Plaintiffs attorneys at Cotchett, Pitre & McCarthy fired back this week at Apple’s attempt to remove them from their leadership positions in a lawsuit over alleged iPhone throttling, calling the computer giant’s sanctions bid a “manufactured controversy.”
Apple Inc. has sought sanctions against principals Joseph Cotchett and Mark Molumphy for what it claims was their “blatant and very serious violation” of a protective order in lawsuits coordinated before U.S. District Judge Edward Davila of the Northern District of California. Apple proposed removing both lawyers from their appointed posts as co-lead plaintiffs counsel and barring them from viewing confidential documents in the case.
But, on Tuesday, both lawyers filed a joint opposition to those sanctions, denying that they violated the protective order. They also insisted that Apple’s motion was simply an attempt at halting more damaging discovery from coming out.
“Apple’s overreaching motion for sanctions is a manufactured controversy, the latest scorched-earth tactic designed to frustrate the litigation process and extract procedural advantage,” Molumphy wrote. “Apple’s conduct does not reflect a serious desire to resolve the parties’ issues, but rather tactical and punitive motives to delay this case and malign their adversaries.”
Molumphy declined to comment. Both he and Cotchett are based in Burlingame, California.
The lawsuits alleged that Apple purposely slowed the speeds of certain iPhones, but Apple has countered that doing so was necessary to prevent the devices from having unexpected shutdowns.
In October, Davila granted Apple’s dismissal as to some of the claims. Plaintiffs lawyers filed a second amended complaint under seal, and both sides were fighting over how to craft a redacted version in the weeks leading up to the sanctions issue (they filed a redacted version of the second amended complaint Wednesday). Apple moved to dismiss again Jan. 24, which plaintiffs attorneys opposed Feb. 14.
In their sanctions motion, Apple’s lawyers, Theodore Boutrous and Christopher Chorba, of Gibson, Dunn & Crutcher in Los Angeles, accused the Cotchett Pitre lawyers of disclosing “highly confidential” documents, filed as sealed exhibits to their opposition to dismiss, in open court at a March 7 hearing over its renewed motion to dismiss the lawsuits. The documents involved internal discussions among Apple employees about how to respond to issues relating to the problems with iPhone batteries.
Apple has insisted that the disclosure of confidential information violated an Oct. 15 protective order, which stated 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 has asked for a May 30 hearing.
Neither Boutrous nor Chorba responded to requests for comment.
Cotchett and Molumphy denied they violated the protective order. In an attached declaration, Cotchett insisted that he told Chorba at the start of the hearing that he planned to read from portions of the sealed exhibits. Chorba did not object but, at the end of the hearing, requested sealing the transcript of the hearing.
In their opposition, Cotchett and Molumphy called the sanctions motion a “litigation and public relations tactic.”
“Forced to confront these disturbing and, at times, embarrassing facts alleged in the second amended complaint, Apple now seeks sanctions on plaintiffs’ counsel for referring to these allegations to oppose Apple’s motion to dismiss at a court hearing that Apple itself noticed,” Molumphy wrote. “Most troubling, Apple now has used the pendency of its motion as a basis to delay all discovery, including the production of records and depositions of its employees.”
Even if they had violated the protective order, Molumphy added in his opposition filing, the sanctions that Apple is seeking are “unprecedented and grossly disproportionate to the alleged violation.”
“The alleged violation was an isolated event at a hearing before this court,” Molumphy wrote. “There is never before been any issue regarding plaintiffs’ good faith efforts to comply with the P.O. To the contrary, plaintiffs’ counsel have bent over backwards to ensure that protected material is properly protected, including notifying Apple and its counsel when it appears that it has inadvertently filed privileged or protected materials with the court.”