Trujillo v. Apple Computer, Inc. et al

Filing 117

RESPONSE by Jose Trujilloin Opposition to MOTION by Defendant Apple Computer, Inc. for summary judgment 53 (Attachments: # 1 Exhibit Group Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K, # 12 Exhibit Exhibit L, # 13 Exhibit Exhibit M)(Rowe, James)

I.
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
Subject and responds to and without as follows: waiver ofthe foregoing objections and conditions, Apple objects

OBJECTIONS
JOSE TRUJILLO, individually and on behalf of all others similarly situated,

AND RESPONSES

REQUEST FOR ADMISSION NO.1: CASE NO.: 07-CV-04946 Judge Kennelly
Admit that Apple first offered June 29, 2007. RESPONSE TO REQUEST FOR ADMISSION NO.1: its iPhone for sale to the public in the United States on

Plaintiff, v.
APPLE COMPUTER, corporation corporation, INC., a California LLC, a Georgi

Admitted. REQUEST FOR ADMISSIONNO.2:
Admit that the iPhone RESPONSE TO REOUEST is a sealed unit with its battery soldered FOR ADMISSION "sealed NO.2: on the inside" are vague and on the inside of the: device.

co
1 .D 1 £ X W 4J

and AT&T MOBILITY

Defendants.

Apple objects that the phrases

unit" and "soldered

DEFENDANT APPLE INC.'S RESPONSE TO PLAINTIFF'S FIRST REQUESTS FOR ADMISSION
Pursuant (hereinafter Trujillo's to Rule 36 of the Federal hereby submits Rules of Civil Procedure, responses Defendant Apple Inc. Jose

ambiguous

in this context.

Apple states that the iPhone is not intended battery.

to be serviced

by users

and does not contain a user-replaceable REQUEST FOR ADMISSION NO.3:

Apple denies the remainder.

"Apple")

the following

and objections

to Plaintiff

Admit that the iPhone battery cannot be changed and/or replaced by the consumer himself, but instead must be sent to Apple for service.

First Requests In responding

for Admission. Apple does not concede Apple's the relevance response or materiality of the

to any request,

RESPONSE TO REQUEST FOR ADMISSION NO.3:
Apple states that the iPhone offers battery replacement REQUEST service. does not contain a user-replaceable battery and that Apple

I'

request or of the subject to which the request refers. subject to and without privilege or referred proceedings. Apple's responses to these requests waiver of any objections

to each request relevancy,

is made

as to the competency,

materiality, provided in any

Apple denies the remainder. NO.4: a battery replacement program, for which Apple charges

or admissibility

as evidence

for any other purpose, given herein,

of any of the information matter thereof,

FOR ADMISSION

to, or of any of the responses

or of the subject

Admit that Apple maintains $79.00 plus $6.95 for shipping

and handling. FOR ADMISSION a program NO.4: for out-of-warranty battery service: and that

are based upon the facts and information its investigation ofthe

presently to this

RESPONSE

TO REQUEST

known and available

to it. Apple discovery

has not completed

facts relating

Apple states that it has established the advertised charge for that service

case, has not completed that might be held.

in this action, and has not completed to the following prejudice requests

preparation

for any trial presently at trial

is $79.00

plus $6.95 for shipping

and handling.

Any responses

are based on information right to provide

REQUEST FOR ADMISSION NO.5: Admit that the temlS of Apple's battery replacement program were not disclosed in advance of the iPhone's launch. RESPONSE TO REQUEST FOR ADMISSION NO.5: Denied.

known to Apple and are given without evidence are subject of any subsequently to amendment discovered

to Apple's

or introduce all answers

information.

As a consequence,

provided

and/or

supplementation

by Apple as discovcry

continues.

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ltEQUEST

FOR

ADMISSION

NO.6: enclosed manuals disclose and/or papers included with the

RESPONSE TO REQUEST FOR ADMISSION NO.9:

Admit that nowhere

in the packaging,

Denied.
REOUEST FOR ADMISSION NO. 10: Admit that on January 9, 2007 Steve Jobs, CEO of Apple, unveiled the iPhone at Apple's MacWorld Expo in San Francisco, CA.

iPhone at the time of purchase program

does Apple specifically

that its battery replacement

will cost $79.00 plus $6.95 for shipping TO REQUEST FOR ADMISSION

and handling. NO.6: battery replacement program is not however, by an Apple The and

RESPONSE

Apple states that the cost of the out-of-warranty specifically the packaging service provider disclosed in the packaging or materials

RESPONSE TO REQUEST FOR ADMISSION NO. 10: Apple admits that on January 9, 2007, Steve Jobs, CEO of Apple, unveiled the iPhone at the MacWorid Conference and Expo in San Francisco, CA. Except as specifically admitted, Apple denies the remainder of the Request. REQUEST FOR ADMISSION NO. 11: Admit tllat in his speech at the January 9, 2007 Macworld Expo in San Francisco, CA, Steve Jobs, CEO of Apple, made no mention ofthe following facts:

included

in-box with the iPhone; may need to be replaced

and the in-box materials and refer consumers

state that the battery

to www.apple.comlbatteries replacement program -

for further information. $79, plus $6.95 shipping

specific cost information

for the battery

handling

-

is directly accessible from this webpage.
FOR ADMISSION NO.7: and/or promotional materials used by Apple prior to the replacement

REQUEST

Admit that in no marketing iPhone's program, launch, excluding

a. b. c.

That the iPhone battery was not user-replaceable. That tile iPhone battery could only be serviced by Apple. That the iPhone battery replacement program would cost consumers $79.00 plus $6.95 for shipping and handling.

its website,

did Apple disclose

the terms of its battery and handling.

specifically

the cost of $79.00 plus $6.95 for shipping FOR ADMISSION disclosed NO.7:

RESPONSE

TO REQUEST

Apple admits that its website replacement program on several

the terms and specific

costs ofthe

iPhone

battery time, it

RESPONSE TO REQUEST FOR ADMISSION NO. 11: Apple admits that during his keynote address on January 9, 2007, at the Macworld Conference and Expo in San Francisco, Mr. Jobs did not state: a. b. that tlJe iPhone battery was not user-replaceable. tllat the iPhone battery could only be serviced by Apple.

different

webpages,

and Apple states that, at the present that specifically disclosed

is not aware of other marketing the iPhone out-of-warranty

or promotional replacement

materials program

the cost of

battery

prior to the iPhone's

launch.

REQUEST FOR ADMISSION NO.8: Admit that when the iPhone was first released to tile public for sale on June 29, 2007, that the cost of the battery replacement under Apple's battery replacement program did not appear on Apple's website. RESPONSE TO REQUEST FOR ADMISSION NO.8:

c.

that tlJe iPhone battery replacementprogram would cost consumers $79.00
plus $6.95 for shipping and handling.

REQUEST FOR ADMISSION NO. 12: Admit that between January 9, 2007 and June 29, 2007, Apple issued no press release
that stated the cost of its battery RESPONSE TQ REQUEST replacement FOR program. NO. 12: is vague and ambiguous Apple admits in

Denied.
MOUEST FOR ADMISSION NO.9:

ADMISSION

Admit that the terms of Apple's battery replacement program, and specifically the cost of same, did not appear on Apple's website until after the iPhone was offered for sale to the United
States public.

Apple objects this context. Subject

on the ground to and without legended

that the phrase "press release" waiving the foregoing between

objections, January

that it did

not issue a statement specifically

as a "press

release"

9, 2007, and June 29, 2007, program.

stating the cost of Apple's

out-of-warranty

battery

replacement

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REOUEST FOR ADMISSION NO. 13: Admit that between January 9, 2007 and June 29, 2007, Apple issued no press release that disclosed the fact that the iPhone battery is not user replaceable. RESPONSE TO REOUEST FOR ADMISSION NO. 13: Apple objects on the ground that the phrase "press release" is vague and ambiguous in this context. Subject to and without waiving the foregoing objections, Apple admits that it did not issue a statement legended as a "press release" between January 9, 2007, and June 29, 2007, specifically disclosing that the iPhone battery is not user-replaceable; however, Apple provided iPhones to members of the press in advance of the product's introduction and their independent reviews ofthe iPhone appeared in major newspapers on June 27,2007, two days before the iPhone went on sale. Each ofthese published reviews noted that the iPhone battery was not userreplaceable. Walter Mossberg stated in his June 27, 2007, review in the Wall Street Journal, "Like the iPod, but unlike most cellphones, the iPhone lacks a removable battery." Edward Baig stated in his June 27, 2007, review in USA Today, iPhone "doesn't have a removable battery. . . . You'd have to send the device to Apple or presumably a third party to swap a spent battery." David Pogue stated in his June 27, 2007, review in the New York Times, "Eventually, you'll have to send the phone to Apple for battery replacement, much as you do now with an iPod, for a fee." REOUEST FOR ADMISSION NO. 14: Admit that on or about June 29, 2007, Apple's web page located at www.apple.com/batteries did not disclose the cost of the battery replacement program. RESPONSE TO REOUEST FOR ADMISSION NO. 14: Apple admits that the webpage, www.apple.comlbatteries. did not disclose the cost of the

REOUEST FOR ADMISSION NO. 15: Admit that on or about June 29,2007, Apple's webpage located at www.apple.comlsupportliphone/service program. RESPONSE TO REOUEST FOR ADMISSION NO. 15: Apple admits that the webpage, www.apple.comlsupport/iphone/service. did not disclose did not disclose the cost of the battery replacement

the cost of the out-of-warranty battery replacement program on June 29, 2007; however, Apple states that the cost of the battery replacement program was disclosed on two immediately subordinate iPhone support webpages on June 29, 2007: www.apple.comlsupport/iphone/service/battery and www.apple.com/support/iphone/service/faq.

In addition, the cost of the battery replacement program was also disclosed on Apple's webpage, www.apple.com/batteries/replacements.htrnl. REOUEST FOR ADMISSION NO. 16: Admit that on or about June 29, 2007, Apple's web page located at www.apple.com/batteries/iphone.html program. RESPONSE TO REOUEST FOR ADMISSION NO. 16: Apple admits that the webpage, www.apple.com/batteries!ipllOne.htrnl. did not disclose did not disclose the cost of the battery replacement from June 29, 2007 to the present.

the cost of the out-of-warranty battery replacement program on June 29, 2007; however, Apple states that the cost of the battery replacement program was disclosed on three other Apple webpages, each of which was uploaded and accessible on June 29, 2007. The cost of the battery replacement program was disclosed on the webpage, www.apple.com!batteries/replacements.html. www.apple.com!support!iphone/service!battery REOUEST FOR ADMISSION NO. 17: Admit that after June 29, 2007 and up to December 3 1,2007, Apple's web page located at www.apple.comJbatteries!iphone.htmldid program. RESPONSE TO REOUEST FOR ADMISSION NO. 17: Apple admits that the webpage, www.apple.com/batteries!ipllOne.html. did not disclose not disclose the cost oftlle battery replacement as well as on two Apple iPhone support WebPages: and www.apple.com!support!iphone!service!faQ.

iPhone out-of-warranty battery replacement program on June 29, 2007; however, Apple states that the cost ofthe battelY replacement program was disclosed on three other Apple webpages, each of which was uploaded and accessible on June 29, 2007. The cost of the battery replacement program was disclosed on the webpage, www.apple.com/bllH~ries/replacements.html. www.apple.com/batteries. which is directly linked to the webpage,

In addition, the cost of the battery replacement program was

disclosed on two Apple iPhone support webpages: www.apple.com!su11lJOrt/ipllOne!service!battery and www.apple.com!support/iphone!service/faQ.

the cost of the out-of-warranty battery replacement program after June 29, 2007, and up to

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December 31,2007; however, Apple states that the cost of the battery replacement program was disclosed on three other Apple webpages, each of which was uploaded and accessible from June 29,2007, to the present. The cost of the battery replacement program was disclosed on the webpage, www.apple.com/batterieslreplacements.html. as well as on two Apple iPhone support and

present. In addition, the cost of the battery replacement program was also disclosed on Apple's webpage, www.apple.com/batterieslreplacements.html. REOUEST FOR ADMISSION NO. 20: Admit that Apple charges its consumers a 10% restocking fee upon return of an opened iPhone even if the iPhone is returned in accordance with Apple's J4-day return policy. RESPONSE TO REOUEST FOR ADMISSION NO. 20: Apple admits that it has a policy conceming restocking fees for open-box iPhone returns to its retail stores and that, if charged, the fee is ]0% of the purchase price. However, a restocking fee is not charged in every instance of an open-box iPhone return; therefore, Apple denies the Request except as specifically admitted. REOUEST FOR ADMISSION NO. 21: Admit that Apple's 10% restocking fee would have cost Plaintiff, upon return of his opened 4GB iPhone within the 14 day retum period, approximately $49.90. RESPONSE TO REOUEST FOR ADMISSION NO. 21: Apple lacks sufficient infonnation about the specific circumstances under which Plaintiff might have returned his iPhone to permit it to admit or deny and on that basis denies the Request. REOUEST FOR ADMISSION NO. 22: Admit that the cost of Apple's battery replacement program is not disclosed on the exterior ofthe box and/or packaging in which the iPhone is sold. RESPONSE TO REOUEST FOR ADMISSION NO. 22: Apple states that the cost ofthe out-of-warranty battery replacement program is not specifically disclosed on the exterior of the box and/or packaging in which the iPhone is sold; however, the feature label on the outside of each iPhone box states: Battery has limited recharge cycles and may eventually need to be replaced by App]e service provider. Battery life and charge cycles vary by use and settings. See www.apple.com/batteries. The webpage, www.apple.com/batteries. provides infonnation regarding rechargeable from June 29, 2007 to the present.

webpages: www.apple.com/support/iphone/service/battery www.apple.com/supporlliphone/ service/faq. REQUEST FOR ADMISSION NO. 18:

Admit that after June 29, 2007 and up to December 31, 2007, Apple's web page located at www.apple.com/batteries did not disclose the cost ofthe battery replacement program. RESPONSE TO REOUEST FOR ADMISSION NO. 18: Apple admits that the webpage, www.apple.com/batteries. did not disclose the cost of the iPhone out-of-warranty battery replacement program after June 29, 2007 and up to December 31, 2007; however, Apple states that the cost of the battery replacement program was disclosed on three other Apple webpages, each of which was uploaded on June 29, 2007, and accessible from June 29, 2007 to the present. The cost ofthe battery replacement program was disclosed on the webpage, www.apple.com/batteries/replacements.html. webpage, www.apple.comlbatteries. which can be directly accessed from the

In addition, the cost ofthe battery replacement program

was disclosed on two Apple iPhone support webpages: www.apple.comlsupport/iphone/service/batterv REOUEST FOR ADMISSION NO. 19: Admitthat after June 29, 2007 and up to December 31, 2007, Apple's web page located at www.apple.com/support/iPhone/service program. RESPONSE TO REOUEST FOR ADMISSION NO. 19: Apple admits that the webpage, www.apple.com/support/iphone/service. did not disclose did not disclose the cost ofthe battery replacement and www.apple.comlsupport/iphone/service/faq.

the cost of the out-of-warranty battery replacement program after June 29, 2007 and np to December 31, 2007; however, Apple states that the cost of the battery replacement program was disclosed on two other immediately subordinate iPhone support webpages: www.apple.com/supporlliphone/service/battery and www.apple.com/suPPOlt/iphone/service/faq. litllium-ion batteries, and specific cost information for the battery replacement program is accessible through a.direct link to another Apple webpage, www.a]JPle.com/batteries/replacements.html. In addition, specific cost infonnation for tile

These webpages were uploaded on June 29, 2007, and have been accessible from that date to the

iPhone battery replacement program is also available on the following Apple webpages: www.apple.com/support/iphone/service/battery ,f-2449073 7 ,[.2449073 and www.apple.com/supportliphone/service/faq.

REQUEST FOR ADMISSION NO. 23: Admit that the iPhone Product Guide, included in the box and/or packaging in which the iPhone is sold, does not disclose the cost of Apple's battery replacement program. RESPONSE TO REQUEST FOR ADMISSION NO. 23: Apple states that the cost of the out-of-warranty battery replacement program is not specifically disclosed in the iPhone Important Product Information Guide included in-box with the iPhone; however, the iPhone Important Product Information Guide states: Never attempt to repair or modif'y iPhone yourself. iPhone does not contain any user-serviceable parts, except for the SlM card and SlM tray. .. The rechargeable battery in iPhone shonld be replaced only by an Apple Authorized Service Provider. For more information about batteries, go to www.apple.com/batteries. The webpage, www.apple.comfbatteries, provides infonnation regarding rechargeable

REQUEST FOR ADMISSION NO. 25: Admit that on or about Jn1y 5, 2007, Jennifer Hakes was employed as a spokesperson Apple. RESPONSE TO REQUEST FOR ADMISSION NO. 25: Admitted. REQUEST FOR ADMISSION NO. 26: Admit that on or about July 5, 2007 Jelmifer Hakes said Apple posted the battery replacement details on its website after the iPhone went on sale. RESPONSE TO REQUEST FOR ADMISSION NO. 26: Denied. REQUEST FOR ADMISSION NO 27. Admit that Apple had knowledge of the tenns of its battery replacement program, including the cost to its consumers, prior to June 29, 2007. RESPONSE TO REQUEST FOR ADMISSION NO. 27: Admitted. REQUEST FOR ADMISSION NO. 28: Admit that the terms of Apple's battery replacement program only appeared on www.apple.com. and/or any of its website's sub-pages, after Apple received a complaint from the Foundation for Consumer and Taxpayer Rights. for

lithium-ion batteries, and specific cost information for the battery replacement program is accessible tluough a direct link to another Apple webpage, www.aDP]e.comlbatterieslreplacements.html. In addition, specific cost information for the

, iPhone battery replacement program is also available on the following Apple webpages: www.apple.com/suPDortliphone/servicelbattery REQUEST FOR ADMISSION NO. 24: Admit that nowhere in or on the box/packaging, enclosed mannals, and/or papers included with the iPhone at the time of purchase does Apple direct the consumer to its web page:
.

and www.apple.com/supportliphone/service/faq.

www.apple.com/supportliPhone/service/batterv

.

RESPONSE TO REQUEST FOR ADMISSION NO. 24: Apple adnlits that the iPhone box and enclosed materials do not contain a specific reference to the webpage, www.apple.com/supportliPhone/service/battery; however, the box and

enclosed materials do refer consumers to Apple's general battery infonnation page at www.apple.com/batteries. which contains a direct link to a webpage disclosing the specific costs of the iPhone battery replacement program, www.apple.comfbatteries/replacements.html. is a direct link from www.apple.com/batterieslreplacements.html
www.aDPle.com/suDPortliPhone/ service/battery.

There

to

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IlliSPONSE TO ImQUEST FOR ADMISSION NO. 28: Denied.

Dated:

February

1L2008

RespectfUIJYSUbmi~ APPLE INC.

~#

By:
Patrick T. Stanton (#6216899) Edward S. Weil (#6194191) Schwartz Cooper Chartered 180 North LaSalle Street, Suite 2700 Chicago, Illinois 60601 [phone] a1ld Penelope A. Preovolos (admitted pro hac vice) Andrew D. Muhlbach Johanna W. Roberts (admitted pro hac vice) Morrison & Foerster LLP 425 Market Street San Francisco, California 94105 [phone]

/"7

One of Its Attorneys

~~
;

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