- Jun 24, 2018
As the first week of the Epic v. Apple trial comes to a close, Apple is picking a fight over one of Epic’s witnesses. The fight centers on testimony from Lori Wright, Microsoft’s vice president of Xbox business development, who testified about the distinction between “general purpose” and “special purpose” devices on Wednesday in favor of Epic’s claim. Wright’s testimony set off a day of confusion over whether Microsoft actually makes money selling Xbox hardware. Apple is now asking the judge for an “adverse credibility finding,” basically a determination that Wright’s testimony can’t be trusted because of irregularities in document production.
In a new filing, Apple argued that some of the documents referred to in Wright’s testimony weren’t produced in advance, and the entire testimony should fall under a cloud. Apple’s lawyers zeroed in on Wright’s claim that Xbox hardware was sold at cost in order to subsidize game sales.
“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,” Apple’s filing argues.
Apple has actually made this case before, arguing back in April that Wright’s testimony should be stricken from the record because of irregular document production in the weeks leading up to the trial. Now, they’re arguing that Wright stepped outside of the preset parameters of her testimony, and her entire testimony should be deemed not credible.
And at the center of it all is Microsoft’s profit-and-loss analysis for the Xbox hardware, which no one on the Apple side has seen. It’s worth remembering here that Apple and Microsoft have been locked in heated competition for decades now, and while Apple doesn’t have a product competing specifically against the Xbox, the broader companies are tied up in a delicate balance of fierce competition and business cooperation. As a result, Microsoft really does not want to give Apple sensitive financial data about the Xbox — and Apple sees the P&L statement as a way to punch back at Microsoft for getting involved in the App Store fight in the first place.