Lopez v. Apple, Inc.
Lopez v. Apple, Inc.
Case No. 19-cv-04577 (N.D. Cal. 2024)
March 6, 2024

Kim, Sallie,  United States Magistrate Judge

Internet of Things
Mobile Device
Proportionality
Audio
Privacy
Protective Order
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Summary
A court granted a protective order for Apple to follow their data retention policy and delete all recordings from interactions with Siri, citing the burden and cost of maintaining the recordings as outweighing their relevance to the case. The order only applies to future recordings and does not address any past conduct, and parties have the option to request a redacted version of the order to be filed on the public docket. This decision was based on Federal Rule of Civil Procedure 26, which allows for discovery of relevant evidence that is proportional to the needs of the case.
Additional Decisions
FUMIKO LOPEZ, et al.,
Plaintiffs,
v.
APPLE, INC.,
Defendant
Case No. 19-cv-04577-JSW (SK)
United States District Court, N.D. California
Filed March 06, 2024
Kim, Sallie, United States Magistrate Judge

REDACTED ORDER ON MOTION FOR PROTECTIVE ORDER Regarding Docket Nos. 176-1, 203

Now before the Court is Apple Inc.’s motion for a protective order as well as Apple’s administrative motion to file a supplemental declaration from Isabelle L. Ord. The Court GRANTS the administrative motion. (Dkt. No. 203.) The Court will address the remaining pending motions to seal in a separate order.

In this putative class action, Plaintiffs allege that Defendant Apple, Inc. (“Apple”) violated their rights to privacy and misused their data when Plaintiffs accidentally activated Defendant’s “Siri” product in a “False Accept” that then led to a recording. (Dkt. Nos. 1, 48, 70.) Specifically, Apple had represented to users of Apple’s devices that contained Siri that the devices

would only listen to, record, and share their conversations with their consent, which can be given only: (i) by uttering an activation command, like “Hey, Siri” (the “hot word”); (ii) by manually pressing a button on the device; and (iii) in case of the AppleWatch, by raising the AppleWatch to one’s mouth and beginning to talk.

(Dkt. No. 70 (Second Amended Class Action Complaint at ¶4).) Plaintiffs allege that, despite these promises, Apple, in an attempt to improve its products, in fact recorded conversations, listened to them, and then shared them with third party contractors without obtaining consent of the users, even when users did not utter the activation command (“Hey, Siri”) or follow other steps to activate Siri. (Dkt. No. 70 (Second Amended Class Action Complaint) at ¶ 4.) These events of “False Accept” occurred when the devices with Siri were “accidentally woken up.” (Dkt. No. 70 at ¶ 70.) For example instead of activating by the activation command, the “sound of a zip” accidentally woke up Siri to listen to and record the following conversation. (Dkt. No. 70 at ¶ 70.) Plaintiffs also allege that the reason Apple sends these recordings “where no hot word has been uttered or button pushed to improve the functionality of Siri, and thereby market and sell more Siri Devices.” (Dkt. No. 70 at ¶ 75.) Plaintiffs allege and Apple does not dispute that Apple has in the past given these accidental recordings based on False Accepts to third parties to determine why Siri was activated without the proper activation phrase or activation method and to improve the product to prevent future false prompts. Apple contends with no dispute from Plaintiffs that the recordings are anonymized so that there is no way to link them to a specific user. Plaintiffs assert claims for violation of the Wiretap Act (18 U.S.C. section 2510 et seq.), violation of California Penal Code § 632, violation of Article I, Section 1 of the California Constitution, breach of contract, and declaratory relief. (Dkt. Nos. 70, 77 (Order dismissing some claims).)
Apple now seeks a protective order from this Court to follow its data retention policy of deleting the recordings from all interactions with Siri from all sources worldwide. Although Apple records a very short portion of all interactions with Siri, Apple’s data retention policy provides that Apple does not preserve all Siri data but instead preserves only a subset of data that is collected for, among other reasons, to study the issue of false prompts.
Apple argues that, because the recordings at issue in this case constitute only a small part of all the recordings that Apple makes and because the cost to Apple of maintaining all recordings is enormous (more than [REDACTED]), the burden of maintaining the recordings outweighs the need for the recordings. Apple estimates that “the [REDACTED] ingests more than [REDACTED] of data on an average day including more than [REDACTED] Siri audio recordings.” (Dkt. No. 176-1 (Motion for Protective Order filed as redacted at Dkt. No. 204 and unredacted under seal at 177-2) (citing Declaration of Isabel Schunemann in Support of Apple’s Motion for Protective Order, ¶ 10).) “If played consecutively, the estimated length of [REDACTED] Siri audio recordings would exceed [REDACTED] . . . . Apple further estimates that the [REDACTED] independently ingests approximately [REDACTED] of data on an average day.” (Id. (citing Schunemann Decl., ¶ 12).) The cost for storing this data over two years is [REDACTED]. (Id. (citing Schunemann Decl., ¶¶ 11-12).) More than [REDACTED] of data is stored every day. (Dkt. No. 176-1 (Declaration of Isabelle L. Ord in Support of Apple’s Motion for Protective Order filed as redacted at Dkt. No. 204 and unredacted under seal at 177-2), ¶ 4.)
The class is limited to citizens of the United States, but Apple presents evidence – again with no conflicting evidence from Plaintiffs – that there is currently no method of segregating its recordings made from U.S. citizens from the recordings made worldwide. (Schunemann Decl. ¶ 5.) Apple also argues that creating such a system would require a massive amount of work by many people and again is not cost effective. (Id.)
Apple argues that the relevance of the recordings going forward is low, given that Apple has already provided data about the previously-made recordings as part of the sampling method and proposes to maintain the sample of data going forward, as part of its usual process, to learn why a false prompt occurred. Plaintiffs argue that Apple has the burden of showing that there is no relevance for all the recordings, but Plaintiffs do not explain why they need all the recordings made by Siri. Here, the relevance of all recordings made by Siri is low. The main issue in this case is that Apple took a small sampling of the recordings made by Siri and allowed third parties to listen to them in an attempt to improve the product, and this action allegedly violated the contract between Apple and its users and violated the users’ rights to privacy. That Apple made millions of other recordings, some with and some without false prompts, is not relevant to this case. Thus, forcing Apple to maintain all recordings made by Siri does not satisfy the objectives of Federal Rule of Civil Procedure 26, which requires the Court to balance the cost against the relevance of the evidence.[1] 
For these reasons, the Court GRANTS Apple’s motion for protective order to allow Apple to continue to use its retention policy for recordings made by Siri.
Finally, Plaintiffs complain that Apple spoliated evidence in the past by adhering to its retention policy, but this motion merely addresses the future. Apple filed this motion for relief going forward, and this Order thus does not address any past conduct.
Because this Order cites portions of documents filed under seal, the parties may request that a redacted version of this Order be filed on the public docket. The parties must file such a request by March 5, 2024. Failure to do so will result in the filing of the unredacted version of this Order on the public docket.

IT IS SO ORDERED.

Footnotes

Rule 26(b) allows a party to obtain discovery concerning any nonprivileged matter that is relevant to any party’s claim or defense and that is “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).