Case 4:20-cv-05640-YGR Document 688 Filed 05/17/21 Page 1 of 5
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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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`TRIAL ORDER NO. 6 RE: EXHIBITS ONLY
`CONTAINING HEARSAY
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`Re: Dkt. Nos. 604, 608
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`AND RELATED COUNTERCLAIM
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`Plaintiff Epic Games, Inc. seeks to admit three exhibits—PX-0065, PX-0067, and PX-
`0744—which are emails sent by third-party app developers to defendant Apple Inc. The face of
`two documents (PX-0065, PX-0067) simply reflect one-page email complaints from a developer
`to Matt Fischer. The other is a three-page email complaint from a developer to Phil Schiller which
`Mr. Schiller then apparently forwards to others at Apple. The Court understands that there are
`approximately 20-30 other such documents.
`While Epic Games used these 3 exhibits with Mr. Matt Fischer during his trial testimony,
`they seek to have the others admitted outside the context of trial testimony under Federal Rule of
`Civil Procedure 32(a)(3). Apple objects that the emails are hearsay under Federal Rule of
`Evidence 802 which Epic Games does not contest. Rather, Epic Games argues that the documents
`should be admitted for the non-hearsay purpose “to prove Apple’s awareness of problems in and
`dissatisfaction with its App Store and its IAP payment system, as described by the consumers and
`developers who use those products.” (See Dkt. No. 604.)
`By way of background, during the course of the trial, the parties themselves have agreed to
`the admission of numerous emails, presumably under the business record exception to the hearsay
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 688 Filed 05/17/21 Page 2 of 5
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`rule.1 Nonetheless, the parties made repeated hearsay objections. Rather than attempt the
`laborious process of ruling on each individual email within a chain of emails, especially during
`trial, the Court ruled that in resolving this case, it would only consider the hearsay portions of
`emails with the proper evidentiary limitations. In this regard, the Court accepted a “standing
`objection” from both sides to the hearsay portions of the emails which did not qualify for
`admission under the business records exception or as a party admission. The distinction matters
`because the business records portions can be admitted for the truth, while the balance cannot
`unless independently verified.
`Where no evidence exists from the supplier of the document or its custodians, “an essential
`link is broken; the assurance of accuracy does not extend to the information itself, and the fact that
`it may be recorded with scrupulous accuracy is of no avail.” Rowland v. Am. Gen. Fin., Inc., 340
`F.3d 187, 195 (4th Cir. 2003) (quoting Fed. R. Evid. 803 adv. committee note); see also United
`States v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982) (similar). Without the necessary foundation to
`support the business exception to the hearsay rule, the exception cannot be established. Thus,
`those portions of the emails or the emails themselves cannot be admitted as business records. 2
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`1 The Court applauds the parties for addressing these issues themselves but notes that it
`was not involved in the process. This particular issue could not be resolved by the parties and thus
`the Court resolves it now. While the Court frequently attempts to honor the parties’ joint
`agreements in a trial, ultimately if an issue cannot be resolved, the Federal Rules control.
`2 In order to qualify as business record, a proponent must establish Rule 803(6) provides:
`A record of an act, event, condition, opinion, or diagnosis if:
`(A) the record was made at or near the time by — or from information transmitted by —
`someone with knowledge;
`(B) the record was kept in the course of a regularly conducted activity of a business,
`organization, occupation, or calling, whether or not for profit;
`(C) making the record was a regular practice of that activity;
`(D) all these conditions are shown by the testimony of the custodian or another qualified
`witness, or by a certification that complies with Rule 902(11) or (12) or with a statute
`permitting certification; and
`(E) the opponent does not show that the source of information or the method or
`circumstances of preparation indicate a lack of trustworthiness.
`See United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983) (“applies only if the person
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 688 Filed 05/17/21 Page 3 of 5
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`Next, as a procedural matter, and as the Court noted on the record, Rule 32(a)(3) permits
`the use of an adverse party’s officer’s deposition “for any purpose,” including, as here, to
`authenticate the documents. Generally, this rule is used to read testimony of an adverse party at
`trial, whether or not the declarant is available. However, the rule does not obviate evidentiary
`objections that could be made if the witness were present and testifying. 8A Charles Alan Wright
`& Arthur R. Miller, Federal Practice and Procedure, Civil § 2143 (3d ed. 2021). Thus, Rule
`32(a)(3) does not automatically provide a mechanism for the admission of hearsay.
`During the course of Mr. Fischer’s testimony, Epic Games solicited the following
`information, which is similar to the questions asked during the relevant deposition testimony
`relating to the other 20-30 documents:3
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`Q:
`Let’s turn then to the next document, Mr. Fischer, PX67.
`***
`Mr. Fischer, is this a document that you are – you are the addressee of?
`Yes, it is.
`And is it a document that you received on or about March 26, 2019?
`Yes
`And did you receive it in connection with your duties and responsibilities at the
`App Store?
`Yes.
`A.
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`On this basis alone, without any questions or context, the document was offered for the “purpose
`of state of mind [of the sender of the email] and the fact that certain statements were made and
`Apple was informed of certain views.” Transcript: 840:17-841:11.
`These exhibits are unlike others admitted in evidence which showed the internal dialogue
`of the parties when complaints were received from third party, non-testifying witnesses. 4 Thus,
`the admitted documents reflected what the recipients understood and how they reacted to the
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`Q.
`A.
`Q.
`A.
`Q.
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`furnishing the information to be recorded is ‘acting routinely, under a duty of accuracy, with
`employer reliance on the result, or in short in the regular course of business”).
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`3 All that Rule 32(a)(3) allows is for the similar testimony to be read during trial or
`admitted as a designation.
`4 Judge LaPorte’s ruling does not appear to contradict. The cited reference indicates that
`the witness himself testified that he had heard of complaints and she allowed evidence regarding
`his state of mind, not that of a third party.
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`Case 4:20-cv-05640-YGR Document 688 Filed 05/17/21 Page 4 of 5
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`hearsay. The three documents here do not. Nor is this a situation where complaints are sent to a
`central designation where they are collected and processed, and can then be admitted potentially as
`business records.
`Instead, Epic Games claims the documents are admissible under Rule 803(3) showing the
`state of mind or motive of the third party. Epic Games expanded its proffer arguing the document
`prove that “users and developers do not use Apple’s app distribution and IAP products because of
`their quality, as Apple asserts, but rather in spite of them.” (Dkt. 604 at 3:8-9.) For this
`proposition, Epic Games cites two district court cases. These cited authorities do not support Epic
`Games’ proposition. See Complete Entm’t Res. LLC v. Live Nation Entm’t, Inc., No. 16-cv-9814,
`2017 WL 6512223, at *4 n.9 (C.D. Cal. Oct. 16, 2017) (in denying defendant’s summary
`judgment motion the court allowed consideration of plaintiff’s own records containing customers’
`statements as evidence of their reason for not using plaintiff’s services); Consol. Credit Agency v.
`Equifax, Inc., No. CV-03-1229, 2005 WL 6218038, at *2 (C.D. Cal. Jan. 26, 2005) (provisionally
`excluding the hearsay evidence for failure to identify the precise statement’s proof of a “state of
`mind” element).5 Even assuming that developers were dissatisfied with Apple’s App Store
`practices, that would not indicate refusal to deal with any party.
`Given the case law, the Court now turns to Epic Games’ anticipated use of the three
`exhibits. In its proposed findings of fact, plaintiff relied on each of the exhibits for the truth of the
`hearsay statements in each document, not for a non-hearsay purpose. (See Dkt. No. 407 ¶ 530(a)
`using PX65 for the existence of malicious apps; ¶ 530(i) using PX67 for same; and ¶ 321 using
`PX-0744 for actual interference with developer’s ability to provide customer service.)
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`5 This case distinguished Lawlor v. Loewe, 235 U.S. 522, 536, 35 S.Ct. 170, 59 L.Ed. 341
`(1915) which only allowed the hearsay because the state of mind of the customers was at
`issue. This binding precedent was not relied upon here by Epic Games. Further, the case
`explicitly indicates that the importance of state of mind being of issue. It reads: “The state of
`mind exception to the hearsay rule requires that: (1) the statement was made contemporaneously
`with the mental state to be proven; (2) circumstances do not suggest a motive for the declarant to
`fabricate or misrepresent his or her thoughts; and (3) the declarant's state of mind is relevant to an
`issue in the case. 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence §
`803.05[2][a] (Joseph M. McLaughlin, ed., 2d ed.2004) (citations omitted).” Id. at *2.
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 688 Filed 05/17/21 Page 5 of 5
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`For the reasons discussed above, PX-0065 and PX-0067 would only be admissible for the
`proposition that they were found in Apple’s files. See White v. Ford Motor Co., 312 F.3d 998,
`1009 (9th Cir. 2002) (explaining additional evidence which would be required to use hearsay for
`direct evidence of proof). The third party email are not imbedded in an email chain nor is there
`any context. Thus, without more, the limited value does not warrant admission of a hearsay
`document. Theoretically, they may have been admissible to show notice but Epic Games chose
`not to question Apple witnesses on that topic, at least not during trial or in what has been provided
`to the Court by way of deposition transcripts. Just because an email is found in a recipient’s box
`does not mean that it was reviewed, much less considered.
`By contrast, PX-0744 indicates that Mr. Schiller reviewed and forwarded the concerns
`contained therein. The Court reasonably believes that others to whom he sent the email would
`have reviewed the email sent by Mr. Schiller. This factual distinction changes the calculus. PX-
`0744 is admissible for notice of the contents in the email. Depending on its use at trial, it may be
`admissible for more but not at this juncture.
`Accordingly, on the current state of the record, Epic Games’ request to admit PX-0065 and
`PX-0067 is DENIED and GRANTED as to PX-0744 for the limited purpose of notice.
`IT IS SO ORDERED.
`Dated:
`May 17, 2021
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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