Case 5:22-cv-04325-EJD Document 183 Filed 11/04/22 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`FEDERAL TRADE COMMISSION,
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`Plaintiff,
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`v.
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`META PLATFORMS INC., et al.,
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`Defendants.
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`Case No. 22-cv-04325-EJD (VKD)
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`ORDER RE DISCOVERY DISPUTE RE
`DEFENDANT'S SUBPOENA TO
`APPLE INC.
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`Re: Dkt. No. 139
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`Defendant Meta Platforms, Inc. (“Meta”) moves to compel non-party Apple Inc.’s
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`(“Apple”) production of documents responsive to Meta’s document subpoena.1 Dkt. No. 139.
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`Meta and Apple do not disagree about the scope of the document requests to which Apple will
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`respond, which have been narrowed through negotiation. See id. at 1, 4 & n.1. Rather, they
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`disagree about how Apple should comply with its obligation to produce responsive documents.
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`Meta contends that Apple should be required to apply proposed search strings to the electronically
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`stored information (“ESI”) of particular Apple custodians for RFPs 2, 5-6 and 9-11. Apple
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`responds that it can fulfill its obligation to produce responsive documents without undertaking
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`Meta’s proposed custodial searches of ESI. The Court held a hearing on this dispute on November
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`3, 2022. Dkt. No. 175.
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`Meta argues that the discovery it seeks from Apple is highly relevant to its defenses in this
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`action. For purposes of this motion, the Court accepts Meta’s characterization. To their credit,
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`Meta and Apple have agreed on the scope of Meta’s discovery of Apple. The only question is
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`1 This motion was randomly referred to the undersigned for resolution after Judge van Keulen
`recused herself. See Dkt. No. 152.
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`Case 5:22-cv-04325-EJD Document 183 Filed 11/04/22 Page 2 of 3
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`whether, in the circumstances presented, the Court should require Apple to conduct the proposed
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`custodial searches to ensure that it fully complies with its obligations under Rule 45.
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`All of the RFPs at issue ask Apple to produce “documents sufficient to evidence”
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`information about Apple’s strategic plans and development efforts, if any, with respect to what the
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`FTC has described as a market for Virtual Reality Dedicated Fitness Applications. Apple’s
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`obligations to comply with a document subpoena under Rule 45 are similar to parties’ obligations
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`to comply with document requests under Rule 34. See Fed. R. Civ. P. 45, advisory committee
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`notes to 1970 amendment (scope of discovery available by document subpoena under Rule 45 is
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`the same as the scope of discovery available under Rule 34); Apple, Inc. v. Samsung Electronics
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`Co., Ltd., No. 12-cv-0630-LHK(PSG), 2013 WL 1942163 at *1 (discussing standard for discovery
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`of non-party and non-party’s obligations in responding to subpoena). While Meta correctly notes
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`that the application of search terms to ESI is a common feature of modern discovery practice—and
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`may be the only practical means to efficiently identify potentially responsive documents from a
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`large collection of ESI—this technique is not the only permissible means of identifying responsive
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`documents in all circumstances.
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`As Apple observes, Meta (appropriately) does not demand “all documents” in Apple’s
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`possession, but rather “documents sufficient to evidence” the subject matter of each document
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`request. See Dkt. No. 139 at 4. It is reasonable for Apple to search for such responsive documents
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`by, for example, identifying those employees with relevant knowledge about the existence and
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`locations of responsive documents, and then conducting deliberate and focused searches for those
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`documents. In response to the Court’s inquiry at the hearing, Apple confirmed that the custodians
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`Meta has identified as likely to have relevant documents are among the custodians from whom
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`Apple is seeking to collect and produce responsive documents. Dkt. No. 175.
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`Meta’s principal concern is that because Apple is a competitor, its review and selection of
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`documents for production will be colored by competitive bias, even if its counsel endeavor to
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`conduct the review and production in good faith. For this reason, Meta says, the proposed
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`Case 5:22-cv-04325-EJD Document 183 Filed 11/04/22 Page 3 of 3
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`custodial searches are necessary to provide an “objective check” on Apple’s production.2 See Dkt.
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`No. 139 at 2. The Court is skeptical of the premise that Apple’s status as Meta’s competitor
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`necessarily implies that Apple’s counsel and the company representatives working with counsel
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`cannot be relied upon to comply with their discovery obligations under Rule 45. That premise
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`finds no support in the case law before the Court, and Meta points to no other facts or
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`circumstances (e.g., a prior failure to properly comply) indicating that an “objective check” on
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`Apple’s production is warranted here.
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`Meta also suggests that Apple’s counsel has made representations in confidence and
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`pursuant to the protective order about Apple’s strategic plans and other matters that are
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`inconsistent with other information Meta has obtained. See Dkt. No. 139 at 3. For this reason,
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`Meta wishes to have Apple undertake the proposed custodial searches so that Meta can adequately
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`prepare to examine Apple’s witness on these points of alleged inconsistency during a deposition
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`set for November 14, 2022. The Court has carefully considered this concern, including the
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`confidential information that Meta and Apple disclosed under seal in their joint statement on
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`Meta’s motion to compel and during the hearing. On the record presented, the Court is not
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`persuaded that Meta requires the relief it seeks here in order to fully explore in deposition the
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`information it believes is critical to its defenses.
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`For these reasons, the Court denies Meta’s motion to compel.
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`IT IS SO ORDERED.
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`Dated: November 4, 2022
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`VIRGINIA K. DEMARCHI
`United States Magistrate Judge
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`2 Meta indicated during the hearing that it intended the proposed custodial searches to be used to
`identify responsive documents for production, and not merely to identify a collection of
`documents to be further reviewed for responsiveness and production. Because the Court
`concludes that Apple need not apply search strings to custodial ESI in order to comply with
`Meta’s subpoena, the Court does not reach the question of whether the proposed search strings are
`too broad or would yield an unduly burdensome number of documents for review.
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