If nothing else, computer game maker Epic Games Inc has unquestionably succeeded in needling Google LLC during 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 computer game maker will persuade U.S. District Judge James Donato of San Francisco to allow the general public disclosure of fabric including Google’s allegedly anticompetitive agreements with telephone manufacturers and telecoms and internal documents outlining Google’s reaction when Epic rejected a “special deal” to stay Epic from breaking faraway from the Play Store app marketplace.
But as Google itself acknowledged during a filing last week, Epic has already managed to show Google’s request to seal the documents into a chance to reveal a number of their specifics – a maneuver that left Google sputtering in indignation about alleged violations of a protective order Donato signed in May.
“Epic’s plan to sidestep the protective order and sealing procedures by publicly summarizing and describing the confidential materials in dispute before 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 therefore the improper disclosure of its tip .”
Epic hasn’t filed a response to Google’s Aug. 11 salvo, and an Epic spokesperson declined to supply a press release 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 hide the complete scope of Google’s anti-competitive conduct,” wrote Epic’s counsel from Cravath, Swaine & Moore.
The context of the confidentiality dispute, of course, is that the antitrust onslaught against Google, during which every revelation has not only legal but also regulatory and PR 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 sport 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, as an example, that Google’s contracts with telephone makers effectively precluded them from modifying the Android system to permit competition to the Play Store. It also alleged that when Epic began working with Samsung on an alternate platform for distributing its games, Google offered a “special deal” to coerce Epic to supply 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 sport maker filed its amended complaint, Donato reminded Google that the general public features a “right of access to every and each thing that happens in their public courtrooms.” He ordered Google to “take a tough check out what’s been sealed and make some independent decisions that cut it down or even eliminate it entirely.”
On Aug. 5, Google moved to seal portions of Epic’s amended complaint, arguing that its commercially sensitive business secrets shouldn’t 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 quite Epic’s public filing – Google unredacted a sentence, as an example, during which Epic revealed that Google “contemplated buying some or all of Epic” to dam its development of a Play Store competitor – but still sought to dam out nearly 300 lines of text.
Google also filed its proposed redacted versions of complaints by the opposite plaintiffs within the MDL, including a complaint by dozens of state attorneys general and two consumer class-action suit complaints. Epic was the sole 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 samples of “particularly egregious” demands for confidentiality. Among them: Google revealed a sentence within the Epic complaint disclosing that it had contemplated buying Epic, but insisted on sealing internal documents that purported business strategy, albeit, consistent with Epic, the strategy never resulted in actual negotiations.
Epic also said Google was trying to seal contracts with telephone makers that had already been publicly quoted by the ECU Commission. The contracts, it argued, were few secrets as long as Google imposed them across the industry. and lots of of the small print Epic sought to disclose, the sport 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, consistent with 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 could be a touch that Google is worried that Donato will side with Epic, the corporate also asked for an opportunity to supply supplemental briefing on its request to stay 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 didn’t answer 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 particular materials should be juicy indeed. The opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence, and freedom from bias.