A US magistrate has ordered Apple to show in great detail how it goes about searching for documents it has been ordered to provide to plaintiffs in an ongoing personal information–slurping lawsuit, noting that he no longer trusts Cupertino's efforts to be on the up-and-up.
"Luckily for 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," Judge Magistrate Paul Grewal wrote in his order on Wednesday.
"In light of Apple's performance in this case," Grewal wrote, "the court cannot rely on its representations that this time it really has or will produce all responsive documents."
Because of Apple's bobbing and weaving in the discovery phase of "In Re: iPhone/iPad Application Consumer Privacy Litigation 11-md-02250", transferred to the Northern District of California in August 2011 and presided over by judge Lucy Koh of Samsung patent-litigation fame, Grewal has ruled that "Apple shall file with the court a detailed account of the discovery process it has used in this case."
And Grewal defined "detailed": "Specifically," he wrote, "Apple shall identify in table format the search terms used, the dates on which it performed the searches, any individual custodians or central sources subject to each set of terms used in the searches, and the number of responsive documents."
And it must turn over all that information by 5pm this Friday.
This Thursday – one day after Grewal's order – Koh denied Apple's request for a summary-judgement dismissal of the case. "This court agrees with Judge Grewal's conclusion that Apple's failure to comply with its discovery obligations is unacceptable," she wrote when denying that motion. "Moreover, at this point, the Court cannot rely on Apple's representations about its compliance with its discovery obligations."
Apple is not getting much love from the US District Court, Northern District of California, San Jose Division, in the case, which has been joined by 38 plaintiffs and which charges that Apple invaded users' privacy by tracking the movements when they perambulated with their iPhones or iPads.
And it's not difficult to understand why the court is displeased. For one, at a hearing on February 28, Apple's outside counsel informed the court that out of 100,000 potential documents, only 3,000 were delivered to the plaintiffs in the case.
"The court wants to know how Apple limited its production," Grewal wrote, succinctly.
In addition, both Apple's outside counsel and its Senior Litigation Manager Lynn Miller admitted at a March 5 hearing that Apple in fact has yet to produce "other responsive documents," Grewal wrote.
"Apple waited over three months from this court's order requiring it to produce responsive documents to actually check whether it had done so," Grewal wrote. "This is unacceptable."
Among the documents that Apple would prefer not to turn over to the plaintiffs are what it has referred to as "highly confidential processes and procedures by which Apple reviews apps for compliance with its guidelines, as well as documents and communications," along with the names of its app reviewers.
Bloomberg reports that one reason Apple gave for wanting to redact app reviewers names was for their personal protection. Apple's director of app review Phillip Shoemaker explained in a February court filing that in one instance an app developer learned the identity of an app reviewer and found out that the reviewer was going to attend 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 wasn't buying it.
"Although Apple represents to the court that it is somehow entitled to redact 'incredibly sensitive and highly confidential' irrelevant information," Grewal wrote, "Apple does not explain why the protective order to which it agreed and which provides an attorneys-eyes-only designation for 'highly confidential' information is insufficient here."
That protective order covers trade secrets, product development information, engineering and testing documents, employee information, and what Grewal described as "other non-public information of similar competitive and business sensitivity." Such information would be limited by the "attorneys-eyes-only" limitation of the protective order.
That's good enough for Grewal. And now Apple has until 5pm Friday Pacific Time to explain in great detail to Grewal exactly how it is combing through those 100,000 documents, and if the magistrate is unsatisfied with Cupertino's explanations, it's a safe bet that the discovery phase of In Re: iPhone/iPad Application Consumer Privacy Litigation 11-md-02250 will drag on. And on.
As we publish this story here at San Francisco's Vulture Annex, Apple has barely two hours to comply with Grewal's order. We can only imagine that there is some hurried and harried activity underway at this very moment in Cupertino. ®