In Re: MacBook Keyboard Litigation

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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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Case No.18-cv-02813-EJD (VKD)

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IN RE: MACBOOK KEYBOARD
LITIGATION

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Re: Dkt. No. 87

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United States District Court
Northern District of California

ORDER RE FEBRUARY 15, 2019
DISCOVERY LETTER BRIEF

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Plaintiffs seek an order compelling defendant Apple, Inc. to produce all documents,

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including electronically stored information (“ESI”), responsive to plaintiffs’ first set of document

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requests by no later than March 15, 2019. Dkt. No. 87. Plaintiffs also seek an order requiring

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Apple to produce all of the responsive ESI that Apple has already identified by no later than

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March 1, 2019. Id.

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The parties agree that, for the purposes of this dispute, the outstanding requests for

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production are plaintiffs’ Requests Nos. 3-6, which plaintiffs served on August 15, 2018. Id. at 2,

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4, Ex. A. Plaintiffs say that Apple’s delay in completing its production of responsive documents

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prevents plaintiffs from scheduling depositions, serving follow-up discovery, and moving

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expeditiously for class certification. Id. at 2.
Apple states that it “will produce on February 15 all documents that could be readily

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identified as responsive to Plaintiff’s documents requests through targeted collection.”1 Id. at 4.

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However, Apple says that it cannot complete its production of ESI responsive to Requests Nos. 3-

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6 until it completes an “ESI process” which it says is “well underway.” Id. at 6. Apple points out

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The parties jointly submitted their dispute to the Court on February 15, 2019, so presumably
Apple has already made this production.

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that no case management schedule has been set in this case and that Apple’s motion to dismiss is

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pending before Judge Davila. Id. at 7.

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This dispute illustrates the critical need for parties to discuss the details of collection,

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review, and production of ESI early in the case, and to avoid treating this issue as a pro forma

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obligation that does not require serious effort and discussion. See Fed. R. Civ. P. 26(f)(3)(C).

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With respect to this particular dispute, Apple has known of the document requests at issue since

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mid-August 2018, and discovery has not been stayed pending resolution of Apple’s motion to

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dismiss. It is not clear from the parties’ submission whether Apple has discussed a proposed list

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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

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United States District Court
Northern District of California

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concedes that it has not made sufficient progress on its ESI process to be able to provide a

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completion date for the production of responsive ESI. This is not acceptable, given the amount of

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time these document requests have been outstanding.

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Accordingly, the Court orders the following:

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1. Apple shall produce by no later than March 1, 2019 all responsive ESI that it has
identified to date.

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2.

If Apple has not already done so, by no later than March 1, 2019, Apple shall provide

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plaintiffs with a concrete proposal for collection, review, and production of the

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remaining ESI responsive to plaintiffs’ Requests Nos. 3-6, including but not limited to

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proposed custodians, search terms, and other search parameters. If Apple has made

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feasibility assessments regarding the use of particular parameters (e.g., certain search

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terms yield an excessive number of false positives), it must provide that information to

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plaintiffs. Apple’s proposal shall include estimated dates for the production of

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responsive documents on a rolling basis and an estimated date of completion of

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production.

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3. If plaintiffs object to Apple’s proposal, the parties shall confer about the proposal by no

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later than March 6, 2019, unless they mutually agree to a different date for the

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conference. Plaintiffs shall provide a counterproposal to Apple sufficiently in advance
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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

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production of responsive ESI following the March 6, 2019 conference, the Court will

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conduct a telephonic discovery conference on March 12, 2019 at 1:30 p.m. to resolve

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the dispute. Parties shall arrange for appearances via CourtCall (866-582-6878). If the

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parties do resolve their dispute prior to the March 12, 2019 telephonic discovery

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conference, they shall so advise the Court, and the conference will be taken off

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calendar.

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IT IS SO ORDERED.
Dated: February 26, 2019

United States District Court
Northern District of California

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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