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Law360 (February 24, 2021, 5:47 PM EST) -- A California magistrate judge ordered third-party game distributor Valve Corp. on Wednesday to hand over certain sales and pricing data to Apple in Epic Games' antitrust suit over the tech giant's App Store fees, telling Valve, "Apple has salted the earth with subpoenas, so don't worry, it's not just you."
During a hearing held via Zoom, U.S. Magistrate Judge Thomas S. Hixson ordered Valve to produce aggregate historical sales, pricing and other data on 436 games sold on the virtual game store Steam, but the judge limited the data production to sales that go back to 2017, instead of to 2015 as Apple initially requested.
"It's my understanding, for lack of a better word, Apple has salted the earth with subpoenas, so don't worry, it's not just you," Judge Hixson told Valve's counsel.
The order came at the end of the hearing on a discovery dispute between Apple and the Bellevue, Washington-based Valve over Apple's request for detailed historical sales and pricing information going back multiple years for games Valve distributes on its online storefront.
Valve is one of multiple third-party companies that Apple has subpoenaed in hotly contested litigation over claims that the App Store monopolizes app distribution systems, locking developers into its systems and forcing them to pay Apple a 30% commission for in-app purchases by users.
The litigation includes the Fortnite game maker's August antitrust case against the tech giant, Apple's breach of contract counterclaims against Epic, and separate proposed class actions by customers and developers. The discovery disputes have ramped up as Epic's lawsuit against Apple heads to a May bench trial before U.S. District Judge Yvonne Gonzalez Rogers in the Northern District of California.
On Wednesday, Valve's counsel, Gavin W. Skok and Jaemin Chang of Fox Rothschild LLP, urged Judge Hixson, who is presiding over discovery in the litigation, to find that Valve doesn't have to hand over gaming data to Apple.
Skok argued that the request is overly burdensome, particularly since Valve is a small, privately held company with roughly 350 employees. He said the company doesn't regularly produce such reports in the ordinary course of business, and added that the requested data is either already publicly available or includes confidential third-party information that belongs to game developers and not Valve. If Apple wants the data, it should request it directly from the third parties, he said.
Skok also noted that Valve would have to dedicate multiple employees working full time to respond to the requests and could not guarantee that their work would be done in time. There are multiple versions of the games, each with its own packages and items that users can purchase, so pulling the data for just one of the 436 games requested would require many hours of work, he said.
If anything, he said, Apple should be entitled to receive only Valve's aggregate sales and pricing data, much of which is already public.
But Apple's counsel, Jay P. Srinivasan of Gibson Dunn & Crutcher LLP, defended Apple's subpoena and pointed out that Apple tried to compromise by limiting its request to 436 games, as opposed to requesting data on all 30,000 games sold on Valve.
Srinivasan argued that the data will help support Apple's definition of the relevant market at issue and will show how Epic wasn't limited by Apple's conduct. He also noted that Valve was mentioned in the plaintiff's complaint and in an expert report.
"This is a prominent player to complete the picture of the relevant market," he said.
Judge Hixson ordered Valve to produce certain data by mid-March.
The developers are represented by Benjamin Jacob Siegel and Robert F. Lopez of Hagens Berman Sobol Shapiro LLP.
Epic Games is represented by Paul J. Riehle of Faegre Drinker Biddle & Reath LLP and Christine A. Varney, Katherine B. Forrest, Gary A. Bornstein, Yonatan Even, Lauren Moskowitz and M. Brent Byars of Cravath Swaine & Moore LLP.
