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