Epic Games, Inc v Apple Inc (Notice to Produce) [2021] FCA 165

Epic Games, Inc v Apple Inc (Notice to Produce) [2021] FCA 165

The information sought by Epic was relevant to resisting Apple's permanent stay application, at least unless Apple conceded for that application that the Australian markets alleged by Epic existed. However, the notice to produce was framed in a way that could require production of a very considerable body of documentation and was disproportionate to the information actually sought. Epic's proposed alternative form did not cure the problem because it failed to identify with adequate specificity which document was to be produced. The notice to produce was therefore set aside.

Jurisdiction
Australia
Judgment Date
02 March 2021
Procedural Posture
Application to Set Aside Notice to Produce Documents / Interlocutory Application Determined on the Papers
Outcome
Apple's application to set aside the notice to produce was granted.
Legal Topics
['notice to Produce' 'relevance' 'oppression' 'forum Non Conveniens' 'permanent Stay' 'exclusive Jurisdiction Clause' 'restrictive Trade Practices']
['practice and Procedure' 'competition and Consumer Law'] ['notice to Produce' 'relevance' 'oppression' 'forum Non Conveniens' 'permanent Stay' 'exclusive Jurisdiction Clause' 'restrictive Trade Practices']

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Procedural Posture

Application to Set Aside Notice to Produce Documents / Interlocutory Application Determined on the Papers

Legal Issues

  1. 1 ["Whether the documents sought by Epic's notice to produce were relevant to the issues arising on Apple's application for a permanent stay." 'Whether the notice to produce was oppressive.' 'Whether the alternative form of notice to produce identified documents with adequate specificity.']

Ratio Decidendi

The information sought by Epic was relevant to resisting Apple's permanent stay application, at least unless Apple conceded for that application that the Australian markets alleged by Epic existed. However, the notice to produce was framed in a way that could require production of a very considerable body of documentation and was disproportionate to the information actually sought. Epic's proposed alternative form did not cure the problem because it failed to identify with adequate specificity which document was to be produced. The notice to produce was therefore set aside.

Court Disposition

Apple's application to set aside the notice to produce was granted.

Orders

  • ['The Notice to Produce dated 28 January 2021 issued by the Applicants to the Respondents be set aside.' "Costs of the Respondents' interlocutory application filed 9 February 2021 abide by the outcome of the Respondents' interlocutory application filed 22 December 2020."]