumphy both quoted from two documents designated “highly confidential—attorneys’ eyes only” in open court at a March 7 dismissal hearing. The documents are sealed exhibits attached to their court filing opposing Apple’s renewed motion to dismiss. The documents involve internal discussions among Apple employees about how to respond to issues relating to the problems with the iPhone batteries, including “proposed plans of action” and speculation about the root cause, the motion says. They also disclosed employee names and contact information.
Such actions, the motion says, violated an Oct. 15 protective order that both sides agreed to in the case. That order required that a “party who seeks to introduce protected material at a hearing, pretrial or other proceeding, shall advise the court at the time of introduction that the information sought to be introduced is protected.”
Apple attorney Christopher Chorba, a Gibson Dunn partner in Los Angeles, brought up the violation in court, requesting that the transcript be sealed—a move that Cotchett didn’t oppose, according to the motion. Attached to the motion are emails that Chorba wrote after the hearing to Cotchett and Molumphy concerning their “blatant and very serious violation” of the protective order.
“When Apple wrote to plaintiffs’ counsel after the hearing about this clear violation of the protective order, Mr. Cotchett did not take responsibility or offer to take remedial steps; instead, he made false statements and threatened both Apple and its counsel with retaliatory motion practice, in violation of the applicable ethical rules,” Boutrous wrote in the motion.
In a March 12 email, Cotchett insisted that he had told Chorba he intended to disclose the confidential documents at the hearing. Further, he wrote, Chorba only raised concerns “after your client approached you from the back of the courtroom and voiced displeasure that Apple’s e-mails were being presented to the court.”
Chorba, in a March 13 email, called that account “false, irrelevant and offensive.” He then accused Cotchett of making “false statements, distractions and threats” and having a “blatant misunderstanding of your ethical obligations.”