UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`SOUTHERN DIVISION - SANTA ANA
`
`1
`
`
`
`
`PINN, INC.,
`
`
`
`
`
`APPLE INC., GOOGLE LLC,
`et al.,
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`Defendants.
`
`
`
`Case No. SACV 19-1805-DOC (JDEx)
`
`Santa Ana, California
`Thursday, June 11, 2020
`10:02 A.M. to 11:54 A.M.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`TRANSCRIPT OF PROCEEDINGS
`BEFORE THE HONORABLE JOHN D. EARLY,
`UNITED STATES MAGISTRATE JUDGE.
`
`
`
`
`See Page 2
`
`Maria Barr
`
`Recorded; CourtSmart
`
`JAMS Certified Transcription
`16000 Ventura Boulevard #1010
`Encino, California 91436
`(661) 609-4528
`
`Appearances:
`
`Deputy Clerk:
`
`Court Reporter:
`
`
`Transcription Service:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Proceedings recorded by electronic sound recording;
`transcript produced by transcription service.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`1
`
`PINN-2004
`
`
`CENTRAL DISTRICT OF CALIFORNIA
`SOUTHERN DIVISION - SANTA ANA
`
`1
`
`
`
`
`PINN, INC.,
`
`
`
`
`
`APPLE INC., GOOGLE LLC,
`et al.,
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`Defendants.
`
`
`
`Case No. SACV 19-1805-DOC (JDEx)
`
`Santa Ana, California
`Thursday, June 11, 2020
`10:02 A.M. to 11:54 A.M.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`TRANSCRIPT OF PROCEEDINGS
`BEFORE THE HONORABLE JOHN D. EARLY,
`UNITED STATES MAGISTRATE JUDGE.
`
`
`
`
`See Page 2
`
`Maria Barr
`
`Recorded; CourtSmart
`
`JAMS Certified Transcription
`16000 Ventura Boulevard #1010
`Encino, California 91436
`(661) 609-4528
`
`Appearances:
`
`Deputy Clerk:
`
`Court Reporter:
`
`
`Transcription Service:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Proceedings recorded by electronic sound recording;
`transcript produced by transcription service.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`1
`
`PINN-2004
`
`
`
`2
`
`Law Office of Ryan E. Hatch, P.C.
`By: RYAN E. HATCH
`13323 Washington Boulevard, Suite 100
`Los Angeles, California 90066
`(310) 279-5076
`ryan@ryanehatch.com
`
`Connor Kudlac Lee PLLC
`By: CABRACH J. CONNOR
`
`JENNIFER A. TATUM LEE
`609 Castle Ridge Road, Suite 450
`Austin, Texas 78746
`(512) 777-1254
`cab@connorkudlaclee.com
`jennifer@connorkudlaclee.com
`
`Whitaker, Chalk, Swindle & Schwartz
`By: DAVID A. SKEELS
`301 Commerce Street, Suite 3500
`Fort Worth, TX 76102
`(817) 878-0500
`dskeels@whitakerchalk.com
`
`
`Fish & Richardson PC
`By: SETH M. SPROUL
`
`TUCKER NEPHI TERHUFEN
`12390 El Camino Real
`San Diego, California 92130
`(858) 678-5070
`sproul@fr.com
`terhufen@fr.com
`
`Barnes & Thornburg LLP
`By: JEFFREY M. BARRON
`
`TODD G. VARE
`11 South Meridian Street
`Indianapolis, Indiana 46204-3535
`(317) 231-7751
`jeff.barron@btlaw.com
`todd.vare@btlaw.com
`
`Barnes & Thornburg LLP
`By: ROYA RAHMANPOUR
`2029 Century Park East, Suite 300
`Los Angeles, California 90067-2904
`(310) 284-3880
`roya.rahmanpour@btlaw.com
`
`APPEARANCES:
`
`
`For the Plaintiff:
`
`
`For the Defendants:
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`2
`
`PINN-2004
`
`
`
`3
`
`SANTA ANA, CALIFORNIA, THURSDAY, JUNE 11, 2020, 10:02 A.M.
`
`
`
`
`
`(Call to Order of the Court.)
`
`
`
`THE COURT: -- going to see if I can expedite
`
`things -- Maria, do you have the list? -- based on the
`
`appearances that have been made. It takes too long to try to
`
`go through a role over the phone.
`
`
`
`
`
`Here's what I have as far as people on the call:
`
`On behalf of plaintiff, I have Ryan Hatch,
`
`Cabrach Connor, David Skeels, and Jennifer Tatum.
`
`
`
`Let me direct this to Mr. Hatch: On behalf of
`
`plaintiff, is that the extent of the folks present on this
`
`call this morning?
`
`
`
`RICHARD E. HATCH: Yes, I believe so. And it was
`
`-- Mrs. Tatum -- it's actually Mrs. Tatum-Lee, I believe.
`
`
`
`THE COURT: Okay. And who's going to be speaking
`
`on behalf of plaintiffs? Designate one person so that we --
`
`so that I know and so that the record is clear since we don't
`
`have a court reporter that can identify people.
`
`
`
`MR. HATCH: Sure. If I can defer that question to
`
`Cabrach Connor, and he can identify that person.
`
`
`
`DAVID E. SKEELS: Thank you. Your Honor, this is
`
`David Skeels on behalf of Pinn. I'll be handling a number of
`
`issues. We had -- depending on what the questions are, the
`
`issues that come up, Jennifer Lee or Cabrach Connor may
`
`address the question, if that's okay, but if you need one
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`3
`
`PINN-2004
`
`
`
`4
`
`lead designated attorney, that would be me, David Skeels.
`
`
`
`THE COURT: You're going to be the lead attorney.
`
`If you want to defer to someone, you have to state that
`
`person's name so that we have a record of who's speaking.
`
`
`
`MR. SKEELS: Absolutely. Thank you. Thank you,
`
`Your Honor.
`
`
`
`THE COURT: All right. Turning to Apple, I have
`
`present Mr. Seth Sproul, Tucker Nephi Terhufen, and also
`
`Joy B. Kete, who -- Kete -- who has a pro hac vice motion
`
`pending apparently, and then Mr. James Wiley on behalf of
`
`Apple.
`
`
`
`I'll take -- before I ask if that's all, Ms. Kete,
`
`I can't rule on your pro hac vice motion. I'm a discovery
`
`referral judge here. So you're certainly welcome on the
`
`call, but you won't be able to make any appearances and if --
`
`Mr. Wiley is also welcome but as -- if he hasn't made an
`
`appearance in the case, he won't be able to argue.
`
`
`
`So let me ask Mr. Sproul: Who on behalf of Apple
`
`is going to be designated as counsel in charge of argument
`
`this morning?
`
`
`
`SETH M. SPROUL: Good morning, Your Honor.
`
`Seth Sproul. I will be handling the argument. I had
`
`intended to allow Ms. Kete to argue as well and was going to
`
`ask if there was some special dispensation that we could --
`
`or some agreement we could reach whereby you could allow her
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`4
`
`PINN-2004
`
`
`
`15
`
`because we don't believe those will be produced within ten
`
`days, and we don't think that we will have the ability to
`
`fully review them within ten days to meet the supplementation
`
`deadline that Your Honor has ordered. Specifically --
`
`
`
`THE COURT: All right. Can you remind me -- or
`
`verify something for me. The request for productions were
`
`served late January; is that right?
`
`
`
`MR. SPROUL: Well, Pinn has asserted that, but in
`
`fact, discovery didn't open, and so they weren't deemed
`
`served until late February when we completed the 26(f)
`
`conference.
`
`
`
`
`
`
`
`THE COURT: Well, I'm not sure I agree with that.
`
`MR. SPROUL: And so --
`
`THE COURT: I'm not sure agree with your
`
`interpretation. 26 -- Rule 26 and Rule 34 allow document
`
`requests to be served before the parties' conference, and it
`
`doesn't say "completed." It says when they "first start."
`
`That's when the date runs from.
`
`
`
`MR. SPROUL: Your Honor, my understanding is that
`
`-- and I don't have the rule in front of me -- is that the
`
`RFPs may be served earlier, but they aren't deemed served
`
`until that 26(f) conference and the date --
`
`
`
`THE COURT: Until the Rule 26 conference first
`
`starts. So, if it goes over multiple days, it's the date the
`
`first -- it first starts.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`5
`
`PINN-2004
`
`
`
`16
`
`
`
`MR. SPROUL: We -- our position was at the time --
`
`and we notified Pinn of this, and they never responded in
`
`email to it or otherwise --
`
`
`
`THE COURT: I'm just going to read -- I'm going to
`
`read to you Rule 26(d)(2). Okay? So Rule 26(d) is timing
`
`and sequence of discovery, and the general rule is (1), which
`
`is there's no discovery from any source until the parties
`
`have conferred as required by Rule 26(f), and then it exempts
`
`the early Rule 34 requests -- and this is Rule 34(d)(2)(A) --
`
`I'm sorry -- (d)(2)(B) -- that early Rule 34 requests are
`
`considered served, quote, "at the first Rule 26(f)
`
`conference, period," closed quote.
`
`
`
`
`
`When was your first Rule 26(f) conference?
`
`MR. SPROUL: We have this in our documentation. I
`
`believe it was February 10th, Your Honor, and that --
`
`
`
`THE COURT: Well, I thought it was January 22nd,
`
`but maybe I'm wrong.
`
`
`
`MR. SPROUL: I -- there was a dispute about whether
`
`that constituted, even, the start of the 26(f) conference.
`
`We had joined a call that wasn't originally scheduled to
`
`include us, and they'd invited us to join, and we had said,
`
`"We don't consider this our 26(f). We are participating, but
`
`we're not prepared," and so forth.
`
`
`
`I guess, rather than dispute that issue, because I
`
`don't think it actually impacts the issues here, because with
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`6
`
`PINN-2004
`
`
`
`17
`
`respect to the Rule 34 requests and the requests for
`
`production, again, we've gone and affirmatively collected and
`
`produced hundreds of thousands of pages of documents
`
`responsive to the RFPs. The ESI production is a separate
`
`beast under the ESI order entered in this case, and I don't
`
`think there's any dispute about the timing of documents
`
`produced as part of the ESI process, which is a little more
`
`involved, involves targeting individuals, and it involves a
`
`cloning process --
`
`
`
`THE COURT: Listen. I understand all that, but we
`
`have a discovery cutoff of August 4th, I want to keep this
`
`ball moving, and I'm going to read now from Docket 51 --
`
`that's the parties' joint Rule 26(f) statement -- the very
`
`first line -- I'm sorry -- the very first line of the second
`
`paragraph. (Reading) Counsel for the parties met and
`
`conferred telephonically on January 22, 2020, and they
`
`conferred at various times thereafter telephonically, in
`
`person -- and lists other times.
`
`
`
`So that's a joint report that indicates that the
`
`Rule 26(f) conference first started on January 22nd, and
`
`we're now mid-June with an August 4th discovery cutoff. I
`
`don't want this hanging out there. So give me a date certain
`
`when, with your new search terms, your ESI documents from
`
`your custodians will be produced.
`
`
`
`MR. SPROUL: I'd -- if you could give me a little
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`7
`
`PINN-2004
`
`
`
`18
`
`bit of time to consult with my team offline, and I can do
`
`that shortly. It's difficult to do right now because the
`
`process involves quite a bit of work on the back end. We
`
`will work very hard to get it out, especially if it's within
`
`the 20,000-ish-page -- excuse me -- the 20,000-document level
`
`that we anticipate. If Your Honor would allow me a few
`
`minutes --
`
`
`
`THE COURT: Well, what's the -- the problem here is
`
`if they get a bunch of documents that they've never seen
`
`before on July 6th and they now have no timely ability to do
`
`any follow-up discovery and have it responded to by the
`
`discovery cutoff.
`
`
`
`MR. SPROUL: I understand, Your Honor, and we will
`
`work very hard to get that out in a very timely manner, and I
`
`will get you a date certain here shortly.
`
`
`
`I will note that Pinn has also not made its ESI
`
`production, that the parties are sort of working in parallel
`
`there, and they haven't raised a dispute about it, and,
`
`again, we've been transparent about what we're doing. The
`
`problem is we just have hundreds of thousands of documents
`
`that hit on search terms that might otherwise identify
`
`relevant documents, and that's not a feasible way to proceed,
`
`and we are actively working to narrow that and produce it to
`
`Pinn and will do so. Again, they haven't raised an issue
`
`with it and I --
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`8
`
`PINN-2004
`
`
`
`19
`
`
`
`THE COURT: Well, here's the thing: How they're
`
`doing, that's going to be their problem, but what I have in
`
`front of me is a motion by them to compel production. It
`
`doesn't break it down by ESI versus non-ESI. It's just
`
`"responsive documents," which by definition includes ESI.
`
`
`
`So you don't think you can get the ESI within ten
`
`days. I picked ten days precisely so that it falls at a time
`
`that maximizes their ability to conduct follow-up discovery
`
`that will be completed by August 4th, which if memory serves
`
`-- my -- somebody stole my calendar in the courtroom, but if
`
`memory serves, I think it's a Monday or a Tuesday, but that
`
`-- I do want a date certain, and if you don't get me one, I'm
`
`going to give you one because it can't just be lingering out
`
`there and having things rolling in without --
`
`
`
`MR. SPROUL: Understood, Your Honor. And given the
`
`August 4th deadline and the -- sort of the -- our
`
`understanding of the back-end process here, once we are able
`
`to run those search terms -- would July 9th be amenable to a
`
`date certain?
`
`
`
`
`
`
`
`THE COURT: No. That's too late.
`
`MR. SPROUL: (Indecipherable.)
`
`THE COURT: That doesn't give them 30 days before
`
`August 4th to be able to file -- or to be able to serve
`
`follow-up discovery, and the problem is it's not like it's an
`
`instantaneous thing. If you're talking about 10- or 20,000
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`9
`
`PINN-2004
`
`
`
`20
`
`pages of electronic discovery, you can't, then, have exactly
`
`30 days. So I want give them 35 days from August 4th. If we
`
`roll that back -- I should probably just -- not to give Apple
`
`a free testimonial, but I should probably get out my phone
`
`and look at my phone calendar. If we roll back five weeks
`
`from August 4th, we are at -- one, two, three, four --
`
`June 30th. Okay? That would be my -- that would be my
`
`suggestion of the ESI cutoff with the regular cutoff being --
`
`it's actually going to be the 22nd when you factor in a
`
`Sunday. So the regular documents will be due in ten days
`
`from today, which will be June 22nd, and the ESI by
`
`June 30th. That's my thought in light of your concerns.
`
`
`
`MR. SPROUL: Your Honor, we will do that. Let me
`
`ask for -- let me offer one clarification. Again, the only
`
`outstanding documents are the ESI documents, and we don't
`
`intend to go collect and produce other documents. We believe
`
`we've substantially completed that. So we will abide by
`
`June 30th. We ask that Pinn also meet that deadline for its
`
`ESI production.
`
`
`
`THE COURT: Well, let me ask Pinn. Do you
`
`voluntarily agree to produce all ESI documentation and data
`
`by June 30th? Yes or no?
`
`
`
`
`
`
`
`MR. SKEELS: Yes.
`
`THE COURT: Okay.
`
`In terms of -- Mr. Sproul, you're a great lawyer.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`10
`
`PINN-2004
`
`
`
`21
`
`You threw in that word "substantially" complied. That leaves
`
`open the contrary that -- it leaves open some wiggle room
`
`there that there may still be other documents. So I'm going
`
`to leave June 20- -- ten days from today for all non-ESA
`
`[sic] documents -- you've got to be done, and then ESA
`
`information has to be produced by June 30th. All right?
`
`
`
`
`
`
`
`MR. SPROUL: Understood. Thank you, Your Honor.
`
`THE COURT: Okay. What's your next issue?
`
`MR. SPROUL: I'd like to address the verifications
`
`as well. We have served a verification of our second set of
`
`-- our supplemental response to the first set of
`
`interrogatories, which were in dispute here. I think that
`
`resolves the issue. We will in a timely manner supplement --
`
`or, excuse me -- we will serve verifications for rogs going
`
`forward.
`
`
`
`THE COURT: I'm sorry, gentlemen. Could you hold
`
`one moment.
`
`
`
`
`
`
`
`MR. SPROUL: Yes.
`
`(Pause.)
`
`THE COURT: Thank you. We have subleased a marine
`
`recruiting station, and I think they're doing weightlifting
`
`about our courtroom right now. So I have sent my courtroom
`
`deputy to order the marines to stop. We'll see what happens
`
`in a battle of branches of government.
`
`
`
`All right. I'm sorry, Mr. Sproul. Please
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`11
`
`PINN-2004
`
`
`
`22
`
`continue.
`
`
`
`MR. SPROUL: I wanted to provide an update on the
`
`verification. We have --
`
`
`
`THE COURT: Understood. You've verified all the
`
`amended or supplemental responses. Is that what you're
`
`saying?
`
`
`
`MR. SPROUL: The ones that were in dispute. We
`
`have subsequently served an additional supplementation that
`
`we will verify. We are set to serve another response to the
`
`second set of interrogatories this Friday, and we will serve
`
`a verification within ten days after that. So what we would
`
`ask is that we be given a little lag time from the time we
`
`finalize and serve our interrogatories to let that percolate
`
`through the witnesses who need to, then, verify because they
`
`have to look at a lot of documentation, and there's just a
`
`little bit of time that's involved with everybody being
`
`dispersed and so forth. So, if we could have that ten-day
`
`window after service of our interrogatories, then we will
`
`commit to verifying as we go, and we have already verified,
`
`again, the rogs in dispute here.
`
`
`
`THE COURT: Well, I'm -- I got to be honest with
`
`you. It concerns me that there's responses going out on
`
`behalf of Apple that are getting verified later. The rules
`
`don't permit that, and it makes me wonder where the
`
`information is coming from in these response if it's taking
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`12
`
`PINN-2004
`
`
`
`23
`
`weeks, and in some cases months, to have somebody review the
`
`information to verify it. So right now it's not before me.
`
`The order speaks to the prior verifications, you've said
`
`you've already given them, but I'm going to leave the order
`
`just in case there's something that's still outstanding.
`
`
`
`In terms of responses going forward, the rules are
`
`the rules. If you're asking for leave for basically -- it's
`
`-- essentially what you're asking for is an extension of time
`
`to respond to the interrogatories. You know, why don't you
`
`talk to Pinn and see what they view about that, but I don't
`
`know that this changes anything that's in my order on what's
`
`before me. Am I missing something?
`
`
`
`MR. SPROUL: No, Your Honor, other than -- in
`
`general, I guess, our practice has been -- you know, and it
`
`depends, obviously, on the plaintiff -- is people aren't as
`
`concerned about this because the verification doesn't -- in
`
`my experience, hasn't come into play where it's precluded
`
`reliance on an interrogatory. We've not ever said we're not
`
`going to verify. What -- we've just said it takes a little
`
`bit of time. We gather --
`
`
`
`
`
`THE COURT: Well, I'm going to --
`
`MR. SPROUL: -- a lot of information from a lot of
`
`different people --
`
`
`
`THE COURT: I'm going to interrupt you because it
`
`-- it's just -- not just a matter of -- it goes to -- I don't
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`13
`
`PINN-2004
`
`
`
`24
`
`know if you're doing 30(b)(6) depositions lined up, I don’t
`
`know if you have individual officers who are going to be
`
`deposed, but to the extent someone signs discovery responses,
`
`I would imagine that that person is a likely -- or signs
`
`verifications, I'd imagine that person is a likely candidate
`
`either as a 30(b)(6) or as a regular discovery target for a
`
`deposition, and the longer that you make Pinn wait for that
`
`information, at least as to who it is, the slower things get.
`
`
`
`You know, the other aspect of it is we've got a
`
`discovery cutoff. You know, it's -- it happened. So that
`
`should have been taken into account, as you're putting
`
`together the responses, and build in a week's lead time so
`
`that the lawyers can draft their responses with enough lead
`
`time for the client to really look at it closely and verify
`
`it and then have everything together in one packet as it goes
`
`out. In a normal case, where you didn't have an August 4th
`
`discovery cutoff on -- I'm not going to characterize it as
`
`"complex" or not, but there's certainly a lot of issues in
`
`the case.
`
`
`
`We got to get moving. I don't want to keep having
`
`wiggle room. So you talk to Pinn about it. If they're
`
`willing to agree to an extra seven days for verifications,
`
`that's fine with me, you don't me to do anything, but what
`
`I'm telling you is keep the ball moving. There was
`
`definitely some things in the joint stipulation from Apple's
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`14
`
`PINN-2004
`
`
`
`25
`
`standpoint that caused me concern that perhaps Apple wasn't
`
`acting with the requisite amount of diligence to get these
`
`things done. There's a flipside to it. There were certainly
`
`things in the joint stipulation that had me concerned about
`
`how Pinn was litigating this case, and that's reflected, to
`
`some extent, in the tentative ruling.
`
`
`
`But from Apple's standpoint, let's get going.
`
`Let's get this stuff done. All right?
`
`
`
`MR. SPROUL: Yes, Your Honor. and if I could offer
`
`one clarification there, too. We've been very upfront with
`
`the witnesses that will be relevant to this case, who will be
`
`designated as 30(b)(6), and so we're not, with these
`
`verifications, dropping new names on them. So we are trying
`
`to alleviate any issue there by being upfront with our ESI
`
`custodians and the relevant folks who --
`
`
`
`THE COURT: Okay. And part of this is -- I'll tell
`
`you a little bit about myself, and we're on the record. I
`
`have done many -- as a litigator, as a trial lawyer done many
`
`trials with Judge Carter. I really like Judge Carter. Okay?
`
`But when he tells you, "These are the dates, and we're
`
`sticking with them," he means it. Okay? You have a
`
`discovery cutoff of August 4th. That needs to be complied
`
`with.
`
`
`
`Even if both sides come in and say, "Judge," you
`
`know, we've got this COVID situation, we've got other
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`15
`
`PINN-2004
`
`
`
`26
`
`situations that" -- "making this very difficult for us to get
`
`depositions completed, to complete what we need to do,"
`
`Judge Carter's been in the building every day for the last
`
`two months, and as you probably see, if you're from
`
`Los Angeles, he's also out walking Skid Row and the streets
`
`of Downtown Los Angeles working to try to resolve the
`
`county's -- the city and the county's homeless situation.
`
`
`
`He's not going to react kindly to a late request to
`
`continue dates, and so this is me taking off my judge hat and
`
`putting on my lawyer hat and tell you you guys got to get
`
`this done, and when you have witnesses saying, "Well, we got
`
`a pandemic. I don't want to have a deposition taken," or "We
`
`can't" -- and I'm glad you took care of the source code issue
`
`because that was going to be something that was going to have
`
`to be taken care of. You folks -- you got the July 4th
`
`holiday in here, you've got who knows what other disruptions
`
`maybe taking place over the next six to eight weeks. You got
`
`to get this stuff done.
`
`
`
`So I'm urging you to act with all deliberate speed
`
`to get everything done that needs to be done. I'm glad that
`
`Mr. Wiley's on the call, he can hear this and relay this.
`
`One thing I know is both sides feel very strongly about the
`
`merits of their case. It would be a shame if, for some
`
`reason, due to a failure to a comply with discovery or some
`
`other court-imposed deadline that someone's -- that the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`16
`
`PINN-2004
`
`
`
`27
`
`sanctions wind up being someone loses an ability to rely on a
`
`defense or a claim gets dismissed for failure to comply with
`
`court rules. So you're both in this together. Let's move
`
`these things along.
`
`
`
`All right. What's up next, Mr. Sproul, of things
`
`you want to talk about in the tentative?
`
`
`
`MR. SPROUL: So I'd like to address the royalty
`
`info and the licenses, and, again, this is a clarification of
`
`the history. What Apple said to Pinn was "We've identified
`
`relevant licenses that we will produce." We have to provide
`
`notice. We were not seeking consent. All we had to do was
`
`let the notice period run. We told them, "It's going to run
`
`on May 25th, and we will produce the documents to you on
`
`May 25th." They moved anyways. We produced the documents to
`
`them on May 25th, exactly as they said they -- as we said
`
`they -- that we would, and it wasn't reflected in
`
`Your Honor's order that -- that specific order of events.
`
`You -- it seemed that Your Honor understood that we were
`
`saying we weren't going to produce things or that we had to
`
`rely on some third-party consent before we --
`
`
`
`THE COURT: Here's my question -- here's my
`
`question: Have you advised -- is there something in the
`
`record where you have stated that all responsive documents --
`
`all nonprivileged responsive documents responsive to the --
`
`I'm just to call them the "royalty" RFPs and interrogatories
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`17
`
`PINN-2004
`
`
`
`28
`
`-- that all responsive documents and information have been
`
`produced?
`
`
`
`MR. SPROUL: I don't know whether we've stated that
`
`in those terms only because it wasn't quite phrased like that
`
`to us during the dispute --
`
`
`
`THE COURT: Well, I'm phrasing it to you now.
`
`First of all, has that been said anywhere that I can see? If
`
`not, are you saying it now as an officer of the court?
`
`
`
`MR. SPROUL: What I'm saying, Your Honor, is that
`
`we have produced responsive licenses that we believe were
`
`responsive --
`
`
`
`THE COURT: I'm not asking if you've produced some.
`
`I'm asking if you've produced all.
`
`
`
`MR. SPROUL: The only problem I have with "all,"
`
`Your Honor, is Apple has literally thousands, if not tens of
`
`thousands, of licenses, and we've done --
`
`
`
`THE COURT: Okay. So I'm going to -- I'm just
`
`going to -- I'm going to short-circuit it. Then my order is
`
`going to stand. That's what the order is going to say is --
`
`if you had told me, "I can say as an honor" -- "as an officer
`
`of the court that we've produced everything," then I would
`
`turn to Pinn and say, "It sounds like there's nothing for me
`
`to do," but you can't say that. I understand why, but it
`
`means that the order is going to stand.
`
`
`
`MR. SPROUL: Maybe I should clarify --
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`18
`
`PINN-2004
`
`
`
`29
`
`
`
`THE COURT: If you're concerned about the
`
`background and how I characterized it in the tentative, I can
`
`go revisit that and see whether it warrants revamping, but in
`
`terms of the substance of the order, it's going to stand.
`
`
`
`MR. SPROUL: Maybe I should clarify, then,
`
`Your Honor. Under what we -- what we understand our
`
`obligations to be, which is a reasonable, diligent search,
`
`we've done that. We've produced everything that we've found
`
`that we believe to be relevant, and so I will say that.
`
`We've produced all documents we believe to be relevant
`
`subject to the reasonable-search requirements and our
`
`inability to, obviously, look at every document at Apple. We
`
`don't intend to drop other documents on Pinn at this time.
`
`
`
`THE COURT: All right. Well, that's -- then that
`
`makes my order easy for you to comply with, but I'm going to
`
`leave the order as it is, and it's partly because of the
`
`history of what I saw in the meet-and-confer process and in
`
`the other process that that was not made clear that
`
`everything was produced by the time of the joint stipulation
`
`being circulated.
`
`
`
`
`
`So what's next, Mr. Sproul?
`
`MR. SPROUL: I would like to add one more point on
`
`the license issue, which is Pinn identified a litigation to
`
`Apple that it wanted to see the license from. We are going
`
`to produce that. We have a notice requirement there that
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`19
`
`PINN-2004
`
`
`
`30
`
`we're complying with, but we're not withholding that
`
`document, but that was something that we didn't believe to be
`
`relevant so we weren't going to produce it. They asked for
`
`it. We said, "Yes, we'll give it to you." So we are going
`
`to produce a license document related to the Fundamental
`
`Innovation Systems litigation --
`
`
`
`THE COURT: Well, hold -- I don't want you to get
`
`into anything that one party thought was deserving of being
`
`sealed. Does any portion of the transcript now need to be
`
`sealed?
`
`
`
`MR. SPROUL: No. It's public record. That's a
`
`public litigation between Fundamental Innovation Systems and
`
`Apple.
`
`
`
`THE COURT: Well, I thought the existence of a
`
`license or royalty agreement involving that entity was
`
`something that Apple considered to be confidential? No?
`
`
`
`MR. SPROUL: The -- I will let Mr. Wiley jump in
`
`here if he wants to seal that. I don't believe the mere
`
`existence --
`
`
`
`THE COURT: Well, unfortunately, he can't jump in.
`
`He's not admitted in this case. So I'm going to assume that
`
`the answer is no, that we don't need to seal anything based
`
`on the statements made by counsel.
`
`
`
`
`
`MR. SPROUL: That's correct, Your Honor.
`
`So I think that completes the issues
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`20
`
`PINN-2004
`
`
`
`84
`
`privilege log. All right?
`
`
`
`
`
`MR. SPROUL: Thank you, Your Honor.
`
`THE COURT: All right. So hearing no further
`
`requests? Anybody, here's your time to chime if there's
`
`something else. Going once. Going twice. All right.
`
`
`
`Thank you very much for your time. I do think we
`
`accomplished a lot, and I'll look forward to the supplemental
`
`memoranda and potentially a joint report regarding the
`
`working through of search-term issues for ESI on the Google
`
`side of things. All right?
`
`Thank you very much, everyone.
`
`MULITPLE SPEAKERS: Thank you, Your Honor.
`
`
`
`(Proceedings adjourned at 11:54 a.m.)
`
`
`
`
`
`
`
`///
`
`///
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`21
`
`PINN-2004
`
`
`
`85
`
`
`
`
`
`
`
`CERTIFICATE
`
`
`
`
`
`I certify that the foregoing is a correct
`
`transcript from the electronic sound recording of the
`
`proceedings in the above-entitled matter.
`
`
`
`
`/s/ Julie Messa
`Julie Messa, CET**D-403
`Transcriber
`
`
`
`
`June 14, 2020
`Date
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`22
`
`PINN-2004
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
