Kannan v. Apple Inc.

Background

Raja Kannan was initially represented by Karen Ford, but the court granted Ford’s withdrawal in January 2020, after which Kannan proceeded without a lawyer. Kannan’s retained economic-damages expert, Stanley Stephenson, said he would not sit for a deposition unless Kannan provided an attorney to represent him during it.

Apple and Kannan repeatedly discussed scheduling Stephenson’s deposition and Kannan’s responses to Apple’s discovery requests. The parties stipulated to several deadline extensions. After a discovery hearing, Judge DeMarchi told Kannan that Apple would serve Stephenson with a subpoena and advised Kannan to obtain a lawyer for the litigation or at least for the expert’s deposition.

Apple then attempted to have Stephenson accept service of the subpoena by email. When that did not happen, Apple personally served him at his home. The subpoena listed Palo Alto as the deposition location, but the parties understood that the deposition would occur by video. Stephenson later objected to traveling to Palo Alto, raised concerns about COVID-19 restrictions, and withdrew as Kannan’s expert. Kannan claimed that Apple’s lawyers had intimidated or improperly influenced Stephenson.

Motions and arguments

Kannan filed one motion to continue expert discovery and pretrial deadlines. He filed another motion seeking to disqualify Apple’s defense counsel, impose monetary sanctions, and allow a “redo” of expert discovery. He argued that Apple’s lawyers violated California professional-conduct rules by:

- emailing Stephenson directly; - serving the subpoena at Stephenson’s home; - identifying Palo Alto as the deposition location; and - communicating with Joseph Klatt, whom Kannan said might represent him.

Kannan also argued that these actions caused Stephenson to withdraw and justified extending the deadlines and repeating expert discovery.

Court’s analysis

Federal courts use state law when deciding whether to disqualify a lawyer. The court concluded that Kannan had not shown unethical conduct.

First, the court found no ethical rule that barred Apple’s lawyers from directly contacting an opposing party’s expert in the circumstances presented. Apple contacted Stephenson to ask whether he would accept electronic service of the subpoena and to confirm his withdrawal. The court distinguished a case involving an attempt to hire the opposing party’s expert, explaining that the contact here was limited to the discovery process and service of the subpoena.

Second, the court found that Apple properly used the federal subpoena rules after Judge DeMarchi directed Apple to subpoena Stephenson. The court also found that, because of COVID-19 shelter-in-place orders, Apple had no choice but to serve Stephenson at his home. Although the subpoena listed Palo Alto, Apple told Kannan—and Kannan told Stephenson—that the deposition would be conducted by video.

Third, the court said Apple’s counsel had an ethical obligation to contact Joseph Klatt to determine whether Klatt represented Kannan, because the ethical rules prohibit directly contacting a represented party. The court also found that Kannan identified no rule or case requiring Apple’s counsel to tell Stephenson that he did not have to communicate with Apple’s lawyers.

Disposition

The court denied Kannan’s motion to disqualify defense counsel. For the same reason, it denied his request for sanctions and to “redo” expert discovery. It also denied his request to extend expert-discovery and pretrial deadlines because he had not shown cause for an extension. The court’s conclusion states that Kannan’s motions to continue expert discovery and to disqualify and sanction defense counsel were denied.