Tuesday, October 13, 2020

Epic Games insists on conducting discovery of Steve Jobs and Tim Cook's emails: 3.6 million Apple documents are not enough

On Friday, Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California granted Epic Games' motion for a preliminary injunction against Apple only with respect to its developer account for Unreal Engine, but it's still up to Epic itself to #FreeFortnite, though Epic's aggressive attitude makes a Ninth Circuit decision likely to be inevitable before the iOS version of Fortnite will return to the App Store.

Late on Monday, Epic and Apple filed a joint case management statement in preparation of the case management conference Judge Gonzalez Rogers will hold next Monday (this post continues below the document):

20-10-12 Epic Games v. Appl... by Florian Mueller

The document indicates a blame game, with Epic insinuating that Apple is stalling and Apple pointing a finger at Epic for lack of cooperation. And in this context, the names of the founders and CEOs of both companies come up:

Epic says it's already "already made an initial production of more than 16,000 pages from the files of Timothy Sweeney, Epic's CEO." But Apple argues those documents may have been "cherry-picked and omit a significant amount of relevant materials" (which Epic obviously denies). Apple notes that Epic already received a third-party discovery request before it brought its own suit. Allegedly, Epic "told Apple to just wait a bit—only to file suit against Apple before providing any responses to Apple's subpoena."

The court just entered a protective order (on terms on which the parties had agreed) on October 2, and Apple proudly mentions it has since "provided Epic with the 3.6 million documents produced by Apple in Cameron [developer class action] and Pepper [consumer class action], as well as all written discovery requests and responses in those cases." But Epic says Apple should have done so even sooner.

With respect to the custodians (the persons whose files may contain documents of relevance to the dispute), Epic won't be satisfied until Apple produces emails from the archives of Steve Jobs and Tim Cook:

"Apple’s list of six custodians is also facially deficient, as it does not include individuals on whom Apple repeatedly relied during the temporary restraining order and preliminary injunction motions, such as Steve Jobs, Apple’s former CEO, or Tim Cook, Apple's current CEO." (emphases added)

Apple contradicts as follows:

"Epic[] alleges that Apple's proposed custodian list is 'facially deficient' because it includes neither Steve Jobs nor Tim Cook, 'whom Apple repeatedly relied on during the temporary restraining order and preliminary injunction motions.' Epic's statement mischaracterizes the facts. Apple's temporary restraining order and preliminary injunction briefs cite exactly two references with respect to its current and former CEO—Tim Cook's Statement before the U.S. House of Representatives Judiciary Committee, and an AppleInsider article quoting Steve Jobs. Both are publicly available to Epic, and neither supports the need for a custodial collection from Apple's highest executives. To the contrary, Apple’s proposed custodian list includes all fact witnesses who submitted declarations in support of Apple’s temporary restraining order and preliminary injunction briefs—including Philip Schiller, current Apple Fellow and former Senior Vice President of Worldwide Marketing, who is the executive most likely to have information relevant to this case." (emphases added)

Expect some wrangling and bickering at next Monday's case management conference...

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