The opinion
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5 UNITED STATES DISTRICT COURT
6 NORTHERN DISTRICT OF CALIFORNIA
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8 EPIC GAMES, INC., Case No. 4:20-cv-05640-YGR
9 Plaintiff, PRETRIAL ORDER NO. 8 RE:
ADMINISTRATIVE MOTION TO SEAL THE
10 vs. COURTROOM DURING PRESENTATION OF
CERTAIN CONFIDENTIAL MATERIAL AT
11 APPLE INC., TRIAL
12 Defendant.
13 AND RELATED COUNTERCLAIM Dkt. No. 515
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15 TO ALL PARTIES AND COUNSEL OF RECORD:
16 The Court is in receipt of a Motion to Seal the Courtroom During Presentation of Certain
17 Confidential Material at Trial, filed by Defendant Apple Inc. (Dkt. No. 515.) Apple requests that
18 the courtroom be closed during discussions of its App Store’s profitability, as analyzed by Epic
19 Games’ accounting expert, Ned S. Barnes. In addition to closing the courtroom for the entirety of
20 Mr. Barnes’ testimony, Apple requests that the courtroom be closed for any fact or expert witness
21 testimony “addressing the subject matter of Mr. Barnes’ opinions or the documents on which he
22 relied” or “adopting or responding to Mr. Barnes’ opinions.” Apple also seeks to prevent Epic
23 Games from mentioning the topic in its opening statements or in demonstratives.
24 Apple seeks to justify these restrictions under a novel theory that investors might
25 misinterpret the financial analysis and grow “confused.” While Apple is correct that non-public
26 financial information is frequently subject to sealing, courts do so not because the information
27 may confuse investors, but because it can create competitive harm. See Apple Inc. v. Samsung
] The question of whether, and if so, to what extent, supra-competitive profits exists in a
2 || relevant market is evidence of market power. See Bailey v. Allgas, Inc., 284 F.3d 1237, 1252
3 (11th Cir. 2002). Such information is highly probative in an antitrust case. The Court knows no
4 || case where an expert’s profitability analysis has been sealed where the expert’s opinion reflects
5 || their own independent analysis.' While the underlying information is sealable, the conclusion is
6 |} not.
7 To the extent that Apple disagrees with the analysis, it will have ample opportunity to
8 cross-examine Mr. Barnes and explain why the analysis is wrong. As is set forth herein, to the
9 || extent that properly sealed financial information is necessary to cross-examine an expert, the Court
10 || will consider sealing the courtroom for those short periods of time. The Court will discuss other
11 alternatives which may exist to address this issue. The request for a blanket sealing as to Mr.
12 || Barnes’ testimony is therefore DENIED.
13 With respect to the written direct testimony of Mr. Barnes, the Court rules as follows on
5 14 || Apple’s sealing request:
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19 GRANTED IN PART AND DENIED IN PART: The
last sentence is sealed; the earlier sentences
20 shall be unredacted.
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GRANTED IN PART AND DENIED IN PART: The
22 second sentence is sealed; the other sentences
shall be unredacted.
23 10 GRANTED IN PART AND DENIED IN PART: The
sentences following the first sentence are
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%6 ' Apple’s cited cases are inapposite. In the closest case, a party sought to seal a proprietary
drug study that showed a potential link between the drug and pancreatic cancer. In re Incretin-
7 Based Therapies Prod. Liab. Litig., No. 13-MD-2452, 2021 WL 873290, at *3 (S.D. Cal. Mar. 9,
2021). The study was preliminary, and, notably, the court had already considered and rejected it
28 as insufficient to show a causal link. /d.
—S—S—SSSCCCd sealed. The first sentence shall be □□□□□□□□□□□
1] GRANTED IN PART AND DENIED IN PART: The
|e
shall be unredacted.
3 12 GRANTED IN PART AND DENIED IN PART: The
entirety of this paragraph is sealed except for
4 the first, second, and fifth sentences, which
5 shall be unredacted.
Figure on Page 7 GRANTED IN PART AND DENIED IN PART: The
|= Sr
shall be unredacted.
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10 18 GRANTED IN PART AND DENIED IN PART: The
eer
shall be unredacted.
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13 last sentence is sealed; the other sentences
shall be unredacted.
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27 GRANTED IN PART AND DENIED IN PART: The
redaction shall be unredacted.
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Zz 18 This Order terminates Docket Number 515.
19 IT Is SO ORDERED.
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21 || Dated: April 30, 2021 Dypeee Hegpctefftecs,—
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE
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