Marcus et al v. Apple Inc.

Filing 67

ORDER RE DISCOVERY ON SAFETY ISSUE AND RE PENDING MOTIONS TO DISMISS. Signed by Judge William Alsup on 3/16/2015. (whasec, COURT STAFF) (Filed on 3/16/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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URIEL MARCUS, BENEDICT
VERCELES, and Others Similarly Situated,
No. C 14-03824 WHA
Plaintiffs,

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v.
ORDER RE DISCOVERY
ON SAFETY ISSUE
AND RE PENDING
MOTIONS TO DISMISS

APPLE INC.,
Defendant.
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The main new allegation in the proposed amended complaint is the safety allegation.

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The Court is concerned that this new theory is an afterthought, never having been previously

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raised. Having considered what counsel say discovery will establish on the safety issue as it

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relates to disclosures in the operating manuals, the Court believes that discovery limited to that

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issue, to be followed by summary judgment submissions thereon, will be the best way to address

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the new safety allegation. This procedure will convert this aspect of the proceedings to partial

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summary judgment mode, but Rule 12 shall continue to apply to the rest.

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Depending on what the discovery shows, the Court will rule on the hybrid Rule 12-

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Rule 56 motion in a few weeks, after the following discovery and submissions are done.

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Meanwhile, the following short summary may assist counsel in appreciating the Court’s

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thinking. As to the CLRA claim, the Court leans toward the view that a claim is stated if the

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consumer uses the item in conformity with the operating manual but nevertheless incurs an
undue risk of safety hazard, meaning an undisclosed risk of serious bodily injury. On the other

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hand, if the operating manual warned of the safety hazards and how to avoid them, then there can

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be no CLRA violation.

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As to the Song-Beverly Act, if consumer adherence to the instructions and warnings in

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the operating manual would eliminate an undue safety hazard, then there is no limited warranty

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problem insofar as safety is concerned. On the other hand, if consumer adherence to the

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instructions and warnings would not eliminate a serious safety risk and the serious safety risk

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renders the unit unfit for use, then there is a defect.

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Plaintiffs shall produce their operating manuals and all paperwork that came with their

this district (having sued here), for up to ninety minutes of deposition questioning by Apple, to

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For the Northern District of California

units, including receipts at least forty hours before their depositions. They shall each then sit, in

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United States District Court

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be followed by up to thirty minutes of plaintiff’s counsel, to be followed by up to however much

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is reserved for re-direct by Apple’s counsel from the ninety minutes. The depositions shall be

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completed by MARCH 31.

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By MARCH 25, Apple shall supply a declaration with exhibits from a person with

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personal knowledge as to the specific operating manuals and other warnings packaged with the

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units sold to plaintiffs, stating with particularity the basis for their knowledge. This will

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necessarily have to rely on Apple’s records and business practices and counsel must take care to

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comply with the rules of evidence. Avoid generalities and hearsay. Supply foundation. No later

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than APRIL 3, the declarant(s) must sit for a deposition with the same time allotments as above

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(ninety plus thirty minutes, etc.).

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By APRIL 8, both sides shall submit a joint appendix of evidence taken in this manner,

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including the declaration and documents, and shall simultaneously submit separate memoranda

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up to ten pages explaining the significance of the evidence. Either side may include, if

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warranted, a Rule 56(d) motion. The issue of what warnings and manuals were supplied with the

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paperwork for the units purchased by our two plaintiffs (and the extent to which it was read and

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followed) is the only issue amenable and allowable for partial summary judgment at this time.

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The foregoing limited discovery is without prejudice to further, later discovery from the

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same individuals as the case moves along. This hybrid procedure is adopted pursuant to Rule 12

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and the case management authority of the Court under Rule 16. Failure to comply with this

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discovery may result in preclusion or adverse inference, among other things. Although the

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opposing submissions today disagree as to what discovery will show, the Court is confident that

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the witnesses will testify in accordance with their oaths.

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IT IS SO ORDERED.

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Dated: March 16, 2015.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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