eDiscovery Daily Blog
Court Denies Plaintiff’s Request to Avoid Forensic Imaging of Devices in Apple Performance Case: eDiscovery Case Law
In the case In Re: Apple Inc., No. 5:18-md-02827-EJD (N.D. Cal. Aug. 22, 2019), California District Judge Edward J. Davila denied the plaintiffs’ motion to modify the Special Discovery Master order that authorized the forensic imaging of devices belonging to 10 of the more than 90 named plaintiffs in order to allow Apple’s outside experts to performance test the devices, finding that “Apple’s interest in performance testing the forensic images outweighs Plaintiff’s privacy interest because Plaintiffs put the performance of the devices at the center of the lawsuit”.
In this litigation involving the performance of Apple devices after software updates, the Special Discovery Master entered an order authorizing the forensic imaging of the devices belonging to 10 of the more than 90 named Plaintiffs in order to allow Apple’s outside experts to performance test the devices. The plaintiff’s objected to the order and sought to modify the Order so that Apple’s discovery of the devices is limited to the extraction of “limited diagnostic data” instead of full forensic imaging, arguing that the Special Discovery Master made “erroneous factual findings and reached incorrect legal conclusions”.
The plaintiffs, basing their argument on the 2017 California Supreme Court case Williams v. Superior Court, argued that “[p]ersonal devices, like those at issue here, are afforded special privacy protections under the law. Apple therefore had to demonstrate a compelling need or interest to justify the forensic imaging. The Special Discovery Master should have conducted a balancing test between that compelling interest and the intrusion into Plaintiffs’ privacy posed by the imaging. But the Special Discovery Master failed to do so when she ‘deferr[ed] the basic question of scientific reliability to trial.’”
Judge Davila noted that the “motion is suitable for resolution without oral argument” and stated that “Plaintiffs’ concerns over their privacy rights are understandable; they are being asked to surrender their devices and passwords to strangers.” But, Judge Davila also noted that the forensic imaging would be completed by a neutral, third-party computer forensics vendor and that those “outside experts will only provide counsel with their analyses and the data underlying their analyses…To the extent possible, the experts will redact the contents, authors, recipients, and subject-matter of the underlying data (and any associated metadata) or replace them with summary descriptions before providing the underlying data to Apple’s counsel.”
Judge Davila also concluded that “Plaintiffs actively put their devices at issue when they chose to sue Apple over Apple’s alleged intrusion and trespass to the devices through Apple’s software updates”, stating that “[i]t is well-established that a plaintiff cannot bring suit and then limit the defendant’s discovery that is targeted at the subject matter of the plaintiff’s claims.” Noting that the plaintiffs “overreach” with regard to their argument “that the forensic imaging would ‘violat[e] Plaintiffs’ privacy with no gain’ to Apple”, Judge Davila found that “Apple has a compelling interest in the sought-after performance testing of Plaintiffs’ devices. The devices’ performance is integral to Plaintiffs’ claims. They allege that Apple’s software updates unjustly harmed the performance of their devices…Apple is entitled to defend itself against these allegations by testing whether the performance of the devices was, in fact, harmed. Later, Plaintiffs may challenge whether that testing is admissible, scientifically reliable, or ‘necessary’ for Apple’s defenses through in limine, Daubert, and other motions.”
So, what do you think? Did the court properly weigh the balance of privacy and discovery in this case? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
CloudNine empowers legal, information technology, and business professionals with eDiscovery automation software and professional services that simplify litigation, investigations, and audits for law firms and corporations.