Coalition for App Fairness v. Apple Inc.
Misc. No. 2021-0098
| D.D.C. | Aug 5, 2021Background
- Apple served three subpoenas on the Coalition for App Fairness (D.C. nonprofit) and related PR personnel seeking documents about the Coalition’s formation, meetings, membership, recruitment, and financing in connection with three antitrust actions pending in the N.D. Cal. (Epic Games; App Purchaser class; App Developer class).
- The Coalition moved to quash in D.C., asserting a First Amendment privilege and arguing production would chill advocacy; Forbes Tate and the Coalition’s executive director joined the motion.
- Apple opposed, characterizing the Coalition as a coordinated, well-funded litigation adversary (partly founded/financed by Epic) and said the subpoenas seek evidence of bias relevant to opposing class certification.
- Apple alternatively moved to transfer the quash motion to the Northern District of California under Fed. R. Civ. P. 45(f), citing that Judge Gonzalez Rogers and Magistrate Judge Hixson have overseen coordinated discovery and are familiar with the factual record.
- The D.C. court found exceptional circumstances: the dispute is fact-intensive (First Amendment discovery framework), the N.D. Cal. judges have substantial case familiarity and discovery-management experience, and transfer reduces the risk of inconsistent rulings; the court transferred the matter to the N.D. Cal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 45(f) "exceptional circumstances" warrant transferring the motion to quash | Rule 45(f) mandates motions be filed where compliance is required; coalition resists transfer | Exceptional circumstances exist (complex fact issues, issuing court familiarity, risk of inconsistent rulings) | Transfer granted under Rule 45(f) due to exceptional circumstances |
| Whether the Coalition’s First Amendment privilege protects the requested discovery | Coalition: internal communications are protected; production would chill advocacy | Apple: Coalition is a litigation adversary; documents show bias relevant to class certification | Court did not rule on the privilege on the merits; sent the fact-intensive issue to N.D. Cal. to decide |
| Whether transfer advances judicial economy and avoids inconsistent rulings | Coalition: transfer imposes burden; briefing already done in D.C. | Apple: transfer promotes consistency given related motions and prior ND Cal discovery rulings | Court found transfer would promote judicial economy and avoid inconsistent decisions |
| Whether protecting local nonparties weighs against transfer | Coalition: burden and local protection justify D.C. adjudication | Apple: movants are sophisticated, operate nationally, and burden of transfer is light | Court found local-protection concern reduced and not dispositive; favored transfer |
Key Cases Cited
- Jud. Watch, Inc. v. Valle Del Sol, Inc., 307 F.R.D. 30 (D.D.C. 2014) (factors for Rule 45(f) transfer and avoiding disruption of issuing court’s management)
- Wultz v. Bank of China, Ltd., 304 F.R.D. 38 (D.D.C. 2014) (transfer appropriate to preserve judicial economy and avoid inconsistent results)
- In re Nonparty Subpoenas Duces Tecum, 327 F.R.D. 23 (D.D.C. 2018) (transferring when underlying court better positioned to resolve factual/legal developments)
- In re UBS Fin. Servs., Inc. of Puerto Rico Sec. Litig., 113 F. Supp. 3d 286 (D.D.C. 2015) (transfer warranted in complex, long-pending litigation where issuing court had issued many discovery orders)
- Wyoming v. U.S. Dep’t of Agric., 208 F.R.D. 449 (D.D.C. 2002) (describing the fact-intensive framework for assessing First Amendment privilege objections in discovery)