In Re: MacBook Keyboard Litigation

Background

The parties asked the court to resolve a discovery dispute concerning Apple's request to claw back deposition testimony. Apple argued that testimony by its designated witness, Jeffrey LaBerge, inadvertently disclosed a communication protected by the attorney-client privilege. The plaintiffs argued that the testimony was not privileged.

Apple had designated LaBerge under Federal Rule of Civil Procedure 30(b)(6) to testify about topics related to Apple's handling of the alleged keyboard defect. During questioning about Apple's repair options, Apple's counsel instructed LaBerge to answer only to the extent the discussion did not involve legal advice. LaBerge then gave the testimony at issue.

Legal standard

The attorney-client privilege protects confidential communications between a client and a lawyer made for seeking or providing legal advice or representation. The court explained that the privilege protects communications, not facts. The parties agreed that California law governed the privilege question. They had also stipulated to a protective order allowing the clawback of inadvertently disclosed privileged information.

Court's analysis

For purposes of the dispute, the court accepted Apple's representation that Apple had consulted legal counsel about the subject discussed in the deposition. But the court was not convinced that LaBerge's testimony clearly disclosed a privileged communication. The question asked by the plaintiffs called for a factual answer, and Apple's objection was described as a cautionary instruction aimed at protecting the privilege rather than an objection to the question itself.

The court concluded that acknowledging a discussion with legal counsel did not necessarily reveal a privileged communication. It also agreed with the plaintiffs that, standing alone, a statement about what Apple decided to do would be a fact rather than privileged legal advice. However, because LaBerge's statement referred to a discussion with counsel, the testimony could be understood as revealing that counsel advised Apple to make the decision. It could also be understood as disclosing only what Apple decided, without revealing the advice.

The court therefore found the testimony ambiguous. It stated that the resolution did not depend on whether either side had met its burden of proof; instead, some remedy was warranted because the testimony plausibly could be understood to disclose legal advice.

Order and remedies

The court required Apple to choose one of two options:

1. Redact only the specified portion of LaBerge's answer at page 102, line 19, while leaving the remainder of the testimony intact. 2. Redact the entire answer at page 102, lines 19–22, and allow the plaintiffs to depose LaBerge again for no more than 30 minutes. The follow-up questioning could address Apple's decision but could not ask what legal advice Apple received or how that advice affected the decision.

Apple had to make its election and notify the plaintiffs in writing by March 24, 2020. The court said the parties could agree to a different remedy. If either side sought review by the presiding judge under Rule 72(a), the deadline would be stayed while that review was pending. The order was signed by Virginia K. DeMarchi, United States Magistrate Judge.