Facebook and Apple are fighting over document requests in the ongoing legal battle between Epic v. Apple, according to a new discovery letter filed in court today. Facebook is involved because Facebook executive Vivek Sharma is ready to testify on Epic’s behalf.
Apple wants a “limited set of documents” needed for a fair cross-examination of Sharma, who plans to testify about Apple’s restrictions on iOS app distribution, the App Store process, and Facebook’s interactions with Apple, but Facebook it does not want to produce the documents that Apple requests.
There are apparently more than 17,000 documents related to Sharma that Apple believes are relevant to the case, but Facebook says that producing tens of thousands of documents is an “untimely, unfair and unjustified request to redo the fact finding.” Facebook has already provided Apple with more than 1,600 documents, including 200 related to Sharma, but Apple doesn’t think that’s enough.
According to Apple, Facebook has continually ignored requests for documents and used delaying tactics. Apple says it served Facebook with multiple subpoenas beginning in December and met with Facebook multiple times to limit the scope of the requests, but Facebook has declined to produce many of the documents in question.
Apple was fed up with Facebook and eventually agreed not to seek additional documents if no Facebook exec testified, but Epic added Sharma to its witness list, and Apple again wants the documents.
Despite Facebook’s knowledge of time constraints on this action, it was paused for five days allegedly because “there is unavoidable technical processing time to” investigate the production load, and finally admitted on March 29 that it did not have the intention to produce more documents.
Facebook claims that Apple waited to request the documents after the discovery period closed (and before Apple confirmed that Sharma would be a witness), making the timing of the request “inappropriate.” Facebook also claims that Apple is requesting additional non-iOS 14 documents and Facebook’s response to app tracking transparency that are irrelevant to the case.
If Apple believed that production was insufficient in any way, it had every opportunity to act to compel within 7 days of the discovery close, as required by the Rules of the Court. Apple decided not to do so, making this motion untimely. Instead, claiming surprise at Epic’s disclosure of Mr. Sharma as a trial witness, even though Epic’s complaint cited him by name, Apple is now demanding that Facebook review and produce an enormous number of additional documents.
Apple is asking the court to order Facebook to comply with Apple’s request for the Facebook documents so that “Apple has a fair opportunity to question the newly revealed trial witness.” Facebook argues that it should not be forced to “review tens of thousands more documents because Apple wants to go fishing for some additional theoretical cross-material” and, therefore, the court should deny the request.