Exhibit 2

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 1 of 73
Page 1

·1· · · · · · · ·UNITED STATES DISTRICT COURT

·2· · · · · · · NORTHERN DISTRICT OF CALIFORNIA

·3· · · · · · · · · · ·SAN JOSE DIVISION

·4

·5· ·CHRISTINA GRACE and KEN POTTER,

·6· ·Individually and on Behalf of

·7· ·All Others Similarly Situated,

·8· · · · · · Plaintiffs,

·9· ·vs.· · · · · · · · · · · · · · · · No. 5:17-cv-00551-LHK-NC

10· ·APPLE INC.,

11· · · · · · Defendant.

12· ·-------------------------------/

13

14

15· · · · · · · · · · HIGHLY CONFIDENTIAL

16

17· · · · · · · ·DEPOSITION OF GOKUL THIRUMALAI

18· · · · · · · · · PALO ALTO, CALIFORNIA

19· · · · · · · · · FRIDAY, APRIL 20, 2018

20

21

22

23· ·Reported by:

24· ·JANIS JENNINGS, CSR, CCRR

25· ·Job No. 305491

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 2 of 73
Page 2

·1

·2

·3

·4

·5

·6

·7

·8

·9· · · · · · ·VIDEOTAPED DEPOSITION OF GOKUL THIRUMALAI,

10· ·taken on behalf of the Plaintiffs, at 755 Page Mill

11· ·Road, Palo Alto, California, beginning at 9:01 a.m.

12· ·on Friday, April 20, 2018, before Janis Jennings,

13· ·Certified Shorthand Reporter No. 3942, CLR, CCRR.

14

15

16

17

18

19

20

21

22

23

24

25

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 3 of 73
Page 3

·1· ·APPEARANCES:

·2

·3· · · ·FOR PLAINTIFFS:

·4· · · · · · ·CALDWELL CASSADY CURRY

·5· · · · · · ·BY:· WARREN J. McCARTY, ESQ.

·6· · · · · · · · · BRADLEY W. CALDWELL, ESQ.

·7· · · · · · ·2101 Cedar Springs Road, Suite 1000

·8· · · · · · ·Dallas, Texas· 75201

·9· · · · · · ·214.888.4840

10· · · · · · ·wmccarty@caldwellcc.com

11· · · · · · ·bcaldwell@caldwellcc.com

12

13· · · ·FOR DEFENDANT:

14· · · · · · ·KIRKLAND & ELLIS LLP

15· · · · · · ·BY:· R. ALEXANDER PILMER, ESQ.

16· · · · · · ·333 South Hope Street

17· · · · · · ·Los Angeles, California· 90071

18· · · · · · ·213.680.8405

19· · · · · · ·alexander.pilmer@kirkland.com

20

21· · · ·ALSO PRESENT:

22· · · · · · ·GABE ZELDIN, ESQ., Apple Inc.

23· · · · · · ·MARIAH NIEVES, Videographer

24

25

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 4 of 73
Page 53

·1· · · ·A.· ·None that I can remember.

·2· · · ·Q.· ·So you've talked to four attorneys and

·3· ·Mr. Dallas De Atley about the subject matter of this

·4· ·deposition, and that's it?

·5· · · · · · MR. PILMER:· Objection.· Misstates the

·6· ·testimony entirely.

·7· ·BY MR. McCARTY:

·8· · · ·Q.· ·You can answer my question.

·9· · · ·A.· ·I've talked to four lawyers over a period of

10· ·time about several different cases.

11· · · ·Q.· ·Well, I'm asking about this case.

12· · · ·A.· ·This case, I've talked to the two lawyers

13· ·that are seated right next to me.

14· · · ·Q.· ·Not Mr. Loy?

15· · · ·A.· ·No.

16· · · ·Q.· ·Not Miss Yokoyama?

17· · · ·A.· ·Not Miss Yokoyama.

18· · · ·Q.· ·On April 16th, 2014, a certificate expired

19· ·inside Apple's iOS infrastructure that caused

20· ·FaceTime for certain customers to not work; fair?

21· · · · · · MR. PILMER:· Object to the form.

22· · · · · · THE WITNESS:· The device had a certificate

23· ·that expired that caused FaceTime on those devices

24· ·with that expired certificate to not work.

25· ·/ / /

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

YVer1f

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 5 of 73
Page 54

·1· ·BY MR. McCARTY:

·2· · · ·Q.· ·And that day was April 16, 2014?

·3· · · ·A.· ·Yes.

·4· · · ·Q.· ·What do you remember about that day?

·5· · · ·A.· ·I remember that -- I remember I was

·6· ·surprised that we had an increase in calls from

·7· ·devices that are retrying, and I remember talking

·8· ·with -- talking with the Client team about that.

·9· · · ·Q.· ·Why was it a surprise to you that there was

10· ·an increase in calls from devices that are retrying

11· ·on April 16th, 2014?

12· · · ·A.· ·It's not something that normally happens, so

13· ·it's a surprise.

14· · · ·Q.· ·Did you not expect that to happen?

15· · · ·A.· ·I did not.

16· · · ·Q.· ·Are you aware of others at Apple that did

17· ·expect that to happen?

18· · · ·A.· ·Well, when I talked with the Client team,

19· ·they told me that a certificate had expired on this

20· ·day.

21· · · · · · MR. McCARTY:· Objection.· Nonresponsive.

22· ·BY MR. McCARTY:

23· · · ·Q.· ·My question is:· Are you aware of others at

24· ·Apple that did expect the certificate to expire and

25· ·that to have an effect on FaceTime?

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

YVer1f

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 6 of 73
Page 60

·1· · · ·Q.· ·Do you recall perceiving or hearing other

·2· ·discussions or reactions by your colleagues at Apple

·3· ·suggesting that it was a surprise to them as well?

·4· · · · · · MR. PILMER:· Object to the form.

·5· · · · · · THE WITNESS:· I don't recall -- yeah, I

·6· ·don't recall.· Again, our focus was on the number of

·7· ·retries happening in the service and what would

·8· ·explain it, and I don't remember if there was a

·9· ·surprise from other folks.· I certainly was

10· ·surprised.

11· ·BY MR. McCARTY:

12· · · ·Q.· ·And was the surprise -- was your surprise

13· ·that the certificate expired or that FaceTime failed

14· ·because of the certificate expiration?

15· · · · · · MR. PILMER:· Object to the form.

16· · · · · · THE WITNESS:· The latter, that a certificate

17· ·was used in the FaceTime call and it's expiry had an

18· ·impact on FaceTime call volume.

19· ·BY MR. McCARTY:

20· · · ·Q.· ·So before April 16th, 2014, you were unaware

21· ·that FaceTime relied upon or checked the certificate

22· ·that expired on April 16th, 2014?

23· · · ·A.· ·That's right.

24· · · ·Q.· ·And the impact of the April 16th, 2014

25· ·certificate expiration was that any iOS device on

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

YVer1f

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 7 of 73
Page 61

·1· ·iOS 6 or earlier could no longer make FaceTime

·2· ·calls?

·3· · · ·A.· ·Yes.

·4· · · ·Q.· ·Do you have any sense of the scope of number

·5· ·of devices or number of FaceTime calls that as of

·6· ·the time that the certificate expired on April 16th

·7· ·would no longer be able to make FaceTime calls?

·8· · · ·A.· ·At the time, I'm sure.· But as I'm sitting

·9· ·here right now, I don't remember what that was.

10· · · ·Q.· ·But you would agree it wasn't a minuscule or

11· ·insubstantial amount.

12· · · · · · MR. PILMER:· Object to the form.

13· · · · · · THE WITNESS:· Again, I know that there's --

14· ·there were -- there was -- a number of devices were

15· ·impacted.· I don't remember how many or, you know,

16· ·how to quantify that.

17· ·BY MR. McCARTY:

18· · · ·Q.· ·Uh-huh.· Was it on the order of millions of

19· ·devices --

20· · · · · · MR. PILMER:· Object to the form.

21· ·BY MR. McCARTY:

22· · · ·Q.· ·-- to the best of your recollection?

23· · · · · · MR. PILMER:· Object to the form.

24· · · · · · THE WITNESS:· I really don't know.

25· ·/ / /

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

YVer1f

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 8 of 73
Page 63

·1· ·something happen," you know, "What's going on,"

·2· ·situation?

·3· · · · · · MR. PILMER:· Object to the form.

·4· · · · · · THE WITNESS:· It was very much the latter,

·5· ·is call and figure out what was going on.

·6· ·BY MR. McCARTY:

·7· · · ·Q.· ·So there wasn't a pre-scheduled meeting time

·8· ·to discuss this issue?

·9· · · ·A.· ·No.

10· · · ·Q.· ·What do you recall being Apple's response

11· ·internally to how to deal with or remedy or fix

12· ·FaceTime once you guys found out that it was no

13· ·longer working?

14· · · · · · MR. PILMER:· Object to the form.

15· ·Foundation.

16· · · · · · THE WITNESS:· Again, I don't remember what

17· ·the -- what the Client team was planning to do at

18· ·the time, but I understood that iOS 7 had already

19· ·fixed it and that was available for people to

20· ·install.

21· ·BY MR. McCARTY:

22· · · ·Q.· ·So Apple -- to your recollection, Apple

23· ·didn't do anything to fix it for iOS 6 users so

24· ·that they could stay on iOS 6.· The only option

25· ·was to upgrade to iOS 7 if they wanted to make

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

YVer1f

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 9 of 73
Page 64

·1· ·FaceTime calls?

·2· · · · · · MR. PILMER:· Object to the form.· Lacks

·3· ·foundation.

·4· · · · · · THE WITNESS:· Again, to my recollection, I

·5· ·was told that the fix was already in iOS 7, and

·6· ·that's how you can get FaceTime working.

·7· ·BY MR. McCARTY:

·8· · · ·Q.· ·Would you characterize the events that

·9· ·transpired at Apple internally upon the expiration

10· ·of the certificate that caused FaceTime to break on

11· ·April 16, 2014, to be a fire drill?

12· · · · · · MR. PILMER:· Object to the form.

13· · · · · · THE WITNESS:· Again, I think for -- from

14· ·a -- from a server perspective, I was surprised

15· ·because I was trying to figure out what was going

16· ·on.· Once I understood that this was outside of my

17· ·hands, I -- you know, I let the Client teams figure

18· ·out what to do next.

19· ·BY MR. McCARTY:

20· · · ·Q.· ·Well -- okay.· So what did the Client teams

21· ·do next?

22· · · ·A.· ·I don't know.

23· · · ·Q.· ·They didn't do anything?

24· · · ·A.· ·I don't know what they did.

25· · · ·Q.· ·Who would -- who would I ask to know what

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

YVer1f

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 10 of 73
Page 71

·1· · · · · · MR. PILMER:· I will object on foundation

·2· ·grounds.

·3· · · · · · THE WITNESS:· I mean, whatever the device

·4· ·was using in order to use the certificate for

·5· ·FaceTime and the fact that it expired, causing it to

·6· ·stop working, that's the bug that I'm referring to.

·7· ·BY MR. McCARTY:

·8· · · ·Q.· ·So I'm trying to nail this down to figure

·9· ·out exactly what the bug is.· And I'm not trying to

10· ·mischaracterize, but the bug, as you referred to it,

11· ·is the code on an iPhone that as part of running

12· ·FaceTime checks the iPhone Device CA that happened

13· ·to expire on a particular day.· If that

14· ·characterization is wrong, that's fine.· Tell me,

15· ·and, you know, fix it, please.

16· · · · · · MR. PILMER:· I'll object to form and on

17· ·foundation grounds.

18· · · · · · THE WITNESS:· Yeah.· Again, that's my

19· ·understanding of what the bug is.

20· ·BY MR. McCARTY:

21· · · ·Q.· ·Apple programmed FaceTime and the code in

22· ·the iPhone that runs FaceTime to check that

23· ·certificate; correct?

24· · · · · · MR. PILMER:· Objection.· Lacks foundation.

25· ·Object to the form.

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

YVer1f

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 11 of 73
Page 110

·1· ·levels, at least as of the time that Miss Pollack

·2· ·was writing this; is that fair?

·3· · · · · · MR. PILMER:· Object to the form.· Lacks

·4· ·foundation.

·5· · · · · · THE WITNESS:· I mean, Miss Pollack writes

·6· ·here that this gets us back to 2012 levels.

·7· ·BY MR. McCARTY:

·8· · · ·Q.· ·And Apple was doing that -- sorry.· Strike

·9· ·that.

10· · · · · · You testified that Apple was doing that

11· ·because of the relay costs associated with using

12· ·Akamai servers in relayed FaceTime calls; right?

13· · · · · · MR. PILMER:· Object to the form.· Lacks

14· ·foundation.

15· · · · · · THE WITNESS:· No.· I mean, to be clear, the

16· ·cost isn't necessarily directly correlated with

17· ·bandwidth, because those are contract details, so

18· ·decreasing relay usage doesn't mean lower costs.

19· ·So, again, these aren't details that I was privy to

20· ·at the time.

21· ·BY MR. McCARTY:

22· · · ·Q.· ·Agree or disagree:· Apple was trying to find

23· ·ways to reduce relay usage in FaceTime in 2012

24· ·because of the relay cost associated with relay

25· ·usage in FaceTime.

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

YVer1f

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Page 157

·1· · · · · · MR. PILMER:· Object to the form.· Lacks

·2· ·foundation.· He's told you many times this is before

·3· ·he worked at the company.· He wasn't part of this

·4· ·process at all.

·5· · · · · · THE WITNESS:· There's no term I've really

·6· ·used for it.· Like I said, this was before my time.

·7· ·BY MR. McCARTY:

·8· · · ·Q.· ·Was it unexpected to you that the Device

·9· ·Certificate expired after three years?

10· · · ·A.· ·I don't remember.· I don't remember if I had

11· ·to deal with that.· I think that was the Push team,

12· ·so I don't know.

13· · · ·Q.· ·Do you know when you first learned of the

14· ·Device Certificate expiring after three years?

15· ·After activation, of course.

16· · · ·A.· ·I don't remember.

17· · · ·Q.· ·Was it unexpected to you that the seven-year

18· ·Device CA expired?

19· · · · · · MR. PILMER:· Objection.· Vague as to time.

20· · · · · · THE WITNESS:· I mean, as I've mentioned

21· ·before, on April 16th of 2014 when we saw this

22· ·massive increase in FaceTime retries, that wasn't

23· ·expected.· And understanding that that's because of

24· ·the certificate being -- expiring, you know, that

25· ·was a surprise.

GRACE: GOKUL THIRUMALAI - HIGHLY CONFIDENTIAL

hglitigation.com

YVer1f

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Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 14 of 73
Exhibit 3

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 15 of 73
Exhibit 4

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 16 of 73
Exhibit 5

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 17 of 73
Exhibit 6

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 18 of 73
Exhibit 7

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 19 of 73
Exhibit 8

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 20 of 73
Exhibit 9

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 21 of 73
Exhibit 11

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 22 of 73
Exhibit 14

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 23 of 73
From: Jim Sevel

To: Chang, Kevin

Cc: Suneel Jain; Don Evans; Jill Manning; Pilmer, R. Alexander; Loy, Joseph A.; Greene, Tanya; dtejtel@fotpllc.com;

Warshaw, Daniel L.; acurry@caldwellcc.com; Bruce Barnes; Amy Voight

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality Agreement

Date: Wednesday, April 25, 2018 5:39:22 PM

Kevin,

We are having issues exporting the file listing for the “jailbroken” phone.  We can provide the file

listing for the other two phones tomorrow.  Should we wait to provide those until we have all three

or can we provide just the two tomorrow?

Jim

James (Jim) Sevel, CFCE

C.E.O., San Diego Digital Forensics Inc.

409 Camino del Rio South, Suite 102

San Diego, CA  92108

(619) 550 1010  Office

(619) 384-6633  Cell

jsevel@SD-DF.com  Email

www.SD-DF.com Web Site

From: Chang, Kevin [mailto:kevin.chang@kirkland.com] 

Sent: Wednesday, April 25, 2018 5:19 PM

To: Jim Sevel

Cc: Suneel Jain; Don Evans; Jill Manning; Pilmer, R. Alexander; Loy, Joseph A.; Greene, Tanya;

dtejtel@fotpllc.com; Warshaw, Daniel L.; acurry@caldwellcc.com; Bruce Barnes; Amy Voight

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality Agreement

Can you please provide us with an update?

Kevin K. Chang

-------------------------------------------------------

KIRKLAND & ELLIS LLP

555 California Street, San Francisco, CA 94104

T +1 415 439 1671 M +1 630 947 6867

F +1 415 439 1500

-------------------------------------------------------

kevin.chang@kirkland.com

From: Chang, Kevin

Sent: Tuesday, April 24, 2018 4:37 PM

To: 'Jim Sevel' <jsevel@sd-df.com>

Cc: Suneel Jain <sjain@steyerlaw.com>; Don Evans <devans@sd-df.com>; Jill Manning

<jmanning@steyerlaw.com>; Pilmer, R. Alexander <apilmer@kirkland.com>; Loy, Joseph A.

<jloy@kirkland.com>; Greene, Tanya <tanya.greene@kirkland.com>; dtejtel@fotpllc.com; Warshaw,

Daniel L. <dwarshaw@pswlaw.com>; acurry@caldwellcc.com; Bruce Barnes <rbbarnes@sd-df.com>;

Page 1

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 24 of 73
Amy Voight <avoight@sd-df.com>

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality Agreement

We would appreciate it if you could produce the directory file in both formats.  Thanks.

Kevin K. Chang

-------------------------------------------------------

KIRKLAND & ELLIS LLP

555 California Street, San Francisco, CA 94104

T +1 415 439 1671 M +1 630 947 6867

F +1 415 439 1500

-------------------------------------------------------

kevin.chang@kirkland.com

From: Jim Sevel <jsevel@sd-df.com>

Sent: Tuesday, April 24, 2018 3:10 PM

To: Chang, Kevin <kevin.chang@kirkland.com>

Cc: Suneel Jain <sjain@steyerlaw.com>; Don Evans <devans@sd-df.com>; Jill Manning

<jmanning@steyerlaw.com>; Pilmer, R. Alexander <apilmer@kirkland.com>; Loy, Joseph A.

<jloy@kirkland.com>; Greene, Tanya <tanya.greene@kirkland.com>; dtejtel@fotpllc.com; Warshaw,

Daniel L. <dwarshaw@pswlaw.com>; acurry@caldwellcc.com; Bruce Barnes <rbbarnes@sd-df.com>;

Amy Voight <avoight@sd-df.com>

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality Agreement

Kevin,

The imaging is complete. 

We are working on providing the directory trees in an appropriate format.  We have a question as to

what is appropriate for “everyone”.  Is there a specific expectation on how or what the format

should be?  A directory tree is often considered a graphical depiction.  However, it can also be

produced as a file listing in an Excel spreadsheet.

Please let us know, or should we have a conference call tomorrow to discuss the issue?

Jim

James (Jim) Sevel, CFCE

C.E.O., San Diego Digital Forensics Inc.

409 Camino del Rio South, Suite 102

San Diego, CA  92108

(619) 550 1010  Office

(619) 384-6633  Cell

jsevel@SD-DF.com Email

www.SD-DF.com Web Site

From: Chang, Kevin [mailto:kevin.chang@kirkland.com] 

Page 2

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 25 of 73
Sent: Tuesday, April 24, 2018 2:45 PM

To: Jim Sevel

Cc: Suneel Jain; Don Evans; Jill Manning; Pilmer, R. Alexander; Loy, Joseph A.; Greene, Tanya;

dtejtel@fotpllc.com; Warshaw, Daniel L.; acurry@caldwellcc.com; Bruce Barnes; Amy Voight

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality Agreement

Jim, can you please provide us with an update on the status of the imaging?  Thanks very much.

Kevin K. Chang

-------------------------------------------------------

KIRKLAND & ELLIS LLP

555 California Street, San Francisco, CA 94104

T +1 415 439 1671 M +1 630 947 6867

F +1 415 439 1500

-------------------------------------------------------

kevin.chang@kirkland.com

From: Jim Sevel <jsevel@sd-df.com>

Sent: Thursday, April 19, 2018 5:03 PM

To: Chang, Kevin <kevin.chang@kirkland.com>

Cc: Suneel Jain <sjain@steyerlaw.com>; Don Evans <devans@sd-df.com>; Jill Manning

<jmanning@steyerlaw.com>; Pilmer, R. Alexander <apilmer@kirkland.com>; Loy, Joseph A.

<jloy@kirkland.com>; Greene, Tanya <tanya.greene@kirkland.com>; dtejtel@fotpllc.com; Warshaw,

Daniel L. <dwarshaw@pswlaw.com>; acurry@caldwellcc.com; Bruce Barnes <rbbarnes@sd-df.com>;

Amy Voight <avoight@sd-df.com>

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality Agreement

Greetings,

We have successfully imaged all three phones, are verifying the images and starting to process

them.  Do the phones need to be returned immediately or may we keep them for a short period

longer?  We are ordering an additional forensic product that may not be here until next week.

Best regards,

Jim

James (Jim) Sevel, CFCE

C.E.O., San Diego Digital Forensics Inc.

409 Camino del Rio South, Suite 102

San Diego, CA  92108

(619) 550 1010  Office

(619) 384-6633  Cell

jsevel@SD-DF.com Email

www.SD-DF.com Web Site

From: Chang, Kevin [mailto:kevin.chang@kirkland.com] 

Sent: Wednesday, April 18, 2018 5:01 PM

To: Jim Sevel

Cc: Suneel Jain; Don Evans; Jill Manning; Pilmer, R. Alexander; Loy, Joseph A.; Greene, Tanya;

Page 3

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 26 of 73
dtejtel@fotpllc.com; Warshaw, Daniel L.; acurry@caldwellcc.com; Bruce Barnes; Amy Voight

Subject: Re: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality Agreement

Appreciate the update.

Kevin Chang

Kirkland & Ellis LLP

555 California Street

San Francisco, CA 94104

+1 (415) 439-1671 direct

+1 (415) 439-1500 fax

Kevin.Chang@kirkland.com

www.kirkland.com

On Apr 18, 2018, at 4:59 PM, Jim Sevel <jsevel@sd-df.com> wrote:

Kevin,

Yes, we received the third phone this afternoon via FedEx.  We are in the process of

verifying the forensic images.

Jim

James (Jim) Sevel, CFCE

C.E.O., San Diego Digital Forensics Inc.

409 Camino del Rio South, Suite 102

San Diego, CA  92108

(619) 550 1010  Office

(619) 384-6633  Cell

jsevel@SD-DF.com Email

www.SD-DF.com Web Site

From: Chang, Kevin [mailto:kevin.chang@kirkland.com] 

Sent: Wednesday, April 18, 2018 4:57 PM

To: Jim Sevel

Cc: Suneel Jain; Don Evans; Jill Manning; Pilmer, R. Alexander; Loy, Joseph A.; Greene,

Tanya; dtejtel@fotpllc.com; Warshaw, Daniel L.; acurry@caldwellcc.com; Bruce Barnes;

Amy Voight

Subject: Re: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality Agreement

Jim, can you please confirm that you’ve received all three of Plaintiffs’ devices?

Kevin Chang

Kirkland & Ellis LLP

Page 4

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 27 of 73
555 California Street

San Francisco, CA 94104

+1 (415) 439-1671 direct

+1 (415) 439-1500 fax

Kevin.Chang@kirkland.com

www.kirkland.com

On Apr 16, 2018, at 4:43 PM, Jim Sevel <jsevel@sd-df.com> wrote:

Very good.  We will advise everyone as this progresses.

Regards,

Jim

James (Jim) Sevel, CFCE

C.E.O., San Diego Digital Forensics Inc.

409 Camino del Rio South, Suite 102

San Diego, CA  92108

(619) 550 1010  Office

(619) 384-6633  Cell

jsevel@SD-DF.com Email

www.SD-DF.com Web Site

From: Suneel Jain [mailto:sjain@steyerlaw.com] 

Sent: Monday, April 16, 2018 4:42 PM

To: Jim Sevel; Don Evans; Chang, Kevin; Jill Manning; Pilmer, R. Alexander;

Loy, Joseph A.; Greene, Tanya; dtejtel@fotpllc.com; Warshaw, Daniel L.;

acurry@caldwellcc.com

Cc: Bruce Barnes; Amy Voight

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality

Agreement

That’s fine. Please let us know when the two devices have been imaged

and we’ll pick them up. For the third device, FedEx for delivery back to us

at our office (1 California Street, Suite 300, San Francisco, CA 94111)

would be good.

Thanks,

Suneel Jain

Steyer Lowenthal Boodrookas

Alvarez & Smith LLP

One California Street

Suite 300

San Francisco, CA 94111

Phone: 415.421.3400

Fax: 415.421.2234

Page 5

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 28 of 73
sjain@steyerlaw.com

NOTICE: This email message is for the sole use of the intended

recipient(s) and may contain information that is confidential and

protected from disclosure by the attorney-client privilege, as attorney

work product, or by other applicable privileges. Any unauthorized

review, use, disclosure or distribution is prohibited. If you are not the

intended recipient, please contact the sender by reply email and

destroy all copies of the original message.

From: Jim Sevel <jsevel@sd-df.com>

Sent: Monday, April 16, 2018 4:34 PM

To: Suneel Jain <sjain@steyerlaw.com>; Don Evans <devans@sd-df.com>;

Chang, Kevin <kevin.chang@kirkland.com>; Jill Manning

<jmanning@steyerlaw.com>; Pilmer, R. Alexander

<apilmer@kirkland.com>; Loy, Joseph A. <jloy@kirkland.com>; Greene,

Tanya <tanya.greene@kirkland.com>; dtejtel@fotpllc.com; Warshaw,

Daniel L. <dwarshaw@pswlaw.com>; acurry@caldwellcc.com

Cc: Bruce Barnes <rbbarnes@sd-df.com>; Amy Voight <avoight@sddf.com>

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality

Agreement

Suneel,

We prefer to have them for 24 hours so that we can assure complete and

verified images.  Though logical images normally take two hours or less,

we are talking about physical images and USB 2 speeds.  As we may only

have one opportunity to image these, we will probably want to take

images with multiple tools.

I assume that they are not still using them?

Sincerely,

Jim

James (Jim) Sevel, CFCE

C.E.O., San Diego Digital Forensics Inc.

409 Camino del Rio South, Suite 102

San Diego, CA  92108

(619) 550 1010  Office

(619) 384-6633  Cell

jsevel@SD-DF.com Email

www.SD-DF.com Web Site

From: Suneel Jain [mailto:sjain@steyerlaw.com] 

Page 6

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 29 of 73
Sent: Monday, April 16, 2018 4:23 PM

To: Don Evans; Chang, Kevin; Jill Manning; Pilmer, R. Alexander; Loy, Joseph

A.; Greene, Tanya; dtejtel@fotpllc.com; Warshaw, Daniel L.;

acurry@caldwellcc.com

Cc: Bruce Barnes; Jim Sevel; Amy Voight

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality

Agreement

Hi Don,

For the iPhone 4 devices that are being hand-delivered to your office, is

anytime during normal business hours okay? We can have them dropped

off tomorrow or Wednesday late afternoon.

As far as the return of the hand-delivered devices, is the imaging expected

to be completed shortly after receipt? It would be easier if we could plan

to take them back with us on that same trip if possible, and I’m hoping

that imaging would not take very long since the storage capacity of the

devices is small (16GB and 32GB).

Thank you,

Suneel Jain

Steyer Lowenthal Boodrookas

Alvarez & Smith LLP

One California Street

Suite 300

San Francisco, CA 94111

Phone: 415.421.3400

Fax: 415.421.2234

sjain@steyerlaw.com

NOTICE: This email message is for the sole use of the intended

recipient(s) and may contain information that is confidential and

protected from disclosure by the attorney-client privilege, as attorney

work product, or by other applicable privileges. Any unauthorized

review, use, disclosure or distribution is prohibited. If you are not the

intended recipient, please contact the sender by reply email and

destroy all copies of the original message.

From: Don Evans <devans@sd-df.com>

Sent: Monday, April 16, 2018 4:07 PM

To: Chang, Kevin <kevin.chang@kirkland.com>; Jill Manning

<jmanning@steyerlaw.com>; Pilmer, R. Alexander

<apilmer@kirkland.com>; Loy, Joseph A. <jloy@kirkland.com>; Greene,

Tanya <tanya.greene@kirkland.com>; dtejtel@fotpllc.com; Warshaw,

Daniel L. <dwarshaw@pswlaw.com>; acurry@caldwellcc.com; Suneel Jain

<sjain@steyerlaw.com>

Cc: Bruce Barnes <rbbarnes@sd-df.com>; Jim Sevel <jsevel@sd-df.com>;

Amy Voight <avoight@sd-df.com>

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality

Agreement

Page 7

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 30 of 73
Federal Express will be fine.

Don Evans - CFCE, EnCE, ACE

San Diego Digital Forensics

409 Camino Del Rio South, Suite #102

San Diego, CA 92108

619-301-9514 (Cell)

619-550-1010 (Office)

619-291-0130 (Fax)

devans@sd-df.com

<image001.jpg>

STATEMENT OF CONFIDENTIALITY:

The information contained in this electronic mail message and any attachments hereto is intended only for the personal and

confidential use of the designated recipients. This message and any attachments hereto may be privileged and/or

confidential and protected from disclosure under applicable law. If you are not the intended recipient or an agent

responsible for delivering it to the intended recipient, you are hereby notified that you have received this message in error,

and that any review, dissemination, distribution, copying or the taking of any action in reliance of this message and any

attachments hereto is strictly prohibited.

If you have received this message in error, please notify me immediately by telephone or electronic mail as listed in the

signature block above and fully delete and remove the message from your computer system.

From: Chang, Kevin [mailto:kevin.chang@kirkland.com] 

Sent: Monday, April 16, 2018 4:05 PM

To: Don Evans; Jill Manning (jmanning@steyerlaw.com); Pilmer, R.

Alexander; Loy, Joseph A.; Greene, Tanya; dtejtel@fotpllc.com; Warshaw,

Daniel L.; acurry@caldwellcc.com; Suneel Jain

Cc: Bruce Barnes; Jim Sevel; Amy Voight

Subject: RE: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality

Agreement

Thanks very much.  As Jill mentioned earlier, two of Plaintiffs’ devices will

be hand-delivered to your offices, and the third will be sent by Federal

Express, unless you prefer another method. 

Kevin K. Chang

-------------------------------------------------------

KIRKLAND & ELLIS LLP

555 California Street, San Francisco, CA 94104

T +1 415 439 1671 M +1 630 947 6867

F +1 415 439 1500

-------------------------------------------------------

kevin.chang@kirkland.com

From: Don Evans <devans@sd-df.com>

Sent: Monday, April 16, 2018 3:59 PM

To: Chang, Kevin <kevin.chang@kirkland.com>; Jill Manning

(jmanning@steyerlaw.com) <jmanning@steyerlaw.com>; Pilmer, R.

Alexander <apilmer@kirkland.com>; Loy, Joseph A. <jloy@kirkland.com>;

Greene, Tanya <tanya.greene@kirkland.com>; dtejtel@fotpllc.com;

Warshaw, Daniel L. <dwarshaw@pswlaw.com>; acurry@caldwellcc.com;

Suneel Jain <sjain@steyerlaw.com>

Cc: Bruce Barnes <rbbarnes@sd-df.com>; Jim Sevel <jsevel@sd-df.com>;

Amy Voight <avoight@sd-df.com>

Page 8

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 31 of 73
Subject: [Grace v. Apple, Case No. 17-cv-00551] Signed Confidentiality

Agreement

Attached are the signed Confidentiality Agreements.

Don Evans - CFCE, EnCE, ACE

San Diego Digital Forensics

409 Camino Del Rio South, Suite #102

San Diego, CA 92108

619-301-9514 (Cell)

619-550-1010 (Office)

619-291-0130 (Fax)

devans@sd-df.com

<image001.jpg>

STATEMENT OF CONFIDENTIALITY:

The information contained in this electronic mail message and any attachments hereto is intended only for the personal and

confidential use of the designated recipients. This message and any attachments hereto may be privileged and/or

confidential and protected from disclosure under applicable law. If you are not the intended recipient or an agent

responsible for delivering it to the intended recipient, you are hereby notified that you have received this message in error,

and that any review, dissemination, distribution, copying or the taking of any action in reliance of this message and any

attachments hereto is strictly prohibited.

If you have received this message in error, please notify me immediately by telephone or electronic mail as listed in the

signature block above and fully delete and remove the message from your computer system.

The information contained in this communication is confidential, may be attorney-client

privileged, may constitute inside information, and is intended only for the use of the

addressee. It is the property of Kirkland & Ellis LLP or Kirkland & Ellis International LLP.

Unauthorized use, disclosure or copying of this communication or any part thereof is strictly

prohibited and may be unlawful. If you have received this communication in error, please

notify us immediately by return email or by email to postmaster@kirkland.com, and destroy

this communication and all copies thereof, including all attachments.

The information contained in this communication is confidential, may be attorney-client privileged, may

constitute inside information, and is intended only for the use of the addressee. It is the property of Kirkland

& Ellis LLP or Kirkland & Ellis International LLP. Unauthorized use, disclosure or copying of this

communication or any part thereof is strictly prohibited and may be unlawful. If you have received this

communication in error, please notify us immediately by return email or by email to

postmaster@kirkland.com, and destroy this communication and all copies thereof, including all attachments.

The information contained in this communication is confidential, may be attorney-client privileged, may constitute inside

information, and is intended only for the use of the addressee. It is the property of Kirkland & Ellis LLP or Kirkland & Ellis

International LLP. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and

may be unlawful. If you have received this communication in error, please notify us immediately by return email or by email

to postmaster@kirkland.com, and destroy this communication and all copies thereof, including all attachments.

The information contained in this communication is confidential, may be attorney-client privileged, may constitute inside

information, and is intended only for the use of the addressee. It is the property of Kirkland & Ellis LLP or Kirkland & Ellis

International LLP. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and

may be unlawful. If you have received this communication in error, please notify us immediately by return email or by email

to postmaster@kirkland.com, and destroy this communication and all copies thereof, including all attachments.

The information contained in this communication is confidential, may be attorney-client privileged, may constitute inside

information, and is intended only for the use of the addressee. It is the property of Kirkland & Ellis LLP or Kirkland & Ellis

International LLP. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and

may be unlawful. If you have received this communication in error, please notify us immediately by return email or by email

to postmaster@kirkland.com, and destroy this communication and all copies thereof, including all attachments.

Page 9

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 32 of 73
Exhibit 15

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 33 of 73
Exhibit 16

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 34 of 73
Exhibit 17

[Filed Under Seal]

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 35 of 73
Exhibit 18

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 36 of 73
Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 37 of 73
Page 2

1 APPEARANCES

2

3 For the Plaintiffs:

4 BY: JASON D. CASSADY, ATTORNEY AT LAW

5 WARREN J. McCARTY, ATTORNEY AT LAW

6 CALDWELL, CASSADY & CURRY

7 2101 Cedar Springs Road, Suite 1000

8 Dallas, Texas 75201

9 Tel: 214.888.4848

10 Email: jcassady@caldwellcc.com

11 wmccarty@caldwellcc.com

12

13 Co-Counsel For the Plaintiffs:

14 BY: JILL MANNING, ATTORNEY AT LAW

15 STEYER, LOWENTHAL, BOODROOKAS, ALVAREZ &

16 SMITH

17 One California Street, Third Floor

18 San Francisco, CA 94111

19 Tel: 415.421.3400

20 Fax: 415.421.2234

21 Email: jmanning@steyerlaw.com

22

23

24

25

GRACE: DALLAS BLAKE DE ATLEY - HIGHLY CONFIDENTIAL/ATTORNEYS' EYES ONLY

hglitigation.com

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 38 of 73
Page 3

1 For the Defendant:

2 R. ALEXANDER PILMER, ATTORNEY AT LAW

3 KIRKLAND & ELLIS, LLP

4 333 South Hope Street

5 Los Angeles, CA 90071

6 Tel: 213.680.8405

7 Fax: 213.680.8500

8 Email: Alexander.pilmer@kirkland.com

9

10 In-House Counsel for the Defendant:

11 GABE ZELDIN, ATTORNEY AT LAW

12 APPLE

13 1 Infinite Loop, MS 169-2NYJ

14 Cupertino, CA 95014

15 Tel: 408.974.4756

16 Email: gzeldin@apple.com

17

18 Also Present: Mariah Nieves, videographer

19

20

21

22

23

24

25

GRACE: DALLAS BLAKE DE ATLEY - HIGHLY CONFIDENTIAL/ATTORNEYS' EYES ONLY

hglitigation.com

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 39 of 73
Page 27

1 A. In what context?

2 Q. Authentication, cryptographic

3 authentication.

4 A. In the context of cryptographic

5 authentication, I believe there are other types of

6 certificates that are not X509.

7 

8

9 

10

11

12 Q. Now, I want to just have some working

13 terminology that we can use for this deposition.

14 For the device certificate, is that what

15 you referred to earlier as the activation identity?

16 A. I would consider the device certificate to

17 be one component of the activation identity.

18 Q. Let me -- let me tell you what I'm aiming

19 for here. The device certificate is a signed

20 certificate signed by the iPhone device CA,

21 correct?

22 A. In the context of activating an iPhone,

23 the device certificate is issued by the iPhone

24 device CA.

25 Q. And it's signed by the iPhone device CA,

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 40 of 73
Page 97

1 mobile device management. I don't remember the

2 complete list of services that we investigated, if

3 they'd be affected.

4 Q. When did you first realize that the

5 expiration of the device certificates was going to

6 pose an issue for any Apple feature?

7 A. I believe we realized the device

8 certificates were going to affect Apple products

9 after iOS 7 shipped.

10 Q. So that would have been late 2013 time

11 frame?

12 A. I remember correctly, iOS 7 shipped in --

13 Q. September 2013?

14 A. September of 2013, near the end of the

15 month.

16 Q. September 19th, 2013? 18th?

17 A. I'd have to look it up.

18 Q. Why, we have Warren right here.

19 So sometime after September 2013 or maybe

20 even in late September 2013 was when Apple first

21 realized that the expiration of the device

22 certificates might pose a problem for certain Apple

23 features?

24 A. I believe my team was made aware of the

25 issue after iOS 7 shipped.

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 41 of 73
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

233

REPORTER'S CERTIFICATE

I certify that the foregoing proceedings in the 

within-entitled cause were reported at the time and 

place therein named; that said proceedings were 

reported by me, a duly Certified Shorthand Reporter 

of the State of California, and were thereafter 

transcribed into typewriting

I further certify that I am not of counsel 

or attorney for either or any of the parties to 

said cause of action, nor in any way interested in 

the outcome of the cause named in said cause of 

action.

 IN WITNESS WHEREOF, I have hereunto set my hand 

this 23rd day of April, 2018.

Witness did not request to read and sign. 

 

 

 LUCY CARRILLO-GRUBBS, CRP, CSR 

 Certified Shorthand Reporter 

 Certificate No. 6766 

 

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 42 of 73
Exhibit 19

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 43 of 73
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

VIRNETX INC. and SCIENCE 

APPLICATIONS INTERNATIONAL 

CORPORATION,

Plaintiffs,

vs.

APPLE INC.,

Defendant.

§

§

§

§

§

§ CAUSE NO. 6:12-CV-855

§ [LEAD CASE]

§

§

§

§

§

MEMORANDUM OPINION & ORDER

Before the Court is Apple Inc.’s (“Apple”) Motion for a New Trial Based Upon the 

Consolidation of Cause Nos. 6:10-cv-417 and 6:12-cv-855. Docket No. 463 at 41–45.

1

 The 

combination of the consolidation and numerous statements about the prior jury verdict in Cause

No. 6:10-cv-417 (“Apple I”) (Docket No. 598) introduced, through argument by counsel and 

witness questioning, the potential for juror confusion and unfairly prejudiced Apple’s right to a 

fair trial. Accordingly, the Motion (Docket No. 463 at 41–45) is GRANTED. 

BACKGROUND

In Apple I, the jury found that Virtual Private Network On Demand (“VOD”) in iOS 3–6

(“original VOD”) and FaceTime in iOS 4–6 and OS X 10.7 and 10.8 (“original FaceTime”) 

infringed VirnetX Inc.’s (“VirnetX”) asserted patents. Cause No. 6:10-cv-417, Docket No. 598. 

The Court entered final judgment and Apple appealed. Cause No. 6:10-cv-417, Docket No. 844. 

On appeal, the Federal Circuit upheld the jury’s finding of infringement of original VOD, but 

reversed and remanded the finding that original FaceTime infringed based upon a new claim 

 1 Unless otherwise indicated, all docket numbers refer to Cause No. 6:12-cv-855.

Case 6:12-cv-00855-RWS Document 500 Filed 07/29/16 Page 1 of 15 PageID #: 37364 Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 44 of 73
Page 2 of 15

construction. See VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1319 (Fed. Cir. 2014)

(“However, the jury was not presented with the question of whether FaceTime infringes the 

asserted claims under a construction requiring anonymity. Thus, we remand for further 

proceedings to determine whether Apple’s FaceTime servers provide anonymity.”). The Federal 

Circuit also remanded the case for a new damages calculation. Id. at 1314. While Cause No. 

6:10-cv-417 was pending at the Federal Circuit, VirnetX filed Cause No. 6:12-cv-855, which 

accuses the redesigned VOD in iOS 7 and 8 (“new VOD”), the redesigned FaceTime in iOS 7 

and 8 and OS X 10.9 and 10.10 (“new FaceTime”) and iMessage of infringing its patents. 

After the Federal Circuit remanded Cause No. 6:10-cv-417, VirnetX filed a motion to 

consolidate it with Cause No. 6:12-cv-855. Cause No. 6:10-cv-417, Docket No. 864. Although

Apple initially opposed the motion, when given the choice between trying Cause No. 

6:12-cv-855 before Cause No. 6:10-cv-417 or consolidating the cases, Apple preferred 

consolidation. Cause No. 6:10-cv-417, Docket No. 870 at 4. After reviewing the briefing and 

holding a hearing, the Court consolidated the cases. Cause No. 6:10-cv-417, Docket No. 878; 

Cause No. 6:12-cv-855, Docket No. 220. In both cases, VirnetX was the plaintiff, Apple was the 

defendant, different versions of VOD and FaceTime were accused features and the same patents 

were asserted. This consolidation combined the new issues in Cause No. 6:12-cv-855 with the 

unresolved remanded issues in Cause No. 6:10-cv-417, which included (1) damages owed to 

VirnetX because of the infringement of original VOD and (2) the alleged infringement, damages 

and willfulness of original FaceTime. In summary, the effect of Apple I on the issues in the 

consolidated case was as follows:

Case 6:12-cv-00855-RWS Document 500 Filed 07/29/16 Page 2 of 15 PageID #: 37365 Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 45 of 73
Page 3 of 15

Accused Feature Affirmed Portions

of Apple I

Issues for the Jury in 

the Consolidated Case

Original VOD Infringement Damages

New VOD Infringement, Damages & 

Willfulness

Original FaceTime Infringement Only If 

Anonymity Is Proven

Infringement Only If 

Anonymity Is Proven, 

Damages & Willfulness

New FaceTime Infringement, Damages & 

Willfulness

iMessage Infringement & Damages

Before the trial of the consolidated case, in a motion in limine, Apple raised concerns 

regarding Apple I and what aspects of the prior trial would be raised before the jury. Docket No. 

308 at 1–3. Apple stressed that the prior verdict “should be precluded as irrelevant and unfairly 

prejudicial.” Id. at 1. Again, after reviewing the briefing and conducting a hearing, the Court 

denied the motion with respect to VOD and FaceTime and granted the motion with respect to 

iMessage, invalidity and damages. Docket No. 389 at 86:22–87:13. Before announcing its

ruling, the Court recognized that Apple I might complicate the trial:

But the way I have sort of broken this out, I think based on some of the issues that 

were raised in the argument leads me to believe that a lot of this we’re just going 

to have to flesh out at trial. And I’m going to have to understand what the 

context is. And it may be that we have a number of sidebars throughout. And 

it—you know, if we have to do that, we have to do that.

Id. at 86:8–14 (emphasis added).

Apple also filed a motion to exclude the expert opinion of Dr. Mark Jones, VirnetX’s 

infringement expert. Docket No. 317. The motion was based on Dr. Jones’s infringement 

analysis for the redesigned features that only addressed differences between new and original 

VOD and differences between new and original FaceTime, relying on Apple I and the subsequent 

procedural history. Id. Consistent with the order consolidating the actions, the Court denied the 

Case 6:12-cv-00855-RWS Document 500 Filed 07/29/16 Page 3 of 15 PageID #: 37366 Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 46 of 73
Page 4 of 15

motion, specifically stating, “Although Apple presents valid criticism of Dr. Jones’s opinions, 

they go to the weight of the evidence rather than admissibility.” Docket No. 362 at 3. 

In light of the partial denial of Apple’s motion in limine and denial of the motion to 

exclude, Apple I was discussed more than 50 times by counsel and witnesses during the 

eight-day consolidated trial. E.g., Docket No. 433 (1/25/2016 Trial Tr.) at 69:18–70:3, 

72:19–73:9, 133:22–134:4, 175:7–176:23, 186:13–19, 187:3–6, 188:7, 191:6–9, 192:23–193:6, 

206:5–8, 206:14–20, 213:4–6; Docket No. 434 (1/26/2016 Trial Tr.) at 47:9–19, 108:4–11, 

148:13–149:7, 149:14–19, 151:24–152:9, 160:12–161:4, 162:4–9, 165:7–16, 183:11–185:13, 

192:5–193:18, 197:7–199:14, 203:25–206:19; Docket No. 436 (1/27/2016 Trial Tr.) at 22:9–11, 

122:22–123:20; Docket No. 438 (1/28/2016 Trial Tr.) at 4:18–24, 184:17–185:10, 247:25–248:9; 

Docket No. 442 (2/1/2016 Trial Tr.) at 95:21–96:19, 106:3–9, 265:5–13; Docket No. 444 

(2/2/2016 Trial Tr.) at 174:13–18, 176:12–14, 176:20–23, 177:14–20, 177:21–23, 180:20–25, 

181:16–19, 192:6–10, 194:2–6, 194:15–19, 197:7–8, 198:21–23, 199:6–14, 200:13–15, 223:3–5, 

227:14–17, 239:16–17, 240:8–11, 241:20–22, 242:7–8; Docket No. 445 (2/2/2016 Trial Tr. 

(SEALED)) at 8:10–13. 

In its post-trial briefing, Apple identifies 17 occasions where VirnetX’s counsel 

mentioned or alluded to Apple I. See Docket No. 463 at 43–45; see also Docket No. 433 

(1/25/2016 Trial Tr.) at 186:13–19, 187:3–6, 191:6–9, 206:14–20; Docket No. 438 (1/28/2016 

Trial Tr.) at 4:18–24, 184:17–185:10; Docket No. 442 (2/1/2016 Trial Tr.) at 95:21–96:19, 

265:5–13. Comparably, VirnetX identifies 25 times where Apple mentioned or alluded to Apple 

I. See Docket No. 470 at 46–49 n.39; see also Docket No. 433 (1/25/2016 Trial Tr.) at 

175:7–176:23; Docket No. 436 (1/27/2016 Trial Tr.) at 122:22–123:20. The parties discussed 

the Apple I jury finding that original FaceTime infringes—a finding that was ultimately 

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reversed—at least five times. Docket No. 433 (1/25/2016 Trial Tr.) at 175:7–176:23, 186:13–19, 

191:6–9; Docket No. 436 (1/27/2016 Trial Tr.) at 122:22–123:20; Docket No. 442 (2/1/2016 

Trial Tr.) at 95:21–96:19. Of the times that VirnetX mentioned Apple I, Apple objected once

after opening arguments. Docket No. 434 (1/26/2016 Trial Tr.) at 11:11–16:3 (“We said it was a 

7th Amendment concern that we were being denied a fair right to a jury trial to have that prior 

verdict that was reversed and did not exist anymore brought up in front of this jury . . . .”). 

Aware that the parties planned to rely on Apple I throughout the trial (but unaware of the 

extent of that reliance), the Court discussed Apple I in the preliminary and final jury instructions. 

Docket No. 433 (1/25/2016 Trial Tr.) at 133:22–134:4, 146:23–148:11; Docket No. 444 

(2/2/2016 Trial Tr.) at 145:5–19, 157:1–10, 161:1–7. Specifically, from the final jury 

instructions:

The parties have stipulated, or agreed, to some facts in this case. When the 

lawyers on both sides stipulate to the existence of a fact, you must, unless 

otherwise instructed, accept the stipulation as evidence and regard the fact as 

proved. Additionally, a prior jury determined that Apple infringed certain 

claims of two patents via its [VOD] feature in iOS 3 through iOS 6, which was 

from 2009 to 2013. Throughout these instructions, I will refer to this feature as 

Apple’s “Original [VOD].” Just like stipulated facts, that determination is 

binding, and you must regard it as proved. However, all other infringement 

allegations are contested and you must determine whether those claims are 

infringed. You may not assume or infer that the other patents and claims are 

infringed simply because of this prior finding of infringement.

Docket No. 444 (2/2/2016 Trial Tr.) at 145:5–19 (emphasis added).

The jury found for VirnetX on all of the disputed issues. Docket No. 425. The jury 

selected a royalty rate of $1.41, which was in the upper half of the royalty rate range proposed by

VirnetX’s damages expert, Mr. Roy Weinstein. See id. at 1, 4. Following the verdict, Apple 

filed a motion for a new trial based upon the consolidation of Cause Nos. 6:10-cv-417 and 

6:12-cv-855. See Docket No. 463 at 41–45. 

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LEGAL STANDARD

A new trial may be granted when the trial is not fair to the moving party, such as through 

prejudice to that party or potential jury confusion. See Montgomery Ward & Co. v. Duncan, 311 

U.S. 243, 251 (1940). Regional circuit law applies to motions for new trial. Z4 Techs., Inc. v. 

Microsoft Corp., 507 F.3d 1340, 1347 (Fed. Cir. 2007). The Fifth Circuit states:

Rule 59 of the Federal Rules of Civil Procedure confirms the trial court’s historic 

power to grant a new trial based on its appraisal of the fairness of the trial and the 

reliability of the jury’s verdict. . . . A new trial may be granted, for example, if the 

district court finds the verdict is against the weight of the evidence, the damages 

awarded are excessive, the trial was unfair, or prejudicial error was committed in 

its course.

Smith v. Transworld Drilling Co., 773 F.2d 610, 612–13 (5th Cir. 1985) (footnotes omitted). 

PARTIES’ ARGUMENTS

In its motion for a new trial, Apple argues that mentioning Apple I to the jury during the 

consolidated trial prejudiced Apple. Docket No. 463 at 42. In other words, according to Apple, 

Apple I should have never been raised in a trial involving Cause No. 6:12-cv-855. Id. at 43–44. 

To avoid the prejudice, Apple states that the two cases should not have been tried

simultaneously. Id. at 45. Apple asks for a new trial for Cause No. 6:10-cv-417 and then a new 

trial for Cause No. 6:12-cv-855. Id.

Apple asserts that the jurors did not decide the consolidated case on the evidence 

presented at trial after VirnetX repeatedly told them that the first jury, in Apple I, found that 

original VOD and original FaceTime infringed VirnetX’s patents. Id. at 43, 45. Apple states 

that the jury in this case improperly deferred to the already determined infringement of original 

VOD when determining the infringement of new VOD. Id. Regarding FaceTime, Apple asserts 

that referring to Apple I created even more confusion and prejudice because the Federal Circuit’s 

remand changed the claim construction, requiring a completely new infringement analysis of 

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original FaceTime. Id. at 44; Docket No. 475 at 25 (citing Johns Hopkins Univ. v. CellPro, Inc., 

152 F.3d 1342, 1363 (Fed. Cir. 1998) (“[W]e agree with Hopkins that consideration of the 1995 

jury verdict, which was ultimately determined to be premised upon an erroneous claim 

construction, had significant potential to confuse the jury.”)). Moreover, according to Apple, 

when the jury in this case was deciding whether new FaceTime infringed, it had no way to 

disregard VirnetX’s repeated statements that the jury in Apple I had found that original FaceTime 

infringed. Docket No. 463 at 43.

Regarding willfulness and damages, Apple argues that consolidation “confused and 

prejudiced the jury’s ability to fairly award damages and decide willfulness—confusion that 

VirnetX exacerbated by tying damages and willfulness together.” Id. at 44. Immediately after 

relying on the Apple I jury verdict for evidence of willfulness, VirnetX allegedly implied that 

Apple should be monetarily punished for its actions, a measure of damages not permitted by law. 

Id. at 44. When Apple I was repeatedly mentioned by VirnetX during the trial, Apple states that 

it had no choice but to attempt to give the verdict context by also discussing it. Docket No. 475 

at 25.

In response, VirnetX argues that the cases should not be unconsolidated and retried. 

Docket No. 470 at 48. VirnetX asserts that the Court properly consolidated Cause Nos. 

6:10-cv-417 and 6:12-cv-855 based upon common questions of law or fact, the same plaintiff, 

the same defendant and the same accused products and features. Id. According to VirnetX, 

when given the choice between consolidating the cases or having a trial for Cause No. 

6:12-cv-855 in October of 2015 and then a trial for Cause No. 6:10-cv-417 at some later date, 

Apple chose to consolidate the cases. Id. at 46. Further, VirnetX states that because Apple never 

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requested a mistrial based upon VirnetX’s comments about Apple I, it did not properly preserve 

its basis for a new trial. Id. at 46–47.

VirnetX further argues that references to Apple I did not prejudice Apple because the jury 

needed to hear about the previous findings of infringement as evidence that Apple committed 

willful infringement, an issue before the jury. Docket No. 480 at 24. VirnetX asserts that the 

facts here directly mirror those in Applied Medical Resources Corp. v. U.S. Surgical Corp., 435 

F.3d 1356 (Fed. Cir. 2006). Id. From VirnetX’s perspective, because Apple redesigned original 

VOD following Apple I, the Apple I verdict is “clearly relevant to [Apple’s] state of mind” for 

willfulness. Docket No. 480 at 24 (citing U.S. Surgical, 435 F.3d at 1366). Because of 

VirnetX’s willfulness claims, VirnetX asserts that the jury in Cause No. 6:12-cv-855 would have 

needed to hear about Apple I even if the cases had not been consolidated. Docket No. 480 at 

25–26.

ANALYSIS

The Court is faced with the difficult question of whether consolidating the cases, coupled 

with the repeated witness testimony and argument of counsel regarding the prior jury verdict in 

Apple I, was unfairly prejudicial to Apple and potentially confusing to the jury. See Montgomery 

Ward, 311 U.S. at 251. The role of the jury in our system of justice is, of course, fundamental. 

We leave it to the jury to sort through the facts, even in the most complex of cases. The Court 

must “respect the jury’s collective wisdom,” and it may not “simply substitute its opinion for the 

jury’s.” Smith, 773 F.2d at 613. However, a new trial should be granted when “prejudicial error 

was committed in its course.” Id. Prejudicial error cannot be remedied even through the best 

efforts of the jury to sort through the issues, because the jury is not given an opportunity to fairly 

evaluate the evidence. 

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A party may be prejudiced if the issues in a consolidated case are too similar for a jury to 

distinguish. See United States v. Homeward Residential, Inc., Cause Nos. 4:12-cv-461, 

4:12-cv-543, 2016 WL 777000, at *3 (E.D. Tex. Feb. 29, 2016) (“However, while OFC is a 

defendant in both of the Ocwen and Homeward cases, its roles and reasons for liability are 

distinct, and the Court finds that consolidation would blur the legal distinctions and could 

confuse the jury.”). Whether to consolidate cases is within the discretion of the Court. See Alley 

v. Chrysler Credit Corp., 767 F.2d 138, 140 (5th Cir. 1985). 

In addition, describing a prior verdict before a jury often prejudices a party. D.C. Barrett, 

Propriety & Prejudicial Effect of Reference by Counsel in Civil Case to Result of Former Trial 

of Same Case, or Amount of Verdict Therein, 15 A.L.R.3d 1101 (1967) (collecting cases). “The 

admission of a prior verdict creates the possibility that the jury will defer to the earlier result and 

thus will, effectively, decide a case on evidence not before it.” Coleman Motor Co. v. Chrysler 

Corp., 525 F.2d 1338, 1351 (3d Cir. 1975).

The Court’s decision to consolidate Cause Nos. 6:10-cv-417 and 6:12-cv-855 merged two 

cases with incredibly similar issues. Counsel’s and witnesses’ repeated statements about the 

Apple I verdict during the trial created the potential for the jury to defer to the previous jury’s 

infringement findings, even though those findings were partially reversed on appeal. See 

Coleman, 525 F.2d at 1351 (“A jury is likely to give a prior verdict against the same defendant 

more weight than it warrants.”). Moreover, the complexity of the issues and extensive 

procedural history of the consolidated case magnified the risk of deference to Apple I because of 

jury confusion. Trying the cases at the same time required the jury to evaluate different versions 

of two accused features, a total of three separate accused features and persistent statements about 

a robust procedural history that only applied to certain versions of some of the features. In other 

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words, the jury was tasked with using Apple I for the purposes affirmed in Cause No. 

6:10-cv-417, while at the same time ignoring Apple I when determining the reversed findings in 

Cause No. 6:10-cv-417 and the new infringement and damages issues in Cause No. 6:12-cv-855. 

In some instances, Apple I and the complicated procedural history made it potentially difficult 

for the jury to distinguish between the disputed issues because it was repeatedly used as a 

shortcut for the infringement analysis. See, e.g., Docket No. 434 (1/26/2016 Trial Tr.) at 108:4–

11, 148:13–149:7, 149:14–19, 151:24–152:9, 160:12–161:4, 162:4–9, 165:7–16, 183:11–185:13, 

192:5–193:18, 197:7–199:14, 203:25–206:19. In other instances, the statements were gratuitous

and likely exacerbated any reliance on Apple I. See, e.g., Docket No. 433 (1/25/2016 Trial Tr.) 

at 175:20–22; Docket No. 444 (2/2/2016 Trial Tr.) at 177:21–23, 192:6–10, 242:7–8. 

As discussed during the pretrial conference, Docket No. 389 at 86:8–14, the effect of 

Apple I on the jury in the consolidated case could not be fully appreciated until it was given 

context within the trial. While the Court allowed Apple I to be discussed through its rulings, 

including orders on a motion in limine and a motion to exclude, the parties went well beyond 

what was appropriate and should not have referred to Apple I with such frequency. Indeed, many 

statements regarding Apple I were unnecessary. See, e.g., Docket No. 433 (1/25/2016 Trial Tr.) 

at 175:20–22; Docket No. 444 (2/2/2016 Trial Tr.) at 177:21–23, 192:6–10, 242:7–8. Although

the Court was able to observe the jurors throughout trial and is convinced that they made their 

best effort, Docket No. 446 (2/3/2016 Trial Tr.) at 9:13–19, the repeated references to Apple I, 

particularly those that were unnecessary, may well have prevented them from evaluating the 

evidence without improperly relying on the Apple I verdict. See Conway v. Chem. Leaman Tank 

Lines, Inc., 525 F.2d 927, 930 (5th Cir. 1976) (“But if one cannot say, with fair assurance, after 

pondering all that happened without stripping the erroneous action from the whole, that the 

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judgment was not substantially swayed by the error, it is impossible to conclude that substantial 

rights were not affected.”). 

VirnetX’s reliance on U.S. Surgical to support its use of Apple I throughout the 

consolidated trial is unpersuasive because the circumstances here differ from those in U.S. 

Surgical. In U.S. Surgical, the district court made an evidentiary ruling that allowed the plaintiff 

Applied Medical Resources to introduce evidence regarding a prior verdict in the same case

(“Applied I”). 435 F.3d at 1365–66. On appeal, the district court’s ruling was affirmed, because 

Applied I was relevant to (1) a hypothetical negotiation (i.e., damages) and (2) the defendant U.S. 

Surgical’s state of mind when it decided to make the infringing products (i.e., willfulness). Id. at 

1366. With respect to willfulness, U.S. Surgical redesigned its infringing product because of 

Applied I, making the prior litigation and verdict “clearly relevant to U.S. Surgical’s state of 

mind” for willfulness. Id. According to the Federal Circuit, U.S. Surgical did not show that its 

probative value was outweighed by the danger of unfair prejudice. Id. 

In contrast to U.S. Surgical where the only disputed issues at the trial were damages 

owed for the defendant’s infringing sales and whether the infringement was willful, 

infringement, damages and willfulness were disputed in this consolidated case. See id. at 1359. 

U.S. Surgical did not present the same potential for jury confusion and unfair prejudice as the

consolidated case because liability was undisputed. Although a prior verdict may be relevant in 

determining whether a defendant’s infringement is willful, the prior verdict may have an unfair 

prejudicial effect when it is discussed in depth with multiple witnesses. See id. at 1366 (“U.S. 

Surgical has not shown that its probative value was outweighed by the danger of unfair 

prejudice.”). The sheer number of times Apple I was raised in the consolidated trial further 

distinguishes the situation here from that in U.S. Surgical. Compare Docket No. 444 (2/2/2016 

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Trial Tr.) at 174:13–18, 176:12–14, 176:20–23, 177:14–20, 177:21–23, 180:20–25, 181:16–19, 

192:6–10, with U.S. Surgical, 435 F.3d at 1366 (identifying an in-house patent lawyer’s 

testimony and an admission that a product redesign was an effort to avoid willful infringement). 

By way of example, the following argument by counsel and witness testimony was 

proffered during the trial:

But you’ll hear that Apple—I’m sorry—that VirnetX filed a lawsuit 

against Apple—that was way back in 2010, almost five and a half years ago—

seeking fair compensation. 

And you’ll hear that Apple said no, said [VOD] is not infringing, said 

FaceTime is not infringing. And they said a lot of things that I believe we’ll be 

able to prove to you were wrong. 

There was a trial in November of 2012 right here in this courthouse and 

right here in this courtroom. And at trial Apple said those same remarks about 

not using the patent. 

As you know, the jury didn’t believe them and agreed with us. And there 

was a verdict in late 2012, November, that [VOD] and FaceTime infringes [sic].

Docket No. 433 (1/25/2016 Trial Tr.) at 175:8–22 (VirnetX’s opening argument) (emphasis 

added);

Q: Okay. What was the result of the litigation against Apple, Mr. Larsen?

A: Apple was found to infringe our patents on two different product lines, 

[VOD] as well as FaceTime.

Q: Okay. And after they were determined to have infringed those patents by the 

jury, what happened?

A: Apple appealed that decision to the Federal Circuit Court of Appeals in 

Washington D.C.

Docket No. 436 (1/27/2016 Trial Tr.) at 122:22–123:5 (Mr. Kendall Larsen’s, VirnetX’s 

corporate representative, direct examination) (emphasis added);

Q: And then there was a verdict in 2012. Apple didn’t step up and take 

responsibility for [VOD] then, did it?

A: No. We didn’t feel we needed to.

Q: And then an appellate court said, no, Apple you’re wrong, in 2014, you do 

infringe. You didn’t say, we’re responsible, there’s no dispute, did you?

A: At the appellate court they ruled that [VOD] “always” mode did infringe, 

and we owned that.

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Docket No. 438 (1/28/2016 Trial Tr.) at 247:25–248:9 (Mr. Frank Casanova’s, Apple’s corporate 

representative, cross examination) (emphasis added);

Q: Is this your first trial against Apple?

A: No, sir, it’s not.

Q: When was the last one?

A: 2012, I believe.

Q: And what did the jury in that trial conclude about [VOD] and FaceTime?

A: Their conclusion was that it did indeed infringe on our—our patents.

Q: And am I correct that the finding on [VOD] was affirmed?

A: That’s my understanding yes, sir.

Docket No. 434 (1/26/2016 Trial Tr.) at 47:9–19 (Dr. Robert Short’s, co-inventor, direct 

examination) (emphasis added);

We heard from Mr. Patience, who at the time was right at the top. He had a boss, 

and that boss’s boss was Tim Cook. And he admits that they decided to keep on 

infringing.

Docket No. 444 (2/2/2016 Trial Tr.) at 177:21–23 (VirnetX’s closing argument) (emphasis 

added);

But I think this testimony from Mr. Patience is telling of Apple’s attitude towards

VirnetX’s intellectual property. He didn’t think they had any obligation to make a 

change even after they’d been found liable for infringement. Keep on infringing.

No change to [VOD].

Id. at 192:6–10 (VirnetX’s closing argument) (emphasis added); and

VirnetX fought to keep the verdict it had because VirnetX wants justice on the 

patents.

Id. at 242:7–8 (VirnetX’s closing argument) (emphasis added). The Court is left with the 

conclusion that repeated statements such as these—more than 50 in all, many of which were

either redundant or gratuitous—tipped the balance towards unfairly prejudicing Apple. 

Moreover, although iMessage was not part of Apple I, the confusion and unfair prejudice 

associated with new VOD, original FaceTime and new FaceTime potentially spilled over into the 

jury’s finding of infringement of iMessage. Further, in this consolidated case, there is no way to 

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untangle liability from damages. The repeated references to Apple I may have influenced the 

royalty rate selected by the jurors. See Docket No. 444 (2/2/2016 Trial Tr.) at 195:20–25, 

250:12–25 (“I’m also a little bit bothered by this notion that Apple is saying, basically you 

should punish VirnetX and keep the damages down . . . .”) (VirnetX’s closing argument). 

Because only certain findings from the previous jury verdict were relevant to the consolidated 

case and in light of the repeated references to that prior verdict, there was a substantial risk that 

the jury would defer to the prior jury’s findings altogether. To be clear, the consolidated case 

could very likely have been tried successfully—and fairly—had the Apple I verdict not been 

repeatedly mentioned, often unnecessarily, throughout the trial. Indeed, were the Court 

examining a motion for a new trial based upon the consolidation alone, this scenario would in all 

likelihood not dictate the same result. However, under the circumstances here, the repeated 

references to the prior jury verdict in the consolidated case resulted in an unfair trial.

CONCLUSION

Apple’s Motion for a New Trial Based Upon the Consolidation of Cause Nos. 

6:10-cv-417 and 6:12-cv-855 (Docket No. 463 at 41–45) is GRANTED. The Court is acutely 

aware of the significant time, effort and considerable resources expended by the parties, counsel 

and the Court itself in preparing for and trying this case. The substantial inconvenience to the 

jury resulting from eight days of trial and the time jurors were forced to spend away from family, 

work and other responsibilities must also be recognized. The Court does not reach this decision 

lightly or without considering fully the briefing, argument of counsel and the interests of the 

parties in bringing this matter to a final conclusion. Despite these important considerations, the 

Court’s paramount obligation—to ensure that both sides receive a fair and impartial trial

—compels this result.

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Accordingly, the orders consolidating the cases (Cause No. 6:10-cv-417, Docket No. 878;

Cause No. 6:12-cv-855, Docket No. 220) are hereby VACATED. The issue of willfulness in 

both cases is BIFURCATED. Cause No. 6:10-cv-417 will be retried with jury selection to 

begin on September 26, 2016, unless the parties agree otherwise on an alternative date, and 

immediately followed by a second trial on the issue of willfulness. Cause No. 6:12-cv-855 will 

be retried after Cause No. 6:10-cv-417. 

The parties are ORDERED to meet and confer and file a joint pretrial plan for Cause No. 

6:10-cv-417 within ten (10) days of this order. The pretrial plan should include agreed upon 

language for the Court to read to the jury that addresses Apple I and the subsequent procedural 

history. During the trials, the parties are required to provide fair notice to each other and the 

Court before raising Apple I. 

.

 

____________________________________

ROBERT W. SCHROEDER III

UNITED STATES DISTRICT JUDGE

So ORDERED and SIGNED this 29th day of July, 2016.

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Exhibit 20

[Filed Under Seal]

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Exhibit 21

[Filed Under Seal]

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Exhibit 22

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 61 of 73
1

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 SAN JOSE DIVISION

4

5 CHRISTINA GRACE and KEN )

POTTER, Individually and on)

6 Behalf of All Others )

Similarly Situated )

7 )

 Plaintiffs, )

8 )

 vs. ) No. 5:17-cv-00551-LHK-NC

9 )

APPLE, INC., )

10 )

 Defendant. )

11 __ )

12

13

14 HIGHLY CONFIDENTIAL UNDER PROTECTIVE ORDER

15 DEPOSITION OF BETH KELLERMANN

16 San Francisco, CA

17 Wednesday, February 14, 2018

18

19

20

21

22

23 REPORTED BY:

24 SUSAN F. MAGEE, RPR, CCRR, CLR, CSR No. 11661

25

[2/14/2018] Kellermann, Beth - HIGHLY CONFIDENTIAL

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 62 of 73
2

1 APPEARANCES:

2 PEARSON SIMON WARSHAW LLP

3 Attorneys for Plaintiffs

4 15165 Ventura Boulevard

5 Suite 400

6 Sherman Oaks, CA 91403

7 (818) 788-8300

8 dwarshaw@pswlaw.com

9 BY: DANIEL L. WARSHAW, ESQ.

10

11 STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP

12 One California Street

13 Third Floor

14 San Francisco, CA 94111

15 (415) 421-3400

16 sjain@steyerlaw.com

17 BY: SUNEEL JAIN, ESQ.

18

19 KIRKLAND & ELLIS LLP

20 Attorney for Defendant

21 333 South Hope Street

22 Los Angeles, CA 90071

23 (213) 680-8405

24 alexander.pilmer@kirkland.com

25 BY: R. ALEXANDER PILMER, ESQ.

[2/14/2018] Kellermann, Beth - HIGHLY CONFIDENTIAL

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 63 of 73
13

1 improved technologies and processes for responding to

2 electronic discovery.

3 Q. Okay. So how long did you hold that position

4 as e-discovery manager at Apple?

5 A. I want to say in 2014 my position -- I ended up

6 taking on more responsibility besides just electronic

7 discovery for litigation. I'm still -- I still oversee

8 electronic discovery as part of my role and

9 responsibility. I also now and have since 2014 managed

10 the matter management/eBilling services for litigation.

11 Somewhere in 2012, although my title didn't change, I

12 took over responsibility for the legal specialist on the

13 team, so I went from e-discovery manager to e-discovery

14 and specialist manager to litigation operations manager.

15 So if that makes any sense, the timeline would

16 have been 2007 to 2012 as the e-discovery manager; 2012

17 to 2014 as e-discovery and specialist manager; 2014 to

18 today litigation support manager.

19 Q. So it seems --

20 A. I'm sorry. Litigation operations manager.

21 Q. So it seems like your duties just increased and

22 you kept a lot of the previous duties?

23 A. Correct.

24 Q. Is that a fair way to summarize it?

25 A. Correct.

[2/14/2018] Kellermann, Beth - HIGHLY CONFIDENTIAL

Case 5:17-cv-00551-LHK Document 201-2 Filed 06/15/18 Page 64 of 73
16

1 A. Yes.

2 Q. Who is that person in the department?

3 A. I report to Noreen Krall, K-r-a-l-l. She's the

4 VP of litigation.

5 Q. Is Ms. Krall the highest person --

6 highest-ranking person at Apple in the litigation

7 department?

8 A. In the litigation department, yes.

9 Q. So you mentioned previously that you've been

10 deposed several times.

11 Were any of those depositions regarding

12 litigation concerning Apple?

13 A. I'm -- I'm the designated 30(b)(6) witness for

14 topics related to records management, information

15 governance, e-discovery, how Apple produces its

16 documents in litigation.

17 Q. Have you ever been designated as a corporate

18 witness in state or federal court for anything other

19 than records management, e-discovery, production of

20 documents?

21 MR. PILMER: I'll object to the form.

22 THE WITNESS: There was one case. It was a

23 patent litigation matter where they took my 30(b)(6)

24 deposition and then -- and then reopened a new

25 deposition to ask me about how I used certain features

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127

1 APL-GRACE_00001958.

2 (Exhibit 4, Excerpt of APL-GRACE_00001958 (2

3 pages), marked for identification.)

4 BY MR. WARSHAW:

5 Q. So I spoke with your counsel about this prior

6 to the deposition. We've created the cover page and

7 printed out the first page of a very voluminous

8 spreadsheet just so you can see the format of it.

9 Have you seen this spreadsheet before in either

10 paper or electronic form?

11 A. I've seen it in electronic form.

12 Q. Okay. And I have an electronic copy of it on

13 my laptop. If you'd like to look at that now while I

14 question you, that's fine if it will help you answer the

15 questions.

16 MR. PILMER: I have it on mine too so she can

17 look at it on mine if she wants.

18 BY MR. WARSHAW:

19 Q. And I'm not going to ask you about what the

20 serial numbers are on the spreadsheet. I'm going to ask

21 you questions about how the spreadsheet was developed.

22 So you won't need to necessarily refer to anything on

23 the spreadsheet to answer the questions, but I want to

24 make sure you have it front of you in case you feel more

25 comfortable having a complete version of the document

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128

1 because printing it out would take thousands and

2 thousands and thousands of pages.

3 A. Understood.

4 MR. WARSHAW: Great. Thank you.

5 What exhibit number are we on?

6 THE REPORTER: 4.

7 MR. WARSHAW: Thank you.

8 BY MR. WARSHAW:

9 Q. So do you know what the spreadsheet contains?

10 A. So this spreadsheet is a list of serial numbers

11 and the iOS device that -- I mean, the iOS version that

12 they were running on -- each of these serial numbers

13 were running on on it looks like April 15th, April 16th

14 and April 17th of -- I'm not sure what year. I know it

15 was April.

16 Q. So I can represent to you that our

17 understanding is that the year is 2014 of what we call

18 the FaceTime break, but you folks say FaceTime stopped

19 functioning due to certificate expiration.

20 Does that make sense -- does that refresh your

21 memory about the year?

22 A. Yes. I know those were the dates at issue.

23 Q. Do you know whether or not, if a certain serial

24 number iPhone 4 or 4S would be listed on this report,

25 Exhibit 4, if the only transaction that occurred was the

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Exhibit 24

[Filed Under Seal]

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Exhibit 25

[Filed Under Seal]

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Exhibit 26

[Filed Under Seal]

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Exhibit 27

[Filed Under Seal]

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Exhibit 28

[Filed Under Seal]

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