Second judge implies Apple lied in Epic lawsuit; denies request

A second judge in the Apple versus Epic Games lawsuit has implied that the Cupertino company has lied to the court. It comes after the original judge strongly implied that Apple had not told the truth about the reasons for its new App Store policy.

A second judge tasked with overseeing Apple’s disclosure of decision-making documents in the antitrust case said that a court filing made by the company was “simply not believable” …

A quick recap

• Epic Games introduced its own in-app payment system on iPhone
• This bypassed the App Store, and denied Apple its 30% commission
• This was a blatant breach of App Store terms & conditions
• Apple responded by throwing the company off the App Store
• The two companies went to court
• The court told Epic that Apple did not operate a monopoly
• The court told Apple it must allow in-app sales outside the App Store
• Both cases appealed the parts of the ruling they didn’t like
• The US Supreme Court declined to hear either appeal
• Apple said it would comply, but would effectively charge the same commission
• Epic went back to court, arguing this went against the judge’s intent
• The judge implied she agreed that Apple was guilty of bad-faith compliance

Apple had claimed its decision wasn’t financially motivated, despite the 27% commission being identical to 30% less the 3% typically charged by payment processors (which would now be paid by Epic). The judge expressed skepticism, and ordered the iPhone maker to hand over all documents leading up to it decision to continue charging commission even on sales made outside the App Store.

Compliance with her order was referred to Magistrate Judge Thomas S. Hixson for management. The deadline for production is today.

Apple’s last-minute request for more time ‘bad behavior’

To determine the number of relevant documents, the terms of a keyword search had been agreed with the court. Apple ran that search and told the court that 650,000 documents matched, and these were the documents it would need to produce. It was ordered to provide fortnightly progress reports.

On Thursday – just four days before the deadline – Apple told the court that there were in fact 1.3 million matching documents, and requested more time. In a response (spotted by The Verge), the Judge Hixson has rejected that request, and said that Apple’s claim that it had only just discovered this error was “simply not believable.”

Before yesterday’s report Apple never previewed to Epic Games or to the Court that the number of documents it would need to review exceeded its prior estimate by a substantial amount. This information would have been apparent to Apple weeks ago. It is simply not believable that Apple learned of this information only in the two weeks following the last status report. This gives rise to several related concerns.

First, Apple’s status reports weren’t any good. Apple knew it wasn’t on track to make the substantial completion deadline and kept that a secret. Had Apple promptly informed Epic and the Court that this project was broader in scope than it had anticipated, the Court could have discussed possible solutions with the parties, such as Apple hiring more document reviewers so it could make the existing deadline. Waiting until four days before the substantial completion deadline to announce its planned noncompliance and to disclose for the first time that the scope of document review was larger than previously represented is bad behavior.

And we have to worry about why this bad behavior happened. Apple is one of the largest companies in the world, with nearly infinite resources available to it. If Apple really wanted to, could it collect and review 1.3 million documents between August 8 (the date of the Court’s order) and September 30 (the deadline for substantial completion)? Yes, of course it could […]

The way Apple announced out of the blue four days before the substantial completion deadline that it would not make that deadline because of a document count that it had surely been aware of for weeks hardly creates the impression that Apple is behaving responsibly. Apple’s request for an extension of time is DENIED.

That means Apple is still required to produce all the documents to the court today.

9to5Mac’s Take

We said at the time that Apple’s response was effectively giving the middle finger to the judge, and she indeed seemed to echo that view. Her demand to see all of the documents relating to this decision – and emphasising that she really does mean all of them – was further evidence that Apple has lost all credibility with her, and she wanted to see for herself how the decision was reached.

This latest ruling shows that Apple has also lost credibility with a second judge in the case.

We’ve reached out to Apple for comment, and will update with any response.

Photo by Bermix Studio on Unsplash