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`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 1 of 27
`
`
`
`
`
`AN JAMES N. KRAMER (SBN 154709)
`jkramer@orrick.com
`ALEXANDER K. TALARIDES (SBN 268068)
`atalarides@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`The Orrick Building
`405 Howard Street
`San Francisco, CA 94105-2669
`Telephone:
`(415) 773-5700
`Facsimile:
`(415) 773-5759
`
`Attorneys for Defendant Apple Inc.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`IN RE APPLE INC. SECURITIES
`LITIGATION
`
`
`
`
`
`
`
`
`
`
`
`Civil Action No. 4:19-cv-02033-YGR-JCS
`
`[PROPOSED] ORDER GRANTING
`DEFENDANT APPLE INC.’S
`UNOPPOSED MOTION FOR ISSUANCE
`OF LETTERS OF REQUEST PURSUANT
`TO THE HAGUE CONVENTION
`
`Hearing
`Date: January 7, 2022
`Time: 9:30 a.m.
`Judge: Honorable Joseph C. Spero
`Ctrm: F, 15th Floor
`
`
`
`
`[PROPOSED] ORDER GRANTING APPLE’S UNOPPOSED
`MOTION FOR ISSUANCE OF LETTERS OF REQUEST
`C.A. NO. 4:19-CV-02033-YGR
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 2 of 27
`
`
`
`On November 23, 2021, Apple Inc. (“Apple” or “Defendant”) submitted an Unopposed
`Motion for Issuance of Letters of Request pursuant to the Hague Convention (the “Motion”).
`Having considered the papers and the contentions of the parties, the arguments of counsel, the
`Court HEREBY GRANTS the Motion. Furthermore, the Court issues the Letters of Request
`attached hereto as Exhibits A and B.
`IT IS SO ORDERED.
`
`11/29
`Date: __________, 2021
`
`___________________________________
`HONORABLE JOSEPH C. SPERO
`UNITED STATES CHIEF MAGISTRATE JUDGE
`
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`1
`
`[PROPOSED] ORDER GRANTING APPLE’S UNOPPOSED
`MOTION FOR ISSUANCE OF LETTERS OF REQUEST
`C.A. NO. 4:19-CV-02033-YGR
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 3 of 27
`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 3 of 27
`
`
`
`
`
`EXHIBIT A
`
`2
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 4 of 27
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`IN RE APPLE INC. SECURITIES
`LITIGATION
`
`Civil Action No. 4:19-cv-02033-YGR-JCS
`
`Hon. Joseph C. Spero
`
`
`
`LETTER OF REQUEST FOR INTERNATIONAL JUDICIAL
`ASSISTANCE PURSUANT TO THE HAGUE CONVENTION ON THE
`TAKING OF EVIDENCE ABROAD
`
`To: The Senior Master of the Queen’s Bench Division of the High Court, Royal Courts of
`Justice, Strand, London, WC2A 2LL, United Kingdom
`
`From: Hon. Joseph C. Spero, Chief Magistrate Judge of the United States District Court for the
`Northern District of California, San Francisco Courthouse, Courtroom F – 15th Floor, 450
`Golden Gate Avenue, San Francisco, CA 94102
`
`The United States District Court for the Northern District of California (the “Court”)
`presents its compliments and requests assistance in obtaining evidence to be used in civil
`proceedings before the Court. This request is made pursuant to Rule 28(b) of the Federal Rules of
`Civil Procedure and in conformity with Article 3 of the Hague Convention of 18 March 1970 on
`the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence
`Convention”), to which both the United States and the United Kingdom are parties. Specifically,
`the Court requests international judicial assistance in obtaining testimony pertinent to the claims
`and defenses of the above-referenced civil action from FIL Pensions Management (“FIL
`Pensions”), a company located in England.
`
`
`
`
`
`1
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 5 of 27
`
`
`
`1.
`
`SENDER:
`
`SECTION I
`
`The Honorable Joseph C. Spero
`Chief Magistrate Judge
`United States District Court for the Northern District of California
`San Francisco Courthouse, Courtroom F – 15th Floor
`450 Golden Gate Avenue, San Francisco, CA 94102
`United States of America
`
`2.
`
`CENTRAL AUTHORITY OF REQUESTED STATE:
`
`The Senior Master of the Royal Courts of Justice
`Strand
`London WC2A 2LL
`United Kingdom
`Switchboard: +44 207 947 6000
`Tel: +44 207 947 7772
`
`3.
`
`PERSON TO WHOM THE EXECUTED REQUEST IS TO BE RETURNED:
`
`James N. Kramer, Esq.
`jkramer@orrick.com
`Alex K. Talarides, Esq.
`atalarides@orrick.com
`Tristan K. Allen, Esq.
`tallen@orrick.com
`Orrick, Herrington & Sutcliffe LLP
`The Orrick Building
`405 Howard Street
`San Francisco, CA 94105-2669
`United States of America
`Telephone: (415) 773-5700
`Facsimile: (415) 773-5759
`
`4.
`
`SPECIFICATION OF THE DATE BY WHICH THE REQUESTING AUTHORITY
`REQUIRES RECEIPT OF THE RESPONSE TO THE LETTER OF REQUEST.
`
`It is requested that the oral testimony be taken as soon as possible, preferably within 75 days of
`your receipt of this Letter of Request. The deadline for discovery of this information is March 16,
`2022, when fact discovery is scheduled to close.
`
`
`
`2
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 6 of 27
`
`
`
`SECTION II
`
`IN COMFORMITY WITH ARTICLE 3 OF THE CONVENTION, THE UNDERSIGNED
`APPLICANT HAS THE HONOR TO SUBMIT THE FOLLOWING INFORMATION
`REGARDING THE INSTANT REQUEST:
`5.
`a.
`
`Requesting judicial authority:
`
`ARTICLE 3(a)
`
`The Honorable Joseph C. Spero
`Chief Magistrate Judge
`United States District Court for the Northern District of California
`San Francisco Courthouse, Courtroom F – 15th Floor
`450 Golden Gate Avenue, San Francisco, CA 94102
`United States of America
`
`b.
`
`To the competent authority of:
`
`England, United Kingdom
`
`c.
`
`Names of the case and any identifying number:
`
`In re Apple Inc. Securities Litigation
`Case No. 4:19-cv-02033-YGR-JCS
`United States District Court for the Northern District of California
`6.
`
`ARTICLE 3(b) – NAMES AND ADDRESSES OF THE PARTIES AND THEIR
`REPRESENTATIVES
`
`a.
`
`Plaintiff:
`
`Plaintiff is Norfolk County Council as Administering Authority of the Norfolk Pension Fund
`(“Plaintiff”). Plaintiff is the lead plaintiff in this action and purports to represent all persons who
`purchased or otherwise acquired the publicly traded securities of Apple Inc. between November 2,
`2018 and January 2, 2019 (the “Class Period”).
`
`Plaintiff is located at County Hall, Martineau Lane, Norwich, NR1 2DH, United Kingdom.
`
`Plaintiff is represented by Robbins Geller Rudman & Dowd LLP. Robbins Geller is located at
`Post Montgomery Center, One Montgomery Street, Suite 1800, San Francisco, California, 94104,
`United States of America.
`
`3
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 7 of 27
`
`
`
`b.
`
`Defendants:
`
`Defendants are Apple Inc. (“Apple”), Timothy Cook, and Luca Maestri (collectively
`“Defendants”). Defendants are located at One Apple Park Way, Cupertino, California, 95014,
`United States of America.
`
`Defendants are represented by Orrick, Herrington & Sutcliffe LLP. Orrick is located at the Orrick
`Building, 405 Howard Street, San Francisco, California, 94105, United States of America.
`c.
`
`Other parties:
`
`Other named plaintiffs in this action are City of Roseville Employees’ Retirement System
`(“Roseville”) and Employees’ Retirement System of the State of Rhode Island (“Rhode Island”).
`Roseville is located at 29777 Gratiot Avenue, Roseville, Michigan, 48066, United States of
`America.
`
`Roseville is represented by Robbins Geller Rudman & Dowd LLP. Robbins Geller is located at
`Post Montgomery Center, One Montgomery Street, Suite 1800, San Francisco, California, 94104,
`United States of America.
`
`Rhode Island is located at One Capitol Hill, Fourth Floor, Providence, Rhode Island, 02908,
`United States of America.
`
`Rhode Island is represented by Labaton Sucharow LLP. Labaton is located at 140 Broadway
`New York, New York, 10005, United States of America.
`7.
`a.
`
`Nature of the proceedings:
`
`ARTICLE 3(c)
`
`This is a federal securities class action filed against Apple and two of its executive officers for
`violations of the Securities Exchange Act of 1934 and SEC Rule 10b-5 promulgated thereunder.
`b.
`
`Summary of complaint:
`
`Plaintiff’s Revised Consolidated Class Action Complaint for Violation of the Federal Securities
`Laws (the “Complaint”), filed on June 23, 2020, alleges that on a November 1, 2018 earnings call,
`Apple’s CEO Tim Cook made an actionably false or misleading statement concerning Apple’s
`business in China. Plaintiff alleges that “in reliance on the integrity of the market,” it and the class
`suffered damages by paying “artificially inflated prices” for Apple stock. A copy of the Complaint
`is attached as Exhibit 1.
`c.
`
`Summary of defenses and counterclaims:
`
`In response to Plaintiff’s Complaint, Defendants filed an Answer that denied liability and asserted
`affirmative defenses to Plaintiff’s allegations, including that Plaintiff did not rely on the alleged
`misstatement, that the alleged misstatement was not material, and that Plaintiff cannot show
`
`4
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 8 of 27
`
`
`
`transaction or loss causation. To date, Defendants have not asserted any counterclaims against
`Plaintiff. A copy of Defendants’ Answer is attached as Exhibit 2.
`d.
`
`Other necessary information or documents:
`
`On March 4, 2021, the Court entered a Protective Order governing the production and disclosure
`of confidential information in connection with this legal proceeding. Under this Protective Order,
`a non-party can designate documents or testimony as confidential or highly confidential, thereby
`limiting its disclosure. A copy of the Protective Order is attached as Exhibit 3.
`8.
`a.
`
`Evidence to be obtained or other judicial act to be performed:
`
`ARTICLE 3(d)
`
`It is requested that the appropriate judicial authority of the United Kingdom order:
`
`(i) Nicholas Birchall, Director at FIL Pensions; or, in the alternative,
`
`(ii) such other representative of FIL Pensions with greater knowledge of the matters set out
`in Schedule A that FIL Pensions may nominate and Apple agrees,
`
`to be deposed regarding the specific subject matters set forth in the attached Schedule A.
`
`b.
`
`Purpose of the evidence or judicial act sought:
`
`The evidence sought by this request is relevant to claims and defenses in the above-referenced civil
`action. Plaintiff contends that its securities “transactions are carried out by [its] respective
`investment managers without [Plaintiff’s] direct involvement.” Exhibit 4 (Letter from Plaintiff’s
`Counsel) at 2. Its investment managers are charged with “analyz[ing] [the companies in which it
`invests] and monitor[ing] them as part of its decision-making process.” Exhibit 5 (Deposition of
`Plaintiff’s Representative) at 111:17-19. Accordingly, as one of Plaintiff’s investment managers
`that invested in Apple securities on Plaintiff’s behalf during the relevant period, FIL Pensions has
`information regarding the decision to invest in Apple that Plaintiff does not have. Nicholas
`Birchall signed investment management agreement amendments with Plaintiff on FIL Pension’s
`behalf during the relevant period, and therefore has knowledge of these transactions. Mr.
`Birchall’s oral testimony is relevant to (a) whether Plaintiff (or FIL Pensions) relied on
`Defendants’ alleged misstatement in purchasing Apple securities during the Class Period; (b)
`whether the information that Defendants allegedly omitted to disclose was already known to the
`market; and (c) whether Plaintiff suffered actual losses from its trading in Apple securities. Apple
`intends to present this evidence for summary judgment and/or at trial. Thus, justice demands that
`Apple be given access to this important information.
`
`5
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 9 of 27
`
`
`
`9.
`
`SECTION III
`
`ARTICLE 3(e) – IDENTITY AND ADDRESS OF ANY PERSON TO BE
`EXAMINED
`
`The name and address of the witness from whom oral testimony is sought is listed below:
`
`Nicholas Birchall
`FIL Pensions Management
`Fidelity International Limited
`4 Cannon Street
`London EC4M 5AB
`United Kingdom
`Tel: +44 (0) 20 7961 4731
`Email: nicholas.birchall@fil.com
`
`Nicholas Birchall was a Director at FIL Pensions during the relevant time period. Mr. Birchall
`signed investment management agreement amendments between Plaintiff and FIL Pensions and
`therefore possesses knowledge of FIL Pensions’ investments on Plaintiff’s behalf.
`
`In the alternative, FIL Pensions may nominate a representative with greater knowledge of the
`matters set out in Schedule A. During the relevant time period, FIL Pensions (a subsidiary of
`Fidelity International Limited) was Plaintiff’s investment manager and transacted in Apple
`securities on Plaintiff’s behalf. FIL Pensions’ name and address is listed below:
`
`FIL Pensions Management
`Fidelity International Limited
`4 Cannon Street
`London EC4M 5AB
`United Kingdom
`Tel: +44 20 7378 3752
`
`10.
`
`ARTICLE 3(f) – QUESTIONS TO BE PUT TO THE PERSONS TO BE EXAMINED
`OR STATEMENT OF THE SUBJECT MATTER ABOUT WHICH THEY ARE TO
`BE EXAMINED
`
`It is requested that questions in regard to the topics set forth in the attached Schedule A be put to
`Nicholas Birchall or, in the alternative, such other representative of FIL Pension’s with greater
`knowledge of the matters set out in Schedule A that FIL Pensions may nominate and Apple agrees.
`11.
`
`ARTICLE 3(g) – DOCUMENTS OR OTHER PROPERTY TO BE INSPECTED
`
`No documents are requested at this time.
`
`6
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 10 of 27
`
`
`
`12.
`
`ARTICLE 3(h) – ANY REQUIREMENT THAT THE EVIDENCE BE GIVEN ON
`OATH OR AFFIRMATION AND SPECIFIC FORM TO BE USED
`
`It is requested that the witness should be examined under oath. If the evidence cannot be taken in
`the manner requested, it is to be taken in such manner as provided by the applicable law of the
`United Kingdom for the formal taking of testimonial evidence.
`13.
`
`ARTICLES 3(i) & 9 – SPECIAL METHODS OR PROCEDURES TO BE
`FOLLOWED
`
`The Court respectfully requests that the witness should be given an oath before providing oral
`testimony, the testimony should be transcribed verbatim by a stenographer with an interactive real-
`time transcription, and the testimony should be recorded on video by a videographer. It is further
`requested that the parties be permitted to arrange, at their expense, for the attendance of a privately
`employed stenographer and videographer.
`
`The Court respectfully requests that the attorneys for the parties in this action should be permitted
`to be present and to conduct examination and cross-examination of the witness. It is further
`requested that the parties be permitted to attend the proceedings remotely by video or audio
`teleconference, if not able to attend in person. If the examination is to proceed in person, it is
`proposed that the examination take place at the offices of Orrick, Herrington & Sutcliffe (UK)
`LLP, 107 Cheapside, London, EC2V 6DN, United Kingdom.
`
`The Court respectfully requests the evidence of the witness to be reduced into writing, all
`documents produced on such examination to be duly marked for identification, and copies of the
`documents to be made. It is further requested that unless specified otherwise, the examination
`should be taken in accordance with the Federal Rules of Civil Procedure of the United States.
`
`If the evidence cannot be taken according to some or all of the procedures described above, this
`Court requests that it be taken in such manner as provided by the applicable law of the United
`Kingdom for the formal taking of testimonial evidence.
`14.
`
`ARTICLE 7 – REQUEST FOR NOTIFICATION OF THE TIME AND PLACE FOR
`THE EXECUTION OF THE REQUEST AND IDENTITY AND ADDRESS OF ANY
`PERSON TO BE NOTIFIED
`
`It is requested that counsel for Apple (at the address below) be notified of the date, time, and place
`for the examination. It is further requested that, should FIL Pensions nominate a more
`knowledgeable representative in lieu of Mr. Birchall, counsel for Apple be notified of the name of
`the individual at least ten days prior to commencement of the deposition.
`
`James N. Kramer, Esq.
`jkramer@orrick.com
`Alex K. Talarides, Esq.
`atalarides@orrick.com
`Tristan K. Allen, Esq.
`tallen@orrick.com
`
`7
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 11 of 27
`
`
`
`Orrick, Herrington & Sutcliffe LLP
`The Orrick Building
`405 Howard Street
`San Francisco, CA 94105-2669
`United States of America
`Telephone: (415) 773-5700
`Facsimile: (415) 773-5759
`
`15.
`
`ARTICLE 8 – REQUEST FOR ATTENDANCE OR PARTICIPATION OF
`JUDICIAL PERSONNEL OF THE REQUESTING AUTHORITY AT THE
`EXECUTION OF THE LETTER OF REQUEST
`
`No attendance or participation of judicial personnel of the requesting authority is requested.
`16.
`
`ARTICLE 11(b) – SPECIFICATION OF PRIVILEGE OR DUTY TO REFUSE TO
`GIVE EVIDENCE UNDER THE LAW OF THE STATE OF ORIGIN
`
`Under the laws of the United States, a witness has a privilege to refuse to give evidence if to do so
`would disclose a confidential communication between the witness and his attorney that was
`communicated specifically for the purpose of obtaining legal advice and which privilege has not
`been waived. United States law also recognizes a privilege against self-incrimination. Certain
`limited immunities are also recognized outside the strict definition of privilege, such as the limited
`protection of work product created by attorneys during or in anticipation of litigation.
`17.
`
`THE FEES AND COSTS INCURRED WHICH ARE REIMBURSABLE UNDER
`THE SECOND PARAGRAPH OF ARTICLE 14 OR UNDER ARTICLE 26 OF THE
`CONVENTION WILL BE BORNE BY:
`
`The fees and costs incurred that are reimbursable under the second paragraph of Article 14 or
`under Article 26 of the Convention will be borne by Apple.
`
`SECTION IV
`
`The Court expresses its gratitude to the judicial authorities of United Kingdom for their
`assistance and courtesy under the terms of the Hague Evidence Convention.
`
`HONORABLE JOSEPH C. SPERO
`UNITED STATES MAGISTRATE JUDGE
`
`Dated: ______________, 2021
`
`
`
`
`
`
`
`
`8
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 12 of 27
`
`SCHEDULE A
`
`DEFINITIONS
`
`1.
`
`2.
`
`The term “Apple” as used herein means Apple Inc.
`
`The term “Apple Personnel” means any current or former directors, officers,
`
`employees, agents, representatives, or any other person acting or purporting to act on behalf of
`
`Apple.
`
`3.
`
`4.
`
`The term “Apple Securities” means any and all Securities of Apple.
`
`The term “FIL Pensions” means FIL Pensions Management and its current or
`
`former directors, officers, employees, agents, representatives, or any other person acting or
`
`purporting to act on behalf of FIL Pensions.
`
`5.
`
`The term “Fidelity International” means Fidelity International Limited, the parent
`
`of FIL Pensions.
`
`6.
`
`The term “Fidelity Exempt America Fund” means Fidelity International’s Exempt
`
`America Multi Manager Fund, a pooled investment fund managed by Fidelity International.
`
`7.
`
`The term “Complaint” as used herein means the Revised Consolidated Class
`
`Action Complaint, filed on June 23, 2020 and attached as Exhibit 1.
`
`8.
`
`The term “Litigation” means the above-captioned case, In re Apple Inc. Securities
`
`Litigation, Case No. 4:19-cv-02033-YGR-JCS (N.D. Cal.).
`
`9.
`
`The term “Norfolk” means Norfolk County Council as Administering Authority
`
`of the Norfolk Pension Fund, including its predecessors, successors, subsidiaries, divisions, and
`
`affiliates.
`
`10.
`
`The term “Securities” as used herein shall mean any common stock, preferred
`
`stock, debenture, option, or other debt or equity interest and any direct or indirect, legal or
`
`beneficial interest in any limited partnership.
`
`
`
`1
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 13 of 27
`
`DEPOSITION SUBJECT MATTERS
`
`TOPIC NO. 1:
`
`Apple Securities owned, purchased, sold, transferred, or otherwise traded by FIL
`
`Pensions on behalf of or for the benefit of Norfolk between August 1, 2018 through April 2,
`
`2019.
`
`TOPIC NO. 2:
`
`FIL Pensions’ decisions to enter into transactions relating to Apple Securities on behalf
`
`of or for the benefit of Norfolk on November 12, 2018, November 14, 2018, December 18, 2018,
`
`and February 11, 2019.
`
`TOPIC NO. 3:
`
`FIL Pensions’ investment policies, practices, or strategies utilized for the transactions FIL
`
`Pensions made or entered into on behalf of or for the benefit of Norfolk between August 1, 2018
`
`through April 2, 2019.
`
`TOPIC NO. 4:
`
`FIL Pensions’ analysis, evaluation, report, recommendation, or research regarding Apple
`
`or Apple Securities, including Apple’s business conditions in China, between August 1, 2018
`
`through April 2, 2019.
`
`TOPIC NO. 5:
`
`FIL Pensions’ knowledge of or reliance on any misrepresentations and/or omissions
`
`alleged in the Complaint in connection with any investment decisions concerning Apple
`
`Securities.
`
`TOPIC NO. 6:
`
` Communications, meetings, or other correspondence between FIL Pensions or its
`
`affiliates and Apple Personnel from August 1, 2018 through January 31, 2019.
`
`
`
`2
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 14 of 27
`
`TOPIC NO. 7:
`
`Communications, meetings, or other correspondence between FIL Pensions or its
`
`affiliates and securities analysts or reporters, concerning Apple, Apple Securities, or this
`
`Litigation from August 1, 2018 through January 31, 2019.
`
`TOPIC NO. 8:
`
`Communications, meetings, or other correspondence between FIL Pensions and Norfolk
`
`concerning Apple, Apple Securities, or this Litigation between August 1, 2018 and April 2,
`
`2019.
`
`TOPIC NO. 9:
`
`The Fidelity Exempt America Fund’s transactions in Apple Securities between August 1,
`
`2018 and April 2, 2019.
`
`TOPIC NO. 10:
`
`FIL Pensions’ investments in, and divestments from, pooled investments funds that
`
`owned Apple Securities, such as the Fidelity Exempt America Fund, on behalf of or for the
`
`benefit of Norfolk between August 1, 2018 and April 2, 2019.
`
`
`
`
`
`3
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 15 of 27
`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 15 of 27
`
`
`
`
`
`EXHIBIT B
`
`
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 16 of 27
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`IN RE APPLE INC. SECURITIES
`LITIGATION
`
`Civil Action No. 4:19-cv-02033-YGR-JCS
`
`Hon. Joseph C. Spero
`
`
`
`LETTER OF REQUEST FOR INTERNATIONAL JUDICIAL
`ASSISTANCE PURSUANT TO THE HAGUE CONVENTION ON THE
`TAKING OF EVIDENCE ABROAD
`
`To: The Senior Master of the Queen’s Bench Division of the High Court, Royal Courts of
`Justice, Strand, London, WC2A 2LL, United Kingdom
`
`
`From: Hon. Joseph C. Spero, Chief Magistrate Judge of the United States District Court for the
`Northern District of California, San Francisco Courthouse, Courtroom F – 15th Floor, 450
`Golden Gate Avenue, San Francisco, CA 94102
`
`The United States District Court for the Northern District of California (the “Court”)
`
`presents its compliments and requests assistance in obtaining evidence to be used in civil
`
`proceedings before the Court. This request is made pursuant to Rule 28(b) of the Federal Rules of
`
`Civil Procedure and in conformity with Article 3 of the Hague Convention of 18 March 1970 on
`
`the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence
`
`Convention”), to which both the United States and the United Kingdom are parties. Specifically,
`
`the Court requests international judicial assistance in obtaining testimony pertinent to the claims
`
`and defenses of the above-referenced civil action from Capital International Limited (“Capital
`
`International”), a company located in England.
`
`
`
`
`
`1
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 17 of 27
`
`
`
`1.
`
`SENDER:
`
`SECTION I
`
`The Honorable Joseph C. Spero
`Chief Magistrate Judge
`United States District Court for the Northern District of California
`San Francisco Courthouse, Courtroom F – 15th Floor
`450 Golden Gate Avenue, San Francisco, CA 94102
`United States of America
`
`2.
`
`CENTRAL AUTHORITY OF REQUESTED STATE:
`
`The Senior Master of the Royal Courts of Justice
`Strand
`London WC2A 2LL
`United Kingdom
`Switchboard: +44 207 947 6000
`Tel: +44 207 947 7772
`
`3.
`
`PERSON TO WHOM THE EXECUTED REQUEST IS TO BE RETURNED:
`
`James N. Kramer, Esq.
`jkramer@orrick.com
`Alex K. Talarides, Esq.
`atalarides@orrick.com
`Tristan K. Allen, Esq.
`tallen@orrick.com
`Orrick, Herrington & Sutcliffe LLP
`The Orrick Building
`405 Howard Street
`San Francisco, CA 94105-2669
`United States of America
`Telephone: (415) 773-5700
`Facsimile: (415) 773-5759
`
`4.
`
`SPECIFICATION OF THE DATE BY WHICH THE REQUESTING AUTHORITY
`REQUIRES RECEIPT OF THE RESPONSE TO THE LETTER OF REQUEST.
`
`It is requested that the oral testimony be taken as soon as possible, preferably within 75 days of
`your receipt of this Letter of Request. The deadline for discovery of this information is March 16,
`2022, when fact discovery is scheduled to close.
`
`
`
`
`
`2
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 18 of 27
`
`
`
`SECTION II
`
`IN COMFORMITY WITH ARTICLE 3 OF THE CONVENTION, THE UNDERSIGNED
`APPLICANT HAS THE HONOR TO SUBMIT THE FOLLOWING INFORMATION
`REGARDING THE INSTANT REQUEST:
`5.
`a.
`
`Requesting judicial authority:
`
`ARTICLE 3(a)
`
`The Honorable Joseph C. Spero
`Chief Magistrate Judge
`United States District Court for the Northern District of California
`San Francisco Courthouse, Courtroom F – 15th Floor
`450 Golden Gate Avenue, San Francisco, CA 94102
`United States of America
`
`b.
`
`To the competent authority of:
`
`England, United Kingdom
`
`c.
`
`Names of the case and any identifying number:
`
`In re Apple Inc. Securities Litigation
`Case No. 4:19-cv-02033-YGR-JCS
`United States District Court for the Northern District of California
`6.
`
`ARTICLE 3(b) – NAMES AND ADDRESSES OF THE PARTIES AND THEIR
`REPRESENTATIVES
`
`a.
`
`Plaintiff:
`
`Plaintiff is Norfolk County Council as Administering Authority of the Norfolk Pension Fund
`(“Plaintiff”). Plaintiff is the lead plaintiff in this action and purports to represent all persons who
`purchased or otherwise acquired the publicly traded securities of Apple Inc. between November 2,
`2018 and January 2, 2019 (the “Class Period”).
`
`Plaintiff is located at County Hall, Martineau Lane, Norwich, NR1 2DH, United Kingdom.
`
`Plaintiff is represented by Robbins Geller Rudman & Dowd LLP. Robbins Geller is located at
`Post Montgomery Center, One Montgomery Street, Suite 1800, San Francisco, California, 94104,
`United States of America.
`
`3
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 19 of 27
`
`
`
`b.
`
`Defendants:
`
`Defendants are Apple Inc. (“Apple”), Timothy Cook, and Luca Maestri (collectively
`“Defendants”). Defendants are located at One Apple Park Way, Cupertino, California, 95014,
`United States of America.
`
`Defendants are represented by Orrick, Herrington & Sutcliffe LLP. Orrick is located at the Orrick
`Building, 405 Howard Street, San Francisco, California, 94105, United States of America.
`c.
`
`Other parties:
`
`Other named plaintiffs in this action are City of Roseville Employees’ Retirement System
`(“Roseville”) and Employees’ Retirement System of the State of Rhode Island (“Rhode Island”).
`
`Roseville is located at 29777 Gratiot Avenue, Roseville, Michigan, 48066, United States of
`America.
`
`Roseville is represented by Robbins Geller Rudman & Dowd LLP. Robbins Geller is located at
`Post Montgomery Center, One Montgomery Street, Suite 1800, San Francisco, California, 94104,
`United States of America.
`
`Rhode Island is located at One Capitol Hill, Fourth Floor, Providence, Rhode Island, 02908,
`United States of America.
`
`Rhode Island is represented by Labaton Sucharow LLP. Labaton is located at 140 Broadway
`New York, New York, 10005, United States of America.
`7.
`a.
`
`Nature of the proceedings:
`
`ARTICLE 3(c)
`
`This is a federal securities class action filed against Apple and two of its executive officers for
`violations of the Securities Exchange Act of 1934 and SEC Rule 10b-5 promulgated thereunder.
`b.
`
`Summary of complaint:
`
`Plaintiff’s Revised Consolidated Class Action Complaint for Violation of the Federal Securities
`Laws (the “Complaint”), filed on June 23, 2020, alleges that on a November 1, 2018 earnings call,
`Apple’s CEO Tim Cook made an actionably false or misleading statement concerning Apple’s
`business in China. Plaintiff alleges that “in reliance on the integrity of the market,” it and the class
`suffered damages by paying “artificially inflated prices” for Apple stock. A copy of the Complaint
`is attached as Exhibit 1.
`
`4
`
`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 20 of 27
`
`
`
`c.
`
`Summary of defenses and counterclaims:
`
`In response to Plaintiff’s Complaint, Defendants filed an Answer that denied liability and asserted
`affirmative defenses to Plaintiff’s allegations, including that Plaintiff did not rely on the alleged
`misstatement, that the alleged misstatement was not material, and that Plaintiff cannot show
`transaction or loss causation. To date, Defendants have not asserted any counterclaims against
`Plaintiff. A copy of Defendants’ Answer is attached as Exhibit 2.
`d.
`
`Other necessary information or documents:
`
`On March 4, 2021, the Court entered a Protective Order governing the production and disclosure
`of confidential information in connection with this legal proceeding. Under this Protective Order,
`a non-party can designate documents or testimony as confidential or highly confidential, thereby
`limiting its disclosure. A copy of the Protective Order is attached as Exhibit 3.
`8.
`a.
`
`Evidence to be obtained or other judicial act to be performed:
`
`ARTICLE 3(d)
`
`It is requested that the appropriate judicial authority of the United Kingdom order:
`
`(i) Stephen Gosztony, Managing Director at Capital International; or, in the alternative,
`
`(ii) such other representative of Capital International with greater knowledge of the matters
`set out in Schedule A that Capital International may nominate and Apple agrees,
`
`to be deposed regarding the specific subject matters set forth in the attached Schedule A.
`
`b.
`
`Purpose of the evidence or judicial act sought:
`
`The evidence sought by this request is relevant to claims and defenses in the above-referenced civil
`action. Plaintiff contends that its securities “transactions are carried out by [its] respective
`investment managers without [Plaintiff’s] direct involvement.” Exhibit 4 (Letter from Plaintiff’s
`Counsel) at 2. Its investment managers are charged with “analyz[ing] [the companies in which it
`invests] and monitor[ing] them as part of its decision-making process.” Exhibit 5 (Deposition of
`Plaintiff’s Representative) at 111:17-19. Accordingly, as one of Plaintiff’s investment managers
`that invested in Apple securities on Plaintiff’s behalf during the relevant period, Capital
`International has information regarding the decision to invest in Apple that Plaintiff does not have.
`Stephen Gosztony signed investment management agreement amendments with Plaintiff on
`Capital International’s behalf during the relevant period, and therefore has knowledge of these
`transactions. Mr. Gosztony’s oral testimony is relevant to (a) whether Plaintiff (or Capital
`International) relied on Defendants’ alleged misstatement in purchasing Apple securities during the
`Class Period; (b) whether the information that Defendants allegedly omitted to disclose was
`already known to the market; and (c) whether Plaintiff suffered actual losses from its trading in
`Apple securities. Apple intends to present this evidence for summary judgment and/or at trial.
`Thus, justice demands that Apple be given access to this important information.
`
`5
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`

`

`Case 4:19-cv-02033-YGR Document 210 Filed 11/29/21 Page 21 of 27
`
`
`
`9.
`
`SECTION III
`
`ARTICLE 3(e) – IDENTITY AND ADDRESS OF ANY PERSON TO BE
`EXAMINED
`
`The name and address of the witness from whom oral testimony is sought is listed below.
`
`Stephen Gosztony
`Capital International Limited
`Capital Group
`40 Grosvenor Place
`London SW1X 7GG
`United Kingdom
`Tel: +44 (0) 20 7864 5845
`Email: sg@capitalgroup.com; Stephen_Gosztony@capitalgroup.com
`
`During the relevant time period, Stephen Gosztony, a Managing Director of Institutional at Capital
`International, signed investment management agreement amendments between Plaintiff and
`Capital International. Mr. Gosztony was also listed as Plaintiff’s contact a