Apple CEO Tim Cook has been ordered by a judge to face a seven-hour deposition for the ongoing litigation battle with Epic Games, the creators of Fortnite. Court Documents revealed that Epic wanted to depose Cook for eight hours.
Apple initially invoked the apex doctrine, which is a rule that prevents high-level corporate employees from being deposed, but then offered a four-hour deposition instead as concession, according to reports.
However, according to Judge Thomas Hixon, the dispute between Apple and Epic is “less than meets the eye” and the apex doctrine only “limits the length of a deposition, rather than barring it altogether”.
According to Hixon, the real question is “whether Cook should be deposed for ‘four hours, eight hours, or some length of time in between’,” but also noted that the decision would have to be a “practical one” since “there is no legal principle to answer the question”.
Hixon decided on the seven-hour deposition and said the time frame was “the default rule of how long a witness must suffer being deposed”. He also added another factor that weighed in on his ruling which was whether Cook has “unique, non-repetitive knowledge of the facts in this case”, which is an important focus of the apex doctrine.
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“There is really no one like Apple’s CEO who can testify about how Apple views competition in these various markets that are core to its business model,” Hixon wrote.
“The antitrust claims presented here implicate the competition the company faces and important aspects of its business model. The CEO’s understanding of these subjects is almost by definition unique and non-repetitive.” he added.
The judge also added that Epic has demonstrated the deposition is going to be meaningful and cited Cook’s previous testimony before the Congress on “issues relevant to the three cases and the game maker’s ability to ‘put forth enough factual information to show that a deposition of ordinary length would not be abusive or harassing’,”.
Hixon determined that under the apex doctrine, a deposition of longer than seven hours for Cook is “unjustified”.
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Additionally, Hixon denied a request from Apple to subpoena internal documents from Samsung, which Apple said supports its claim that their App Store policies are similar to other companies’ policies. Hixon called the request a “quirky deep dive” into Samsung and Epic’s relationship.
“If the market includes dozens or hundreds of app producers, then the ability this particular company has to distribute its apps on other platforms is barely relevant to the antitrust claims at issue, which focus on the effect Apple’s policies have on a market, not just one competitor,” Hixon said and explained that because of Epic’s size, its arrangement with Samsung “cannot serve as a stand-in for some larger category of market participants”.
“This means that the requested documents are idiosyncratic to Epic itself and unlikely to be important evidence of competition in a market or the effect of Apple’s policies on any sort of market, however, the market may ultimately be defined,” Hixon added. Other companies subpoenaed by Apple include Sony, Microsoft, Nintendo, and Amazon.
A trial for Apple and Epic’s case is currently set for May 3, 2021, according to a court filing in October.
