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8th July 2021

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Apple attempts to block Epic from calling witnesses in antitrust trial

Update: District Judge denied Apple's demands, saying Epic didn't breach disclosure requirements

Original story: Apple called upon a California federal judge to prevent Epic Games from calling three witnesses in the upcoming antitrust trial opposing the two companies.

Epic didn't disclose the witnesses' names until the trial's run-up, which Apple argued made "cross examination" difficult, Law360 reported. The witnesses also refused to produce documents that Apple required ahead of the pre-trial depositions, which included information about an alleged "anti-Apple campaign" launched by Facebook.

Apple also argued that the companies for which the witnesses work -- Facebook, Microsoft and Yoga Buddhi Co. -- are all "publicly aligned" in Epic's favour.

"Epic's conduct has unfairly placed Apple in a procedural Catch-22," Apple said in the sanctions motion it filed on Friday. "Prior to the close of fact discovery, Epic did not indicate that it intended to call these individuals at trial -- indeed, it did not even depose them -- so Apple did not push the third parties to produce documents from their individual files."

It continued: "Epic's procedural gamesmanship thus created this situation, and Epic should suffer the consequences from its third-party witnesses' refusal to produce documents necessary for a fair cross examination.

"These entities are certainly free to take sides, but if they are going to insert themselves into the lawsuit, then they should be subject to full and fair discovery."

Just last week, a US Magistrate Judge denied Apple access to documents allegedly proving Facebook's bias.

Epic replied to Apple's motion by saying the tech giant is "overreaching in an attempt to deprive the Court of important third-party proof at trial." The Fortnite developer added that its disclosures were "appropriate."

"During discovery, both Epic and Apple disclosed potential third-party witnesses at the company level. Neither Epic nor Apple objected to that approach. But third-party companies cannot testify at trial; only third-party witnesses can. As a result, it was clear to both parties that any third-party witness appearing on the other party's trial witness list would be an individual not previously identified in the initial disclosures."

The antitrust trial opposing Epic and Apple is set to begin on May 3, 2021.

Update: US District Judge Yvonne Gonzalez Rogers denied Apple's demands, saying Epic didn't breach disclosure requirements.

"Having reviewed the record, and the parties' briefing, the Court concludes that there has been no violation of the Rule 26 disclosure requirements," the statement read. "Epic Games promptly disclosed the individual identities of Mr. Sharma, Ms. Wright, and Mr. Simon when Epic Games learned that these three individuals were confirmed to be appearing at the bench trial in this action."

She added: "The failure to produce relevant documents, including documents relevant to the individual testifying witness, to both parties (here, to Apple) will be factored into the individual witness' credibility, and, if necessary, may warrant the striking of testimony."

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8th July 2021

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