Davidson et al v. Apple, Inc.

Filing 354

ORDER by Magistrate Judge Virginia K. DeMarchi re 352 Further Expert Depositions. (vkdlc2S, COURT STAFF) (Filed on 3/15/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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THOMAS DAVIDSON, et al.,

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Plaintiffs,

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ORDER RE FURTHER EXPERT
DEPOSITIONS

v.

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Re: Dkt. No. 352

APPLE, INC.,

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United States District Court
Northern District of California

Case No.16-cv-04942-LHK (VKD)

Defendant.

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Defendant Apple, Inc. (“Apple”) asks the Court to order further depositions of two of

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plaintiffs’ experts, Stefan Boedeker and Charles Curley. Plaintiffs acknowledge that a further,

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limited deposition of Mr. Boedeker may be warranted, but oppose a further deposition of Mr.

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Curley.
The Court grants Apple’s request for further depositions of Messrs. Boedeker and Curley,

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subject to the limitations set forth below.

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I.

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BACKGROUND
This is a putative class action regarding alleged defects in the touchscreens of the Apple

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iPhone 6 and iPhone 6 Plus. Pending before the presiding judge is plaintiffs’ third motion for

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class certification. Dkt. No. 341.

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Plaintiffs rely on the expert testimony of Mr. Boedeker regarding a damages model to

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support their motion for class certification under Rules 23(a) and (b)(3) of the Federal Rules of

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Civil Procedure. Id. Apple deposed Mr. Boedeker on January 29, 2018, after he provided his first

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expert report. Dkt. No. 352 at 2. Since then, Mr. Boedeker has provided four additional experts

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reports, including one report that contains the results of a new survey.

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Plaintiffs also rely on the expert testimony of Mr. Curley on technical matters relating to

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the alleged defects in the iPhone 6 and iPhone 6 Plus. See Dkt. No. 174-6. Apple deposed Mr.

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Curley on January 23, 2018, after he provided his first expert report. Dkt. No. 352 at 3, 6. Since

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then Mr. Curley has provided three additional expert reports, including one report that contains the

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results of additional testing performed on the iPhone 6 and iPhone 6 Plus not disclosed in his first

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expert report. Id. at 3-4, 6.

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II.

LEGAL STANDARD
Rule 30(d) limits a deposition to one day consisting of seven hours unless the parties

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stipulate or the Court orders otherwise. Fed. R. Civ. P. 30(d)(1). The Court must permit a further

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deposition of a witness, or permit additional time if fairly needed to examine the witness, to the
extent such deposition is “consistent with Rule 26(b)(1) and (2).” See Fed. R. Civ. P.

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United States District Court
Northern District of California

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30(a)(2)(A)(ii), 30(d)(1). Rule 26(b)(1) permits discovery of nonprivileged matters that are

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relevant to a party’s claim or defense and proportional to the needs of the case. Fed. R. Civ. P

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26(b)(1). Rule 26(b)(2) requires the Court to limit discovery that is unreasonably cumulative or

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duplicative, or that the party seeking discovery has had ample opportunity to obtain, or that is

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outside the scope of permissible discovery described in Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2).

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III.

DISCUSSION

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A.

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Apple wishes to examine Mr. Boedeker regarding matters not disclosed in his first expert

Mr. Boedeker

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report. Plaintiffs object on the ground that Apple has not sought leave of Court to take a further

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deposition of Mr. Boedeker. In addition, plaintiffs argue that the Court should limit any further

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deposition to only matters that Apple did not cover, and could not have covered, in its first

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deposition of Mr. Boedeker. Plaintiffs do not ask the Court to limit the duration of any further

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examination.

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Plaintiffs’ first, procedural objection is moot, as the Court construes Apple’s present

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request for further depositions of Mr. Boedeker and Mr. Curley as a request for leave to take such

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depositions.

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Apple has shown good cause for a second deposition of Mr. Boedeker. It is undisputed
that Mr. Boedeker has prepared several additional experts reports that include new opinions and a
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new survey, and Apple has had no opportunity to examine Mr. Boedeker about this new material.

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However, the crux of the parties’ dispute is whether Apple’s further examination of Mr. Boedeker

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will cover matters that were properly within the scope of his first deposition. Both parties raise

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legitimate concerns. Plaintiffs say that Mr. Boedeker should not have to answer questions about

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matters that Apple covered, or could have covered, in his first deposition, as such examination

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would be duplicative and burdensome. Apple says that, while it will not ask duplicative questions,

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it should be allowed to question Mr. Boedeker about his first survey and methodology as a means

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for understanding his subsequent surveys and methodologies.
The Court resolves these competing concerns as follows: Apple may take a further

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deposition of Mr. Boedeker about the matters disclosed in the expert reports he provided after his

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United States District Court
Northern District of California

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first deposition. Apple may not examine or re-examine Mr. Boedeker about matters disclosed in

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his first expert report; however, Apple may examine Mr. Boedeker about how the survey

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methodologies, survey results, and opinions on which he presently relies compare to his prior

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survey methodologies, survey results, and opinions, including those methodologies, results, and

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opinions disclosed in Mr. Boedeker’s first expert report. Apple’s second deposition of Mr.

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Boedeker shall be limited to seven hours of testimony on the record, unless the parties stipulate

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otherwise.

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B.

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Apple also wishes to examine Mr. Curley regarding matters not disclosed in his first expert

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report. In addition to the procedural objection, resolved above, plaintiffs object on the ground that

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a further deposition of Mr. Curley would be unreasonably cumulative and duplicative, and not

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proportional to the needs of the case. Plaintiffs acknowledge that Mr. Curley has provided three

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additional expert reports since his first deposition, but they argue that these reports only confirmed

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opinions he previously disclosed, and do not change or expand upon those prior opinions.

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Moreover, they point out that Apple chose to depose Mr. Curley after he submitted his first expert

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report in connection with plaintiffs’ initial class certification motion, even though Apple knew Mr.

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Curley would prepare additional expert reports later in the case. Plaintiffs argue that it is unfair to

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permit Apple two opportunities to depose Mr. Curley when ordinarily parties have only one such

Mr. Curley

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opportunity, after the completion of expert reports.

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Although the parties appear to dispute whether Mr. Curley’s most recent expert reports

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contain new opinions, they appear not to dispute that Mr. Curley’s 2019 expert reports disclose

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new laboratory tests and test results that are described in nearly six hours of video. Compare Dkt.

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No. 352 at 4 with id. at 8. Plaintiffs contend that Apple does not identify any new opinion of Mr.

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Curley that is disclosed in his most recent expert reports. Id. at 7. Apple says that Mr. Curley

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does indeed express new opinions about loss of touch responsiveness based on his new tests and

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that these opinions were not disclosed his first expert report. Id. at 4.
None of Mr. Curley’s subsequent reports is before the Court, so it is not possible for the

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Court to determine which party is correct about whether certain of his opinions are new.

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United States District Court
Northern District of California

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However, Mr. Curley’s reliance on the recent disclosure of substantial new test results in support

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of his opinions is sufficient justification for Apple’s further examination of the basis and reasons

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for those opinions. See Fed. R. Civ. P. 26(a)(2)(B)(i). With respect to plaintiffs’ strategic

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concerns, plaintiffs are correct that Apple was not forced to take Mr. Curley’s deposition after his

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first expert report, but neither was Mr. Curley forced to conduct additional testing or change the

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basis and reasons for his opinions. Equally unpersuasive is plaintiffs’ argument that they are

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disadvantaged compared to Apple because “Apple’s expert witnesses have also submitted multiple

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declarations and reports over the same time period.” See Dkt. No. 352 at 7. Unlike Apple,

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plaintiffs do not request a further deposition of any Apple expert or additional time to examine any

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Apple expert, nor have they offered any justification for such relief.

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As described by the parties, the new material in Mr. Curley’s expert reports appears to be

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less extensive than the new material in Mr. Boedeker’s expert reports. Apple may take a further

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deposition of Mr. Curley about the additional testing and test results disclosed in the expert reports

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he provided after his first deposition. Apple may not examine or re-examine Mr. Curley about

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matters disclosed in his first expert report. Apple’s second deposition of Mr. Curley shall be

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limited to four hours of testimony on the record, unless the parties stipulate otherwise.

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IV.

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CONCLUSION
Apple make conduct further examination of Messrs. Boedeker and Curley, subject to the
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limitations described in this order. The parties shall cooperate to schedule these depositions.
IT IS SO ORDERED.
Dated: March 15, 2019

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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United States District Court
Northern District of California

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