Case 4:20-cv-05640-YGR Document 715 Filed 05/20/21 Page 1 of 8
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`EPIC GAMES, INC.,
`Plaintiff,
`
`vs.
`
`APPLE INC.,
`Defendant.
`
`AND RELATED COUNTERCLAIM
`
`TO ALL PARTIES AND COUNSEL OF RECORD:
`
`
`
`Case No. 4:20-cv-05640-YGR
`
`TRIAL ORDER NO. 7 RE: (1) PENDING
`STIPULATIONS; (2) BRIEFING SCHEDULE
`RE: MOTION FOR JUDGMENT ON PARTIAL
`FINDINGS; AND (3) WEEK 2 SEALING
`REQUESTS
`
`Re: Dkt. Nos. 641, 649, 659, 660, 663, 665,
`682, 692, 705, 707
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`United States District Court
`
`The Court issues this Order with respect to several items on the docket:
`1. Pending Stipulations
`Having reviewed the pending stipulations on the docket, and for the good cause shown
`
`therein, the Court GRANTS the following pending stipulations:
` Dkt. Nos. 641, 682
`o The Clerk of the Court shall admit into evidence the exhibits identified in
`these stipulations. All exhibits shall be posted to the public box except for
`
`those in which the parties have identified any potential sealing issue. Those
`
`documents for which the Court has issued a definitive ruling (i.e. a ruling
`
`other than deferred) shall be placed into the public box in conformance with
`
`the Court’s Orders (or shall be appropriately withheld in the event that the
`
`entirety of the document is appropriately sealed).
`2. Briefing Schedule Re: Motion for Judgment on Partial Findings (Dkt. No. 707)
`The Court sets the following briefing schedule on the motion for judgment on partial
`
`findings: plaintiff Epic Games, Inc.’s response shall be filed on or before Sunday, May 23, 2021
`
`at 12:00 PM PDT. Defendant Apple Inc. may file a reply (optional) on or before Wednesday,
`
`May 26, 2021.
`
`

`

`Case 4:20-cv-05640-YGR Document 715 Filed 05/20/21 Page 2 of 8
`
`
`
`3. Week 2 Sealing Requests
`The Court has received several new requests to seal from both the parties and third parties.
`
`As the Court explained in Pretrial Orders 7 and 9, as well as Trial Orders 1 and 5:
`
`Local Rule 79-5 provides that documents, or portions thereof, may be
`sealed if a party “establishes that the documents, or portions thereof,
`are privileged, protectable as a trade secret, or otherwise entitled to
`protection under the law.” Civ. L. R. 79-5(b). In general, a “strong
`presumption in favor of access” to court records exists, especially
`during trial. At times, compelling reasons which are “sufficient to
`outweigh the public’s interest in disclosure and justify sealing court
`records exist when such ‘court files might have become a vehicle for
`improper purposes,’ such as the use of records to . . . release trade
`secrets.” Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172,
`1178 (9th Cir. 2006) (quoting Nixon v. WarnerCommc’ns, Inc., 435
`U.S. 589, 598 (1978) (“[C]ourts have refused to permit their files to
`serve as . . . sources of business information that might harm a
`litigant’s competitive standing”).
`
`Here, and importantly, the gravamen of this case is business
`competition, including whether competition exists; if so, among
`which players; and how such competition influences the market. The
`Court understands that the standard is more lenient when the
`information concerns third parties, but this is not dispositive. The
`third-party information must be balanced with the Court’s ultimate
`resolution of the instant dispute which should be transparent in its
`analysis. Accordingly, the Court makes the following findings based
`upon the current state of the record:1
`
`(Dkt. No. 547 at 1-2; Dkt. No. 564 at 1-2; Dkt. No. 594 at 2-3; Dkt. No. 643 at 2-3.)2 With this
`
`
`1 Litigants are advised that if the Court ultimately decides that certain information is
`important to disclose which has been sealed, it will provide an opportunity for the moving party to
`respond.
`
`2 The Court similarly stated in Trial Order No. 3:
`
`Trial records enjoy a “strong presumption in favor of access” that can
`only be overcome by “compelling reasons supported by specific
`factual findings that outweigh the general history of access and the
`public policies favoring disclosure.” Kamakana v. City & Cty. of
`Honolulu, 447 F.3d 1172, 1178- 79 (9th Cir. 2006). “In general,
`‘compelling reasons’ sufficient to outweigh the public’s interest in
`disclosure and justify sealing court records exist when such ‘court
`files might have become a vehicle for improper purposes,’ such as the
`use of records to gratify private spite, promote public scandal,
`circulate libelous statements, or release trade secrets.” Id. at 1179
`(quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)).
`
`(Dkt. No. 613 at 1.)
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`United States District Court
`
`

`

`Case 4:20-cv-05640-YGR Document 715 Filed 05/20/21 Page 3 of 8
`
`
`
`prior framework in mind, the Court addresses the below administrative motions to seal.
`a. Spotify USA Inc.’s Administrative Motions to Seal (Dkt. No. 649, 692)
`The Court GRANTS non-party Spotify USA Inc.’s administrative motions to seal portions
`
`of the document with bates numbers SPOT-EPIC-00000925 and SPOT-EPIC-00001023 (Dkt. No.
`
`649), and of the document with bates number SPOT-EPIC-00001047. (Dkt. No. 692.) These
`
`documents reflect highly confidential information including recent internal user data, the release
`
`of which would competitively harm Spotify.
`b. Apple’s Administrative Motion to Seal (Week 2) (Dkt. No. 659)
`The motion is GRANTED as to all documents except for:
` PX-602
`o 602.27: the notes shall be unredacted except that the words after “WW
`games business” shall be redacted and sealed up until the comma. The
`
`remainder of the sentence after the comma and the notes shall be
`
`unredacted. The remainder of the proposed redactions on this page is
`
`appropriately sealed.
`o 602.32: the first bullet point shall be unredacted in the notes section. The
`remainder of the proposed redactions on this page are appropriately sealed.
`o The remainder of the proposed redactions in this document is appropriately
`sealed.
` PX-608
`o 608.13: the slide shall be unredacted except that the percentage may remain
`redacted and sealed.
`o The remainder of the proposed redactions in this document is appropriately
`sealed.
` PX-2176
`o 2176.48: this page shall be unredacted.
`o 2176.64: this page shall be unredacted.
`o 2176.73: this slide shall be unredacted except that the monetary amounts
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`United States District Court
`
`

`

`Case 4:20-cv-05640-YGR Document 715 Filed 05/20/21 Page 4 of 8
`
`
`
`may be redacted and sealed. The categories in the notes shall be
`
`unredacted, but the remainder of the notes section is appropriately sealed
`
`(including the text following these categories after the “- ”).
`o 2176.74: this slide shall be unredacted except that the monetary amounts
`may be redacted and sealed. The categories in the notes shall be
`
`unredacted, but the remainder of the notes section is appropriately sealed
`
`(including the text following these categories after the “- ”).
`o 2176.176: this slide shall be unredacted. The first four bullet points in the
`notes section shall be unredacted. The line “Spend Segment” shall be
`
`unredacted, along with the categories of the bullet points below that line.
`
`The percentages and the amounts that follow these categories shall be
`
`redacted and sealed. The final note at the bottom shall be unredacted.
`o 2176.177: this page shall be unredacted.
`o 2176.178: this page shall be unredacted.
`o 2176.180: the title of the slide shall be unredacted. The remainder of the
`proposed redactions on this page is appropriately sealed.
`o 2176.181: this page shall be unredacted.
`o 2176.192: this page shall be unredacted.
`o The remainder of the proposed redactions in this document is appropriately
`sealed.
` DX-4800
`o Given the testimony and other unsealed documents, this page shall be
`unredacted except that the Samsung Electronics Co. Ltd. and Gearbox
`
`Software LLC commission rates shall be redacted and sealed.
` DX-4094
`o 4094.007: The first two sentences in the notes shall be unredacted on this
`slide. The remainder on this slide shall be sealed.
`o The remainder of the proposed redactions in this document is appropriately
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`United States District Court
`
`

`

`Case 4:20-cv-05640-YGR Document 715 Filed 05/20/21 Page 5 of 8
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`sealed.
` DX-4170
`o This document is sealed. However, the parties are on notice that the Court
`may cite to certain statistics contained within the document in any final
`
`order on the merits in this action.
`c. Epic Games’ Administrative Motion to Seal (Week 2) (Dkt. No. 660)
`The motion is GRANTED as to all documents except for:
` DX-4800
`o See above in the Apple section for the appropriate redactions.
` DX-5549 and DX-5550
`o The Court has reviewed Spotify’s declaration in support of the sealing of
`certain information in these documents. (See Dkt. Nos. 680 (declaration),
`
`681 (proposed redactions).) The Court approves of Spotify’s proposed
`
`redactions of these documents, which are narrowly tailored.
`d. Sony Interactive Entertainment LLC’s Administrative Motion to Seal (Dkt. No. 663)
`
`Having reviewed Sony Interactive Entertainment LLC’s renewed administrative motion to
`
`seal, the Court will follow the example set by Judge Lucy Koh in Apple, Inc. v. Samsung Elecs.
`
`Co., No. 11-CV-01846-LHK, 2012 WL 3283478, at *13 (N.D. Cal. Aug. 9, 2012), rev’d and
`
`remanded on other grounds, 727 F.3d 1214 (Fed. Cir. 2013). The Court considers the extent to
`
`which the inadvertently disclosed documents have been publicized, weighs the public’s right of
`
`access to these documents considering the merits of this action, and balances these considerations
`
`against any potential competitive harm to Sony. The motion is therefore GRANTED as follows:
` DX-3660 (Ex. A)
`o Although this agreement was identified as one document that was
`inadvertently disclosed by the parties, the Court agrees to limited proposed
`
`redactions. Thus, the proposed redactions are sealed except as follows:
` Section 1.2: The sentence defining “Competitive Platform” shall be
`
`unredacted. The remainder in this section is otherwise sealed.
`5
`
`Northern District of California
`United States District Court
`
`

`

`Case 4:20-cv-05640-YGR Document 715 Filed 05/20/21 Page 6 of 8
`
`
`
` The remainder of the document is otherwise appropriately
`
`unredacted.
` DX-3865 (Ex. B)
`o The section titled “Gift card economics” shall be sealed. The remainder of
`this email shall be unredacted.
` DX-3988 (Ex. C) / DX-4519 (Ex. F)
`o Sony admits that DX-3988 is a duplicate document of DX-4519, which was
`inadvertently disclosed. The Court agrees to limited proposed redactions,
`
`which request sealing of specialized terms in an agreement between Epic
`
`Games and Sony.
` DX-4425 (Ex. D) / DX-3582 (Ex. J)
`o Sony admits that DX-4425 is substantively similar to DX-3582, which was
`inadvertently disclosed. The Court agrees to limited proposed redactions,
`
`which request sealing of specialized terms in an agreement between Epic
`
`Games and Sony.
` DX-4493 (Ex. E)
`o Although this agreement was identified as one document that was
`inadvertently disclosed by the parties, the Court agrees to the limited
`
`proposed redactions by Sony.
` DX-3094 (Ex. G)
`o This request is DENIED. First, portions of this document remain readily
`accessible to the public.3 Second, as the Court also reasoned in Trial Order
`
`1, the Court will not seal general terms applicable to all developers who
`
`wish to sell on a gaming platform. (Dkt. No. 594 at 5 (rejecting Nintendo’s
`
`request, and noting the prior rejections of Valve and Sony’s similar
`
`
`3 See https://www.theverge.com/2021/5/3/22417560/sony-ps4-cross-play-confidential-
`documents-epic-games-agreements.
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`United States District Court
`
`

`

`Case 4:20-cv-05640-YGR Document 715 Filed 05/20/21 Page 7 of 8
`
`
`
`requests).) The same reasoning is true here, where the document is a
`
`general policy applicable to any developer who wishes to sell on the Sony
`
`PlayStation platform, and such a policy is widely disseminated to the
`
`developer community. Moreover, this document is highly relevant to the
`
`Court’s analysis in assessing where competition exists in this action.
` DX-3125 (Ex. H)
`o Tim Sweeney’s statements on June 2, 2018 shall be unredacted. The
`remainder of the proposed redactions shall be sealed.
` DX-3433 (Ex. I)
`o This request is DENIED. The proposed redactions are overbroad, especially
`where this document is (1) more than three years old, (2) is highly relevant
`
`to the Court’s analysis in assessing where competition exists in this action,
`
`and (3) portions of which are readily accessible to the public.4 Thus, the
`
`document shall be entirely unredacted.
`
`Regarding the unredacted documents above: these documents, or portions thereof, do not
`
`reveal information which is so confidential as to be damaging if revealed as balanced against the
`
`need for public access to the factual issues underlying this case. Sony shall provide the parties
`
`with revised redacted versions of the documents which may be used in any public portion of the
`
`trial.
`
`e. Nintendo of America, Inc.’s Administrative Motion to Seal (Dkt. No. 705)
`The Court GRANTS non-party Nintendo of America, Inc’s administrative motion to seal the
`
`proposed redactions in its specific agreement with Epic Games. The Court finds that the requested
`
`sealing is narrowly tailored, and that the public’s right of access to this sealed document is
`
`outweighed by any competitive harm that would be incurred by Nintendo by the release of the
`
`unredacted version of the agreement.
`
`
`
`4 See supra n.3.
`
`
`
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`United States District Court
`
`

`

`Case 4:20-cv-05640-YGR Document 715 Filed 05/20/21 Page 8 of 8
`
`
`
`f. Samsung Electronics Co. Ltd. Request to Seal (Dkt. No. 665)
`
`Non-party Samsung Electronics Co. Ltd. has filed a declaration renewing its request to seal
`
`exhibits DX-4322 and DX-4800. (Dkt. No. 665.) As discussed above, the Court has addressed
`
`the sealing of DX-4800. With regard to DX-4322, the Court agrees that this document is
`
`appropriately sealed in its entirety. Thus, Samsung’s request is GRANTED.
`
`This Order terminates Docket Numbers 641, 649, 659, 660, 663, 665, 682, 692, and 705.
`
`IT IS SO ORDERED.
`
`Dated: May 20, 2021
`
`
`
`
`
`
`
`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
`
`8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`United States District Court
`
`