Judge Orders That Tim Cook and Craig Federighi Must Testify in Epic Games Lawsuit

Apple must make CEO Tim Cook and SVP Craig Federighi available to testify in the Epic Games lawsuit alleging antitrust violations.

Following a hearing on Tuesday, United States Magistrate Judge Thomas S. Hixson ordered that Epic Games be given access to Federighi’s documents. Apple had refused to grant access and offered Eric Neuenschwander as an alternative. Hixson agreed with Epic Games that Federighi was more likely to have made decisions relative to the case.

Additionally, Apple had asked for Cook’s deposition time to be limited to four hours; however, the judge ruled this could not be decided until Epic Games had looked over Cook’s documents.

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Tim Cook. Apple has agreed to make Cook a document custodian on the condition that Plaintiffs limit their deposition of him to four hours. The only issue in dispute between the parties is whether this condition is appropriate. The Court finds that it is not. Plaintiffs cannot meaningfully assess how long this deposition should be until they see Cook’s documents. The Court orders Apple to make Cook a document custodian. The length of his deposition can be addressed later.

Craig Federighi. Plaintiffs want Apple to make Craig Federighi a document custodian. Apple has refused and has offered Eric Neuenschwander instead. Thus, the dispute is not over how many document custodians there should be, but which of these two people should fill this slot.

Federighi is in charge of engineering for all iOS. Neuenschwander is his subordinate and reports to him. In meet and confer, Apple stated that Neuenschwander is in charge of the App Store. In the letter brief Apple states somewhat differently that Neuenschwander oversees privacy across Apple’s platforms and also asserts that he oversees a broad spectrum of security issues.

Plaintiffs want Federighi’s documents because he is in charge of iOS. Plaintiffs observe that at a high level, Apple’s business justification defense is about the benefits of the integrated Apple ecosystem, in which the hardware, operating system, App Store and apps are a closed system that Apple says is more secure, protective of privacy, and results in higher quality. They want Federighi’s documents precisely because he is higher up and, they believe, better able to speak to the reasons for Apple’s closed, integrated ecosystem. They also quote some documents that tend to show that Federighi is more of a decisionmaker than Neuenschwander is, which seems inevitably true since he is his boss.

Apple cites the default presumption that the party responding to discovery ordinarily has the responsibility and entitlement to choose document custodians. In practice this is really more of an obligation than a prerogative because the responding party has to live up to its discovery obligations, and most of the time the requesting party would have no idea who the relevant custodians should be. Beyond that, Apple does not have much to say about why Neuenschwander
should be the custodian, other than to assure us that it has considered the issue and thinks it should be him. Apple also argues Federighi’s documents are likely to contain particularly sensitive business information, requiring more extensive individual review, which would further burden Apple. However, that last argument also tends to suggest that Plaintiffs are right to want Federighi’s documents.

The Court rules for Plaintiffs and orders Apple to make Federighi a document custodian instead of Neuenschwander. First, Plaintiffs have shown that Federighi is a higher-level decisionmaker whose documents are more likely to go to the heart of Apple’s business justification defense. Second, if Plaintiffs have guessed wrong, and Federighi’s documents are not as relevant as Neuenschwander’s are, that hurts Plaintiffs. Assuming the requests are relevant and proportional, it is up to Plaintiffs to decide what discovery they want to take to prove their claims, and if they make bad choices, that’s their problem.
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You can read the full order at the link below. Please download the iClarified app or follow iClarified on Twitter, Facebook, YouTube, and RSS for updates.

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