Davidson et al v. Apple, Inc.

Filing 132

NOTICE OF HEARING AND INTERIM ORDER re 129 Discovery Dispute Joint Report No. 1. Discovery Hearing set for 11/8/2017 01:30 PM in Courtroom 2, 5th Floor, San Jose before Magistrate Judge Howard R. Lloyd. Lead counsel shall appear in person. Signed by Magistrate Judge Howard R. Lloyd on 10/26/2017. (hrllc2S, COURT STAFF) (Filed on 10/26/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 THOMAS DAVIDSON, et al., Plaintiffs, 13 NOTICE OF HEARING AND INTERIM ORDER RE DISCOVERY DISPUTE JOINT REPORT NO. 1 v. 14 15 Case No.5:16-cv-04942-LHK (HRL) APPLE, INC., Defendant. 16 Re: Dkt. No. 129 17 18 The parties in this putative consumer class action have filed Discovery Dispute Joint 19 Report #1 (“DDJR#1”) because they cannot agree on a protocol to control the inspection and 20 testing of the plaintiffs’ allegedly defective iPhones. 21 22 The court sets a hearing on DDJR#1 for November 8, 2017 at 1:30 PM. Lead counsel shall appear in person. 23 The court wishes counsel to be particularly prepared to address the following: 24 1. 25 26 27 28 Is there information, data, or diagnostic markers in the iPhones that are accessible only to Apple? 2. Can Apple, on account of proprietary diagnostic tools, analyze or interpret data accessed or extracted from the iPhones in a way that plaintiffs cannot? 3. Apple tells the court that plaintiffs can discover the same “underlying facts” 1 2 3 through their own testing as Apple can through its testing. Define “underlying facts.” 4. Identify and describe what are “non-proprietary tests” as that phrase was used by the parties. 4 5. Can Apple describe its proprietary tests? 5 6. Is identifying or describing a test to be run disclosing work product? Does it matter 6 if the test is proprietary or non-proprietary? How about the test results? 7 7. 8 “factual”? 9 8. Is any data accessed or extracted from the iPhones “work product,” or is it simply Apple’s description of “non-destructive” testing seems to leave room for alteration, correction, deletion, or addition of data during a test so long as it does not “permanently alter the 11 United States District Court Northern District of California 10 physical appearance or functionality of the iPhones.” Is that correct? Does it matter? 12 13 14 9. How would the neutral expert know (or, how would plaintiffs know if the test were described to them), that a test was non-destructive? 10. Since the plaintiffs’ claim appears to be based on an internal hardware defect, and 15 all agree that the phone case is not to be opened, what type of test might be destructive of 16 something important? 17 11. How would anyone know if something had been “destroyed”? 18 12. Would creation of a mirror image of each iPhone prior to testing be sufficient 19 20 protection in the event of any “destruction” during testing? The court encourages the parties to meet and confer again to try to reach agreement on a 21 test protocol. They are surely better informed than this court on testing and on smart phone 22 technology and ought to be able to craft something that will take into account and fairly balance 23 their legitimate interests. 24 25 SO ORDERED. Dated: October 26, 2017 26 HOWARD R. LLOYD United States Magistrate Judge 27 28 2

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