Apple’s Four Economists to Epic’s Three Needs Judge as Referee

In Epic Games Inc.’s Fortnite, the best sniper wins. In Epic’s court clash with Apple Inc., it’s all about sharp-shooting economists -- a small army of them.

In a high-stakes antitrust battle over how much the iPhone maker’s App Store charges developers, each side is determined not to let the other gain an advantage heading toward a trial set for May 3 that will be before a judge with no jury. Dueling lawyers have been pushed to counting how many pages and words of analysis the expert witnesses have submitted to the court.

Apple contended the playing field is even -- 294,969 words for Epic and 303,144 words for Apple -- but U.S. Magistrate Judge Thomas Hixson wasn’t sold on the notion that they should have the exact same amount of time to question their opponent’s economists.

“Apple focuses on comparing aggregates and argues that it is fair for each side to have the same number of total deposition hours for the economists’ depositions,” Hixson said in an order late Wednesday. “But since Apple has four economists and Epic has three, the court fails to see why that is fair.”

Still, Hixson agreed to let Apple’s lawyers question Epic’s lead expert economist, David Evans, for 14 hours -- double the time previously allotted by the court -- because Evans’s opinions are central to the case. But Epic couldn’t persuade the judge to give it more than 10 1/2 hours for two of Apple’s witnesses.

“The court rejects Epic’s argument that if Apple gets an additional X hours, then out of parity Epic should also get an additional X hours,” Hixson said. The focus is on the reasonable number of hours required to depose an expert and the scope of reports, “not on false equivalencies between the two sides,” he said.

The case is Epic Games Inc. v. Apple Inc., 20-cv-05640, U.S. District Court, Northern District of California (San Francisco).

©2021 Bloomberg L.P.

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