Case 4:19-cv-03074-YGR Document 316 Filed 04/06/21 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. 11-cv-06714-YGR (TSH)
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`DISCOVERY ORDER
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`Re: Dkt. No. 428
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`Case No. 19-cv-03074-YGR (TSH)
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`Re: Dkt. No. 314
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`Case No. 20-cv-05640-YGR (TSH)
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`Re: Dkt. No. 395
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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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`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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`Apple and non-party Facebook have filed a joint discovery letter brief. 20-5640 ECF No.
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`Case 4:19-cv-03074-YGR Document 316 Filed 04/06/21 Page 2 of 3
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`395.1 In the letter brief, Apple moves to compel Facebook to produce some documents responsive
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`to its subpoenas, so that it may adequately cross-examine Facebook’s VP of Gaming, Vivek
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`Sharma, whom Epic Games has listed on its witness list for trial. ECF No. 376. The Court must
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`first decide whether it may consider this motion at all.
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`This motion to compel has been filed in all three related actions, but it is obviously
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`directed solely to the Epic Games case. The only rationale offered by Apple for obtaining these
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`documents is Epic’s recent designation of Sharma as a trial witness, and Apple is clear that it
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`seeks these documents to cross-examine him during the Epic trial. This matters because fact
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`discovery closed in the Epic case on February 15, 2021 (see ECF No. 116), which means the last
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`day to move to compel on fact discovery was February 22, 2021. See Civil Local Rule 37-3.
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`Accordingly, this motion is time-barred.
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`It doesn’t matter that Apple purported to reserve the right to move to compel after
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`February if Facebook testifies at trial, ECF No. 395, Ex. A (emails from E. Kreiner on Feb. 4 and
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`10), because Apple didn’t have that right in the first place. Regardless, Apple’s purported
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`reservation of rights was met with Facebook’s own reservation of rights “including to requests for
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`information after the close of fact discovery . . .” Id. (email from E. Curran-Huberty on Feb. 8).
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`Thus, we are not faced with a situation where an otherwise diligent litigant was lulled into
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`complacency by a sweet-talking opponent. Facebook actively made clear its intent to stand on the
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`close of fact discovery.
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`Apple cites U.S. ex rel. Higgins v. Boston Scientific Corp., 2020 WL 968218, *14 (D.
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`Minn. Feb. 28, 2020), in which the court ordered the defendant to produce documents as a
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`sanction under Rule 37 for its violation of its discovery obligations under Rule 26(a). Rule 37
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`does indeed give courts broad discretion to fashion appropriate sanctions. See Fed. R. Civ. Proc.
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`37(c)(1)(C) (“In addition to or instead of” exclusion, “the court . . . may impose other appropriate
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`sanctions . . .”). The Court will assume that a Rule 37 sanction could include a document
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`production order even if a motion to compel would be untimely. However, Apple has not shown,
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`1 All of the ECF references in this order are to 20-5640.
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`Case 4:19-cv-03074-YGR Document 316 Filed 04/06/21 Page 3 of 3
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`and has not attempted to show, that Facebook has done anything sanctionable. Certainly, Epic’s
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`decision to list Sharma as a trial witness does not show that Facebook behaved improperly.
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`Apple hints at an argument that Epic may have behaved improperly by not listing Sharma
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`in its Rule 26(a) disclosures – an argument that Epic hotly disputes (see ECF No. 398). The Court
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`expresses no view on that matter. A motion in limine to exclude Sharma as a witness due to any
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`alleged failure to timely disclose him should be directed to Judge Gonzalez Rogers. This Court
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`holds only that Apple’s motion to compel against Facebook is untimely and therefore denied.
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` IT IS SO ORDERED.
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`Dated: April 6, 2021
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`THOMAS S. HIXSON
`United States Magistrate Judge
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