Steyer Lowenthal Boodrookas

Alvarez & Smith LLP attorneys

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November 3, 2017

BY ELECTRONIC CASE FILING

The Honorable Nathanael M. Cousins

United States Magistrate Judge

Northern District of California

Robert F. Peckham Federal Building

 & United States Courthouse

280 South 1st Street, Room 2112

San Jose, CA 95113

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

Judge Cousins,

The parties submit this joint letter brief pursuant to Your Honor’s January 1, 2016 Civil 

Standing Order. Despite meeting and conferring multiple times over the last ten weeks, the parties 

were unable to resolve the outstanding discovery disputes addressed herein.

PLAINTIFFS’ STATEMENT

The parties disagree as to whether Apple must: 1) design and implement a document 

production plan while the parties negotiate search terms; 2) share with Plaintiffs the results of 

Apple’s testing of Plaintiffs’ proposed search terms to facilitate the iterative process; and 3) revise 

and/or explain its objections to Plaintiffs’ document requests.

As acknowledged within internal Apple emails, on April 16, 2014 Apple intentionally 

“broke” its FaceTime video conferencing feature for millions of its customers, leaving them 

“basically screwed.” Ex. A; First Amended Complaint (“FAC”), ¶¶ 18, 102 (ECF No. 36). Owners 

of Apple’s iPhone 4 and 4S devices (the “Class”) were particularly harmed, because their only 

option to restore FaceTime was to download Apple’s iOS 7 software, which would significantly 

impair the functionality of their device. FAC, ¶¶ 11-12, 28, 70-87. Plaintiffs, on behalf of 

themselves and the Class, allege trespass to chattels and violation of California Business and 

Professions Code §17200, et seq. arising from Apple’s misconduct.

On May 17, 2017, the Court stayed discovery pending decision on Apple’s motion to 

dismiss (“MTD”) (ECF No. 54). The Court cautioned, however, that Apple should not be 

“obstructionist” and that upon resolution of Apple’s MTD, discovery should be “very quick and 

fast.” ECF No. 57, Case Management Conference, May 17, 2017, at p. 11, lines 13-15; see also

p. 19, lines 14-18. The Court entered a Case Management Schedule setting a March 22, 2018 

deadline for Plaintiffs’ class certification motion, and an August 17, 2018 fact discovery deadline 

(ECF No. 54). To date, despite the passage of thirteen weeks since the Court denied Apple’s 

motion to dismiss, Apple has produced only 309 documents, consisting of 1955 pages.

A. Rolling Document Production

Plaintiffs request the Court order Apple to design and implement a plan for a rolling 

production of documents that can be located without search terms. Pursuant to FRCP 34, Plaintiffs 

served their First Request for Production of Documents (“RFPs”) on May 8, 2017. After the Court 

denied Apple’s MTD, Plaintiffs advised Apple on August 2 that discovery should begin 

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immediately rather than after search terms are finalized. Ex. B at pp. 5-6. Plaintiffs specifically 

requested prompt production of certain categories of documents. Id. Despite agreeing to a rolling 

production of documents that do not require search terms to locate, with a handful of exceptions, 

Apple has refused to do so. Apple also has refused Plaintiffs’ multiple requests for a schedule and 

details about a rolling production. In Bird v. Wells Fargo Bank, Case No. 1:16-cv-01130-DADEPG, 2017 WL 1213425, *5 (E.D. Cal. Mar. 31, 2017), the court ordered the defendant to 

“immediately design and implement a discovery plan to diligently and in good faith produce 

documents ... on a rolling basis to conclude no later than” a date certain. Id. at *7. See also In re 

Qualcomm Antitrust Litig., Case No. 17-md-02773-LHK (NC) (Dkt. 155) (N.D. Cal., Oct. 18, 

2017) (ordering Apple to “substantially complet[e]” its document production by a date certain). 

Plaintiffs seek the same relief.

B. Disclosure of Search Term Metrics and Results

Plaintiffs request the Court order Apple to share metrics and results from its testing of 

Plaintiffs’ search terms. Apple possesses far superior knowledge of – and access to – the 

documents and databases containing ESI. Thus, on August 2, Plaintiffs asked Apple to prepare 

draft search terms. Ex. B at pp. 2-4. Apple refused. Id. To prevent the process from stalling, 

Plaintiffs sent Apple a first draft of search terms on August 14. Id. at p. 2; Ex. C. Apple failed to 

test Plaintiffs’ initial search terms or provide any specific justification for why they were not 

appropriate. Instead, after the parties met and conferred, Apple provided a counter-proposal on 

August 25. Ex. B at p. 2; Ex. D. Again hoping to avoid an impasse, Plaintiffs provided a countercounter proposal on September 20. Exs. E and F. On October 17, Apple stated that it had run three 

of Plaintiffs’ ten proposed search strings and that they returned over a million hits. To facilitate 

negotiation and place the parties on more equal footing, Plaintiffs requested more details about the 

search metrics and results, including: (i) whether specific terms were incurring a large number of 

hits, (ii) whether the search terms were returning false positives that could be excluded, and (iii) 

whether the hits fell within any particular date range(s). Apple refused to share any such details, 

refused to explain why it would not provide that information, and refused to propose further revised 

search terms. Instead, Apple requested that Plaintiffs propose narrowed date ranges for each search 

term string. Yet Plaintiffs already have proposed date ranges for each of the RFPs, to which Apple 

has not substantively responded. Additionally, Apple stated that even its preferred date ranges 

produce a document universe that requires revision of the search terms, thereby confirming that 

regardless of what date ranges Plaintiffs were to propose, it would be necessary to revise the terms 

and connectors themselves. 

Although Plaintiffs are willing to provide specific date ranges for the search terms (and/or 

to further revise the terms and connectors), to meaningfully do so Plaintiffs need access to the 

search term metrics and results that Apple is inexplicably withholding. Apple’s refusal to share 

that highly relevant information contravenes the Northern District Court’s Guidelines for the 

Discovery of Electronically Stored Information, which (i) contemplate cooperation “on issues 

related to the preservation, collection, search, review, and production of ESI” and (ii) underscore 

“the importance of cooperative exchanges of information at the earliest possible stage of discovery 

...” As this Court has recognized, “the clear thrust of the discovery-related rules, case law, and 

commentary suggests that ‘communication among counsel is crucial to a successful electronic 

discovery process[.]’” In re Facebook PPC Advertising Litig., No. C09-03043 JF (HRL), 2011 

WL 1324516, * 1 (N.D. Cal. Apr. 6, 2011); see also TVIIM, LLC v. McAfee, Inc., Case No. 13-cvCase 5:17-cv-00551-LHK Document 75 Filed 11/03/17 Page 2 of 6
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04545 VC (KAW), 2014 WL 5280966, *2 (N.D. Cal. Oct. 15, 2014) (ordering defendant to “run 

test searches for both final proposed searches, and provide the number of results (or “hits”) for 

each in the joint letter.”).

C. Inscrutable Objections to Plaintiffs’ RFPs

Plaintiffs request the Court order Apple to (i) state whether it is withholding responsive 

documents based on its general objections, and (ii) identify the specific RFPs in response to which 

it intends to produce responsive ESI. 

In its August 28 responses and objections to Plaintiffs’ RFPs (the “Responses and 

objections”), Apple objected to every request and stated 28 general objections that it incorporated 

into each response. Ex. G. Such boilerplate, generalized objections are highly disfavored. See 

FRCP 34(b)(2)(B) (“Responding to Each Item. For each item or category, the response must either 

state that inspection and related activities will be permitted as requested or state with specificity 

the grounds for objecting to the request, including the reasons”) (emphasis added). See also Dao 

v. Liberty Life Assurance Co. of Boston, No. 14-CV-04749-SI (EDL), 2016 WL 796095, at *4 

(N.D. Cal. Feb. 23, 2016) (“boilerplate objections are insufficient”); Loop AI Labs Inc. v. Gatti, 

No. 15-CV-00798-HSG(DMR), 2016 WL 2342128, at *3-4 (N.D. Cal. May 3, 2016) (“an 

objection must state whether any responsive materials are being withheld on the basis of that 

objection.”). After an unsuccessful meet and confer, Plaintiffs asked Apple “[w]hether Apple is 

withholding – and/or intends to withhold – documents pursuant to any of its General Objections.” 

Ex. H at p. 10. Apple responded that it “stands on its General Objections.” Id. at p. 2. Plaintiffs’ 

concerns on this issue are not merely hypothetical. For example, Apple objects to Plaintiffs’ usage 

of certain terminology within the RFPs, yet refuses to state whether it will withhold documents 

based on those objections. See, e.g., Ex. G, RFP 16; General Objection 10. 

Compounding these issues, rather than stating whether it will produce ESI responsive to 

each of Plaintiffs’ document requests, Apple refuses in its Responses and Objections to produce 

any ESI other than ESI that Apple deems responsive to a single, subjective responsiveness 

category of its own design (the “Apple Category”) – i.e., “documents, if any, concerning the April 

16, 2014 digital certificate expiration that impacted FaceTime on iPhone 4 and 4S devices 

operating on iOS 6 or earlier versions—including documents regarding Apple’s attempts to resolve 

that issue....” Ex. G. Apple has orally represented that despite refusing in its Responses and 

Objections to produce ESI corresponding to certain document requests, it might in fact do so if it 

deems such ESI responsive to the Apple Category. Thus, Plaintiffs are left to guess what ESI Apple 

will decide to produce under that subjective category, which is further complicated by the fact that 

any such production will be subject to Apple’s Gordian Knot of general and specific objections. 

DEFENDANT’S STATEMENT

Apple did not “intentionally break” FaceTime. FaceTime stopped working on certain 

iPhone devices running iOS 6 or earlier iOS versions on April 16, 2014, when a security-related 

digital certificate expired (for security purposes, digital certificates have expiration dates). See, 

e.g., Ex. A, at APL-GRACE 00000992 

. When Apple discovered that 

certain iPhone users might experience an authentication error because the digital certificate was 

set to expire in 2014, Apple engineers worked to prevent impact to users (see, e.g., id., at APLGRACE_00000989 ( ), and when the certificate 

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expired, iPhone 4 and 4S users were able to access FaceTime immediately by updating to iOS 7, 

which had been freely available and widely adopted for more than six months and which was 

compatible with iPhone 4 and 4S devices. See, e.g., id., at APL-GRACE 00000992 

. Plaintiffs’ cherrypicked description of Exhibit A in its complaint and in this letter is emblematic of their approach 

to discovery: the requests are not aimed at revealing the underlying facts but rather presume that 

their distorted theories are true and force Apple to prove a host of negatives. In keeping with their

strategy, Plaintiffs have taken unreasonably expansive discovery positions, as recognized by the 

Court from the outset, having “already [gotten] a sense of how . . . expensive and aggressive 

[Plaintiffs were] going to be about discovery” and the resulting “burden” on Apple, (see ECF No. 

57, Transcript of Case Management Conference, May 17, 2017, 10:2-10). Apple, began a rolling 

production on August 28, 2017, the same day it served objections and responses to Plaintiffs’ 

RFPs. Apple has continued to collect, review, and produce additional documents—all despite 

Plaintiffs’ unwillingness to engage in meaningful discussions about how to reasonably and 

proportionally limit their overly broad discovery requests. 

A. Rolling Document Production 

Plaintiffs’ claim that Apple “has refused” to produce documents “that do not require search 

terms to locate” misrepresents Apple’s conduct and its position stated during the parties’ numerous 

meet and confers, including as recently as October 17. As Apple has explained, it is in the process 

of executing its plan for a rolling production: 

Produced: Apple’s contracts with Akamai covering 2010-2015 (RFPs 2, 4 and 5); 

documents sufficient to show that FaceTime did not impact the price of the iPhone (RFP 15); 

radars (i.e., entries from Apple’s bug tracking database) related to the digital certificate expiration 

(RFPs 7 and 28); the Apple internal documents cited in Plaintiffs’ Amended Complaint (various 

RFPs); print ads advertising FaceTime in iPhone 4 (RFP 15); Plaintiffs’ Apple customer records 

(RFP 25); and buyer surveys regarding iPhone 4 and 4S devices (RFP 15). 

Documents In Progress: documents sufficient to show payments to Akamai (RFPs 2, 4 and 

5); documents sufficient to show trade-in values for iPhone 4 and 4S devices (RFP 19); customer 

care log data regarding FaceTime and/or at-issue aspects of iOS 7 performance on iPhone 4 and 

4S devices (RFPs 7 and 13); and relevant source code (various RFPs). 

Further, Apple does not track data to the extent and in the manner in which Plaintiffs’ 

RFPs 6, 8, 10, and 14, assume. But rather than assert, as it could, that such information does not 

exist in a reasonably searchable format, Apple has spent tremendous time and effort locating and 

querying data to determine if it is possible to create reports to respond to Plaintiffs’ discovery 

requests. Apple has consistently updated Plaintiffs on the progress it is making on these reports 

and will produce them as soon as it is able, but has not been able to commit to a date certain 

because creating them is a time-intensive, iterative process. See, e.g., Ex. H at p. 3. 

What remains is ESI. As Apple stated on October 17, Apple cannot currently provide a 

schedule for a rolling production of ESI, because Plaintiffs have taken unreasonable positions, 

including refusing to discuss date ranges for their proposed search strings. Apple, on the other 

hand, has been trying in good faith to negotiate search terms. As stated on October 17, despite 

Plaintiffs’ refusal to cooperate, Apple will continue its rolling production. Thus, Plaintiffs’ cases 

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are inapposite. See Wells Fargo, 2017 WL 1213425, *6 (unlike Apple, Wells Fargo had not yet 

started its rolling production even after fact discovery cut-off). 

B. Disclosure of Search Term Metrics and Results

Plaintiffs’ proposed search terms were facially overbroad from the start, including because 

they did not include date ranges and heavily relied on “AND” as a connecting term. Ex. C; see 

also, e.g., Ex. J, 19 Sedona Conf. J. 1, 166 (forthcoming 2018), available at

https://thesedonaconference.org/download-pub/5339 (search terms should “includ[e] restrictions 

for the relevant time frame”). Apple’s initial counter-proposal was to address those obvious 

defects by including a reasonable date range for each search string and changing “AND” to “within 

10” before undertaking more time-intensive and detailed analysis of the terms. Ex. D. Four weeks 

later, Plaintiffs countered by adding new search strings, proposing no date ranges, and changing 

only some “AND”s to “within 200” (effectively no change). Ex. F. 

On September 29, Apple explained that it would do a preliminary test using a sample set 

of Plaintiffs’ overbroad terms, and Apple shared the results on October 16: just three of Plaintiffs’ 

search strings resulted in over one million documents. See Ex. I at p. 1. Apple suggested that at a 

minimum, the Parties agree to relevant date ranges to limit the pool of documents for further 

search-term refinement. Plaintiffs refused to discuss narrowing the date range from their initial 

proposal of June 24, 2010-present. Contrary to their assertion, Apple has shared details; it 

explained which three searches it tested, how those were de-duped, how many documents resulted, 

and how that large volume reinforced the facially obvious need for narrower date ranges tied to 

specific search strings. See TVIIM, LLC, 2014 WL 5280966, *1-2 (combined terms with almost 

500,000 results “not sufficiently narrowed”). 

Plaintiffs’ unreasonable position on search terms and time scope, forced Apple to spend 

additional time and resources to demonstrate what is facially obvious: Plaintiffs’ proposed search 

terms and date range are grossly overbroad and not tailored as required. Indeed, out of a sample 

set of 359 documents randomly pulled using Plaintiffs’ proposed search terms, only three 

documents were even arguably responsive, and those three documents were from March and April 

2014, well within Apple’s proposed date limits—which, for many of the search strings is 

November 2012 (the month Plaintiffs allege Apple’s motive to “intentionally break” FaceTime 

first arose) through December 2014 (eight months after the digital certificate expired). See Ex. D. 

At this point, Apple cannot continue to wait for Plaintiffs to cooperate, so Apple will move forward 

with searching its ESI using its proposed time scope. 

C. Apple’s Objections to Plaintiffs’ RFPs

Plaintiffs’ twenty-eight RFPs are vastly overbroad (see, e.g., Ex. G, RFP 10 seeking “All 

Documents concerning iOS usage rates during [June 24, 2010-present]), duplicative (see, e.g., id., 

RFPs 2, 3, 4, 5, and 7, seeking “Relay Usage” costs), and intentionally riddled with Plaintiffs’ 

slanted terminology (see, e.g., id., RFPs 7, 11, 14, 16, 21, 24, and 28). Apple has made appropriate 

objections in response to these and other issues, and has repeatedly discussed with Plaintiffs both 

its general objections and what it has produced and intends to produce (reiterated above). See, 

e.g., Ex. H at pp. 2-4. Unlike in Dao, where the defendant only objected and did not specify what 

was overbroad as to time or scope, 2016 WL 796095, at *3-4, or Loop AI Labs, where the defendant 

merely agreed to “produce any additional documents not already produced in the case,” 2016 WL 

2342128, at *4, Apple’s objections specify what is objectionable (see, e.g., Ex. G, Response to 

RFP No. 10, objecting to request as not limited “to the devices and versions of iOS at issue in this 

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