On Tuesday, Apple asserted in an antitrust case against it that the consumer plaintiffs are attempting to use untimely and improper corrections to their expert witness’ deposition testimony in their reply brief. The objection asks that the court strike the corrections in whole or in part as in violation of the Federal Rules of Civil Procedure.
The 2011 Northern District of California suit claims that Apple illegally monopolized “the aftermarket for iPhone apps and prevent[s] the sale of any such apps outside the App Store, a closed market Apple created, and thereby forcing consumers to pay supracompetitive prices.” Previously, the Ninth Circuit reversed the trial court’s determination that the plaintiffs lacked standing under Illinois Brick, a decision that the Supreme Court subsequently affirmed.
In addition, and in the midst of class certification briefing, the plaintiffs moved for leave to amend their complaint to add a California Unfair Competition Law (UCL) cause of action after the same court found Apple liable under the UCL for its App Store’s rules restricting communication between third-party app developers and consumers. On October 22, Apple opposed the motion.
This week’s objection states that on August 3 Apple deposed the plaintiffs’ expert, Professor McFadden, and a week later, opposed class certification and filed a Daubert motion to exclude his testimony. “Apple’s filings drew heavily from Prof. McFadden’s deposition testimony to explain both why no class could be certified and that Prof. McFadden’s opinions concerning classwide impact were unreliable,” the objection explains.
Shortly after Apple filed its reply in support of its Daubert motion, the plaintiffs purportedly served more than 40 “corrections” to Professor McFadden’s deposition transcript. “Although some of these corrections fixed typo-graphical and transcription errors, many others sought to substantively change Prof. McFadden’s testimony, including altering ‘no’ answers to ‘yes,’ correcting mistaken assertions, and revising testimony that Apple had quoted against Plaintiffs in its papers weeks earlier,” the filing says.
Apple claims that substantive changes to the deposition testimony are impermissible. Its motion explains that the plaintiffs seek to rewrite Professor McFadden’s testimony to “undo unhelpful admissions.” Apple further faults the plaintiffs for failing to submit their corrections to the court reporter on time, and in turn, asks the court to strike them.
Wolf Haldenstein Adler Freeman & Herz LLP and Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C. are proposed co-class counsel and, Calcaterra Pollack LLP is counsel for plaintiff Robert Pepper. Apple is represented by Gibson, Dunn & Crutcher LLP.
