On Friday, Apple brought a motion for pretrial sanctions against Epic Games. I only tweeted about that motion as it didn't allege any particular wrongdoing on Epic's part (just "procedural gamesmanship" according to Apple) and, all in all, fell short of what would have warranted a blog post:
Just read Apple's motion for pretrial sanctions against Epic. There's no alleged wrongdoing on Epic's part AFAICS. Apple's problem is that Microsoft, Facebook and a couple of others aren't on Apple's side in this context, thus don't jump to comply with every request Apple makes.— Florian Mueller (@FOSSpatents) April 10, 2021
What Apple wanted was for the court to preclude three witnesses--Vivek Sharma of Facebook, Lori Wright of Microsoft, and Benjamin Simon of a five-people company named Yoga Buddhi--"from testifying unless they agree to make sufficient productions four business days in advance of their depositions."
Given that this was merely a sideshow I didn't blog about Epic's oppposition brief either. What I do find pretty interesting, however, is how Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California has just ruled on the motion (this post continues below the document):
I don't know if I'll agree with Judge Gonzalez Rogers's future decisions, but her rulings last summer on Epic's TRO and PI motions were definitely balanced, her dismissal of the Pistacchio action over Apple Arcade was unsurprising to me as I also considered that complaint deficient despite being concerned about Apple Arcade, and the above order on Apple's motion for pretrial sanctions is--without overstating the significance of the resolved motion--Solomonic:
Based on the record, Epic "promptly disclosed the individual entitites" of those witnesses to Apple.
The court agres with Epic that even if Apple had been right and there had been a violation, the remedy would simply have been to let Apple depose those witnesses, which Apple is going to be able to do now anyway. (In fact, Apple's motion was meant to up the pressure on those parties ahead of the depositions.) In other words, the judge declined to give Apple what it wasn't entitled to at any rate.
But Judge Gonzalez Rogers won't accept surprise at trial time and "will weigh [any] failure [to make a sufficient production of relevant documents to both parties] against the credibility of the testifying witness." Therefore, she recommends to those witnesses "that they adequately and timely [no later than three days prior to the date of the deposition] produce such documents in advance of their depositions."
In all fairness, Apple itself apparently didn't expect those witnesses to be precluded from testifying, but Apple wanted the court "to sanction Epic under Rule 37 by precluding these three individuals from testifying unless they agree to make sufficient productions four business days in advance of their depositions." Such a decision might have given rise to further debate over whether those witnesses should or should not be excluded. What the court has now decided ensures that the deposition will happen, and the question is limited to whether witnesses will lose some of their credibility if they withhold relevant material. That gives the court much more flexibility than a binary question.
What I also like is that the court makes a clear distinction between trillion-dollar market cap players like Microsoft and Facebook on the one hand and a tiny company named Yoga Buddhi on the other hand:
"The Court provides a specific comment with regard to Mr. Simon and Yoga Buddhi based on the record and the parties’ briefing. It is hard for the Court to determine what, if any, documents are left for Mr. Simon of Yoga Buddhi to produce where Yoga Buddhi has previously already produced documents to Apple in this litigation. Unlike either Microsoft or Facebook, Yoga Buddhi is a company of five people, and, per Epic Games’ representations to the Court, every single one of the documents already produced either involves Mr. Simon or relates to a part of an operation that Mr. Simon controls. [...] Apple could have already anticipated and then requested relevant documents for Mr. Simon given the small size of Yoga Buddhi, and it is unclear what further documents Apple needs at this point that it could not have previously and timely requested."
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