Facebook and Apple are discussing document requests in the Epic vs. Legal battle Apple, according to a new discovery letter presented to the court today. Facebook is involved because Facebook executive Vivek Sharma must testify on behalf of Epic.
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Apple wants a “limited set of documents” that are necessary for a fair cross-examination by Sharma, who plans to testify about Apple’s restrictions on the distribution of iOS apps, the App Store process and Facebook’s interactions with Apple, but Facebook does not want to produce the documents that Apple is asking for.
Apparently, there are more than 17,000 Sharma-related documents that Apple considers relevant in the case, but Facebook says that producing tens of thousands of documents is an “extemporaneous, unfair and unjustified request to redo the fact discovery”. Facebook has already provided Apple with more than 1,600 documents, including 200 involving Sharma, but Apple does not believe that is enough.
According to Apple, Facebook continually ignores requests for documents and uses delay tactics. Apple says it has delivered several subpoenas to Facebook since December and has met with Facebook several times to restrict the scope of the requests, but Facebook has refused to produce many of the documents in question.
Apple was fed up with Facebook and finally agreed not to seek additional documents if no Facebook executive testified, but Epic added Sharma to its list of witnesses, and Apple again wants the documents.
Despite Facebook’s knowledge of time constraints on this action, it was paralyzed for five days allegedly because “there is an inevitable technical processing time” to investigate the weight of production and finally admitted on March 29 that it did not intend to produce more documents.
Facebook says that Apple waited to request the documents after the discovery period ended (and before Apple confirmed that Sharma would be a witness), making the timing of the request “inappropriate”. Facebook also claims that Apple is asking for additional unrelated documents related to iOS 14 and Facebook’s response to Application Tracking Transparency that are irrelevant to the case.
If Apple believed that production was insufficient in any way, it had every opportunity to move to oblige within 7 days after the discovery was closed, as required by the Court’s Rules. Apple chose not to do so, making this move inopportune. Instead, claiming surprise at Sharma’s revelation as a witness to the trial by Epic – although Epic’s complaint cited him by name – Apple now requires Facebook to review and produce a huge number of additional documents.
Apple is asking the court to order Facebook to comply with Apple’s request for Facebook documents so that “Apple has a fair opportunity to interrogate the newly revealed trial witness.” Facebook argues that it should not be required to “review tens of thousands of documents because Apple wants to go fishing for some additional theoretical cross material” and therefore the court must deny the request.