Epic Games, Inc. v. Apple Inc.

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 EPIC GAMES, INC., Case No. 4:20-cv-05640-YGR

8 Plaintiff, TRIAL ORDER NO. 1 RE: STIPULATIONS,

MEDIA REQUEST, AND REMAINING THIRD

9 vs. PARTY ADMINISTRATIVE MOTIONS TO

SEAL

10 APPLE INC.,

Dkt. Nos. 498, 538, 563, 546, 550, 554, 555,

11 Defendant. 560, 571,579,583, 588

12 AND RELATED COUNTERCLAIM

13

14 TO ALL PARTIES AND COUNSEL OF RECORD:

15 The Court issues this Order with respect to several items on the docket:

16 1. Stipulations (Dkt. Nos. 498, 538, 563, 583)

17 As reflected on the record on May 3, 2021, the Court GRANTS the stipulations at docket

18 numbers 498, 538, and 563.

19 Additionally, after considering the recently filed stipulation at docket number 583

20 requesting an additional two days for Apple to respond to the consumer plaintiffs’ administrative

21 motion for entry of supplemental protective orders, the Court GRANTS the stipulation.

22 2. Media Request (Dkt. No. 579)

23 The Media Coalition has filed a request to permit the addition of one additional reporter,

24 Bobby Allyn of National Public Radio, be added to the list of reporters pre-authorized to enter the

25 courthouse when serving as a designated pool reporter. Per the request, Mr. Allyn would be added

26 to the schedule beginning Monday, May 10, 2021.

27 After considering the request, the Court hereby ORDERS:

1 Federal Building & United States Courthouse and the specific courtroom (Courtroom 1) in which

2 the above-captioned trial is taking place, beginning May 10, 2021, in accordance with the pool

3 schedule timely provided to the Court. Mr. Allyn shall comply with all relevant provisions of the

4 Court’s Pretrial Order No. 5 (Dkt. No. 485).

5 3. Remaining Administrative Motions to Seal (Dkt. Nos. 546, 550, 554, 555, 560, 588)

6 The Court previously issued Pretrial Order Number 7 and Number 9 addressing then

7 pending administrative motions to seal the parties’ proposed exhibits. (See Dkt. Nos. 547 and

8 564.) This Trial Order now addresses the remaining administrative motions to seal. (See Dkt.

9 Nos. 546 (Facebook Inc.), 550 (Lyft Inc.), 554 (Nintendo of America, Inc.), 555 (Kabam, Inc.),

10 560 (Spotify USA Inc); 588 (Netflix, Inc.)).1

11 As the Court explained in both Pretrial Orders Number 7 and 9:

12 Local Rule 79-5 provides that documents, or portions thereof, may be

sealed if a party “establishes that the documents, or portions thereof,

13 are privileged, protectable as a trade secret, or otherwise entitled to

protection under the law.” Civ. L. R. 79-5(b). In general, a “strong

14 presumption in favor of access” to court records exists, especially

during trial. At times, compelling reasons which are “sufficient to

15 outweigh the public’s interest in disclosure and justify sealing court

records exist when such ‘court files might have become a vehicle for

16 improper purposes,’ such as the use of records to . . . release trade

secrets.” Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172,

17 1178 (9th Cir. 2006) (quoting Nixon v. WarnerCommc’ns, Inc., 435

U.S. 589, 598 (1978) (“[C]ourts have refused to permit their files to

18 serve as . . . sources of business information that might harm a

litigant’s competitive standing”).

19

Here, and importantly, the gravamen of this case is business

20 competition, including whether competition exists; if so, among

which players; and how such competition influences the market. The

21 Court understands that the standard is more lenient when the

information concerns third parties, but this is not dispositive. The

22 third-party information must be balanced with the Court’s ultimate

23

1 The Court notes that there are several administrative motions and declarations relating to

24

the written direct testimony and deposition designations. These will be addressed in a subsequent

trial order at the appropriate juncture.

25

The Court also notes that it received a motion for joinder from Amazon.com Services,

26

LLC filed at docket number 571. While the Court stated in Pretrial Order No. 9 that it is inclined

to seal the party specific agreements (Dkt. No. 564), the Court previously deferred a ruling on the

27

sealing of this document in Pretrial Order No. 7 until its use at trial. (See Dkt. No. 547.) Thus, the

resolution of the instant dispute which should be transparent in its

1 analysis. Accordingly, the Court makes the following findings based

upon the current state of the record:2

2

3 (Dkt. No. 547 at 1-2; Dkt. No. 564 at 1-2.) With this prior framework in mind, the Court

4 addresses the remaining administrative motions.

5 a. Facebook Inc. (Dkt. No. 546)

6 The motion is GRANTED as to all documents except for:

7  PX-2411 (Exhibit 1)

8 o This document shall be unredacted and unsealed, especially where Facebook has

9 failed to show competitive harm from a document almost four years old.

10  PX-2413 (Exhibit 2)

11 o EGFB-001141: the sentence shall be unredacted from “but they did seem” until the

12 end of the sentence. The remainder of the proposed redactions on this page is

13 appropriately sealed.

14 o EGFB-001144: the proposed redaction on this page shall be unsealed.

15 o EGFB-001148: the first sentence in the first numeral shall be unsealed. The

16 remainder of the proposed redactions on this page is appropriately sealed.

17 o EGFB-001160: The redaction at the bottom of the page in the email sent on March

18 2, 2020 at 6:25PM shall be unredacted. The remainder of the page shall be

19 unsealed.

20 o The remainder of proposed redactions in the document is appropriately sealed.

21  PX-2414 (Exhibit 3)

22 o EGFB-002073:

23  The first item shall be unredacted along with the first sentence. The second

24 sentence is appropriately sealed.

25  The second item shall be unredacted along with the first sentence until the

26

2 Litigants are advised that if the Court ultimately decides that certain information is

27

important to disclose which has been sealed, it will provide an opportunity for the moving party to

1 semicolon. The subordinate clause starting with “but Apple” and ending

2 with “offering IAP” shall also be unredacted. The rest of the sentence is

3 appropriately sealed.

4  The second and third sentences shall be unredacted in the third item. The

5 first sentence as well as the item title are appropriately sealed.

6  The second sentence until the word “Android” shall be unredacted in the

7 fourth item. The first remainder of this sentence as well as the item title and

8 the first sentence are appropriately sealed.

9  The last sentence in the fifth item shall be unredacted. The remainder of the

10 sentences and the item title are appropriately sealed.

11  PX-2415 (Exhibit 4)

12 o Facebook has not demonstrated that the withholding of this document from 2017 is

13 appropriate. The chart shall be appropriately redacted and sealed. The first page

14 shall otherwise be unredacted.

15 Regarding the unredacted documents above: these documents, or portions thereof, do not

16 reveal information which is so confidential as to be damaging if revealed as balanced against the

17 need for public access to the factual issues underlying this case. Facebook shall provide the

18 parties with revised redacted versions of the documents which may be used in any public portion

19 of the trial, assuming they are otherwise admissible.

20 b. Lyft Inc. (Dkt. No. 550)

21 The Court GRANTS Lyft’s administrative motion to seal. The Court finds that the proposed

22 redactions are narrowly tailored, and the disclosure of these redactions, reflecting confidential

23 business information and future strategies, would result in competitive harm to Lyft.3 Thus, this

24 information is appropriately sealed.

25

3 The Court notes that these pertain only to Lyft’s proposed redactions. As noted by Lyft

26

in its administrative motion to seal, Lyft received a redacted form of the documents as to the other

entities listed in the documents. (Dkt. No. 550 at 2 n.1.) The documents shall only be redacted

27

and sealed to the extent that it pertains to Lyft’s proposed redactions unless so ordered by the

1 c. Nintendo of America, Inc. (Dkt. No. 554)

2 The Court DENIES Nintendo’s administrative motion to seal its Content License and

3 Distribution Agreement. As the Court stated when considering similar requests by Sony and

4 Valve to seal their general template agreements and policies with developers:

5 Sony has not demonstrated any harm of public disclosure where each

of these policies are disclosed to developers who wish to sell on their

6 digital marketplace. Indeed, per Sony’s motion, these documents are

disclosed to all developers, indicating their wide and broad

7 dissemination to developers engaging with Sony’s digital

marketplace. Moreover, there is a significant public interest in

8 accessing documents relating to alternative digital distribution

platforms, including assessing the competition therein.

9

…

10

For reasons similar to Sony’s request, it is not all clear why these

11 documents [belonging to Valve], template agreements presented to

any developer who wishes to sell games on Valve’s Steam platform,

12 should be sealed when these are widely disseminated to any developer

who so requests it.[] These documents are highly relevant to the

13 Court’s analysis in assessing where competition exists in this action.

14 (Dkt. No. 547 at 4, 5.) The same reasoning is true here, where the document is a general

15 agreement available to any developer who wishes to sell on the Nintendo Switch platform, and

16 such an agreement is widely disseminated to the developer community. The public’s right of

17 access sharply outweighs any competitive harm to Nintendo (as well as to Valve and Sony).

18 d. Kabam, Inc. (Dkt. No. 555)

19 The Court GRANTS IN PART and DENIES IN PART as follows:

20  PX-0067 (Exhibit A – Dkt. No. 555-4)

21 o In the second paragraph, the names of the unreleased games shall be redacted

22 and sealed. If the game has been released, the name of the game shall be

23 unredacted.

24 o The specific percentages in relation to gross revenue in the parenthetical shall

25 be redacted and sealed.

26 o The remainder of this email shall be unredacted.

27  PX-2204 (Exhibit B – Dkt. No. 555-5)

1 than seven years, would result in competitive harm. The only appropriate

2 redaction and sealing is of the personal cell phone number in the initial email.

3 The remainder of the email shall be unredacted.

4 Regarding the unredacted documents above: these documents, or portions thereof, do not

5 reveal information which is so confidential as to be damaging if revealed as balanced against the

6 need for public access to the factual issues underlying this case. Kabam shall provide the parties

7 with revised redacted versions of the documents which may be used in any public portion of the

8 trial, assuming they are otherwise admissible.

9 e. Spotify USA Inc (Dkt. No. 560)

10 The Court GRANTS Spotify’s administrative motion to seal. The motion is narrowly

11 tailored in seeking to file under seal two documents (DX-4491 and DX4641) that contains

12 sensitive information, including user and platform data, the release of which would result in

13 competitive harm to Spotify. That said, the Court does not intend to seal the courtroom if general

14 references summarizing the information without reference to specific numbers are discussed

15 during trial.

16 f. Netflix Inc. (Dkt. No. 588)

17 The Court DENIES Netflix’s administrative motion to seal two documents: PX-0197 and

18 PX-2140. Netflix seeks to seal information relating to payment statistics of its consumers from

19 more than three years ago. Specifically, it seeks to seal information between iOS consumers

20 paying in-app versus on the web. As the first two days of trial have reflected, an issue that is

21 highly relevant to the Court’s determination is the differences for consumers paying in-app and

22 paying on the web. The public’s right to access such information is significantly outweighed by

23 any harm to Netflix, where the information that Netflix seeks to seal is more than three years old.

24 Regarding the unredacted documents above: these documents, or portions thereof, do not

25 reveal information which is so confidential as to be damaging if revealed as balanced against the

26 need for public access to the factual issues underlying this case. Again, these documents reflect

27 areas of competition that are not only highly relevant to the Court’s determination in this action,

1 This Order terminates docket numbers 498, 538, 563, 546, 550, 554, 555, 560, 571, 579,

2 583, and 588.

3 IT Is SO ORDERED.

4 Dated: May 5, 2021

YVONNE GONZALEZ ROGERS

5 UNITED STATES DISTRICT JUDGE

6

7

8

9

10

11

a 12

14

15

16

17

O

Z 18

19

20

21

22

23

24

25

26

27

28