Case 4:20-cv-05640-YGR Document 809 Filed 08/24/21 Page 1 of 7
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`THEODORE J. BOUTROUS JR., SBN 132099
`tboutrous@gibsondunn.com
`RICHARD J. DOREN, SBN 124666
`rdoren@gibsondunn.com
`DANIEL G. SWANSON, SBN 116556
`dswanson@gibsondunn.com
`JAY P. SRINIVASAN, SBN 181471
`jsrinivasan@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Avenue Los Angeles, CA 90071
`Telephone: 213.229.7000 Facsimile: 213.229.7520
`
`VERONICA S. MOYÉ (Texas Bar No.
`24000092; pro hac vice)
`vmoye@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`2100 McKinney Avenue, Suite 1100
`Dallas, TX 75201
`Telephone: 214.698.3100
`Facsimile: 214.571.2900
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` MARK A. PERRY, SBN 212532
`mperry@gibsondunn.com
`CYNTHIA E. RICHMAN (D.C. Bar
`No. 492089; pro hac vice)
`crichman@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, DC 20036 Telephone:
`202.955.8500 Facsimile: 202.467.0539
`
`ETHAN DETTMER, SBN 196046
`edettmer@gibsondunn.com
`RACHEL BRASS, SBN 219301
`rbrass@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`555 Mission Street
`San Francisco, CA 94105
`Telephone: 415.393.8200
`Facsimile: 415.393.8306
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`Attorneys for Defendant APPLE INC.
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`UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`OAKLAND DIVISION
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`EPIC GAMES, INC.,
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` Plaintiff, Counter-defendant
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`APPLE INC.,
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` Defendant, Counterclaimant.
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`v.
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`IN RE APPLE IPHONE ANTITRUST
`LITIGATION
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`DONALD R. CAMERON, et al.,
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`Plaintiffs
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`v.
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`APPLE INC.,
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`Defendant.
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` Case No. 4:20-cv-05640-YGR
`Case No. 4:11-cv-06714-YGR
`Case No. 4:19-cv-03074-YGR
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`DEFENDANT APPLE INC.’S RESPONSE TO
`NON-PARTY EPIC GAMES, INC.’S MOTION
`FOR ADMINISTRATIVE RELIEF TO
`ACCESS SEALED FILINGS IN RELATED
`CASES
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`Hon. Yvonne Gonzalez Rogers
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`DEFENDANT APPLE INC.’S RESPONSE TO NON-PARTY EPIC GAMES, INC.’S MOTION FOR
`ADMINISTRATIVE RELIEF TO ACCESS SEALED FILINGS IN RELATED CASES
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`Case 4:20-cv-05640-YGR Document 809 Filed 08/24/21 Page 2 of 7
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`INTRODUCTION
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`Epic’s Motion ignores the most salient fact in this dispute: Epic opted out of the Cameron class
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`action and is therefore not a party—even a putative one—to either of the two remaining class actions
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`before this Court. At this point, it is entitled to nothing beyond access to the public filings. Epic has
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`already enjoyed more process than the typical opt-out class member. Even before the class-certification
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`stage, Epic brought its own lawsuit, successfully sought an early trial date, and received all manner of
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`Apple’s confidential and highly confidential materials. But the Epic trial concluded months ago, the
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`evidentiary record there is now closed, and there is nothing in the sealed filings in different lawsuits
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`for which Epic has any legitimate use. Epic’s Motion identifies no valid reason why Epic needs access
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`to these materials or adequately explains what it intends to do with them.
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`Furthermore, Apple would be prejudiced because Epic cannot be trusted with Apple’s
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`confidential materials. Even while denying this, Epic discloses in a footnote that it already has received
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`and retained an unsealed version of Consumer Plaintiffs’ class certification papers and related expert
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`report, which contain Apple’s confidential materials. (Mtn. at 2, n.1.) During the months that counsel
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`have been discussing the issue of Epic’s access to sealed materials, Epic never before revealed that it
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`already had helped itself to some of the confidential information at issue without Apple’s consent.
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`Apple is investigating this breach of the Court’s protective order and will address the issue with the
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`Court as appropriate. The Motion now before the Court is too little, too late.
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`Epic made its own bed—it opted out of the Cameron case and jumped to the head of the line
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`with its own trial. Now it has to lie in it—Epic is entitled to nothing beyond the public filings in
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`Cameron (and Pepper), just like any other non-party to the litigation. Its bid for special treatment is
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`not supported by the Coordination Order or any authority, and is inconsistent with Epic’s decision to
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`opt out. Epic’s extraordinary request for access to sealed materials in other cases, which no other non-
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`party has been afforded, should be rejected.
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`BACKGROUND
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`The trial in Epic v. Apple concluded on May 24, 2021, with the Court making clear that “[t]he
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`record is the record. Whatever it is, there will be no addition.” May 20, 2021 Trial Tr. 3824; see also
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`May 21, 2021 Trial Tr. 3870 (“Well, it’s got to be in the record if I’m going to consider it.”); May 24
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`1
`DEFENDANT APPLE INC.’S RESPONSE TO NON-PARTY EPIC GAMES, INC.’S MOTION FOR
`ADMINISTRATIVE RELIEF TO ACCESS SEALED FILINGS IN RELATED CASES
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`Case 4:20-cv-05640-YGR Document 809 Filed 08/24/21 Page 3 of 7
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`Trial Tr. 4191 (“And by the end of the trial, I said okay, that’s it, no more pieces. There are no more
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`pieces [of the puzzle] in that box. You may have wanted other pieces . . . but that’s it.”). Epic itself
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`concedes, as it must, that “the Court will render its judgment in Epic v. Apple on the basis of the trial
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`record developed in that case and the parties’ arguments.” (Bornstein Decl., Ex. C at 1.)
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`Immediately after the trial ended, Apple sent Epic and class plaintiffs a letter indicating that
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`Epic would no longer be receiving any discovery. (Id., Ex. A at 1.) The following week, Apple sent a
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`further communication to Epic and class plaintiffs confirming that class plaintiffs should not send the
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`unsealed versions of their class certification reports and expert reports, which contain Apple
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`confidential materials, to Epic either. (Id., Ex. B at 1.) A few weeks later, Epic asked that Apple
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`continue to produce documents in the ongoing class actions to Epic as well, and further asked Apple to
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`serve Epic with unsealed versions of court filings in the class actions and that Apple consent to class
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`plaintiffs doing the same. (Id., Ex. C at 1-2.) Apple declined Epic’s requests, precipitating a telephonic
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`meet and confer between the parties. During that discussion, Epic indicated that it needed the requested
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`materials because Epic might seek to admit additional exhibits to the record in the Epic case, to
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`potentially add material to its proposed findings of fact, or to challenge a judgment entered against it.
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`(Declaration of Jay Srinivasan at P2.)
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`DISCUSSION
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`Epic’s request for special treatment, seeking non-party access to the sealed filings in the Pepper
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`and Cameron class actions, boils down to the argument that these filings mention and discuss Epic
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`and/or the evidentiary record of the Epic trial. If this were the rule, then Apple could be required to
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`produce its high confidential materials to literally dozens of non-parties (such as Microsoft) whose
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`materials are also mentioned or referenced in the parties’ class certification papers and expert reports.
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`Unsurprisingly, Epic cites to no authority in support of the position that a non-party is entitled to sealed,
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`non-public filings in a lawsuit simply because the non-party is referenced in certain filings. Nor does
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`Epic point to any authority that would give Epic these special rights because it is a party in a related
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`action in which the evidentiary submissions are completed, or because Epic is mentioned more than
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`other non-parties.
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`Instead, there is clear caselaw directly contrary to Epic’s position. See Kile v. United States,
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`2
`DEFENDANT APPLE INC.’S RESPONSE TO NON-PARTY EPIC GAMES, INC.’S MOTION FOR
`ADMINISTRATIVE RELIEF TO ACCESS SEALED FILINGS IN RELATED CASES
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`Case 4:20-cv-05640-YGR Document 809 Filed 08/24/21 Page 4 of 7
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`915 F.3d 682, 688-89 (10th Cir. 2019) (“Appellants, as of now, are non-parties to the action and are
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`not entitled to the sealed transcript in this capacity.”). Relatedly, courts have made clear that Federal
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`Rules have “no explicit provision for post-trial discovery” and when “trial is over[,] a fortiori, discovery
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`is over.” Flag Fables, Inc. v. Jean Ann’s Country Flags & Crafts, Inc., 753 F. Supp. 1007, 1016 (D.
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`Mass. 1990). Courts especially disfavor post-trial discovery where parties like Epic “had ample
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`opportunity to develop the pertinent facts through discovery, as well as to call witnesses and cross-
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`examine witnesses during the trial.” Aldridge on behalf of United States v. Corp. Mgmt. Inc., No. 1:16-
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`CV00369 HTW-LRA, 2021 WL 1521697, at *1 (S.D. Miss. Apr. 16, 2021); see also AngioScore, Inc.
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`v. TriReme Med., Inc., No. 12-cv-03393-YGR, 2016 WL 9107419, at *1 (N.D. Cal. Jan. 7, 2016)
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`(discussing the “highly unusual circumstances” that can support the “extraordinary remedy” of altering
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`or amending a judgment); AngioScore, Inc., v. TriReme Medical, Inc., No. 12-CV-03393-YGR, 2015
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`WL 13376679, at *2 (N.D. Cal. Oct. 7, 2015) (denying motion to reopen discovery following trial).
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`While these cases discuss the issue in the context of post-trial discovery, they reinforce the broader
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`position that when the trial record is closed, a party has no right to additional materials, which would
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`certainly apply to non-public filings from another case.
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`Contrary to Epic’s submission, the Court’s Order Regarding Coordination of Discovery does
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`not speak to this issue. That order was intended to “minimize expenses and facilitate the orderly and
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`efficient” process of discovery—not to provide Epic special rights once the trial record in its opt-out
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`case was closed. Consumer ECF No. 194, Developer ECF No. 80. Epic’s context-free reading of the
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`Coordination Order makes no sense and would require Apple to continue making document
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`productions and expert disclosures to Epic long after its case was over. This was plainly not the Court’s
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`intent. (Indeed, the Coordination Order was entered before the Epic suit was filed, and before Epic
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`sought and received a trial date in advance of class certification.) And Epic’s reading also ignores that
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`the Court issued a separate order in the Epic matter setting a separate non-expert and expert discovery
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`cut-offs for Epic as distinct from the classes. Epic ECF No. 116. None of Epic’s arguments merit the
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`post-trial special treatment it seeks.
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`Nor does Epic even attempt to explain to the Court (or Apple) why Epic needs the sealed filings
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`or what it would do with that information. Epic argues that Apple’s experts are attempting to “relitigate
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`3
`DEFENDANT APPLE INC.’S RESPONSE TO NON-PARTY EPIC GAMES, INC.’S MOTION FOR
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`Case 4:20-cv-05640-YGR Document 809 Filed 08/24/21 Page 5 of 7
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`their disputes with Epic’s experts.” (Mtn. at 4.) But this is not true: Apple is responding to the
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`arguments made by the class plaintiffs and their experts, a fact Epic well understands based on its
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`unauthorized access to the Consumer Plaintiffs’ expert report, as well as to the voluminous materials
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`available (with only minimal redactions) on the public record in both of the class actions. Moreover,
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`what could Epic do even if it had access to the sealed information? It would have no basis to submit
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`any filing in the closed Epic litigation, and it lacks standing to file anything in a lawsuit in which it
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`expressly opted out (Cameron) or another one in which it is not even a member of the proposed class
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`(Pepper). Epic notes that without the sealed materials, it “lacks the ability to review for accuracy, or
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`seek corrections of, the class parties’ voluminous assertions about Epic v. Apple and Epic’s business”
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`(id.) but again, Epic would have no standing to “seek corrections” even if it had access to these
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`materials because it is not a party to the class actions. And while Epic complains of an unequal playing
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`field, it ignores that Apple has access to the information in the class cases because it is the named
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`defendant in those cases (and in others about its App Store); Epic, in contrast, is not a party at all. That
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`Epic brought a different suit gives it no special rights here. Otherwise every other single plaintiff
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`(developer or consumer) could demand all the confidential material in all the cases. That is not a road
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`the Court should even begin going down.
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`To the extent Epic intimates that the burden is on Apple to demonstrate a legitimate interest for
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`withholding confidential materials from Epic, that is incorrect. Apple, of course, bears no burden to
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`demonstrate prejudice from sharing its confidential information with a non-party. Apple, like many
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`litigants, has sought to limit the dissemination of its confidential and highly confidential information,
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`and has successfully moved the Court to: (1) enter a Protective Order (to which Epic stipulated); and
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`(2) to keep its own confidential information sealed in appropriate instances (just as Epic has done with
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`its information). Apple has no obligation to disclose confidential materials to Epic or any other non-
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`litigant, nor does Epic cite any authority holding otherwise.
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`Although Apple does not need to establish prejudice for this Court to deny Epic’s request for
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`special treatment, Apple would be harmed if the Court were to award Epic the relief sought. First, Epic
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`is waging war against Apple and Google here and abroad, and is obviously searching for ammunition
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`to use in its well-publicized attacks. Apple is concerned that Epic wants to use the sealed information
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`4
`DEFENDANT APPLE INC.’S RESPONSE TO NON-PARTY EPIC GAMES, INC.’S MOTION FOR
`ADMINISTRATIVE RELIEF TO ACCESS SEALED FILINGS IN RELATED CASES
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`Case 4:20-cv-05640-YGR Document 809 Filed 08/24/21 Page 6 of 7
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`in other litigation against Apple (e.g., in Australia) or in its lawsuit against Google, which is pending
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`before Judge Donato—where Epic recently amended its allegations to make new accusations about
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`Apple that were not raised in Epic’s suit against Apple.
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`Further, despite Epic’s bald assertion that “Apple has no basis to suggest Epic cannot be trusted
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`to abide by the protective orders” (Mtn. at 5), Epic has demonstrated that it cannot be trusted with a
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`party’s confidential materials. As noted at the outset, Epic buries in a footnote the concession that Epic
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`obtained the sealed versions of the Consumer Plaintiffs’ class certification papers and accompanying
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`expert report, which contain Apple confidential material, without Apple’s knowledge or consent.
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`Worse still, Epic hid this fact from Apple for months and continues to retain this material despite
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`knowing that it is not entitled to it without the Court order it is currently seeking. This misconduct
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`alone should be sufficient basis to deny this Motion.
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`Epic is also an opt-out plaintiff in a lawsuit challenging Google’s Google Play store. Epic’s
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`case against Google is related to two putative class actions (one brought by developers and one by
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`consumers) as well as a lawsuit brought by various state attorneys general. Last week, the court in the
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`Google actions denied Google’s motion to keep sealed various allegations in each of the four
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`complaints. (See Srinivasan Dec., Ex. A at 1.) Per an emergency motion for a stay filed by Google,
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`Google approached all four plaintiff groups immediately after the issuance of the court’s order, asking
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`them to defer filing their unredacted complaints so Google could file a motion to stay pending
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`reconsideration or appeal. (Id. at 1-2.) Google explained that an immediate filing of the unredacted
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`complaints would deprive Google of meaningful relief. (Id.) The State AGs and both sets of class
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`plaintiffs agreed to hold off filing their unredacted complaints while Google sought further review.
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`Epic, however, ignored Google’s reasonable request, and rushed to file its unredacted complaint on the
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`public docket, ensuring that Google’s (and Apple’s) confidential information would become public.
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`(Id. at 2; see also Matthew Perlman, Google Wants Play Store Info Shielded Despite Epic Unsealing,
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`Law360 (Aug. 23, 2021)).
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`Epic has shown no compunction about using confidential information publicly to press its
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`broader agenda and the Court should make no order that gives Epic special license to pursue this
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`improper purpose.
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`5
`DEFENDANT APPLE INC.’S RESPONSE TO NON-PARTY EPIC GAMES, INC.’S MOTION FOR
`ADMINISTRATIVE RELIEF TO ACCESS SEALED FILINGS IN RELATED CASES
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`Case 4:20-cv-05640-YGR Document 809 Filed 08/24/21 Page 7 of 7
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`Respectfully submitted,
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`GIBSON, DUNN & CRUTCHER LLP
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`By:
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`/s/ Mark A. Perry
`Mark A. Perry
`Attorney for Defendant APPLE INC.
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`Dated: August 24, 2021
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`DEFENDANT APPLE INC.’S RESPONSE TO NON-PARTY EPIC GAMES, INC.’S MOTION FOR
`ADMINISTRATIVE RELIEF TO ACCESS SEALED FILINGS IN RELATED CASES
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