Case 4:20-cv-05640-YGR Document 468 Filed 04/21/21 Page 1 of 5
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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. 4
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`Dkt. Nos. 439, 441, 452, 457, 465
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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 Wednesday, April 20, 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 which also includes some post-conference updates.
`1. PUBLIC ACCESS
`The Court is in receipt of two motions for access to the trial: one from the Class Plaintiffs
`in the related actions, 4:11-cv-06714-YGR and 4:19-cv-03074-YGR (Dkt. No. 439), and one from
`The Reporters Committee for Freedom of the Press and 18 Media Organizations (“Media”) (Dkt.
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 468 Filed 04/21/21 Page 2 of 5
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`No. 457). As explained during the conference, the Court is not allowed to live stream or provide
`live video access to the parties or to the public for live testimony such as trials. For health and
`public safety issues, the Zoom platform will be used to accommodate the one or two witnesses
`who may have to testify remotely and to provide audio access to the public and any
`parties/attorneys who are not in the courtroom due to in-person limits. Thus, the Class Plaintiffs’
`claims that the parties will have video access was not properly informed.
`The Court has been working on ways to provide as much access as is reasonably possible
`understanding the interest in the proceedings. However, for public health and safety reasons, the
`Northern District has instituted protocols in all courthouses which control proceedings open to the
`public, and all are being considered in totality.
`At this juncture, the Court can ORDER the following:
`First, the Court GRANTS the requests of the Media and the Class Plaintiffs, and allocates
`two seats in the courtroom to be used by two pre-authorized pool reporters and one seat by the
`attorneys for the Class Plaintiffs. The Media shall meet and confer amongst themselves to
`determine the manner in which the pool reporters shall be selected and shall provide the Court
`with its proposed protocol by Friday, April 23, 2021. Similarly, the attorneys for the Class
`Plaintiffs shall meet and confer amongst themselves to determine the manner in which the pool
`reporters shall be selected and shall provide the Court with its proposed protocol by Friday, April
`23, 2021.
`Second, the Court orders a specific telephone line for media specifically and for the
`attorneys for the Class Plaintiffs to ensure that they have access to the audio. To access this
`telephone line, requests should be submitted through the following online form by Thursday, April
`29, 2021: https://www.surveymonkey.com/r/Epic-Apple which link shall be publicized on the
`Court’s website.
`Third, the Court authorizes one or more high volume telephone lines for the public at large.
`These telephone lines will be publicized in advance of the trial on the Court’s website at either
`https://www.cand.uscourts.gov/judges/gonzalez-rogers-yvonne-ygr/ or
`https://cand.uscourts.gov/epic-games-inc-v-apple-inc/.
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`Case 4:20-cv-05640-YGR Document 468 Filed 04/21/21 Page 3 of 5
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`Fourth, pursuant to the parties’ recommendation (Dkt. No. 459), the parties shall jointly
`arrange and maintain a repository at a third-party file sharing service (e.g., Box) for admitted trial
`exhibits. The repository shall be publicly accessible through a link that may be published by the
`Court and distributed by the parties. After an exhibit is admitted into the record, the party
`introducing such exhibit shall upload the exhibit to the repository, and each party shall, after the
`close of trial each day, upload all exhibits admitted on or demonstratives used during that trial day
`by no later than 5:00 p.m. The parties may redact from the exhibits any specific information that
`has been sealed by the Court and any sensitive personal information that a party or witness has
`requested to redact (e.g., home addresses or telephone numbers). Any concerns with respect to the
`latter may be brought to the attention of the Court. By no later than Wednesday, April 28, 2021,
`the parties shall provide the Court with the link so that it can be prepared to publish the same.
`Finally, the parties and their attorneys will be allowed to access the audio of the trial
`through the Zoom link so that they can hear any sealed proceedings and not encumber one of the
`telephone lines.
`2. STIPULATIONS
`The Court accepts the following stipulations of the parties:
`a. Epic Games shall present an opening statement followed by Apple.
`b. To the extent that the parties play a witness’s deposition designations at trial, all
`portions of the testimony designated by any party will be played at the same
`time, including the parties’ affirmative designations, counter-designations, and
`counters to counter-designations. All designated testimony will be introduced in
`the sequence in which the testimony was originally given.
`c. Pursuant to Federal Rule of Evidence 615, each fact witness is excluded from
`the courtroom until each is excused. This order shall apply to any fact witness
`listed on either party’s witness list until the witness has completed giving his or
`her testimony during a party’s case-in-chief and is excused by the Court, unless
`otherwise ordered. While a fact witness is excluded from the courtroom, the
`witness shall be prohibited from reading any portion of any trial transcript or
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`any other material documenting any witness’s testimony, and an excluded
`witness also shall not remotely listen to any trial proceedings (including
`through the Zoom platform or by any other means). However, this exclusion
`order shall not apply to expert witnesses or to the officer or employee who will
`serve as the designated representative of the corporate party. The Court
`understands those individuals to be Timothy Sweeney for Epic Games and
`Philip Schiller for Apple.
`d. The Parties shall file witness lists with updated “will” and “may” call status on
`April 26, 2021.
`e. The parties have submitted a Stipulation and Proposed Order Concerning
`Objections to Deposition Testimony to address the hiring retired Magistrate
`Judge Elizabeth LaPorte to resolve their designation disputes. (Dkt. No. 465.)
`The stipulation is approved and the Motion to Appoint Special Master is
`withdrawn. (Dkt. No. 441.)
`3. DEPOSITION DESIGNATIONS
`The parties may substitute trial time for additional deposition designations during the
`course of the trial beyond the 4-hour limit which the Court agreed to read in advance.
`The parties may jointly stipulate to the admission of exhibits that are referenced in the
`deposition designations.
`4. EXPERTS
`In terms of presenting expert testimony, back-to-back, the Court will allow that testimony
`to focus on the economic experts, namely, David Evans, Susan Athey, and Michael Cragg for Epic
`Games and Richard Schmalensee, Lorin Hitt, and Francine LaFontaine for Apple.
`5. UPDATING PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
`The Court will provide another 24 hours for the updating of the proposed findings of fact
`and conclusions of law. These will be due 48 hours from the close of evidence for the day and
`shall be sent to the chambers email.
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`Case 4:20-cv-05640-YGR Document 468 Filed 04/21/21 Page 5 of 5
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`6. ADDITIONAL DOCUMENTS
`The parties have agreed to provide the Court with a list of terms and acronyms. The Court
`would also appreciate an editable version of the parties’ most current version of the witness lists.
`This Order terminates Docket Numbers 439, 441, 452, 457, and 465.
`IT IS SO ORDERED.
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`Dated: April 21, 2021
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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