1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVSION 7 8 RAJA KANNAN, Case No.17-cv-07305-EJD (VKD)
9 Plaintiff, ORDER RE DISCOVERY DISPUTES v. 10 Re: Dkt. Nos. 108, 110, 112, 113, 114, 115 11 APPLE INC., Defendant. 12
13 14 The parties in this case have asked the Court to resolve a number of discovery disputes. 15 Dkt Nos. 108, 110, 112, 113, 114, 115. The Court held a hearing on all disputes on September 24, 16 2019. Dkt. No. 117. For the reasons stated on the record, and as further described below, the 17 Court resolves the disputes as follows: 18 I. MR. KANNAN’S MOTIONS 19 A. Dkt. No. 108 (Ex. 1) and Dkt. No. 114 20 Plaintiff Raja Kannan moves to compel Apple’s compliance with the Court’s prior 21 discovery order issued on July 11, 2019 (Dkt. No. 105). Mr. Kannan seeks sanctions for Apple’s 22 alleged non-compliance. Apple contends that it has complied with the Court’s prior order. 23 This dispute arises principally from a disagreement between the parties regarding the scope 24 of the document requests at issue in the Court’s July 11 order. Mr. Kannan’s document requests 25 are neither as comprehensive nor as clear as he believes them to be, and Apple’s document 26 production is not as complete as it should have been. The Court resolves the dispute as follows: 27 1 1. For each of Mr. Kotni’s employees1 during the relevant time period2, Apple must 2 produce documents containing information similar to that found in the “options and 3 awards summary” produced with respect to Mr. Kannan at APL-KANNAN_00000384. 4 2. For each of Mr. Kotni’s employees during the relevant time period, Apple must 5 produce bi-weekly pay statements with redactions that are no more extensive than the 6 redactions reflected in the year-end pay statements Apple has already produced, such 7 as APL-KANNAN_00004010. 8 3. Apple must complete its production of compensation calibration sheets and 9 compensation planning guidelines applicable to Mr. Kotni’s employees during the 10 relevant time period, including for the years 2011 and 2012. 11 4. For each of Mr. Kotni’s employees during the relevant time period, Apple must 12 produce documents sufficient to show the contractors or employees who reported to 13 each such employee of Mr. Kotni. 14 5. For each of Mr. Kotni’s employees during the relevant time period, Apple must 15 produce documents sufficient to show the job level of that employee, his or her 16 promotion to a different job level, and the effective date of any such change in job 17 level. The Court understands that Apple believes it has already produced this 18 information. If, upon further review, Apple concludes that its production of this 19 information is not complete, Apple may provide this information in the form of 20 spreadsheet reflecting the output of a database query. 21 6. To the extent Apple maintains a database or other repository of information that may 22 be queried to provide a report(s) or spreadsheet(s) showing, for each of Mr. Kotni’s 23 employees during the relevant time period, the employee’s compensation, stock 24 awards, bonuses, and dividends, Apple must produce that information in report or 25 spreadsheet form. Apple need only produce the information that is kept in the ordinary 26 1 “Mr. Kotni’s employees” refers to the eight Apple employees (in addition to Mr. Kannan) who 27 reported to Mr. Kotni during the relevant time period. 1 course of business. Apple is not required to manually create a report or spreadsheet 2 from its records. 3 Apple must produce these documents no later than October 1, 2019. If Apple cannot comply with 4 this deadline with respect to item 6, above, it shall so inform Mr. Kannan and the Court, and it 5 shall provide a date by which it will complete its production. The Court concludes that no 6 sanctions are warranted at this time. 7 B. Dkt. No. 108 (Ex. 2) and Dkt. No. 115 8 Mr. Kannan moves to compel a Rule 30(b)(6) deposition of Apple on 27 topics. Mr. 9 Kannan’s motion is granted in part and denied in part as follows: 10 Apple shall designate and prepare one or more witnesses to testify as to Topics Nos. 1-17 11 and 21-24. As to all topics that concern Mr. Kotni’s employees, the relevant time period is 12 January 1, 2011 through December 31, 2018. As to all topics that concern Mr. Kannan, the 13 relevant time period is the time period during which he worked for Mr. Kotni, except that as to 14 Topics Nos. 1 and 6, the relevant time period encompasses the period just prior to Mr. Kannan’s 15 transfer to his position under Mr. Kotni during which Apple allegedly canceled Mr. Kannan’s 16 bonus and/or stock award. Topic No. 9 is further limited to the bonus guidelines applicable to 17 contributor level 4, contributor level 5, and manager level 1 employees. 18 Apple shall designate and prepare one or more witnesses to testify as to Topic No. 18, but 19 only with regard to the contractors or employees who reported to each of Mr. Kotni’s employees 20 during the relevant time period. 21 Apple need not designate a witness to testify as to Topics Nos. 19 and 20. 22 If it has not already done so, Apple must advise Mr. Kannan of the names of its corporate 23 designees, the topics for which each such person is designated, and the dates each is available for 24 deposition no later than September 27, 2019. 25 The Court defers ruling on Mr. Kannan’s motion to compel deposition testimony with 26 respect to Topics Nos. 25-27 at this time. To the extent Apple contends that Mr. Kannan violated 27 Apple company policies or applicable laws and intends to rely on such violations in the defense of 1 defense, subject to the Court’s resolution of any disputed claim of attorney-client privilege or 2 attorney work product protection. Apple shall advise Mr. Kannan of its defense contentions and 3 its assertions of privilege/protection (if any) no later than October 8, 2019. Thereafter, if the 4 parties continue to dispute whether Apple should be required to provide testimony on Topics Nos. 5 25-27, or dispute the scope of such testimony, they shall bring the issue to the Court’s attention for 6 resolution using the discovery dispute procedures described below. 7 C. Dkt. No. 108 (Ex. 3) and Dkt. No. 113 8 Mr. Kannan seeks a protective order with respect to certain medical records produced in 9 response to third party subpoenas Apple issued. The Court resolves this dispute as follows: 10 Apple must contact each of the medical providers on whom it served a subpoena and 11 inquire whether the provider can re-produce the records to include only the information 12 specifically called for in the subpoena, and if so, how long the provider requires to re-produce that 13 material. Apple shall file a status report no later than September 27, 2019 advising the Court of 14 the results of its inquiries and, if appropriate, suggesting further action to fully resolve this dispute. 15 II. APPLE’S MOTIONS 16 A. Dkt. No. 110 17 1. Mr. Kannan’s Privilege Claims 18 Apple moves to compel the production of responsive documents Mr. Kannan withheld on 19 the basis of various privileges. Mr. Kannan relies on a privilege log dated September 10, 2019. 20 Apple contends that the privilege log is inadequate and that Mr. Kannan has waived any privileges 21 by failing to timely assert them. The Court resolves this dispute as follows: 22 Mr. Kannan’s privilege claims are much delayed and his privilege log is entirely 23 inadequate to support his claims of privilege. Specifically, the documents at issue and the 24 privileges asserted are not described with sufficient particularity to permit the Court to assess the 25 privilege claimed. See Fed. R. Civ. P. 26(b)(5)(A); Burlington N. & Santa Fe Ry. Co. v. U.S.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVSION 7 8 RAJA KANNAN, Case No.17-cv-07305-EJD (VKD)
9 Plaintiff, ORDER RE DISCOVERY DISPUTES v. 10 Re: Dkt. Nos. 108, 110, 112, 113, 114, 115 11 APPLE INC., Defendant. 12
13 14 The parties in this case have asked the Court to resolve a number of discovery disputes. 15 Dkt Nos. 108, 110, 112, 113, 114, 115. The Court held a hearing on all disputes on September 24, 16 2019. Dkt. No. 117. For the reasons stated on the record, and as further described below, the 17 Court resolves the disputes as follows: 18 I. MR. KANNAN’S MOTIONS 19 A. Dkt. No. 108 (Ex. 1) and Dkt. No. 114 20 Plaintiff Raja Kannan moves to compel Apple’s compliance with the Court’s prior 21 discovery order issued on July 11, 2019 (Dkt. No. 105). Mr. Kannan seeks sanctions for Apple’s 22 alleged non-compliance. Apple contends that it has complied with the Court’s prior order. 23 This dispute arises principally from a disagreement between the parties regarding the scope 24 of the document requests at issue in the Court’s July 11 order. Mr. Kannan’s document requests 25 are neither as comprehensive nor as clear as he believes them to be, and Apple’s document 26 production is not as complete as it should have been. The Court resolves the dispute as follows: 27 1 1. For each of Mr. Kotni’s employees1 during the relevant time period2, Apple must 2 produce documents containing information similar to that found in the “options and 3 awards summary” produced with respect to Mr. Kannan at APL-KANNAN_00000384. 4 2. For each of Mr. Kotni’s employees during the relevant time period, Apple must 5 produce bi-weekly pay statements with redactions that are no more extensive than the 6 redactions reflected in the year-end pay statements Apple has already produced, such 7 as APL-KANNAN_00004010. 8 3. Apple must complete its production of compensation calibration sheets and 9 compensation planning guidelines applicable to Mr. Kotni’s employees during the 10 relevant time period, including for the years 2011 and 2012. 11 4. For each of Mr. Kotni’s employees during the relevant time period, Apple must 12 produce documents sufficient to show the contractors or employees who reported to 13 each such employee of Mr. Kotni. 14 5. For each of Mr. Kotni’s employees during the relevant time period, Apple must 15 produce documents sufficient to show the job level of that employee, his or her 16 promotion to a different job level, and the effective date of any such change in job 17 level. The Court understands that Apple believes it has already produced this 18 information. If, upon further review, Apple concludes that its production of this 19 information is not complete, Apple may provide this information in the form of 20 spreadsheet reflecting the output of a database query. 21 6. To the extent Apple maintains a database or other repository of information that may 22 be queried to provide a report(s) or spreadsheet(s) showing, for each of Mr. Kotni’s 23 employees during the relevant time period, the employee’s compensation, stock 24 awards, bonuses, and dividends, Apple must produce that information in report or 25 spreadsheet form. Apple need only produce the information that is kept in the ordinary 26 1 “Mr. Kotni’s employees” refers to the eight Apple employees (in addition to Mr. Kannan) who 27 reported to Mr. Kotni during the relevant time period. 1 course of business. Apple is not required to manually create a report or spreadsheet 2 from its records. 3 Apple must produce these documents no later than October 1, 2019. If Apple cannot comply with 4 this deadline with respect to item 6, above, it shall so inform Mr. Kannan and the Court, and it 5 shall provide a date by which it will complete its production. The Court concludes that no 6 sanctions are warranted at this time. 7 B. Dkt. No. 108 (Ex. 2) and Dkt. No. 115 8 Mr. Kannan moves to compel a Rule 30(b)(6) deposition of Apple on 27 topics. Mr. 9 Kannan’s motion is granted in part and denied in part as follows: 10 Apple shall designate and prepare one or more witnesses to testify as to Topics Nos. 1-17 11 and 21-24. As to all topics that concern Mr. Kotni’s employees, the relevant time period is 12 January 1, 2011 through December 31, 2018. As to all topics that concern Mr. Kannan, the 13 relevant time period is the time period during which he worked for Mr. Kotni, except that as to 14 Topics Nos. 1 and 6, the relevant time period encompasses the period just prior to Mr. Kannan’s 15 transfer to his position under Mr. Kotni during which Apple allegedly canceled Mr. Kannan’s 16 bonus and/or stock award. Topic No. 9 is further limited to the bonus guidelines applicable to 17 contributor level 4, contributor level 5, and manager level 1 employees. 18 Apple shall designate and prepare one or more witnesses to testify as to Topic No. 18, but 19 only with regard to the contractors or employees who reported to each of Mr. Kotni’s employees 20 during the relevant time period. 21 Apple need not designate a witness to testify as to Topics Nos. 19 and 20. 22 If it has not already done so, Apple must advise Mr. Kannan of the names of its corporate 23 designees, the topics for which each such person is designated, and the dates each is available for 24 deposition no later than September 27, 2019. 25 The Court defers ruling on Mr. Kannan’s motion to compel deposition testimony with 26 respect to Topics Nos. 25-27 at this time. To the extent Apple contends that Mr. Kannan violated 27 Apple company policies or applicable laws and intends to rely on such violations in the defense of 1 defense, subject to the Court’s resolution of any disputed claim of attorney-client privilege or 2 attorney work product protection. Apple shall advise Mr. Kannan of its defense contentions and 3 its assertions of privilege/protection (if any) no later than October 8, 2019. Thereafter, if the 4 parties continue to dispute whether Apple should be required to provide testimony on Topics Nos. 5 25-27, or dispute the scope of such testimony, they shall bring the issue to the Court’s attention for 6 resolution using the discovery dispute procedures described below. 7 C. Dkt. No. 108 (Ex. 3) and Dkt. No. 113 8 Mr. Kannan seeks a protective order with respect to certain medical records produced in 9 response to third party subpoenas Apple issued. The Court resolves this dispute as follows: 10 Apple must contact each of the medical providers on whom it served a subpoena and 11 inquire whether the provider can re-produce the records to include only the information 12 specifically called for in the subpoena, and if so, how long the provider requires to re-produce that 13 material. Apple shall file a status report no later than September 27, 2019 advising the Court of 14 the results of its inquiries and, if appropriate, suggesting further action to fully resolve this dispute. 15 II. APPLE’S MOTIONS 16 A. Dkt. No. 110 17 1. Mr. Kannan’s Privilege Claims 18 Apple moves to compel the production of responsive documents Mr. Kannan withheld on 19 the basis of various privileges. Mr. Kannan relies on a privilege log dated September 10, 2019. 20 Apple contends that the privilege log is inadequate and that Mr. Kannan has waived any privileges 21 by failing to timely assert them. The Court resolves this dispute as follows: 22 Mr. Kannan’s privilege claims are much delayed and his privilege log is entirely 23 inadequate to support his claims of privilege. Specifically, the documents at issue and the 24 privileges asserted are not described with sufficient particularity to permit the Court to assess the 25 privilege claimed. See Fed. R. Civ. P. 26(b)(5)(A); Burlington N. & Santa Fe Ry. Co. v. U.S. 26 District Court, 408 F.3d 1142, 1149 (9th Cir. 2005). Mr. Kannan must prepare a privilege log that 27 complies with the requirements of Rule 26(b)(5) of the Federal Rules of Civil Procedure and Ninth 1 privilege is asserted before making the claim of privilege and may not merely rely on Mr. 2 Kannan’s characterization of the documents. Mr. Kannan must serve his privilege log on Apple 3 no later than October 8, 2019. 4 2. Mr. Kannan’s Document Production 5 Apple also moves to compel Mr. Kannan’s production of documents responsive to Apple’s 6 Requests for Production Nos. 11, 12, 14, 15, 16, 18, 19, and 21. Mr. Kannan objects to some of 7 these requests and insists his production is complete as to others, or that he does not know what 8 Apple believes is missing. The Court resolves this dispute as follows: 9 1. RFP Nos. 11 and 12: Apple must provide to Mr. Kannan a list of responsive emails or 10 other documents for which Apple contends it is missing the attachments. Mr. Kannan 11 will have one week from receipt of that list to search for and produce those attachments 12 if he has them. 13 2. RFP Nos. 14, 15, 16, and 21: Mr. Kannan must complete his production of responsive 14 documents, with the exception of those as to which he claims a privilege, by October 15 1, 2019. 16 3. RFP Nos. 18 and 19: Mr. Kannan need not produce documents reflecting his wife’s 17 development of software applications; except, however, he must produce responsive 18 documents reflecting software applications developed by any person using Mr. 19 Kannan’s Apple-issued computer equipment, whether those responsive documents are 20 currently stored on Mr. Kannan’s Apple-issued computer equipment or elsewhere. Mr. 21 Kannan must produce these documents by October 1, 2019. 22 B. Dkt. No. 112 23 Apple moves to compel a further deposition of Mr. Kannan. Mr. Kannan resides in India 24 and apparently has no plans to travel to the United States in the near term. Apple advises that it 25 requires no more than three hours of additional deposition time with Mr. Kannan. Mr. Kannan 26 objects to further deposition and particularly objects to further deposition in the United States. 27 The Court resolves this dispute as follows: 1 Kannan’s May 1, 2019 deposition were not timely produced. In addition, it appears that Mr. 2 Kannan may have withheld an unknown quantity of documents on grounds of privilege, which 3 Apple contends he has waived. The Court concludes that some further deposition of Mr. Kannan 4 is likely warranted; however, the Court is prepared to require that the further deposition proceed 5 by videoconference and that it be limited to no more than three hours. 6 The parties have expressed concern regarding whether Mr. Kannan’s deposition can be 7 conducted—even with his consent—while he is in India, without resorting to Hague Convention 8 procedures.3 The Court orders the parties to research this point, confer, and jointly advise the 9 Court of their views about whether Mr. Kannan may be deposed by videoconference while in 10 India. In addition, the parties shall investigate the availability of suitable videoconferencing 11 facilities. The parties must file a status report no later than October 1, 2019 regarding these 12 matters. The status report shall be limited to 1,000 words total and no more than 500 words per 13 party. 14 III. OTHER DISCOVERY MATTERS 15 A. Revised Protective Order 16 The parties may file for the Court’s review and approval a proposed stipulated protective 17 order that includes a designation for “outside counsel’s eyes only” or “attorneys’ eyes only” 18 material by September 25, 2019. If they do not file a proposed protective order by that date, the 19 Court will enter a protective order based on this district’s Model Protective Order for Litigation 20 Involving Patents, Highly Sensitive Confidential Information and/or Trade Secrets (available on 21 the Court’s website at https://cand.uscourts.gov/model-protective-orders), modified to account for 22 this Court’s dispute resolution procedures. 23 B. Deposition Scheduling 24 If it has not already done so, no later than September 27, 2019, Apple must advise Mr. 25 Kannan of the dates each of the following witnesses is available for deposition: Kiram Kunder, 26
27 3 The parties may wish to consult the State Department’s website for India as an aid to their 1 Moazam Raja, Rahul Rastogi, and Joseph Kotni. 2 C. Discovery Dispute Resolution Procedures 3 As the parties have not successfully cooperated in bringing discovery disputes to the Court 4 for resolution in compliance with the Court’s Standing Order for Civil Cases, the Court orders the 5 parties to comply with the following additional, more specific procedures with respect to all future 6 disputes: 7 1) The conference of lead counsel must take place within 3 court days of one party’s 8 demand for the call. 9 2) After the call, the party seeking relief from the Court must provide a draft of its portion 10 of the joint submission to the opposing party within 2 court days of the conference of 11 lead counsel. 12 3) The opposing party must provide a draft of its portion of the joint submission within 4 13 court days of the conference of lead counsel. 14 4) The party seeking relief may revise its portion of the joint submission and provide that 15 revision to the opposing party by 11:00 a.m. on the fifth court day following the 16 conference of lead counsel. 17 5) The opposing party may revise its portion of the joint submission and provide that 18 revision to the party seeking relief by 4:00 p.m. on the fifth court day following the 19 conference of lead counsel. 20 6) The party seeking relief will make no further revisions to the joint submission and will 21 file the joint submission by 5:00 p.m. on the fifth court day following the conference of 22 lead counsel. 23 If any party fails to comply with these procedures in a material way, that party and/or its counsel 24 will be subject to sanctions, including an adverse determination of the matter in dispute. 25 D. Case Management Deadlines 26 Nothing in this order relieves the parties of their obligation to seek relief from the 27 presiding judge with respect to the case management deadlines that have been set in this case. 1 IT IS SO ORDERED. 2 || Dated: September 25, 2019 3 . 28 □ 4 VIRGINIA K. DEMARCHI 5 United States Magistrate Judge 6 7 8 9 10 11 12
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