Case 4:20-cv-05640-YGR Document 304 Filed 02/01/21 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 20-cv-05640-YGR (TSH)
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`DISCOVERY ORDER
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`Re: Dkt. No. 297
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`EPIC GAMES, INC.,
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`Plaintiff and Counter-
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`defendant,
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`v.
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`APPLE INC.,
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`Defendant and
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`Counterclaimant.
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`We are here on Epic Games’ motion to compel Apple to produce non-custodial documents
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`responsive to RFPs 12-14, 18, 19, 25 and 31 by February 5, 2021. ECF No. 297. Epic served
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`these RFPs on October 23, 2020. ECF No. 275, Ex. 1. On December 26, 2020 Apple agreed to
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`produce non-custodial documents in response to these RFPs. ECF No. 297-7. On January 27,
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`2021, Apple stated that it planned to complete those productions by February 15, 2021. ECF No.
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`297-13.
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`The case scheduling order provides that the fact discovery cutoff is February 15, 2021,
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`which is also the date that opening expert reports are due. ECF No. 116. In setting this schedule,
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`Judge Gonzalez Rogers set a separate deadline of January 6, 2021 for the completion of document
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`productions. ECF No. 111 at 100. Epic observes that there is no disagreement about whether
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`Apple must produce non-custodial documents in response to these RFPs because it agreed to do
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`so. Epic also observes that Apple did not produce them by the January 6 deadline to do so. Epic
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`now argues that the Court should order Apple to produce them by February 5 so that Epic’s
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`experts will have at least some opportunity to consider them in preparing their expert reports.
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`Case 4:20-cv-05640-YGR Document 304 Filed 02/01/21 Page 2 of 3
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`Apple responds that the close of fact discovery is February 15 and asserts it will produce
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`the documents by then. Apple acknowledges that with respect to document productions, January 6
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`was the deadline to produce. But Apple says that it has told everyone that due to Epic’s excessive
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`document demands, it would not be able to complete document productions by January 6, and
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`Apple observes that Epic itself has made some document productions after that date, which Epic
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`agrees is true. More generally, Apple blames Epic for requesting (and obtaining) a fast case
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`schedule and then asking for lots of discovery, which Apple says renders that schedule infeasible.
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`Let’s begin with the ground rules. January 6 was the Court-ordered deadline to complete
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`document productions. If Judge Gonzalez Rogers had set a February 15 deadline for the close of
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`fact discovery and said nothing else, then February 15 would have been the deadline for all forms
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`of discovery, including document productions. But she did say something else, which is that
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`document productions had to be completed by January 6. Accordingly, Apple’s argument that it is
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`acceptable for it to complete these document productions by February 15 is wrong.
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`Both sides have violated the January 6 deadline, but that deadline was never altered by
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`Judge Gonzalez Rogers. You’re not allowed to violate a court order just because your opponent
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`did, or because you announced to the world that compliance was infeasible and you planned to
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`violate it. So, Epic’s own failures to produce by that date don’t excuse Apple’s non-compliance,
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`and Apple’s existing non-compliance with that deadline does not justify more noncompliance.
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`Besides, Epic is making a more specific argument now and is not just complaining about
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`missed deadlines. Epic is saying that for Apple to produce these particular documents by
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`February 15 prejudices Epic’s ability to have its experts use them. Given the topics at issue, it is
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`logical that Epic’s experts would want to be able to consider these documents in preparing their
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`reports.
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`Apple does not have a good response to this problem and at the hearing acknowledged this.
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`Apple said it is working as hard as possible but cannot promise to complete these document
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`productions by February 5. At this point the Court views the problem as a practical one. Epic is
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`entitled to these documents in time for its experts to be able to review them, but this is a late-
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`breaking discovery dispute and February 5 is only four days away. The Court will not order
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`Apple to do something that might be impossible, but it will order Apple to try as hard as it can.
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`Case 4:20-cv-05640-YGR Document 304 Filed 02/01/21 Page 3 of 3
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`Accordingly, the Court orders Apple to use its best efforts to produce non-custodial documents
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`responsive to RFPs 12-14, 18, 19, 25 and 31 by February 5, 2021
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`IT IS SO ORDERED.
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`Dated: February 1, 2021
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`THOMAS S. HIXSON
`United States Magistrate Judge
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