Case 4:20-cv-05640-YGR Document 389 Filed 03/30/21 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 4:20-cv-05640-YGR
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`PRETRIAL ORDER NO. 3
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`EPIC GAMES, INC.,
`Plaintiff,
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`vs.
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`APPLE INC.,
`Defendant.
`APPLE INC.,
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`Counterclaimant,
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`v.
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`EPIC GAMES, INC.,
` Counter-Defendant.
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`TO ALL PARTIES AND COUNSEL OF RECORD:
`On Monday, March 26, 2021, the Court held a regularly-scheduled pretrial conference.
`Considering the parties’ requests and arguments, and good cause appearing, the Court issues the
`orders set forth below, including a modification to Pretrial Order No. 1.
`1. The Court is still preparing to proceed in person assuming the conditions in the Bay
`Area continue to improve at current rates which would have a majority of Bay Area
`counties in Minimal Tier 4 by April 27, 2021 and perhaps all by May 4, 2021.
`2. For public health and safety reasons given COVID-19, the following protocols are
`ORDERED:
`a. Each party may have no more than six (6) individuals in the courtroom. Each
`may choose how to allocate those slots. If the Court can accommodate more
`given public safety concerns, the parties will be so advised.
`b. Every person shall wear a mask while in the courthouse. The Court will
`provide transparent masks for witnesses to use while testifying.
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`Case 4:20-cv-05640-YGR Document 389 Filed 03/30/21 Page 2 of 4
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`c. The Court will designate a room close to the courtroom to be used by the
`witness who is next scheduled to testify on any given day. Parties are advised
`that the Court will not be able to accommodate cleaning during the business day
`although the room will be stocked with wipes. If any party choses to use the
`room, you should take appropriate precautions.
`d. The Oakland courthouse has an attorney lounge which is open and available.
`This lounge is not monitored. Two conference rooms exist which can be
`reserved by lawyers for any trial in the courthouse on a first-come, first-serve
`basis by contacting Odile_Hansen@cand.uscourts.gov.
`3. With respect to previously-designated confidential information, such designation is not
`presumptive at trial. The Court concurs that the parties should meet and confer and
`attempt to limit the quantity of information to be sealed. This trial is a public
`proceeding. Judges in this district critically evaluate any request to seal.
`4. Deposition Designations
`a. Pretrial Order No. 2 identifies the parameters under which the Court will
`consider deposition designations. The Court agrees that the parties may use a
`“run time” calculation from a third-party vendor to calculate the time associated
`with the designations.
`b. Each deposition designation for a witness shall bear the Exhibit marking “Ex.
`Depo. [insert number]” and repeat with consecutive numbering.
`c. The parties shall file one joint stipulation requesting that the Court admit the
`exhibits for all deposition designations so that they will become part of the trial
`record. The stipulation shall be submitted with the designations and shall
`identify each exhibit separately with the name of each deponent.
`5. Expert Witness Written Direct Testimony
`a. The parties are allowed to submit written direct testimony of its expert
`witnesses which in total shall be limited to 100,000 words per side. The parties
`may divide the words in any many they chose among their respective fifteen
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`Case 4:20-cv-05640-YGR Document 389 Filed 03/30/21 Page 3 of 4
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`(15) expert witnesses.
`b. Written testimony shall begin with an executive summary listing each opinion
`and identifying by page number the explanation of such opinion. It shall
`include an oath by the declarant and shall end noting the word count for the
`written testimony.
`c. Epic Games Inc. shall serve, but not file, its written direct testimony on Apple
`Inc. by April 20, 2021. Apple shall serve, but not file, its written direct
`testimony on Epic Games by April 23, 2021. The parties shall then file and
`serve the final written direct testimony by Tuesday, April 27, 2021. One
`physical hard copy and an electronic version on flash drive, in Word format,
`shall be delivered to the Court no later than noon on April 28, 2021. Each
`party shall make arrangements for the delivery by sending an email to
`YGRChambers@cand.uscourts.gov.
`d. The Court acknowledges that some expert testimony may be proffered prior to
`proof of a fact upon which an opinion relies. Ultimately, if facts are not
`admitted into evidence, and an expert relied upon such fact, the parties may
`move to strike the opinion on which it was based, if appropriate.
`e. Each written testimony submission shall bear the Exhibit marking “Ex. Expert
`[insert number]” and repeat with consecutive numbering.
`f. The parties shall file one joint stipulation requesting that the Court admit the
`exhibits for all written testimony so that they will become part of the trial
`record. The stipulation shall be submitted with the written testimony
`submissions. Further the list shall include the exhibit number, the name of the
`witness, the word count and the summation of the collective word counts.
`6. The Court shall not bifurcate the remedies portion of the trial.
`7. The Court MODIFIES Pretrial Order No. 1 with respect to the filing of a redlined
`version of the proposed Findings of Fact to reflect what was proved and the record
`references and the corollary Conclusions of Law. Rather than delay such filing until the
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`Case 4:20-cv-05640-YGR Document 389 Filed 03/30/21 Page 4 of 4
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`end of the trial, the parties shall file the update each day following a trial day. Any
`objections to record citations shall be made within two business days or shall be
`waived.
`8. Parties may use encrypted digital wireless system that includes a receiver and
`transmitter with XLR connector. However, given the Zoom platform overlay as a
`device for allowing witnesses to participate remotely, the parties should test their
`equipment in advance.
`9. Parties are advised that the U.S. Marshals require a court order to allow equipment into
`the courthouse. Thus, if applicable, a party will need to send the Court a proposed form
`of order with any specific requests.
`10. The next pretrial conference shall be Wednesday, April 21, 2021 at 9:00 a.m. by the
`Zoom platform.
`IT IS SO ORDERED.
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`Dated: March 30, 2021
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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