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DAVID M. WALSH (CA SBN 120761)

DWalsh@mofo.com
KAI S. BARTOLOMEO (CA SBN 264033)
KBartolomeo@mofo.com
MORRISON & FOERSTER LLP
707 Wilshire Boulevard
Los Angeles, California 90017-3543
Telephone: 213.892.5200
Facsimile: 213.892.5454
TIFFANY CHEUNG (CA SBN 211497)
TCheung@mofo.com
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Defendant
APPLE INC.

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ROY A. KATRIEL (CA SBN 265463)

rak@katriellaw.com
THE KATRIEL LAW FIRM
4225 Executive Square, Suite 600
La Jolla, California 92037
Telephone: 858.242.5642
Facsimile: 858.430.3719

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Attorneys for Plaintiff

ADRIENNE MOORE

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ADRIENNE MOORE, On Behalf of Herself and

All Others Similarly Situated,

Case No.

CV 14-2269 LHK

CLASS ACTION
Plaintiff,

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JOINT CASE MANAGEMENT

STATEMENT AND RULE 26(f)
REPORT

v.
APPLE INC.,
Defendant.

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Hon. Lucy H. Koh

Date: November 13, 2014
Time: 1:30 p.m.
Ctrm: Courtroom 8, 4th Floor
Complaint Filed: May 15, 2014
Trial Date: None Set

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CASE MANAGEMENT STATEMENT AND RULE 26(f) REPORT

Plaintiff ADRIENNE MOORE (Plaintiff) and Defendant APPLE INC. (Apple), by

and through their counsel, have met and conferred pursuant to Rule 26(f) of the Federal Rules of

Civil Procedure, Local Rule 16-9, and the Courts Order Setting Initial Case Management

Conference and ADR Deadlines. Pursuant to the forgoing, the parties hereby jointly submit this

Joint Case Management Statement and Rule 26(f) Report.

1.

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JURISDICTION AND SERVICE

There are no issues with subject matter or personal jurisdiction at this time, nor are there

any issues with service of process.

2.

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FACTS
Plaintiff claims that former iPhone/iMessage users are unable to receive text messages

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from current iPhone/iMessage users after switching to a non-Apple device. She claims that this

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occurs because the Apple Message[s] application does not recognize that the same telephone

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number of the former Apple device user . . . is no longer using an Apple device and hence is no

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longer using iMessage or Messages, (Compl. 14.), and she also alleges that Apple failed to

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disclose this feature of the iMessage and Messages service and application. Id. at 44. Plaintiff

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asserts claims for tortious interference with contract, violation of Californias Consumers Legal

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Remedies Act (CLRA), and Californias Unfair Competition Law (UCL) on behalf of a

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proposed nationwide class of certain Apple device owners who switched their wireless service to

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a non-Apple device.

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Apple denies Plaintiffs allegations and has moved to dismiss for failure to state a claim.

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[See Dkt. No. 18.]

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3.

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FACTUAL ISSUES AND LEGAL ISSUES

The parties identify the following legal issues:
i. Whether Plaintiff can state a claim or be entitled to any relief for tortious
interference with contract;
ii. Whether Plaintiff can state a claim or be entitled to any relief for violation of
the CLRA; and

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iii. Whether Plaintiff can state a claim or be entitled to any relief for violation of

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the UCL.
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MOTIONS

Apple filed a motion to dismiss [Dkt. No. 18] all claims on July 24, 2014. Plaintiff filed

her opposition [Dkt. No. 22], and the motion is currently set for hearing on November 13, 2014.

There are no other motions pending at this time.

Plaintiff, however, is contemplating filing a motion for a preliminary injunction seeking a

Court Order that would enjoin Apple from continuing to employ iMessage and Messages until

and unless it resolves the issues outlined in Plaintiffs Class Action Complaint. Plaintiffs

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counsel has alerted Apples counsel to this potential filing. Apple will oppose any such motion

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for a preliminary injunction.

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5.

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AMENDMENTS OF PLEADINGS
Any future amendment of the pleadings is contingent upon the Courts ruling on Apples

motion to dismiss.

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Plaintiff has drafted a CLRA demand letter pursuant to California Civil Code 1782, and

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therefore anticipates amending the Class Action Complaint to assert a money damages claim for

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Apples alleged CLRA violations if within the 30-day statutory period following receipt of

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Plaintiffs CLRA demand letter Apple fails to take all action demanded in the CLRA demand

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letter. See Cal. Civ. Code, 1782(d).

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6.

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EVIDENCE PRESERVATION
The parties will meet and confer further regarding the preservation of evidence. All

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parties are complying in good faith with their obligations to preserve potentially relevant

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documents.

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7.

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DISCLOSURES
The parties will exchange initial disclosures on November 6, 2014.

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DISCOVERY
a. Discovery Taken To Date
i. Apples Position

None of the parties has taken discovery to date. The parties to the related action,

Backhaut, et al. v. Apple Inc., N.D. Cal. Case No. 5:14-cv-02285-LHK, have agreed that that no

party shall be permitted to propound discovery until after an order is entered on the pending

motion to dismiss. The parties in this related action should follow a similar discovery schedule

because coordinated discovery will facilitate case coordination and serve the interests of judicial

economy. Moreover, given Apples pending motion to dismiss Plaintiffs entire complaint,

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discovery can proceed most efficiently if it begins after the pleadings are settled and the Court

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determines whether any claims remain.

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ii. Plaintiffs Position

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Plaintiff maintains that, as the parties counsel have already held their Rule 26(f) meet-

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and-confer session and have had extensive informal discussions about their respective views as to

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the merits of the case, discovery should be permitted to go forward following the November 13th

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scheduled Case Management Conference. This case was filed nearly half a year ago, on May 15,

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2014, and the parties have not engaged in any discovery since that filing. Plaintiff submits that

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judicial economy would not be advanced by having the parties continue to wait without

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conducting any discovery until an Order on Apples pending motions is actually entered.

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b. Scope of Anticipated Discovery

i. Plaintiffs Position
Subject to any future case developments, Plaintiff anticipates discovery to center on the

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workings of iMessage and Messages application, its design and code, what Apple knew of its

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workings and failing (including, without limitation, what Apple knew of iMessage and Messages

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effect on the ability of former Apple device users to receive text messages sent from Apple

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devices once these former users switched to a non-Apple device), what Apple disclosed about

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iMessage and Messages, and the extent of the complaints received or otherwise known to Apple

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about the workings of iMessage and Messages.

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ii. Apples Position

If Plaintiff is able to state a claim, Apple anticipates that the discovery it seeks will

include the circumstances of Plaintiffs purchase and use of her Apple device; Plaintiffs alleged

failure to receive text messages; and whether, how, and when Plaintiff informed Apple that she

would be switching to a non-Apple device.

c. Electronically Stored Information

The parties will meet and confer in good faith regarding a protocol for the production of

ESI when discovery has opened in this matter.

d. Limitations on or Modifications of the Discovery Rules

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The parties do not anticipate any changes to the limitations in discovery proposed by the

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Federal Rule or Local Rules at this time. However, as discussed above, consistent with the

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related Backhaut action, no party should propound discovery until after an order is entered on the

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pending motion to dismiss and the Court has determined the scope of any remaining claims.

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9.

CLASS ACTION

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a. Plaintiffs Statement

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As alleged in Paragraph 28 of Plaintiffs Class Action Complaint and subject to the

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exclusions alleged in that Paragraph, Plaintiff seeks to represent a class of all persons in the

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United States who, during the Class Period, owned an Apple device operated by iOS 5 or more

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recent software operating system and who switched their wireless system to a non-Apple device.

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Plaintiff reserves the right to amend her class definition as case circumstances warrant.

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b. Apples Statement

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Apple disputes Plaintiffs contentions that the action is properly maintainable as a class

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action. Apple submits that it is premature to further address class certification until Apples

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motion to dismiss is decided. Apple respectfully requests that the Court convene a case

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management conference soon after the motion to dismiss is decided.

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10.

RELATED CASES
As noted above, the parties are aware of one related case, Backhaut, et al. v. Apple Inc.,

N.D. Cal. Case No. 5:14-cv-02285-LHK, also pending before this Court. The cases were related

per this Courts Order on June 3, 2014 [Dkt. No. 14].

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RELIEF

a. Plaintiffs Statement

Count I of Plaintiffs Class Action Complaint seeks monetary and equitable relief as

redress for Apples alleged tortious interference with Plaintiffs and the class members

respective contracts with their wireless carriers. Count II of the Class Action Complaint, alleging

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violations of the CLRA, currently alleges a claim only for non-monetary, equitable, declaratory,

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or injunctive relief. It is Plaintiffs expectation that, upon the expiration of the 30-day statutory

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CLRA demand period, if Apple does not take all action demanded in the demand letter, Plaintiff

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will amend her pleading to state a CLRA money damages claim. Count III of the Class Action

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Complaint, alleging claims for Apples alleged violations of the UCL seeks all available

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equitable, injunctive and declaratory relief available under the statute, (including but not limited

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to, restitution) on behalf of Plaintiff and the putative class members. All claims for relief are

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sought to be brought on behalf of the class defined in Paragraph 28 of the Class Action

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Complaint, and the Class Action Complaint also seeks an award of attorneys fees and costs of

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suit.

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b. Apples Statement

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Apple denies that this case can properly be maintained as a class action. Apple further

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denies that Plaintiff or the purported class have been injured or damaged in any way or are

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entitled to any relief whatsoever.

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SETTLEMENT AND ADR

The parties have stipulated to private mediation before a mediator and at a date to be

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determined once the pleadings are settled.

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13.

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NARROWING OF ISSUES
The parties are not aware of any issues that can be narrowed at this time.

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EXPEDITED SCHEDULE
Apple does not believe that this is the type of case that can be handled on an expedited

basis. As Plaintiff has referenced in Paragraph 4 supra, her counsel is contemplating filing a

motion for preliminary injunction seeking, inter alia, to enjoin Apple from continuing to employ

and deploy iMessage and Messages in their present form. In the event that motion is filed,

Plaintiff submits that the Court should consider whether pursuant to Federal Rule of Civil

Procedure 65(a)(2), it is advisable to consolidate the hearing on the preliminary injunction motion

with the trial on the merits. That Rule provides that:

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Consolidating the Hearing with the Trial on the Merits. Before or after beginning
the hearing on a motion for a preliminary injunction, the court may advance the
trial on the merits and consolidate it with the hearing. Even when consolidation is
not ordered, evidence that is received on the motion and that would be admissible
at trial becomes part of the trial record and need not be repeated at trial. But the
court must preserve any party's right to a jury trial.

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Fed. R. Civ. P. 65(a)(2).

Apple will object to any attempt by Plaintiff to consolidate trial with any hearing on a

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motion for preliminary injunction. Such consolidation is inappropriate in the context of a

complex putative class action, particularly before the Court has determined whether Plaintiff can
state any claim.
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Until the Court rules on the pending motion to dismiss, the parties believe it is premature

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SCHEDULING

to propose dates for class certification, designation of experts, discovery cut-off, hearing of
dispositive motions, and a pretrial conference and trial. The parties propose that the court set a
case management conference shortly after it issues an order on Apples pending motion to
dismiss.
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TRIAL
The parties agree that the length of the trial will largely depend on the outcome of any

motion for class certification.

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Until the Court rules on the pending motion to dismiss and on any class certification

motion, the parties do not have the necessary information to estimate the expected length of the

trial in this complex action.

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DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS

a. Plaintiffs Statement

Plaintiff is unaware of any non-party interested person or entity, other than the absent

members of the putative class.

b. Apples Statement

Apple has filed the Certification of Interested Entities or Persons required by Civil Local

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Rule 3-16. Apple confirms that the statements in its previously filed Certificate of Interested

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Entities or Persons are currently accurate.

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OTHER MATTERS
The parties anticipate submitting a protective order to the Court for entry in the near

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future. Otherwise, the parties are not currently aware of any other matters at this time conducive

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to the just, speedy and inexpensive resolution of this matter.

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Dated: November 6, 2014

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DAVID M. WALSH
TIFFANY CHEUNG
KAI S. BARTOLOMEO
MORRISON & FOERSTER LLP

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By: /s/ David M. Walsh
DAVID M. WALSH

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Attorneys for Defendant

APPLE INC.

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Dated: November 6, 2014

ROY A. KATRIEL
THE KATRIEL LAW FIRM

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By: /s/ Roy A. Katriel
ROY A. KATRIEL

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Attorneys for Plaintiff

ADRIENNE MOORE

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I, David M. Walsh, am the ECF user whose ID and password are being used to file this
Joint Case Management Statement and Rule 26(f) Report. In compliance with Civil Local Rule
5-1(i)(3), I hereby attest that Roy A. Katriel has concurred in this filing.

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Dated: November 6, 2014

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DAVID M. WALSH
TIFFANY CHEUNG
KAI S. BARTOLOMEO
MORRISON & FOERSTER LLP

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By: /s/ David M. Walsh

DAVID M. WALSH

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Attorneys for Defendant

APPLE INC.

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