Kannan v. Apple Inc.

Filing 120

Order by Magistrate Judge Virginia K. DeMarchi re 108 Administrative Motion for Relief from Standing Order; 110 Joint Discovery Letter Brief re Apple Inc.'s Request to Compel Plaintiff's Document Production and Privilege Log; 112 Joint Discovery Letter Brief re Apple Inc.'s Request for Production, Set Two and the Continued Deposition of Plaintiff; 113 Discovery Letter Brief in Response to Plaintiff's Discovery Dispute re Protective Order for Medica l Records; 114 Discovery Letter Brief in Response to Plaintiff's Discovery Dispute re Compliance with Court Order; 115 Discovery Letter Brief in Response to Plaintiff's Discovery Dispute re 30(b)(6) Deposition. (vkdlc1S, COURT STAFF) (Filed on 9/25/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVSION

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RAJA KANNAN,

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Plaintiff,

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ORDER RE DISCOVERY DISPUTES

v.

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Re: Dkt. Nos. 108, 110, 112, 113, 114, 115
APPLE INC.,

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United States District Court
Northern District of California

Case No.17-cv-07305-EJD (VKD)

Defendant.

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The parties in this case have asked the Court to resolve a number of discovery disputes.

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Dkt Nos. 108, 110, 112, 113, 114, 115. The Court held a hearing on all disputes on September 24,

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2019. Dkt. No. 117. For the reasons stated on the record, and as further described below, the

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Court resolves the disputes as follows:

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I.

MR. KANNAN’S MOTIONS

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A.

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Plaintiff Raja Kannan moves to compel Apple’s compliance with the Court’s prior

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discovery order issued on July 11, 2019 (Dkt. No. 105). Mr. Kannan seeks sanctions for Apple’s

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alleged non-compliance. Apple contends that it has complied with the Court’s prior order.

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Dkt. No. 108 (Ex. 1) and Dkt. No. 114

This dispute arises principally from a disagreement between the parties regarding the scope

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of the document requests at issue in the Court’s July 11 order. Mr. Kannan’s document requests

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are neither as comprehensive nor as clear as he believes them to be, and Apple’s document

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production is not as complete as it should have been. The Court resolves the dispute as follows:

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1. For each of Mr. Kotni’s employees1 during the relevant time period2, Apple must

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produce documents containing information similar to that found in the “options and

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awards summary” produced with respect to Mr. Kannan at APL-KANNAN_00000384.
2. For each of Mr. Kotni’s employees during the relevant time period, Apple must

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produce bi-weekly pay statements with redactions that are no more extensive than the

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redactions reflected in the year-end pay statements Apple has already produced, such

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as APL-KANNAN_00004010.
3. Apple must complete its production of compensation calibration sheets and

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compensation planning guidelines applicable to Mr. Kotni’s employees during the

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relevant time period, including for the years 2011 and 2012.

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4. For each of Mr. Kotni’s employees during the relevant time period, Apple must

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Northern District of California

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produce documents sufficient to show the contractors or employees who reported to

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each such employee of Mr. Kotni.

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5. For each of Mr. Kotni’s employees during the relevant time period, Apple must

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produce documents sufficient to show the job level of that employee, his or her

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promotion to a different job level, and the effective date of any such change in job

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level. The Court understands that Apple believes it has already produced this

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information. If, upon further review, Apple concludes that its production of this

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information is not complete, Apple may provide this information in the form of

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spreadsheet reflecting the output of a database query.
6. To the extent Apple maintains a database or other repository of information that may

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be queried to provide a report(s) or spreadsheet(s) showing, for each of Mr. Kotni’s

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employees during the relevant time period, the employee’s compensation, stock

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awards, bonuses, and dividends, Apple must produce that information in report or

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spreadsheet form. Apple need only produce the information that is kept in the ordinary

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“Mr. Kotni’s employees” refers to the eight Apple employees (in addition to Mr. Kannan) who
reported to Mr. Kotni during the relevant time period.
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The “relevant time period” is January 1, 2011 through December 31, 2018.
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course of business. Apple is not required to manually create a report or spreadsheet

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from its records.

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Apple must produce these documents no later than October 1, 2019. If Apple cannot comply with

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this deadline with respect to item 6, above, it shall so inform Mr. Kannan and the Court, and it

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shall provide a date by which it will complete its production. The Court concludes that no

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sanctions are warranted at this time.

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B.

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Mr. Kannan moves to compel a Rule 30(b)(6) deposition of Apple on 27 topics. Mr.

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Dkt. No. 108 (Ex. 2) and Dkt. No. 115

Kannan’s motion is granted in part and denied in part as follows:
Apple shall designate and prepare one or more witnesses to testify as to Topics Nos. 1-17

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Northern District of California

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and 21-24. As to all topics that concern Mr. Kotni’s employees, the relevant time period is

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January 1, 2011 through December 31, 2018. As to all topics that concern Mr. Kannan, the

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relevant time period is the time period during which he worked for Mr. Kotni, except that as to

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Topics Nos. 1 and 6, the relevant time period encompasses the period just prior to Mr. Kannan’s

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transfer to his position under Mr. Kotni during which Apple allegedly canceled Mr. Kannan’s

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bonus and/or stock award. Topic No. 9 is further limited to the bonus guidelines applicable to

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contributor level 4, contributor level 5, and manager level 1 employees.

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Apple shall designate and prepare one or more witnesses to testify as to Topic No. 18, but

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only with regard to the contractors or employees who reported to each of Mr. Kotni’s employees

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during the relevant time period.

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Apple need not designate a witness to testify as to Topics Nos. 19 and 20.

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If it has not already done so, Apple must advise Mr. Kannan of the names of its corporate

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designees, the topics for which each such person is designated, and the dates each is available for

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deposition no later than September 27, 2019.

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The Court defers ruling on Mr. Kannan’s motion to compel deposition testimony with

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respect to Topics Nos. 25-27 at this time. To the extent Apple contends that Mr. Kannan violated

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Apple company policies or applicable laws and intends to rely on such violations in the defense of

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this action, Apple shall so advise Mr. Kannan, and Mr. Kannan may take discovery of that
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defense, subject to the Court’s resolution of any disputed claim of attorney-client privilege or

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attorney work product protection. Apple shall advise Mr. Kannan of its defense contentions and

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its assertions of privilege/protection (if any) no later than October 8, 2019. Thereafter, if the

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parties continue to dispute whether Apple should be required to provide testimony on Topics Nos.

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25-27, or dispute the scope of such testimony, they shall bring the issue to the Court’s attention for

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resolution using the discovery dispute procedures described below.

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C.

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Mr. Kannan seeks a protective order with respect to certain medical records produced in

Dkt. No. 108 (Ex. 3) and Dkt. No. 113

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response to third party subpoenas Apple issued. The Court resolves this dispute as follows:

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Apple must contact each of the medical providers on whom it served a subpoena and

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Northern District of California

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inquire whether the provider can re-produce the records to include only the information

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specifically called for in the subpoena, and if so, how long the provider requires to re-produce that

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material. Apple shall file a status report no later than September 27, 2019 advising the Court of

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the results of its inquiries and, if appropriate, suggesting further action to fully resolve this dispute.

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II.

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APPLE’S MOTIONS
A.

Dkt. No. 110
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Mr. Kannan’s Privilege Claims

Apple moves to compel the production of responsive documents Mr. Kannan withheld on

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the basis of various privileges. Mr. Kannan relies on a privilege log dated September 10, 2019.

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Apple contends that the privilege log is inadequate and that Mr. Kannan has waived any privileges

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by failing to timely assert them. The Court resolves this dispute as follows:

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Mr. Kannan’s privilege claims are much delayed and his privilege log is entirely

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inadequate to support his claims of privilege. Specifically, the documents at issue and the

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privileges asserted are not described with sufficient particularity to permit the Court to assess the

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privilege claimed. See Fed. R. Civ. P. 26(b)(5)(A); Burlington N. & Santa Fe Ry. Co. v. U.S.

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District Court, 408 F.3d 1142, 1149 (9th Cir. 2005). Mr. Kannan must prepare a privilege log that

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complies with the requirements of Rule 26(b)(5) of the Federal Rules of Civil Procedure and Ninth

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Circuit law. Mr. Kannan’s counsel must personally review and assess each document for which a
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privilege is asserted before making the claim of privilege and may not merely rely on Mr.

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Kannan’s characterization of the documents. Mr. Kannan must serve his privilege log on Apple

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no later than October 8, 2019.

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Mr. Kannan’s Document Production

Apple also moves to compel Mr. Kannan’s production of documents responsive to Apple’s

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Requests for Production Nos. 11, 12, 14, 15, 16, 18, 19, and 21. Mr. Kannan objects to some of

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these requests and insists his production is complete as to others, or that he does not know what

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Apple believes is missing. The Court resolves this dispute as follows:
1. RFP Nos. 11 and 12: Apple must provide to Mr. Kannan a list of responsive emails or

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other documents for which Apple contends it is missing the attachments. Mr. Kannan

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United States District Court
Northern District of California

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will have one week from receipt of that list to search for and produce those attachments

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if he has them.

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2. RFP Nos. 14, 15, 16, and 21: Mr. Kannan must complete his production of responsive

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documents, with the exception of those as to which he claims a privilege, by October

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1, 2019.

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3. RFP Nos. 18 and 19: Mr. Kannan need not produce documents reflecting his wife’s

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development of software applications; except, however, he must produce responsive

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documents reflecting software applications developed by any person using Mr.

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Kannan’s Apple-issued computer equipment, whether those responsive documents are

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currently stored on Mr. Kannan’s Apple-issued computer equipment or elsewhere. Mr.

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Kannan must produce these documents by October 1, 2019.

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B.

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Apple moves to compel a further deposition of Mr. Kannan. Mr. Kannan resides in India

Dkt. No. 112

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and apparently has no plans to travel to the United States in the near term. Apple advises that it

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requires no more than three hours of additional deposition time with Mr. Kannan. Mr. Kannan

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objects to further deposition and particularly objects to further deposition in the United States.

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The Court resolves this dispute as follows:

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Apple has made a showing that some documents it sought in discovery in advance of Mr.
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Kannan’s May 1, 2019 deposition were not timely produced. In addition, it appears that Mr.

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Kannan may have withheld an unknown quantity of documents on grounds of privilege, which

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Apple contends he has waived. The Court concludes that some further deposition of Mr. Kannan

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is likely warranted; however, the Court is prepared to require that the further deposition proceed

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by videoconference and that it be limited to no more than three hours.
The parties have expressed concern regarding whether Mr. Kannan’s deposition can be

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conducted—even with his consent—while he is in India, without resorting to Hague Convention

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procedures.3 The Court orders the parties to research this point, confer, and jointly advise the

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Court of their views about whether Mr. Kannan may be deposed by videoconference while in

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India. In addition, the parties shall investigate the availability of suitable videoconferencing

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Northern District of California

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facilities. The parties must file a status report no later than October 1, 2019 regarding these

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matters. The status report shall be limited to 1,000 words total and no more than 500 words per

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party.

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III.

OTHER DISCOVERY MATTERS

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A.

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The parties may file for the Court’s review and approval a proposed stipulated protective

Revised Protective Order

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order that includes a designation for “outside counsel’s eyes only” or “attorneys’ eyes only”

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material by September 25, 2019. If they do not file a proposed protective order by that date, the

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Court will enter a protective order based on this district’s Model Protective Order for Litigation

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Involving Patents, Highly Sensitive Confidential Information and/or Trade Secrets (available on

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the Court’s website at https://cand.uscourts.gov/model-protective-orders), modified to account for

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this Court’s dispute resolution procedures.

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B.

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If it has not already done so, no later than September 27, 2019, Apple must advise Mr.

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Deposition Scheduling

Kannan of the dates each of the following witnesses is available for deposition: Kiram Kunder,

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The parties may wish to consult the State Department’s website for India as an aid to their
research. https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-CountryInformation/India.html
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Moazam Raja, Rahul Rastogi, and Joseph Kotni.

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C.

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As the parties have not successfully cooperated in bringing discovery disputes to the Court

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for resolution in compliance with the Court’s Standing Order for Civil Cases, the Court orders the

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parties to comply with the following additional, more specific procedures with respect to all future

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disputes:

Discovery Dispute Resolution Procedures

1) The conference of lead counsel must take place within 3 court days of one party’s

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demand for the call.

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2) After the call, the party seeking relief from the Court must provide a draft of its portion

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of the joint submission to the opposing party within 2 court days of the conference of

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Northern District of California

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lead counsel.
3) The opposing party must provide a draft of its portion of the joint submission within 4

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court days of the conference of lead counsel.

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4) The party seeking relief may revise its portion of the joint submission and provide that

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revision to the opposing party by 11:00 a.m. on the fifth court day following the

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conference of lead counsel.
5) The opposing party may revise its portion of the joint submission and provide that

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revision to the party seeking relief by 4:00 p.m. on the fifth court day following the

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conference of lead counsel.

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6) The party seeking relief will make no further revisions to the joint submission and will

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file the joint submission by 5:00 p.m. on the fifth court day following the conference of

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lead counsel.

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If any party fails to comply with these procedures in a material way, that party and/or its counsel

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will be subject to sanctions, including an adverse determination of the matter in dispute.

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D.

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Nothing in this order relieves the parties of their obligation to seek relief from the

Case Management Deadlines

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presiding judge with respect to the case management deadlines that have been set in this case.

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IT IS SO ORDERED.
Dated: September 25, 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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