DEFENDANT’S RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF 

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Elizabeth L. Deeley (SBN 230798) 

Kristin I. Sheffield-Whitehead (SBN 304635) 

KIRKLAND & ELLIS LLP 

555 California Street, Suite 2700 

San Francisco, California 94104 

Telephone: (415) 439-1400 

Facsimile: (415) 439-1500 

Email: elizabeth.deeley@kirkland.com 

Email: kwhitehead@kirkland.com 

Joseph A. Loy (admitted pro hac vice) 

KIRKLAND & ELLIS LLP 

601 Lexington Avenue 

New York, New York 10022 

Tel: (212) 446-4800 

Fax: (212) 446-4900 

Email: joseph.loy@kirkland.com 

Attorneys for Defendant 

Apple Inc. 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

CHRISTINA GRACE and KEN POTTER, 

Individually and on Behalf of All Others 

Similarly Situated, 

Plaintiffs, 

v. 

APPLE INC., 

Defendant. 

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CASE NO. 5:17-CV-00551-LHK 

DEFENDANT APPLE INC.’S 

RESPONSES TO PLAINTIFFS’ FIRST 

REQUEST FOR PRODUCTION OF 

DOCUMENTS 

PROPOUNDING PARTY: PLAINTIFFS 

RESPONDING PARTY: DEFENDANT APPLE INC. 

SET NUMBER: ONE

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 Defendant Apple Inc. (“Apple”) responds to Plaintiffs’ First Requests for Production of 

Documents, including the Definitions and Instructions incorporated therein (collectively, the 

“Requests”), as follows: 

SPECIFIC OBJECTIONS 

REQUEST FOR PRODUCTION NO. 1:

Documents sufficient to establish (i) the total number and total duration of FaceTime calls 

connected during each day of the Relevant Time Period, (ii) the total number and total duration of 

FaceTime calls connected through the Peer-to-Peer Method during each day of the Relevant Time 

Period, and (iii) the total number and total duration of FaceTime calls connected through the Relay 

Method during each day of the Relevant Time Period. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 1: 

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to a relevant time period or to the devices and 

versions of iOS at issue in this case. Apple objects to this Request because the term “connected” is 

vague and ambiguous and because Plaintiffs’ Request makes incorrect assumptions about the way 

FaceTime works. Subject to and without waiving its General or Specific Objections, Apple will meet 

and confer with Plaintiffs regarding what data is available, if any, with respect to FaceTime usage data 

from within the timeframe of November 7, 2012 through May 16, 2014. 

REQUEST FOR PRODUCTION NO. 2:

All Documents concerning (i) Your Relay Usage; (ii) any costs, fees, expenses and/or charges 

incurred by You in connection with Your Relay Usage, including any contracts, draft contracts or 

Communications concerning any such costs, fees, expenses and charges; and/or (iii) payments made 

by You in connection with Your Relay Usage, including payments related to use of Akamai’s servers. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 2:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to a relevant time period and because it seeks 

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“all” documents when a subset would be sufficient. Subject to and without waiving its General or 

Specific Objections, Apple agrees to produce non-privileged documents, if any, sufficient to show 

Apple’s payments to Akamai from November 7, 2012 to May 16, 2014 for FaceTime calls and Apple’s 

contracts with Akamai applicable to FaceTime relay service from 2012 through the end of 2015. 

REQUEST FOR PRODUCTION NO. 3:

All Documents concerning the impact of the VirnetX Actions on (i) FaceTime calls connected 

through the Peer-to-Peer Method during the Relevant Time Period; (ii) Your Relay Usage; (iii) any 

costs, fees, expenses and/or charges expected, incurred and/or paid by You in connection with Your 

Relay Usage; (iv) iOS, and/or (v) FaceTime. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 3:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that Apple intentionally 

“broke” FaceTime for any reason, much less to reduce Apple’s payments to Akamai. Apple objects 

to this Request because the phrase “concerning the impact of the VirnetX Actions” is vague and 

ambiguous. Apple objects to this Request as overly broad, unduly burdensome, and not relevant or 

proportional to the needs of this case, including because it is not limited to a relevant time period or 

to the devices and versions of iOS at issue in this case and because it seeks “all” documents when a 

subset would be sufficient. 

REQUEST FOR PRODUCTION NO. 4:

All Documents concerning (i) Your desire and/or attempts to reduce Relay Usage, and/or (ii) 

any expected or actual costs, fees, expenses or charges in connection with Your Relay Usage. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 4:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that Apple had a desire to or 

attempted to reduce its payments to Akamai by “breaking” FaceTime. Apple objects to this Request 

as overly broad, unduly burdensome, and not relevant or proportional to the needs of this case, 

including because it is not limited to a relevant time period and because it seeks “all” documents when 

a subset would be sufficient. Apple objects to this Request because the phrase “Your desire and/or 

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attempts to reduce” is vague and ambiguous. Apple objects to this Request to the extent its second 

subpart is duplicative of Request No. 2. Subject to and without waiving its General or Specific 

Objections, Apple agrees to produce non-privileged documents, if any, sufficient to show Apple’s 

payments to Akamai from November 7, 2012 to May 16, 2014 for FaceTime calls and Apple’s 

contracts with Akamai for FaceTime relay service from 2010 through the end of 2015. 

REQUEST FOR PRODUCTION NO. 5:

All Documents concerning the intended, expected and/or actual impact of iOS 7 on (i) Relay 

Usage, and/or (ii) any expected or actual costs, fees, expenses or charges incurred by You in 

connection with Your Relay Usage. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 5:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to the devices at issue in this case and because it 

seeks “all” documents when a subset would be sufficient. Apple objects to this Request because the 

phrase “intended, expected and/or actual impact of iOS 7” is vague and ambiguous. Apple objects to 

this Request to the extent it is duplicative of Request Nos. 2 and 4. Subject to and without waiving its 

General or Specific Objections, Apple agrees to produce non-privileged documents, if any, sufficient 

to show Apple’s payments to Akamai from November 7, 2012 to May 16, 2014 for FaceTime calls 

and Apple’s contracts with Akamai for FaceTime relay service from 2010 through the end of 2015. 

REQUEST FOR PRODUCTION NO. 6: 

Documents sufficient to show, on a product-by-product basis, a breakdown of the iOS versions 

used by iPhone, iPad and iPod Touch users throughout the Relevant Time Period. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 6:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to a relevant time period or to the devices and 

versions of iOS at issue in this case. Apple objects to this Request because the phrase “breakdown of 

the iOS versions” is vague and ambiguous. Subject to and without waiving its General or Specific 

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Objections, Apple will meet and confer regarding what data is available, if any, with respect to this 

Request from within the timeframe of September 1, 2013 to April 16, 2015 and as limited to iPhone 4 

and 4S devices and the iOS versions at issue in this case. 

REQUEST FOR PRODUCTION NO. 7:

All Documents concerning the FaceTime Break, including all Documents concerning (i) the 

origin of the idea for the FaceTime Break; (ii) the decision to implement the FaceTime Break; (iii) 

potential alternatives to the FaceTime Break; (iv) actions taken in furtherance of and/or to implement 

the FaceTime Break (including Documents showing how the FaceTime Break was actually 

implemented); (v) preparation for—and expectations concerning—the FaceTime Break; (vi) views 

and beliefs concerning the propriety and/or impact” of the FaceTime Break; (vii) the impact of the 

FaceTime Break on iPhones, iPads, iPod Touches and/or other Apple devices; (viii) the impact of the 

FaceTime Break on Your Relay Usage, and any fees, costs, charges or expenses related thereto; and 

(ix) reactions, responses and complaints concerning the FaceTime Break. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 7:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that Apple intentionally 

“broke” FaceTime for any reason, much less to reduce Apple’s payments to Akamai. Apple objects 

to this Request as overly broad, unduly burdensome, and not relevant or proportional to the needs of 

this case, including because it is not limited to the devices at issue in this case and because it seeks 

“all” documents when a subset would be sufficient. Apple objects to this Request because the terms 

“origin of the idea,” “decision to implement,” “potential alternatives,” “actions taken in furtherance of 

and/or to implement,” “actually implemented,” “preparation for,” “expectations concerning,” “views 

and beliefs concerning the propriety and/or impact,” “the impact of,” and “reactions, responses, and 

complaints” are vague and ambiguous. Apple objects to this Request to the extent it is duplicative of 

Request Nos. 2, 4, and 5. Subject to and without waiving its General or Specific Objections, Apple 

(a) agrees to produce non-privileged 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—located after a 

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reasonably diligent search and subject to the parties’ agreement on reasonable search terms, and (b) 

will meet and confer with Plaintiffs regarding what data is available, from a relevant time period, with 

respect to customer care log data regarding FaceTime on iPhone 4 and 4S devices. 

REQUEST FOR PRODUCTION NO. 8:

Documents sufficient to identify the name, contact information (including billing address), 

Apple ID, phone number, DSID, registered country, and iOS version used by each such Apple iPhone 

user for each of the following dates: (i) April 15, 2014; (ii) April 16, 2014; and (iii) April 17, 2014. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 8:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to the devices at issue in this case. Apple objects 

to this Request because the phrase “each such Apple iPhone user” is vague and ambiguous. Apple 

objects to this Request to the extent that it seeks private and confidential information of non-parties 

whose privacy is protected by the United States Constitution, all other state constitutions, the 

Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2522, 2701-2711, and/or all other 

applicable federal and state privacy laws. Apple is not authorized to and cannot waive third parties’ 

statutory and constitutional privacy rights and will not produce any documents implicating such rights. 

Apple objects to this Request to the extent it is duplicative of Request No. 14. 

REQUEST FOR PRODUCTION NO. 9:

Documents sufficient to show (i) all FaceTime calls attempted during the Relevant Time 

Period, (ii) the date and duration of each FaceTime call attempted during the Relevant Time Period; 

and (iii) whether each such call was successfully connected. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 9:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to a relevant time period or to the devices and 

versions of iOS at issue in this case. Apple objects to this Request because the phrases “calls 

attempted” and “successfully connected” are vague and ambiguous. Apple objects to this Request to 

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the extent it is duplicative of Request No. 1. Subject to and without waiving its General or Specific 

Objections, Apple will meet and confer with Plaintiffs regarding what data is available, if any, with 

respect to FaceTime usage data from within the timeframe of November 7, 2012 through May 16, 

2014. 

REQUEST FOR PRODUCTION NO. 10:

All Documents concerning iOS usage rates during the Relevant Time Period, including 

Documents sufficient to show, on a product-by-product basis (including the product version), the 

expected and actual number and percentage of Apple iPhone, iPad and iPod Touch customers who 

moved to different iOS versions during the Relevant Time Period. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 10:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to a relevant time period or to the devices and 

versions of iOS at issue in this case and because it seeks “all” documents when a subset would be 

sufficient. Apple objects to this Request because the phrases “expected . . . number and percentage” 

and “moved to different iOS versions” are vague and ambiguous. Subject to and without waiving its 

General or Specific Objections, Apple agrees to produce non-privileged documents, if any, sufficient 

to show the number of iPhone 4 and 4S users who upgraded from iOS 6 or earlier versions to iOS 7 

from September 2013 through September 2014, to the extent such data is available to Apple. 

REQUEST FOR PRODUCTION NO. 11:

All Documents concerning Your ability to restore FaceTime functionality to devices running 

pre-iOS 7 operating systems following the FaceTime Break. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 11:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that Apple intentionally 

“broke” FaceTime. Apple objects to this Request as overly broad, unduly burdensome, and not 

relevant or proportional to the needs of this case, including because it is not limited to the devices at 

issue in this case and because it seeks “all” documents when a subset would be sufficient. Apple 

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objects to this Request because the phrase “Your ability to restore FaceTime functionality” is vague 

and ambiguous. Apple objects to this Request as duplicative of Request Nos. 7 and 27. Subject to 

and without waiving its General or Specific Objections, Apple agrees to produce non-privileged 

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—located after a reasonably diligent search and subject to the 

parties’ agreement on reasonable search terms. 

REQUEST FOR PRODUCTION NO. 12:

All Documents concerning iPhone performance or functionality issues related to, caused by 

and/or arising from iOS 7, including performance or functionality issues affecting iPhone 4 and iPhone 

4S devices following migration to iOS 7. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 12:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that iOS 7 was not compatible 

with iPhone 4 and 4S devices. Apple objects to this Request as overly broad, unduly burdensome, and 

not relevant or proportional to the needs of this case, including because it is not limited to a relevant 

time period or to the devices at issue in this case and because it seeks “all” documents when a subset 

would be sufficient. Apple objects to this Request because the phrases “performance or functionality 

issues” and “related to, caused by and/or arising from” are vague and ambiguous, as is Plaintiffs’ 

reference to iOS 7 without specifying which version of iOS 7. Apple objects to this Request to the 

extent that it is duplicative of Request No. 13. Subject to and without waiving its General or Specific 

Objections, Apple will meet and confer with Plaintiffs regarding what data is available, if any, with 

respect to Apple’s assessment of performance of iOS 7 on iPhone 4 and iPhone 4S devices. 

REQUEST FOR PRODUCTION NO. 13:

All Documents reflecting any outreach – including any inquiries, questions, complaints and/or 

any other comments – to Apple concerning performance or functionality issues related to, caused by 

and/or arising from iOS 7, including any logs or databases kept by Apple customer care. 

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RESPONSE TO REQUEST FOR PRODUCTION NO. 13:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that iOS 7 was not compatible 

with iPhone 4 and 4S devices. Apple objects to this Request as overly broad, unduly burdensome, and 

not relevant or proportional to the needs of this case, including because it is not limited to a relevant 

time period or to the devices at issue in this case and because it seeks “all” documents when a subset 

would be sufficient. Apple objects to this Request because the term “outreach,” and the phrases 

“performance or functionality issues,” and “related to, caused by and/or arising from” are vague and 

ambiguous, as is Plaintiffs’ reference to iOS 7 without specifying which version of iOS 7. Subject to 

and without waiving its General or Specific Objections, Apple will meet and confer with Plaintiffs 

regarding what customer care log data, if any, is available—from a relevant time period and as limited 

to iPhone 4 and 4S devices—that is responsive to this Request. 

REQUEST FOR PRODUCTION NO. 14:

Data sufficient to show (i) the identity of each Apple iPhone user affected by the FaceTime 

Break; (ii) the iPhone device and iOS version used by each such iPhone user as of the time of the 

FaceTime Break; (iii) each such iPhone user’s Apple ID, and (iv) the most updated contact information 

available for each such iPhone user. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 14:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that Apple intentionally 

“broke” FaceTime. Apple objects to this Request overly broad, unduly burdensome, and not relevant 

or proportional to the needs of this case, including because it is not limited to the devices at issue in 

this case. Apple objects to this Request because the phrase “affected by the FaceTime Break” is vague 

and ambiguous. Apple objects to this Request to the extent that it seeks private and confidential 

information of non-parties whose privacy is protected by the United States Constitution, all other state 

constitutions, the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2522, 2701-2711, 

and/or all other applicable federal and state privacy laws. Apple is not authorized to and cannot waive 

third parties’ statutory and constitutional privacy rights and will not produce any documents 

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implicating such rights. Apple objects to this Request to the extent it is duplicative of Request No. 8. 

Subject to and without waiving its General or Specific Objections, Apple will meet and confer with 

Plaintiffs regarding what data is available, from a relevant time period, with respect to customer care 

log data regarding FaceTime on iPhone 4 and 4S devices. 

REQUEST FOR PRODUCTION NO. 15:

All Documents reflecting Your internal assessments, analyses, discussions and/or 

determinations concerning FaceTime’s (i) economic and/or non-economic value, (ii) importance to 

customers, and/or (iii) impact on the cost and/or value of any iPhone product. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 15:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that any unavailability of 

FaceTime affected the value of iPhone 4 and 4S devices or that the value of any other iPhone product 

is even at issue in this case. Apple objects to this Request as overly broad, unduly burdensome, and 

not relevant or proportional to the needs of this case, including because it is not limited to a relevant 

time period or to the devices at issue in this case and because it seeks “all” documents when a subset 

would be sufficient. Apple objects to this Request because the terms “internal assessments, analyses, 

discussions and/or determinations,” “economic and/or non-economic value,” “importance to 

customers,” and “impact on the cost and/or value” are vague and ambiguous. Subject to and without 

waiving its General or Specific Objections, Apple agrees to produce advertisements for iPhone 4 or 

4S devices that reference FaceTime, as well as documents sufficient to show the impact of FaceTime 

on the price of the iPhone, if any. 

REQUEST FOR PRODUCTION NO. 16:

All Documents reflecting, referencing or relating to how the FaceTime Break affected the 

value of iPhone 4 and 4S devices. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 16:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that Apple intentionally 

“broke” FaceTime and/or that any unavailability of FaceTime affected the value of iPhone 4 and 4S 

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devices. Apple objects to this Request as overly broad, unduly burdensome, and not relevant or 

proportional to the needs of this case, including because it is not limited to a relevant time period and 

because it seeks “all” documents when a subset would be sufficient. Apple objects to this Request 

because the phrase “affected the value” is vague and ambiguous. 

REQUEST FOR PRODUCTION NO. 17:

All Documents sufficient to show the resale value of iPhone 4 devices on a monthly basis since 

June 24, 2010. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 17:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to a relevant time period. Apple objects to this 

Request because the phrase “resale value” is vague and ambiguous. Apple objects to this Request to 

the extent it seeks publically available information that is as available to Plaintiffs as to Apple. 

REQUEST FOR PRODUCTION NO. 18:

All Documents sufficient to show the resale value of iPhone 4S devices on a monthly basis 

since October 1, 2011. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 18:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to a relevant time period. Apple objects to this 

Request because the phrase “resale value” is vague and ambiguous. Apple objects to this Request to 

the extent it seeks publically available information that is equally available to Plaintiffs and Apple. 

REQUEST FOR PRODUCTION NO. 19:

All Documents reflecting the trade-in value of iPhone 4 and 4S devices on a monthly basis 

since January 1, 2010. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 19:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

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needs of this case, including because it is not limited to a relevant time period and because it seeks 

“all” documents when a subset would be sufficient. Apple objects to this Request because the phrase 

“trade-in value” is vague and ambiguous. Apple objects to this Request to the extent it seeks publically 

available information that is equally available to Plaintiffs and Apple. Subject to and without waiving 

its General or Specific Objections, Apple agrees to produce non-privileged documents, if any, 

sufficient to show the trade-in value offered by Apple for iPhone 4 and 4S devices on a monthly basis 

from October 2013 through October 2014. 

REQUEST FOR PRODUCTION NO. 20:

All Documents concerning the reasons why customers traded in iPhone 4 and 4S devices 

and/or purchased new iPhone, iPad and iPod Touch devices during the Relevant Time Period. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 20:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to a relevant time period and because it seeks 

“all” documents when a subset would be sufficient. Apple objects to this Request because the phrase 

“reasons why customers traded in . . . and/or purchased” is vague and ambiguous. 

REQUEST FOR PRODUCTION NO. 21:

All Documents reflecting or referencing communications between You and users of iPhones, 

iPads and/or iPod Touches regarding the FaceTime Break. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 21:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that Apple intentionally 

“broke” FaceTime. Apple objects to this Request as overly broad, unduly burdensome, and not 

relevant or proportional to the needs of this case, including because it is not limited to a relevant time 

period or to the devices at issue in this case and because it seeks “all” documents when a subset would 

be sufficient. Apple objects to this Request because the phrase “reflecting or referencing 

communications between You and users” is vague and ambiguous. Apple objects to this Request to 

the extent that it seeks private and confidential information of non-parties whose privacy is protected 

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by the United States Constitution, all other state constitutions, the Electronic Communications Privacy 

Act, 18 U.S.C. §§ 2510-2522, 2701-2711, and/or all other applicable federal and state privacy laws. 

Apple is not authorized to and cannot waive third parties’ statutory and constitutional privacy rights 

and will not produce any documents implicating such rights. Apple objects to this Request to the 

extent that it is duplicative of Request No. 7. Subject to and without waiving its General or Specific 

Objections, Apple (a) agrees to produce non-privileged 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—

located after a reasonably diligent search and subject to the parties’ agreement on reasonable search 

terms, and (b) as with Request No. 7, will meet and confer with Plaintiffs regarding what data is 

available, from a relevant time period, with respect to customer care log data regarding FaceTime on 

iPhone 4 and 4S devices. 

REQUEST FOR PRODUCTION NO. 22:

All deposition exhibits of Apple witnesses, deposition transcripts of Apple witnesses, hearing 

exhibits, hearing transcripts, trial exhibits of Apple documents, and trial transcripts from the VirnetX 

Actions. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 22:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to a relevant time period or to the devices, iOS 

versions, or application (FaceTime) at issue in this case and because it seeks thousands of pages worth 

of documents, including highly confidential documents and source code, irrelevant to any issue in this 

case. 

REQUEST FOR PRODUCTION NO. 23:

All Documents produced by You in the VirnetX Actions. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 23:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

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needs of this case, including because it is not limited to a relevant time period or to the devices, iOS 

versions, or application (FaceTime) at issue in this case and because it seeks millions of pages worth 

of documents, including highly confidential documents and source code, irrelevant to any issue in this 

case. 

REQUEST FOR PRODUCTION NO. 24:

Documents sufficient to show, throughout the Relevant Time Period, Apple’s organizational 

structure and personnel directories, including Documents showing the names, titles and job 

descriptions of all persons whose work concerned and/or involved (i) the FaceTime Break, (ii) Your 

attempts to reduce Relay Usage, and/or (iii) any of Your FaceTime, iOS and/or iPhone 

features/products. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 24:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that Apple intentionally 

“broke” FaceTime for any reason, much less to reduce Apple’s payments to Akamai. Apple objects 

to this Request as overly broad, unduly burdensome, and not relevant or proportional to the needs of 

this case, including because it is not limited to a relevant time period or to the devices, iOS versions, 

or application (FaceTime) at issue in this case. Apple objects to this Request because the phrases 

“whose work concerned and/or involved” and “FaceTime, iOS and/or iPhone features/products” are 

vague and ambiguous. Subject to and without waiving its General or Specific Objections, Apple refers 

to the documents it has agreed to produce in response to Requests 7, 11, 21, 27, and 28, and states that 

additional information regarding this Request beyond that provided in those documents is more 

properly sought through an interrogatory that is both appropriately limited to the claims and defenses 

at issue in this case and proportional to the needs of the case. 

REQUEST FOR PRODUCTION NO. 25:

All Documents related to the iPhone devices owned by Plaintiffs Christina Grace and Ken 

Potter during the Relevant Period. 

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RESPONSE TO REQUEST FOR PRODUCTION NO. 25:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to the devices at issue in this case and because it 

seeks “all” documents when a subset would be sufficient. Subject to and without waiving its General 

or Specific Objections, Apple will produce non-privileged documents, if any, related to Apple devices 

owned by Plaintiffs, located after a reasonably diligent search. 

REQUEST FOR PRODUCTION NO. 26:

All Documents concerning your document retention and destruction policy or policies. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 26:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

needs of this case, including because it is not limited to a relevant time period and because it seeks 

“all” documents when a subset would be sufficient. Apple objects to this Request to the extent it seeks 

the production of documents protected from disclosure by the attorney-client privilege, the attorney 

work-product doctrine, or any other applicable privileges or protections. Apple objects to this Request 

to the extent that it seeks the production of documents that contain sensitive, confidential, competitive, 

developmental or commercial research information that is of a proprietary nature and/or is protected 

by other privacy protections provided by applicable laws, rules, and/or regulations. 

REQUEST FOR PRODUCTION NO. 27:

All Documents related to iOS 6.1.6, including: (i) Documents showing how FaceTime worked 

on iOS 6.1.6; (ii) Documents showing why iOS 6.1.6 was made available to iPod Touch 4th Generation 

and iPhone 3GS; (iii) Documents showing why iOS 6.1.6 was not made available to devices other than 

iPod Touch 4th Generation and iPhone 3GS; and (iv) Documents showing whether iPod Touch 4th 

Generation and iPhone 3GS would experience any issues or problems running iOS 7. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 27:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request as overly broad, unduly burdensome, and not relevant or proportional to the 

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needs of this case, including because it is not limited to a relevant time period or the devices at issue 

in this case and because it seeks “all” documents when a subset would be sufficient. Apple objects to 

this Request because the phrases “how FaceTime worked,” “made available,” and “issues or problems 

running iOS 7” are vague and ambiguous. Subject to and without waiving its General or Specific 

Objections, Apple agrees to produce non-privileged 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—located 

after a reasonably diligent search and subject to the parties’ agreement on reasonable search terms. 

REQUEST FOR PRODUCTION NO. 28:

All Documents related to FaceTime’s use of digital certificates including: (i) Documents 

showing the purpose of using digital certificates in establishing FaceTime calls; (ii) Documents 

showing any changes to how digital certificates were used or checked in establishing FaceTime calls; 

(iii) Documents showing the number of iOS devices having Apple-issued expired digital certificates 

on each of April 15, 2014, April 16, 2014, and April 17, 2014; (iv) Documents showing the percentage 

of iOS devices having Apple-issued expired digital certificates on each of April 15, 2014, April 16, 

2014, and April 17, 2014; (v) Documents showing whether iOS 7, when installed, provided iOS 

devices with new Apple-issued digital certificates; (vi) Documents showing whether anyone actually 

used the FaceTime feature from a non-iOS device by using an expired digital certificate; and (vii) 

Documents reflecting discussions surrounding Apple’s decision to check the expiration of digital 

certificates leading up to the FaceTime Break. 

RESPONSE TO REQUEST FOR PRODUCTION NO. 28:

Apple incorporates by reference its General Objections as if fully set forth herein. Apple 

objects to this Request to the extent it wrongly presupposes and suggests that Apple intentionally 

“broke” FaceTime. Apple objects to this Request as overly broad, unduly burdensome, and not 

relevant or proportional to the needs of this case, including because it is not limited to a relevant time 

period or to the devices and versions of iOS at issue in this case and because it seeks “all” documents 

when a subset would be sufficient. Apple objects to this Request because the phrases “use of digital 

certificates,” “purpose of using digital certificates in establishing FaceTime calls,” “changes to how 

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digital certificates were used or checked in establishing FaceTime calls,” “Apple-issued expired digital 

certificates,” “provided iOS devices with new Apple-issued digital certificates,” “actually used the 

FaceTime feature from a non-iOS device by using an expired digital certificate,” and “discussions 

surrounding Apple’s decision to check the expiration of digital certificates leading up to the FaceTime 

Break” are vague and ambiguous. Apple objects to this Request to the extent it is duplicative of 

Request Nos. 7, 8, 11, 14, and 27. Subject to and without waiving its General or Specific Objections, 

Apple agrees to produce non-privileged 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—located after a 

reasonably diligent search and subject to the parties’ agreement on reasonable search terms. 

GENERAL OBJECTIONS 

 The following General Objections apply to and are incorporated into each Specific Objection 

set forth above, as if fully set forth therein. 

1. Apple’s responses, objections, and any related document productions are made without 

waiving or intending to waive any of the following objections or rights: (a) The right to make 

evidentiary objections, including without limitation the right to object to competency, relevancy, 

materiality, privilege, and admissibility of evidence for any purpose in this or any other actions or 

subsequent proceedings; (b) The right to object to or dispute the validity or accuracy of the data or 

information contained within the documents produced; (c) The right to object to the use of any 

document that may be produced, or the subject matter thereof; (d) The right to object on any ground 

at any time to a demand for further production or other discovery involving or relating to the subject 

matter of these Requests; and (e) The right at any time to revise, correct, supplement, clarify, or amend 

the objections or responses to the Requests if further factual developments or analysis warrant a 

modification or if additional information is obtained or documents are located that are responsive to 

these Requests. Instead, Apple makes all responses, objections and any related document productions 

with the intent of preserving all applicable rights, including these rights, and Apple objects to the 

Requests to the extent that they purport to impose or infer a waiver of any right or objection by Apple. 

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2. Apple’s responses and objections to Plaintiffs’ Requests are based on information and 

documents presently available to Apple. It is possible that future discovery and investigation may 

supply additional facts, information, or documents, add meaning to known facts, and establish entirely 

new factual conclusions and contentions, all of which may lead to additions to, changes in, and 

variations from the responses set forth herein. Apple reserves the right to produce additional 

responsive documents that may come to Apple’s attention in the future and to use such documents in 

any hearing or proceeding in this matter. 

3. Apple is responding to these Requests as it interprets and understands them. If 

Plaintiffs subsequently assert an interpretation of any Request that differs from Apple’s understanding, 

Apple reserves the right to supplement the objections and/or responses herein, if appropriate. 

4. Apple objects to producing materials protected by the attorney-client privilege, work 

product doctrine, or any other available legal privileges or protections against discovery. Apple 

objects, without limitation, to collecting, searching, or producing documents (including 

communications) with outside or in-house counsel generated in response to this lawsuit. 

5. Apple objects to the Requests to the extent that they seek to impose obligations that are 

beyond those required by the applicable Federal Rules of Civil Procedure or Civil Local Rules for the 

Northern District of California, or to the extent they purport to impose discovery obligations different 

from or beyond those to which the parties agreed in their Stipulation and Order Regarding Discovery 

of Electronically Stored Information and Paper Documents (ECF. No. 63, the “ESI Stipulation”), 

including without limitation with respect to a privilege log. 

6. Apple objects to collecting or producing documents that are publically or equally 

available to both Plaintiffs and Apple, already in the possession of Plaintiffs, and/or can be obtained 

with less burden or expense from another source, including sources that are publically available. 

7. Apple objects to the extent that a Request seeks private and confidential information of 

non-parties whose privacy is protected by the United States Constitution, all other state constitutions, 

the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2522, 2701-2711, and/or all other 

applicable federal and state privacy laws. Apple is not authorized to and cannot waive third parties’ 

statutory and constitutional privacy rights and will not produce any documents implicating such rights. 

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8. Apple objects to the extent that a Request seeks multiple copies of a document. 

9. Apple objects to the Requests to the extent that they are vague, ambiguous, and/or fail 

to describe with reasonable particularity the item or category of documents requested. 

10. Apple’s responses, objections, and any related document requests shall not be 

construed in any way as an admission that any statement made by Plaintiffs in these Requests is either 

factually or legally binding upon Apple. Apple objects to the Requests to the extent that they 

characterize facts, events, circumstances, or issues relating to the subject matter of this litigation. This 

includes, without limitation, Plaintiffs’ use of and definitions for the following terms: “FaceTime,” 

FaceTime Break,” “Peer-to-Peer Method,” “Relay Method,” “Relay Usage,” and “VirnetX Actions.” 

11. Apple’s objections to these Requests do not serve as an admission by Apple that 

responsive information exists and otherwise would have been provided by Apple absent such 

objections. 

12. Apple objects to the Requests to the extent that they are overly broad or unduly 

burdensome, including but not limited to Requests that are not limited in scope, or designate a time or 

scope that, in light of the relevant circumstances, is overbroad or is neither relevant nor proportional 

to the needs of this case. This includes, without limitation, Plaintiffs’ definition of the “Relevant Time 

Period” as June 24, 2010 to the present.1 

13. Apple objects to Requests seeking “all” documents or communications as overly broad 

and unduly burdensome and contrary to the Federal Rules of Civil Procedure and the Local Rules. 

14. Apple objects to the Requests to the extent that they purport to require Apple to respond 

on behalf of any person or entity other than Apple. Apple responds to these Requests only on behalf 

of itself. 

 

1

 Plaintiffs’ Requests define the “Relevant Time Period” as January 1, 2010 to the present, but as 

reflected in the parties’ ESI Stipulation, Plaintiffs have since changed that time period to be June 

24, 2010 to the present. (See ECF. No. 63 at Section II.A.1, Preservation). Apple “does not agree 

that all ESI preserved pursuant to [] Section II is relevant and does not agree that all such ESI will 

be produced,” (id. at Section II.A), nor does Apple agree that June 24, 2010 to the present is the 

relevant time period. 

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15. Apple objects to the Requests to the extent that they fail to describe the information 

sought with reasonable particularity. 

16. Apple objects to the Requests to the extent that they assume facts not in evidence or 

that are false. 

17. Apple objects to each Request to the extent that it is duplicative of other discovery 

requests made in this litigation. 

18. Apple objects to the definitions of “APPLE,” “YOU,” and “YOUR” to the extent they 

seek to impose obligations on persons or entities not parties to this litigation and to the extent they 

seek to impose overly broad and unduly burdensome obligations on Apple to search for and collect 

documents in the possession, custody, or control of persons or entities not parties to this litigation. 

Apple objects to the definitions of “APPLE,” “YOU,” and “YOUR” as vague, ambiguous, and overly 

broad. 

19. By producing electronic documents in response to the Requests, Apple does not 

represent that an expert forensic search has been undertaken to locate responsive electronic documents. 

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DATED: August 28, 2017 Respectfully submitted, 

KIRKLAND & ELLIS LLP 

/s/ Kristin Sheffield-Whitehead 

 

Elizabeth L. Deeley (SBN 230798) 

Kristin I. Sheffield-Whitehead (SBN 304635) 

KIRKLAND & ELLIS LLP 

555 California Street, Suite 2700 

San Francisco, California 94104 

Telephone: (415) 439-1400 

Facsimile: (415) 439-1500 

Email: elizabeth.deeley@kirkland.com 

Email: kwhitehead@kirkland.com 

Joseph A. Loy (admitted pro hac vice) 

KIRKLAND & ELLIS LLP 

601 Lexington Avenue 

New York, New York 10022 

Tel: (212) 446-4800 

Fax: (212) 446-4900 

Email: joseph.loy@kirkland.com 

Attorneys for Defendant 

Apple Inc.

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CERTIFICATE OF SERVICE 

On August 28, 2017, I caused the foregoing to be served via electronic mail upon counsel of 

record. 

/s/ Kristin Sheffield-Whitehead 

Kristin Sheffield-Whitehead 

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