`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 4:20-cv-05640-YGR Document 808 Filed 08/20/21 Page 1 of 7
`
`Paul J. Riehle (SBN 115199)
`paul.riehle@faegredrinker.com
`FAEGRE DRINKER BIDDLE
`& REATH LLP
`Four Embarcadero Center
`San Francisco, California 94111
`Telephone: (415) 591-7500
`Facsimile: (415) 591-7510
`
`
`
`
`Christine A. Varney (pro hac vice)
`cvarney@cravath.com
`Katherine B. Forrest (pro hac vice)
`kforrest@cravath.com
`Gary A. Bornstein (pro hac vice)
`gbornstein@cravath.com
`Yonatan Even (pro hac vice)
`yeven@cravath.com
`Lauren A. Moskowitz (pro hac vice)
`lmoskowitz@cravath.com
`M. Brent Byars (pro hac vice)
`mbyars@cravath.com
`CRAVATH, SWAINE & MOORE LLP
`825 Eighth Avenue
`New York, New York 10019
`Telephone: (212) 474-1000
`Facsimile: (212) 474-3700
`
`Attorneys for Plaintiff and Counter-
`defendant Epic Games, Inc.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`EPIC GAMES, INC.,
`
`Case No. 4:20-cv-05640-YGR-TSH
`
`Plaintiff, Counter-defendant,
`
`Case No. 4:11-cv-06714-YGR-TSH
`
`v.
`
`Case No. 4:19-cv-03074-YGR-TSH
`
`APPLE INC.,
`
`Defendant, Counterclaimant.
`
`IN RE APPLE IPHONE ANTITRUST
`LITIGATION.
`
`DONALD R. CAMERON, et al.,
`
`EPIC GAMES, INC.’S MOTION FOR
`ADMINISTRATIVE RELIEF TO
`ACCESS SEALED FILINGS IN
`RELATED CASES
`
`Northern District Civil Local Rule 7-11
`
`Judge: Hon. Yvonne Gonzalez Rogers
`
`
`Plaintiffs,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`EPIC’S MOTION TO ACCESS SEALED FILINGS IN RELATED CASES
`Case Nos. 4:20-cv-05640-YGR-TSH; 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH
`
`

`

`Case 4:20-cv-05640-YGR Document 808 Filed 08/20/21 Page 2 of 7
`
`
`
`Although trial in Epic v. Apple has concluded, the parties in the related class actions
`continue to brief many issues that are, in Apple’s words, “fundamentally the same” as those the
`Court is considering in connection with its post-trial decision. (Cameron, Dkt. 379 at 23-24.)
`At Apple’s insistence, however, Epic is in the dark. Despite the Court’s statement during the
`Epic v. Apple trial that “One of the reasons why I ordered that class cert . . . be filed was so that
`I could see what they were saying, all of the developers beyond Mr. Sweeney who are in that
`class” (Trial Tr. 4084:10-12), Apple created a blockade by withholding the unredacted class
`certification filings from Epic, and demanding that the class plaintiffs follow suit. It is clear
`from the publicly available versions of the filings that Apple is making representations and
`arguments to the Court about the proceedings in Epic v. Apple while simultaneously refusing to
`provide Epic visibility into what is being said. Without leave to amend the Coordination Order,
`which requires the sharing of expert disclosures, Apple has unilaterally taken the position that
`“it is no longer appropriate to coordinate discovery efforts with Epic pursuant to the Court’s
`[Coordination] Order”. (Bornstein Decl. ¶ 3, Ex. A.) Apple’s obstruction is prejudicial and
`baseless. Epic respectfully requests that the Court grant Epic access to all unredacted filings by
`Apple and the class plaintiffs in the related class actions.
`BACKGROUND
`The Coordination Order governing these related actions requires that “[f]uture
`discovery requests, future responses to discovery requests, and future discovery produced in
`response to such requests by parties and non-parties in any of the Related App Store Actions
`shall be served on counsel for all parties in the Related App Store Actions.” (Cameron,
`Dkt. 80, ¶ 2.) It also requires that “all disclosures made pursuant to Fed. R. Civ. P. 26(f) (i.e.,
`initial disclosures and expert disclosures) shall also be served on counsel for all parties in the
`Related App Store Actions.” (Id. ¶ 6 (emphasis added).) Consistent with the Coordination
`Order, as well as the Amended Protective Orders in Epic v. Apple and the class actions (Epic v.
`Apple, Dkt. 274; Pepper, Dkt. 381; Cameron, Dkt. 252), the parties in the related actions have
`shared confidential information for nearly a year.
`On June 1, 2021, shortly after the Epic v. Apple trial ended, the class plaintiffs in both
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-1-
`EPIC’S MOTION TO ACCESS SEALED FILINGS IN RELATED CASES
`Case Nos. 4:20-cv-05640-YGR-TSH; 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 4:20-cv-05640-YGR Document 808 Filed 08/20/21 Page 3 of 7
`
`
`related actions filed their motions for class certification. (Pepper, Dkt. 441; Cameron,
`Dkt. 332.) As required by the applicable protective orders, the class plaintiffs made those
`filings under seal, with redacted versions made publicly available. On the morning of June 2,
`2021, after reviewing the public filings and seeing discussion of the record developed at the
`Epic v. Apple trial, Epic requested that the class plaintiffs provide unredacted copies of the
`class certification papers. The next day, Apple instructed the class plaintiffs not to provide
`those filings to Epic, notwithstanding that Epic already possesses all or nearly all the
`documents sought to be sealed or the confidential information the filings discuss. (Bornstein
`Decl. ¶ 4, Ex. B.) Apple stated that it “sees no reason or basis for Developer Plaintiffs to share
`their sealed class certification submission with Epic’s counsel”, and insisted “that Consumer
`and Developer Plaintiffs [in the related class actions] should not send any new materials to
`Epic’s counsel” created or produced in connection with the related class actions—including all
`filings and discovery. (Id.¶ 4, Ex. B.) Apple thereby unilaterally, and improperly, purported to
`terminate the Court’s Coordination Order as it applies to Epic.1
`The parties exchanged letters and telephonically met and conferred, but Apple gave no
`ground. (Id. ¶¶ 5, 6, 8, 9, Exs. C, D.) On August 10 and 11, 2021, Apple filed its oppositions
`to the class certification motions and related materials. Epic requested Apple’s unredacted
`filings on August 13, 2021, and Apple refused to provide them. (Id.¶ 11, Ex. F.)
`DISCUSSION
`Apple’s withholding of the full class certification filings is unjustifiable and prejudicial
`to Epic. These filings address issues that overlap with the issues presented to the Court in the
`Epic v. Apple trial. While that matter remains sub judice, Epic should be able to see what the
`parties in the class actions are telling the Court, just as Apple can.
`The parties in the class actions frequently cite Epic documents and witnesses,
`characterize the trial record in Epic v. Apple, and use Epic as an example. The following
`
`
`1 Epic’s outside counsel possesses the unredacted copies of the Consumer Plaintiffs’ class
`certification motion and the accompanying expert report found at Pepper, Dkt. No. 443, which
`the Consumer Plaintiffs provided before Apple issued its instruction on June 3, 2021. But
`Epic’s outside counsel does not have unredacted copies of any of the other sealed filings.
`
`-2-
`EPIC’S MOTION TO ACCESS SEALED FILINGS IN RELATED CASES
`Case Nos. 4:20-cv-05640-YGR-TSH; 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 4:20-cv-05640-YGR Document 808 Filed 08/20/21 Page 4 of 7
`
`
`arguments by Apple are illustrative:
`
`• “Plaintiffs launch fundamentally the same assault as did Epic on Apple’s business
`model—alleging that Apple monopolized a single-brand iOS app distribution market by
`requiring developers to sell iOS apps through the App Store, and seeking an order
`forcing Apple to provide a compulsory license to its IP.” (Cameron, Dkt. 379 at 23-24.)
`
`• “Following roughly in the footsteps of Dr. Evans in the Epic case . . . Professor
`Economides proceeds to make a set of arbitrary assumptions regarding competitive
`entry and its consequences for operating profits that are unsupported by economic
`theory or evidence and employs them to come up with a completely indefensible
`competitive benchmark rate. Professor Lafontaine’s description of Dr. Evans’ similar
`analysis applies here as well: what Professor Economides ‘has produced in reality is an
`algebraic exercise, not an economic analysis.’” (Schmalensee Decl. ¶ 82 (quoting
`Lafontaine Written Direct ¶113, filed in Epic v. Apple).)
`
`• “Even with its below-cost commission, EGS can only attract developers with a spate of
`incentives, like minimum guarantees, such that Epic’s 12% commission does not
`accurately reflect its pricing.” (Pepper, Dkt. 479 at 11.)
`
`• “[T]he EGS commission rate [cannot] be divorced from Epic’s ‘Project Liberty’
`campaign, including its litigation against Apple.” (Id. at 12.)
`Similarly, Apple’s declarations in support of its class certification filings reveal that
`many of the redacted materials are documents produced by Epic and deposition transcripts of
`Epic’s witnesses. (See, e.g., Pepper, Dkt. No. 475 at 1-5 (attaching as support for Apple’s
`filings four deposition transcripts of Epic witnesses and six Epic documents).)2
`Given the focus on Epic v. Apple in the unredacted portions of these filings, it is
`reasonable to expect there is a similar focus in the redacted portions. And there is a lot of
`redacted content. For example, Apple filed declarations from seven experts—four of whom
`
`
`2 More broadly, Apple’s discovery strategy in the class actions appears to include re-
`litigating Epic v. Apple. For instance, Apple recently moved to compel production of
`communications between Epic’s counsel and the Developer Plaintiffs’ counsel. (Cameron,
`Dkt. 370 (Joint Letter Brief).) Apple has also pressed Microsoft to produce communications
`with Epic’s counsel and even with Epic’s experts. (Bornstein Decl. ¶ 7, Ex. E.)
`
`-3-
`EPIC’S MOTION TO ACCESS SEALED FILINGS IN RELATED CASES
`Case Nos. 4:20-cv-05640-YGR-TSH; 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH
`
`

`

`Case 4:20-cv-05640-YGR Document 808 Filed 08/20/21 Page 5 of 7
`
`
`were experts in Epic v. Apple—entirely under seal. (Pepper, Dkt. 478; Cameron, Dkt. 373.)
`Based on the language Epic is able to see in partially redacted copies containing Epic’s
`confidential information that Apple provided pursuant to Civil Local Rule 79-5(e), it is clear
`that several of the Apple experts who also testified in Epic v. Apple not only rely on their
`analyses and reports from that matter, but also inappropriately and repeatedly attempt to
`relitigate their disputes with Epic’s experts. Professor Schmalensee frequently purports to
`characterize the arguments Dr. Evans made in Epic’s case, both to criticize them and use them
`as a benchmark when discussing the views of class plaintiffs’ experts. (E.g., Schmalensee
`Decl. ¶ 78 (“I agree with Professor Elhauge that the way to avoid the inverse Cellophane
`Fallacy, to which Dr. Evans fell victim, is to use an estimate of the competitive price rather
`than the prevailing price.”).) Dr. Hitt repeatedly refers to his Epic v. Apple report and attempts
`to defend his prior arguments. (E.g., Hitt Decl. ¶ 272.) And Drs. Hitt and Willig rely on a
`study of Epic’s data that Dr. Hitt presented in Epic’s case. (Id. ¶¶ 257-259, App’x D ¶¶ 35-43;
`Willig Decl. ¶¶ 132-135.) Epic is aware of these examples because they involve Epic’s
`confidential information. But these four declarations contain numerous redactions (presumably
`mostly for Apple confidential information), and Epic has no access at all to the declarations of
`the remaining experts, two of whom (Mr. Malackowski and Dr. Rubin) testified in Epic v.
`Apple. Epic is unambiguously entitled to these declarations.
`Apple wishes to equate Epic with a run-of-the-mill third party in the related actions.
`But that is neither the reality nor the law of the case, where discovery in these proceedings has
`proceeded jointly under the Coordination Order—including the discovery that produced the
`information Apple now seeks to hide from Epic. Because Apple (but not Epic) can access the
`sealed versions of these filings, the parties are on unequal footing. Epic lacks the ability to
`review for accuracy, or seek corrections of, the class action parties’ voluminous assertions
`about Epic v. Apple and Epic’s business. By withholding this information from Epic, Apple
`has manufactured circumstances where it can speak about Epic’s business and the Epic v. Apple
`trial record under seal, and Epic has no ability to evaluate Apple’s assertions.
`The prejudice to Epic is acute because Apple appears to have used its class certification
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-4-
`EPIC’S MOTION TO ACCESS SEALED FILINGS IN RELATED CASES
`Case Nos. 4:20-cv-05640-YGR-TSH; 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH
`
`

`

`Case 4:20-cv-05640-YGR Document 808 Filed 08/20/21 Page 6 of 7
`
`
`filings to relitigate arguments against Epic in a forum where Epic cannot respond or even view
`Apple’s arguments. For example, Apple cites the supposedly “uncontradicted” testimony from
`Tim Cook about the App Store’s P&Ls (Cameron, Dkt. 380 at 2), and an expert declaration of
`James Malackowski—who served as Apple’s IP expert in Epic v. Apple—to bolster Apple’s
`assertion that its App Store P&Ls are not “fully-burdened” (Pepper, Dkt. 479 at 16 n.3). Epic
`strongly disputed Mr. Cook’s testimony about the App Store P&Ls during trial in Epic v.
`Apple, and Mr. Malackowski’s declaration appears to contain an attempted rebuttal to the
`opinions offered by Epic’s accounting expert, Ned Barnes, about the App Store P&Ls. Even
`the redacted declarations Apple provided Epic pursuant to Civil Local Rule 79-5(e) reference
`analyses of this topic and others that are either largely redacted or found in expert declarations
`(including Mr. Malackowski’s) that Apple did not provide Epic for confidentiality review.
`Not only is Apple’s position prejudicial to Epic, it is baseless. When asked during a
`meet and confer what prejudice Apple may suffer if Epic reviewed the unredacted class action
`filings, Apple suggested Epic might disclose the sealed information to others. Apple has no
`basis to suggest Epic cannot be trusted to abide by the protective orders. Moreover, Epic
`already has access to all or nearly all the information beneath the redactions through discovery.
`Apple’s stated concern is pretextual.
`Nor has Apple cited authority supporting its position. During meet and confers with
`Epic, Apple cited two cases where parties sought new discovery after trial. See Aldridge ex rel.
`United States v. Corp. Mgmt. Inc., 2021 WL 1521697, at *1 (S.D. Miss. Apr. 16, 2021); CPR
`Assocs., Inc. v. Se. Pennsylvania Chapter of Am. Heart Ass’n, 1990 WL 200267, at *2 (E.D.
`Pa. Dec. 3, 1990). Neither case involved a situation like this, where Epic seeks access to
`unredacted filings in related cases to prevent Apple from prejudicing Epic in its own case.
`CONCLUSION
`For the foregoing reasons, Epic respectfully requests that the Court grant this Motion
`and order that Epic be provided unredacted versions of all sealed filings by Apple and the class
`plaintiffs in the related class actions.
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-5-
`EPIC’S MOTION TO ACCESS SEALED FILINGS IN RELATED CASES
`Case Nos. 4:20-cv-05640-YGR-TSH; 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case 4:20-cv-05640-YGR Document 808 Filed 08/20/21 Page 7 of 7
`
`Dated: August 20, 2021
`
`
`
`
`
`CRAVATH, SWAINE & MOORE LLP
`
`Christine Varney (pro hac vice)
`Katherine B. Forrest (pro hac vice)
`Gary A. Bornstein (pro hac vice)
`Yonatan Even (pro hac vice)
`Lauren A. Moskowitz (pro hac vice)
`M. Brent Byars (pro hac vice)
`
`FAEGRE DRINKER BIDDLE & REATH LLP
`
`Paul J. Riehle
`
`Respectfully submitted,
`By:
`/s/ Gary A. Bornstein
`Gary A. Bornstein
`Attorneys for Plaintiff and Counter-defendant
`Epic Games, Inc.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`-6-
`EPIC’S MOTION TO ACCESS SEALED FILINGS IN RELATED CASES
`Case Nos. 4:20-cv-05640-YGR-TSH; 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH
`
`