Doe v. Apple Inc.
Doe v. Apple Inc.
2022 WL 17853227 (S.D. Ill. 2022)
October 11, 2022

Ellis, Randi S.,  Special Master

Sampling
In Camera Review
General Objections
Technology Assisted Review
Special Master
Proportionality
Facial Recognition Technology
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Summary
The court has determined that certain documents related to future or potential products and features, testing, software bugs, and notifications related to internal software need not be produced on the basis of Defendant's objections. However, other documents should be produced because they contain relevant information with respect to the claims in this case and are proportional to the needs of the case. The court has directed Defendant to apply this guidance to the documents for purposes of TAR review.
JANE DOE by and through next friend John Doe, RICHARD ROBINSON, and YOLANDA BROWN, on behalf of themselves and all other persons similarly situated, known and unknown, Plaintiffs,
v.
Apple Inc., Defendant
Case No. 3:20-cv-00421-NJR
United States District Court, S.D. Illinois
Filed October 11, 2022
Ellis, Randi S., Special Master

SPECIAL MASTER'S REPORT AND RECOMMENDATION REGARDING APPLE'S MOTION FOR CLARIFICATION RELATED TO JULY 29, 2022 REPORT AND RECOMMENDATION

*1 On August 3, 2022, Defendant submitted a request for clarification regarding two issues related to the Report and Recommendation Regarding Wikis Dispute signed on July 29, 2022. On August 8, 2022, Plaintiffs submitted a response to Defendant's request for clarification. Plaintiffs did not oppose Defendant's proposal with respect to the first issue raised in the request for clarification but opposed Defendant's position with respect to issues of relevance raised in the second issue. On August 12, 2022, the parties appeared before the Special Master by Zoom in an attempt to resolve the matters raised in the second issue of Defendant's request for clarification. The parties were unable to reach an agreement during the August 12 conference. This report and recommendations address the issues of relevance raised by Defendant in its August 3 request and during the August 12 conference.
After extensive review of all submissions, relevant research, and communications with all parties, the Special Master believes that establishing a clearer understanding of the scope of relevancy and role of proportionality now will facilitate the review and production of documents pursuant to the approved Technology Assisted Review (“TAR”) protocol, and avoid future disputes as to whether all relevant, nonprivileged material has been produced. Specifically, resolving issues related to the scope of relevancy and the role of proportionality at this time will ensure a clear understanding of the approach Defendant will take in the TAR review, and so that Defendant's TAR review will be conducted based on application of the guidance in this order to promote the prompt and efficient completion of document production.
The Special Master requested that Defendant conduct a review of a random sample of 500 documents from the population of documents to be reviewed pursuant to the TAR protocol. Following the completion of its review, Defendant advised that 14 documents in the sample set were relevant and would be produced, and 451 documents in the sample were not relevant and would not be produced. Defendant also advised that it believes that 35 of the 500 documents in the sample set were not relevant but required a determination of Defendant's request for clarification as to the scope of relevance and the role of proportionality. Defendant also asserts that any likely benefit of identifying and producing documents like the 35 documents in question through TAR review is outweighed by the burden of the incremental human review Defendant could be required to undertake as part of the TAR protocol if it is necessary to identify and produce such documents from the review population. At the Special Master's request, Defendant submitted the 35 documents for in camera review (the “In Camera Documents”).
The following recommendations are based on the Special Master's review of the In Camera Documents and consideration of the parties’ positions.
Unrelated and/or Future Products or Features
Defendant objects to producing documents regarding future or potential products and features that have not been announced or released to the public and products or features other than the alleged facial recognition technology feature of its Photos App that Plaintiffs refer to as the Photos Sorting Software and the synchronizing of People albums across devices with the iCloud Photo Library that Plaintiff refer to as Faces Sync. (See Defendant's August 3, 2022, Ltr. at 5.) Defendant identified three documents in the In Camera Documents that it should not produce on the basis of its objection. (Documents 1, 33, and 35.[1]) Based on a review of these documents, the Special Master recommends:
*2 Document(s) 1, 33, and 35 need not be produced on the basis of Defendant's objection because they relate to other or potential future products or features that are not relevant to the claims or defenses in this case.
Furthermore, insofar as Defendant makes determinations consistent with the foregoing determinations with respect to Documents 1, 33, and 35, the Special Master recommends that Defendant's objection to the production of documents regarding products and features other than the Photos Sorting Software and iCloud Photo Library be upheld, and such documents need not be produced. Defendant is directed to apply this guidance to the documents for purposes of TAR review.
Testing
Defendant has objected to producing documents regarding certain testing, including testing how fast software runs and testing for reliability (e.g., does the software run or does it crash). (See Defendant's August 3, 2022, Ltr. at 4.) Defendant identified three documents in the In Camera Documents that it would not produce on the basis of its objection. (Documents 4, 12, and 23.) Based on a review of these documents, the Special Master recommends:
Document(s) 4, 12, and 23 need not be produced on the basis of Defendant's objection because they relate to testing that is not relevant to the claims or defenses in this case.
Furthermore, insofar as Defendant makes determinations consistent with the foregoing determinations with respect to Documents 4, 12, and 23, the Special Master recommends that Defendant's objection to the production of documents regarding testing be upheld, and such documents need not be produced. Defendant is directed to apply this guidance to the documents for purposes of TAR review.
Software Bugs
Defendant has objected to producing documents regarding software bugs, including documents identifying bugs in software, tracking the status of bugs, fixing bugs, and testing the fixes for bugs. (See Defendant's August 3, 2022, Ltr. at 4.) Defendant identified twelve documents in the In Camera Documents that it would not produce on the basis of its objection. (Documents 2, 5, 7, 13, 16, 18, 19, 22, 25, 28, 31, and 34.) Based on a review of these documents, the Special Master recommends:
Document 2 (limited to the first email within Document 2) should be produced because it appears to contain relevant information with respect to the claims in this case, is proportional to the needs of the case, is not unreasonably duplicative, and cannot be obtained from another more convenient or less burdensome source.
Document(s) 2 (considering the above), the remainder of this document need not be produced on the basis of Defendant's objection because they relate to software bugs that is not relevant to the claims or defenses in this case.
Document(s) 5, 7, 13, 16, 18, 19, 22, 25, 28, 31, and 34 need not be produced on the basis of Defendant's objection because they relate to software bugs that is not relevant to the claims or defenses in this case.
*3 Furthermore, insofar as Defendant makes determinations consistent with the foregoing determinations with respect to Documents 2, 5, 7, 13, 16, 18, 19, 22, 25, 28, 31, and 34, the Special Master recommends that Defendant's objection to the production of documents regarding software bugs be upheld, and such documents need not be produced. Defendant is directed to apply this guidance to the documents for purposes of TAR review.
Notifications Related to Internal Software
Defendant has objected to producing documents reflecting notifications related to internal software, including notifications that new internal versions of developmental-stage operating systems or software are available to Apple engineers, notifications of day-to-day changes to internal (nonpublic) versions of the software, and advisories relating to purely internal software and functions that are never available to (and not intended for) consumers, the public, or putative class members. (See Defendant's August 3, 2022, Ltr. at 4.) Defendant identified nine documents in the In Camera Documents that it would not produce on the basis of its objection. (Documents 6, 11, 14, 17, 20, 21, 27, 29, and 30.) Based on a review of these documents, the Special Master recommends:
Documents 6, 11, 14, 17, 20, 21, 27, 29, and 30 should be produced because they contain relevant information with respect to the claims in this case, are proportional to the needs of the case, are not unreasonably duplicative, and cannot be obtained from another more convenient or less burdensome source.
Furthermore, insofar as Defendant makes determinations consistent with the foregoing determinations with respect to Documents 6, 11, 14, 17, 20, 21, 27, 29, and 30, the Special Master recommends that Defendant's objection to the production of documents reflecting notifications related to internal software be upheld, and such documents need not be produced. Defendant is directed to apply this guidance to the documents for purposes of TAR review.
Remaining Documents
In addition to the foregoing objections identified in its August 3 request for clarification, Defendant identified eight documents in the In Camera Documents falling into one of three additional categories. Defendant objects to producing these documents.
Defendant identified three documents it described as non-substantive planning documents. (Documents 3, 10, 15.) Based on a review of these documents, the Special Master recommends:
Documents 3, 10, and 15 should be produced because they contain relevant information with respect to the claims in this case, are proportional to the needs of the case, are not unreasonably duplicative, and cannot be obtained from another more convenient or less burdensome source.
Furthermore, insofar as Defendant makes determinations consistent with the foregoing determinations with respect to Documents 3, 10, and 15, the Special Master recommends that Defendant's objection to the production of such documents be upheld, and such documents need not be produced. Defendant is directed to apply this guidance to the documents for purposes of TAR review.
Defendant identified three documents that contain references to the Photos Sorting Software or Faces Sync in contexts that are not relevant to any parties’ claims or defenses. (Documents 8, 9, 32.) Based on a review of these documents, the Special Master recommends:
Documents 8, 9, and 32 should be produced because they contain relevant information with respect to the claims in this case, are proportional to the needs of the case, are not unreasonably duplicative, and cannot be obtained from another more convenient or less burdensome source.
*4 Furthermore, insofar as Defendant makes determinations consistent with the foregoing determinations with respect to Documents 3, 10, and 15, the Special Master recommends that Defendant's objection to the production of such documents be upheld, and such documents need not be produced. Defendant is directed to apply this guidance to the documents for purposes of TAR review.
Defendant identified two documents it described as related to user interface decisions. (Documents 24 and 26.) Based on a review of these documents, the Special Master recommends:
Documents 24 and 26 need not be produced on the basis of Defendant's objection and are not relevant to the claims or defenses in this case.
Furthermore, insofar as Defendant makes determinations consistent with the foregoing determinations with respect to Documents 24 and 26, the Special Master recommends that Defendant's objection to the production of such documents be upheld, and such documents need not be produced. Defendant is directed to apply this guidance to the documents for purposes of TAR review.
In accordance with the findings herein, the Special Master recommends that the parties proceed expeditiously with TAR review.
DATED: October 9, 2022

Footnotes

The In Camera Documents were labeled numerically for purposes of identification.