Case 4:20-cv-05640-YGR Document 548 Filed 04/30/21 Page 1 of 3
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`EPIC GAMES, INC.,
`Plaintiff,
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`vs.
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`APPLE INC.,
`Defendant.
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`Case No. 4:20-cv-05640-YGR
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`PRETRIAL ORDER NO. 8 RE:
`ADMINISTRATIVE MOTION TO SEAL THE
`COURTROOM DURING PRESENTATION OF
`CERTAIN CONFIDENTIAL MATERIAL AT
`TRIAL
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`Dkt. No. 515
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`AND RELATED COUNTERCLAIM
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`TO ALL PARTIES AND COUNSEL OF RECORD:
`The Court is in receipt of a Motion to Seal the Courtroom During Presentation of Certain
`Confidential Material at Trial, filed by Defendant Apple Inc. (Dkt. No. 515.) Apple requests that
`the courtroom be closed during discussions of its App Store’s profitability, as analyzed by Epic
`Games’ accounting expert, Ned S. Barnes. In addition to closing the courtroom for the entirety of
`Mr. Barnes’ testimony, Apple requests that the courtroom be closed for any fact or expert witness
`testimony “addressing the subject matter of Mr. Barnes’ opinions or the documents on which he
`relied” or “adopting or responding to Mr. Barnes’ opinions.” Apple also seeks to prevent Epic
`Games from mentioning the topic in its opening statements or in demonstratives.
`Apple seeks to justify these restrictions under a novel theory that investors might
`misinterpret the financial analysis and grow “confused.” While Apple is correct that non-public
`financial information is frequently subject to sealing, courts do so not because the information
`may confuse investors, but because it can create competitive harm. See Apple Inc. v. Samsung
`Elecs. Co., Ltd., 727 F.3d 1214, 1225-26 (Fed. Cir. 2013).
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`Northern District of California
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`Case 4:20-cv-05640-YGR Document 548 Filed 04/30/21 Page 2 of 3
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`The question of whether, and if so, to what extent, supra-competitive profits exists in a
`relevant market is evidence of market power. See Bailey v. Allgas, Inc., 284 F.3d 1237, 1252
`(11th Cir. 2002). Such information is highly probative in an antitrust case. The Court knows no
`case where an expert’s profitability analysis has been sealed where the expert’s opinion reflects
`their own independent analysis.1 While the underlying information is sealable, the conclusion is
`not.
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`To the extent that Apple disagrees with the analysis, it will have ample opportunity to
`cross-examine Mr. Barnes and explain why the analysis is wrong. As is set forth herein, to the
`extent that properly sealed financial information is necessary to cross-examine an expert, the Court
`will consider sealing the courtroom for those short periods of time. The Court will discuss other
`alternatives which may exist to address this issue. The request for a blanket sealing as to Mr.
`Barnes’ testimony is therefore DENIED.
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`With respect to the written direct testimony of Mr. Barnes, the Court rules as follows on
`Apple’s sealing request:
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`PARAGRAPH(S)
`2, 4
`5
`Figure on Page 3
`6-7
`8
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`Figure on Page 5
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`RULING
`DENIED
`GRANTED
`GRANTED
`DENIED
`GRANTED IN PART AND DENIED IN PART: The
`last sentence is sealed; the earlier sentences
`shall be unredacted.
`GRANTED
`GRANTED IN PART AND DENIED IN PART: The
`second sentence is sealed; the other sentences
`shall be unredacted.
`GRANTED IN PART AND DENIED IN PART: The
`sentences following the first sentence are
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`1 Apple’s cited cases are inapposite. In the closest case, a party sought to seal a proprietary
`drug study that showed a potential link between the drug and pancreatic cancer. In re Incretin-
`Based Therapies Prod. Liab. Litig., No. 13-MD-2452, 2021 WL 873290, at *3 (S.D. Cal. Mar. 9,
`2021). The study was preliminary, and, notably, the court had already considered and rejected it
`as insufficient to show a causal link. Id.
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`Case 4:20-cv-05640-YGR Document 548 Filed 04/30/21 Page 3 of 3
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`Figure on Page 7
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`Figure on Page 8
`14-15 (including Footnote 1)
`16 and Figure on Page 9
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`Figure on Page 10
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`Figure on Page 11
`20-21, 25
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`This Order terminates Docket Number 515.
`IT IS SO ORDERED.
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`Dated: April 30, 2021
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`sealed. The first sentence shall be unredacted.
`GRANTED IN PART AND DENIED IN PART: The
`last sentence is sealed; the other sentences
`shall be unredacted.
`GRANTED IN PART AND DENIED IN PART: The
`entirety of this paragraph is sealed except for
`the first, second, and fifth sentences, which
`shall be unredacted.
`GRANTED IN PART AND DENIED IN PART: The
`figure is sealed; the redaction in the caption
`shall be unredacted.
`DENIED
`GRANTED
`DENIED
`GRANTED
`DENIED
`GRANTED IN PART AND DENIED IN PART: The
`third sentence is sealed; the other sentences
`shall be unredacted.
`GRANTED
`GRANTED IN PART AND DENIED IN PART: The
`last sentence is sealed; the other sentences
`shall be unredacted.
`GRANTED
`GRANTED
`GRANTED IN PART AND DENIED IN PART: The
`first redacted sentence is sealed; the second
`redaction shall be unredacted.
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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