Case 4:19-cv-02033-YGR Document 372 Filed 06/30/23 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE APPLE INC. SECURITIES LITIGATION
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`Case No. 4:19-cv-2033-YGR
`ORDER GRANTING MOTION FOR RELIEF
`Re: Dkt. No. 351
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`Before the Court is plaintiff’s motion for relief from a nondispositive pretrial order issued by
`the Honorable Chief Magistrate Judge Joseph C. Spero. (Dkt. No. 276.) Pursuant to Federal Rule of
`Civil Procedure 72 and Civil Local Rule 72-2, plaintiff challenges Judge Spero’s order rejecting it’s
`request that defendant Apple re-review 1,850 documents withheld based on attorney-client privilege.
`The motion is granted as explained herein.
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`I.
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`BACKGROUND
`This motion relates to a long-running dispute over defendants’ withholding of certain
`documents as attorney-client privileged. On February 24, 2022, the parties submitted a discovery
`letter to Judge Spero. (Dkt. No. 227.) One of the disputes at issue was whether Apple improperly
`withheld 469 documents in five categories as attorney-client privileged. (Id. at 2, 5-6.) After an
`initial round of briefing, Judge Spero ordered parties to meet and confer and provide supplemental
`briefing. Through that process, the parties agreed to limit the privilege dispute to 232 documents.
`On August 3, 2022, Judge Spero issued an order regarding this dispute (hereinafter, “the
`August Order”). Judge Spero held that attorney-client privilege only extended to documents for
`which legal advice was the primary purpose, rejecting defendants’ position that privilege extends to
`documents where legal advice was “a” primary purpose and ordered defendants to provide plaintiff
`with those documents at issue which were wrongfully withheld under that standard. (Dkt. No. 272 at
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`16, 43.) Relevant here, Judge Spero also conducted an in camera review of 27 of the challenged
`documents and found 18 had been improperly withheld under the “the primary purpose” test.
`This Court denied defendants’ request for relief from that decision. (Dkt. No. 302.)
`However, the Court granted defendants’ request for a stay pending resolution of In re Grand Jury,
`23 F.4th 1088 (9th Cir. 2021) No. 21-1397, which addressed the appropriate standard for attorney-
`client privilege. (Dkt. No. 313.) The Supreme Court dismissed the writ of certiorari as
`improvidently granted, effectively keeping in place the “the primary purpose” standard in this
`circuit.
`The parties met and conferred and Apple produced some of the documents previously
`withheld as attorney-client privileged as well as amended privilege-log entries. (Dkt. No. 348 at 2.)
`On March 7, 2023, the parties filed a discovery letter in which plaintiff asserted (1) that
`defendants are violating Judge Spero’s August Order by failing to provide updated privilege logs for
`62 of the 232 challenged documents which they continue to withhold and (2) that defendants should
`be compelled to review all documents withheld as attorney-client privileged under In re Grand
`Jury’s “the primary purpose” standard, rather than the “a primary purpose” standard under which
`defendants initially reviewed the documents. (Dkt. No. 348.)
`The next day, without ordering further briefing, Judge Spero issued an order denying
`plaintiff’s request for relief. Regarding the 62 withheld documents, Judge Spero ordered the parties
`to meet and confer and denied plaintiff’s request for relief without prejudice. Judge Spero denied
`plaintiff’s request regarding review of all attorney-client privileged documents because the “parties
`previously narrowed their privilege disputes to 232 documents.” (Dkt. No. 349.)
`On March 22, plaintiff filed the instant motion for relief and this Court ordered briefing.
`LEGAL STANDARD
`“A non-dispositive order entered by a magistrate must be deferred to unless it is ‘clearly
`erroneous or contrary to law.’” Grimes v. City & Cty. Of San Francisco, 951 F.2d 236, 241 (9th Cir.
`1991) (citing Fed. R. Civ. P. 72(a), 28 U.S.C. § 636(b)(1)(A)). On review of a nondispositive order
`“the magistrate’s factual determinations are reviewed for clear error,” and the district court may only
`set aside those factual determinations if it is left with a “definite and firm conviction that a mistake
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`II.
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`has been committed.” Perry v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010). Thus, the
`Court will modify or set aside Judge Spero’s discovery ruling only if it is clearly erroneous.
`III.
`DISCUSSION
`Plaintiff argues that Judge Spero’s order is contrary to law as it effectively relieves Apple
`from its Rule 26 obligation to correct and supplement disclosures. (Dkt. No. 351 at 4.) Apple
`initially reviewed its documents under the “a primary purpose” standard and has not confirmed that
`it has ensured that it is no longer holding documents that would not be privileged under the “the
`primary purpose” standard. Plaintiff argues that, given the large percentage of the 232 documents
`previously challenged by plaintiff, that were ultimately found to be improperly withheld, including
`67% of the documents reviewed in camera by Judge Spero, that there is a high likelihood that a
`substantial portion of the other documents withheld by defendants as attorney-client privileged are
`similarly wrongly withheld. (Id. at 351 3-4.)
`Defendants respond that plaintiff’s motion is untimely, that plaintiff cannot raise its argument
`regarding Rule 26 as it failed to do so before Judge Spero, and that regardless, Rule 26 does not
`compel defendants to re-review all their attorney-client privilege designations.
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`Timeliness
`A.
`Defendants argue plaintiff untimely raised this dispute. The Court disagrees. This dispute
`was stayed at defendants’ request pending the outcome of In re Grand Jury. Defendants cannot now
`complain that plaintiff did not raise this dispute while that case was pending. Defendants further
`argue that plaintiff did not raise this dispute with defendants until three weeks after the stay lifted
`with the Supreme Court’s resolution of In re Grand Jury on January 23, 2023. Plaintiff responds
`that it could not have raised the dispute sooner because defendants did not complete their production
`of non-privileged documents until weeks later, on February 15. Plaintiff could not have known
`before then whether it disputed Apple’s privilege designations. Accordingly, the Court finds this
`dispute is timely.
`B.
`Rule 26
`Defendants are correct that a party cannot raise an argument in a motion for relief that was
`not raised before the magistrate judge. Cahill v. GC Servs. Ltd. P’ship, No. 317CV01308GPCMDD,
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`Case 4:19-cv-02033-YGR Document 372 Filed 06/30/23 Page 4 of 4
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`2018 WL 1791910, at *4 (S.D. Cal. Apr. 16, 2018). In the discovery dispute letter submitted by the
`parties, plaintiff asserts that defendants’ must re-review their attorney-client privilege withholdings
`“to comply with the law.” (Dkt. No. 348 at 2.) While plaintiff’s letter to Judge Spero did not
`explicitly reference Rule 26, the Court finds that, in the context of a 2.5-page summary dispute letter
`this is sufficient to preserve an argument regarding defendant’s failure to comply with disclosure
`requirements.
`Rule 26 requires a party to supplement disclosures if the party “learns that in some material
`respect the disclosure or response is incomplete or incorrect.” Fed. R. Civ. Pro. 26(e)(1)(A). The
`Court agrees with plaintiff that Judge Spero’s order appears to relieve Apple of that obligation by
`ordering that Apple need not re-review documents withheld as attorney-client privileged beyond the
`232 documents to which parties agreed to center their earlier dispute regarding privilege. As the
`order cites no authority indicating that an agreement between the parties to limit a particular dispute
`can relieve defendant of its general obligations under Rule26(e), the decision is erroneous and
`contrary to the current state of the law.
`The Court returns this issue to Judge Spero for further consideration and guidance on how
`his decision intersects with defendants’ Rule 26 obligations.
`This terminates docket number 351.
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`IT IS SO ORDERED.
` June 30, 2023
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`Dated:
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`____________________________________
`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT COURT JUDGE
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