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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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`ORDER DENYING DEFENDANT APPLE
`INC.’S MOTION FOR PRETRIAL SANCTIONS
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`Dkt. No. 419
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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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`
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`v.
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`EPIC GAMES, INC.,
` Counter-Defendant.
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`Before the Court is defendant and counterclaimant Apple Inc.’s motion for pretrial
`sanctions against plaintiff and counter-defendant Epic Games, Inc. (Dkt. No. 419.) Epic Games
`filed an opposition to the motion on an expedited schedule. (Dkt. No. 431.)1 Having considered
`the parties’ briefing and the record in this matter, Apple’s motion for pretrial sanctions is DENIED.
`The Court expedites the issuance of this Order due to the impending bench trial
`commencing May 3, 2021, and provides only a brief summary of the parties’ positions. Thus:
`Apple avers that under Federal Rules of Civil Procedure 26 and 37, the Court should
`exclude three third-party witnesses who will be testifying for Epic Games—namely, Vivek
`Sharma of Facebook Inc., Lori Wright of Microsoft Corporation, and Benjamin Simon of Yoga
`Buddhi Co.2 Specifically, Apple asserts that Epic Games’ Rule 26(a) disclosures were deficient
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`1 The Court granted the parties’ stipulated expedited schedule, that permitted no reply
`brief from Apple, but modified the proposed order to indicate that the motion would be decided on
`the papers unless oral argument was necessary. (See Dkt. No. 418.) Having reviewed the parties’
`briefing, the Court determines that oral argument is not necessary for the resolution of this motion.
`2 As discussed by Apple in its motion, a fourth individual, Shelley Gould of Neuro-Fin
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`Northern District of California
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`Case 4:20-cv-05640-YGR Document 437 Filed 04/12/21 Page 2 of 4
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`because Epic Games did not disclose these individual witnesses, instead listing the general
`employing entities (e.g. Facebook, Microsoft, and Yoga Buddhi). Apple acknowledges the
`existence of a related agreement amongst the parties, but contends that the agreement related “only
`to witnesses who have ‘not already been deposed,’ not witnesses who were not previously
`disclosed.” (Dkt. No. 419 at 12 (emphasis in original).) Apple further highlights that Epic
`Games’ failure to properly disclose the three individual witnesses under Rule 26 is not harmless
`under the relevant authority. Finally, Apple also asserts in this motion and in an earlier motion
`before Magistrate Judge Thomas Hixson that Epic Games has been coordinating with these third-
`party witnesses in an effort to obstruct Apple from obtaining additional documents for these
`specific identified individuals.
`Epic Games refutes Apple’s arguments. Epic Games categorically rejects that it has been
`coordinating with the third-party witnesses above to prevent Apple from obtaining additional
`documents. Moreover, Epic Games asserts that it promptly disclosed the above individuals when
`it first learned of and confirmed their identifies, that its disclosures were sufficient under Rule 26,
`and that the parties’ agreement allowed such general disclosure for a entities and organizations.
`Epic Games further highlights that the appropriate sanction would be not to exclude the witnesses,
`but to depose these individuals—which Apple is already scheduled to do. Finally, Epic Games
`emphasizes that, should the Court find a Rule 26 violation, such a violation was harmless where
`the parties’ had an agreement in place, and where Apple did not move with more urgency when it
`first learned of these three individuals who would be testifying on behalf of their employing
`entities. Epic Games’ otherwise characterizes Apple’s attempt to prevent these individuals from
`testifying is a ploy to exclude what it contends is highly relevant evidence.
`Having reviewed the record, and the parties’ briefing, the Court concludes that there has
`been no violation of the Rule 26 disclosure requirements. Epic Games promptly disclosed the
`individual identities of Mr. Sharma, Ms. Wright, and Mr. Simon when Epic Games learned that
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`Inc. d/b/a SmartStops has agreed to comply with Apple’s request to produce additional documents
`in advance of Gould’s deposition.
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`2
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 437 Filed 04/12/21 Page 3 of 4
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`these three individuals were confirmed to be appearing at the bench trial in this action. The Court
`cannot determine how there could be a Rule 26 violation in this instance when Epic Games
`promptly disclosed the identities of these third-party individual witnesses to Apple.3 Moreover, as
`Epic Games correctly notes, a sanction imposed under Rule 37 for Rule 26 violations are remedied
`by providing the party an opportunity for a deposition, which Apple is already scheduled to
`undertake for these witnesses. (See Dkt. No. 431 at 26 (citing Jang Sool Kwon v. Singapore
`Airlines, No. C02–2590 BZ, 2003 WL 25686535, at *1 (N.D. Cal. Nov. 7, 2003) (denying motion
`in limine for Rule 37 sanctions seeking to preclude testimony of witnesses as long as plaintiff
`makes witnesses available for deposition); Ortiz v. CVS Caremark Corp., No. C-12-05859-EDL,
`2013 WL 6236743, at *8 n.1 (N.D. Cal. Dec. 2, 2013) (holding Rule 37 sanctions not appropriate
`because “any failure to disclose was harmless because Plaintiffs were able to depose nine of the
`declarants, and these declarations alone support Defendants’ arguments”); Maionchi v. Union Pac.
`Corp., No. C 03-0647 JF PVT, 2007 WL 2022027, at *1 (N.D. Cal. July 9, 2007) (holding that
`defendants’ delay in disclosing expert and report did not warrant Rule 37 sanctions because it did
`not cause harm to plaintiffs because “[p]laintiffs may still depose” the witness); Bookhamer v.
`Sunbeam Prod. Inc., No. C 09-06027 ECM, 2012 WL 6000230, at *3 (N.D. Cal. Nov. 30, 2012)
`(finding that even though failure to disclose was not justified and did cause harm, the harm could
`be remedied by allowing defendants to depose the seven non-retained experts if they chose to do
`so)).) Thus, the Court finds no violation of Rule 26 by Epic Games.
`All of the above said, however, the Court reiterates the following to the parties as well as
`the above third-party witnesses: the Court has repeatedly instructed that trial is not an opportunity
`for surprises. Instead, it is an opportunity for the Court to measuredly consider and weigh the
`relevant evidence to reach a final determination. This dispute presents no exception. To the
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`3 The Court further notes that while the parties’ understanding of the agreement is
`muddled, Epic Games was otherwise substantially justified in relying on the agreement and
`promptly providing the individual names of the third-party witnesses when it learned of and
`confirmed their appearances. See MediaTek Inc. v. Freescale Semiconductor, Inc., No. 11-cv-
`5341-YGR, 2014 WL 2854773, at *5 n.2 (N.D. Cal. June 20, 2014) (explaining that exclusion is
`not warranted “when a failure to disclose is substantially justified”).
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`3
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 437 Filed 04/12/21 Page 4 of 4
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`extent that examination by the Court or the parties indicates that the above testifying witnesses
`(Mr. Sharma, Ms. Wright, and Mr. Simon4) have failed to make a sufficient production of relevant
`documents to both parties, the Court will weigh such a failure against the credibility of the
`testifying witness. In other words, the failure to produce relevant documents, including
`documents relevant to the individual testifying witness, to both parties (here, to Apple) will be
`factored into the individual witness’ credibility, and, if necessary, may warrant the striking of
`testimony. To the extent that the third-party witnesses are concerned with an adverse credibility
`determination at the bench trial, they should ensure that they adequately and timely5 produce such
`documents in advance of their depositions.
`Accordingly, the motion for pretrial sanctions is DENIED.
`This Order terminates Docket Number 419.
`IT IS SO ORDERED.
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`Dated: April 12, 2021
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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`4 The Court provides a specific comment with regard to Mr. Simon and Yoga Buddhi
`based on the record and the parties’ briefing. It is hard for the Court to determine what, if any,
`documents are left for Mr. Simon of Yoga Buddhi to produce where Yoga Buddhi has previously
`already produced documents to Apple in this litigation. Unlike either Microsoft or Facebook,
`Yoga Buddhi is a company of five people, and, per Epic Games’ representations to the Court,
`every single one of the documents already produced either involves Mr. Simon or relates to a part
`of an operation that Mr. Simon controls. (See also Dkt. No. 436 (letter brief from Yoga Buddhi
`Co.).) Apple could have already anticipated and then requested relevant documents for Mr. Simon
`given the small size of Yoga Buddhi, and it is unclear what further documents Apple needs at this
`point that it could not have previously and timely requested. This contrasts to Mr. Sharma and
`Ms. Wright, where Facebook’s and Microsoft’s prior productions to Apple may not have produced
`documents, if any, relevant to these specific individuals. The Court makes no express
`determination at this juncture as to the appropriateness of the additional document requests.
`5 At least three (3) days prior to the date of the deposition.
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`Northern District of California
`United States District Court
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