Unreported / Non-Citable
Background
Plaintiff Thomas Dorobiala alleges that Apple Inc. acts anticompetitively by requiring users of Apple mobile devices to use iCloud to back up and store certain files, and by monopolizing and attempting to monopolize the market for full-service cloud storage on those devices. The operative complaint further alleges that non-party Google LLC offers a competing cloud storage service and also provides cloud storage to Apple. These are allegations, not findings.
Plaintiff subpoenaed a Google corporate representative on six topics covering January 1, 2015 to the present, estimating 3.5 hours. He argued the testimony is needed because Google is a potential competitor, its Android ecosystem offers a comparison, its security practices and Apple's use of Google storage undercut Apple's security defense, and the parties dispute whether the market includes Android. Google objected that the topics seek competitively sensitive information, call for expert testimony, and are overbroad and burdensome. Apple took no position but asked to examine Google too and to have the deposition by October 23, 2026, before its November 4 summary judgment motion on a limitations defense.
The Court’s Holding
Magistrate Judge DeMarchi decided the dispute without oral argument, quashing the subpoena in part and modifying it in part. Under Rule 45 the non-party bears the burden of persuasion on quashing, but the issuing party must show relevance and, for confidential information, a substantial need that cannot otherwise be met without undue hardship. Google need not testify on topic 1 (Apple's restrictions on Google's services, Google's views on their competitive implications, and communications with Apple) because the restriction information can come from Apple, Google's views may be unretained expert testimony that plaintiff's own expert can supply, and preparing a witness on more than ten years of communications would be unduly burdensome. Google also need not testify on topic 5, its understanding of consumer demand for comprehensive backup, which the court found likely to reveal competitively sensitive information and expert-type opinion.
Google must testify on topic 2 (which cloud services Android users can use to store and back up devices), which the court found not particularly sensitive and, in any event, supported by substantial need under the amended protective order. Topics 3 (as narrowed by the parties) and 4, on Google's storage of iCloud data and its security practices, were found relevant to plaintiff's challenge to Apple's security justification and not unduly burdensome, partly because Google already produced non-public documents on topic 4. Topic 6, on consumer switching between ecosystems, is limited to responsive data and the subject matter of a presentation Google already produced; the court did not accept that the production made testimony unnecessary.
Apple's unopposed request to examine Google on the approved topics for up to three hours was granted, but its request for a deposition by October 23 was denied because Apple did not explain the testimony's relevance to its motion. Google's request for further briefing on scope was denied. Because the fact discovery deadline of October 13, 2026 was set by the presiding judge, plaintiff and Apple must file a stipulated request to Judge Lee by October 23 for relief solely to take this deposition, which is to occur by November 10, 2026 if relief is obtained.
Key Takeaways
- A non-party resisting a subpoena carries the burden of persuasion, but the requesting party must show relevance and, for confidential information, substantial need.
- Information obtainable from the opposing party, or through a retained expert, weighs against compelling a non-party's testimony about its views or understanding.
- A protective order can support compelled testimony on limited confidential material when need is shown.
- Earlier document production does not necessarily make a deposition unnecessary, though testimony may be limited to what was produced.
- Authority to depose after the fact discovery cutoff depends on the presiding judge granting relief.
Why It Matters
This is an unreported magistrate judge discovery order, not a final judgment, and it has no precedential weight beyond its persuasive reasoning. It does not decide whether Apple's alleged conduct is unlawful or what the relevant market is.
The order shows a topic-by-topic approach separating a non-party's factual testimony from its opinions and competitive strategy. Open questions remain: the deposition proceeds only if Judge Lee grants relief from the October 13, 2026 deadline, and the court noted it was unclear whether Google has the data sought in topic 6.