Joe Cotchett of Cotchett, Pitre & McCarthy (Courtesy photo)

A federal judge has sanctioned plaintiffs attorneys at Cotchett, Pitre & McCarthy for disclosing confidential information in the case against Apple over allegedly throttling older iPhones.

Friday's order by Judge Edward Davila of the U.S. District Court for the Northern District of California in San Jose stopped short of Apple's request to remove Cotchett Pitre principals Joseph Cotchett and Mark Molumphy from the case. But the judge provided more guidance on the protective order's requirements and ordered that the plaintiffs' attorneys deduct Apple's costs from any potential attorney fees, which would exclude work related to the sanctions issue.

He also wrote that Cotchett must get court permission before arguing any more motions, noting that Molumphy, unlike Cotchett, did not quote directly from the protected material.

“The facts relating to Mr. Cotchett are different though,” he wrote. “Mr. Cotchett's actions, if not willful, display a fundamental lack of understanding of the protective order.”

Neither Cotchett nor Molumphy, both based in Burlingame, California, responded to requests for comment.

The lawsuits allege that Apple surreptitiously slowed the speeds of certain iPhones. Apple has insisted that the decreased performance speed was necessary in order to stop unexpected shutdowns.

In October, Davila granted Apple's dismissal as to some of the claims.

Plaintiffs attorneys filed a second amended complaint under seal, which Apple moved to dismiss. At a March 7 hearing, Cotchett and Molumphy both quoted from two sealed exhibits in their opposition to Apple's motion to dismiss. Those documents involve internal discussions among Apple employees about how to respond to issues relating to the problems with the iPhone batteries.

An Oct. 15 protective order required that a “party who seeks to introduce protected material at a hearing, pretrial or other proceeding, shall advise the court at the time of introduction that the information sought to be introduced is protected.”

Cotchett had insisted that he had told Apple attorney Christopher Chorba about his intention to disclose the confidential documents at the hearing. Chorba, a partner at Gibson Dunn in Los Angeles, disputed that account.

Apple asked to remove Cotchett and Molumphy as lead plaintiffs attorneys in the multidistrict litigation, citing a “blatant and very serious violation” of the protective order. Cotchett Pitre's lawyers called the motion a “manufactured controversy” and denied that they violated the protective order.

At a May 30 hearing, Davila said he was disappointed in the plaintiffs attorneys.

But, in his sanctions order, he concluded that disqualifying Cotchett and Molumphy from the case “would be too severe a sanction at this time.”

Instead, he wrote, neither could submit billing requests for work related to the sanctions issue. He also said he would deduct from any attorney fee award all of Apple's costs and fees relating to the matter.

He also drew a distinction between both plaintiffs' attorneys, giving Molumphy “the benefit of the doubt” that he did not willfully disclose confidential information.

“Mr. Cotchett signed the administrative motion to file the confidential documents under seal, indicating that he knew they were protected material,” he wrote. “At the March 7, 2019, hearing, he quoted directly from them. And at the May 30, 2019, hearing—after the conferences between the parties on this matter and full briefing on the instant motion for sanctions—he again began to read aloud from protected material.”

He said he would consider greater sanctions should either attorney violate his sanctions order.

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