In re Apple iPhone Antitrust Litigation

Background

The court held a hearing on three joint discovery letter briefs in three related actions: In re Apple iPhone Antitrust Litigation, Cameron v. Apple Inc., and Epic Games, Inc. v. Apple Inc. The order concerned discovery disputes involving Apple, Samsung Electronics America, Inc., and Apple executives.

Apple’s subpoena to Samsung

Apple moved to compel Samsung to produce documents responsive to Request for Production 5 in an October 30, 2020 subpoena. The request covered documents about Epic’s distribution of apps through Samsung’s marketplace or on Samsung devices, including Fortnite’s distribution, pre-installation of Epic apps, co-marketing, promotional and technical support, payment functionality, and the availability of Epic apps through other marketplaces.

Apple said it was seeking only Samsung’s internal analyses and decision-making concerning Fortnite’s distribution on Samsung devices, including information about the “#FreeFortnite” collaboration. Apple argued that the documents would bear on Epic’s claim that Apple coerced app developers to use Apple’s in-app-purchase functionality and that Apple had a substantial need for information solely in Samsung’s possession.

Samsung argued that its internal assessments of competition were irrelevant to whether Apple violated antitrust law and that Apple could not show the substantial need required to obtain confidential commercial information under Federal Rule of Civil Procedure 45.

The court found that the subpoena sought confidential commercial information. It then concluded that Apple had not shown a substantial need for the documents. First, even under Apple’s proposed definition of the relevant market, the requested internal Samsung documents had only minimal relevance because Epic would know the factual information about its ability to distribute apps through Samsung and any restrictions or conditions on that distribution. Second, the court found that Apple’s focus on Epic alone appeared inconsistent with the earlier preliminary-injunction order’s explanation that antitrust law concerns market aggregates rather than an individual producer. The court noted that Apple acknowledged Epic was not representative of app companies generally or game-app companies generally.

The court therefore denied Apple’s motion to compel. It did not decide the relevant market or the underlying antitrust claims.

Tim Cook’s deposition

Plaintiffs sought to depose Apple CEO Tim Cook. Apple relied on the apex doctrine, which concerns limits on depositions of high-level corporate officials. Plaintiffs offered to limit the deposition to eight hours, while Apple argued that Cook should not be deposed at all and offered four hours as a compromise.

The court concluded that Cook’s deposition should be seven hours of record time. It reasoned that these cases concern Apple’s App Store, its integrated business model, its policies and commission structure, and the relationships among several markets. The court found that Cook could provide unique information about how Apple views competition in those markets and about the company’s business-justification defense. Plaintiffs also showed that the deposition would be meaningful and not abusive or harassing.

The court applied the seven-hour default duration under Rule 30 and concluded that a deposition longer than seven hours was not justified for Cook.

Eddy Cue and Craig Federighi’s depositions

Plaintiffs also sought to depose Eddy Cue and Craig Federighi, whom Apple described as senior vice presidents. Apple objected under the apex doctrine and sought to block the depositions entirely. Neither side proposed a time limit for these depositions.

The court explained that the apex doctrine is an application of Rule 26’s requirements of relevance and proportionality and its protection against abuse or harassment. It found that Cue and Federighi were not classic apex witnesses because they were not Apple’s CEO or the head of an agency. The court also stated that courts rarely prohibit an apex deposition altogether without extraordinary circumstances.

The court found that plaintiffs had justified both depositions. Plaintiffs provided evidence of Cue’s role in creating the App Store, approving or rejecting apps, and making decisions about in-app purchases and other conduct they claimed was anticompetitive. They also provided evidence of Federighi’s involvement in discussions about apps and security, which the court found relevant to Apple’s business-justification defense and to whether Apple’s reasons for integrating its products and services were technical or commercial.

The court overruled Apple’s apex objection to the Cue and Federighi depositions.

Disposition and effect

Judge Thomas S. Hixson issued a discovery order: Apple’s motion to compel Samsung was denied; Tim Cook’s deposition was set at seven hours of record time; and Apple’s objection to the depositions of Eddy Cue and Craig Federighi was overruled. The opinion was a discovery ruling and did not resolve the merits of the antitrust litigation.