By Dorothy Atkins

Law360 (March 1, 2021, 4:28 PM EST ) A California federal judge said Monday that a bench trial in Epic Games' antitrust suit over Apple's App Store fees will proceed in person on May 3 despite risks posed by the pandemic, saying "this case is so significant that it warrants the best the judiciary has to give, and the best is in person."

During a hearing held via Zoom, U.S. District Judge Yvonne Gonzalez Rogers acknowledged that Apple preferred a delay to the trial and for it to be held in person, while Epic wanted it to proceed virtually in May.

The judge rejected both suggestions and told the parties to plan for an in-person bench trial beginning May 3. She emphasized that Epic's allegations are significant and that "credibility matters," and it may be difficult to assess the credibility of witnesses through virtual examination.

"When someone walks into the United States courthouse through courthouse doors and they sit on the stand and raise their right hand, it gives them pause ... That's really different than sitting in the comfort of your house or comfort of your office, and cross-examination is different," Judge Gonzalez Rogers said.

"We all know that a deposition does not take the place of a courtroom, so the best that the judiciary has to offer is in person, and I think I can give that to you, so that is what I'm going to do," she added. "That being said, I'm going to be quite generous to allow people to appear remotely if necessary for health reasons."

The judge's comments came during a case management conference in Epic's antitrust lawsuit that accuses Apple of monopolizing app distribution systems, locking app developers into the systems and forcing them to accept 30% commissions for in-app payments.

Since the suit was filed in August, Apple lobbed breach of contract counterclaims against Epic — which makes the popular game Fortnite — and the case has been related to separate proposed class actions by consumers and developers, while discovery disputes have ramped up as Epic faces a May 3 trial date.

On Monday, Judge Gonazalez Rogers told counsel for Epic and Apple that she plans to keep the May trial date despite the pandemic, and she is going to seek advice from U.S. District Judge Alan Albright in the Western District of Texas — who has held multiple trials during the pandemic — on what procedures to implement to ensure the safety of court staff, witnesses and attorneys.

She noted Judge Albright has made lawyers take daily COVID-19 tests and the parties are paying for those costs, which she might also require.

Judge Gonzalez Rogers acknowledged that health considerations of witnesses are important, yet emphasized she doesn't want witnesses to use COVID-19 as an excuse not to testify in court.

"I'm asking that you as lawyers investigate people who are telling me they can't show up," she said. "Lots of people have different views [about COVID-19 risks]. What I won't allow is for someone to avoid an in-person cross-examination by claiming a health concern and then we find out that the health concern is not genuine. If I find [that] out, I will consider striking that testimony. I won't be lied to."

Judge Gonzalez Rogers also noted that Epic's counsel has "considerable resources" and local offices, so there are ways to conduct the trial in person while maintaining the safety of individuals working on the trial.

The judge said the number of people allowed in the courtroom at one time will likely be limited to two to three individuals per side, and "public access will be audio-only." The judge noted that by May, she will also be fully vaccinated and the courtrooms will have plexiglass shields installed.

She added that the witnesses testifying on the stand will be "far away" from all attorneys in the courtroom, but they may be able to use clear face masks or shields so their expressions can still be observed as they respond to questions.

Judge Gonzalez Rogers added that the parties can work out the details as the trial date approaches, but the "May 3 date is confirmed."

"We're still working on precise format. Worst-case scenario is a full bench trial by Zoom, but it will happen," she said.

Apple's counsel have suggested the bench trial will take up to five weeks, but Judge Gonzalez Rogers said she thinks it will be closer to two to three weeks. She directed the parties to submit their witness lists by mid-March and set another case management conference for March 26, when she'll be able to confirm more details about the trial's format and length.

Epic's counsel Katherine B. Forrest of Cravath Swaine & Moore LLP pointed out that Epic plans to stipulate to Apple's breach of contract counterclaim pending the resolution of the antitrust claims. The judge commended the parties for reaching the stipulation, noting it saves time during the bench trial and the terms of their contract were "pretty unambiguous."

Epic Games is represented by Paul J. Riehle of Faegre Drinker Biddle & Reath LLP and Christine A. Varney, Katherine B. Forrest, Gary A. Bornstein, Yonatan Even, Lauren Moskowitz and M. Brent Byars of Cravath Swaine & Moore LLP.

Apple is represented by Veronica Smith Moyé and Richard J. Doren 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.

--Editing by Philip Shea.

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