Electronically Filed

QUINN EMANUEL URQUHART & SULLIVAN LLP by Superior Court of CA,

Claude M. Stern (Bar N0. 96737)
claudestern@quinnemanuel.com County of Santa Clara,
555 Twin Dolphin Dr., 5th Floor on 11/8/2019 4:11 PM
Redwood Shores, California 94065 Reviewed By: R. Walker
Telephone: (650) 801-5000 Case #1 9CV352866
Facsimile: (650) 80 1 -5 1 00 Envelope: 3631207

QUINN EMANUEL URQUHART & SULLIVAN LLP

David Eiseman (Bar N0. 114758)
davideiseman@quinnemanuel.com
50 California Street, 22nd Floor
San Francisco, CA 941 1 1
Telephone: (415) 875-6600
Facsimile: (415) 875-6700

Attorneys for Defendant

Gerard Williams III
10

11 SUPERIOR COURT OF THE STATE OF CALIFORNIA

12 COUNTY OF SANTA CLARA

13 APPLE INC, CASE NO. 19-CV-352866

14 Plaintiff, DEFENDANT GERARD WILLIAMS III’S

NOTICE OF MOTION TO DESIGNATE
15 V. CASE COMPLEX
16 GERARD WILLIAMS III, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
17 Defendant.

18 Date: December 6, 2019

Time: 9:00 am.
19
Action Filed: August 7, 2019
20 Judge: Hon. Thomas E. Kuhnle
Department: 5
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Case N0. 19-cv-352866

DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that 0n December 6, 2019, at 9:00 a.m., 0r as soon thereafter as

the matter may be heard, before the Hon. Thomas E. Kuhnle, in Department 5 0f the Superior

Court 0f the State 0f California, County 0f Santa Clara, located at 191 North First Street, San Jose,

CA 951 13, Defendant Gerard Williams III (“Williams”) will, and hereby does, move the Court t0
designate this action as a “complex case.” This motion is made pursuant t0 California Rules 0f

Court, Rules 3.400 and 3.403(b). Williams’ Motion t0 Designate Case Complex is based 0n this

notice; the accompanying memorandum 0f points and authorities; the supporting Declaration 0f

David Eiseman; the Complaint, Williams’ Demurrer and Motion t0 Strike and all other pleadings

10 and papers 0n file in this action; such declarations, evidence, and argument as may be presented at

11 0r before the hearing; and all other matters 0f which the Court may take judicial notice.

12 As indicated in the accompanying Declaration 0f David Eiseman, the parties met and

13 conferred t0 determine whether an agreement could be reached t0 resolve the dispute reflected in

14 this Motion. N0 agreement was reached during the meet and confer.

15

16

17 DATED: November 8, 2019 QUINN EMANUEL URQUHART &

SULLIVAN, LLP
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19

20 By /S/ Claude M Stern

21 Claude M. Stern

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Attorneys for Defendant

23 Gerard Williams III

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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 TABLE OF CONTENTS
Page

MEMORANDUM OF POINTS AND AUTHORITIES ................................................................... 1

INTRODUCTION .............................................................................................................................. 1

STATEMENT OF FACTS ................................................................................................................. 2

A. Origins of the Dispute and Williams’ Departure from Apple .................................... 2

B. Apple Files Its Complaint and Williams Files His Demurrer and Motion t0
Strike .......................................................................................................................... 3

LEGAL STANDARD ........................................................................................................................ 3

10 ARGUMENT ..................................................................................................................................... 4

11 I. THIS CASE WILL INVOLVE NUMEROUS PRETRIAL MOTIONS RAISING

DIFFICULT AND NOVEL LEGAL ISSUES ....................................................................... 4
12
A. This Case Will Involve Numerous Pretrial Motions, Including Williams’
13 Demurrer and Motion t0 Strike and the Parties’ Motions for Summary
Judgment, 0n Novel Issues ......................................................................................... 4
14
B. This Case Likely Will Involve Extensive Motion Practice Regarding Cal.
15 CiV. Proc. Code § 2019.210 ....................................................................................... 6

16 C. This Case Will Involve Other Contentious Discovery Motions ................................. 8

17 II. THIS CASE INVOLVES THE POTENTIAL ADDITION OF MULTIPLE

PARTIES ................................................................................................................................ 8
18
III. THIS CASE’S COMPLEXITY WILL GROW FURTHER IF WILLIAMS FILES
19 A CROSS-COMPLAINT ....................................................................................................... 9

20 CONCLUSION ................................................................................................................................ 10

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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 TABLE OF AUTHORITIES
Page

Cases

Advanced Modular Sputtering, Inc. v. Superior Court

(2005) 132 Cal. App. 4th 826 ............................................................................................ 5, 7

AMNHealthcare, Inc. v. Aya Healthcare Servs., Inc.

(2018) 28 Cal. App. 5th 923 .................................................................................................. 5

Brescia v. Angelin
(2009) 172 Cal. App. 4th 133 ................................................................................................ 5

City ofOntario v. Quon

(2010) 560 U.S. 746 ............................................................................................................ 10

10 Edwards v.Arthur Andersen LLP

(2008) 44 Cal. 4th 937 ........................................................................................................... 5
11
Hewlett—Packard C0. v. Oracle Corp.
12 (2015) 239 Cal. App. 4th 1174 ...................................................................................... 4, 7, 8

13 KC. Multimedia, Inc. v. Bank ofAm. Tech. & Operations, Inc.

(2009) 171 Cal. App. 4th 939 ................................................................................................ 6
14
Mattel, Inc. v. MGA Entm ’t, Inc.
15 (201 1) 782 F. Supp. 2d 911 ................................................................................................... 6

16 Morlife, Inc. Perry

v.

(1997) 56 Cal. App. 4th 1514 ................................................................................................ 7

17
ReadyLink Healthcare v. Cotton

18 (2005) 126 Cal. App. 4th 1006 .............................................................................................. 7

19 Rutherford v. OwenS-Illinois, Inc.

(1997) 16 Cal. 4th 953 .......................................................................................................... 3
20
Silvaco Data Sys. v. Intel Corp.
21 (2010) 184 Cal. App. 4th 210 ................................................................................................ 7

22 State v. Clampitt
(2012) 364 S.W. 3d 605 ...................................................................................................... 10
23
State v. Hinton
24 (2014)319P.3d9 ................................................................................................................ 10

25 U.S. v. Zavala
(2008) 541 F.3d 562 ............................................................................................................ 10
26

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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 Statutorv Authorities

Cal. Bus. & Prof. Code § 16600 .................................................................................................... 4, 5

Cal. Rules 0f Court, Rule 3.400 .................................................................................................... 3, 8

Cal. Rules 0f Court, Rule 3.400(b)(1) ............................................................................................... 4

Cal. Rules 0f Court, Rule 3.403. ....................................................................................................... 4

Additional Authorities

California Consumer Privacy Act 0f 201 8, A.B. 375, 201 8-2019 Sess. (Cal. 2018) ...................... 10

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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Defendant Gerard Williams III (“Williams”) respectfully requests that the Court deem this

action a “complex case” under California Rules 0f Court, Rule 3.400, for the purposes 0f case

management. Although Plaintiff Apple Inc. (“Apple”) contends this case involves nothing more

than garden-variety claims for breach 0f contract and breach 0f the duty 0f loyalty, the facts show

otherwise. Indeed, as Williams has already demonstrated in his Demurrer and Motion t0 Strike,

the case is far more pernicious than the superficially ordinary causes 0f action giving rise t0 it.

T0 begin, extensive motion practice in this case is inevitable and will require resolution 0f

10 a series 0f novel issues in pretrial motion practice, including in Williams’ pending Demurrer and

11 Motion t0 Strike and, if Apple’s Complaint survives, in motions for summary judgment. The

12 Court will be required t0 determine the enforceability 0f provisions in Apple’s employment

13 agreements and policies. In addition, California courts have not yet considered whether persons

14 have a reasonable expectation 0f privacy in their text messages and phone records, while other

15 jurisdictions have enshrined such protections; the Court will be required t0 resolve this issue as

16 well. Williams expects that each 0f these questions will involve broad and thorough briefing t0

17 enable the Court t0 reach resolutions.

18 Apple also seeks wide-ranging discovery 0f information relating to Williams’ new

19 employer, NuVia, Inc. (“NuVia”), and other non-parties. With respect t0 NuVia in particular,

20 Apple seeks material relevant t0 NuVia’s confidential design and development procedures and

21 proprietary technologies. Such discovery, which is typically associated with a claim for trade

22 secret misappropriation, requires a statutorily required showing for commencement. Apple has

23 not even attempted t0 make such a showing. Williams, therefore, expects that this issue will entail

24 extensive briefing and a hotly contested discovery battle.

25 Furthermore, although this case currently involves only a single plaintiff and a single

26 defendant, it is highly likely that additional parties will be brought into the case. Apple’s

27 Complaint and initial discovery requests strongly suggest that litigation against NuVia is

28 contemplated, and it is possible that Apple will pursue other former employees who joined NuVia.

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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 Finally, Williams is assessing whether t0 file a cross—complaint seeking a declaration that

Apple’s employment agreements and policies are illegal and relief associated with Apple’s

Violations 0f its employees’ privacy, in addition t0 other potential claims. Should Williams elect

t0 proceed with his cross—complaint, it will add further complexity t0 this case.

STATEMENT OF FACTS
A. Origins 0f the Dispute and Williams’ Departure from Apple

In the first half 0f 2019, at least eight employees left Apple. (Complaint, 11 38.) This

group included Williams, who joined Apple in 2010 and for the next nine years was “key t0

Apple’s technologies” relating t0 use 0f ARM architecture t0 implement systems—on-a—chip

10 technology. (Id., 1W 15-17.)

11 As a prerequisite t0 joining Apple, Williams was required t0 execute an Intellectual

12 Property Agreement (“IPA”) that set forth a series 0f conditions pertaining t0 his employment.

13 (Id., 11 18.) The IPA contained a provision purporting t0 bar Williams from:

14 planIning] any other employment, occupations, consulting, 0r other business

. . .

activities 0rcommitments competitive with 0r directly related t0 Apple’s business

15 0r products, 0r t0 its actual 0r demonstrably anticipated research 0r development

16
(Id., EX. A, 11 3.0(a) (emphasis added).). The IPA also contained a non-solicitation provision,
17
which stated the following:
18
During your employment and for a period 0f one (1) year following your
19 termination date, you will not, directly 0r indirectly, solicit, encourage, recruit, 0r
take any action intended t0 induce Apple employees 0r contractors t0 terminate
20 their relationship with Apple.

21 (Id., EX. A, 1] 3.0(d).)

22 Williams’ last day at Apple was February 1, 2019. (Complaint, 11 33.) Thereafter, he co-

23 founded NuVia. (See Demurrer and Motion t0 Strike at 3.) Drawn by Williams’ reputation, as

24 well as the promise 0f new opportunities and challenges, dozens 0f industry professionals joined

25 NuVia over the following months, including the aforementioned seven Apple employees.

26 (Complaint, 11 38.)

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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 B. Apple Files Its Complaint and Williams Files His Demurrer and Motion t0
Strike

Apple filed this lawsuit 0n August 7, 2019, bringing claims for breach of the IPA and

breach 0f the duty 0f loyalty. (Complaint) In support 0f its claims, Apple quoted text messages

dating as far back as October 2015 and provided records 0f private telephone calls between

Williams and his co-founders, as well as between Williams 0r his co-founders and other Apple

employees. (Id., 1W 27-32, 35-37.) Nowhere in its Complaint, however, did Apple allege that it

obtained consent t0 collect and review these text messages 0r telephone records.

On November 6, 2019, Williams filed a Demurrer and Motion t0 Strike. In that motion,

Williams argues that Apple’s breach 0f contract claim must fail because the underlying contractual
10
provisions are illegal. (Demurrer and Motion t0 Strike at 5-1 1 .) Williams further argues that
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Apple’s breach 0f duty 0f loyalty claim is preempted by the California Uniform Trade Secrets Act
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0r, in the alternative, is defective because it relies 0n the inevitable disclosure trade secret doctrine.
13
(Id. at 14-18.) Williams also argues that Apple’s data collection practices are illegal. (Id. at 18-
14
1 9 .)
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LEGAL STANDARD
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“A ‘complex case’ is an action that requires exceptional judicial management t0 avoid
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placing unnecessary burdens 0n the court 0r the litigants and t0 expedite the case, keep costs
18
reasonable, and promote effective decision making by the court, the parties, and counsel.” Cal.
19
Rules 0f Court, Rule 3.400; see also Rutherford v. OwenS-Illinois, Inc. (1997) 16 Cal. 4th 953, 966
20
(“The complex litigation procedure is intended t0 facilitate pretrial resolution 0f evidentiary and
21
other issues, and t0 minimize the time and expense 0f lengthy or multiple trials”). In determining
22
whether an action is complex, the Court must consider a series 0f factors, including whether the
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case is likely t0 involve: “(1) Numerous pretrial motions raising difficult 0r novel legal issues that
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will be time-consuming t0 resolve; (2) Management 0f a large number 0f witnesses 0r a
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substantial amount 0f documentary evidence; (3) Management 0f a large number 0f separately
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represented parties; (4) Coordination with related actions pending in one 0r more courts in other
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counties, states, 0r countries, 0r in a federal court; 0r (5) Substantial postjudgment judicial
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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 supervision.” Cal. Rules 0f Court, Rule 3.400. Not all 0f these factors need be present for a case

t0 be deemed complex. See, e.g., Hewlett—Packard C0. v. Oracle Corp. (2015) 239 Cal. App. 4th

1174, 1180 (noting that the case, which involved only a single plaintiff and a single defendant,

was designated complex in the trial court). The Court may determine that a case is complex 0n a

noticed motion from a party. Cal. Rules 0f Court, Rule 3.403.

ARGUMENT
I. THIS CASE WILL INVOLVE NUMEROUS PRETRIAL MOTIONS RAISING
DIFFICULT AND NOVEL LEGAL ISSUES
When a case will involve extensive pretrial motion practice, with those motions raising

difficult 0r novel legal issues, designating that case as complex is appropriate. See Cal. Rules 0f
10
Court, Rule 3.400(b)(1); Hewlett—Packard, 239 Cal. App. 4th at 1190. This proceeding is such a
11
case, as pretrial motions likely will be vigorously contested and entail extensive briefing.
12
A. This Case Will Involve Numerous Pretrial Motions, Including Williams’
13 Demurrer and Motion t0 Strike and the Parties’ Motions for Summary
Judgment, 0n Novel Issues
14
Even in its early phases, it is clear that this case will require the Court t0 decide novel
15
issues in the context 0f pretrial motions. In particular, Williams expects these issues t0 relate t0 at
16
least employee rights and anti-competition law, trade secret law, and the scope 0f employee
17
privacy protections. Williams anticipates extensive motion practice relating t0 these issues and the
18
novel questions they raise, as set forth below.
19
1. Novel Issues Pertaining t0 Employee Rights and Anti-Competition Law
20
In the context 0f his Demurrer and Motion to Strike, Williams identified multiple illegal
21
provisions in Apple’s IPA, which Apple employees are required t0 execute prior t0 commencing
22
employment. Specifically, Williams argues that Section 3.0(a) 0f the IPA, which bars Apple
23
employees from “p1an[ning] . . . any other employment . . . competitive with 0r directly related t0
24
Apple’s business 0r products” is illegal under Cal. Bus. & Prof. Code § 16600, which declares
25
void any “contract by which anyone is restrained from engaging in a lawful profession, trade, 0r
26
business 0f any kind.” (Demurrer and Motion t0 Strike at 6-7.) Williams further argues that
27
Section 3.0(d), which prohibits Apple employees from “directly or indirectly, solicit[ing],
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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 encourag[ing], recruit[ing], 0r tak[ing] any action intended t0 induce Apple employees 0r

contractors t0 terminate their relationship with Apple” during employment and for a period 0f one

year afterward, is illegal under § 16600. (Id. at 7-9.)

California courts have already held unambiguously that post-termination non-solicitation

provisions are void because § 16600’s prohibition 0n restraints is “absolute” and because “‘[t]he

interests 0f the employee in his [0r her] own mobility and betterment are deemed paramount t0 the

competitive business interests 0f the employers.” AMN Healthcare, Inc. v. Aya Healthcare

Servs., Inc. (2018) 28 Cal. App. 5th 923, 935-36 (quoting Dowel] v. Biosense Webster, Inc. (2009)

179 Cal. App. 4th 564, 575) (alteration in original). It is Williams’ position that pre-termination

10 non-solicitation provisions are void for the same reason, and because § 16600 “represents a strong

11 public policy 0f the state which should not be diluted by judicial fiat.” Edwards v. Arthur

12 Andersen LLP (2008) 44 Cal. 4th 937, 949.

13 Williams, therefore, anticipates that this case will involve extensive briefing 0n the validity

14 0f Apple’s non-compete and non-solicitation provisions in the IPA.

15 2. Novel Issues Pertaining t0 Trade Secret Law

16 Apple’s Complaint and initial discovery requests reek 0f trade secret misappropriation

17 allegations despite the absence 0f a properly pleaded CUTSA claim. (See infra, Section LB.)

18 Williams suspects this is n0 accident: Under Section 2019.210 0f the Code 0f Civil Procedure,

19 before Apple could obtain discovery 0n a CUTSA claim against Williams 0r NuVia, Apple would
20 have t0 identify the specific trade secrets it believes those parties misappropriated—something

21 Apple cannot d0 because Williams did not take Apple trade secrets with him when he left Apple.

22 Section 2019.210 furthers four interrelated goals:

23 First, promotes well-investigated claims and dissuades the filing 0f meritless

it

trade secret complaints. Second, it prevents plaintiffs from using the discovery
24 process as a means t0 obtain the defendant’s trade secrets. Third, the rule assists
the court in framing the appropriate scope 0f discovery and in determining whether
25
plaintiffs discovery requests fall within that scope. Fourth, it enables defendants

26 t0 form complete and well-reasoned defenses, ensuring need not wait until
that they
the eve 0f trial t0 effectively defend against charges 0f trade secret
27 misappropriation.

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 Brescia v. Angelin (2009) 172 Cal. App. 4th 133, 144 (quoting Advanced Modular Sputtering, 132

Cal. App. 4th at 833-34) (citations and internal quotation marks omitted). In filing this case and

seeking discovery regarding NuVia’s business and technology, Apple attempts t0 undermine the

statutory goal 0f “encourag[ing] pre-filing investigation” prior t0 initiation 0f a trade secret claim.

Id. at 149. Williams expects that substantial briefing 0n this issue will be required, such that a

complex designation is appropriate.

3. Novel Issues Pertaining t0 Employee Privacy

Williams is evaluating whether t0 file a cross—complaint against Apple. (See infra, Section

HI.) Among the claims Williams might assert is one premised 0n Apple’s invasion 0f its

10 employees’ privacy in collecting their text messages and telephone records. (Id) As discussed in

11 greater detail below (see id), and despite California’s national leadership in data privacy

12 protection, California courts have not addressed whether employees have an expectation 0f

13 privacy in their text messages and telephone records. Thus, this also presents a novel issue and

14 supports a complex designation.

15 B. This Case Likely Will Involve Extensive Motion Practice Regarding Cal. Civ.
Proc. Code § 2019.210
16
Williams anticipates that this case will entail a series 0f hotly contested discovery motions,
17
particularly relating t0 the discoverability 0f material associated with Apple’s purported trade
18
secrets. Under California’s Uniform Trade Secrets Act (“CUTSA”), claims premised 0n a
19
“nucleus 0f facts” that could form the basis for a “trade secrets claim for relief” are preempted.
20
KC. Multimedia, Inc. v. Bank ofAm. Tech. & Operations, Inc. (2009) 171 Cal. App. 4th 939, 958.
21
This is true even when a claim under CUTSA is not alleged. Mattel, Inc. v. MGA Entm ’t, Inc.
22
(201 1) 782 F. Supp. 2d 91 1, 961 (“An allegation 0f trade secret misappropriation is not a
23
prerequisite t0 UTSA supersession.”).
24
Although Apple does not assert a claim for trade secret misappropriation, its Complaint is
25
saturated with allegations that Williams will, at some unknown point in the future, exploit 0r use
26
Apple’s confidential information. Specifically, Apple alleges that “Williams will be leveraging
27
almost a decade 0f development work at Apple” and that “Williams was working 0n [technology]
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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 at Apple [] that he wanted t0 keep exploiting for NuVia.” (Complaint, 1W 34, 38.) Apple further

contends that Williams “realiz[es] a tremendous head start from the sweat 0f Apple’s brow for his

business developing technology conceived during his time at Apple” and that Williams’ work for

NuVia is “competitive with and directly related t0 Apple’s business and products” by Virtue 0f

Williams’ and his cohorts’ association with Apple and the products NuVia is developing. See

Complaint, 1W 41, 46; see also ReadyLink Healthcare v. Cotton (2005) 126 Cal. App. 4th 1006,

1017 (recognizing that under CUTSA, one has a right “t0 have the ingenuity and industry one

invests in the success 0f the business 0r occupation protected from the gratuitous use 0f that

‘sweat-of-the—brow’ by others” (emphasis added) (quoting Morlife, Inc. v. Perry (1997) 56 Cal.

10 App. 4th 15 14, 1520)).

11 If Apple’s insinuations are actionable, the technology that Apple alleges Williams is

12 leveraging in his work for NuVia must include Apple’s trade secrets. Silvaco Data Sys. v. Intel

13 Corp. (2010) 184 Cal. App. 4th 210, 238, disapproved 0n other grounds by Kwikset Corp. v.

14 Superior Court, 51 Cal. 4th 3 10 (201 1). Accordingly, and as Williams explained in greater detail

15 in his Demurrer and Motion to Strike, Apple’s claim for breach 0f the duty 0f loyalty is preempted

16 by CUTSA. Unless Apple is prepared t0 abandon this cause 0f action entirely, it will replead it as

17 a CUTSA claim. Apple’s initial discovery requests, many 0f which seek information relating t0

18 NuVia’s business and technology and which include a Deposition Subpoena for Production 0f

19 Business Records served 0n NuVia directly, further confirm Apple’s intent t0 pursue a CUTSA
20 claim. (EX. A; EX. B.)1

21 Under Section 2019.210 0f the California Code 0f Civil Procedure, Apple must “identify

22 the [allegedly misappropriated] trade secret with reasonable particularity” before it can obtain

23 discovery in furtherance 0f its claim. Williams expects that this will entail a fierce discovery

24 battle. Cases involving such motion practice are often designated complex. See Hewlett—Packard,

25 239 Cal. App. 4th at 1190 (noting, in a trade secret case the trial court designated complex, that

26

27 1
“EX.” refers t0 the exhibits attached t0 the Declaration 0f David Eiseman, submitted
herewith.
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 “the docket reflects extensive—and extensively contested—discovery proceedings, including

numerous motions”); Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal. App.

4th 826, 831 (noting that the trial court designated the case complex and issued a protective order

pursuant t0 Section 2019.210’s predecessor provision). This case also should be designated

complex in anticipation 0f this extensive motion practice.

C. This Case Will Involve Other Contentious Discovery Motions

Williams expects that an extensive discovery fight will arise with respect t0 the

discoverability 0f NuVia’s design, development, and other technical information, even

independent 0f the motion practice relating t0 Section 2019.210. Apple’s initial discovery

10 requests seek copious information regarding NuVia’s business and technologies, as well as other

11 information not reasonably related t0 the subject matter 0f Apple’s Complaint. (See EX. A; EX.

12 B.) Accordingly, Williams anticipates further motion practice relating t0 the proper scope 0f

13 discoverable material. As in Hewlett—Packard, this almost certainly will entail “extensive—and

14 extensively contested—discovery proceedings, including numerous motions.” 239 Cal. App. 4th

15 at 1190. This will require “exceptional judicial management t0 avoid placing unnecessary burdens

16 0n the court 0r the litigants and t0 expedite the case.” Cal. Rules 0f Court, Rule 3.400. This case

17 should accordingly be designated complex.

18 II. THIS CASE INVOLVES THE POTENTIAL ADDITION OF MULTIPLE PARTIES

19 Although this case currently involves only a single plaintiff and a single defendant, various

20 features 0f Apple’s Complaint and initial discovery requests suggest that it will not remain this

21 way. First, the Complaint and Apple’s discovery requests indicate that NuVia is likely t0 become

22 a party t0 the case. The crux 0f Apple’s Complaint is Williams’ actions in founding NuVia.

23 (Complaint, 1W 46 (“During the tenure 0f his employment by Apple, Williams planned and

24 developed a business called NuVia.”), 55 (“Williams breached his duty 0f loyalty by . . . while

25 employed by Apple, starting a competitive business, NuVia . . . .”).) Apple further alleges that

26 “NuVia’s technology is tied t0 technologies developed at Apple” and that its damages arise from

27 “loss 0f profits from the chance t0 develop products being developed by NuVia.” (Id., 1W 34, 51,

28 56.) Moreover, as noted above, Apple has served a Deposition Subpoena for Production 0f

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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 Business Records 0n NuVia, and various other discovery requests seek information 0n NuVia’s

technologies and investors, the latter 0f which are indisputably irrelevant t0 the claims in Apple’s

Complaint. (Ex. A, RFP Nos. 10, 11 ;

EX. B). These discovery requests amount t0 a fishing

expedition t0 discover claims Apple can manufacture t0 assert against NuVia. Thus, although

NuVia has not yet been brought into this case, its eventual involvement appears inevitable.

Second, the Complaint and initial discovery requests indicate that there is a strong

likelihood that Apple will target other former Apple employees who have joined NuVia. Many 0f

the allegations Apple asserts against Williams are equally applicable t0 these other former Apple

employees. Specifically, Apple contends that its former employees who joined NuVia were “key

10 Apple experts in CPU and SOC technologies.” (Complaint, 11 34.) Apple further alleges that these

11 employees will assist Williams in developing “technology that Williams was working 0n at Apple

12 and that he wanted t0 keep exploiting for NuVia.” (Id., 11 38.) Indeed, by Virtue 0f these former

13 employees’ work at Apple and association with NuVia, Apple easily could manufacture claims

14 against the former employees that are nearly identical t0 those asserted against Williams.

15 Furthermore, Apple’s inclusion 0f the detail that “most 0f these employees . . . tim[ed] their

16 departures from Apple t0 closely follow the vesting 0f significant stock grants”—which is

17 irrelevant t0 any claims against Williams—indicates that Apple bears ill will toward these former

18 employees. (Id) Various discovery requests, again which are facially irrelevant t0 Apple’s claims

19 against Williams, are suggestive 0f an effort t0 find reasons t0 sue former Apple employees who

20 have joined NuVia. (EX. A, RFP Nos. 6, 10, 11; EX. B, Request Nos. 6, 8, 9.) It appears clear,

21 therefore, that Apple intends t0 expand this case t0 include multiple defendants, rather than just

22 Williams, and it is not clear that Williams’ counsel will represent each defendant Apple might sue.

23 Accordingly, this case should be designated complex.

24 III. THIS CASE’S COMPLEXITY WILL GROW FURTHER IF WILLIAMS FILES A

CROSS-COMPLAINT
25
As set forth above, Williams is evaluating whether t0 file a cross—complaint against Apple.
26
The cross—complaint would seek invalidation 0f illegal provisions in Apple’s employment
27
agreements and policies, as well as relief for Apple’s invasions 0f its employees’ privacy and
28

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DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 potentially other misconduct. The nature 0f Williams’ claims relating t0 the illegal contract

provisions, at least t0 the extent Williams is currently aware, is described in greater detail in

Williams’ Demurrer and Motion t0 Strike. (See supra, Section LA. 1; Demurrer and Motion t0

Strike at 5-1 1.)

Williams’ allegations concerning Apple’s Violations 0f its employees’ privacy present

additional, and novel, issues. Specifically, Williams is contemplating a challenge t0 Apple’s data

collection practices under Cal. Penal Code § 632, which provides for criminal liability for any

person who “intentionally and without the consent 0f all parties t0 a confidential communication”

electronically records 0r eavesdrops 0n that communication, and potentially other statutes.

10 Apple’s Complaint contains transcripts 0f Williams’ text messages dating as far back as October

11 2015, as well as records 0f private telephone conversations Williams had after business hours.

12 (Complaint, 1W 27-32, 35-37.) Apple’s allegations even include reference t0 Williams’ telephone

13 calls after he terminated his employment at Apple. (Id., 11 36.)

14 Other jurisdictions have recognized a right 0f privacy in text messages. See, e.g., State v.

15 Hinton (2014) 319 P.3d 9, 13 (Washington); U.S. v. Zavala (2008) 541 F.3d 562, 577 (5th

16 Circuit); State v. Clampitt (2012) 364 S.W. 3d 605, 611 (Missouri); see also City ofOntario v.

17 Quon (2010) 560 U.S. 746, 760 (“Cell phone and text message communications are so pervasive

18 that some persons may consider them t0 be essential means 0r necessary instruments for self-

19 expression, even self—identification. That might strengthen the case for an expectation 0f

20 privacy”) Despite California’s status as a leader in data privacy, see California Consumer Privacy

21 Act 0f 2018, A.B. 375, 201 8-2019 Sess. (Cal. 2018) (providing for expansive data privacy rights

22 and set t0 take effect in January 2020), California courts have not yet addressed whether text

23 messages are subject t0 a right 0f privacy. The same is true 0f telephone records. Accordingly,

24 this is a novel issue that merits a complex designation.

25 CONCLUSION
26 For the reasons stated above, the Court should designate this case complex under

27 California Rules 0f Court, Rules 3.400 and 3.403.

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_1 0- Case N0. 19-cv-352866

DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX
 DATED: November 8, 2019 Respectfully submitted,

By /S/ Claude M Stern

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
Claude M. Stern
David Eiseman

Attorneys for Gerard Williams III

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-1 1- Case N0. 19-cv-352866

DEFENDANT’S MOTION TO DESIGNATE CASE COMPLEX