Davidson et al v. Apple, Inc.

Filing 163

(REDACTED) ORDER by Magistrate Judge Howard R. Lloyd re 152 Discovery Dispute Joint Report No. 2; granting 151 Administrative Motion to File Under Seal. (hrllc2S, COURT STAFF) (Filed on 12/14/2017)

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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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Case No.5:16-cv-04942-LHK (HRL)
(REDACTED) ORDER RE DISCOVERY
DISPUTE JOINT REPORT NO. 2

v.

Re: Dkt. Nos. 151, , 152

APPLE, INC.,
Defendant.

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In Discovery Dispute Joint Report #2 (“DDJR #2”), the plaintiffs seek an order compelling

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Apple to produce certain documents and, then, a Fed. R. Civ. P. 30(b)(6) witness to testify about

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them. Apple argues the documents are irrelevant and resists producing them.

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This putative consumer class action is on behalf of purchasers of Apple’s iPhone 6 and 6

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Plus (“iPhone”). Plaintiffs claim these iPhones have a hardware defect that causes their

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touchscreens to become unresponsive to commands on account of the cracking or dislodging of

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certain soldered connections which, as a result, interrupts the electrical connectivity between the

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touchscreens and the rest of the device. This so-called “touchscreen defect” is caused, they say,

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because Apple failed to provide a sufficiently robust external casing, or adequate shielding or

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padding, to protect the solder connections during normal usage of the iPhone.

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Almost immediately after Apple released these iPhones for sale, purchasers unleashed an

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uproar of complaints about the casings flexing or twisting or bending. The uproar became known

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as “BendGate.” In response to BendGate, Apple issued a press release which defended the quality

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of the materials used in the iPhones’ construction. In this litigation, plaintiffs relied on the press

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release as the basis for their cause of action for affirmative fraud. Ultimately, however, the

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presiding judge ruled that the representations in the press release were merely non-actionable

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puffery and dismissed that cause of action with prejudice.
However, the presiding judge upheld plaintiffs’ cause of action for fraud-by-omission.

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That is, the plaintiffs’ claim that Apple knew of the touchscreen defect, but said nothing about it to

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consumers, was a viable cause of action.
The plaintiffs served document requests seeking information about the bending and flexing

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United States District Court
Northern District of California

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of the iPhone cases. When Apple pushed back, plaintiffs dialed back the requests to just the

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BendGate documents. Defendant still said “No” because the presiding judge has tossed the claim

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for affirmative fraud based on BendGate. Plaintiffs counterargument is that BendGate is relevant

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to support their fraud-by-omission cause and action, and the court agrees with plaintiffs. The fact

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that no mention is made in the press release of the touchscreen defect is relevant to their fraud-by-

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omission claim. Internal Apple discussions or communications about what to say or not say in the

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press release are fair game for discovery as to what Apple knew and when did it learn it.

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REDACTED

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Within 10 days from the filing of this order, Apple will produce all documents related to

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(including leading up to) the BendGate press release, including without limitation all ESI, reports,

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memos, meeting minutes, studies, discussion points, and drafts of the press release. If anything is

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withheld on the basis of attorney-client privilege or work product doctrine, simultaneously submit

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a privilege log. Apple will also produce a 30(b)(6) witness to testify about the production.

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Apple’s motion to seal portions of DDJR #2 is granted.
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If an appeal is taken from this order, the order will be stayed until the appeal is resolved.

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SO ORDERED.

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Dated: December 14, 2017

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HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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