Edward J. Davila. Photo: Diego M. Radzinschi/ALM

A federal judge in California said he was troubled to find some of the “best lawyers in the country” arguing for serious sanctions in his San Jose courtroom, when they should be litigating Apple's alleged throttling of older iPhones.

Lawyers representing the tech giant have requested the interim co-lead counsel in the multidistrict litigation be removed over a “blatant and very serious violation” of a protective order that occurred during a motion to dismiss hearing.

“The remedy here—I think it's a good remedy—is remove those two counsel,” said U.S. District Judge Edward Davila of the Northern District of California. “That would be the strongest remedy we can take, and I don't think we'd have a problem. Hopefully that imparts the disappointment of the court that we've taken my valuable, precious time in looking at this issue that was completely unnecessary.”

On March 7, Cotchett, Pitre & McCarthy principals Joseph Cotchett and Mark Molumphy, representing a class of iPhone users, read from documents labeled “highly confidential—attorneys' eyes only.” Both parties agreed to notify the court before citing confidential materials under an Oct. 15 protective order that covers a large portion of the roughly 7 million documents Apple shared in the case.

The class action seeks damages for Apple users after the company allegedly made fraudulent misrepresentations over unexpected iPhone shutdowns. Apple reportedly slowed the performance of some older devices to prevent battery shutdowns caused by a mismatch between hardware and software demands. The sealed information the Burlingame-based plaintiffs lawyers revealed in court included internal communications between Apple employees on troubleshooting, potential action plans for the battery issue and “negative comments,” according to the motion.

Apple attorney Theodore Boutrous, of Gibson, Dunn & Crutcher in Los Angeles, cited a decision by U.S. District Judge William H. Alsup when he presided over Oracle v. Google in the Northern District of California. Boutrous said that Alsup noted it was a long tradition to first explain a restriction to a judge, even without a protective order explicitly requiring it. “Everybody knows that,” Boutrous said. “We all know you don't just start reading from protected material in open court.”

Boutrous also argued that imposing sanctions would convey the gravity of the offense and how it could have comprised the privacy of Apple employees and users. “We think the court needs to send a strong message not just for this case, but for all cases, that parties cannot just blurt out protected information and leave the court to decide what's protected or not,” he said.

Within the first minute of Cotchett's argument, he began once again citing a part of the transcript that mentioned protected material, which brought the opposing side to their feet. Davila told him to refrain from reading any sealed documents.

Cotchett called the sanctions “silliness,” after writing Apple was manufacturing controversy in a joint opposition, and claimed he told Christopher Chorba, another Gibson Dunn partner, that he planned to read from his declaration, that contained protected documents. “He looked at me, and he didn't say a word,” he said.

In addition to alerting Davila that he was about to read from his declaration, which was labeled under seal, Crotchett said both his team and Chorba cited confidential information during the first 22 minutes without notifying the court. “I really don't know why we're here today, and why this shouldn't be resolved in front of a discovery referee,” he said. “I don't think we did anything wrong, and I don't think they did anything wrong.”

Crotchett questioned the harm as a result of reading from the sealed documents. “Did I read anything in The New York Times?”

In rebuttal, Chorba said he addressed protected documents to set the record straight after Molumphy mischaracterized information.

Molumphy said this is not a misunderstanding of the protective order but a “difference of understanding” in providing sufficient notice of disclosing sealed information.

The problem, Davila said, was though everyone else in the room knew confidential information was being discussed, he might not have, and the protected order is an avenue to inform the court, so that he could make a decision to close the session or take a recess to read the documents and assign a crypted nomenclature.

“Was this a difference of understanding of the rules of the [protected order] so confusing that all your great minds couldn't follow it even though you drafted it?” he said. “I will express some dismay and disappointed with not hearing Mozart with this motion, it's probably closer to Lynyrd Skynyrd, it's somewhat discordant.”

Davila said he would consider the request for sanctions and respond with an order shortly.

As people began filing out of the courtroom, Cotchett and Boutrous shook hands, Cotchett sealing the gesture with a pat on the arm, and told each other “good job.”