In re Apple iPhone Antitrust Litigation
- Yvonne Rogers
- 4:11-cv-06714
- U.S. District Court · Northern District of California
- 3
In re Apple iPhone Antitrust Litigation: Judge Hixson denied Apple’s untimely request for Facebook documents related to Epic’s trial witness.
Apple, Facebook as a non-party subpoena recipient, and Epic Games in connection with Apple’s request for documents about Epic’s trial witness Vivek Sharma.
What happened
In In re Apple iPhone Antitrust Litigation, Apple asked Facebook, which was not a party, to produce documents so Apple could question Facebook’s gaming executive, Vivek Sharma, at Epic Games’ trial. The request was filed in three related cases but concerned only the Epic Games case.
The court said fact discovery in that case had ended on February 15, 2021, making February 22 the deadline to ask the court to force discovery. Apple’s request came after that deadline. The court also said Apple had not shown that Facebook or Epic had done anything that would justify ordering document production as a discovery penalty.
Judge Hixson held that Apple’s request was late and denied Apple’s motion to compel Facebook. He did not decide whether Epic had improperly disclosed Sharma as a witness; any request to exclude Sharma was directed to Judge Gonzalez Rogers.
The detailed version
- In re Apple iPhone Antitrust Litigation · No. 4:11-cv-06714
- Yvonne Rogers
- Apr. 6, 2021
Background
Apple and non-party Facebook filed a joint discovery letter concerning Apple’s request to compel Facebook to produce documents responsive to subpoenas. Apple sought the documents to prepare to question Facebook Vice President of Gaming Vivek Sharma, whom Epic Games had identified as a trial witness. Although the motion was filed in three related actions, the court found that it was directed only to the Epic Games case.
Analysis
Fact discovery in the Epic Games case closed on February 15, 2021. Under Civil Local Rule 37-3, the last day to move to compel fact discovery was February 22, 2021. The court therefore found Apple’s motion untimely.
The court rejected Apple’s argument that it had reserved the right to seek the documents later if Facebook testified at trial. The court noted that Apple did not have that right after the discovery deadline and that Facebook had separately stated that it intended to rely on the close of fact discovery.
Apple also cited Rule 37, which allows courts to impose sanctions for violations of discovery obligations. The court assumed that a document-production order could potentially be imposed as a Rule 37 sanction even when a motion to compel was untimely. But Apple had not shown, and had not attempted to show, that Facebook had engaged in sanctionable conduct. Epic’s decision to list Sharma as a trial witness did not establish that Facebook acted improperly. The court expressed no opinion on whether Epic had improperly failed to identify Sharma in its required disclosures.
Ruling
The court held that Apple’s motion to compel Facebook was untimely and denied it. The order did not decide whether Sharma should be excluded as a witness. The court stated that any motion seeking his exclusion based on an alleged failure to disclose him timely should be directed to Judge Gonzalez Rogers.
Classification and effect
This was a procedural discovery ruling, not a decision on the underlying antitrust claims. It affected Apple’s attempt to obtain documents from Facebook for use in the Epic Games trial.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.