5/23/25 - Motion To Bifurcate Apple's "Omnibus" Emergency Motion to strike, Seal, Sanction, & Oppose

Procedural Tactics as Strategy: Apple's Litigation Conduct Across Forums

Since 2021, I have been engaged in legal proceedings involving Apple Inc., arising from whistleblower disclosures and subsequent retaliation claims. These matters have spanned administrative investigations, district court litigation, and now an appeal before the United States Court of Appeals for the Ninth Circuit. Across these venues, Apple has adopted a consistent procedural strategy that warrants scrutiny.

While Apple has not engaged the substance of the claims in any meaningful fashion, it has aggressively pursued procedural containment: leveraging motion practice, filing irregularities, and calendar compression to avoid merits-based adjudication.

On May 23, 2025, I filed a motion with the Ninth Circuit seeking relief from the most recent iteration of this approach — an omnibus filing designed to obscure dispositive requests within administrative procedure. That motion, however, was not filed in response to a single incident; it was necessitated by a sustained litigation posture aimed at frustrating judicial review through procedural distortion.

Prior Proceedings and Established Pattern

The procedural tactics now presented before the Ninth Circuit are not novel. In 2022-2024, during a formal investigation by the U.S. Department of Labor into Apple’s alleged violations of federal whistleblower protections, the company employed a strategy focused on early procedural dismissal. It avoided substantive engagement with the facts or statutory obligations under investigation, and instead sought to terminate proceedings on jurisdictional and administrative grounds.

That approach continued in related proceedings before the United States District Court for the Northern District of California. There, Apple repeatedly filed early motions to dismiss — often framed as jurisdictional challenges or premature finality arguments — which were accompanied by informal and inconsistent positions across parallel dockets. Notably, Apple’s conduct in that forum included efforts to undermine briefing schedules, preempt discovery, and moot critical issues before they were heard.

Now, before the Court of Appeals, that same approach has escalated into overt procedural entanglement.

Litigation Tactics in the Current Appeal

In the present case (No. 25-2028), Apple’s procedural tactics have included:

• Filing motions that embed dispositive relief within unrelated administrative requests, including embedding a motion to dismiss within a motion to stay. This tactic triggered an automatic stay of the briefing schedule under Ninth Circuit Rule 27-11, without disclosure or proper captioning, and without notice to opposing counsel.
• Submitting omnibus filings that combine motions to strike, motions to compel, requests for sanctions, and extension requests — compressing timelines and depriving the opposing party of fair and orderly notice.
• Using the timing of filings to manipulate procedural posture, including late-night submissions just ahead of deadlines, effectively shortening the window to respond to substantive motions by more than a week.
• Filing duplicative or procedurally improper “reply” briefs on previously mooted or procedurally closed motions, further clouding the docket and injecting argument outside the authorized briefing structure.

The cumulative effect of these tactics is procedural destabilization. The briefing schedule has been clouded; deadlines have been rendered ambiguous; and multiple dispositive and evidentiary motions have been layered into the record in ways that frustrate effective response.

Motion Filed to Enforce Procedural Clarity

On May 23, I filed a motion seeking to restore procedural integrity to this appellate proceeding. Specifically, I requested that the Court:

1. Order Apple to refile all pending motions separately, in accordance with Ninth Circuit Rule 27-1 and the express instructions of the Court’s ACMS e-filing system.
2. Disregard duplicative or improper submissions, including Apple’s May 22 “reply” in further support of a mooted administrative motion. (Apple asked for an extension, a couple days before its deadline, claiming it was delayed by seven days, then requesting thirty additional days; and then, with no response from the Court, proceeded to file on time - then filed a detailed "reply" to its prior mooted request for an extension).
3. Restore briefing discipline, ensuring that all motions — particularly those seeking to strike evidence or compel disclosure — proceed on a standard notice-and-response schedule.
4. Preserve the right to file a corrected Opening Brief, given the confusion created by the improperly triggered stay and Apple’s subsequent requests to strike the already-filed brief.

This motion is a direct response to conduct that undermines the orderly administration of justice. The Ninth Circuit's rules exist to preserve fairness and clarity in an environment where legal complexity is already high. Where one party repeatedly ignores those rules — and uses that noncompliance to gain strategic advantage — judicial intervention becomes necessary.

Broader Implications

What is at stake is not just docket discipline in a single case. Apple’s procedural strategy in this appeal — as in the prior administrative and district court proceedings — reflects a broader model of litigation risk containment.

This model does not engage with the underlying allegations. It does not seek judicial guidance. It seeks, instead, to control the process — by constraining access to review, weaponizing timing, and burying the substance of the dispute beneath procedural complexity.

When large institutional litigants are permitted to embed dispositive motions inside administrative filings, to compress adversarial response windows, and to exploit rules-based ambiguity to their advantage, the result is not zealous advocacy — it is procedural asymmetry.

The Courts should not become a forum where procedural tactics displace substantive law. My motion seeks only that this appeal proceed under the rules the Court has established, with clarity, separation of issues, and fair response timelines.

APPELLANT'S NOTICE AND REQUEST REGARDING DOCKET MANAGEMENT

9th-cir._25-2028_31_0.pdf
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