Epic Games, Inc. v. Apple Inc.

Filing 1017

Discovery Order re 1016 Status Report. Apple's request for an extension of time is DENIED. The deadline for the substantial completion of document production is Monday, September 30. Signed by Judge Thomas S. Hixson on 9/27/2024. (tshlc1, COURT STAFF) (Filed on 9/27/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EPIC GAMES, INC.,
Plaintiff,

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United States District Court
Northern District of California

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

v.
APPLE INC.,
Defendant.

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On August 8, 2024, the Court ordered Apple to substantially complete document

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production by September 30, 2024. ECF No. 1008. Yesterday – four days before the deadline for

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substantial completion – Apple disclosed that the number of documents it needs to review is about

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twice the estimate it previously provided to the Court (1.3 million as opposed to 650,000). Apple

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requests a fifteen day extension of time to substantially complete its document production, and

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Apple says it will complete its document production by October 31, 2024. ECF No. 1016. The

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Court denies the request.

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The Court ordered the parties to file status reports concerning this discovery every two

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weeks, and they have done so. ECF Nos. 998, 1001, 1004, 1011, 1013, 1014, 1016. Before

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yesterday’s report Apple never previewed to Epic Games or to the Court that the number of

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documents it would need to review exceeded its prior estimate by a substantial amount. This

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information would have been apparent to Apple weeks ago. It is simply not believable that Apple

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learned of this information only in the two weeks following the last status report. This gives rise

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to several related concerns. First, Apple’s status reports weren’t any good. Apple knew it wasn’t

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on track to make the substantial completion deadline and kept that a secret. Had Apple promptly

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informed Epic and the Court that this project was broader in scope than it had anticipated, the

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Court could have discussed possible solutions with the parties, such as Apple hiring more

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document reviewers so it could make the existing deadline. Waiting until four days before the

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substantial completion deadline to announce its planned noncompliance and to disclose for the

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first time that the scope of document review was larger than previously represented is bad

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behavior.

United States District Court
Northern District of California

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And we have to worry about why this bad behavior happened. Apple is one of the largest

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companies in the world, with nearly infinite resources available to it. If Apple really wanted to,

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could it collect and review 1.3 million documents between August 8 (the date of the Court’s order)

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and September 30 (the deadline for substantial completion)? Yes, of course it could. If Apple

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really wanted to, with all of the resources available to it, it could probably review that many

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documents in a weekend.

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As Epic constantly points out, this document production is all downside for Apple because

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it relates to Apple’s alleged lack of compliance with the Court’s injunction. It is not in Apple’s

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interest to do any of this quickly. This is a classic moral hazard, and the way Apple announced

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out of the blue four days before the substantial completion deadline that it would not make that

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deadline because of a document count that it had surely been aware of for weeks hardly creates the

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impression that Apple is behaving responsibly.

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Apple’s request for an extension of time is DENIED. The deadline for the substantial

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completion of document production is Monday, September 30. It’s up to Apple to figure out how

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to meet that deadline, but Monday is indeed the deadline.

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IT IS SO ORDERED.

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Dated: September 27, 2024

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THOMAS S. HIXSON
United States Magistrate Judge

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