Rao et al v. Apple Inc.

Filing 95

Order by Magistrate Judge Virginia K. DeMarchi re 87 Discovery Letter Brief. Discovery Telephone Conference set for 3/12/2019 01:30 PM in San Jose, Courtroom 2, 5th Floor before Magistrate Judge Virginia K. DeMarchi. Parties shall arrange for appearances via CourtCall (866-582-6878). (vkdlc1S, COURT STAFF) (Filed on 2/26/2019)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 Case No.18-cv-02813-EJD (VKD) 8 9 IN RE: MACBOOK KEYBOARD LITIGATION 10 Re: Dkt. No. 87 11 United States District Court Northern District of California ORDER RE FEBRUARY 15, 2019 DISCOVERY LETTER BRIEF 12 13 Plaintiffs seek an order compelling defendant Apple, Inc. to produce all documents, 14 including electronically stored information (“ESI”), responsive to plaintiffs’ first set of document 15 requests by no later than March 15, 2019. Dkt. No. 87. Plaintiffs also seek an order requiring 16 Apple to produce all of the responsive ESI that Apple has already identified by no later than 17 March 1, 2019. Id. 18 The parties agree that, for the purposes of this dispute, the outstanding requests for 19 production are plaintiffs’ Requests Nos. 3-6, which plaintiffs served on August 15, 2018. Id. at 2, 20 4, Ex. A. Plaintiffs say that Apple’s delay in completing its production of responsive documents 21 prevents plaintiffs from scheduling depositions, serving follow-up discovery, and moving 22 expeditiously for class certification. Id. at 2. Apple states that it “will produce on February 15 all documents that could be readily 23 24 identified as responsive to Plaintiff’s documents requests through targeted collection.”1 Id. at 4. 25 However, Apple says that it cannot complete its production of ESI responsive to Requests Nos. 3- 26 6 until it completes an “ESI process” which it says is “well underway.” Id. at 6. Apple points out 27 28 1 The parties jointly submitted their dispute to the Court on February 15, 2019, so presumably Apple has already made this production. 1 that no case management schedule has been set in this case and that Apple’s motion to dismiss is 2 pending before Judge Davila. Id. at 7. 3 This dispute illustrates the critical need for parties to discuss the details of collection, 4 review, and production of ESI early in the case, and to avoid treating this issue as a pro forma 5 obligation that does not require serious effort and discussion. See Fed. R. Civ. P. 26(f)(3)(C). 6 With respect to this particular dispute, Apple has known of the document requests at issue since 7 mid-August 2018, and discovery has not been stayed pending resolution of Apple’s motion to 8 dismiss. It is not clear from the parties’ submission whether Apple has discussed a proposed list 9 of ESI custodians and search parameters with plaintiffs, or whether plaintiffs have made any counterproposals. See id. at 6 (describing February 13 conference of counsel). However, Apple 11 United States District Court Northern District of California 10 concedes that it has not made sufficient progress on its ESI process to be able to provide a 12 completion date for the production of responsive ESI. This is not acceptable, given the amount of 13 time these document requests have been outstanding. 14 Accordingly, the Court orders the following: 15 1. Apple shall produce by no later than March 1, 2019 all responsive ESI that it has identified to date. 16 17 2. If Apple has not already done so, by no later than March 1, 2019, Apple shall provide 18 plaintiffs with a concrete proposal for collection, review, and production of the 19 remaining ESI responsive to plaintiffs’ Requests Nos. 3-6, including but not limited to 20 proposed custodians, search terms, and other search parameters. If Apple has made 21 feasibility assessments regarding the use of particular parameters (e.g., certain search 22 terms yield an excessive number of false positives), it must provide that information to 23 plaintiffs. Apple’s proposal shall include estimated dates for the production of 24 responsive documents on a rolling basis and an estimated date of completion of 25 production. 26 3. If plaintiffs object to Apple’s proposal, the parties shall confer about the proposal by no 27 later than March 6, 2019, unless they mutually agree to a different date for the 28 conference. Plaintiffs shall provide a counterproposal to Apple sufficiently in advance 2 1 2 of the March 6, 2019 conference to allow for a productive and meaningful conference. 4. If the parties have not resolved their dispute regarding the collection, review and 3 production of responsive ESI following the March 6, 2019 conference, the Court will 4 conduct a telephonic discovery conference on March 12, 2019 at 1:30 p.m. to resolve 5 the dispute. Parties shall arrange for appearances via CourtCall (866-582-6878). If the 6 parties do resolve their dispute prior to the March 12, 2019 telephonic discovery 7 conference, they shall so advise the Court, and the conference will be taken off 8 calendar. 9 10 IT IS SO ORDERED. Dated: February 26, 2019 United States District Court Northern District of California 11 12 VIRGINIA K. DEMARCHI United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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