Judge Gonzalez Rogers is on the bench wearing a purple mask and purple collared shirt under her robe. At counsel table:

Epic

Katherine Forrest, Cravath
Justin C Clarke, Cravath

Brent Byars, Cravath
Lauren Ann Moskowitz, Cravath
Tim Sweeney, Epic

Lauren Clause, (I believe from Epic, will confirm)

Jason Run? (operating exhibits - he joked to the judge "I don't talk a lot," she replied "well there are a lot of people who aren’t talking in these groups."

Apple

Karen Dunn, Paul Weiss

Richard Doren, Gibson Dunn

Lauren Dansy, Gibson Dunn

Jason C Lo Gibson Dunn

Heather Grenier, Apple’s director of commercial litigation

A class counsel attorney is in the gallery sitting here alongside Leah and I. 

Housekeeping Doc production issue

Before trial "housekeeping" issue, Epic's Forrest raised an issue about 20 documents Epic wants admitted. Forrest says the documents should be admitted and Apple is trying to exclude docs unfairly which have been produced in the regular course of business. Apple's Richard Doren argues it's a belated "document dump" and 

The judge: "What i’m not interested in is document dumps for the sake of document dumps... We aren’t just going to put something out there on the internet which is what you gus are doing at the end of trial. It sounds to me like your just trying to add docs to the box."  The judge noted that the parties have 45 hours each and "yesterday i was wondering if I gave you too much time. I’m not going to allow you to just dump things into the record without actually presenting evidence in trial."

Forrest replied that "My concern is that there's been an attempt to keep records out of this case" and this is another example of it. 

The judge said "I have been quite generous. i have not sealed very much but i’m not going to enter evidence in an improper way." Forrsest offered to brief the issue. 

"I believe we have made lots of improvement but still there is more room to improve"

He said Epic doesn't process payment transactions and he began working on Project liberty, which he said is an attempt to "give customers choices where options aren’t available." Epic solicited RFPs from different payment processors to see where they can improve and as a result Epic's payment processors reduced their fees. 

He explained that Epic doesn't store credit card info and global payment processor costs to Epic in 2020 were 4.2 percent on average and 3.5 percent in the US.

Note from Leah: "Epic's payment solutions are partnered with several financial companies. Chase's payment tech is used in the US and for global credit card processing. Paypal is also used globally, along with Xsolla and Adyen."

Cross by Apple's Jay P. Srinivasan of Gibson Dunn & Crutcher LLP,

Srinivasan asked Ko: "Did you know project liberty would involve deceiving apple?" 

Ko replied that "I don’t know what description of deceiving what that means," but he said project liberty provided solutions. Srinivasan pressed Ko on whether he knew that Epic didn't tell Apple about Project Liberty. He said he knew project liberty involved Apple but he didn't know how Epic communicated with Apple about it because that was beyond his role. 

"I wasn’t aware of it,"

Srinivasan  pointed to an email exchange from December 25 2019 involving tim sweeney about Xsolla payment processor

In his email, Ko said when it comes to payments within a game "outside App Store and google play there is really no truly comprehensive payment solution that does everything needed for a game company"

Ko testified that others could do payments at the time and saying Google and Apple were the only ones is "too much of a statement," but Apple and google had "such dominance" they had more

Srinivasan asked Ko "Did you have any personal info in the past ‘issues with improperly using collecting personal info about children under the age of 13’

Ko: "I don’t recall. I was part of the atty privileged team handling request from the FTC."

The courtroom was sealed for questioning for about 10 minutes and no other redirect/cross. App Store VP Matt Fischer is next up.

Apple App Store VP Matt Fischer testifying on the stand with a face shield, no mask. Navy blue suit with a light blue shirt and a mustard-ish colored tie. They're taking a 20 minute break now.  I'll email when we're back. Should be 10:35 a.m. PST

Direct by Katherine B. Forrest, Cravath

Epic's counsel began Fischer's examination by pointing to a series of emails and docs. One email reads "there is an epidemic of fraudulent apps in the app store" that attempt to defraud people out of money. Another says "seemingly benign general app then becomes evil."

Many of the documents and emails are subject to confidentiality provisions and are not being admitted into the record for the truth of the matter. 

Forrest asks Fischer if he was involved in the App Store's creation. He says no, because it was launched in 2008 before he was at Apple, but he's been involved in the ongoing development of App Store App. Forrest then pointed to document that he sent to the "broader organization" that included a Steve Jobs transcript.

He said he isn't involved in managing the ad side of apps and doesn't know how the algorithms work in determining which apps come up first in a search for an app on the App Store. "Sometimes there is no advertising, there sometimes there is," he said.

Forrest asked Fischer a series of q's about whether he knows of studies that look at whether consumers switch from using iOS to Android due to rising prices or costs of apps. He replied that he's not aware of any of those studies. He also said he isn't aware of the average amount of money a consumer spends on apps bought on the App Store in the life of iphone. "No and i wouldn’t know how to go about that type of analysis or study," he said

Forrest pointed to a presentation attached to a July 28 2016 email that said “Developers don’t believe that the app store enables profitability of their apps, enables app discovery or provides tools to successfully market their apps.” She then began asking Fischer on Apple's Executive Review Board, which he sits on. More on that after the break.

More drama over docs

Before taking a break, the judge noted that she's admitted certain business records into the record, and if they're not, she wants to be clear on why she's admitting them. "All these things are being published, they're all out there, and non lawyers don’t understand the difference between being admitted from the truth versus being admitted for some other purpose like notice. So i want to nail that down." She said she wants Epic's briefs on the 20 docs that it seeks to admit on what legal purpose they're being admitted.

Judge: "I'm asking not to release it before i make a [ruling]

Forrest: "And I'm asking for parity"

Judge: "I try to be fair to both sides and if you're suggesting that I'm not..."

Forrest replied that she's not suggesting the judge has been unfair, she just wants the court to apply the same rulings to similar docs admissions requests made by the other side.

Moving on to cross now by Jay Srinivasan...

More direct of Matt Fischer, which just wrapped. 

Forrest points to comments that his team received at Apple from App Store app developers surveyed. 

The comments include: "search in the app store is still really rough around the edges," App Store is "plagued with outdated low quality apps," "Stop playing favorites, start applying the same rules to all apps and start eliminating junk apps from the app store," "You tend to focus apps that spend a lot of money… don’t focus our on great apps and not on sales or marketing," "For a developer it’s a nightmare," "‘We release every week, when our app is rejected for review entirely unrelated to the changes we made its disruptive and throws off our cadence," "App reviewers are arbitrary and unpredictable and are not consistent among competing apps,"  "Allow developers to issue refunds this is beyond frustrating to us."

Forrest points Fisher to an Oct. 2018 email he sent a subordinate titled "App Store Risk/Fraud." He wrote “I need you to take leadership regarding what’s going on with all forms of fraud on the App Store." Fisher acknowledged Apple has been fighting financial fraud in the App Store. "I don't know about since the beginning, but we've been combating and fighting fraud for a long time, yes." Forrest then points Fischer to another email he sent February 10 2012, titled ‘AppStore Fraud gets unbearable” (he didn't read the email content aloud)

Fischer acknowledges that Apple identifies "rip off" apps and removes them from the App Store. "we certainly wouldn’t approve them knowing that they were rip offs" He also acknowledged that some apps have money laundering schemes, there are fake apps and fraudulent refunds.

-He says he's not responsible for security, app review, fraud or privacy at the App Store and he isn't aware of a "plan" at Apple to lock in developers into Apple's payment system. Atty: "Would you be aware of a plan if one existed.

-Fischer says since Apple launched the App Store in 2008 it's grown from 500 apps to more than 200 million apps in 175 countries and the user interface has evolved "substantially" and Apple has redesigned app store multiple times.

-Srinivasan points to a 2016 email Epic's counsel cited during direct. The email was written by an Apple employee who says "Matt feels extremely strong about not featuring our competitors on the App Store." Fischer says that the worker was "very wrong," and the App Store promotes its competitors "all the time." For example, he said Apple promoted video-streaming apps like Peacock, Hulu and Hulu Plus that compete with Apple TV.

Katherine B. Forrest, Cravath on redirect

-Fischer replies "I have heard of some of those regulatory efforts but i’m not entirely up to speed on it."

Apple's bearded Trystan Kosmynka is on the stand with a face shield, white collared shirt, dark suit and tie.  Epic's Lauren Moskowitz of Cravath Swaine & Moore LLP on direct just wrapped. Cross by Apple's Veronica Smith Moye of Gibson Dunn Crutcher LLP is about to start.