# Epic Games, Inc. v. Apple Inc. > District Court, N.D. California · April 30, 2021 URL: https://www.frixlaw.com/law-library/cases/10067556 ## Case - **Court:** District Court, N.D. California - **Decided:** April 30, 2021 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10067556 ## Opinion text 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 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 14 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: 18 19 GRANTED IN PART AND DENIED IN PART: The last sentence is sealed; the earlier sentences 20 shall be unredacted. 21 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 25 %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. 7 10 18 GRANTED IN PART AND DENIED IN PART: The eer shall be unredacted. 12 13 last sentence is sealed; the other sentences shall be unredacted. i 27 GRANTED IN PART AND DENIED IN PART: The redaction shall be unredacted. 17 Zz 18 This Order terminates Docket Number 515. 19 IT Is SO ORDERED. 20 21 || Dated: April 30, 2021 Dypeee Hegpctefftecs,— YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10067556. Public record. Not legal advice.