Participating in a deposition is a common occurrence for expert witnesses. What’s less common is a request for 14 hours of deposing for a single expert. But this is exactly what transpired in a recent case in California’s Northern District. The presiding judge in Epic Games, Inc. v. Apple Inc. granted Apple’s lengthy request to depose one of Epic’s expert witnesses. Given this outcome, attorneys and their expert witnesses will want to think twice before submitting all-encompassing, bulky expert reports in complicated cases.
Case Complaints
In August 2020, Epic Games, a video game developer, filed a lawsuit against Apple. The complaint alleges violations of U.S. and California antitrust laws. Specifically, Epic Games claims these violations occurred in how Apple restricts iOS app developers and sellers in the distribution market. Epic says that Apple’s restrictions on how companies can sell and distribute iOS products constitute an illegal monopoly. Further, the complaint alleges Apple also violated antitrust laws through its in-app payment processes via the Apple App Store.
Apple facilitates massive numbers of application purchases and developer tool downloads through its App Store. Typically, Apple takes a 30% fee on these transactions. Moreover, huge numbers of companies have created iOS-based products for distribution through the Apple App Store. Developers like Epic also license and distribute tools from Apple to build iOS applications.
The Plaintiff: Epic Games
Epic Games is not your run-of-the-mill video game developer. Epic is a U.S. company operating the wildly successful video game Fortnite. This game boasts 350+ million accounts and 2.5 billion friend connections. The company also develops Unreal Engine, a popular “open and advanced real-time 3D creation tool” that developers use to construct iOS applications in film, television, automotive, and other industries. Epic has used the Apple App Store to distribute its games and developer tools for years.
Up Against Apple
In July 2020, an emboldened and perhaps fed-up Epic told Apple it wanted to collect payment directly from App Store consumers without Apple’s 30% commission. Epic also proposed to offer a competing Epic Game Store App available through the Apple App Store. Not surprisingly, Apple counsel pushed back, citing the company’s licensing agreement and operating rules.
Undaunted, Epic released a Fortnite update that enabled direct payments from consumers, circumventing Apple’s payment system. When Apple found out that same day, it removed Fortnite from the App Store. Apple also blocked all access to Epic’s Unreal Engine and terminated Epic’s status as a registered Apple Developer. This, of course, sparked Epic’s legal action and plea to the court to end Apple’s allegedly anticompetitive conduct.
The 14 Hour Request
As discovery proceeded in this complicated, expert-heavy case, Epic disclosed three economist experts and Apple disclosed four economist experts. On March 24, 2021, U.S. Magistrate Judge Thomas S. Hixson, granted Apple’s motion to extend the deposition of Epic’s expert, David S. Evans, from seven to fourteen hours.
The court discounted both parties’ arguments that the time extension ruling should be based on an aggregate number of pages of all the experts’ reports. Rather, Judge Hixon states that “good cause showing focuses on the number of hours that are reasonably needed to depose an expert, not on false equivalencies between the two sides.”
The court found that the length and array of issues in the Evans report justified two full days for deposition. The court noted that Evan’s report was 653 pages long and that it covers “nearly every disputed economic issue in this lawsuit.” The judge further commented, “[T]here is nothing wrong with Epic doing that, but both Epic and Evans must have understood that expert opinions of such scope and length would necessitate two full days of deposition. Denying Apple 14 hours with which to depose Evans would unfairly prejudice Apple’s ability to take discovery into his opinions.”
Key Takeaways for Future Cases
After this ruling, attorneys may want to consider spreading out complex case topics to several experts. Since Evans opined on so many of the lawsuit’s issues, his report became very lengthy. For similarly complicated, dense expert reports, courts may again greenlight grueling, long depositions. As we saw here, the court found it necessary so the opposition has enough time to ask questions of an expert opining on so many key issues.
Even the most stalwart expert is bound to become fatigued during a 14-hour deposition. Though breaks may be taken, the excruciating ordeal of such a long deposition may make it more likely that an expert may stumble and give a problematic answer. As such, attorneys will want to divvy up work among a reasonable number of qualified experts for cases as complicated as Epic Games v. Apple. Experts themselves will also want to be proactive and not take on too many issues that will require a report stretching out over 650+ pages and spanning a vault of issues.
