In spite of Apple agreeing to everything Epic requested during discovery, Epic asserts that the company is attempting to artificially delay the litigation process.
It is anyone's guess how the Supreme Court might rule on whether Apple can be in violation of an injunction due to the "spirit of the law." In the meantime, Epic seems desperate to speed up discovery in light of this monumental decision.
According to a joint filing from both Apple and Epic, there seems to be some dispute on the state of document production and discovery. Epic suggests Apple isn't complying and creating artificial delays while Apple's response is equivalent to a lengthy "nuh-uh."
Epic requests that Apple provide all requested documents, including information pertaining to commissions for regions outside of the United States by November 1. That new deadline is weeks ahead of the previous one set for Thanksgiving.
According to the filing, Apple determined the link-out commission rates proposed in August via a few meetings over several months. Then CEO Tim Cook, CFO Kevan Parekh, Services chief Eddy Cue, and App Store head Carson Oliver decided on the rates.
Of the documents already provided, Epic complains of duplications, heavy redactions, and missing information. It expected more information about many more individuals that it alleges took part in the commission decision-making.
Apple pushes back
Apple's statement in the filing says it agreed to search for and produce nonprivileged documents responsive to all of Epic's 16 document requests pertaining to 27 custodians. The search will even be conducted using Epic's broad search terms.
Epic's lawsuit against Apple has been an unmitigated failure for the company so far
Apple holds firm that it has not delayed or withheld production of requested documents. It lays the blame on Epic for requesting such broad amounts of documents that go "far beyond what is necessary to evaluate Apple's proposal."
Epic allegedly is using the filing as a signal for a fight and disagreement that doesn't exist, at least according to Apple. In an attempt to move discovery along and avoid further negotiations, Apple has agreed to all of Epic's requests, and yet the company continues to state it has not.
To make matters more awkward, Epic's attempts to pin Apple as the one that pitched Thanksgiving as the original due date. Apparently, not only did Epic propose that date originally, it didn't come to Apple to negotiate a new date and Monday's filing is the first Apple heard of the earlier date.
Apple tears down Epic's arguments with eight key points that basically suggest that everything Epic claims is incorrect. Instead, Apple paints a picture of being forced into an impossible situation to produce numerous documents that far exceed the scope of the case.
Epic wants the court upset with Apple
It seems, based on Apple's filing, that Epic is simply unhappy that the provided documents are not what Epic hoped to see, even if they are the relevant ones. It also seems that Epic hopes to paint Apple in a bad light as a way to push the court, already upset with Apple, into agreeing with them.
Apple asserts that the business decisions around the new commissions were necessarily done with the small group of executives due to the Court's decision. The Ninth Circuit's restrictions on what Apple could do meant the decision process was simplified and limited in scope versus the original proposal that was deemed in violation.
Even still, the scope of the search is still broad and will produce hundreds of documents, which will take time.
The Court will have to decide if any action is required. Either it will determine that Epic is correct and Apple is causing artificial delays or Apple is complying and will meet the original Thanksgiving deadline.
Expect some kind of public filing and rebuttals on that court decision in the near future. Of course, all of this could be rendered moot depending on how the Supreme Court rules in its judgement on the validity of Apple's original injunction violation.
