`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`
`EPIC GAMES, INC.,
`Plaintiff, Counter-defendant,
`v.
`APPLE INC.,
`Defendant, Counterclaimant.
`Case No. 4:20-cv-05640-YGR-TSH
`
`
`
`OBJECTIONS TO SPECIAL MASTER
`DETERMINATIONS ISSUED MAY 12,
`2025 REGARDING APPLE’S
`WITHHELD DOCUMENTS
`
`The Honorable Thomas S. Hixson
`San Francisco Courthouse
`Courtroom E - 15th Floor
`450 Golden Gate Avenue
`San Francisco, CA 94102
`
`Dear Magistrate Judge Hixson,
`Pursuant to Section 4 of the Joint Stipulation and Order Approving Privilege Re-
`Review Protocol (Dkt. 1092) (the “Protocol”), Epic respectfully submits the following
`Objections to certain of the Special Masters’ privilege determinations issued on May 12,
`2025 and pertaining to documents Apple seeks to withhold in their entirety.
`Epic recognizes the significant burden of these objections and is sensitive to the
`Court’s observation regarding the diminishing utility of similar or duplicative documents
`following the completion of the evidentiary hearings. Epic is therefore limiting its
`objections below to documents that it believes may meaningfully supplement the already
`extensive record established at the hearings and reflected in the Court’s April 30 Order
`(Dkt. 1508, the “Order”).
`Epic, of course, does not have access to the documents and is therefore unable to
`fully assess the utility of the documents or the bases on which Apple claims privilege; it
`makes its utility judgments and predicates its objections on the limited information
`provided in Apple’s privilege logs for the documents and their families.
`Epic respectfully requests that the Court review the following documents in
`camera and, where appropriate, reject Apple’s privilege assertions pertaining to these
`documents, in whole or in part.
`Case 4:20-cv-05640-YGR Document 1572 Filed 05/16/25 Page 1 of 4
`
`
`
`
`
`
`
`Documents Relative to the Digital Markets Act
`Entry No. 3323 (PRIV-APL-EG_00104845) appears to be a shared document on
`Apple’s Pages application which addresses a “DMA Newsroom Post”. (Privilege Log Entry No.
`3323.) Apple seeks to withhold this document in its entirety, claiming privilege on the basis that
`the document “provid[es] legal advice from counsel regarding injunction compliance press and
`communications legal strategy”. Id. However, the document custodians are exclusively non-
`legal business professionals—Carson Oliver, Tanya Washburn, Ken Moore, Latika Kirtane, and
`Ann Thai—which suggests the document is not primarily legal. Id. And the document’s notes
`on “injunction compliance press” do not confer privilege on the whole document simply because
`they may pertain to compliance. (See Dkt. 1056 at 1.) To the extent that the document on its
`face discloses any legal advice, or includes an express request for legal advice, such text can be
`redacted and the document otherwise produced.
`Entry No. 8480 (PRIV-APL-EG_00233796) is a pdf entitled “Trust & Safety
`Evaluation extract”, which Apple seeks to completely withhold on the basis that the document
`purportedly “reflect[s] legal advice prepared by employees acting under the direction of counsel”
`and “was prepared at the direction of counsel”. (Privilege Log Entry No. 8480.) Apple thus
`does not appear to claim that the document discloses legal advice directly provided by an
`attorney, but rather makes the more attenuated claim that the work of non-legal employees acting
`under the direction of counsel “reflect[s]” legal advice. Id. However, the document’s
`“reflect[ion]” of legal advice cannot sustain Apple’s privilege claim unless the document, on its
`face, discloses the contents of such legal advice or a request for legal advice. And although
`Apple claims that the document “indicates it was prepared at the direction of counsel”, Apple’s
`privilege log entry does not record any lawyers purportedly involved; the sole document
`custodian, Katie Przytulski, is not an attorney. Id. Thus, the document does not appear to be
`privileged.
`Entry No. 6890 (PRIV-APL-EG_00218416) is an email from Phil Schiller, a business
`executive who also was a witness and Apple’s corporate representative during the evidentiary
`hearings, to Sean Cameron, Apple in-house counsel, with the subject line “Guidelines -- DMA
`edits”. Sixteen other Apple employees, both lawyers and non-lawyers, are copied on the email
`chain, including multiple senior business executives such as Eddy Cue, Greg Joswiak, Matt
`Fischer and Trystan Kosmynka. Apple has withheld this document on the basis that the email
`supposedly reflects legal advice with respect to “developer guidelines and website materials”.
`However, the large number of senior business executives and other non-legal personnel on this
`email chain, the fact that the top email is from Mr. Schiller, and the fact that Mr. Cameron often
`coordinates Injunction response efforts in a business capacity (as opposed to a legal capacity), all
`suggest that the document may not involve legal advice or a request for such, and the document
`should be produced at most with redactions where appropriate.
`Entry No. 7011 (PRIV-APL-EG_00219556) is an email from Jordan Hickey, a non-
`lawyer manager, to Mr. Cameron and appears to pertain to revisions to Apple’s Guidelines in the
`European Union. Seventeen other Apple employees are copied on the email chain, a vast
`majority of whom are non-lawyer business or public relations employees. Apple claims that the
`entire email chain should be withheld because it supposedly reflects legal advice regarding the
`Case 4:20-cv-05640-YGR Document 1572 Filed 05/16/25 Page 2 of 4
`
`
`
`
`
`
`
`
`
`Digital Markets Act (“DMA”). For the same reasons stated above with respect to Entry No.
`6890, some or all of the document may not involve legal advice or a request for such, and the
`document should be produced at most with redactions where appropriate.
`
`Entry No. 7334 (PRIV-APL-EG_00222094) is an email chain for which the top email is
`from Ann Thai, a senior business director of Apple Marketplace, primarily addressed to a host of
`Apple’s top executives, including Tim Cook, Phil Schiller, Mr. Cue, Luca Maestri, Lisa Jackson,
`Mr. Joswiak, Craig Federighi and Kristin Huguet, as well as Kate Adams, Apple’s General
`Counsel. Fifteen additional Apple employees are copied on the chain. The subject line, “HOT:
`Documents for 3pm PT DMA Review”, suggests that participants on the email chain discuss
`documents relating to Apple’s response to the DMA. Given that the top email is from a non-
`lawyer to a group consisting mostly of Apple’s top business executives, it appears unlikely that
`this chain reflects communications made primarily for a legal purpose. Indeed, Apple in its
`privilege log claims that Entry No. 7334 is an email chain with “redacted text providing legal
`advice”. To the extent the document in fact reflects legal advice in some portions, such advice
`should be redacted, and the document otherwise should be produced.
`
`Emails Relating to Public Relations Topics
`
`Entry No. 7077 (PRIV-APL-EG_00220165) is an email from Ms. Thai to Adam Dema,
`a public relations employee, and Mr. Cameron, In-House Counsel. Four other people, including
`Fred Sainz, Apple’s VP of Communications, are copied on the email chain. Apple claims the
`email provides “legal advice from counsel regarding foreign regulatory issues in the European
`Union”, but the subject of the email and the sender and recipients of the email suggest this is a
`public relations document, not a legal communication. To the extent the email discloses any
`actual legal advice from Mr. Cameron, or any specific request for such advice, such advice
`should be redacted and the document otherwise produced.
`
`Entry No. 7195 (PRIV-APL-EG_00221405) is an email from Mr. Maestri to Mr.
`Schiller. More than a dozen people are copied on the email, including Mr. Cook, Ms. Thai and
`Mr. Sainz. The email apparently discusses a news article from Reuters, which reported on
`Apple’s fines in the Netherlands for non-compliance with an order requiring it to allow
`alternative payment mechanisms in-app. Apple maintains that the email chain “reflect[s]
`information for the purpose of rendering legal advice from counsel”. However, this
`communication is among non-lawyers and concerns a public news article, which suggests this
`chain does not primarily serve a legal purpose. Where business people are discussing the article,
`those emails are not privileged, even if the article itself covers an issue with legal overtones such
`as Apple’s non-compliance in the Netherlands.
`
` Entry No. 7363 (PRIV-APL-EG_00222373) is an email from Mr. Schiller to Marni
`Goldberg, Director of Corporate Communications (and Apple witness), and Ms. Adams. Again,
`many Apple business executives are copied on this email, including Mr. Maestri, Mr. Oliver
`(Apple witness) and Alex Roman (Apple witness) and again, this is an email chain discussing a
`news article—“HOT: WSJ story on App Store financials in YGR ruling”. Apple claims the
`email chain “provide[s] information for the purpose of obtaining legal advice from counsel
`regarding injunction compliance press and communications legal strategy”. But here too, the
`Case 4:20-cv-05640-YGR Document 1572 Filed 05/16/25 Page 3 of 4
`
`
`
`
`
`
`
`
`
`involvement of non-lawyers and the subject of the email suggest that this chain is not made for
`primarily a legal purpose. Business advice and communications strategy are not privileged and
`should not be withheld.
`
`Emails Relating to Business Decisions Regarding Epic
`
` Entry No. 7181 (PRIV-APL-EG_00221362) is an email from Mr. Maestri to Mr.
`Schiller concerning communications with Epic about the reinstatement of Epic’s developer
`program account. Also copied on the chain are ten Apple employees, including senior business
`executives, public relations professionals and Apple in-house counsel. Entry No. 7221
`(PRIV-APL-EG_00221515) is, similarly, a separate email chain that appears to be discussing
`Apple’s response to Epic’s request for reinstatement. The top email on this chain is from Mr.
`Joswiak, a non-lawyer business executive, to both Mr. Schiller and Ms. Adams, copying 12
`other Apple employees including Mr. Cook, other business executives, and a number of Apple
`in-house counsel. Given this list of participants, the discussion appears to be at least in part of a
`business nature. And at least the top emails on both chains indicate non-lawyer involvement.
`It therefore appears likely that some or all of the two email chains may not involve legal advice
`or a request for such.
`
`Engineering Spreadsheet
`
`Entry No. 8680 (PRIV-APL-EG_00235920) is a spreadsheet sent via email entitled
`“AMP Analytics Engineering (AE) Program Status Report”. Apple seeks to withhold the
`document in its entirety, asserting privilege on the basis that the “[s]preadsheet relate[s] to
`information for the purpose of obtaining legal advice with counsel regarding injunction
`compliance launch date and timing”. (Privilege Log Entry No. 8680.) However, a spreadsheet
`that merely “relates” to information that could be used to seek or provide legal advice is not itself
`privileged unless it discloses a request for legal advice or legal advice itself; factual information
`is not itself privileged. And Apple fails to note any attorney supposedly involved with the
`document, instead acknowledging that the document does not “specif[y] attorneys”. Id.
`Moreover, the title of the document, “AMP Analytics Engineering…”, suggests that it addresses
`engineering subjects—not legal matters. That observation is reinforced by the document’s
`custodians (Jeff Guebert, Amy Hawthorne, Payam Mirrashidi, and Jeff Robbin), all of whom are
`engineers, not lawyers. The document thus does not appear to be privileged.
`
`
`
`
`DATED: May 16, 2025 CRAVATH, SWAINE & MOORE LLP
`By: /s/ Yonatan Even
`Counsel for Plaintiff Epic Games, Inc.
`
`Case 4:20-cv-05640-YGR Document 1572 Filed 05/16/25 Page 4 of 4
`
`
`
`
`
`
`
`