Judge Says Apple|Can’t Be Trusted

SAN JOSE (CN) - Disturbed by Apple's unwillingness to cooperate, a federal judge denied its motion for summary judgment in a class action accusing it of collecting, storing and distributing personal information without users' consent.

Consumers sought class certification on Dec. 17, 2012, and Apple "sought repeatedly and unsuccessfully to have its summary judgment heard before plaintiffs' motion for class certification," U.S. District Judge Lucy H. Koh wrote in her order.

Since then, Apple has failed to comply with several court orders to produce documents and misrepresented at a Feb. 28 hearing this year that it had complied, Koh found.

"Unfortunately, the representations made by Apple's counsel are not correct," Koh wrote. "For example, despite the fact that this court ordered substantial completion of document production in this case by Sept. 15, 2012, and the fact that Magistrate Judge Grewal's Nov. 21, 2012 order compelled Apple to produce documents responsive to plaintiffs' discovery requests, Apple has not fully complied with its discovery obligations. Judge Grewal at the March 5, 2013 motion to compel hearing asked Apple's counsel point blank: 'Is your production complete today or not in response to that [Nov. 21, 2012] order?' Apple's counsel responded, 'Your honor, it is not complete today.'" (Brackets in judge's order.)

Koh continued: "Despite Apple's counsel's February 28, 2013 representations to this Court that all responsive documents had been produced, Apple's counsel did not review e-mails in the files of the senior executives, namely Steve Jobs, Phil Schiller, Greg Joswiak, and Scott Forstall, until the weekend of March 1-3, 2013. Apple's counsel claims 'these individuals did not have active involvement in these issues.' This claim is surprising in light of the email showing that Steve Jobs, then Apple CEO, personally demanded that Apple software engineers immediately design and release a software update to fix the so-called 'bug' which overrode users' setting of Location Services to 'off.'" (Citations to transcripts omitted.)

Koh also was concerned about Apple's claim that it could redact information from the documents it did supply. Of the more than 100,000 documents collected and reviewed, Apple claims only 3,000 are relevant to discovery.

Koh said she has heard enough.

"This court concurs with Judge Grewal's conclusion that Apple's failure to comply with its discovery obligations is unacceptable," she wrote. "Moreover, at this point, this court cannot rely on Apple's representations about its compliance with its discovery obligations.

"Apple has stated its willingness to allow supplemental briefing because of its untimely document production. At the March 5, 2013 hearing, Apple's counsel stated, 'We certainly will work with Plaintiffs if they think they need an opportunity to address any of the class cert issues with respect to those documents.' In its March 6, 2013 Statement Regarding Outstanding Discovery, Apple states that, 'While Apple and its counsel do not believe that any of the documents produced this week impact the outcome of the pending class certification and summary judgment motions, they recognize that they should have discovered and produced these documents sooner, and have advised Plaintiffs that they do not oppose the filing of any supplemental briefing that Plaintiffs believe is necessary to address the recent production. Apple

will work cooperatively with Plaintiffs to determine how best to present any supplemental briefing to the Court.'

"Rather than permitting supplemental briefing on class certification issues, the Court instructs Plaintiffs to withdraw their class certification motion by March 8, 2013. A case management conference will be held on April 10, 2013 at 2:00 p.m. In the parties' April 3, 2013 joint case management statement, the parties shall propose a briefing schedule for a new motion for class certification and any necessary changes to the case schedule." (Citations to transcripts omitted.)

Koh added: "Apple may not file another summary judgment motion until the court is satisfied that Apple has complied with its discovery obligations."

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