United States District Court, N.D. California, San Jose Division
ORDER RE DISCOVERY DISPUTE RE APPLE'S DEFENSE
CONTENTIONS RE: DKT. NOS. 165, 167
VIRGINIA K. DEMARCHI United States Magistrate Judge.
parties ask the Court to resolve a dispute about defendant
Apple Inc.'s disclosure of its contentions regarding
certain defenses, and plaintiff Raja Kannan's discovery
relating to those defenses.
September 15, 2019, Mr. Kannan moved to compel Apple to
designate a corporate representative to testify to Topics
Nos. 25-27, which concern Apple's monitoring of Mr.
Kannan's use of Apple's equipment and systems and of
Mr. Kannan's activities, and Mr. Kannan's violations
of law or Apple company policies. Dkt. No. 108, Ex. 2. Apple
opposed the motion on the ground that such discovery was not
relevant. Dkt. No. 115. However, during the hearing on this
dispute, Apple indicated it intended to assert as a defense
in this action that Mr. Kannan's activities while an
employee and/or his use of his Apple computer violated
company policy. Dkt. No. 128 at 104:24-105:8. Apple advised
the Court that at least some of the material Mr. Kannan
sought to discover within the scope of Topics Nos. 25-27
would be privileged or otherwise protected from disclosure.
Accordingly, the Court ordered the parties to proceed as
The Court defers ruling on Mr. Kannan's motion to compel
deposition testimony with respect to Topics Nos. 25-27 at
this time. To the extent Apple contends that Mr. Kannan
violated Apple company policies or applicable laws and
intends to rely on such violations in the defense of this
action, Apple shall so advise Mr. Kannan, and Mr. Kannan may
take discovery of that defense, subject to the Court's
resolution of any disputed claim of attorney-client privilege
or attorney work product protection. Apple shall advise Mr.
Kannan of its defense contentions and its assertions of
privilege/protection (if any) no later than October 8, 2019.
Dkt. No. 120 at 3-4.
parties disagree about whether Apple disclosed any
contentions regarding Mr. Kannan's violations of law or
Apple company policies by October 8, 2019 as the Court
ordered. Mr. Kannan says that Apple advised only that it was
“looking into” certain policy violations. Dkt.
No. 165-1 at 4. Apple says that it advised Mr. Kannan's
counsel on July 23, 2019 that Mr. Kannan's development of
software applications during his tenure with Apple was a
violation of Apple company policies. Id. at 7. Apple
does not explain why it did not assert on October 8, 2019 the
defense contention that it says it provided to Mr. Kannan on
July 23, 2019-i.e., that Apple intended to assert that Mr.
Kannan's software development activities violated company
policy and provided a defense to his claims. It also is not
clear to the Court whether Apple has responded to a relevant
interrogatory seeking disclosure of its defenses, as neither
party has provided Apple's interrogatory responses to the
Court in connection with this dispute.
October 23, 2019, Apple advised Mr. Kannan that Apple
designated Brian Carr “as the person most knowledgeable
on the topic of whether there are any policy
violations” with respect to Topic No. 27. Id.
at 3, 7. Mr. Carr's Rule 30(b)(6) deposition on Topic No.
27 is scheduled for November 1, 2019. Based on the record
before the Court, it appears that the only defense contention
within the scope of Topic No. 27 that Apple has asserted to
date is the one described above. Both parties are entitled to
take discovery with respect to that defense: Mr. Kannan may
inquire of Mr. Carr in deposition about that matter, and
Apple may likewise inquire of Mr. Kannan in his further
deposition about that matter. In addition, Apple may question
Mr. Kannan regarding the alleged discrepancies between Mr.
Kannan's representations to Apple and to the Court about
the extent of his software development activities and the
information Apple has discovered. If warranted, Apple may
move for sanctions or other relief following that deposition.
Kannan objects that his counsel has not timely received
documents from Apple that are needed to effectively prepare
for Mr. Carr's Rule 30(b)(6) deposition, such as
documents responsive to Requests for Production Nos. 72-74.
Dkt. No. 165-1 at 5. Indeed, it appears that Apple had not
yet completed its production as of October 30, 2019, a mere
two days before Mr. Carr's deposition. Id. at
10. The deposition of Mr. Carr shall proceed as scheduled at
Mr. Kannan's election; however, if Mr. Kannan's
counsel does not have adequate time to prepare for such
deposition based on the timing of Apple's production,
Apple shall make Mr. Carr available at a later date
acceptable to Mr. Kannan but in any event not later than
November 8, 2019.
extent Apple intends to assert defenses based on Mr.
Kannan's violations of law or company policy other than
the violation Apple disclosed on July 23, 2019, it appears
that Apple has not timely disclosed any such defenses during
the fact discovery period. While the undersigned is not in a
position to order that Apple be precluded from asserting such
defenses at trial, this Court's finding and prior orders
may support a request for such relief from the presiding
parties disagree about Apple's assertions of privilege
and work product with respect to documents relating to
Apple's contention that Mr. Kannan violated company
policy. Apple has not produced a privilege log, and it
appears to contend that all of the responsive documents that
it has withheld from production on this topic involve
communications between outside counsel, in-house counsel, and
other personnel regarding searches of the data from Mr.
Kannan's Apple-issued computer that were undertaken at
the direction of counsel. Id. at 10. Ordinarily, a
privilege log or similar disclosure is required in order to
properly assert a claim for privilege or other protection,
unless the parties have stipulated that certain
communications need not be logged. See Fed. R. Civ.
P. 26(5)(A). As the parties devote only a few lines each to
this issue in their discovery dispute letter, the Court does
not have sufficient information to resolve this dispute. The
Court denies Mr. Kannan's motion without prejudice on