Judge objects to Epic Games counsel’s suggestion rulings aren’t fair

Epic Games' lead counsel caught the ire of a federal judge on Thursday when she stated that Apple is being held to a lower standard over evidence allowed into the antitrust trial.

"I try to be fair to both sides and don't like the suggestion that I'm not," U.S. District Judge Yvonne Gonzalez Rogers told Epic's attorney, Katherine Forrest, a partner at Cravath, Swaine & Moore LLP and a former federal judge.

Epic wanted to introduce a series of emails sent to Apple employees from developers complaining about the management of the App Store. The gaming company offered them as business records because they were received during the course of business.

Rogers rejected some of the submissions as hearsay because Apple was only a recipient of the emails. This led to Forrest accusing the judge of unfairly allowing Apple to introduce similar evidence against Epic.

The case has reinforced battlelines between Apple and those who say it implements rules that impede developers from distributing apps to over 1.5 billion iPhone users. The outcome of the trial could have broad implications on other efforts to rein in big tech companies in court and through state and federal regulation.

Rogers will decide whether Apple maintains a monopoly over its App Store, and if so, the remedy to fix it. The bench trial that started on Monday is expected to last at least three weeks. Epic Games v. Apple Inc.

Matt Fischer, vice president of the App Store, was asked to authenticate multiple emails sent to him that Epic wants to use later in the trial that detail complaints by developers over policies that govern the App Store.

Some of the messages outlined unwarranted delays in the review process to get apps onto the App Store, delays in approving updates and arbitrary rejection decisions. Among their issues was that the "App Store is plagued with outdated, low quality apps", "app reviewers are not consistent among competing apps" and "review times should be hours not days."

Others accused Apple of enabling financial fraud by approving apps that scam users. The subject line of one email read, "App Store fraud gets unbearable."

Rogers questioned at some points if she should permit evidence that was not necessarily true. When Forest responded that Apple has been allowed to submit such evidence, the judge said it's already been admitted and there was no objection.

Thursday morning started with a discussion of whether Epic should be allowed to submit documents related to expert testimony next week.

An Apple attorney stated that the request is a "document dump."

Forrest argued that there's "been an attempt to keep records out of this case."

"I'm not going to enter evidence in an improper way," Rogers said. "We aren't just going to put something out there on the internet, which is what you guys are doing at the end of trial."

"Your honor, can I make one final point," Forrest asked.

"No," Rogers replied.

Epic has alleged that Apple abuses its power as the gatekeeper of the App Store by prohibiting certain types of apps that it views as competition or as a way to circumvent its payment processing system, from which it takes a cut of up to 30% on all transactions. The gamemaker does not seek monetary damages. It wants Apple to permit apps to use their own payment systems and offer their own app stores where they are not restricted by Apple's policies.

While questioning Fischer, Forrest introduced an email in which an Apple employee describes his feeling "extremely strong about not featuring our competitors on the App Store."

Fischer challenged the accuracy of the message implying that he wanted to stifle competition when asked by Apple attorney Jay P. Srinivasan of Gibson, Dunn & Crutcher LLP to clarify what he meant. Fischer said the employee was "very misinformed" and that he followed up with her manager after she sent the email.

Apple bars approval of apps that offer a catalogue of games for a subscription fee, including Microsoft's xCloud, while maintaining a similar product called Apple Arcade.

Fischer said Apple Arcade is different because, "It's a game subscription service in the App Store" and "not a separate app."

Trial will continue on Friday with testimony from Trystan Kosmynka, an Apple employee who will discuss the app review process.

Antitrust scrutiny of companies that maintain exclusive control over their digital marketplaces for consoles continues to intensify. Sony was hit on Thursday with an antitrust lawsuit alleging it has a monopoly over digital game purchases on the PlayStation.