18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 579 supplied Army service members with defective earplugs. Plaintiffs filed suit under the False Claims Act alleging that Defendant’s earplugs did not come with accurate health warnings, and that as a result of the earplugs’ allegedly defective nature, Plaintiffs suffered tinnitus and hearing loss. During discovery, Defendants filed a motion to quash a subpoena served on Elliott Berger, who was appearing for Defendant’s benefit in a bellwether trial. Defendant argued that Berger was not properly served, and that: (i) enforcing the subpoena would disrupt the efficient functioning of the MDL; (ii) the issuance of the subpoena violated the parties’ agreement that Berger would not be brought in Plaintiffs’ case-in-chief; and (iii) the subpoena was inconsistent with Plaintiffs’ previously stated goal of completing their case-in-chief within the following few days. Id . at 1. The Court denied the motion to quash. The Court determined that Defendant did not establish that the subpoena: (i) failed to allow reasonable time for compliance; (ii) required a non-party to travel beyond the Rule 45(c) geographical limits; (iii) required disclosure of privileged or protected matter; and (iv) subjected the witness to an undue burden. The Court found that Berger was already in the geographic area of the trial, he was provided with several days’ notice, no protected matter would be disclosed, and there was no undue burden imposed on Berger. The Court also noted that there were no discussions in the parties’ communications about Plaintiffs not issuing Berger a subpoena should the opportunity arise. For these reasons, the Court therefore denied Defendant’s motion to quash. In Re Apple iPhone Antitrust Litigation , 2021 U.S. Dist. LEXIS 25194 (N.D. Cal. Jan. 26, 2021). Plaintiffs brought an antitrust class action alleging that Apple’s App Store monopolized application distributing systems, thereby locking developers into its systems and forcing them to pay a commission to Apple for payments received through app purchases. Apple filed a motion to compel discovery of records from non-party Samsung and to quash the deposition of Apple’s CEO. The Court denied the motion. Apple’s subpoena requested Samsung’s internal analyses and decision-making concerning distribution of Fortnite on Samsung’s devices and contended that the documents would ultimately support Apple’s procompetitive justifications. Id. at *8. Samsung argued that its internal analyses and decision-making concerning the distribution of Fortnite on its devices were irrelevant, and that even if Apple could show relevance, it could not show substantial need under Rule 45(d)(3). Id . The Court determined that Apple’s subpoena sought confidential commercial information within the meaning of Rule 45(d)(3)(B)(i). The Court held that that Apple failed to establish a "substantial need" for the requested documents. Id. at *6. The Court found that the documents only had minimal relevance, because although Apple stated the request was to look into Epic’s ability to distribute Fortnite on other platforms, the current motion to compel sought documents and information that were unknown to Epic, as they were for documents not in Epic’s possession, custody, or control. Any factual information about Epic’s ability to distribute its apps through Samsung, and any restrictions or conditions that Epic must abide by, would be known to Epic and revealed in its documents. Thus, the Court determined that the document production would be confidential, internal Samsung analysis of its arrangement with Epic, which was sensitive competitive information, not relevant to factual questions about Epic’s ability to distribute apps on other platforms. Further, the Court opined that the requested documents would have very limited relevance because they were all about one specific app producer: Epic, and were thus unlikely to be important evidence of competition in a market or the effect of Apple’s policies on any sort of market however the market may ultimately be defined. Id . at *14. Accordingly, the Court denied the motion to compel. In addition, the Court ruled that as to the deposition, there would likely be complex questions about the App Store’s policies, fee structures, and how the relationship between different markets affected each other. The Court reasoned that “the facts of the case go way beyond the historical facts of what happened and when," and that there was “no one like Apple’s CEO who can testify about how Apple views competition in these various markets that are core to its business model." Id . at *15. For these reasons, the Court found sufficient need to depose Apple’s CEO. In Re Boeing Co., 2021 U.S. App. LEXIS 22602 (5th Cir. July 29, 2021). Plaintiffs filed a class action alleging that Boeing and Southwest Airlines conspired to defraud the flying public by concealing various alleged design defects with the Boeing 737 MAX 8 aircraft and encouraging the public to fly aboard these aircrafts. Id . at *2. During discovery, Boeing turned over several privilege logs, and, after Boeing entered into a Deferred Prosecution Agreement ("DPA") with the U.S. Department of Justice, Plaintiffs moved to compel over 200 of the privilege-asserted documents under the crime-fraud exception. Id . The District Court determined that Plaintiffs established a prima facie case that the crime-fraud exception to the attorney-client privilege applied to the requested documents. As a result, the District Court ordered Boeing to produce them for in camera review.