Case 4:20-cv-05640-YGR Document 512 Filed 04/28/21 Page 1 of 2
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`EPIC GAMES, INC.,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Case No. 20-cv-05640-YGR (TSH)
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`DISCOVERY ORDER
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`Re: Dkt. No. 493
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`Defendant.
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`The parties have filed a joint discovery letter brief concerning Apple’s clawback of three
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`documents. ECF No. 493. The Court has reviewed the documents in camera, considered Apple’s
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`declarations and deposition testimony1 in support of its claim of privilege, ECF Nos. 499, 501, &
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`503, and considered Epic Games’ response, ECF No. 511. The Court finds that Apple has failed
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`to establish that these documents are privileged.
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`APL-EG_09689923 is an email conversation between non-attorneys Phillip Schiller and
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`Carson Oliver at Apple, in which Apple attorney Doug Vetter is included, about a proposed idea
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`for the App Store, to which Oliver later added non-attorney Eric Gray. Apple says that Schiller
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`sent the email to Vetter “so that he could provide legal advice regarding the risks” involved in the
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`proposal, and Schiller says the same in his declaration. ECF No. 501. Apple and Schiller also say
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`that Schiller discussed the substance of what’s in the email chain with Vetter and received legal
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`advice from him during contemporaneous meetings and telephone conversations.
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`Apple and Schiller have mischaracterized the email thread. It is entirely a business
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`discussion, and nothing in it sounds remotely like a request for Vetter’s legal advice, or for Vetter
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`to say anything at all. This is a clear example of business people including a lawyer in an email
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`chain in the incorrect belief that doing so makes the email privileged. It does not. It may be true
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`that Schiller separately discussed the substance of the email chain with Vetter, and if so, those
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`1 The deposition testimony provides general background concerning Apple’s small business
`program but is not directly relevant to Apple’s claim of privilege of the three documents at issue.
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`United States District Court
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`Case 4:20-cv-05640-YGR Document 512 Filed 04/28/21 Page 2 of 2
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`conversations would be privileged. But this email thread is not privileged.
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`APL-EG_09690033 is similar. It is an email conversation between non-attorneys. Apple
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`attorney Kate Adams is included in the thread, but notwithstanding what Schiller says in his
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`declaration, nothing in this email exchange is a request for Adams’ legal advice. It is clear that
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`non-attorneys Schiller and Luca Maestri expected answers from each other. As with the previous
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`document, Apple and Schiller say that Schiller received legal advice from Adams during
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`contemporaneous meetings and phone calls concerning the subject matter of the email thread.
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`Those conversations would be privileged. However, this email chain is not. This is again an
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`example of adding a lawyer to an email thread in an attempt to create a non-existent privilege.
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`Finally, Apple says that two attorneys “reviewed and revised” the draft presentation in
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`APPSTORE_10170219, which therefore “reflects the legal advice that they provided to Apple
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`business people in connection” with the App Store program described in it. See also ECF No. 499
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`(Sean Cameron’s declaration attesting to that). Lots of documents are reviewed and revised by
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`attorneys and therefore reflect legal advice they provided to business people: employee
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`handbooks, contracts companies enter into, sexual harassment policies, workplace safety
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`guidelines, employee benefit plan descriptions, and so on. The attorney-client privilege protects
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`the communications between attorney and client involved in the drafting of those documents, such
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`as emails with redlined documents reflecting legal advice or oral conversations giving legal
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`advice. But that’s it. Apple does not contend that APPSTORE_10170219 is itself a
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`communication between attorney and client (it obviously is not), or even that the reader could
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`glean from this document what the legal advice or edits were (you can’t), so it is not privileged.
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`Accordingly, Apple’s claim of privilege over these three documents is overruled.2
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`IT IS SO ORDERED.
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`Dated: April 28, 2021
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`THOMAS S. HIXSON
`United States Magistrate Judge
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`2 Epic also argues that if the documents are privileged, Apple waived the privilege. Given the
`Court’s finding that the documents are not privileged, it need not address the waiver issue.
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