Apple Can’t Duck Giving Documents in Privacy LawsuitJoel Rosenblatt
Apple Inc. must show in detail how it’s complying with court orders to turn over evidence in a privacy lawsuit, a judge ruled, saying he can no longer rely on what the company tells him in the case.
U.S. Magistrate Judge Paul S. Grewal in San Jose, California, issued the order after the plaintiffs’ lawyers claimed Apple withheld documents it had previously been ordered to produce. Apple is accused in the lawsuit of collecting data on the locations of customers through iPhones, even after the device’s geo-location feature was turned off.
Grewal, saying he had already “refereed” the dispute, said it was “unacceptable” that Apple waited more than three months to verify whether it complied with his November order to turn over documents.
“Luckily for the plaintiffs, Apple has provided more than enough evidence itself to suggest to the court that it has not fully complied with the court’s order,” Grewal wrote in the March 6 order. “In light of Apple’s performance in this case, the court cannot rely on its representations that this time it really has or will produce all responsive documents.”
Apple’s resistance in the case is increasingly producing orders from Grewal that are forcing it to reveal inner workings that the company normally goes to great lengths to hide.
Apple is also accused in the lawsuit of failing to tell customers that its iOS operating system allowed third parties to collect and monitor personal information from iPhones and iPads without their consent. Apple said in a court filing it has closely guarded some documents in the case because it and millions of its customers might be harmed if the information were “inadvertently released to the public or fell into the wrong hands.”
Separate from the document requests, plaintiffs are also seeking class-action status from the court, which Apple argues should be denied because they haven’t shown that any users had personal information collected without their consent, and as a result, can’t show they suffered any harm.
As an immediate remedy to the documents at issue, Grewal ordered Apple to submit a detailed account by March 8 of how it collects and evaluates the documents it’s required to give the plaintiffs. The company must identify search terms it used, the dates of searches, individuals subject to the searches, and how many documents it turns up, he said.
“The court wants to know how Apple limited its production,” Grewal wrote. He said he will then review Apple’s explanation and determine whether it has made a “good faith and reasonable effort.”
Steve Dowling, an Apple spokesman, didn’t immediately respond to an e-mail yesterday seeking comment on the order. Two company spokeswomen, Colleen Patterson and Lauren Vroom, also didn’t immediately respond to an e-mail yesterday seeking comment on it.
At a March 5 hearing before Grewal, Ashlie Beringer, a lawyer for Apple, said the company’s failure to produce e-mails from Steve Jobs and other senior executives in violation of Grewal’s November order was a “mistake.”
Beringer said she and her team of lawyers reviewed more than 8,000 e-mails over the previous weekend and determined that they should turn over messages involving Apple’s late co-founder Jobs, Phil Schiller, its marketing chief, and Scott Forstall, the former head of mobile software, among others.
Grewal’s order was triggered by that admission, along with another by Lynn Miller, Apple’s senior litigation manager. Miller said in a court filing that through “inadvertence” the company had failed to produce six documents it was required to give to plaintiffs. Those documents were included in a motion by Apple to dismiss the case.
In Grewal’s order, plaintiffs lawyers also won the right to see Apple documents concerning its process of reviewing applications for its mobile devices. The company redacted the information in part, it said, because the information is “incredibly sensitive and valuable and is a closely guarded trade secret,” according to a court filing.
Phillip Shoemaker, Apple’s Director of App Review, submitted a filing in the case last month explaining how disclosure of the review process would jeopardize Apple and “create real risk” to millions of users of its products, according to the filing.
Shoemaker cited an instance in which an application developer learned the identity of an Apple app reviewer, and that he was attending an overseas conference.
“The developer also signed up for the conference and implied that he would kill the reviewer when they met,” Shoemaker said in the filing.
Grewal in his order rejected such concerns, writing that Apple admits that in the course of the litigation it has revealed Shoemaker and two app reviewers and the company “admits that none of the various harms it describes in its papers have come to pass.”
Grewal ordered Apple to submit the app review process documents unredacted under an “attorneys-eyes-only” designation if it is warranted.
The case is In re Apple Inc. iPhone/iPad Application Consumer Privacy Litigation, 11-md-02250, U.S. District Court, Northern District of California (San Jose).
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