Apple product users who claim their biometric identifiers were collected and stored through the Photos App's facial recognition technology seek sanctions against the tech giant for failing to produce its Vice President of Software Engineering for a deposition ahead of the March 8 discovery deadline.
The plaintiffs sought sanctions against Apple for its failure to produce senior executive Craig Federighi for his Jan. 24 deposition, violating the governing rules. They claim this action requires sanction.
“Plaintiffs properly noticed the deposition of Mr. Federighi, who, as a senior vice president for software engineering, has extensive personal knowledge concerning Defendant’s at-issue facial recognition software. However, Defendant neither appeared for Mr. Federighi’s deposition nor attempted to obtain a protective order in advance. Defendant’s cavalier refusal to produce Mr. Federighi without obtaining (or even attempting to obtain) a protective order represents a clear breach of the applicable rules for which the entry of sanctions is, by rule, necessary,” the motion states.
The plaintiffs also filed a motion to compel Apple to produce Federighi for the deposition.
On Feb. 14, Apple responded by filing a motion for protective order against the deposition of Federighi.
In a memorandum in support of the motion, Apple attorney Raj Shah wrote that the plaintiffs improperly seek to depose Federighi.
Shah argues that Federighi is an apex witness and should not be deposed until the plaintiffs demonstrate that he has unique knowledge relevant to the case or the plaintiffs have exhausted alternative means of discovery.
“As Apple’s Senior Vice President of Software Engineering, Mr. Federighi oversees the development of complete operating systems for each of Apple’s products and supervises the teams responsible for Apple’s many software applications and operating systems,” Shah wrote. “As Mr. Federighi is far removed from the individuals who worked on the People album feature - who already have been deposed - it is unsurprising that he does not have unique, relevant knowledge.”
Apple also argues that it was preparing to file a motion for a protective order against Federighi’s deposition when the plaintiffs filed their motion to compel his deposition and for sanctions.
The plaintiffs filed a response to Apple’s motion on Feb. 28 through attorney Jerome J. Schlichter of Schlichter Bogard LLP in St. Louis.
“Defendant does not, because it cannot, dispute that its failure to produce Craig Federighi without first obtaining a protective order violates the Federal Rules,” Schlichter wrote. “Nor does defendant dispute that numerous of its current and former employees have testified that Mr. Federighi was personally involved in the creation of defendant’s at-issue facial recognition technology, and directly oversaw the team that developed it.”
Schlichter argues that the defendants should have obtained a protective order in advance of the deposition or provide a legally sound rationale for a protective order in order to prevent Federighi’s deposition.
He further argues that Federighi’s testimony is not barred by an apex witness rule.
“To be clear: Mr. Federighi is not Defendant’s chief executive. He is not one of Defendant’s directors. He does not own a controlling stake in Defendant. Rather, he is one of Defendant’s 16 vice presidents, and one of at least 20 employees involved in Defendant’s leadership,” Schlichter wrote.
“Critically, moreover, Mr. Federighi has important, and unique, knowledge concerning defendant’s at-issue conduct,” he added.
The putative class action was filed on March 2, 2020, in St. Clair County Circuit Court before Apple removed the case to the U.S. District Court for the Southern District of Illinois on May 6, 2020.
According to the complaint, the plaintiffs allege Apple violated BIPA by collecting, possessing and profiting from their facial geometries through facial recognition. They claim the Apple Photos App uses a proprietary software and facial recognition technology to scan facial features from photographs, creating a “faceprint” for every person detected “‘without the knowledge or informed written consent of’ the user or others who may appear in the photographs.”
The plaintiffs acknowledge that the Photos App uses “on-device processing,” but argue that Apple is liable because it provides the app.
The plaintiffs seek class certification, including “all Illinois citizens whose faces appeared in one or more photographs taken or stored on their own Apple Devices running the Photos App from March 4, 2015 until present.”
They seek injunctive relief, actual damages, $5,000 in statutory damages for each intentional and reckless BIPA violation, $1,000 for each negligent BIPA violation, attorney’s fees and court costs.