Lori Wright, VP of Xbox business development, was one of the industry experts that took the stand in this week’s Epic Games v. Apple trial.
Apple, however, is now asking her testimony be struck from the record over a mismatch between her words and the documents provided to Apple’s legal team.
Wright’s testimony on Wednesday aimed to establish the difference between a general-purpose device and a specialized device, and offered definitions that groups things like smartphones and computers into the former category and hardware like game consoles into the latter.
Later on, her testimony touched on how Apple’s bizarre streaming service rules forced xCloud to launch via a web app instead of an App Store app, as well as how the Xbox business model is built around the idea hardware is sold at cost or at a loss so that game sales and subscriptions drive the actual revenue.
That last argument over the unprofitability of Xbox’s hardware sales is where Apple’s freshly filed “Motion for an Adverse Credibility Finding” comes in. As spotted and shared by The Verge, Apple’s legal team filed a motion to have Wright’s testimony thrown out for a handful of reasons that mostly boil down to an incomplete paper trail.
Part of that comes from the fact that, according to Apple, Wright was absent from Epic’s initial witness disclosures contributing, they say, difficulties acquiring relevant documents from Microsoft.
Another complaint concerns the content of her verbal testimony on the Xbox hardware strategy mentioned above, with Apple arguing that her statements cannot be proven true or false due to the fact that Microsoft didn’t provide the P&L document that would show exactly how much Microsoft makes (or loses) on Xbox hardware sales.
Apple argues that Wright has said she reviewed the P&L and a number of other relevant documents ahead of her an earlier deposition this April, but neither she nor Microsoft shared those documents with her lawyers ahead of or after her deposition.
“This lack of production was no oversight,” argues Apple.
The contents of those same documents were brought up in her testimony this week, but Apple’s lawyers say they once again weren’t provided with the documents on which her testimony is based.
“For example, Ms. Wright testified about the supposed unprofitability of Microsoft’s console business, without providing the P&L statement from her files that could have substantiated (or disproven) her testimony,” argues the motion. “She also testified about Xbox cloud gaming, the Xbox console business, and meetings between Ms. Wright’s team and Apple. These are all subjects of the documents in her personal files that were requested by Apple, but not produced to Apple before her testimony.”
While Apple makes a point to note that it doesn’t believe Xbox’s profitability (or the App Store’s, for that matter) is particularly relevant to the matter at hand, its argument is that it was denied the opportunity to properly cross-examine Wright and that persistent failures to provide relevant documents (for both the April deposition and this week’s testimony) shouldn’t go unpunished.
“Microsoft’s intentional withholding of relevant documents is not substantially justified. Indeed, it was on ample notice of the consequences of failing to provide relevant documents to Apple, and it has chosen to produce nothing,” reads the filing.
“Nor is Microsoft’s failure harmless. The opportunity for Apple to fairly examine Ms. Wright has passed,” concludes Apple. “The result–as spelled out in this Court’s previous order–should be to enter an adverse credibility finding as to the entirety of her testimony on direct and redirect examination by Epic.”