Case 4:11-cv-06714-YGR Document 563 Filed 10/26/21 Page 1 of 7
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`THEODORE J. BOUTROUS JR., SBN 132099
`tboutrous@gibsondunn.com
`RICHARD J. DOREN, SBN 124666
` rdoren@gibsondunn.com
`DANIEL G. SWANSON, SBN 116556
`dswanson@gibsondunn.com
`JAY P. SRINIVASAN, SBN 181471
` jsrinivasan@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Avenue Los Angeles, CA 90071
`Telephone: 213.229.7000
`Facsimile: 213.229.7520
`
`VERONICA S. MOYÉ (Texas Bar No.
`24000092; pro hac vice)
` vmoye@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`2100 McKinney Avenue, Suite 1100
`Dallas, TX 75201
`Telephone: 214.698.3100
`Facsimile: 214.571.2900
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`MARK A. PERRY, SBN 212532
` mperry@gibsondunn.com
`CYNTHIA E. RICHMAN (D.C. Bar No.
`492089; pro hac vice)
` crichman@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, DC 20036
`Telephone: 202.955.8500
`Facsimile: 202.467.0539
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`ETHAN D. DETTMER, SBN 196046
`edettmer@gibsondunn.com
`RACHEL S. BRASS, SBN 219301
`rbrass@gibsondunn.com
`CAELI A. HIGNEY, SBN 268644
` chigney@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`555 Mission Street
`San Francisco, CA 94105
`Telephone: 415.393.8200
`Facsimile: 415.393.8306
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`Attorneys for Defendant Apple Inc.
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`UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
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`In re Apple iPhone Antitrust Litigation
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` Case No. 4:11-cv-06714-YGR
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`DEFENDANT APPLE INC.’S OBJECTION
`UNDER CIV. L. R. 7-3(D)(1) TO EVIDENCE
`FILED WITH PLAINTIFFS’ CLASS
`CERTIFICATION REPLY
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`The Honorable Yvonne Gonzalez Rogers
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`Date: November 16, 2021
`Time: 10:00 a.m.
`Courtroom: 1, 4th Floor
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`DEFENDANT APPLE INC.’S CIV. L. R. 7-3(D)(1) OBJECTION TO REPLY EVIDENCE No. 4:11-cv-06714-YGR
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`Case 4:11-cv-06714-YGR Document 563 Filed 10/26/21 Page 2 of 7
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`Pursuant to Civil Local Rule 7-3(d), Defendant Apple Inc. hereby objects to the Amended Cor-
`rections to the Deposition Transcript of Professor Daniel L. McFadden (the “Corrections”), filed as
`Exhibit 3 in support of Plaintiffs’ Reply in Further Support of Motion for Class Certification. See Dkt.
`556-3. The Corrections are untimely and improper attempts to alter sworn testimony. Apple respect-
`fully requests that they be stricken from the record, and Plaintiffs be prohibited from relying on them.
`BACKGROUND
`Professor McFadden is the sole expert supporting Plaintiffs’ request to certify a class of millions
`of iOS consumers seeking billions of dollars in damages. On August 3, 2021, Apple deposed Prof.
`McFadden for more than six hours on the record. See Dkt. 477-17 at 7:5, 245:20 (McFadden Dep.). A
`week later, on August 10, Apple filed its Opposition to Plaintiffs’ Motion for Class Certification and a
`Motion to Exclude Prof. McFadden’s opinions under Daubert. Apple’s filings drew heavily from Prof.
`McFadden’s deposition testimony to explain both why no class could be certified and that Prof. McFad-
`den’s opinions concerning classwide impact were unreliable. See, e.g., Dkt. 478 (“Opp.”) at 1–2, 7–9,
`13–16, 18–21, 23; Dkt. 479 (“Daubert Mot.”) at 1–5, 7–16, 18–25. Plaintiffs opposed Apple’s Daubert
`motion on August 25 (a full four weeks before the stipulated deadline). See Dkt. 498. Apple filed a
`Reply in support of its Daubert Motion on September 1. Dkt. 524.
`Two days later, on September 3, 2021, Plaintiffs served more than 40 “Corrections” to Prof.
`McFadden’s deposition transcript. See Ex. 1 at 1.1 Although some of these corrections fixed typo-
`graphical and transcription errors, many others sought to substantively change Prof. McFadden’s tes-
`timony, including altering “no” answers to “yes,” correcting mistaken assertions, and revising testi-
`mony that Apple had quoted against Plaintiffs in its papers weeks earlier. Id. at 1–2. After Apple
`objected, Plaintiffs served Amended Corrections purporting to explain the changes, but declined to
`withdraw them. Ex. 2 at 1. Plaintiffs also refused to confirm that they had submitted the Corrections
`to the court reporter within 30 days of receiving the final transcript on August 4, 2021. Id. at 1 n.1; see
`Brass Decl. ¶ 2.
`On October 19, 2021, Plaintiffs filed their Reply in support of class certification, Dkt. 555
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`Exhibit cites are to the Declaration of Rachel S. Brass (“Brass Decl.”), filed concurrently in
`support of Apple’s Objections.
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`DEFENDANT APPLE INC.’S CIV. L. R. 7-3(D)(1) OBJECTION TO REPLY EVIDENCE No. 4:11-cv-06714-YGR
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`Case 4:11-cv-06714-YGR Document 563 Filed 10/26/21 Page 3 of 7
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`(“Reply”), along with a 125-page Reply Report from Prof. McFadden, Dkt. 556-1 (“Reply Report”).
`Plaintiffs filed the Corrections along with their Reply and cited to and quoted from them in the brief.
`See Reply 5 n.5.
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`ARGUMENT
`Federal Rule of Civil Procedure 30(e) “permits corrections in form or substance of deposition
`testimony under certain circumstances.” Lee v. The PepBoys-Manny Moe & Jack of Cal., 2015 WL
`6471186, at *1 (N.D. Cal. Oct. 27, 2015); Fed. R. Civ. P. 30(e)(1). But “[a] deposition is not a take
`home examination.” Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002); see
`also, e.g., Mullins v. Premier Nutrition Corp., 178 F. Supp. 3d 867, 889 (N.D. Cal. 2016) (same). Rule
`30 “cannot be interpreted to allow one to alter what was said under oath” because otherwise “one could
`merely answer questions with no thought at all then return home and plan artful responses.” Garcia,
`299 F.3d at 1242 n.5. The Ninth Circuit has therefore held that “Rule 30(e) is to be used for corrective,
`and not contradictory, changes.” Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217,
`1226 (9th Cir. 2005).2 Deposition testimony may also be amended only “provided that procedural
`requirements” are met. Lee, 2015 WL 6471186, at *1. One such requirement is that corrections be
`“submitted to the court reporter” within the 30-day period prescribed by Rule 30(e). Welsh v. R.W.
`Bradford Transp., 231 F.R.D. 297, 301 (N.D. Ill. 2005); see also Morceli v. Meyers, 2014 WL 1096714,
`at *2 (E.D. Cal. Mar. 19, 2014); Fed. R. Civ. P. 30(e)(1). Because the record shows that the Corrections
`to Prof. McFadden’s deposition transcript are both improper and untimely, the Court should strike them
`in whole or in part, and prohibit Plaintiffs from relying on them further.
`Professor McFadden’s Corrections Improperly Alter Sworn Testimony
`A.
`Apple objects to Corrections 1, 7, 13, 15–17, 19, 23–25, 28, 32–35, and 39–413 because they
`are not corrections at all, but rather substantive changes that seek to undo unhelpful admissions, con-
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` 2
`Challenges to deposition errata are not limited to so-called “sham” corrections designed to man-
`ufacture a material question of fact at summary judgment. See, e.g., Young v. Cree, 2019 WL 260853,
`at *1 (N.D. Cal. Jan. 18, 2019) (noting “the weight of authority” on this point); Lee, 2015 WL 6471186,
`at *1; Karpenski v. Am. Gen. Life Cos., LLC, 999 F. Supp. 2d 1218, 1224 (W.D. Wash. 2014).
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`To aid the Court’s review, Apple has attached a copy of Professor McFadden’s Corrections to
`this brief with numbered rows corresponding to each Correction. See App’x A.
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`DEFENDANT APPLE INC.’S CIV. L. R. 7-3(D)(1) OBJECTION TO REPLY EVIDENCE No. 4:11-cv-06714-YGR
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`Case 4:11-cv-06714-YGR Document 563 Filed 10/26/21 Page 4 of 7
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`tradict Prof. McFadden’s sworn testimony, or otherwise significantly alter its meaning. Notably, sev-
`eral Corrections appear designed to mitigate testimony that Apple relied upon in opposing class certi-
`fication and moving to exclude Prof. McFadden’s opinions under Daubert. Plaintiffs are not shy about
`this fact; they admit in their Reply that Prof. McFadden “corrected his testimony” on market definition
`after Apple highlighted its inconsistency with Supreme Court precedent. See Reply at 5 n.5 (citing
`Correction 7); see Opp. at 7. Other changes are similar attempts to rehabilitate Prof. McFadden’s
`admission that he relied on mere “commonsense judgment” to arrive at his but-for commission. Com-
`pare Daubert Mot. at 1 (quoting Prof. McFadden to argue that he “did not apply scientific rigor or
`economic expertise to model the but-for world, instead choosing to rely on mere ‘commonsense judg-
`ment’”), with Correction 15 (“Well, I think it’s largely common sense assessment of observed eco-
`nomic characteristics.” (correction underlined)). And three Corrections seek to rewrite Prof. McFad-
`den’s repeated concession—featured prominently in Apple’s opposition papers—that it would be
`“challenging, if not impossible” and “beyond the bounds of practicality” to link an individual class
`member’s accounts and calculate their net injury. Compare Opp. at 22–23 (quoting McFadden Dep.
`227:4–228:12), with Correction 39 (“I think that is beyond the bounds of practicality. However, Apple
`might be able to validate the lists of Apple IDs submitted by individual claimants from the class.”); see
`also Corrections 40–41. That much of Prof. McFadden’s sworn testimony was unhelpful to Plaintiffs’
`case does not give them license to rewrite it—much less after Apple has used it against them. Cf.
`Hambleton Bros., 397 F.3d at 1225 (striking “seemingly tactical” deposition errata which lacked “a
`legitimate purpose”); MGA Entm’t, Inc. v. Nat’l Prods. Ltd., 2012 WL 12886204, at *2 (C.D. Cal. Apr.
`12, 2012) (the purposes of deposition testimony “are disserved by allowing deponents to answer ques-
`tions at a deposition with no thought at all and later to craft answers that better serve the deponent’s
`cause” (internal quotation marks omitted)). Corrections 7, 15, and 39–41 should be stricken on that
`basis alone.
`These Corrections and others are also improper “because they appear to substantively change
`or contradict [Prof. McFadden’s] original testimony.” Teleshuttle Techs. LLC v. Microsoft Corp., 2005
`WL 3259992, at *2–3 (N.D. Cal. Nov. 29, 2005). At least five Corrections either expressly or effec-
`tively change a “no” answer to a “yes” or vice versa, see Correction 1 (changing “I don’t think so” to
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`Case 4:11-cv-06714-YGR Document 563 Filed 10/26/21 Page 5 of 7
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`“yes”); Correction 17 (changing “in Equation 8, the answer is ‘no’” to “in Equation 8, the answer is
`‘yes’”); see also Corrections 13, 19, 35—the “paradigmatic example” of “contradictory changes” that
`“Rule 30(e) does not permit.” Lee, 2015 WL 6471186, at *1–2; see also Young, 2019 WL 260853, at
`*3 (striking deposition errata that “chang[ed] [the deponent’s] answer to nearly the opposite of what
`he said”).
`Plaintiffs and Prof. McFadden offer still other Corrections to purportedly address “misstate-
`ments” (Corrections 1, 16, 17, 19, 24, 34, 35); provide “clarifications” to “supplement” his original
`testimony (Corrections 7, 15, 16, 23, 25, 28, 32, 33, 39–41); rectify “an honest mistake” (Correction
`34), “an inadvertent mischaracterization of what [his] model does” (Correction 35), and an “[in]con-
`sisten[cy]” between his testimony and his benchmark analysis (Correction 16); and correct errors from
`having “to conduct mathematical calculations in his head” (Corrections 13, 17, 19). See Ex. 2 at 2–3
`(explaining purported amendments). None of these are permissible grounds for revising sworn testi-
`mony. See Lee, 2015 WL 6471186, at *2 (rejecting attempt to provide, through errata, “mere clarifi-
`cation[s] that more accurately reflect[ed] the truth”); Teleshuttle Techs., 2005 WL 3259992, at *2–3
`(striking 45 changes that, among other things, added new answers, limited or qualified testimony, and
`rendered testimony more vague); Lewis v. The CCPOA Benefit Trust Fund, 2010 WL 3398521, at *3
`(N.D. Cal. Aug. 27, 2010) (rejecting errata that “so altered the prior testimony as to amount to a fun-
`damental change”). “It may well be that [Prof. McFadden’s] answers at his deposition were incor-
`rect”—and, indeed, it seems many were—“but Plaintiffs’ counsel had the opportunity . . . during [his]
`deposition to question [Prof. McFadden] about any of the questions that [Apple’s] counsel asked.” Lee,
`2015 WL 6471186, at *2. They declined to do so. Dkt. 477-17 at 245:14. Professor McFadden is “not
`an unsophisticated witness,” but a Nobel-Prize winning econometrician and experienced testifying ex-
`pert, who has “submitted extensive declarations in the course of this litigation.” Lewis, 2010 WL
`3398521, at *4 (rejecting Rule 30(b)(6) deponent’s attempt to “correct honest mistakes” through er-
`rata); see Reply Report at 141–42 (listing Prof. McFadden’s nine expert witness engagements since
`2017). Plaintiffs must live with his testimony—whether accurate, helpful, or otherwise.
`The Court Should Strike the Corrections as Untimely
`B.
`Even if Prof. McFadden’s deposition transcript Corrections were proper (and they are not), the
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`Case 4:11-cv-06714-YGR Document 563 Filed 10/26/21 Page 6 of 7
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`entire document should be stricken because the Corrections were not submitted to the court reporter
`within the prescribed 30-day period. Changes to a deposition transcript “must be submitted to the court
`reporter” within 30 days of receiving the final transcript. Welsh, 231 F.R.D. at 301 (collecting cases);
`see also Morceli, 2014 WL 1096714, at *2 (“Rule 30(e)(1) contemplates only a review of the transcript
`in order to make any changes in form or substance within thirty days and then returning the transcript
`and changes to the court reporter.”); Havey v. Tenneco, Inc., 2000 WL 198445, at *1 (N.D. Ill. Feb. 11,
`2000) (“[Rule 30’s] requirement that the court reporter certify and append any requested changes im-
`plies that the 30-day limit is measured by submission to the court reporter.”). Plaintiffs served the
`Corrections on Apple via email on September 3, 30 days after receiving the final transcript on August
`4, 2021. See Ex. 1 at 2 n.1; Brass Decl. ¶ 2. But the court reporter was not copied on Plaintiffs’ email;
`and when pressed, Plaintiffs would not confirm that they had submitted the corrections to the court
`reporter within the prescribed period, instead claiming (wrongly) that notice to Apple sufficed. See
`Ex. 2 at 1 n.1.
`Plaintiffs’ failure to establish that their Corrections were timely is dispositive. See MGA Entm’t,
`2012 WL 12886204, at *1, *3 (“[C]ourts generally insist on strict adherence to the technical require-
`ments of [Rule 30(e)].” (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 277 F.R.D. 286,
`294–95 (E.D. Va. 2011))); Blackthorne v. Posner, 883 F. Supp. 1443, 1454 n.16 (D. Or. 1995) (striking
`errata as untimely); see also Hambleton, 397 F.3d at 1224 (excluding corrections in part because the
`record did not show that they were submitted within the mandatory 30-day period). Moreover, the
`basis for excluding late errata “is strengthened when compounded by other violations of Rule 30(e).”
`Karpenski, 999 F. Supp. 2d at 1224. Plaintiffs’ improper attempts to rewrite Prof. McFadden’s depo-
`sition testimony “compound[]” their timing “mistake,” and further support striking the entire Correc-
`tions from the record. Hambleton, 397 F.3d at 1224.
`CONCLUSION
`For these reasons, Apple respectfully requests that the Court strike Professor McFadden’s Dep-
`osition Corrections in their entirety as untimely. In the alternative, the Court should strike Corrections
`1, 7, 13, 15–17, 19, 23–25, 28, 32–35, and 39–41 as improper substantive changes or contradictions.
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`DEFENDANT APPLE INC.’S CIV. L. R. 7-3(D)(1) OBJECTION TO REPLY EVIDENCE No. 4:11-cv-06714-YGR
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`Case 4:11-cv-06714-YGR Document 563 Filed 10/26/21 Page 7 of 7
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`GIBSON, DUNN & CRUTCHER LLP
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`By: /s/ Mark A. Perry
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`Theodore J. Boutrous Jr.
`Richard J. Doren
`Daniel G. Swanson
`Mark A. Perry
`Veronica S. Moyé
`Cynthia E. Richman
`Jay P. Srinivasan
`Ethan D. Dettmer
`Rachel S. Brass
`Caeli A Higney
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`Attorneys for Defendant Apple Inc.
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`DATED: October 26, 2021
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`DEFENDANT APPLE INC.’S CIV. L. R. 7-3(D)(1) OBJECTION TO REPLY EVIDENCE No. 4:11-cv-06714-YGR
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