It’s only the second day of
Epic and Apple going head-to-head in the courts, and it’s already clear that the United States court system was not prepared for the cocktail of a high-profile case centered around an industry that is secretive often to the point of absurdity. Add in struggles with COVID-19 precautions and a call-in audience of rowdy gamers, and this trial is shaping up to be very interesting indeed.
Already, there’s been an ongoing kerfuffle between lawyers, third parties, and the judge regarding games leaks occurring via court documents. To generalize a bit, exhibits submitted as evidence in court are usually a matter of public record, unless a document is “sealed,” meaning it is only visible to a select group of people in court to whom it is relevant. This might be done for a number of reasons — in the case of Epic v. Apple, it’s a matter of concern because a lot of the evidence includes internal documents from video game companies that might reference trade secrets, unannounced projects, and so forth. Unfortunately, it’s causing a lot of problems for everyone in this particular trial.
It’s unclear exactly who dropped the ball in Epic v. Apple, but the trial as a whole keeps hitting stumbling blocks because third-parties are complaining that their classified documents are being leaked to the public via a public folder where all the exhibits are being submitted for perusal. The problem was first apparent yesterday, when over 100 documents submitted to the folder at the start of the day were deleted without explanation, then (mostly) slowly reinstated over the rest of the day. One of the biggest drops of confidential information was caught by The Verge, showing that Sony really, really hated the idea of cross-platform play on its consoles — a line of questioning that was touched upon during Sweeney’s cross-examination yesterday, though not in as much detail..
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The problems continued today. On the bright side (for gaming companies anyway), whoever is in charge of releasing documents seems to have slowed down a bit and is waiting to make sure they aren’t confidential first, though the judge pointed out right out of the gate that it was pointless to re-seal documents that were already leaked. But now there’s a new problem: the court keeps getting surprised by on-the-spot, third-party requests for confidentiality. In one amusing exchange early in the day, a piece of evidence was submitted by Apple with the intent of questioning Sweeney about it. However, proceedings were paused as Epic’s lawyers pushed back, saying there was confidential information in the document that Epic’s third-party partners didn’t want either spoken out loud (where anyone listening on a public line could hear it) or entered into public record.
Apple’s lawyer argued back, saying this was the first he’d heard of the issue, and that he just wanted to ask questions about Epic Games’ business decisions, prompting Epic to respond that they had “only just been alerted to this issue.” It was here that Judge Yvonne Gonzalez Rogers finally lost her patience.
“I have received — I don’t know what, ten? — motions from third parties asking me to seal information,” she said. “I have not received a request with respect to this document.”
Epic’s lawyer then responded by naming the third-party that is apparently mentioned in the exhibit and wanted to be redacted: Paradox (most likely Paradox Interactive). It’s not clear exactly what their negotiations with Epic were beyond a “third-party deal” or are in relation to this document, which has not yet been released and likely will end up redacted (the line of questioning did not reveal anything further). For all we know, it could just be some secretive number connected to Paradox-published Surviving the Aftermath on the Epic Games Store. But as Apple’s lawyer pointed out in exasperation moments later, Epic’s lawyer was the one who named the company who didn’t want to be named publicly, and if the goal was to keep the public from running with leaks, then this exchange hadn’t helped.
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Leaks were mentioned a few more times in the proceedings today, including one instance where Epic’s lawyer once again stepped in to get a single word redacted from a document on the spot. It seems that a number of Epic’s third-party partners are stepping in last minute with requests, realizing that their announcements, plans, and trade secrets might be on the line as a gaming audience hungry for news descends upon folders of court exhibits looking for something juicy. It’s a testament both to the high-profile nature of Epic v. Apple, but also the bizarre silliness that is the overly secretive games industry, in which a publisher everyone knows was resistant to cross-platform play was mortified anyone might find out it was… very resistant to cross-platform play.
Aside from the secrecy problems, the trial’s start has also struggled with a number of more normal technical issues that have nonetheless been exacerbated by the fact that hundreds of gamers are interested in the proceedings. Yesterday, the trial started late in part because the court had to figure out how to mute the public call-in line to stop random callers from yelling “Free Fortnite” (and other less appropriate things) and playing Travis Scott music for everyone to hear — another example of US courts being unprepared for how the games enthusiast populace interacts with things they’re interested in.
The Epic v. Apple trial will be ongoing over the next three weeks, and aside from the Sony leaks there have been numerous other weird or fascinating tidbits mined from the examinations and court documents, including how much Fortnite makes and how much Epic spends on exclusives, details about Walmart’s attempt at a cloud gaming service, and Epic’s plans to put Samus Aran in Fortnite.
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Rebekah Valentine is a news reporter for IGN. You can find her on Twitter @duckvalentine.
