Facebook, Microsoft executives can testify in Apple-Epic Games trial

Executives from Facebook and Microsoft will be allowed to testify for Epic Games in next month's antitrust trial over Apple's app store policies, a federal judge ruled.

Denying Apple's bid to bar the third-party witnesses from taking the stand, U.S. District Judge Yvonne Gonzalez Rogers found on Monday that Epic timely disclosed their identities once it confirmed they would appear at the bench trial.

There was an agreement that both sides would be able to depose third-party witnesses. Apple said it was only provided the names of the companies the witnesses are employed by and only just learned their actual identities, preventing it from seeking relevant discovery and preparing for cross-examination.

"Epic has created a procedurally unfair situation in which Apple is unable to adequately prepare to address the potentially sweeping scope of testimony that Epic apparently plans to elicit," Apple attorneys at Skadden, Arps, Slate, Meagher & Flom LLP wrote in a motion for sanctions.

Epic denied allegations of gamesmanship. It argued in court filings that Apple is trying to reopen discovery "mere weeks before trial because it has not disclosed any additional third-party witnesses of its own and thus sees a tactical opportunity to disadvantage Epic."

Attorneys for neither company responded to requests for comment. Epic Games v. Apple Inc., 20-cv-05640 (N.D. Cal., filed Aug. 13, 2020).

Rogers concluded Epic promptly told Apple the individual names of Facebook vice president of gaming Vivek Sharma, Microsoft vice president of gaming Lori Wright and Yoga Buddhi chief executive Benjamin Simon when it learned they would be testifying.

While both sides' understanding of their deal was muddled, the judge found Epic was "substantially justified in relying on the agreement."

Apple moved for sanctions after the judge overseeing discovery denied its motion to force Facebook to turn over documents it said were necessary to cross-examine Sharma. It sought materials related to Facebook's highly publicized ad campaign against Apple over enhanced privacy standards and communications about Epic litigation to assess the company's motivation and bias in testifying.

U.S. Magistrate Judge Thomas Hixson ruled it was too late since the discovery period had closed.

Sharma is expected to testify on the distribution of Facebook's apps, Apple's app review process and why the social media giant is participating in the litigation.

To the extent that the third-party witnesses have failed to turn over relevant documents, Rogers warned she will weigh the noncompliance when considering their credibility, and it might warrant the striking of their testimony.

"The court has repeatedly instructed that trial is not an opportunity for surprises," she wrote.

The trial will begin on May 3.

Senior executives at both companies will take the stand.

For Apple, chief executive Tim Cook and software engineering chief Craig Federighi top the list. Chief executive Tim Sweeney and software development chief Mark Rein will testify for Epic.