If nothing else, video game maker Epic Games Inc. has battled the privacy of sensitive corporate documents in Epic's antitrust lawsuit accusing Google's Play Store of operating as an illegal monopoly on app distribution and payment processing. In need of Google LLC has unquestionably succeeded.
We don't yet know whether the video game maker will persuade US District Judge James Donato of San Francisco to allow public disclosure of the content, along with internal documents outlining cell phone makers and telecommunications and Google's response. Google's supposedly conflicting agreements include when Epic made a "special deal to protect Epic from separating from the Play Store app marketplace".
But as Google acknowledged in a filing last week, Epic has already managed to turn Google's request to seal the documents into an opportunity to reveal some of their specifics — a maneuver that gave Google a protective cover. Donato left in outrage about alleged violations of the order signed in May.
Google attorneys for Morgan, Lewis & Baucius and O'Melvaney & Myers wrote, "Epic's attempt to circumvent the protective order and sealing procedures by publicly summarizing and describing the confidential material at issue prior to any court ruling is unwarranted." and is prejudicial." "Google objected to Epic's disregard for the court's protective order and improper disclosure of its confidential information."
Epic has not filed a response to Google's August 11 salvo, and an Epic spokesperson declined to provide a statement on Google's filing. But the Epic brief that led to the filing to Google argued that Google -- not Epic -- is abusing the redaction process. "The real purpose of Google's ceiling request is to hide the full scope of Google's anti-competitive conduct," wrote Epic's attorney for Cravath, Swine & Moore.
The context of the privacy dispute is, of course, an antitrust attack against Google, with every revelation having not only legal but regulatory and public relations implications as well. Epic, which sued Google and Apple Inc in 2020 after removing the wildly popular Fortnite game from its App Store, is one of the plaintiffs in the first multidistrict antitrust lawsuit from Donato.
In July, the game maker filed an amended complaint, citing documents it received from Google, to bolster its allegations that Google crushed competitors. For example, a publicly filed version of the complaint claimed that Google's contracts with cell phone makers effectively barred them from modifying the Android system to allow competition in the Play Store. It also alleged that when Epic began working with Samsung on an alternative platform for distributing its games, Google was trying to force Epic to offer Fortnite via the Play Store as a "smartphone". Special deal".
The protective order required Epic to modify all information from documents designated by Google as confidential. But at a hearing shortly after the game maker filed its revised complaint, Donato reminded Google that the public "has a right to access everything that happens in their public jurisdictions." He ordered Google to "take a hard look at what's sealed and make some independent decisions that should cut it or perhaps eliminate it altogether."
On August 5, Google sealed parts of Epic's amended complaint, arguing that its commercially sensitive business secrets should not be exposed. Unusually, Google also filed its own version of Epic's complaint, reflecting the company's proposed improvements.
The proposed Google version of Epic's complaint revealed more than Epic's public filing — for example, Google upvoted a sentence, in which Epic disclosed that Google had done "something or the other" to block development of a Play Store competitor. Considered buying all Epic" - but still sought to block about 300 lines of text.
Google also filed its proposed revised versions of complaints by other plaintiffs in the MDL, including dozens of state attorneys general and two consumer class action complaints. Epic was the only plaintiff to file a response to Google's ceiling motion.
Epic argued that its entire complaint should be made public, noting that Google offered only general, non-specific justification for sealing internal documents. Its lawyers outlined 14 examples of "particularly serious" demands for privacy. Among them: Google penned a sentence in the Epic complaint disclosing that it had considered buying Epic, but insisted on sealing internal documents about that alleged business strategy, even though the strategy, according to Epic As a result the actual conversation never took place.
Epic also said that Google was trying to seal contracts with cell phone makers that had already been publicly cited by the European Commission. It argued that the contracts were hardly a trade secret, given that Google imposed them throughout the industry. And many of the details Epic sought to disclose, the game maker said, included the Google deal from five or 10 years ago.
Epic said Google's ceiling request was unreasonable. Google said Epic's response was a violation of the protective order. According to Google's August 11 filing, the examples Epic cited pre-empt Donato's decision on Google's seal offer by publicly describing the disputed documents. Google urged the judge to strike down on Epic's brief.
But in what could be a sign that Google is concerned Donato will be with Epic, the company also sought the opportunity to provide a supplemental briefing on its request to keep the documents under seal, arguing that "Epic's unfair shall not be penalized by attempt" to publicly reveal the essence of the confidential material."
Google attorneys Brian Rocca of Morgan Lewis and Daniel Petroselli of O'Melvaney did not respond to my email query on the privacy dispute.
But if the company's response to the mere description of the documents in Epic's complaint is any indication, then any revelation of the actual content should be really juicy.
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