Epic and Apple Spar Over Expert Witness Testimony at Trial

Apple Inc. has doubled down on its efforts to strike the written and oral testimony of Dr. Michael Cragg concerning the foreign regulatory submissions of a Spotify USA Inc., a non-party, to the antitrust and business tort suit filed by Epic Games Inc. last August. On Tuesday, Apple filed a redacted reply, arguing that the opposing rebuttal economic expert’s opinion lacks factual support and therefore contravenes Federal Rule of Evidence 703.

Specifically, Apple’s May 14 motion states that Dr. Cragg’s opinions are based on Spotify’s “advocacy submission” to the Japan Fair Trade Commission (JFTC) concerning its desire for the commission to take regulatory action against competitor Apple for some of the same conduct at issue in the instant case. Because the JFTC filing has not been produced, Apple claims that it cannot form the basis of Dr. Cragg’s opinion.

Rather, Apple asserts that the expert’s source is “an unauthenticated advocacy piece based on a study that is not in either party’s possession and has not been provided to the Court.” Further, Apple argues, Spotify’s JFTC submission is not the kind of information experts would reasonably rely on to form their opinion.

In Epic’s opposition, the company argued that Apple’s motion is both procedurally and substantively flawed. The gaming company explained that Apple has now stipulated twice to the admissibility of that specific testimony, the court has previously rejected Apple’s attempt to strike related portions thereof, and the testimony is “substantively sound” under Rule 703.

Epic also accuses Apple of engaging in “revisionist history” in its motion by contending that the JFTC submissions were not produced when in fact they were, no less at Apple’s request. Epic concludes that Apple “should not be permitted to have its expert rely on cherry-picked portions of Spotify’s production as a sword, yet deny Epic’s expert the ability to rely on other portions of that production to show the fallacy of Apple’s claims.”

After Apple filed its reply on Tuesday, Epic filed an administrative motion seeking leave to file a surreply.

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