(Bloomberg) — Apple Inc. injected a new level of intrigue in its bitter court fight with Epic Games Inc., suggesting the Fortnite maker was acting as a stalking horse for Microsoft Corp. and withholding evidence.
The iPhone maker made the accusations Wednesday night in a filing asking a judge to make an adverse credibility finding against Lori Wright, an Xbox executive who testified in the trial on behalf of Epic. That would mean the judge could ignore her testimony.
Apple asked for such a ruling earlier, but upped its accusations in the new filing. “A reasonable observer might wonder whether Epic is serving as a stalking horse for Microsoft,” Apple said. “Microsoft shielded itself from meaningful discovery in this litigation by not appearing as a party or sending a corporate representative to testify.”
Read more: Apple, Microsoft Rivalry Heats Up Again Amid Trial Fisticuffs
Epic sued Apple claiming its cut of revenue from businesses selling wares at its App Store is too high and that its rules are unfair and anticompetitive.
But Apple claims Epic used as many witnesses associated with Microsoft at trial as it did its own — five each — including Susan Athey from Stanford University.
Athey, who testified for Epic May 11, was grilled by Apple’s attorneys on her consulting work for Microsoft. She said she refrained from reviewing confidential documents in the case submitted by Apple due to that work.
“Apple is trying to distract from legitimate concerns from many companies across the industry about its App Store policies and practices, including its refusal to allow game streaming in the Apple App Store,” Microsoft said in a statement Thursday. “Epic speaks and acts for itself, and Microsoft and many other companies have raised concerns through our own voices, including directly with Apple itself.”
In an an earlier filing Microsoft said it complied fully with its legal obligations.
Wright testified involuntarily and she was forthright and thoughtful in her trial testimony, Microsoft said.
“That Apple does not like Ms. Wright’s testimony is clear,” Microsoft said. “That Apple has no basis to challenge the substance of her testimony is equally clear.”
In the Wednesday filing, Apple also complained that Microsoft withheld internal communications and held discussions with Epic about its decision to circumvent Apple’s payment rules. “Such internal communications are particularly relevant in light of Microsoft’s relationship with at least five Epic witnesses and the potential that Microsoft is using Epic as a proxy plaintiff in litigation that it refuses to prosecute in its own name,” Apple wrote.
In responses to Apple’s motions about Wright, Epic said Apple was “not surprised” at the trial and Wright’s testimony was “predictable.” The company also said Apple had ample opportunity to gather discovery during a deposition of Wright and that Wright provided documents to Apple and Epic in the same “paltry” manner.
The case is Epic Games Inc. v. Apple Inc., 20-cv-5640, U.S. District Court, Northern District of California (Oakland).
(Updates with Microsoft statement)
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