Apple wins discovery fight over federal agency documents in DOJ case

A specially appointed judge has sided with Apple in its fight to obtain documents from 14 federal agencies as part of its defense against the DOJ’s antitrust lawsuit. Here are the details.

A bit of background

Last May, Apple asked the court overseeing the antitrust case the DOJ brought against the company in 2024 to force the following 14 federal agencies to turn over documents related to how they evaluate, purchase, and use smartphones and wearables:

Central Intelligence Agency (CIA)
Department of Commerce
Department of Homeland Security
Department of Defense
Federal Bureau of Investigation (FBI)
Federal Trade Commission (FTC)
General Services Administration
Department of Labor
National Aeronautics and Space Administration (NASA)
National Security Agency (NSA)
Office of the Director of National Intelligence
Office of Management and Budget
Office of Personnel Management
Department of State

Apple argued in its request that those records could help support its defense against claims that its iPhone policies are anticompetitive.

The United States is refusing to produce its own agency documents that are relevant to the parties’ claims and defenses. These documents reflect the United States’ own assessments of key issues, such as iPhone’s market differentiators, privacy and security risks associated with various smartphones, and the potential dangers of exposing iPhone’s secure ecosystem to less rigorous and less vetted third parties. Apple believes these materials will support its arguments that the practices Plaintiffs challenge make Apple’s products different—and, in the eyes of Apple’s customers, better—than alternatives and thus promote competition. Whether through Rule 34 party discovery or Rule 45 subpoenas, these agency documents are discoverable and should be produced.

In a nutshell, Apple argues that if federal agencies choose its products for their security, privacy, or other features, this could support its claim that the challenged practices are legitimate product advantages rather than anticompetitive restrictions.

The government, however, shot back at Apple’s request, arguing that the agencies are not involved in the case, do not regulate smartphones, and do not purchase or use them in the same way as ordinary consumers.

It asked the court to block the subpoenas, calling them irrelevant and overly burdensome and arguing that they could sweep in privileged, classified, or national-security-sensitive information.

Apple has issued subpoenas to 14 federal government agencies—including several in the Intelligence Community—none of which regulate smartphones, participated in the investigation, or are otherwise part of this litigation. (…) Collecting, reviewing, and producing responsive documents, including from classified document systems, would require extraordinary effort and cause exceptional burden on these agencies, in part because many documents Apple requests are highly likely to be privileged or classified. (…) The requests are overbroad, and Apple has neither offered nor accepted any workable narrowing to reduce the burden on these agencies and limit the expense to taxpayers.

The court then referred the dispute to retired federal judge Jose Linares, who is serving as a special discovery master, to decide whether Apple could enforce the subpoenas.

In complex cases involving extensive discovery, courts sometimes appoint a special master to resolve narrower disputes and ease the workload of the judge overseeing the broader case. Special masters can be retired judges, practicing attorneys, or other experts with relevant experience.

Apple gets the go-ahead to pursue federal agency documents

Judge Linares has now sided with Apple, finding that all of its document requests are relevant to the core allegations in the case. Additionally, he said that the government failed to substantiate its broader objections.

From his decision:

The Special Master finds that all of Defendant’s Requests for Production (“RFPs”) are relevant to [the case’s] core allegations. […] Having concluded that Defendant’s RFPs are all relevant, “[t]he burden then shifts to the party resisting discovery to justify withholding it.” […] For the reasons set forth below, the Special Master does not find Plaintiff’s justifications for withholding the demanded discovery persuasive.

And

It is unclear how, if at all, Defendant’s requests would somehow interfere with the Plaintiff’s ability to maintain effective law enforcement. […] Plaintiff has not identified any specific national security concerns that would be implicated by providing Defendant with the demanded documents. Hence, the State Secret Privilege does not support Plaintiff’s arguments under these circumstances.

Even though the special discovery master sided with Apple, this doesn’t mean the company will immediately receive every document it requested.

Instead, the agencies can still withhold specific records they believe are privileged or otherwise protected, but they must identify them on a privilege log. Any disagreements over those claims could trigger a new round of discovery disputes, including a possible private review by Judge Linares.