Case 4:20-cv-05640-YGR Document 329 Filed 02/08/21 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. 319
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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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`In this case, Apple has served several privilege logs with many thousands of entries.
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`Separate from the logs, Apple has served “Attorney Lists” that, at least as titled, would suggest to
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`any reasonable reader that these are lists of Apple’s in-house counsel. See, e.g., ECF Nos. 319-1
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`& 319-2. On February 3, 2021, Epic Games sent Apple a letter stating that it could not find
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`evidence that 31 of the people in the Attorney Lists are lawyers. ECF No. 319-3. Apple
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`responded the same day stating that the individuals identified in the letter are in-house attorneys,
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`litigation specialists, members of Apple’s legal department, or employees who regularly work at
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`the direction of Apple. The letter then listed each individual and their relevant title or
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`responsibility.
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`In the joint discovery letter brief at ECF No. 319, Epic asks the Court to order Apple to
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`provide evidence that any of these 31 individuals are lawyers or, for those who are not, to provide
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`an explanation for the misidentification of non-lawyers as lawyers and by February 12, 2021 to re-
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`review any documents withheld or redacted because of the participation of any of these non-
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`lawyers.
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`Case 4:20-cv-05640-YGR Document 329 Filed 02/08/21 Page 2 of 3
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`Let’s think about this for a bit. First of all, it was misleading for Apple to list non-lawyers
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`on the Attorney Lists. Anyone reading those Attorney Lists would have understood them to be a
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`list of attorneys. The Court is not suggesting that Apple intended to mislead – there is no evidence
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`of that – but Epic’s surprise at discovering that some of these individuals were not lawyers is
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`understandable.
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`But in context, this was misleading only to the reader. The fact that Apple responded to
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`Epic’s letter in a little bit less than 12 hours with (for the most part) everyone’s job title or role and
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`the explanation that some of the people listed in the Attorney Lists were not lawyers but were
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`members of Apple’s legal department or employees who regularly worked at the direction of
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`counsel shows that Apple knew this already. It is true that in this quickly written letter, Apple
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`misidentified four people as attorneys who were not, but given the number of non-attorneys who
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`were correctly identified as such, it is clear that Apple did not think its Attorney Lists were lists of
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`only attorneys. And Epic acknowledges that documents may be privileged even if they were not
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`received or sent by an attorney. If Apple itself had some broad misunderstanding that everyone on
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`the lists were attorneys when several were not, then of course it would make sense to order Apple
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`to re-review withheld or redacted documents involving those people. But there is no reason to
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`think that is true. The Court does not believe that a handful of errors in a meet-and-confer letter
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`sent after 9pm in response to a demand for a same-day response and a threat to file a discovery
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`letter brief the following day is evidence that Apple’s document reviewers misunderstood who
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`those individuals were at the time they did privilege review. Apple explains that “Apple has not
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`withheld documents as privileged simply because one of these individuals (or others listed on the
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`‘Attorney List’) appear on those documents. Rather, Apple has reviewed potentially privileged
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`documents to determine whether the document reflects communications seeking or providing legal
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`advice, and withheld or produced accordingly. The names on the ‘Attorney List’ are for the
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`purpose of aiding counsel in their review, to indicate who are Apple’s lawyers or people working
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`directly with those lawyers.”
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`Again, it was sloppy to include non-lawyers on something called an Attorney List, and the
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`Court understands why Epic was confused. But there is no reason to think Apple was confused
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`Case 4:20-cv-05640-YGR Document 329 Filed 02/08/21 Page 3 of 3
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`and therefore no reason to order Apple to do any re-review. As for Epic’s request for proof of
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`which individuals among the 31 are attorneys, there is no basis for that relief either. Epic’s motion
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`is denied.
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`IT IS SO ORDERED.
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`Dated: February 8, 2021
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`THOMAS S. HIXSON
`United States Magistrate Judge
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