Apple and Epic Games clash over custodians in antitrust case

"The Parties have been unable to reach agreement and therefore submit this joint letter."

What you need to know

• Apple and Epic Games have reached an impasse in their upcoming antitrust legal battle.
• Parties are in dispute regarding custodians of documents they think are relevant to the case.
• Apple says Epic has refused to agree to three additional custodian requests, but Epic says this request came far too late in the process.

Apple and Epic Games have told a court they are "unable to reach agreement" over various custodians of documents and evidence they think are necessary for their upcoming antitrust lawsuit.

In a joint letter to the US District Court of Northern California, counsel for both Epic Games and Apple told a judge that parties had exchanged correspondence "in good faith to resolve outstanding disputes", but to no avail.

The letter, setting out Apple's position first, states:

Epic refuses to add three additional custodians requested by Apple who are likely to have unique custodial documents relevant to key issues in the case. Epic provides no reasonable explanation why adding these custodians is disproportionately burdensome.

The three additional custodians in question are Joseph Babcock, Epic's former CFO, Arjan Brussee, the project lead on Fortnite Mobile and Switch, and Joe Kreiner, Epic's VP of Business Development. Apple says that each of these custodians "serves a unique and critical role in the case."

Epic Games, for its part, states that Apple previously requested six additional custodians on December 23, but has since agreed to drop one of these requests. Epic says it has agreed to two of the custodians, but that Apple's "eleventh hour request that Epic add three more custodians to the 17 already agree months ago - and the two additions Epic agreed to - should be denied."

Epic essentially states that Apple's request has come totally out of the blue, nearly two months after parties had already reached an agreement on Epic's custodians, and just two weeks before the document discovery deadline, not to mention how close it came to Christmas. Epic says that the timing of the request is "unduly burdensome and disproportionate" because it has already moved from document discovery to depositions and expert witnesses, and that due to the holidays any such collection of documents couldn't have even started until this week.

Timing aside, Epic Games disputes the addition of all three custodians, stating that Apple has not justified calling upon them.

Clearly, the litigation process, as expected, has not been plain sailing. In a letter sent to Apple on December 26, lawyers for Epic balked at Apple's apparent claim that Epic's document production was proceeding "at a slow pace". Cravath, Swaine & Moore LLP hit back at the accusation, noting that in three months of discovery Epic has produced "more than 1.5 million documents" compared to just 200,000 new documents from Apple in the same period. Apple also apparently complained that Epic's document productions were "haphazardly spread across all of its 17 custodians", which lawyers for Epic also denied.

The enormously important antitrust lawsuit between Apple and Epic will call for trial later this year.

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