Epic’s disclosures in sealing dispute leave Google bristling

The Epic Games logo, maker of the popular video game "Fortnite", is pictured on a screen
The Epic Games logo, maker of the popular video game "Fortnite", is pictured on a screen in this picture illustration August 14, 2020. REUTERS/Brendan McDermid/Illustration/File Photo

(Reuters) - If nothing else, video game maker Epic Games Inc has unquestionably succeeded in needling Google LLC in a fight over the confidentiality of purportedly 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.

We don’t know yet whether the video game maker will persuade U.S. District Judge James Donato of San Francisco to permit the public disclosure of material including Google’s allegedly anticompetitive agreements with cell phone manufacturers and telecoms and internal documents outlining Google’s reaction when Epic rejected a “special deal” to keep Epic from breaking away from the Play Store app marketplace.

But as Google itself 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 left Google sputtering in indignation about alleged violations of a protective order Donato signed in May.

“Epic’s attempt to sidestep the protective order and sealing procedures by publicly summarizing and describing the confidential materials at issue prior to any court ruling is improper and prejudicial,” wrote Google lawyers from Morgan, Lewis & Bockius and O’Melveny & Myers. “Google objects to Epic’s disregard for the court’s protective order and the improper disclosure of its confidential information.”

Epic hasn’t filed a response to Google’s Aug. 11 salvo, and an Epic spokesperson declined to provide a statement on Google’s filing. But the Epic brief that led to Google’s filing argued that Google – not Epic – is abusing the redaction process. “The true purpose of Google’s sealing request is to conceal the full scope of Google’s anti-competitive conduct,” wrote Epic’s counsel from Cravath, Swaine & Moore.

The context of the confidentiality dispute, of course, is the antitrust onslaught against Google, in which every revelation has not only legal but also regulatory and public relations implications. Epic, which sued Google and Apple Inc in 2020 after they removed its wildly popular Fortnite game from their app stores, is among the plaintiffs in multidistrict antitrust litigation before Donato.

In July, the game maker filed an amended complaint citing documents it had obtained from Google to amplify its allegations that Google squelched competitors. The publicly filed version of the complaint claimed, for instance, that Google’s contracts with cell phone makers effectively precluded them from modifying the Android system to allow for competition to the Play Store. It also alleged that when Epic began working with Samsung on an alternative platform for distributing its games, Google offered a “special deal” to coerce Epic to offer Fortnite through the Play Store.

The protective order required Epic to redact all information from documents Google had designated as confidential. But at a hearing soon after the game maker filed its amended complaint, Donato reminded Google that the public has a “right of access to each and every thing that happens in their public courtrooms.” He ordered Google to “take a hard look at what’s been sealed and make some independent decisions that cut it down or maybe eliminate it entirely.”

On Aug. 5, Google moved to seal portions 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 redactions.

The proposed Google version of Epic’s complaint disclosed more than Epic’s public filing – Google unredacted a sentence, for instance, in which Epic revealed that Google “contemplated buying some or all of Epic” to block its development of a Play Store competitor – but still sought to block out nearly 300 lines of text.

Google also filed its proposed redacted versions of complaints by the other plaintiffs in the MDL, including a complaint by dozens of state attorneys general and two consumer class action complaints. Epic was the only plaintiff to file a response to Google’s sealing motion.

Epic argued that its entire complaint should be public, considering that Google offered only generic, non-specific justifications for sealing internal documents. Its lawyers outlined 14 examples of “particularly egregious” demands for confidentiality. Among them: Google revealed a sentence in the Epic complaint disclosing that it had contemplated buying Epic, but insisted on sealing internal documents about that purported business strategy, even though, according to Epic, the strategy never resulted in actual negotiations.

Epic also said Google was trying to seal contracts with cell phone makers that had already been publicly quoted by the European Commission. The contracts, it argued, were hardly a trade secret given that Google imposed them across the industry. And many of the details Epic sought to disclose, the game maker said, involved Google deals dating back five or 10 years.

Epic said Google’s sealing request was improper. Google said Epic’s response was a violation of the protective order. Those examples Epic cited, according to Google’s Aug. 11 filing, pre-empted Donato’s ruling on Google’s seal motion by publicly describing contested documents. Google urged the judge to strike Epic’s brief.

But in what might be a hint that Google is worried that Donato will side with Epic, the company also asked for a chance to provide supplemental briefing on its request to keep documents under seal, arguing that it “should not be penalized by Epic’s improper attempt publicly to reveal the substance of confidential materials.”

Google lawyers Brian Rocca of Morgan Lewis and Daniel Petrocelli of O'Melveny did not respond to my email query on the confidentiality dispute.

But if the company’s reaction to Epic’s mere description of the documents in its complaint is any indication, any revelation of the actual materials should be juicy indeed.

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.