Access measures put in place for Apple v Epic Games trial

A federal judge took measures Wednesday to provide better access to the media and public in next month's antitrust trial over Apple's allegedly anticompetitive App Store policies.

U.S. District Judge Yvonne Gonzalez Rogers said she will allow one member of the press to physically attend proceedings. She will also set up a dedicated virtual line for the media and attorneys for Epic Games and Apple in addition to another for the public at large.

The COVID-19 safety protocols in the Northern District of California currently restrict access to courthouses to certain authorized people. Members of the media and public can only access proceedings virtually.

There are limits on the number of people allowed to attend the trial, which is scheduled to start May 3, to reduce the risk of virus transmission. Apple and Epic are each allowed six people in the courtroom. Both sides have reserved a conference room in the attorneys' lounge and rented office space near the Oakland courthouse.

The Reporters Committee for Freedom of the Press and 18 media organizations moved last week for improved trial access, including the designation of seats in the courtroom for the media, an overflow room in the courthouse and a Zoom line for the proceedings. While they acknowledged the safety concerns in limiting access to the trial amid the pandemic, they argued that the policies are overly restrictive.

Rogers agreed to permit one member of the media to attend the trial. She directed Katielynn B. Townsend, an attorney with the Reporters Committee for Freedom of the Press who represents the media coalition, to propose by Friday a protocol on how to decide on the reporter. Epic Games v. Apple Inc., 20-cv-05640 (N.D. Cal., filed Aug. 13, 2020).

"I hope that you will reach out more broadly to the media other than the ones you represent," the judge said, indicating that she might open up more seats if they become available. "I want to make sure the media is being viewed broadly for purposes of the trial."

After she issued her ruling, Rogers took issue with reports that Apple and Epic will decide on the media member who gets to physically attend the trial. She said "Apparently, Reuters is already incorrectly reporting something on this" and directed Townsend to address it.

Asked about setting up an overflow room with a video feed of the proceedings, Rogers noted that federal courts are not allowed to video live testimony and that all of the rooms in the Oakland courthouse are scheduled for use. There are two jury trials, which each require two rooms under the court's COVID-19 protocols, that will run concurrently with the Apple v. Epic Games trial.

Instead, there will be a communications line with a maximum capacity of 200 people solely for the media and attorneys for Epic and Apple, and another with a maximum capacity of 500 people for the public.

Rogers, who said she's not concerned for her safety since she's been vaccinated, also pushed back on a joint request from Epic Games and Apple for attorneys and witnesses to testify without masks.

"I can't be sure who's vaccinated and who's not," the judge said. "I am reluctant to grant that request because it would potentially increase risk."

The trial will feature changes to court procedures to reduce the risk of virus transmission. Safety protocols include mandating that everyone in the courtroom wear masks, a sanitation protocol after testimony, socially distanced examination of witnesses and an air filtration system.

The court does not require court attendees to be vaccinated or inquire about vaccination status.