Epic Games has told a court it would like former SVP of iOS Scott Forstall to testify in its antitrust suit against Apple, but there seems to be a problem pinning him down.
Epic told a court that both parties have agreed Epic may depose Forstall subject to court approval, noting his importance as the head of iOS when the iPhone was first launched, and for five years thereafter. Epic believes Apple “offered” Forstall for deposition, even suggesting they could interview him instead of his successor. It also supposedly confirmed they represented Forstall and would provide dates for his deposition. That position now seems to have changed:
Apple now states that it never suggested it could compel Mr. Forstall to appear for a deposition, but that is a red herring; Apple never indicated that compulsion would be necessary and so, based on Apple’s representation, Epic did not seek to locate, contact or compel Mr. Forstall to appear for a deposition. For well over a month, Apple kept promising it would provide a date for Mr. Forstall’s deposition but did not. Then, on February 5, 2021—just ten days before the end of fact discovery—Apple revealed that Mr. Forstall had not responded to Apple’s inquiries or confirmed that he will appear for a deposition, which was then tentatively scheduled for February 11. When Epic requested that Apple provide Mr. Forstall’s last known address and contact information, Apple initially provided a PO box and a Twitter handle. Apple also represented that it was not authorized to share Mr. Forstall’s phone number, but later stated that it did not believe that it was in possession of Mr. Forstall’s current phone number.
In the same document, Apple says it does not object to the deposition of Forstall, but that it never suggested it could compel him to attend a deposition, noting he is a former employee who left the company ten years ago. Apple says both parties are working to resolve the issue, but that Epic cannot “hold discovery open indefinitely” whilst it seeks to locate and serve another witness for a deposition.
The two parties continue to clash over document production, with Epic Games claiming that Apple is dragging its feet, having produced more than 459,000 documents just two days before the deadline for discovery. Apple says Epic’s complaints are “patently improper” and that it has worked “diligently” over the several months to meet Epic’s “burdensome demands.”