Smith v. Apple, Inc.

Background

This putative class action concerns alleged defects in Apple watches. The plaintiffs allege that sudden battery swelling can cause a watch screen to detach, shatter, or crack, exposing sharp edges and causing the watch to fail or injure a user.

The plaintiffs sought to disclose Apple information designated “CONFIDENTIAL—ATTORNEYS’ EYES ONLY,” or AEO, to their two experts, Glen Stevick, Ph.D., P.E., and Rong Yuan, Ph.D., P.E. The parties’ protective order required a party seeking to disclose AEO information to an expert to provide information including the expert’s identity and résumé, current employers, persons or entities that had paid or funded the expert’s work or received professional services, and litigation in which the expert had provided testimony, declarations, or reports during the preceding five years.

The plaintiffs disclosed information required by some provisions of the protective order. They provided a list of cases in which the experts had testified at depositions or trials and a list of 1,553 clients of the experts’ firm, Berkeley Engineering and Research, Inc. The plaintiffs did not identify other matters in which the experts had submitted declarations or reports, received compensation, or provided professional services. The opinion says the experts had no written record of all such matters, so producing that information would require a manual review of 1,553 case files.

Parties’ Positions

Apple argued that the client list did not identify whether the experts worked on particular matters or provide the case number, filing date, or court location. Apple said it needed that information to determine whether the experts had worked for Apple’s competitors or on products presenting a competitive concern. Apple proposed alternatives, including identifying battery-related matters or a subset of the files for review.

The plaintiffs argued that a manual review would be excessively burdensome and unlikely to help. They relied on the list they had produced, the experts’ lack of competitive decision-making authority, and the experts’ promises to follow the protective order. The plaintiffs also contended that the list did not identify any Apple competitor.

Analysis

The court explained that protective orders are interpreted according to their terms and in a reasonable, common-sense way connected to their purpose. The relevant purpose here was to ensure that discovery information was used only for this case. The court also stated that Federal Rule of Civil Procedure 26(c) gives district courts broad control over discovery and discretion to adjust protective-order terms when necessary.

The court reviewed the list and found that it did not identify a potential competitor. It concluded that Apple was entitled to more information to assess competitive risk, but a file-by-file review was not required on this record because it was unlikely to produce useful information. The court noted possible alternatives, including asking the experts whether they recalled work involving watch manufacturers, identifying particular competitors or areas of concern, or selecting a subset of files.

The court distinguished a case cited by Apple because that earlier case involved an expert refusing to provide known information. Here, by contrast, the missing information could not be obtained without a manual review that appeared unlikely to reveal relevant information. The court also concluded that the logistical difficulty of perfectly complying with the protective order should not effectively prevent the plaintiffs from using their experts.

Order

The court ordered Apple to provide, within two weeks, any additional information it wanted the experts and plaintiffs to consider. The examples included competitor information, areas of concern such as other watch manufacturers or batteries, and a subset of files. The plaintiffs could raise any excessive burden. The experts were to submit supplemental declarations within two weeks after Apple provided its additional information. The order states: “This disposes of ECF No. 65.”