Page 1 1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION 3 HONORABLE SHERI PYM, U.S. MAGISTRATE JUDGE 4 5 6 7 8 9 IN THE MATTER OF THE SEARCH OF AN APPLE IPHONE SEIZED DURING THE EXECUTION OF A SEARCH WARRANT ON A BLACK LEXUS IS300, CALIFORNIA LICENSE PLATE 35KGD203 ) ) ) ) ) ) ) ) __________________________________) EDCM 16-10-SP 10 11 12 REPORTER'S TRANSCRIPT OF ORAL PROCEEDINGS MONDAY, MARCH 21, 2016 4:00 P.M. RIVERSIDE, CALIFORNIA 13 14 15 16 17 18 19 20 21 22 23 24 25 __________________________________________________________ ADELE C. FRAZIER, CSR 9690, CRR, RMR FEDERAL OFFICIAL COURT REPORTER 3470 TWELFTH STREET RIVERSIDE, CALIFORNIA 92501 ADELEFRAZIERCSR@GMAIL.COM UNITED STATES DISTRICT COURT Page 2 1 APPEARANCES OF COUNSEL: 2 3 4 5 6 7 8 FOR APPLICANT UNITED STATES OF AMERICA: EILEEN M. DECKER UNITED STATES ATTORNEY BY: TRACY L. WILKISON PATRICIA DONAHUE Assistant United States Attorneys 1500 United States Courthouse 312 North Spring Street Los Angeles, California 90012 Santa Monica, California 90405 (Telephonic Appearances.) 9 10 11 12 13 14 15 16 FOR APPLE, INC.: GIBSON, DUNN & CRUTCHER BY: THEODORE J. BOUTROUS, JR. NICOLA T. HANNA ERIC D. VANDEVELDE 333 South Grand Avenue Los Angeles, California 90071-3197 and ZWILLGEN, PLLC BY: MARC J. ZWILLINGER 1900 M Street NW, Suite 250 Washington, D.C. 20036 (Telephonic Appearances.) 17 18 19 Also Present Telephonically: BRUCE SEWELL, Apple Inc. NOREEN KRALL, Apple, Inc. 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Page 3 1 RIVERSIDE, CALIFORNIA; MONDAY, MARCH 21, 2016 2 4:00 P.M. 3 THE COURTROOM DEPUTY: Calling 5:16-cm-00010-SP, 4 United States of America vs. In the Matter of the Search of 5 an Apple iPhone Seized During the Execution of a Search 6 Warrant. 7 record. 8 9 10 Counsel, please state your appearances for the MS. WILKISON: Hi. Good afternoon, your Honor. Tracy Wilkison and Patti Donahue on behalf of the United States. 11 THE COURT: Good afternoon. 12 MR. BOUTROUS: Good afternoon, your Honor. This is 13 Theodore Boutrous for Apple, and I'm joined by Nic Hanna, 14 Eric Vandevelde, Mark Zwillinger, Bruce Sewell, and Noreen 15 Krall. 16 THE COURT: Good afternoon to all of you. So I 17 have seen the ex parte application for a continuance filed by 18 the Government this afternoon and have read that. 19 guess, let me ask first -- well, let me ask first I'd like to 20 hear from Apple if you know your position with respect to 21 this. 22 MR. BOUTROUS: Thank you, your Honor. And so, I This is 23 Theodore Boutrous. We have had a chance now to think this 24 for about an hour, and we, obviously, defer to how the Court 25 would like to proceed. We would not object to the hearing UNITED STATES DISTRICT COURT Page 4 1 being postponed and moved because -- and we request that the 2 Court vacate the order that was entered ex parte. 3 If the Court will recall, in the order -- in the ex 4 parte application the Government represented that the 5 assistance sought could only be provided by Apple. 6 Pluhar's declaration at paragraph 4 said that -- testified 7 that he'd explored other means, and the Government had been 8 unable to identify any other methods feasible for gaining 9 access. 10 So the order was based on good cause. And Agent And we, respectfully, submit that there no longer is good cause. 11 And the order itself has been used by the 12 Government to suggest that Apple has been, you know, 13 basically, flouting a court order when we, respectfully, have 14 not. 15 order. 16 testing, wants to come back and refile -- I think there's a 17 way we wouldn't have to rebrief things. 18 supplement declaration from Agent Pluhar. 19 to that, and then we could pick up where we left off. And so we would propose that the Court vacate the And then if the Government, after it does additional 20 But there could be a We could respond But we, respectfully, request that the Court vacate 21 the order at this point based on this new information, which 22 nullifies the necessity argument and evidence that had been 23 relied on by the Government and that formed a predicate for 24 the order. 25 THE COURT: All right. Let me. UNITED STATES DISTRICT COURT Page 5 1 MS. WILKISON: 2 THE COURT: 3 Your Honor, this is Tracy -- Yes. I was going to ask to hear from you, Ms. Wilkinson. 4 MS. WILKISON: Thank you, your Honor. Sorry. Your 5 Honor, the Government's number one priority throughout this 6 entire investigation has always been to gain access into the 7 phone and we sought as a matter of necessity and not of 8 choice. 9 this entire time to see if there's another way to do this, That said, we have been working tirelessly during 10 but I don't think we're there yet. 11 this possibility today, this morning, about this possibility 12 that Apple is not necessary. 13 at this point in order to bring it up. 14 of people who have reached out to us during this litigation 15 with proposed alternate methods, and one by one they have 16 failed for one reason or the other. 17 know, 18 We only learned about And we have a good faith basis There have been a lot And we haven't, you -- there's just no reason to go into those. But at this point we have, at least, a good faith 19 basis that it will work. The problem is we don't know for 20 sure. 21 vacate the order. 22 the Court's order at this point because there's also the 23 possibility that it will not work. 24 give the experts the time that they need to test it and let 25 us report back to the court. And while -- if it's validated, the Court could then I think we are really premature to vacate I think we should just But let's not -- I think it's UNITED STATES DISTRICT COURT Page 6 1 premature to just vacate the order at this point. 2 THE COURT: Well, let me say -- and I'll hear 3 further from counsel if you like -- I don't -- I mean, to 4 some extent whether the order is vacated or not I think is -- 5 you know, I'm not sure how much of a practical difference 6 that makes here because the order is effectively, sort of, 7 held in limbo or stayed at this point pending this briefing. 8 I certainly don't think, let me just comment, that Apple's 9 been flouting the order. The order, essentially -- it 10 isn't -- pending a final decision, there's not really -- it's 11 not in a stage that it could be enforced at this point. 12 So, you know, I'm not -- to some extent I'm not 13 sure how much difference it makes whether the order is 14 vacated at this point or not, because if it turns out, after 15 exploring this possibility, that the FBI believes it won't 16 work, you know, I would be inclined to go forward without 17 really -- and there might need to be some additional 18 briefing, supplemental submissions, with respect to this 19 effort, but I think the matter's been fully briefed. 20 think it would be -- whether the order's vacated or not, I 21 think it would be effectively heard in the same fashion. 22 So I So that's where I'm -- I understand Apple's 23 position. I'm not sure -- you know, at this point the 24 question of the necessity of Apple's assistance is still, it 25 seems to me, up in the air. So I guess that's what I'm, sort UNITED STATES DISTRICT COURT Page 7 1 of, struggling with with this request is deciding whether it 2 either makes sense to vacate the order and, if I do, whether 3 that really makes a practical difference here at this 4 point. 5 MR. BOUTROUS: Your Honor, this is Mr. Boutrous 6 again. We appreciate that. And if the Court were to -- the 7 Court just, essentially, did make it clear -- somehow make 8 clear in an order that -- if the Court decides to postpone 9 the hearing, that the order is not enforceable, that it's 10 stayed, and that the necessity issue is up in the air, that 11 would serve, I think, great purposes. 12 And I can't exaggerate to you how -- the 13 perception, some of which I think has been reinforced by the 14 Government in their brief, that the company has been somehow 15 doing something wrong. 16 compel, as the Court will remember. 17 thing when a company is accused of that. 18 In fact, they filed a motion to And so it is a serious So if the Court could make that clear in whatever 19 order the Court issues regarding the hearing, that, I think, 20 would go a long way to addressing our concern. 21 agree that if a supplemental declaration -- if the Government 22 decides they still need to go forward, and then we would, of 23 course -- and I guess a brief or something to explain why 24 they have a basis for lifting the stay. 25 Apple would want the opportunity to make the supplemental And then we And then, obviously, UNITED STATES DISTRICT COURT Page 8 1 submission. 2 course, then be part of the evidentiary hearing that we would 3 have if we all get together at some point in the future. 4 5 And then if we have a hearing, this would, of THE COURT: All right. Ms. Wilkison, any response to that? 6 MS. WILKISON: Well, only to say that the 7 Government has really only been interested in trying to get 8 into this phone and has done all of its filings and all of 9 its work here in an effort to get into this phone and not 10 saying anything nefarious about Apple. This is simply fair 11 litigation as we go forward in trying to sort this issue 12 through. 13 the necessity of Apple's assistance, I think just vacating 14 the hearing, letting us explore it, and then we'll file a 15 status report as indicated in the order and we can go forward 16 from there. And so because there is now a decent question about 17 MR. BOUTROUS: 18 THE COURT: 19 MR. BOUTROUS: Your Honor, this is -- I'm sorry. Your Honor, if I could just add -- I 20 didn't mean to interrupt, but -- I respect Ms. Wilkison 21 greatly and the office greatly, but just on page 2 of their 22 reply and opposition brief they declare Apple's rhetoric is 23 not only false, but is corrosive of the very instititions 24 that are best able to safeguard our liberty and our rights. 25 It's those kind of statements that, if you are a company, UNITED STATES DISTRICT COURT Page 9 1 law-abiding, good corporate citizen, those kind of things in 2 a public record from the United States based on an order that 3 is now shown that one of the key components of the order, the 4 necessity prong, is up in the air, I would request that the 5 Court do something along the lines I suggested earlier. 6 would be greatly appreciated. 7 THE COURT: 8 MS. WILKISON: 9 THE COURT: All right. It Well, Mr. Boutrous -- Your Honor. Let me just say that this isn't -- I'm 10 not going to take sides here in terms of who is -- well, let 11 me just say that it seems to me that -- you know, a fair 12 amount of the -- the briefing in this case, as I mentioned 13 last week, has been excellent, but I think there's been 14 multiple audiences that have been considered in litigating 15 this case. 16 considerations here and that's part of what's at stake. 17 I understand there are public policy That said, I am inclined to grant the Government's 18 request to, essentially, vacate the hearing date at this 19 point and allow it to file a status report. 20 understanding Apple's position here that now that the 21 necessity element is up in the air, I would be inclined to 22 just include some language that, in effect, make clear that 23 at this point the order that was entered is unenforceable and 24 is stayed. 25 But I will -- I, frankly, think it effectively has been UNITED STATES DISTRICT COURT Page 10 1 throughout, you know, the course of briefing here. I can 2 make that clear. 3 in doing that, and I think that is an accurate statement of 4 where things stand. I don't see any prejudice to the Government 5 MR. BOUTROUS: 6 THE COURT: Thank you very much, your Honor. But I'm happy to hear -- I know the 7 proposal here is that the Government file a status report by 8 April 5th. 9 Does that date make sense for both sides? MR. BOUTROUS: Your Honor, yes. 10 Mr. Boutrous. 11 report, if we have thoughts about what we think the next step 12 should be, we can submit those, and then the Court could 13 decide what course to take. 14 That makes sense. This is THE COURT: Once we see the status That's fine. I mean, it may be if by 15 April 5th the parties are in agreement about something, you 16 can just submit that. 17 at any time about that, I'm happy to do that if that's 18 easier. Again, if you'd like to set up a call 19 MS. WILKISON: That's fine, your Honor. 20 MR. BOUTROUS: Yes. 21 22 That's fine. Thank you, your Honor. THE COURT: All right. So I'll order, essentially, 23 that a status report be filed by April 5th, but, again, that 24 can take various forms if it turns out that, for example, by 25 that date the FBI determines it doesn't need this order and UNITED STATES DISTRICT COURT Page 11 1 the parties want to just submit something proposing a 2 resolution. Otherwise, the status report would be fine on 3 April 5th. And then -- and then we'll just go from there. 4 MR. BOUTROUS: Thank you, your Honor. 5 MS. WILKISON: Thank you. 6 THE COURT: 7 All right. Thank you all. Is there anything else that we need to take up today, then? 8 MS. WILKISON: Not on behalf of the Government. 9 MR. BOUTROUS: Nothing from Apple. 10 THE COURT: All right. Thank you all. I'll 11 issue -- I'll issue just a brief minute order, but you can 12 assume -- I mean, this is the order, that the hearing 13 tomorrow will be vacated. 14 out as we were expecting a few people to show up for that. So, hopefully, the word would get 15 MR. BOUTROUS: 16 THE COURT: 17 MR. BOUTROUS: Thank you, your Honor. 18 MS. WILKISON: Thank you, your Honor. 19 I have a feeling it will. All right. Thank you all. (Proceedings Concluded.) 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Page 12 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, ADELE C. FRAZIER, FEDERAL OFFICIAL REALTIME 5 COURT REPORTER, IN AND FOR THE UNTIED STATES DISTRICT COURT 6 FOR THE CENTRAL DISTRICT OF CALIFORNIA, DO HEREBY CERTIFY 7 THAT PURSUANT TO SECTION 753, TITLE 28, UNITED STATES CODE 8 THAT THE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT OF THE 9 STENOGRAPHICALLY REPORTED PROCEEDINGS HELD IN THE 10 ABOVE-ENTITLED MATTER AND THAT THE TRANSCIPT PAGE FORMAT IS 11 IN CONFORMANCE WITH THE REGULATIONS OF THE JUDICIAL 12 CONFERENCE OF THE UNITED STATES. 13 14 DATED THIS 22nd DAY OF MARCH, 2016 15 16 17 18 /S/ ADELE C. FRAZIER 19 ________________________________________ 20 ADELE C. FRAZIER, CSR No. 9690, CRR, RMR 21 FEDERAL OFFICIAL COURT REPORTER 22 23 24 25 UNITED STATES DISTRICT COURT