Oakland, CA - A California federal judge deciding whether Apple complied with her ban on App Store anti-steering rules ordered Apple for a second time Friday to produce documents, telling Apple's counsel "the whole point" is to get documents relevant to Apple's decision-making regarding its new 27% fee "and you didn't do it."

U.S. District Judge Yvonne Gonzalez Rogers' comments came at the start of the latest day in a high-stakes evidentiary hearing in Oakland into whether Apple Inc. has complied with her 2021 ruling that banned Apple from blocking developers from directing consumers to third-party websites outside Apple's App Store to pay for goods and services.

The injunction was issued following a bench trial in Epic Games Inc.'s landmark fight with the tech giant over the App Store's 30% commissions on in-app purchases. Epic, which makes popular video games like Fortnite, claimed Apple's rules and commissions violated antitrust laws and unfairly kept competing app stores off Apple devices.

However, the judge mostly rejected Epic's antitrust arguments, except for its challenges to Apple's anti-steering rules. She issued an injunction, and after an appeals court affirmed her decision, Epic accused Apple of creating new anticompetitive fees to circumvent the court's injunction.

In response, Judge Gonzalez Rogers has held an evidentiary hearing into Epic's allegations that kicked off in early May.

Over the course of a multiday witness examination, the judge repeatedly ordered Carson Oliver, senior director of business management of Apple's App Store, to hand over to the court and Epic's counsel all of his written communications and notes on Apple's decision to impose a new 27% fee after her injunction, including any notes he took during the meetings, his email exchanges on the topic, and any correspondence that occurred on Slack and iMessage about it.

But on Friday, Epic's counsel, Gary A. Bornstein of Cravath Swaine & Moore LLP, said that Apple has only produced a narrow set of emails, Slack and iMessage exchanges. Bornstein said it's clear from those documents that Apple executives used software called Quip — which he described as a project management repository — to communicate and take notes on the new fees, but the company never produced any Quip documents.

Apple's counsel, Mark A. Perry of Weil Gotshal & Manges LLP, defended the company's document production and noted that Epic never requested discovery before the evidentiary hearing.

Perry also noted that Apple has produced hundreds of emails and text exchanges in response to the judge's orders, but said defense counsel understood her orders to be limited to emails, iMessage and Slack.

In response, Judge Gonzalez Rogers asked the attorneys to pull up the transcript from the earlier hearings, and after reviewing the transcript, she pointed out that she had specifically said she wanted Apple to hand over to the court and to Epic Games "any notes" by Apple executives that relate to the new fees.

"'Any' is pretty broad," the judge told Apple's lawyer. "The whole point, Mr. Perry, was to get the documents relevant to decision-making. That was the point, and you didn't do it."

Judge Gonzalez Rogers again ordered Apple to produce the relevant documents.

"Let me make it clear, because you obviously didn't understand," the judge told Perry. "I want all of Apple's documents with respect to Apple's decision-making with respect to issues before the court. All of them. All. If there is a concern, then be overly broad."

Judge Gonzalez Rogers noted that the proceedings are over whether Apple failed to comply with her order, and she has been told by Apple executives that much of the decision-making was not done in writing.

"So now you all don't write things down anymore, and I need to understand what it was people were thinking and how you got to a 27% charge from a 30% charge that had been found to be anticompetitive," she said. "So, am I now clear?"

"Very clear, Your Honor," Perry replied.

After the discussion on document production and potential redactions, Epic called to the stand Benjamin Simon, who is CEO and founder of the yoga app Down Dog, which has about 500,000 subscribers. Simon had testified during the 2021 bench trial that he feared Apple would retaliate against him for his testimony, even as he ripped into the App Store's payment policies, calling them inconsistent and unfair to consumers and developers.

On Friday, Simon testified that Apple's new fees and restrictions have caused confusion among consumers, and hundreds of customers have complained to his company about its practice of charging more for in-app subscriptions, which are higher due to Apple's commissions, as opposed to out-of-app subscriptions paid for on its website.

Simon also testified that his company conducted a monthlong study that found that more than 90% of users opted to subscribe to the app on the company's website when customers were told that their subscriptions would be cheaper than subscribing via the app.

The study showed that when consumers were not aware of the pricing difference, roughly half of customers subscribed on the company's app and the other half subscribed on the website, according to Simon. He said the study also showed that overall, fewer customers subscribed when they didn't have the cheaper out-of-app subscription option. Overall, Apple's new fees and restrictions have made it worse for developers and upset consumers who feel misled, he said.

Simon also disputed Apple executives' testimony that Apple's new 27% fees and rules restricting the format of out-of-app dynamic links were imposed for security purposes. Simon testified that dynamic links are commonplace on the internet and within apps.

"All of the internet would have to be a security risk for dynamic URLs to be a security risk," Simon said.

After Simon's testimony, Epic called to the stand its marketing executive Alec Shobin, who also complained about the impact of Apple's fees on the developer's popular videogame Fortnite.

But during a dense cross-examination, Apple's counsel tried to get Shobin to concede that Epic has still been able to direct consumers to circumvent its rules by requiring gamers to log into their Fortnite accounts and imposing child-protection filters.

However, the dense questioning often resulted in Shobin asking the defense attorney to repeat his questions, prompting the judge to sustain relevance objections and admonish counsel on their efficiency.

"You really have to work on this exam, you're driving me crazy," the judge told Apple's counsel. "You need to be short without these incredibly long questions. Every time you ask a question he asks you to repeat it. We will be done with this witness today. So get to it."

Shortly afterward, the parties finished Shobin's examination. The next hearing in the case will be held virtually on Tuesday at 4 p.m. Pacific time.

Epic Games is represented by Lauren A. Moskowitz, Gary A. Bornstein, Yonatan Even and Michael Jacob Zaken of Cravath Swaine & Moore LLP.

Apple is represented by Mark A. Perry of Weil Gotshal & Manges LLP and Richard J. Doren, Jason C. Lo and Dana Lynn Craig of Gibson Dunn & Crutcher LLP.

The case is Epic Games Inc. v. Apple Inc., case number 4:20-cv-05640, in the U.S. District Court for the Northern District of California.