Barrett et al v. Apple Inc. et al

Filing 217

REDACTED ORDER by Magistrate Judge Virginia K. DeMarchi re 141 , 201 Discovery Dispute re Defendants' Production of Named Plaintiffs' Data. (vkdlc2, COURT STAFF) (Filed on 5/24/2023) Modified on 5/24/2023 (vkdlc2, COURT STAFF).

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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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CARL BARRETT, et al.,
Plaintiffs,

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v.

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United States District Court
Northern District of California

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APPLE INC., et al.,
Defendants.

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Case No. 20-cv-04812-EJD (VKD)
REDACTED ORDER
ORDER RE DISCOVERY DISPUTE RE
DEFENDANTS' PRODUCTION OF
NAMED PLAINTIFFS’ DATA
Re: Dkt. Nos. 141, 201

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On March 28, 2023, the Court held a hearing on four discovery-related disputes, including

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the parties’ dispute regarding defendants’ production of structured data relating to the named

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plaintiffs’ gift cards sold at retail during the class period. See Dkt. Nos. 141, 158. Following the

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hearing, the Court ordered the parties to confer further regarding “the categories of information

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plaintiffs seek and what data sources defendants maintain that contain that information,” and to

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provide a status report regarding their efforts to resolve their dispute. Dkt. Nos. 159, 165, 192.

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On May 12, 2023, the parties provided a status report and asked the Court to resolve three

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remaining issues involving the following data sources maintained by defendants: (1) XxxxXxxxx

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data source, (2) XxX database, and (3) Xxxx. Dkt. No. 201 at 5-15. The Court held a further

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hearing on the matter on May 23, 2023. Dkt. No. 213. Having considered the parties’

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submissions and the oral argument presented, the Court orders as follows:

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1.

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The Court understands that defendants have agreed to produce data from the XxxxXxxxxx

XxxxXxxxxx data source

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data source for all data fields used by defendants’ fraud team in connection with gift card fraud

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associated with the named plaintiffs’ gift card numbers. As discussed at the hearing, defendants

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must investigate whether the data they have now produced from XxxxXxxxx includes all of the

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input data fields reflected in defendants’ list of XXX Xxxxxx xxxxxx that come from

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XxxxXxxxx. In addition, as discussed at the hearing, defendants must share with plaintiffs, on an

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informal basis, an explanation of what information is contained in any “new” data fields—i.e. the

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“xxxx xxx xxxx” referenced in Dkt. No. 201 at 4-6 as well as any additional fields sourced from

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XxxxxxXxxxx in the list of XXxx xxxx xxxxxx.

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United States District Court
Northern District of California

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Defendants must complete this production and disclosure as soon as possible, but no later
than June 2, 2023.
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XXX database

In their original discovery dispute submission, plaintiffs explained that they seek

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information reflecting the timing of payments to Apple for gift cards that were purchased in

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connection with fraud and the resulting payments by Apple to Apple developers associated with

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those cards. Dkt. No. 141 at 2. Specifically, they relied on Request for Production No. 23 which

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asks for “Structured Data reflecting or relating in any way to transactions involving Gift Cards

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sold at retail during the Relevant Time Period, efforts to identify those gift cards involved in fraud,

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and the identities of fraud victims, including . . . (f) the disposition of any value paid for or stored

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on each card, including amounts that were retained by Apple, as a commission, fee, charge, or

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other compensation to Apple, any amounts that were refunded to the purchaser or paid to Apple

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Developers, and any commissions or other amounts retained by or paid to the selling merchant;

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[and] (i) any date or time information which would indicate when any of the above information

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was received by Apple, when and how funds flowed in connection with each card (i.e., from the

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purchaser to the retailer to Apple to an Apple Developer), and when and how any analysis,

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determination or identification of fraud took place.” Dkt. No. 141-2. During the March 28, 2023

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hearing, plaintiffs advised the Court that they wanted defendants to produce structured financial

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data reflecting Apple’s payments to third-party integrators. See Dkt. No. 176 at 44:17-20, 48:14-

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49-24, 55:23-56:10.

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Plaintiffs now explain that defendants maintain the relevant financial information they seek
in an XxX database. Dkt. No. 201 at 9-10. At plaintiffs’ request, defendants produced “sample
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data” from this XXX database on April 29, 2023. Id. at 8-9. Apparently, that data reflects that the

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xxxi database contains information about “credit memos” Apple sends to integrators. Id. at 9. For

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purposes of this dispute, plaintiffs ask the Court to order defendants to provide answers, on an

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informal basis, to the following questions: (1) Are the credit memos sent to integrators limited to

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deactivations? (2) Are there any other functions of credit memos sent to integrators? (3) Can the

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credit memos resulting from deactivation be identified in the XXX database, and if so, how? Id.

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Defendants object to providing this information on several grounds, but their principal objection is

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that this is the kind of substantive information plaintiffs should be required to obtain by deposition

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and defendants should not be required to provide the information on an informal basis through

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counsel.
The Court agrees that the information plaintiffs seek is the kind of information a party is

United States District Court
Northern District of California

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expected to obtain through formal discovery. Plaintiffs insist that the parties agreed to provide

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this information informally. They refer the Court to section 7 of the stipulated ESI Order (Dkt.

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No. 72), which states in relevant part: “To the extent any request calls for the production of data

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maintained or stored in a database, the parties shall meet and confer in an attempt to agree upon

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the form of production, including the specific fields, tables and other information that will be

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produced. The parties agree to identify the specific databases, by name, that contain the relevant

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and responsive information that parties produce and will meet and confer over the scope of

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additional information that may be requested regarding such databases.” Dkt. No. 72 at 4. This

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provision requires the parties to share information that identifies relevant databases and related

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sources of information, but nothing in section 7 requires a party to provide substantive information

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about the function of credit memos or how those memos are reflected in the XXX database.1
Plaintiffs suggest that they were deprived of an opportunity to take the necessary

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deposition discovery because defendants did not produce the xxx sample data until April 23, 2023

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and defendants’ witnesses, Lara Bennett and Neesha Thakkar, could not answer plaintiffs’

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To the extent plaintiffs rely on a separate agreement between the parties, there is nothing in the
record that documents the agreement that the Court could properly enforce. See Civil L.R. 7-12
(discussing stipulations filed with the court).
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questions about the credit memos. Dkt. No. 201 at 10. Defendants respond that neither witness

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was required to be prepared to answer these questions, as they were not Rule 30(b)(6) corporate

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representatives. Id. at 11 n.10. Defendants point out, without contradiction, that plaintiffs never

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served a Rule 30(b)(6) deposition notice on this topic during the class certification discovery

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period, even though plaintiffs were aware of defendants’ use of credit memos based on documents

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produced “well before the depositions of Apple employees that occurred in the fall of 2022.” Id.

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at 11.

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United States District Court
Northern District of California

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While it is troubling that defendants appear to have produced relevant and responsive data
from the XXX database only after the deadline to complete class certification fact discovery, the

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underlying dispute at Dkt. No. 141 concerns plaintiffs’ requests for documents, not deposition

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testimony. The Court is not persuaded that plaintiffs are entitled to obtain informally from

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defendants’ counsel the substantive information that they now say they need when there is no

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dispute about production of the underlying documents. For this reason, the Court denies

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plaintiffs’ request for an order requiring defendants to answer the three questions about credit

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memos, described above.

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3.

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The Court will resolve the parties’ dispute about the Xxxxxx data source after the Court

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XXXXX

receives the declaration(s) the Court has ordered defendants to provide. See Dkt. No. 215.
IT IS SO ORDERED.
Dated: May 24, 2023

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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