Case 4:20-cv-05640-YGR Document 657 Filed 05/14/21 Page 1 of 4
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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
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`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
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`ETHAN D. DETTMER, SBN 196046
`edettmer@gibsondunn.com
`ELI M. LAZARUS, SBN 284082
`elazarus@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
`OAKLAND DIVISION
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`Case No. 4:20-cv-05640-YGR-TSH
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`BRIEF RE: MOTION TO STRIKE
`WRITTEN AND ORAL TESTIMONY OF
`DR. MICHAEL I. CRAGG REGARDING
`FOREIGN REGULATORY SUBMISSIONS
`OF A NON-PARTY
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`EPIC GAMES, INC.,
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`v.
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`APPLE INC.,
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`Plaintiff, Counter-
`defendant
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`Defendant,
`Counterclaimant.
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`Gibson, Dunn &
`Crutcher LLP
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`_________________________________________________________________________________________________
`BRIEF RE: MOTION TO STRIKE WRITTEN AND ORAL TESTIMONY OF DR. MICHAEL I. CRAGG
`REGARDING FOREIGN REGULATORY SUBMISSIONS OF A NON-PARTY, 4:20-cv-05640-YGR
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`Case 4:20-cv-05640-YGR Document 657 Filed 05/14/21 Page 2 of 4
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`In his written direct testimony (Ex. Expert 13 ¶ 71 & n.10 (Cragg)) and in his oral testimony to
`the Court, Epic’s rebuttal economic expert Dr. Michael I. Cragg relied on submissions made by
`Spotify—a member of the Coalition for App Fairness—to the Japan Fair Trade Commission (“JFTC”)
`for the purpose of advocating for regulatory action against Apple related to some of the same conduct
`challenged here. Consistent with the Court’s admonition that “experts do not get to opine without a
`factual basis for their opinions,” Trial Tr. 501:25–502:1, counsel for Apple objected when Dr. Cragg
`attempted to offer an opinion regarding substitutability in reliance on those submissions. Counsel for
`Epic offered the Spotify submissions pursuant to Federal Rule of Evidence 703 as the evidentiary basis
`for Dr. Cragg’s opinions. But written advocacy by a non-party urging a regulator to take action against
`a competitor without any opportunity to cross-examine the competitor regarding the reliability or
`methodology of the data underlying its advocacy is not the kind of information “experts in the particular
`field would reasonably rely on.” Fed. R. Evid. 703. Dr. Cragg’s testimony regarding the Spotify
`submissions should be stricken as without factual basis.
` conducted by Spotify, what Dr. Cragg
`Although described by Dr. Cragg as an
`actually relies on is two
` documents submitted by Spotify to the JFTC in an effort to
`persuade the commission to take regulatory action against Apple. See PX-1152; PX-1153. These
`documents were neither offered nor received into evidence, and are obviously inadmissible; they may
`not be considered or relied on by the Court for any purpose other than to determine that they are not
`the proper subject of Rule 703 reliance. Dr. Cragg did not cite to or purport to rely upon either the
`underlying studies (“An economic assessment of the effects of Apple’s License Agreement with
`Spotify”) or the data produced during the studies. These submissions were—as far as Apple can discern
`without the benefit of a sponsoring witness—prepared for the purpose of persuading the JFTC to take
`action against Apple, and include
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`Advocacy documents submitted to a regulator urging legal action against a competitor are not
`the kind of documents that “experts in the particular field would reasonably rely on.” Fed. R. Evid.
`703. It is well settled that the Federal Rules of Evidence “do not permit an expert to rely upon excerpts
`from opinions developed by another expert for the purposes of litigation.” In re Imperial Credit Indus.,
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`Crutcher LLP Crutcher LLP
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`1
`BRIEF RE: MOTION TO STRIKE WRITTEN AND ORAL TESTIMONY OF DR. MICHAEL I. CRAGG
`REGARDING FOREIGN REGULATORY SUBMISSIONS OF A NON-PARTY, 4:20-cv-05640-YGR
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`

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`Case 4:20-cv-05640-YGR Document 657 Filed 05/14/21 Page 3 of 4
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`Inc. Sec. Litig., 252 F. Supp. 2d 1005, 1012 (C.D. Cal. 2003); see also Fosmire v. Progressive Max Ins.
`Co., 277 F.R.D. 625, 630 (W.D. Wash. 2011) (“The rules do not permit an expert to rely upon opinions
`developed by another expert for purposes of litigation without independent verification of the
`underlying expert’s work.”). That reasoning surely applies with double force to advocacy drafted not
`by an expert in the relevant field, but by a competitor with a business interest in a particular outcome.
`Cf. Dugas v. 3M Co., No. 14-CV-1096, 2016 WL 3966142, at *6 (M.D. Fla. June 30, 2016) (“[A]s a
`piece drafted for the advocacy of a particular position, it is not the type of objective scientific evidenced
`contemplated by Rule 803(18) or Rule 703.”). The Spotify submissions are not scientific evidence—
`they are advocacy, created by a competitor, for the purpose of attacking Apple. And Dr. Cragg cannot
`credibly testify that experts in his field rely on submissions made to regulators for the purpose of
`influencing the outcome. Tellingly, Dr. Cragg did not request or consider Apple’s response to Spotify’s
`JFTC submissions in reaching any of his opinions; if he had, consideration of competing regulatory
`submissions would quickly devolve into a trial-within-a-trial on which there has been neither discovery
`nor notice. Epic’s attempt to cloud the record with information from a one-sided submission of a
`non-party to a regulator should be rejected outright.
`Dr. Cragg’s reliance on third-party advocacy is particularly dubious because the actual studies
`on which Dr. Cragg purports to rely have not been produced in this litigation. Rather, Dr. Cragg has
`cited to summaries of that study prepared by Spotify for submission to the JFTC. Apple’s counsel has
`searched its production files and found just one relevant
` commissioned by
`Spotify, which relates
`. See Decl. of R. Brass. But the Spotify submissions on which
`Dr. Cragg relied refer to studies conducted
` for which Apple has found no
`underlying data. And Dr. Cragg is not simply relying on the Spotify submissions in the course of
`forming and offering an opinion, but instead is using the submissions “as substantive evidence of his
`ultimate conclusions.” Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1062 (9th Cir. 2003)
`(affirming exclusion of expert testimony “in the absence of foundation testimony by the laboratory that
`conducted the testing”); see also In re Taxotere (Docetaxel) Prods. Liab. Litig., No. 16-MDL-2740,
`2019 WL 3817658, at *2 n.19 (E.D. La. Aug. 14, 2019) (“In order for an expert to base his opinion on
`a study it is necessary that he be able to testify of his own knowledge as to the nature and extent of the
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`Gibson, Dunn & Gibson, Dunn &
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`Crutcher LLP Crutcher LLP
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`2
`BRIEF RE: MOTION TO STRIKE WRITTEN AND ORAL TESTIMONY OF DR. MICHAEL I. CRAGG
`REGARDING FOREIGN REGULATORY SUBMISSIONS OF A NON-PARTY, 4:20-cv-05640-YGR
`
`

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`Case 4:20-cv-05640-YGR Document 657 Filed 05/14/21 Page 4 of 4
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`By
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`
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`/s/ Rachel S. Brass
`GIBSON, DUNN & CRUTCHER LLP
`Theodore J. Boutrous Jr.
`Richard J. Doren
`Daniel G. Swanson
`Mark A. Perry
`Veronica S. Lewis
`Cynthia E. Richman
`Jay P. Srinivasan
`Ethan D. Dettmer
`Rachel Brass
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`
`
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`source from which statistics were gathered.” (quotation marks omitted)). Dr. Cragg’s written testimony
`leaves little doubt as to that fact. See Ex. Expert 13 ¶ 71 (Cragg). And because Epic did not subpoena
`a witness from Spotify to testify—and because Dr. Cragg did not disclose his reliance on the Spotify
`submissions until he served his written direct testimony on April 28, well after his deposition—Apple
`has no opportunity to test whether the advocacy papers Spotify submitted to the JFTC reflect reliable
`and accurate data . Nor did Dr. Cragg have that opportunity.
`” has serious and significant flaws.
`To be clear, Apple believes that the Spotify “
`Apple addressed these flaws in materials that are not part of the record of this case, for the simple
`reason that all of this is so far beyond the scope of Epic’s complaint that it was not even the subject of
`discovery. A Sherman Act trial in California is not the place to decide the merits or reliability of
`advocacy submissions to foreign regulators. This exercise is simply a sideshow that should be excised
`from the trial record.
`For these reasons, the Spotify submissions are not the type of evidence on which experts in Dr.
`Cragg’s field would rely upon and cannot form the basis for any of his opinions. Dr. Cragg’s written
`and oral testimony relying on those submissions should be stricken, and the submissions themselves
`disregarded.
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`DATED: May 14, 2021
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`Attorneys for Apple Inc.
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`3
`BRIEF RE: MOTION TO STRIKE WRITTEN AND ORAL TESTIMONY OF DR. MICHAEL I. CRAGG
`REGARDING FOREIGN REGULATORY SUBMISSIONS OF A NON-PARTY, 4:20-cv-05640-YGR
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`Gibson, Dunn & Gibson, Dunn &
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`Crutcher LLP Crutcher LLP
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