Professional Documents
Culture Documents
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
UNITED STATES DISTRICT COURT
18
NORTHERN DISTRICT OF CALIFORNIA
19
20
21
Case No.
CV 14-2269 LHK
CLASS ACTION
Plaintiff,
22
23
24
25
v.
APPLE INC.,
Defendant.
26
27
28
JT. RULE 26(F) RPT. & CMC STMT. CV 14-2269 LHK
la-1268770
and through their counsel, have met and conferred pursuant to Rule 26(f) of the Federal Rules of
Civil Procedure, Local Rule 16-9, and the Courts Order Setting Initial Case Management
Conference and ADR Deadlines. Pursuant to the forgoing, the parties hereby jointly submit this
1.
8
9
10
11
FACTS
Plaintiff claims that former iPhone/iMessage users are unable to receive text messages
12
from current iPhone/iMessage users after switching to a non-Apple device. She claims that this
13
occurs because the Apple Message[s] application does not recognize that the same telephone
14
number of the former Apple device user . . . is no longer using an Apple device and hence is no
15
longer using iMessage or Messages, (Compl. 14.), and she also alleges that Apple failed to
16
disclose this feature of the iMessage and Messages service and application. Id. at 44. Plaintiff
17
asserts claims for tortious interference with contract, violation of Californias Consumers Legal
18
Remedies Act (CLRA), and Californias Unfair Competition Law (UCL) on behalf of a
19
proposed nationwide class of certain Apple device owners who switched their wireless service to
20
a non-Apple device.
21
Apple denies Plaintiffs allegations and has moved to dismiss for failure to state a claim.
22
23
3.
24
25
26
27
28
iii. Whether Plaintiff can state a claim or be entitled to any relief for violation of
2
3
the UCL.
4.
MOTIONS
Apple filed a motion to dismiss [Dkt. No. 18] all claims on July 24, 2014. Plaintiff filed
her opposition [Dkt. No. 22], and the motion is currently set for hearing on November 13, 2014.
Court Order that would enjoin Apple from continuing to employ iMessage and Messages until
and unless it resolves the issues outlined in Plaintiffs Class Action Complaint. Plaintiffs
10
counsel has alerted Apples counsel to this potential filing. Apple will oppose any such motion
11
12
5.
13
14
AMENDMENTS OF PLEADINGS
Any future amendment of the pleadings is contingent upon the Courts ruling on Apples
motion to dismiss.
15
Plaintiff has drafted a CLRA demand letter pursuant to California Civil Code 1782, and
16
therefore anticipates amending the Class Action Complaint to assert a money damages claim for
17
Apples alleged CLRA violations if within the 30-day statutory period following receipt of
18
Plaintiffs CLRA demand letter Apple fails to take all action demanded in the CLRA demand
19
20
6.
21
EVIDENCE PRESERVATION
The parties will meet and confer further regarding the preservation of evidence. All
22
parties are complying in good faith with their obligations to preserve potentially relevant
23
documents.
24
7.
25
DISCLOSURES
The parties will exchange initial disclosures on November 6, 2014.
26
27
28
JT. RULE 26(F) RPT. & CMC STMT. CV 14-2269 LHK
la-1268770
1
2
3
8.
DISCOVERY
a. Discovery Taken To Date
i. Apples Position
None of the parties has taken discovery to date. The parties to the related action,
Backhaut, et al. v. Apple Inc., N.D. Cal. Case No. 5:14-cv-02285-LHK, have agreed that that no
party shall be permitted to propound discovery until after an order is entered on the pending
motion to dismiss. The parties in this related action should follow a similar discovery schedule
because coordinated discovery will facilitate case coordination and serve the interests of judicial
economy. Moreover, given Apples pending motion to dismiss Plaintiffs entire complaint,
10
discovery can proceed most efficiently if it begins after the pleadings are settled and the Court
11
12
13
Plaintiff maintains that, as the parties counsel have already held their Rule 26(f) meet-
14
and-confer session and have had extensive informal discussions about their respective views as to
15
the merits of the case, discovery should be permitted to go forward following the November 13th
16
scheduled Case Management Conference. This case was filed nearly half a year ago, on May 15,
17
2014, and the parties have not engaged in any discovery since that filing. Plaintiff submits that
18
judicial economy would not be advanced by having the parties continue to wait without
19
conducting any discovery until an Order on Apples pending motions is actually entered.
20
21
22
23
workings of iMessage and Messages application, its design and code, what Apple knew of its
24
workings and failing (including, without limitation, what Apple knew of iMessage and Messages
25
effect on the ability of former Apple device users to receive text messages sent from Apple
26
devices once these former users switched to a non-Apple device), what Apple disclosed about
27
iMessage and Messages, and the extent of the complaints received or otherwise known to Apple
28
If Plaintiff is able to state a claim, Apple anticipates that the discovery it seeks will
include the circumstances of Plaintiffs purchase and use of her Apple device; Plaintiffs alleged
failure to receive text messages; and whether, how, and when Plaintiff informed Apple that she
The parties will meet and confer in good faith regarding a protocol for the production of
10
The parties do not anticipate any changes to the limitations in discovery proposed by the
11
Federal Rule or Local Rules at this time. However, as discussed above, consistent with the
12
related Backhaut action, no party should propound discovery until after an order is entered on the
13
pending motion to dismiss and the Court has determined the scope of any remaining claims.
14
9.
CLASS ACTION
15
a. Plaintiffs Statement
16
17
exclusions alleged in that Paragraph, Plaintiff seeks to represent a class of all persons in the
18
United States who, during the Class Period, owned an Apple device operated by iOS 5 or more
19
recent software operating system and who switched their wireless system to a non-Apple device.
20
Plaintiff reserves the right to amend her class definition as case circumstances warrant.
21
b. Apples Statement
22
Apple disputes Plaintiffs contentions that the action is properly maintainable as a class
23
action. Apple submits that it is premature to further address class certification until Apples
24
motion to dismiss is decided. Apple respectfully requests that the Court convene a case
25
26
27
28
JT. RULE 26(F) RPT. & CMC STMT. CV 14-2269 LHK
la-1268770
10.
RELATED CASES
As noted above, the parties are aware of one related case, Backhaut, et al. v. Apple Inc.,
N.D. Cal. Case No. 5:14-cv-02285-LHK, also pending before this Court. The cases were related
11.
RELIEF
a. Plaintiffs Statement
Count I of Plaintiffs Class Action Complaint seeks monetary and equitable relief as
redress for Apples alleged tortious interference with Plaintiffs and the class members
respective contracts with their wireless carriers. Count II of the Class Action Complaint, alleging
10
violations of the CLRA, currently alleges a claim only for non-monetary, equitable, declaratory,
11
or injunctive relief. It is Plaintiffs expectation that, upon the expiration of the 30-day statutory
12
CLRA demand period, if Apple does not take all action demanded in the demand letter, Plaintiff
13
will amend her pleading to state a CLRA money damages claim. Count III of the Class Action
14
Complaint, alleging claims for Apples alleged violations of the UCL seeks all available
15
equitable, injunctive and declaratory relief available under the statute, (including but not limited
16
to, restitution) on behalf of Plaintiff and the putative class members. All claims for relief are
17
sought to be brought on behalf of the class defined in Paragraph 28 of the Class Action
18
Complaint, and the Class Action Complaint also seeks an award of attorneys fees and costs of
19
suit.
20
b. Apples Statement
21
Apple denies that this case can properly be maintained as a class action. Apple further
22
denies that Plaintiff or the purported class have been injured or damaged in any way or are
23
24
12.
25
26
27
13.
28
NARROWING OF ISSUES
The parties are not aware of any issues that can be narrowed at this time.
14.
EXPEDITED SCHEDULE
Apple does not believe that this is the type of case that can be handled on an expedited
basis. As Plaintiff has referenced in Paragraph 4 supra, her counsel is contemplating filing a
motion for preliminary injunction seeking, inter alia, to enjoin Apple from continuing to employ
and deploy iMessage and Messages in their present form. In the event that motion is filed,
Plaintiff submits that the Court should consider whether pursuant to Federal Rule of Civil
Procedure 65(a)(2), it is advisable to consolidate the hearing on the preliminary injunction motion
9
Consolidating the Hearing with the Trial on the Merits. Before or after beginning
the hearing on a motion for a preliminary injunction, the court may advance the
trial on the merits and consolidate it with the hearing. Even when consolidation is
not ordered, evidence that is received on the motion and that would be admissible
at trial becomes part of the trial record and need not be repeated at trial. But the
court must preserve any party's right to a jury trial.
10
11
12
13
14
15
16
17
18
19
Until the Court rules on the pending motion to dismiss, the parties believe it is premature
20
21
22
23
24
25
26
27
SCHEDULING
to propose dates for class certification, designation of experts, discovery cut-off, hearing of
dispositive motions, and a pretrial conference and trial. The parties propose that the court set a
case management conference shortly after it issues an order on Apples pending motion to
dismiss.
16.
TRIAL
The parties agree that the length of the trial will largely depend on the outcome of any
28
JT. RULE 26(F) RPT. & CMC STMT. CV 14-2269 LHK
la-1268770
Until the Court rules on the pending motion to dismiss and on any class certification
motion, the parties do not have the necessary information to estimate the expected length of the
17.
a. Plaintiffs Statement
Plaintiff is unaware of any non-party interested person or entity, other than the absent
b. Apples Statement
Apple has filed the Certification of Interested Entities or Persons required by Civil Local
10
Rule 3-16. Apple confirms that the statements in its previously filed Certificate of Interested
11
12
18.
13
OTHER MATTERS
The parties anticipate submitting a protective order to the Court for entry in the near
14
future. Otherwise, the parties are not currently aware of any other matters at this time conducive
15
16
17
18
DAVID M. WALSH
TIFFANY CHEUNG
KAI S. BARTOLOMEO
MORRISON & FOERSTER LLP
19
By: /s/ David M. Walsh
DAVID M. WALSH
20
21
22
23
24
25
26
27
28
JT. RULE 26(F) RPT. & CMC STMT. CV 14-2269 LHK
la-1268770
ROY A. KATRIEL
THE KATRIEL LAW FIRM
2
3
By: /s/ Roy A. Katriel
ROY A. KATRIEL
4
5
6
7
8
9
10
11
I, David M. Walsh, am the ECF user whose ID and password are being used to file this
Joint Case Management Statement and Rule 26(f) Report. In compliance with Civil Local Rule
5-1(i)(3), I hereby attest that Roy A. Katriel has concurred in this filing.
12
13
14
DAVID M. WALSH
TIFFANY CHEUNG
KAI S. BARTOLOMEO
MORRISON & FOERSTER LLP
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JT. RULE 26(F) RPT. & CMC STMT. CV 14-2269 LHK
la-1268770