In a significant ruling on Monday, U.S. Magistrate Judge Thomas Hixson criticized Apple for improperly invoking attorney-client privilege to avoid disclosing key documents in its ongoing legal battle with Epic Games, the maker of Fortnite. The lawsuit, which centers on Apple’s App Store practices and its alleged antitrust violations, has seen both companies clash over Apple’s compliance with a previous court order issued in 2021.
Judge Hixson, presiding over the case in San Francisco, rejected Apple’s argument that a substantial portion of internal documents related to the App Store could be withheld due to attorney-client privilege. Epic Games, which has accused Apple of non-compliance with a May court order that required the tech giant to provide developers with more freedom to direct users to alternative payment options, had asked the court to hold Apple in contempt for its failure to fully comply.
In his ruling, Judge Hixson found Apple’s claims of attorney-client privilege to be overly broad and unsupported. He wrote that privilege does not “descend like a giant fog bank over every document” simply because they are associated with efforts to ensure legal compliance. Specifically, the judge deemed it “improper” for Apple to use privilege as a shield for business decisions, including those regarding user interface design. He also ordered Apple to turn over a draft of a press briefing that had been withheld.
This legal setback is the latest development in the high-profile case, which has garnered significant attention for its implications on digital marketplaces and antitrust regulations. Apple has already submitted 95,000 documents in response to the court’s order but withheld another 57,000 documents, citing privilege claims.
The case revolves around a 2021 ruling that mandated Apple to allow developers to provide alternative payment methods to App Store users, a move seen as a significant win for Epic Games. However, Epic has since argued that Apple’s compliance has been insufficient, leading to the current dispute over the withheld documents.
Apple has denied any wrongdoing, asserting that it has complied with the court’s instructions. However, the company has yet to release all the requested documents, which are critical to determining whether Apple is truly following the court’s directives.
This is not the first time tech giants have faced scrutiny over their use of attorney-client privilege. In 2022, the U.S. Department of Justice accused Google of abusing privilege in an antitrust case by adding lawyers to emails to shield business communications from scrutiny. Although Google denied any misconduct, the case highlighted the growing concern over companies using legal protections to conceal potentially damaging business information.
The Epic Games vs. Apple case continues to unfold in the U.S. District Court for the Northern District of California. Epic is represented by Yonatan Even of Cravath, Swaine & Moore, while Apple’s legal team includes Mark Perry of Weil, Gotshal & Manges.
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