Thursday, February 1, 2018

Apple gets support from Lawyers for Civil Justice in fight against discovery sanctions

In connection with the FTC's antitrust lawsuit against Qualcomm, Magistrate Judge Nathaniel Cousins of the United States District Court for the Northern District of California crafted a "Christmas present" for Apple that the iPhone maker would probably have liked to return to the shop immediately: a sanctions order ($25K per day starting December 16) and a December 29 deadline for the production of documents. Bloomberg reported (as did other media, while this blog didn't due to its focus on IP and antitrust issues). The Bloomberg article I just linked to quotes an Apple spokesman as saying that Apple was going to appeal the ruling and that Apple had already produced "millions of documents for this case" and would deliver "millions more."

On Wednesday evening, Lawyers for Civil Justice--an organization representing the interests of corporate counsel (with companies like Microsoft, Shell, ExxonMobil, Eli Lilly, StateFarm, Ford, Merck, Pfizer, Glaxo SmithKline and FedEx sitting on the board) to avoid unreasonably burdensome procedures--asked the court for permission to file the following amicus brief that effectively supports Apple (this post continues below the document):

18-01-31 Lawyers for Civil Justice Proposed Acb by Florian Mueller on Scribd

The most interesting number in the brief is that at some point Apple had--and maybe has as we speak--500 (five hundred!) lawyers assigned to the document-sifting effort.

The most interesting fact in the accompanying request for permission to file the above brief is that Qualcomm did not consent to its filing. That is unusual, but in my eyes it makes the LCJ brief all the more relevant.

LCJ's proposed amicus brief was authored by lawyers from two firms, led by Redgrave's Charles R. Ragan, a discovery expert, and Orrick's Alyssa Caridis, an IP lawyer from a family of inventors.

The brief notes that Qualcomm is seeking similar sanctions against other non-parties that have been told to produce documents in connection with FTC v. Qualcomm.

When I was reading the LCJ brief, I was thinking to myself that former Magistrate Judge Paul Grewal, who previously worked on Judge Koh's cases until he was hired away by Facebook, used to be very strict and demanding but appeared more measured when it came to setting sanctions.

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