Case 4:20-cv-05640-YGR Document 414 Filed 04/09/21 Page 1 of 5
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Case No. 20-cv-05640-YGR (TSH)
`
`
`DISCOVERY ORDER
`
`Re: Dkt. No. 403
`
`EPIC GAMES, INC.,
`
`Plaintiff and Counter-
`
`defendant,
`
`v.
`
`APPLE INC.,
`
`Defendant and
`
`
`
`Counterclaimant.
`
`
`
`
`
`The parties have filed a joint discovery letter brief on two issues concerning expert
`
`discovery. See ECF No. 403. The Court held a hearing on April 9, 2021, and this order follows.
`
`A. Michael Cragg’s Testimony
`
`Apple’s subpoena to Cragg requested the documents, data, and communications he relied
`
`on in forming the opinions in his reports. ECF No. 403-3 (RFPs 1 and 2). The expert discovery
`
`order in 19-3770 also requires him to produce those (19-3770 ECF No. 87 ¶ 2), and it applies in
`
`this action by virtue of paragraph 7 of the Discovery Coordination Order. 19-3770 ECF No. 80 ¶
`
`7 (“Any cases that are subsequently related to the Related App Store Actions are to be bound by
`
`these protocols governing the coordination of discovery, as well as the stipulations regarding ESI
`
`and expert discovery.”).
`
`Cragg’s rebuttal report states in paragraph 37: “Professor Hitt’s analysis fails to control
`
`for any variables that may be affecting game play or revenue, as is common practice in economics.
`
`I perform a corrected analysis to identify the substitution and complementarity across devices.
`
`This analysis examines consumers’ playtime and expenditures when they acquire another device,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:20-cv-05640-YGR Document 414 Filed 04/09/21 Page 2 of 5
`
`
`
`properly controlling for other potentially confounding variables.” ECF No. 403-9 (emphasis
`
`added). In his deposition Cragg testified:
`
`Q. You say, at the end here, that short paragraph, that your “analysis
`
`examines consumers’ playtime and expenditures when they acquire another device,
`
`properly controlling for other potentially confounding variables.”
`
`Do you see that?
`
`A. Yes.
`
`Q. Did you run any regression that you reported on consumers’
`
`expenditures?
`
`A. I have not presented those, no.
`
`Q. So you ran the regressions. You refer to them here, but you didn’t
`
`produce them; is that correct?
`
`A. I haven’t produced them in this report.
`
`ECF No. 403-10.
`
`Apple immediately requested those regressions. The following day Epic served an errata
`
`to Cragg’s rebuttal report that removed the words “and expenditures” from paragraph 37. Apple
`
`now moves to compel production of the regressions Cragg ran on consumer expenditures. Epic
`
`says they don’t exist, arguing that this was an error in the rebuttal report and that the witness
`
`misspoke during his deposition after Apple put words in his mouth. Apple alternatively asks to
`
`reopen the deposition to ask Cragg about his prior testimony concerning the regressions on
`
`consumer’ expenditures.
`
`The Court grants Apple’s alternative request. If Epic is correct that Cragg did not run any
`
`regressions on consumers’ expenditures, then his testimony certainly came out wrong. It would
`
`have been ideal if the defending attorney had noticed this mistake in real time, but that would have
`
`required an instantaneous recognition of the error because these were the last questions Apple
`
`asked in the deposition. Ordinarily, the way to make any changes “in form or substance” to
`
`deposition testimony is through a statement of changes. Fed. R. Civ. Proc. 30(e)(1)(B). However,
`
`the real issue is whether Cragg ran regressions on consumers’ expenditures that he hasn’t turned
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:20-cv-05640-YGR Document 414 Filed 04/09/21 Page 3 of 5
`
`
`
`over to Apple. His rebuttal report says he did, and his testimony under oath makes it sound like he
`
`did. The Court dislikes Epic’s suggestion that it can walk this back through errata written by its
`
`attorneys. Cragg needs to clear this up himself.
`
`The Court orders that Apple may redepose Cragg concerning whether he ran regressions of
`
`consumer expenditures, his prior testimony on that subject, and the errata to paragraph 37 of his
`
`rebuttal report. The deposition shall last no longer than 30 minutes.
`
`B.
`
`Presentations and Reports
`
`Apple’s third RFP to all of Epic’s experts asked for:
`
`All DOCUMENTS constituting or reflecting any presentations, REPORTS,
`
`lectures, speeches, talks, or COMMUNICATIONS YOU have given, performed,
`
`delivered, transmitted, or prepared for delivery to any governmental agency,
`
`regulatory body, legislative body (such as either house of the U.S. Congress, any
`
`U.S. state legislature, or the legislature of any other country or political subdivision
`
`thereof) or any committee or subcommittee or member thereof, industry group
`
`(such as the “Coalition for App Fairness”) or any member thereof, or directors or
`
`executives or other employees of any corporation or business (such as Rakuten,
`
`Inc. or Kobo, Inc.) CONCERNING any of the following subject matters:
`
`a. Apple Inc. or Epic Games, Inc. or any affiliates thereof;
`
`b. the LAWSUIT;
`
`c. the APP STORE and/or any other APP MARKETPLACE;
`
`d. the distribution of APPS and/or IN-APP PRODUCTS;
`
`e. the REVIEW of APPS and/or IN-APP PRODUCTS;
`
`f. mobile payment or payment processing systems; and/or
`
`g. MIDDLEWARE.
`
`Epic says that only two of its experts (Evans and Ashley) possess any potentially
`
`responsive materials. Epic offers to produce any responsive, non-privileged materials those
`
`experts have in their possession, custody or control and that are not subject to confidentiality
`
`obligations to any third party. With respect to confidentiality, Epic says that in some cases the
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:20-cv-05640-YGR Document 414 Filed 04/09/21 Page 4 of 5
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`identity of the experts’ client and the very fact of the experts’ retention may itself be confidential.
`
`Epic also says that responsive materials may contain the commercially sensitive business
`
`information of non-parties. For its part, Apple states that it is amenable to narrowly tailored
`
`redactions of produced materials to conceal client identities.
`
`The Court finds that documents responsive to this RFP may be relevant impeachment
`
`evidence. In terms of proportionality, the Court quashes that portion of the RFP that concerns
`
`“documents . . . reflecting any” and “communications” because those could refer to emails, and
`
`every email these experts have sent on the listed subjects is disproportional. Instead, the Court
`
`narrows the RFP to presentations, reports, lectures, speeches, and talks – that is, more formalized
`
`documents that resemble expert opinions.
`
`Further, at the April 9, 2021 hearing, Epic was unable to make any representations about
`
`how many responsive materials the experts may have. This hinders the Court’s proportionality
`
`analysis, and the party claiming burden does have the obligation to substantiate that claim. The
`
`Court’s view is that if there are just a few responsive materials, the experts should produce them.
`
`If there are a lot of responsive materials, the experts should describe them to Apple (for example,
`
`five presentations to antitrust regulators, 150 expert reports in litigation, and 25 private non-
`
`litigation engagements), and Apple should request the key ones and leave the rest (presumably,
`
`Apple would want the five presentations to antitrust regulators). The parties are busy preparing
`
`for trial, and the expert depositions have already happened, so the search for impeachment
`
`evidence should be narrow and focused. The problem is that Epic has presented this dispute as a
`
`black box, providing neither Apple nor the Court any indication of the volume of responsive
`
`materials. If the volume of responsive materials is in fact substantial, then the Court orders Epic
`
`or the experts to describe the responsive materials to Apple in a way that lets Apple make a
`
`meaningful decision about the key documents it wants and to let go of the rest. Epic may
`
`simultaneously move for leave under Civil Local Rule 7-9. The Court does not want the experts
`
`to produce hundreds of presentations on the eve of trial – that’s not worth the effort. But there
`
`was no meaningful meet and confer before this dispute came to the Court. The Court’s hope is
`
`that now that Epic and the experts have learned that their bright line refusal to produce literally
`
`4
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:20-cv-05640-YGR Document 414 Filed 04/09/21 Page 5 of 5
`
`
`
`anything that is confidential in response to this RFP has not prevailed, there can now be a
`
`meaningful meet and confer that will resolve this dispute.
`
`As to confidentiality, Epic’s argument overreaches because presumably every report for a
`
`client, including all expert reports prepared for litigation, is confidential to the client. There is a
`
`protective order in this case, and the Court has ordered non-parties to produce confidential
`
`materials, so the mere status of responsive materials as confidential to a non-party is not the
`
`showstopper that Epic argues. If the identity of the client or the fact of retention is itself part of
`
`what is confidential, the experts can redact client-identifying information.
`
`As to procedure, with respect to non-party confidential information that may be in the
`
`experts’ responsive materials, the Court orders the experts to follow the procedure in paragraph 10
`
`of the protective order (ECF No. 112) and to provide the non-party with this order as well. To
`
`address a potential ambiguity in paragraph 10(c) of the protective order, the only way a non-party
`
`can stop the experts from producing responsive materials to Apple is to file a motion for a
`
`protective order in this Court within 14 days of receiving notice; an objection will not suffice. If
`
`no such motion is filed within 14 days, the experts shall produce the responsive materials to
`
`Apple. A non-party that wishes to avoid motion practice is also free to propose redactions to
`
`Apple. Since Apple is interested in the experts’ opinions and not in the non-party’s business, it
`
`may be relatively straightforward to come up with redactions that satisfy both the non-party and
`
`Apple.
`
`Accordingly, Apple’s motion to compel is granted, as described above.
`
`IT IS SO ORDERED.
`
`
`
`Dated: April 9, 2021
`
`
`
`
`
`THOMAS S. HIXSON
`United States Magistrate Judge
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`