The ongoing legal battle between Apple and Epic Games has taken an unexpected turn. Two professional organizations—TechNet and the Association of Corporate Counsel (ACC)—have filed a request to support Apple in its appeal against a decision by Federal Judge Yvonne Gonzalez Rogers. The reason behind their intervention is quite surprising as it focuses on the sanctity of attorney-client privilege.
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A Brief Recap of Events (It’s Getting Confusing)
Last April, Judge Gonzalez Rogers ordered Apple to fully comply with her 2021 injunction, which mandates loosening the App Store’s rules for developers. At the same time, she also denied Apple’s request to remove certain documents from the case file, citing confidentiality concerns between a lawyer and their client.
According to the judge, Apple had tried to manipulate the situation by consistently cc’ing internal lawyers on emails to attempt to shield documents that were more business-related than legal advice (note: the latter is protected by confidentiality unlike the former). Simply adding a lawyer’s name to a document does not create protection,
Judge Gonzalez Rogers decisively ruled.
But Here’s the Issue…
In their brief, TechNet and the ACC argue that this decision could set a dangerous precedent for businesses. Drew Hudson, Vice President and General Counsel of TechNet, warns:
Companies may end up in a pattern of blind compliance if they can no longer rely on their internal legal teams. Without this support, they might just improvise, look up answers on Google, or do nothing at all. This is detrimental to law compliance and increases the risk of litigation,
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The organizations emphasize that such a strict interpretation could have even more severe consequences for small and medium-sized enterprises (SMEs), which do not have the resources to regularly consult external lawyers. In a challenging economic environment, relying on internal legal counsel is often crucial.
A Case to Watch
The two organizations are therefore urging the appeals court to find that Judge Rogers was wrong to rely on documents protected by attorney-client privilege to assess Apple’s compliance with the injunction. Oral arguments are expected on October 21 to address this ethical issue! Beyond Apple’s case, this concerns the definition of the role of corporate lawyers and the protection of internal legal advice—a topic that far exceeds the scope of the conflict between Cupertino and Epic Games.