Two organizations submitted a joint amicus brief, supporting Apple in light of a ruling by U.S. District Judge Yvonne Gonzalez Rogers regarding limits on attorney–client privilege in the Epic Games case. Below are the specifics.
### Misuse of privilege
When Judge Yvonne Gonzalez Rogers instructed Apple in April to adhere fully to her App Store injunction issued in 2021, she also rejected Apple’s request to exclude certain documents on the basis of attorney–client privilege.
Included among these documents were email threads that featured in-house counsel. Apple sought to disregard these on attorney–client privilege grounds, but Judge Rogers dismissed Apple’s request, asserting that “Adding a lawyer’s name to a document does not create a privilege.”
Judge Rogers observed that Apple appeared to have included in-house lawyers in the email threads to strategically invoke client-attorney privilege, stating in the “Misuse of Privilege” section of her ruling:
> “Adding a lawyer’s name to a document does not create a privilege. Instructions from Apple’s internal counsel Jennifer Brown are illustrative. In a series of email exchanges regarding drafts of a Project Wisconsin presentation, Ms. Brown stated, “[a]lso, one procedural tweak – can we change the ‘Prepared at the Request of Counsel’ label in the slides to ‘Prepared at the Request of External Counsel’. This task is vital for our outside counsel to advocate our compliance.” Each email in this thread self-designates as privileged, as do all slides in the presentation, even though the overwhelming majority of information therein this Court and Judge Hixson have determined do not comprise privileged information, but instead documents the business evaluation Apple was undertaking that is central to the enforcement of the Injunction. While Ms. Brown indicated that Apple was “working very closely with” external counsel “throughout the entire process,” that does not automatically grant privilege protections to all documents pertinent to that process.”
Judge Rogers also remarked, “The record is filled with such instances of excessive designation of privilege,” referencing an email sent to Tim Cook as an example, which addressed business matters rather than strictly legal advice.
### Negative impact on compliance
In response to this ruling, two entities, TechNet and the Association of Corporate Counsel, submitted an amicus brief emphasizing that “In contemporary corporate settings, the overlap between legal and business counsel is becoming increasingly evident,” and that the court’s ruling could set a precarious precedent, generating legal ambiguity for firms aiming to act responsibly.
Drew Hudson, vice president and general counsel at TechNet, noted:
> “Companies will be compelled into a state of blind compliance if they cannot depend on in-house lawyers to assist them in navigating the complexities. What will occur instead is that companies will resort to figuring things out through a Google search or simply hope they’ve got it right. Or they may choose not to attempt at all. This is detrimental to compliance. It also introduces significant litigation risk.”
In the amicus brief, the two organizations also highlight considerations such as the costs associated with in-house and external counsel, arguing that Judge Rogers’ ruling could have more severe consequences for smaller firms:
> “Smaller companies generally lack the financial resources to routinely engage outside attorneys for everyday or non-litigation matters. Consequently, these firms rely more on in-house lawyers who are necessarily involved in both legal and business considerations. And amid economic uncertainty, firms of all sizes would consider in-house counsel not only more appealing but essential to their company’s survival.”
They assert that the “Court should determine that the District Court erred in relying on privileged materials when assessing Apple’s adherence to the previous injunction,” with oral arguments on this issue currently set for October 21.
