FortniteSource: Epic Games

What you need to know

  • A judge has ordered Apple to "use its best efforts" to produce documents in the Epic Games antitrust lawsuit.
  • Epic Games had previously asked for these documents to be produced and says Apple is dragging its feet.
  • Apple claims Epic is being unreasonable, having asked for a fast trial schedule and then asking for lots of evidence to be produced.

A judge has told Apple to "use its best efforts" to produce documents requested by Epic by the end of the week, despite Apple's claims Epic is being unreasonable.

In a court order, Monday, Judge Thomas S. Hixson notes a dispute between Apple and Epic over a request for documents. Apple says it has agreed to produce documents requested by Epic Games related to payment processing information. Having missed a deadline of January 6, Apple has stated that the close of discovery is February 15 and that it plans to produce the documents by that deadline. Epic Games has asked for the documents to be produced earlier, by February 5, so that it has time to read them and prepare expert reports. From the order:

Apple responds that the close of fact discovery is February 15 and asserts it will produce the documents by then. Apple acknowledges that with respect to document productions, January 6 was the deadline to produce. But Apple says that it has told everyone that due to Epic's excessive document demands, it would not be able to complete document productions by January 6, and Apple observes that Epic itself has made some document productions after that date, which Epic agrees is true. More generally, Apple blames Epic for requesting (and obtaining) a fast case schedule and then asking for lots of discovery, which Apple says renders that schedule infeasible.

In response, Judge Hixson notes that the January 6 deadline is the relevant one in terms of document production and that both sides had violated the order by missing it. However, Hixson stated that Apple's non-compliance was not justified by Epic Games missing the deadline. Furthermore, the February 15 deadline would prejudice Epic because its experts wouldn't have enough time to review them. Judge Hixson noted that "Apple does not have a good response to this problem and at the hearing acknowledged this." It said it was working "as hard as possible" to complete the productions but could not promise completion. The order concludes:

The Court will not order Apple to do something that might be impossible, but it will order Apple to try as hard as it can. Accordingly, the Court orders Apple to use its best efforts to produce non-custodial documents responsive to RFPs 12-14, 18, 19, 25, and 31 by February 5, 2021