In re Apple iPhone Antitrust Litigation

Filing 325

Discovery Order re: (323 in 4:11-cv-06714-YGR), (201 in 4:20-cv-05640-YGR), (199 in 4:19-cv-03074-YGR). Signed by Judge Thomas S. Hixson on 12/18/2020. (cdnS, COURT STAFF) (Filed on 12/18/2020)

Case 4:11-cv-06714-YGR Document 325 Filed 12/18/20 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE APPLE iPHONE ANTITRUST
LITIGATION.

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Case No. 11-cv-06714-YGR (TSH)
DISCOVERY ORDER

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Re: Dkt. Nos. 323
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United States District Court
Northern District of California

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DONALD R. CAMERON, et. al.,
Case No. 19-cv-03074-YGR (TSH)

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Plaintiffs,

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v.

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Re: Dkt. No. 199

APPLE INC.,

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Defendant.

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EPIC GAMES, INC.,

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Case No. 20-cv-05640-YGR (TSH)

Plaintiff and Counter-

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defendant,

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v.

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Re: Dkt. No. 201

APPLE INC.,

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Defendant and

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Counterclaimant.

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In ECF No. 308-2,1 Plaintiffs put forward a thoughtful explanation for why they need to

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take 16 party depositions of Apple witnesses pursuant to Federal Rule of Civil Procedure 30(b)(1).

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ECF citations are to 11-cv-6714 unless otherwise noted.

Case 4:11-cv-06714-YGR Document 325 Filed 12/18/20 Page 2 of 4

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They broke down the witnesses into five relevant categories of testimony: (1) high-level

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executives deciding policies critical to the health of the iOS ecosystem; (2) engineering knowledge

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of Apple’s defenses based on security, the tools, software, and Apple Support services available to

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app developers, and the integrated nature of iOS, the App Store, and IAP; (3) Apple’s App

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Review; (4) interactions with developers who have allegedly been harmed by Apple’s policies;

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and (5) individuals with particular roles in the App Store. The Court understands, of course, that

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these are not five rigidly distinct areas of inquiry, but they do constitute five different areas of

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focus logically related to the claims at issue in these three related actions. Plaintiffs also proposed

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specific people for each of these topics and provided useful information explaining why they

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United States District Court
Northern District of California

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would be good witnesses on those topics.
Plaintiffs have persuaded the Court that there is good cause under Federal Rule of Civil

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Procedure 26(b)(2)(a) to allow 16 party depositions of Apple witnesses under Rule 30(b)(1). The

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topics of these proposed depositions are important for these related cases, each topic warrants

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multiple depositions, and the number of proposed depositions on each topic is not excessive.

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Given what is at stake in these cases, the Plaintiffs’ need for these depositions, the parties’

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resources, and the importance of this discovery in resolving the issues in dispute, these depositions

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are proportional and not overly burdensome.

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Apple has not really argued otherwise. It initially took the view that Plaintiffs should take

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10 depositions first and then seek leave to take more based on what information comes out of

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those 10. The problem with that view is that fact discovery in the Epic Games case closes on

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February 15, 2021 (20-cv-5640, ECF No. 116) and each witness in these related cases is supposed

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to be deposed only once. ECF No. 194, ¶ 3. This means that the depositions of Apple’s witnesses

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have to get going, and Plaintiffs need to be able to plan, in particular with the holidays coming up.

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Plaintiffs would plan the next two months differently if they had 10 Rule 30(b)(1) Apple

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depositions to take than if they have 16, and they would certainly plan differently if they didn’t

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know how many Apple witnesses they would be allowed to depose, so they need to know what the

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answer is now.

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Case 4:11-cv-06714-YGR Document 325 Filed 12/18/20 Page 3 of 4

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Apple’s other argument is that it should be able to take the same number of party

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depositions of Epic Games as Plaintiffs can take of Apple. That might be the right answer; the

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Court doesn’t know. Apple has not made a showing like Plaintiffs did, identifying the topics each

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deposition would relate to, and providing an explanation of how many witnesses there would be

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and who they might be for each topic. Also, it is not self-evident that Apple is comparing (no pun

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intended) apples to apples. If this were just a two-party lawsuit between Apple and Epic Games,

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of course the Court would give each side the same number of depositions, simply out of parity.

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But the 16 depositions Plaintiffs want to take are for all three of the related cases, two of which are

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class actions, and for all three sets of Plaintiffs because Apple is a defendant in all three cases. By
contrast, Epic Games is a party only to the Epic Games case. The Court is happy to listen to any

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United States District Court
Northern District of California

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explanation Apple wants to provide for why it needs to take more than 10 depositions of Epic

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Games, but there should be some sort of explanation because the parity argument doesn’t work.

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The Court’s order is not contingent on the specific identities of the 16 Apple witnesses

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Plaintiffs want to depose and does not constitute a finding that Plaintiffs have a right to depose

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those particular people. The value of Plaintiffs’ effort to break down the proposed depositions

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into different topics with informed explanations for who could be deposed on each topic was to

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put some meat on the bones of their request for depositions. It’s so much more useful for a litigant

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to flesh out a good, reasoned explanation for wanting a certain number of depositions than to just

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proclaim that a case is complicated or important and therefore a particular number of depositions

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is needed. Plaintiffs’ showing put detail into that request that enables the Court to make an

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informed decision. But the Court understands that Apple may object to some of the proposed

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witnesses and may suggest others in their stead. The parties should meet and confer about that

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and raise any disputes about particular witnesses in a joint discovery letter brief.

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The Court has received no briefing concerning the number of Rule 30(b)(6) depositions

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that should be permitted or how many true third party depositions should be allowed, so it

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expresses no view on those subjects. Rather, the only issue the Court addresses in this order is

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that Plaintiffs may take 16 depositions pursuant to Rule 30(b)(1) of Apple witnesses. For the

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avoidance of doubt, a former Apple employee who is deposed about his work at Apple counts
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Case 4:11-cv-06714-YGR Document 325 Filed 12/18/20 Page 4 of 4

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toward the 16 and is not a true third party.
IT IS SO ORDERED.

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Dated: December 18, 2020

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THOMAS S. HIXSON
United States Magistrate Judge

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United States District Court
Northern District of California

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