Abstract:
In a joint status report submitted on October 9, Apple and Epic Games disagreed on what internal documents Apple should provide to Epic and when the disclosure should be completed. Epic accused Apple of delaying the submission of materials requested by the court and asked the judge to order it to be completed no later than November 1. Apple claimed that it had not delayed and had agreed to Epic's 16 document requests, 27 data custodians and their search terms. However, the scope of the relevant search was huge and could not be completed within the time limit requested by Epic. The document is a joint report in which both parties state their respective positions, and is not a court ruling on the dispute.
The dispute stems from an order issued by the U.S. District Court for the Northern District of California on May 20. Apple must submit non-privileged documents related to the decision-making process of its external link purchase commission plan. The first round of documents was originally scheduled to be delivered before August 24. Epic stated in the report that as of the time of submission, Apple had provided only 55 response documents for this decision-making process, of which 16 had moderate to substantial deletions and 4 were duplicates or near-duplicates; Apple also stated that only 15 documents had not been disclosed due to privileges. Epic argued that the materials did not show how Apple business personnel determined commission rates, and said that the 34 documents submitted on August 24 were mostly calendar invitations, litigation materials and redacted documents.
The parties also disagreed about the significance of the information submitted. Apple said it had delivered more than 1,800 documents and a large amount of transaction and billing data on August 13, including data covering billions of transactions in the U.S. App Store; these data involved approximately 2.1 million apps and provided input for its expert analysis and commission proposals. Epic believes that these data and expert report materials do not explain how Apple insiders choose the new rates, nor do they provide relevant discussions, business analysis or decision-making records.
Epic also requested the disclosure of more documents from participants and expanded its search to external link commission programs outside the United States, arguing that Apple's experience in other regions may affect U.S. rates. Apple countered that its proposal was developed under the guidance of the court and the Ninth Circuit Court of Appeals, and that the decision-making process was much narrower than when it previously launched the external link purchase mechanism. It was mainly made by a small number of executives through limited meetings within a few months; to avoid further disputes in the process, Apple has accepted the 27 data custodians and search terms proposed by Epic, but reserves the right to adjust if necessary. Apple said it could search the documents of four core decision-makers without geographical restrictions on overseas commission information, but it did not believe it was necessary to conduct a global search of all 27 people.
In terms of disclosure time limit, Apple said it expects to substantially complete the delivery of documents for seven data custodians around November 1, and for other personnel is expected to substantially complete around November 25; Apple does not promise that all documents will be delivered by then. Epic asked the court to require Apple to deliver in batches immediately and complete all relevant materials before November 1. The parties also agreed that Epic's 60-day response period under the May order has not yet begun because the scope of document disclosure is still being negotiated. The judge has yet to rule on Epic's deadline request or the parties' scope dispute.
This round of evidence discovery revolves around Apple’s proposed App Store external link commission. Apple was previously found in contempt of court by a district court over how it implemented a ban that allowed apps to guide users to external payments; Apple has appealed the finding to the U.S. Supreme Court. The Supreme Court agreed to hear one of the issues in June, but district courts continued to deal with the link commission scheme and its factual material.
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