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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., et al.,
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`Case No. 20-cv-05640-YGR (TSH)
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`DISCOVERY ORDER
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`Re: Dkt. No. 714
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`Defendants.
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`The parties have a dispute concerning Apple’s clawback of APL-EG_09147370-78. ECF
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`No. 714. The Court has conducted an in camera review of this document as well as the email to
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`which it was an attachment. The Court has also reviewed the Declaration of Apple attorney Kyle
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`Andeer in support of Apple’s claims of privilege and work product, as well as Epic’s response.
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`The clawed back document is a nine-page slide deck that describes regulatory, litigation
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`and related competition law challenges to the App Store around the world. It was written by
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`Apple in-house attorney Andeer and incorporates feedback from Apple’s general counsel, Kate
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`Adams. It includes Andeer’s detailed legal assessments of the various competition law challenges
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`to different aspects of the App Store’s business and potential ways for Apple to respond. The
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`entire slide deck consists of legal assessments, legal analysis, and legal strategy. Andeer emailed
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`the slide deck to non-attorney Phil Schiller in advance of a meeting with him and other Apple
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`executives. This slide deck is without doubt a privileged attorney-client communication whose
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`sole purpose was to provide legal advice. This document is privileged. Some portions of this
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`document are also work product, but it’s not necessary to parse which portions qualify as work
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`product, because the whole document is attorney-client privileged. Epic’s characterization of the
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`slide deck as being a business document that does not discuss legal advice or legal considerations
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`Northern District of California
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`United States District Court
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`Case 4:20-cv-05640-YGR Document 718 Filed 05/20/21 Page 2 of 2
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`cannot be squared with the actual content of the slide deck.
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`Epic’s waiver argument is unpersuasive. The fact that Apple initially claimed privilege
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`over only the cover email and not the slide deck does not negate a finding of inadvertence because
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`Apple produced millions of documents in a highly compressed time period. Some mistakes were
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`inevitable. Apple took reasonable steps under the circumstances to avoid producing privileged
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`material, the production of this document was inadvertent, and Apple promptly took reasonable
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`steps to rectify the error. See Fed. R. Evid. 502(b).
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`Because the slide deck is privileged and Apple did not waive the privilege, the Court
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`sustains Apple’s clawback.
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`IT IS SO ORDERED.
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`Dated: May 20, 2021
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`THOMAS S. HIXSON
`United States Magistrate Judge
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`Northern District of California
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`United States District Court
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