Expert Whose Report Is Attached to and Incorporated in Earlier Iteration of Complaint Is Subject to Deposition Even If Not Identified as Testifying Expert

In re iPhone, iPad App. Consumer Privacy Litig., 2012 U.S. Dist. LEXIS 166711 (N.D. Cal. Nov. 21, 2012):

In this multi-district consolidated class action suit, Plaintiffs Isabella and Alejandro Capiro ("Capiros") seek a protective order to prevent Defendant Apple, Inc. ("Apple") from deposing Samy Kamkar ("Kamkar"), an "independent security expert" whose opinion was attached to an earlier complaint... [T]he he court DENIES the Capiros' motion for a protective order and GRANTS the Plaintiffs' request for production. ***

In their initial consolidated complaint, Plaintiffs accused Apple and other defendants of violating various federal and California statutes and committing various property torts primarily based on two factual allegations: (1) that Apple collected and stored geolocation information from class members owning Apple devices even after the geolocation feature of the devices had been turned off; and (2) that Apple failed to disclose to class members that its operating system allowed third parties to collect and monitor personal information from Apple devices without their consent. The lead plaintiffs are divided into two groups, the iDevice Class and the Geolocation Class, according to the factual allegations. The Capiros currently serve as the lead plaintiffs of the Geolocation Class.

Following a motion to dismiss, Judge Koh determined that the factual allegations as pleaded support only two causes of action against Apple: (1) violations of California's Unfair Competition Law ("UCL") 3; and (2) violations California's Consumer Legal Remedies Act ("CLRA"). She dismissed the other causes of action without leave to amend. Plaintiffs filed a Third Amended Complaint ("TAC") on October 4, 2012, after bringing the motions at issue here and replaced a former lead plaintiff in the Geolocation class, Arun Gupta ("Gupta"), with the Capiros. ***

As noted above, before Plaintiffs filed the TAC, the lead plaintiff for the Geolocation Class was Arun Gupta.... Gupta retained Kamkar before filing his suit and requested that Kamkar investigate and draft a report to determine whether Apple's iPhone continued to transmit data even after a user deactivated its Location Services feature, which provides the geolocation of the phone. To "bolster his pleadings," Gupta attached the report to his complaint. ***

Apple subpoenaed Kamkar and requested both to depose him and for production of all documents he relied on in compiling his report. Gupta sought the protective order at issue here to prevent Apple from executing the subpoena. The TAC that substituted the Capiros for Gupta does not include a copy of Kamkar's report. The Capiros continue to seek a protective order to prevent Apple from deposing Kamkar and obtaining the documents they request.***

Apple served two subpoenas on Kamkar, the first seeking to depose Kamkar regarding his report and the second requesting production of "all Documents received, reviewed or relied on" by Kamkar in compiling his report and in preparing for this litigation.

Plaintiffs assert that they may designate Kamkar as an expert but they have not done so yet -- and should not be obligated to do so -- because the deadline for designations is November 30, 2012. They argue that the expert discovery procedures in Fed. R. Civ. P. 26 nevertheless apply to Kamkar because Plaintiffs may decide to designate him as an expert at some point before the deadline. And because Plaintiffs have not determined whether they will designate Kamkar as a testifying or nontestifying expert — if, in fact, they designate him at all — Apple's requests at this point are improper.

Apple argues that it seeks to depose Kamkar not as an expert but as a "percipient witness," and therefore its request is not subject to the expert witness procedures detailed in Fed. R. Civ. P. 26. Apple alternatively argues that even if Kamkar's discussions were subject to the stricter expert witness procedures, Plaintiffs waived any privilege by attaching his report to the earlier complaint. ***

Because the court finds Plaintiffs waived any privilege they may have had, it does not discuss Plaintiffs' other arguments. As to waiver, disclosure to an adverse party is, by its very nature, antithetical to a claim for privilege. [See Atari Corp. v. Sega of America, 161 F.R.D. 417, 420 (N.D. Cal. 1994).] Here, Plaintiffs attached Kamkar's report to an earlier complaint that was served on Apple and filed in the public record. Although the plaintiffs and the attachments have changed, the allegations in the subsequent complaints are not substantially different from the earlier complaints. At the very least, Apple is entitled to depose Kamkar regarding the content of the report served upon it and used by a lead plaintiff in this class action to support the allegations against Apple.

Footnote 40. Apple also suggests Kamkar had reported substantially the same findings before this action in two Wall Street Journal articles. Those articles are not before the court, but if true, their existence further supports allowing Apple to depose Kamkar regarding his findings in those public articles.

The cases Plaintiffs cite do not require a different result. The court first notes that neither of the two cases on which Plaintiffs rely is from this circuit, let alone this district, and therefore supply only persuasive authority. The cases are also distinguishable from the dispute at issue here. In Plymovent Corp. v. Air Technology, [243 F.R.D. 139, 143 (D.N.J. 2007),] the plaintiff designated an expert witness, submitted a report and videotape in support of a preliminary injunction and in discovery, but then "pulled back" the expert before relying on his research in its case. The court held the disclosure of the report was not a waiver that subjected the expert to discovery by the defendant. It relied on the plaintiff's re-designation of the expert, the lack of reliance on the report, and the early stage of litigation to support its determination. The court noted, however, that the "particular circumstances" of the case led to that result, and that the lack of reliance was a particular factor.

In Intervet, Inc. v. Merial, Ltd., [2007 WL 1797643 (D. Neb. June 20, 2007),] the court likewise found the plaintiff had not waived Rule 26(b)(4)(B) protection from discovery for a nontestifying expert. In an earlier case between the parties, the expert had provided a declaration in support of a preliminary injunction, but had not been designated as a testifying witness. 46 The earlier suit was dismissed for lack of standing, with no reliance on the expert's declaration. The court in the later suit found the expert's declaration was not an effective waiver of the protections of Rule 26.

Unlike in those cases, Plaintiffs here rely on Kamkar's findings. The subject matter of his report is the basis for the allegations in their complaints. Plaintiffs rely heavily on the fact that the report was not attached to the TAC — notably filed after Apple's subpoena and this motion — and the lack of reference to the report in Judge Koh's order dismissing several of the claims.

But as the Plaintiffs admit in their motion, Kamkar's findings were the product of an investigation with the goal of initiating this suit, and those findings were incorporated into the complaint. Plaintiffs have not removed allegations drawn from Kamkar's report. Thus, unlike in Plymovent or Intervet, Plaintiffs here rely on Kamkar for their theory of the case and produced a document to the court and to Apple reflecting that reliance. They have effectively waived the privilege.

Accordingly, Plaintiffs' motion for a protective order is DENIED.

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