Apple knew NOTHING about the FBI going to Magistrate Judge Pym seeking a Court Order for what they were already doing, cooperating with the FBI and DOJ.
From Footnote #22 of Apple's Motion to Vacate:
The government obtained the Order without notice to Apple and without allowing Apple an opportunity to be heard. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (recognizing that one of the "'fundamental requisite[s] of due process of law is the opportunity to be heard'") (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). But this was not a case where the government needed to proceed in secret to safeguard its investigation; indeed, Apple understands that the government alerted reporters before filing its ex parte application, and then, immediately after it was signed and confirmed to be on the docket, distributed the application and Order to the public at about the same time it notified Apple. Moreover, this is the only case in counsel's memory in which an FBI Director has blogged in real-time about pending litigation, suggesting that the government does not believe the data on the phone will yield critical evidence about other suspects.
A short comment/question, it looks as though we are going to have either Donald Trump or Hillary Clinton heading the federal government for the next four years. Do you really want either of these acknowledged authoritarians to free passage to your daily business and, more particularly you moral and political opinions? They will, of course have many ways to get information we believe is protected by the First Amendment. Will there be increasing limitations on speech? It certainly seems as though some form of “hate speech” limitation is on the door step and thin skinned chief executives will be tempted to protect themselves and their actions.
I was describing what is supposedly the routine manner in which such an order is drafted. Ordinarily copies of all motions, responses, and so on, including all proposed orders, would be filed and delivered to all legally involved parties in a timely and orderly manner in accordance with all published local court procedures.
I am not aware of what happened in this particular instance. If Apple somehow was not informed, then as I have indicated previously, you do not need a Master’s in biochem to tell when a dead fish smells fishy— or something like that (with apologies to all biochem majors).
So far as I am aware, court procedure when properly followed gives advance notice to all directly affected parties who can be reached by business street addresses so long as they are a party (plaintiff or defendant) to the litigation duly registered with the court for the case under the docket. I am not sure why Apple was not duly notified by the court of an order that directly affected it. Offhand I cannot think of any reason why it should not have been registered with the court as being a party to the litigation if it is going to be ordered to compel production of a document and especially production of live object code for a state of the art handheld device. I must be missing something. I am not a lawyer and I imagine there may be a way in which this could be done legally without direct notification of the primary affected party. However, if I were the judge, it would be very, VERY suspicious to me if I were asked to issue such an order without due notification of the court’s hearing and filings pro and con.
This seems to me like a prima facie case of denial of due process, in addition to various BoR violations as Apple claims in the news headlines. Again I have not had any opportunity to read the filings and I am not a lawyer. So maybe I should not even write anything at all here or anywhere else about it, lol. Just *%&&ing in the wind for now, I guess, until someone knowledgeable about such matters comes along and clarifies the situation for us all... we really need some more lawyers around here. The convention is that the guys in the trenches usually just short-ship the stuff to comply with the quarterly mgmt schedules, and then get to be the fall guys for the next batch of problem tickets, lol... :-)