Facebook and Apple are arguing over document requests in the ongoing legal battle Epic against Apple, according to a new letter of discovery filed in court today. Facebook is involved because Facebook boss Vivek Sharma is set to testify on behalf of Epic.
Apple wants a “limited set of documents” needed for a fair cross-examination of Sharma, who plans to testify to Apple’s limitations on iOS app distribution, the App Store process and Facebook’s interactions with Apple, but Facebook does not want to produce the documents as Apple request.
There are apparently more than 17,000 documents related to Sharma that Apple believes are relevant to the case, but Facebook says producing tens of thousands of documents is an “untimely, unfair and unjustified request to redo the discovery.” Facebook has already provided Apple with more than 1,600 documents, including 200 involving Sharma, but Apple does not think that is enough.
According to Apple, Facebook has continuously ignored requests for documents and used delay tactics. Apple says it served several subpoenas to Facebook starting in December and met with Facebook several times to limit the scope of the requests, but Facebook has refused to produce many of the relevant documents.
Apple was tired of Facebook and eventually agreed not to pursue more documents if no Facebook leaders testified, but Epic added Sharma to the witness list, and Apple wants the documents again.
Despite Facebook’s knowledge of the time constraints in this action, it stopped for five days allegedly because “it is inevitable technical processing time baked in to” examine the production burden, and finally admitted on March 29 that it did not intend to produce more documents.
Facebook claims that Apple waited to request the documents after the discovery period was closed (and before Apple confirmed that Sharma would be a witness), which made the timing of the request “inappropriate”. Facebook also claims that Apple is asking for additional unrelated documents related to iOS 14 and Facebook’s responses to App Tracking Transparency that are irrelevant to the case.
If Apple felt that the production was not sufficient in any way, it had every opportunity to recover within seven days of the end of the investigation required by court rules. Apple chose not to, and made this move untimely. Instead of claiming surprise over Epic’s revelation of Mr. Sharma as a court witness – although Epic’s complaint quoted him by name – Apple now requires Facebook to review and produce a huge number of additional documents.
Apple asks the court to order Facebook to comply with Apple’s request for Facebook documents so that “Apple has a reasonable opportunity to cross-examine the recently revealed court witness.” Facebook claims that it should not be forced to “review tens of thousands more documents because Apple wants to fish for some theoretical additional material,” and therefore the court should reject the request.