U.S. District Judge Nancy Rosenstengel ordered Apple to produce Vice President of Software Engineering Craig Federighi for depositions but denied a request for sanctions sought by Apple product users who claim their biometric identifiers were collected and stored through the Photos App.
In her March 8 order, Rosenstengel found that the plaintiffs are entitled to depose Federighi.
“Because Apple has not met its burden of showing good cause to prevent Federighi’s deposition, its motion for protective order is denied, and plaintiffs’ motion to compel is granted.”
However, Rosenstengel is not requiring Apple to produce Federighi in person for his deposition, finding that Zoom is sufficient.
“Although the court finds that Federighi must sit for a deposition, the court is cognizant of Federighi’s position at Apple and the hardship that requiring him to travel to the Southern DIstrict of Illinois would impose,” she wrote.
The plaintiffs in this case requested deposition of several Apple witnesses, including Federighi, on April 7, 2023.
Apple refused to produce Federighi, and the parties brought the issue to Special Master Randi Ellis. Ellis recommended Apple file a motion for a protective order.
The plaintiffs agreed to temporarily postpone Federighi’s deposition, which was later scheduled for Jan. 24, 2024. Apple objected, indicating it would defer the issue of deposition until all other depositions were completed.
On Jan. 19, the plaintiffs amended the deposition notice, converting it to a virtual deposition.
Apple responded on Jan. 22, asserting that Federighi is an apex witness. The defendant refused to produce him for a deposition until all others were complete.
The special master again informed the parties on Jan. 23 that Apple should file a motion for a ruling from the court. No motion was filed.
Neither Federighi nor Apple’s counsel appeared for the virtual deposition. The plaintiffs responded by filing a motion to compel and for sanctions on Feb. 7. They sought the costs of preparing their motion to compel.
Apple filed its motion for a protective order and opposition to the motion to compel on Feb. 14.
In a memorandum in support of the motion, Apple attorney Raj Shah wrote that the plaintiffs improperly seek to depose Federighi.
“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 argued 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 responded 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 argued 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.
In her ruling, Rosenstengel noted that the burden for satisfying the apex witness requirements falls on Apple. The doctrine requires evidence that the witness has unique knowledge relevant to the case and that the plaintiffs have exhausted all alternative means of discovery.
In regards to unique personal knowledge, Rosenstengel disagreed with Apple that Federighi merely managed the development of the operating systems.
“Testimony from Apple employees indicates Federighi would speak with the engineering team working on the Photos App facial recognition technology on a monthly or semi-monthly basis, and he directly provided input on the features they developed,” she wrote.
“In particular, Federighi discussed the features’ privacy properties, and he ultimately approved new features implemented by the Camera and Photos App team,” she continued.
Rosenstengel added that Federighi has not provided an affidavit denying any unique personal knowledge of the software at issue.
Rosenstengel also concluded that the information the plaintiffs seek “to establish Apple’s intent has not been garnered from other witnesses or other discovery methods.”
“As a senior vice president with decision-making authority, Federighi would have knowledge regarding Apple’s strategic intent that the deposed employees would not possess,” she wrote.
Apple also argued in its motions that forcing Federighi to sit for a deposition would impose undue hardship due to his role as a senior executive.
“True, the court ‘must balance the competing interests’ in allowing the deposition and protecting Federighi from undue burden,” Rosenstengel wrote. “But other than summarily stating that diverting Federighi’s attention away from his job would prejudice both him and Apple (as it would for any employee and employer), Apple has not convinced the court that the deposition would impose an undue hardship.”
In regards to the plaintiffs’ motion for sanctions, Rosenstengel concluded that they are unwarranted here.
“The day before Federighi’s scheduled deposition, the special master instructed Apple to file a motion for protective order,” Rosenstengel wrote. “Thus, plaintiffs were on notice that Apple would be filing a motion for the court’s consideration. Plaintiffs instead chose to file the instant motion to compel. The court will not require Apple to pay those expenses.”
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.