The most shocking thing to me about that isn't the malicious compliance, but that even after a court injunction, and fully knowing that there could be subsequent discovery, they have people putting something like that in writing.
Seriously, this is one of the top 10 largest companies in the world, and they're playing chicken with the court in order to preserve their ongoing revenue. These weren't random employees, but people part of "Project Michigan", Apple's "activities relating to Injunction compliance".
How doesn't every single person that's a part of that project have an Apple lawyer hovering over them every time they get near any sort of device that can put anything on the record?
"The most shocking thing to me about that isn't the malicious compliance, but that even after a court injunction, and fully knowing that there could be subsequent discovery, they have people putting something like that in writing."
Keep in mind that once you lose, the process is no longer adversarial.
In ~all cases you will be required to provide evidence and status updates and such on implementation of an injunction, among other things.
So you do practically have to keep records of what you are doing to comply. These are the kinds of records you would normally see as a result. The only shocking thing is that they didn't lie :)
They often do try to hide bad stuff through privilege anyway - I believe they tried here and lost but i will go back and look - but that doesn't often work.
> you do practically have to keep records of what you are doing to comply
I would argue that the text the parent comment has pulled out is not part of the record keeping you need to do to comply. Lawyers will tell you to have certain conversations in person, and it is surprising that some of these conversations happened in text instead of in person.
i'm aware of what lawyers tell you sometimes, since i am in fact, a lawyer in addition to being an engineer, but you have to think about the context as well. You aren't talking about trying to avoid another side finding it in mountains of discovery, you are talking about trying to avoid a judge who easily has the power to force your engineers to testify under oath about what they are doing, finding out about what you are doing.
This is a very bad plan :)
On top of that I'll also offer to you that the days of trying to avoid generating evidence as a mechanism for avoiding bad things happening are fast dying after google got sanctioned for having off the record conversations for exactly this reason.
It's bad advice - the better advice i used to give my clients is - if you are not doing anything wrong, don't act like you are doing anything wrong. If you are doing something wrong, stop.
You may be a lawyer, but this is clearly bad advice if your client was Apple.
It's not like they couldn't afford competent legal advice, and surely they either knew they were flaunting the injunction, or could have predicted that the judge would take this view of their activity.
So, they're set on doing the "wrong" thing, but could still use legal advice.
What I'm amazed at up-thread is how seemingly incompetent they were at changing their workflow so they wouldn't hand the court evidence on a silver platter.
In this case, surely they could have pulled all the stakeholders into a room with a whiteboard, and made sure nobody kept any records of the meeting.
They'd have ended up with the same wording, but the court couldn't have merely done a text search of relevant Slack conversations.
Yes, the court could have eventually forced everyone who was in that room to testify, but the end result would have been a bunch of "I think so-and-so wanted it more such-and-such".
Surely that's better than the sort of quotes the court could copy/paste into its decision.
At some point it has to be documented as to the decisions made and the reasoning.
If there is literally no documentation up until the final moment, doesn't that itself act as evidence that they were consciously and deliberately not wanting their reasoning documented?
> At some point it has
> to be documented as to
> the decisions made and
> the reasoning.
It really doesn't, I've worked in large organizations where almost all text strings shown to customers were the decision of some UX design sitting at their desk, with no "paper trail".
In this case (approximately page 35-40) you can see the "execs" had clearly provided guidance on the interface needing to be "scary"
The teams tasked with implementing that then proceed to create an extensive and incriminating on-the-record discussion, including things that the court could subsequently use to contradict their testimony.
They could have just ... not done any of that.
Whatever "exec" involved could have written the copy themselves.
The court could still infer that the interface was in violation, as they're doing here, but didn't need to be handed incriminating statements on a silver platter.
"So, they're set on doing the "wrong" thing, but could still use legal advice."
As a lawyer, that is your time to exit the scene. There are no airquotes that should be around wrong here. This isn't advocacy for some not-ethically-amazing legal position that has yet to be decided on. They lost already. They have already been found guilty. You are now under an active (IE not stayed) court order. If your client then is basically saying "well how do we ignore the court order and do the illegal thing anyway", helping them them is not defensible.
"What I'm amazed at up-thread is how seemingly incompetent they were at changing their workflow so they wouldn't hand the court evidence on a silver platter."
You (and others) are amazed because you think this would have worked.
I don't know why. I mean, i kind of get it - I would guess you assume this because hiding things from showing up in discovery (a very different part of the process) used to work better. FWIW - It doesn't work anymore, either. See google being heavily sanctioned for doing exactly this, for example.
Beyond that - assume for a second that the lawyers involved are not morons. Assume they are instead, very smart people. Given that, why not assume that maybe your view of what would have worked might be wrong?
"In this case, surely they could have pulled all the stakeholders into a room with a whiteboard, and made sure nobody kept any records of the meeting."
Try it sometime after you get enjoined and see what the judge does to you.
I've never seen it go well, but hey, maybe someone has.
While sometimes very smart people are idiots, it's not that common.
"but the end result would have been a bunch of "I think so-and-so wanted it more such-and-such"."
Uh, i think you are sort of dreaming here. Or just lying to the judge?
Or maybe you've never actually been grilled by a judge in this situation. I dunno.
In any case, i think the judge would have gotten nearly the same info, if not more, but also would have been a lot more pissed and made a lot more criminal referrals :)
Lots of judges are former prosecutors, litigators, or defense attorneys.
Who don't get to have that kind of fun of cross-examining people, etc, anymore.
In this case she's a former private litigator for many years.
Good luck with your strategy of telling her "I dunno what happened, we just sort of talked about stuff".
This is like the scene from the dark knight where he wants to blackmail batman.
"Surely that's better than the sort of quotes the court could copy/paste into its decision."
I don't believe so. I think the judge would have written something making them look even more stupid, evil, and criminal.
If you read e.g. page 36-38 you can see that the court was able to use Apple's prior internal discussions to contradict their subsequent claims, in that case the use of the word "scary".
The only reason they can do that is due to Apple's own internal workflows. If it was another company, or even Apple from the 80s-90s they wouldn't have been able to do that. The document is full of those sorts of examples.
They may be trying to hang you, but you don't have to provide the rope.
assume [...] that the lawyers
involved are not morons. Assume
they are instead, very smart
people.
I'm not assuming that. I assume someone at legal warned them about the dangers, but they were overridden by executives.
The arrogance of power is very difficult (perhaps nearly impossibly difficult) for humans to overcome. Apple is worth more than many countries, so employees are going to feel immune to everything. And for the most part, that is true. Big money buys both laws and courts. Only rarely does this assumption fail.
>they did try to hide some of this stuff, by abusing attorney client privilege
I don't know a thing about the legal system: if someone gets caught doing that sort of thing, does that incur additional punishments?
I mean, if you do something illegal, and when the police arrest you they prove that you were trying to hide it from them, that's another charge. How does that work if the court catches you doing it?
> THE COURT FURTHER FINDS that Apple’s abuse of attorney-client privilege designations to delay proceedings and obscure its decision-making process warrants sanction to deter future misconduct. Apple is SANCTIONED in the amount of the full cost of the special masters’ review and Epic’s attorneys’ fees on this issue alone through approximately May 15, 2025, the anticipated date of completion.
So pretty mild thus far. As far as I remember from reading other court decisions, court-imposed sanctions against individual lawyers are also a thing. As far as the clients are considered, given production of documents is mandated by a court order, presumably this counts as defying a court order and so any punishments would fall under criminal contempt?
(Not a lawyer, in case this wasn’t clear from the above already.)
> Seriously, this is one of the top 10 largest companies in the world, and they're playing chicken with the court in order to preserve their ongoing revenue.
Maybe that is a result of the attitudes that made them one of the largest companies in the world?
People put everything in writing and in videos nowadays and don't even think about it. Often it's "not so smart" criminals but we see again and again that even people are the highest levels do the same...
It is not always a question of smart of vs not smart. At times, you will see people say something in an email or chat for no other reason than 'now it is part of the record'.
CYA, always be building a paper trail in systems of record. "Will this be committed to something with a retention schedule and that is subject to a potential legal hold?" hits return
Seriously, this is one of the top 10 largest companies in the world, and they're playing chicken with the court in order to preserve their ongoing revenue. These weren't random employees, but people part of "Project Michigan", Apple's "activities relating to Injunction compliance".
How doesn't every single person that's a part of that project have an Apple lawyer hovering over them every time they get near any sort of device that can put anything on the record?