Special Master Jose Linares has rejected the DOJ’s request to reconsider his decision allowing Apple to seek documents from 14 separate government agencies in the antitrust case against the company. Here are the details.
A bit of background
One of Apple’s defense strategies in the antitrust lawsuit the DOJ brought against the company involves the US government’s own use of its products.
Apple’s basic argument is that some of the practices challenged by the DOJ are, in fact, legitimate security and privacy safeguards. Hoping to support that defense, Apple wants to examine how federal agencies evaluate security and privacy when setting smartphone policies and making purchasing decisions.
To that end, Apple has been seeking documents from the following 14 agencies:
- Central Intelligence Agency (CIA)
- Department of Commerce
- Department of Homeland Security
- Department of Defense
- Federal Bureau of Investigation (FBI)
- Federal Trade Commission (FTC)
- General Services Administration
- Department of Labor
- National Aeronautics and Space Administration (NASA)
- National Security Agency (NSA)
- Office of the Director of National Intelligence
- Office of Management and Budget
- Office of Personnel Management
- Department of State
Following Apple’s initial request to force these agencies to turn over the documents, the DOJ objected. The dispute was then referred to Special Master Jose Linares for a ruling.
Last month, Linares granted Apple’s request, prompting the DOJ to file a motion for reconsideration. It argued that he had applied the wrong legal standard, that Apple’s requests were unduly burdensome and disproportionate, and that the documents sought had limited relevance to the case.
Apple then filed an opposition arguing that the DOJ’s motion “failed at every level” and refuting the department’s arguments point by point.
Linares has now issued his new decision, concluding that “none of [the DOJ’s] arguments in support of its application for reconsideration are persuasive,” and leaving his original ruling in place.
Apple cleared to seek documents
The new decision states:
The Special Master concludes that none of Plaintiff’s arguments in support of its application for reconsideration are persuasive.
It adds that Linares saw “no reason, persuasive or otherwise, to reverse course at this point,” adding that “Federal Agencies, in this case, (are) part of the United States for purposes of party discovery.”
From the decision:
Plaintiff tries to split hairs by asserting that, under Rule 45 of the Federal Rules of Civil Procedure, “a non-party to litigation is afforded greater protection from discovery than a party.” […] Thus, Plaintiff concludes that the Special Master’s Order and Opinion rests on flawed reasoning since it did not reference or incorporate Rule 45 into the analysis.
The Special Master is familiar with Rule 45 and the different standards applicable to third-party discovery. A quick review of the Special Master’s Opinion and Order reveals that Plaintiff is simply incorrect. Indeed, the Special Master detailed how this dispute arose in detail. […]. A review of that portion of the Opinion and Order reveals that Plaintiff itself is the reason why Defendant had to issue the subpoenas in the first place.
The document goes on to explain that Linares considered the 14 federal agencies to be part of the United States, rather than third parties entitled to the additional protections that normally apply under Rule 45:
[…] the discovery sought here from the specific Federal Agencies is appropriate party discovery because “the definition of the ‘United States’ also includes agencies that inform the policies, rules, and regulations the executive branch sets.” (Order at 6 (emphasis in original and added)). Thus, Plaintiff is wrong that the Special Master needed to perform a Rule 45 third-party burden analysis here. […]
The document also says the DOJ “misunderstands the legal framework applicable to this dispute,” while criticizing its assertion that the requested information had “minimal” relevance as being made “without citation to any support.”
As a result, Apple is once again cleared to seek the documents from the 14 federal agencies.
You can read the full decision below:
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