Counsel for Apple has filed a motion to have testimony from Microsoft’s Lori Wright undermined in the Epic Games trial.
A motion filed overnight from Apple’s lawyers states:
Lori Wright’s trial testimony on May 5, 2021 made abundantly clear that neither Microsoft nor Epic heeded the Court’s admonition that “trial is not an opportunity for surprises.” Dkt. 437 at 3. The Court has already entered an order expressing its expectation that Microsoft would “adequately and timely produce [relevant] documents in advance of [Ms. Wright’s] deposition,” and warning that “fail[ure] to make a sufficient production of relevant documents to both parties” would “weigh . . . against [her] credibility” and “may warrant the striking of testimony.” Id. at 4 (footnote omitted). However, Ms. Wright’s documents were not produced to Apple in advance of her deposition or trial testimony. Apple respectfully submits that an adverse credibility finding is warranted.
The motion says Wright confirmed at trial and in her deposition she had files relevant to the matters she spoke about, such as who Microsoft views as Xbox competitors, profit and loss statements for the Xbox, and more. Apple says that Microsoft “intentionally” withheld these documents” before and after her deposition. Furthermore, Apple’s lawyer state Wright confirmed Microsoft has “a large financial incentive to support Epic” (Wright told the court Microsoft makes $700 million in revenue from Epic titles), yet that they were forced to “cross-examine her with one arm tied behind its back” without documents that could contradict her testimony.
The motion says Epic belatedly called Wright, a matter parties have previously clashed on, before citing the court’s warning that failure to produce documents in a timely manner could incur sanctions, and finally stating that Wright’s deposition stated she had documents to back up her testimony but that Microsoft didn’t produce them.
The motion states:
Microsoft’s intentional withholding of relevant documents is not substantially justified. Indeed, it was on ample notice of the consequences of failing to produce relevant documents to Apple, and it has chosen to produce nothing. Nor is Microsoft’s failure harmless. The opportunity for Apple to fairly examine Ms. Wright has passed. See Bauer Bros. LLC v. Nike, Inc., 2012 WL 1570828, at *2 (S.D. Cal. May 3, 2012) (excluding witness testimony where failure to disclose underlying documents was neither substantially justified nor harmless). The result—as spelled out in this Court’s previous order—should be to enter an adverse credibility finding as to the entirety of her testimony on direct
and redirect examination by Epic.
If granted, the motion would grant an Adverse Credibility Finding that would see her testimony viewed as not credible for the purposes of the trial.