`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`EPIC GAMES, INC.,
`Plaintiff,
`
`vs.
`
`APPLE INC.,
`Defendant.
`
`Case No. 4:20-cv-05640-YGR
`
`TRIAL ORDER NO. 1 RE: STIPULATIONS,
`MEDIA REQUEST, AND REMAINING THIRD
`PARTY ADMINISTRATIVE MOTIONS TO
`SEAL
`
`Dkt. Nos. 498, 538, 563, 546, 550, 554, 555,
`560, 571, 579, 583, 588
`
`
`
`
`
`AND RELATED COUNTERCLAIM
`
`TO ALL PARTIES AND COUNSEL OF RECORD:
`
`The Court issues this Order with respect to several items on the docket:
`1. Stipulations (Dkt. Nos. 498, 538, 563, 583)
`As reflected on the record on May 3, 2021, the Court GRANTS the stipulations at docket
`
`numbers 498, 538, and 563.
`
`Additionally, after considering the recently filed stipulation at docket number 583
`
`requesting an additional two days for Apple to respond to the consumer plaintiffs’ administrative
`
`motion for entry of supplemental protective orders, the Court GRANTS the stipulation.
`2. Media Request (Dkt. No. 579)
`The Media Coalition has filed a request to permit the addition of one additional reporter,
`
`Bobby Allyn of National Public Radio, be added to the list of reporters pre-authorized to enter the
`
`courthouse when serving as a designated pool reporter. Per the request, Mr. Allyn would be added
`
`to the schedule beginning Monday, May 10, 2021.
`
`After considering the request, the Court hereby ORDERS:
`
`Bobby Allyn of National Public Radio is AUTHORIZED to enter the Ronald V. Dellums
`
`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 594 Filed 05/05/21 Page 2 of 7
`
`
`
`Federal Building & United States Courthouse and the specific courtroom (Courtroom 1) in which
`
`the above-captioned trial is taking place, beginning May 10, 2021, in accordance with the pool
`
`schedule timely provided to the Court. Mr. Allyn shall comply with all relevant provisions of the
`
`Court’s Pretrial Order No. 5 (Dkt. No. 485).
`3. Remaining Administrative Motions to Seal (Dkt. Nos. 546, 550, 554, 555, 560, 588)
`The Court previously issued Pretrial Order Number 7 and Number 9 addressing then
`
`pending administrative motions to seal the parties’ proposed exhibits. (See Dkt. Nos. 547 and
`
`564.) This Trial Order now addresses the remaining administrative motions to seal. (See Dkt.
`
`Nos. 546 (Facebook Inc.), 550 (Lyft Inc.), 554 (Nintendo of America, Inc.), 555 (Kabam, Inc.),
`
`560 (Spotify USA Inc); 588 (Netflix, Inc.)).1
`
`As the Court explained in both Pretrial Orders Number 7 and 9:
`
`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
`
`
`1 The Court notes that there are several administrative motions and declarations relating to
`the written direct testimony and deposition designations. These will be addressed in a subsequent
`trial order at the appropriate juncture.
`
`The Court also notes that it received a motion for joinder from Amazon.com Services,
`LLC filed at docket number 571. While the Court stated in Pretrial Order No. 9 that it is inclined
`to seal the party specific agreements (Dkt. No. 564), the Court previously deferred a ruling on the
`sealing of this document in Pretrial Order No. 7 until its use at trial. (See Dkt. No. 547.) Thus, the
`Court administratively terminates the joinder at docket number 571.
`
`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 594 Filed 05/05/21 Page 3 of 7
`
`
`
`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:2
`
`(Dkt. No. 547 at 1-2; Dkt. No. 564 at 1-2.) With this prior framework in mind, the Court
`
`addresses the remaining administrative motions.
`a. Facebook Inc. (Dkt. No. 546)
`The motion is GRANTED as to all documents except for:
` PX-2411 (Exhibit 1)
`o This document shall be unredacted and unsealed, especially where Facebook has
`failed to show competitive harm from a document almost four years old.
` PX-2413 (Exhibit 2)
`o EGFB-001141: the sentence shall be unredacted from “but they did seem” until the
`end of the sentence. The remainder of the proposed redactions on this page is
`
`appropriately sealed.
`o EGFB-001144: the proposed redaction on this page shall be unsealed.
`o EGFB-001148: the first sentence in the first numeral shall be unsealed. The
`remainder of the proposed redactions on this page is appropriately sealed.
`o EGFB-001160: The redaction at the bottom of the page in the email sent on March
`2, 2020 at 6:25PM shall be unredacted. The remainder of the page shall be
`
`unsealed.
`o The remainder of proposed redactions in the document is appropriately sealed.
` PX-2414 (Exhibit 3)
`o EGFB-002073:
` The first item shall be unredacted along with the first sentence. The second
`
`sentence is appropriately sealed.
` The second item shall be unredacted along with the first sentence until the
`
`
`2 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.
`
`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 594 Filed 05/05/21 Page 4 of 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
`
`semicolon. The subordinate clause starting with “but Apple” and ending
`
`with “offering IAP” shall also be unredacted. The rest of the sentence is
`
`appropriately sealed.
` The second and third sentences shall be unredacted in the third item. The
`
`first sentence as well as the item title are appropriately sealed.
` The second sentence until the word “Android” shall be unredacted in the
`
`fourth item. The first remainder of this sentence as well as the item title and
`
`the first sentence are appropriately sealed.
` The last sentence in the fifth item shall be unredacted. The remainder of the
`
`sentences and the item title are appropriately sealed.
` PX-2415 (Exhibit 4)
`o Facebook has not demonstrated that the withholding of this document from 2017 is
`appropriate. The chart shall be appropriately redacted and sealed. The first page
`
`shall otherwise be 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. Facebook shall provide the
`
`parties with revised redacted versions of the documents which may be used in any public portion
`
`of the trial, assuming they are otherwise admissible.
`b. Lyft Inc. (Dkt. No. 550)
`The Court GRANTS Lyft’s administrative motion to seal. The Court finds that the proposed
`
`redactions are narrowly tailored, and the disclosure of these redactions, reflecting confidential
`
`business information and future strategies, would result in competitive harm to Lyft.3 Thus, this
`
`information is appropriately sealed.
`
`
`3 The Court notes that these pertain only to Lyft’s proposed redactions. As noted by Lyft
`in its administrative motion to seal, Lyft received a redacted form of the documents as to the other
`entities listed in the documents. (Dkt. No. 550 at 2 n.1.) The documents shall only be redacted
`and sealed to the extent that it pertains to Lyft’s proposed redactions unless so ordered by the
`Court.
`
`4
`
`Northern District of California
`United States District Court
`
`
`
`Case 4:20-cv-05640-YGR Document 594 Filed 05/05/21 Page 5 of 7
`
`
`
`c. Nintendo of America, Inc. (Dkt. No. 554)
`The Court DENIES Nintendo’s administrative motion to seal its Content License and
`
`Distribution Agreement. As the Court stated when considering similar requests by Sony and
`
`Valve to seal their general template agreements and policies with developers:
`
`Sony has not demonstrated any harm of public disclosure where each
`of these policies are disclosed to developers who wish to sell on their
`digital marketplace. Indeed, per Sony’s motion, these documents are
`disclosed to all developers, indicating their wide and broad
`dissemination
`to developers engaging with Sony’s digital
`marketplace. Moreover, there is a significant public interest in
`accessing documents relating to alternative digital distribution
`platforms, including assessing the competition therein.
`
` …
`
`
`
`
`For reasons similar to Sony’s request, it is not all clear why these
`documents [belonging to Valve], template agreements presented to
`any developer who wishes to sell games on Valve’s Steam platform,
`should be sealed when these are widely disseminated to any developer
`who so requests it.[] These documents are highly relevant to the
`Court’s analysis in assessing where competition exists in this action.
`(Dkt. No. 547 at 4, 5.) The same reasoning is true here, where the document is a general
`
`agreement available to any developer who wishes to sell on the Nintendo Switch platform, and
`
`such an agreement is widely disseminated to the developer community. The public’s right of
`
`access sharply outweighs any competitive harm to Nintendo (as well as to Valve and Sony).
`d. Kabam, Inc. (Dkt. No. 555)
`The Court GRANTS IN PART and DENIES IN PART as follows:
` PX-0067 (Exhibit A – Dkt. No. 555-4)
`o In the second paragraph, the names of the unreleased games shall be redacted
`and sealed. If the game has been released, the name of the game shall be
`
`unredacted.
`o The specific percentages in relation to gross revenue in the parenthetical shall
`be redacted and sealed.
`o The remainder of this email shall be unredacted.
` PX-2204 (Exhibit B – Dkt. No. 555-5)
`o Kabam has not shown that the release of this document, an email from more
`5
`
`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 594 Filed 05/05/21 Page 6 of 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
`
`than seven years, would result in competitive harm. The only appropriate
`
`redaction and sealing is of the personal cell phone number in the initial email.
`
`The remainder of the email shall be 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. Kabam shall provide the parties
`
`with revised redacted versions of the documents which may be used in any public portion of the
`
`trial, assuming they are otherwise admissible.
`e. Spotify USA Inc (Dkt. No. 560)
`The Court GRANTS Spotify’s administrative motion to seal. The motion is narrowly
`
`tailored in seeking to file under seal two documents (DX-4491 and DX4641) that contains
`
`sensitive information, including user and platform data, the release of which would result in
`
`competitive harm to Spotify. That said, the Court does not intend to seal the courtroom if general
`
`references summarizing the information without reference to specific numbers are discussed
`
`during trial.
`f. Netflix Inc. (Dkt. No. 588)
`The Court DENIES Netflix’s administrative motion to seal two documents: PX-0197 and
`
`PX-2140. Netflix seeks to seal information relating to payment statistics of its consumers from
`
`more than three years ago. Specifically, it seeks to seal information between iOS consumers
`
`paying in-app versus on the web. As the first two days of trial have reflected, an issue that is
`
`highly relevant to the Court’s determination is the differences for consumers paying in-app and
`
`paying on the web. The public’s right to access such information is significantly outweighed by
`
`any harm to Netflix, where the information that Netflix seeks to seal is more than three years old.
`
`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. Again, these documents reflect
`
`areas of competition that are not only highly relevant to the Court’s determination in this action,
`
`but are hotly contested.
`
`6
`
`Northern District of California
`United States District Court
`
`
`
`Case 4:20-cv-05640-YGR Document 594 Filed 05/05/21 Page 7 of 7
`
`
`
`This Order terminates docket numbers 498, 538, 563, 546, 550, 554, 555, 560, 571, 579,
`
`583, and 588.
`
`IT IS SO ORDERED.
`
`Dated: May 5, 2021
`
`
`
`
`
`
`
`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
`
`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
`
`