Apple and Epic Battle Over Access to Confidential Info Filed in Related Antitrust Proceedings

Though the high profile trial between Apple and Epic Games Inc. concluded three months ago, the parties’ feud continues, this time over Epic’s right to unredacted versions of all sealed filings by Apple and the class plaintiffs in two related actions. Apple Inc. vigorously opposed Epic’s motion in a filing submitted on Tuesday.

According to Epic, the Northern District of California court’s coordination order mandates that Epic, Apple, and the consumer and app developer plaintiffs suing Apple share unredacted versions of their court filings. Once Apple and Epic’s trial concluded in late May, Epic claimed that Apple improperly instructed the plaintiffs in the other two cases not to share their sealed class certification submissions or any other new material with Epic’s counsel.

Epic reportedly tried to meet and confer with Apple, but to no avail. In its motion, Epic argued that “Apple’s withholding of the full class certification filings is unjustifiable and prejudicial to Epic.” Before the court issues the anticipated ruling, “Epic should be able to see what the parties in the class actions are telling the Court, just as Apple can,” the motion said.

Epic further contended that by keeping the class action parties’ numerous allegations about Epic v. Apple and Epic’s business secret, the defendant has artificially created circumstances where it can speak about those matters unilaterally, leaving Epic with no ability to evaluate those assertions.

In this week’s filing, Apple condemned Epic’s motion as an attempt to search for “ammunition to use in its well-publicized attacks.” According to Apple, Epic opted out of the developer litigation and proceeded with its own trial. Thus, Epic must live with that decision and the ramification that it is “entitled to nothing beyond the public filings … just like any other non-party to the litigation,” the opposition said.

Apple also disagreed with Epic’s reading of the court’s coordination order. It argued that the order was intended to minimize expenses and facilitate orderly and efficient discovery, “not to provide Epic special rights once the trial record in its opt-out case was closed.”

The opposition further claimed that it would be prejudiced because it cannot trust Epic with confidential materials. In support this contention, Apple pointed to Epic’s footnoted disclosure that it already “received and retained an unsealed version of Consumer Plaintiffs’ class certification papers and related expert report, which contain Apple’s confidential materials,” purportedly without revealing to Apple that it “had helped itself to some of the confidential information at issue.”

Epic is represented by Faegre Drinker Biddle & Reath LLP and Cravath, Swaine & Moore, and Apple by Gibson, Dunn & Crutcher LLP.