Affinity Credit Union v. Apple Inc.

Background

Affinity Credit Union, GreenState Credit Union, and Consumers Credit Union brought a proposed class action against Apple Inc. The plaintiffs allege that Apple unlawfully monopolizes and attempted to monopolize the market for tap-and-pay mobile wallets on iOS devices by restricting access to the near-field communication chips used for contactless payments. The order addressed only a dispute about which Apple employees should be designated as document custodians for discovery.

Legal standards

Federal Rule of Civil Procedure 26 allows discovery of nonprivileged information relevant to a claim or defense and proportional to the needs of the case. The court must limit discovery that is cumulative, duplicative, available from a more convenient source, or otherwise outside the rule’s scope. Rule 34 governs requests for documents and electronically stored information. The party seeking discovery bears the initial burden of showing relevance; the opposing party must then explain why the discovery should not be allowed.

Apex doctrine

The court held that the apex doctrine does not apply to requests for documents. That doctrine is a court-created protection that can limit depositions of high-ranking executives when the discovery may be abusive or harassing and less burdensome sources are available. The court explained that document production usually requires little or no involvement from the executive personally, and that Rule 26 adequately protects against burdensome, expensive, or harassing document discovery.

Custodian-by-custodian rulings

- Tim Cook: The court did not require Apple to designate Cook as a document custodian. The plaintiffs showed only weakly that he might possess responsive documents, and the court found it unlikely that he had noncumulative documents warranting the expense of adding him, given Jennifer Bailey’s role in launching and overseeing Apple Pay. - Eddy Cue: The court required Apple to produce responsive documents from Cue. The plaintiffs showed that Cue possessed potentially unique documents, including correspondence with a Visa executive concerning access to Apple Pay. - Craig Federighi: The court did not require Apple to designate Federighi as a document custodian. Although the plaintiffs showed that he played a key role in developing Apple Pay, the court found that discovery from Federighi could be redundant in light of discovery from other custodians, including Corey Fugman. - Eric Hoffman: The court required Apple to produce responsive documents from Hoffman. The plaintiffs showed that discovery from his records was relevant, including through his appearance in thousands of documents, and Apple did not make a sufficient showing that the requested discovery should be denied. - Corey Fugman: The court required Apple to produce responsive documents from Fugman, but only through 2018. The court found that Fugman was likely to possess relevant documents not held by Kartik Subramanian, who joined Apple in 2018. The plaintiffs may later seek permission to search more recent documents in Fugman’s possession or control if they make a good-faith showing that the discovery is necessary and not duplicative.

Disposition

The court concluded that Cue, Hoffman, and Fugman were appropriate document custodians. Apple may exclude documents from 2019 onward from its searches of Fugman’s documents. The court did not require Apple to designate Cook or Federighi as document custodians. The order resolved a discovery dispute and did not decide the merits of the antitrust claims.