EXHIBIT 6

Case 5:17-cv-00551-LHK Document 352-7 Filed 12/28/19 Page 1 of 4
Warren J. McCarty 

wmccarty@caldwellcc.com 

phone 214.888.4852 

fax 214.888.4849 

2101 Cedar Springs Road, Suite 1000 

Dallas Texas 75201 

June 6, 2018 

VIA EMAIL (jlerner@durietangri.com) 

Josh Lerner 

217 Leidesdorff Street 

San Francisco, CA 94111 

 RE: Grace, et al. v. Apple Inc., Case No. 5:17-cv-00551-LHK-NC 

Dear Mr. Lerner: 

I write concerning deficiencies in Apple’s supplemental response to Plaintiffs’ Second 

Set of Interrogatories served in the above-referenced litigation. Apple’s response to Interrogatory 

No. 14 is deficient. I understand that you have taken over other discovery disputes since your 

appearance in this case in May, and as such, I write to request that Apple supplement its 

discovery response to come into compliance with the Federal Rules of Civil Procedure and its 

discovery obligations in this case. 

Interrogatory No. 14. Interrogatory No. 14 requests that Apple disclose “all iOS 7-

related performance testing information” on a per device basis “regardless of whether an iOS 7 

upgrade was ultimately offered for that specific device.” This request was served nearly five 

months ago. The deadline for responding to this Interrogatory was nearly four months ago. 

Apple’s original response was plainly deficient—it invoked Fed. R. Civ. P. 33(d) but did not 

reference any actual documents or records. After Plaintiffs requested supplementation, (see 4/26 

McCarty email), Apple served a supplement on April 30th. This supplemental response fairs only 

marginally better than the original—it identified documents—but it remains deficient and 

supplementation is again required. Plaintiffs request that Apple immediately (1) supplement its 

response to Interrogatory No. 14, and (2) its corresponding document production, to address the 

following issues. 

First, Apple’s supplemental response fails to adequately disclose the information 

requested by the Interrogatory. As you know, no written explanation is provided in response to 

this request. Apple has instead identified twelve documents under Rule 33(d). All but one of 

these documents are bare code files. The one non-code file is an excel file with approximately 

50,000 ambiguous “Benchmark Test” entries. Despite its size, this excel document fails to 

disclose the requested information in any meaningful, cognizable way. To properly invoke Rule 

33(d), the interrogatory answer must be “readily ascertainable” from the documents and apparent 

from their face. E&J Gallo Winery v. Cantine Rallo, S.p.A., No. 1:04 CV 5153 B, 2006 WL 

3251830, at *3 (E.D. Cal. Nov. 8, 2006); see also Matthews v. USAir, Inc., 882 F. Supp. 274, 

275 (N.D.N.Y. 1995) (reference to voluminous records inappropriate where documents “may or 

may not answer the interrogatory”). The voluminous fields of raw data—and the accompanying 

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June 6, 2018 

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source code—are not self-explanatory. 

 

 

Apple must explain this information in a supplemental Interrogatory response. Bowoto v. 

Chevron Corp., No. C-99-02506 SI, 2006 WL 2507454, at *3 (N.D. Cal. Aug. 29, 2006) 

(providing that a responding party “must explicitly describe the content of the relatively few 

documents that contain the requested information, and must describe the content of the 

remaining documents”). Apple alone is in the position to explain and interpret these documents 

because it created them—unlike Plaintiffs who are left guessing at how to interpret the code files 

and how to decipher the tens of thousands of cryptic entries in the excel file. 

Second, even if Plaintiffs were to credit Apple’s citation to code files and an excel 

spreadsheet as sufficient to address the Interrogatory as to the iPhone 4 and 4S devices (it is not), 

this information only answers one small piece of the request. “Your answer should include all 

performance-related information regardless of whether an iOS 7 upgrade was ultimately offered 

for that specific device.” (Plaintiffs’ Interrogatory No. 14, with added emphasis). Apple’s 

response—and the code files and spreadsheets to which it refers—omits any iOS 7-related 

performance testing for Apple devices that were not ultimately offered the upgrade. 

 

 

 

 

 

 

 (Apple’s 2/28/18 Response to Interrogatory No. 16). 

Because Apple’s document production does not contain the information requested by 

Interrogatory No. 14, invoking Rule 33(d) is per se improper at this point. For example, Apple 

has not produced any performance testing documents related to the devices that ultimately did 

not receive an iOS 7 upgrade (such as the models identified above). 

 

 

 

 

 

                                                            

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 All of these performance documents are highly relevant and 

responsive to Plaintiffs’ Interrogatory No. 14. Please confirm that (1) these documents exist; and 

if so, (2) produce them and supplement Apple’s response to include citation by bates number. 

Sun Microsys. Inc. v. Hynix Semiconductor Inc., No. C-06-01665 PJH (JCS), 2007 WL 1514876, 

at *2 (N.D. Cal. May 21, 2007) (requiring responses invoking Rule 33(d) to include BATES 

number). Our request is for Apple to immediately produce all documents related to performance 

testing for all versions of iOS 7 and for all iOS devices, including all older devices including 

those referenced by Apple in Interrogatory No. 16. 

Third, Apple’s response fails to identify any performance testing that shows if and how a 

device running iOS 7 is or is not affected by other factors, for example usage life, jailbreaking, or 

viruses. Please disclose and produce documents reflecting if and how other factors may affect 

performance, including documents related to if and how jailbreaking an Apple device affects 

performance and to any known viruses and malware that have actually affected performance on 

an iOS 7 devices. If no such documents exist, please confirm as much. 

Please confirm that Apple will supplement its responses to Plaintiffs’ Interrogatory No. 

14 to address the deficiencies described above and provide a date certain by when Apple’s 

supplementation will be complete. Please also immediately produce all non-iOS 7 device 

performance testing documents, including those documents relating to the devices referenced in 

Apple’s response to Interrogatory No. 16. If Apple does not agree to supplement its discovery 

responses and document production in this case, please let me know that by Monday June 11th, 

and provide your availability to meet and confer on these issues. 

Regards, 

 

Warren J. McCarty 

Case 5:17-cv-00551-LHK Document 352-7 Filed 12/28/19 Page 4 of 4