updated 12:55 pm EST, Fri March 8, 2013
Plaintiffs say Apple withholding previously-ordered documents
Apple must show how it's complying with earlier court orders to turn over evidence in a lawsuit over iOS location tracking, US Magistrate Judge Paul Grewal has ruled. Plaintiffs have accused the company of withholding documents; either way, Grewal states that it's "unacceptable" that Apple waited over three months to show compliance with a November order. "Luckily for the plaintiffs, Apple has provided more than enough evidence itself to suggest to the court that it has not fully complied with the court’s order," he writes. "In light of Apple’s performance in this case, the court cannot rely on its representations that this time it really has or will produce all responsive documents."
The lawsuit accuses Apple of failing to warn people that iOS could allow third parties to collect personal data, specifically location information, even after that tracking was technically turned off. Apple has made court filings defending its secrecy with some documents, claiming that the company and customers could be hurt if the contents were "inadvertently released to the public or fell into the wrong hands."
Apple is also resisting a motion by the plaintiffs to upgrade the case to class action status, insisting that it hasn't been shown that any users had data collected without their consent, and thus that any harm was inflicted on them. As for the question of evidence though, Grewal has asked Apple to submit, by the end of Friday, an account of how it collects and evaluates the documents it's required to turn over. This includes any search terms used, the dates searches were made, individuals subject to search, and the quantity of documents turned up. The information will then be used to determine whether Apple made "good faith and reasonable effort."
At a March 5th hearing, Apple lawyer Ashlie Beringer claimed that a failure to produce email from Steve Jobs and other high-level executives was a "mistake." Her team is said to have reviewed over 8,000 emails over the previous weekend, during which time they decided they should hand over messages not only from Jobs by people like marketing head Phil Schiller and then-iOS chief Scott Forstall. That statement -- combined with another from Apple senior litigation manager, Lynn Miller -- triggered Grewal's latest order. In Miller's instance, she wrote in an earlier court filing that it was "inadvertence" that led to six documents being withheld in spite of court orders.
Some of the documents Apple has been asked to turn over involve unredacted versions of pieces on company's app review process. Apple's director of app reviews, Phil Shoemaker, last month submitted a filing arguing that exposing the process would put both the company and users at risk. He specifically cited one example in which an app developer allegedly learned the identity of a reviewer, and that he was attending a conference. "The developer also signed up for the conference and implied that he would kill the reviewer when they met," Shoemaker wrote. Grewal, though, has rejected that position, noting that Apple has admitted that none of the dangers it has described have materialized. Apple will be allowed to mark items as for attorneys only if needed.