WHEREAS, pursuant to the Court’s Orders Appointing Special Masters (ECF No. 1070; ECF No. 1074 (Judges Brazil and Gutierrez); ECF No. 1081 (Judge Segal)), the Plaintiff and Counter-defendant Epic Games, Inc. (“Epic”), and Defendant and Counterclaimant Apple Inc. (“Apple”; Apple and Epic together, the “Parties,” and each individually, a “Party”) have met and conferred and have agreed, in consultation with the Special Masters, that the following protocol will govern the re-review process directed by Judge Hixson (Dec. 5, 2024 Hr’g Tr. 12:18-23);

THEREFORE, IT IS STIPULATED AND AGREED THAT:

1. Re-Review Plan: Apple will re-review all documents identified as responsive to the Court’s Order of May 31, 2024 (Dkt. 974) but withheld or redacted as privileged or otherwise protected as identified on Apple’s previous privilege logs. Specifically:

a. Apple has committed to re-reviewing these documents at a reasonable pace of approximately 15,000 per week.

b. Apple will categorize the documents it re-reviews into one of the following three categories:

i. Category One: Documents that Apple continues to maintain are privileged or otherwise protected in whole or in part (including for the avoidance of doubt any documents downgraded from withheld to redacted and/or as to which the redactions have changed), including under the December 2 Order.

ii. Category Two: Documents that Apple maintains are privileged or otherwise protected in whole or in part, but that Apple acknowledges are not privileged or otherwise protected under Judge Hixson’s order of December 2, 2024 (Dkt. 1056).

iii. Category Three: Documents that Apple no longer maintains are privileged or otherwise protected.

c. Every Monday beginning the first Monday after the finalization of this re-review protocol, by 5 p.m. Pacific Time, Apple will: 

i. Produce to Epic all Category Three documents Apple has identified through 2 p.m. Pacific Time on the preceding Thursday. 

ii. Produce to the Special Masters all Category One documents Apple has identified during the preceding week, clearly identifying whether Apple asserts privilege over the document in whole or as to specific parts. 

iii. Produce to Epic and to the Special Masters a privilege log for all Category One documents produced to the Special Masters pursuant to paragraph 1.c.ii above.

d. The Special Masters will divide among themselves the documents produced to them and determine whether to overrule or sustain each of Apple’s privilege assertions, applying general principles governing privilege and protections in the Ninth Circuit as well as the December 2 Order. The Special Masters may confer with each other as to the appropriate treatment of any document or category of documents. Any Special Master may also convene a hearing with the Parties to address documents.

e. Apple may provide to the Special Masters (and Epic) additional information necessary to support Apple’s claim of privilege, including but not limited to declarations. The Special Masters may also request additional information from Apple; if Apple believes such information is itself privileged, Apple may seek permission of the Special Master(s) asking for such information to provide such information in camera.

f. The Special Masters will provide the Parties with weekly reports indicating which documents were reviewed, their ruling as to each of these documents, and any additional information they wish to convey to the Parties.

g. Apple will produce to Epic all documents determined by the Special Masters not to be privileged within seven (7) calendar days after a report setting forth such a determination, except for documents as to which Apple objects pursuant to Section 4 below.

h. Apple will produce all Category Two documents to the Special Masters and/or Epic (as appropriate) within five (5) court days after Judge Gonzalez Rogers rules on the pending challenge to the December 2 Order.

i. Should any of the Special Masters identify concerns with either party’s approach to the re-review process, that Special Master will promptly notify the Parties and the Court of such concerns.

j. If the Special Masters are unable to conduct the review within a reasonable time, they will promptly notify the Parties. Regardless of such notice, each Party may request to meet and confer on the possibility of expanding the Special Masters panel if the Party believes the review will not be completed within a reasonable time.

2. Communication and Preservation: The periodic reportsissued by the Special Masters shall be emailed to the Parties (epic-mobileapps@cravath.com; WeilAppleEpic@weil.com; epicapplecompliance@gibsondunn.com). Such email transmittal shall fulfill the Special Master’s duty under paragraph 1.f to provide weekly reports to the Parties. The Special Masters shall each preserve the reports in their successive iterations, as well as any working papers they use in the course of their review, for a period of six weeks following the completion of the review process.

3. Ex Parte Communications: The Special Masters may communicate among themselves in accordance with paragraph 1.d, as well as for administrative purposes. The Special Masters may not engage in ex parte communications with any Party or the Court.

4. Action On A Special Master’s Privilege Rulings: The Special Masters’ determinations, as set forth in the periodic reports, shall be subject to ECF No. 985 and Rule 53(f) except as set forth in this paragraph. Pursuant to Fed. R. Civ. P. 53(b)(2)(D), the procedures shall be modified as follows:

a. Time Limits: Any Party wishing to object to a privilege ruling of the Special Master must file such objection with Magistrate Judge Hixson no later than four (4) court days from the issuance of the Special Master’s privilege ruling, and the other Party may file a response within two (2) court days of the objection.

b. Briefing and Filing the Record for Review: Objections shall be filed on a document-by-document basis:

i. The objection shall not exceed one page per document, not including the cover sheet.

ii. The objecting Party will file with the objection the relevant privilege log entry or entries pertaining to the privilege assertions at issue.

iii. Any response also will not exceed one page per document.

iv. The Parties may include declarations regarding their respective position.

v. Unredacted versions of the document(s) at issue will be provided to the Court for review.

c. Production Following Objection: Apple will produce all documents deemed not privileged in a ruling by Judge Hixson within three (3) court days of such ruling unless otherwise directed by the Court.

5. Disclosure: Disclosure of privileged or protected information to the Special Masters or the Court shall not be a waiver of privilege or a right of protection in this or any other proceeding. Accordingly, a claim of privilege or protection may not be raised as a basis to resist such disclosure.

6. Compensation: Responsibility for payment of the Special Masters’ fees shall be divided equally between the Parties. Each Special Master’s fees shall be invoiced and paid pursuant to a separate agreement between the Parties and that Special Master.

PURSUANT TO THE FOREGOING STIPULATION AND GOOD CAUSE APPEARING, IT IS SO ORDERED.