Apple has 'salted the Earth with subpoenas,' says judge, but orders Valve to hand over Steam data anyway

According to the California judge overseeing Apple's attempts to drag Valve into an ongoing beef with Epic Games, Apple has "salted the Earth with subpoenas, so don't worry, it's not just you." Regardless, Thomas Hixon went on to issue a discovery order (spotted by iMore) that requires Valve to produce certain Steam information demanded by Apple, something that Valve has been doing its best to resist.

Here's a primer on the basic arguments from both sides, but the short version is that Apple subpoenaed Valve because, it says, certain Steam information will be crucial to building its case against Epic, which is all about competitive practices. Valve says the case between Apple and Epic is all about mobile, Apple is using this as a fishing expedition to obtain a bunch of third party data, and it has already shared limited information which it believes should be enough for Apple's cause.

Apple's lawyers, needless to say, disagreed. In the latest hearing it countered Valve's arguments and in the course of doing so made it explicit exactly why it's seeking to drag the company into the case against Epic. Apple's subpoena, according to judge Hixon's discovery order, "seeks information relevant to the effects of competition. Recall that in these related cases, Plaintiffs allege that Apple’s 30% commission on sales through its App Store is anti-competitive and that allowing iOS apps to be sold through other stores would force Apple to reduce its commission to a more competitive level. Well, Steam is one of the largest video game stores for PCs, and it too charges a 30% commission."

Hopefully you can see where this argument is heading: Apple is going to try and show that the emergence of the Epic Games Store did not affect the commission that Valve charges on Steam. This is because the central pillar of Epic's argument is about "monopolistic practices" and that Apple, in removing Fortnite, is looking to stifle competition. Epic is also the one that compared mobile iOS to the more open environment on Macs. But if the Epic Games Store did not make Valve lower its commission, that argument looks a lot shakier.

"Epic Games opened its video game store for PCs in December 2018, and Epic charges a commission that is lower than 30%. By focusing [request 32] on 436 specific games that are sold in both Steam and Epic’s store, Apple seeks to take discovery into whether the availability of other stores does in fact affect commissions in the way Plaintiffs allege."

Valve's argument that Apple was using it as a shortcut to all that lovely third party data was also dismissed. "The Court disagrees. Requiring Apple to subpoena each individual game developer to obtain its pricing and sales information would be an undue burden." It goes on to add that protective orders in this case should ensure adequate confidentiality (another part of Valve's argument).

Finally, Valve's case that it's a private company and this information is a competitive edge also got short shrift. "The Court disagrees with that as well. Valve’s decision to stay private means that it avoids the public company disclosure and reporting requirements, but it does not immunize the company from discovery." Thus documents produced so far which have been redacted are required to be produced without those redactions.

Apple's lawyers argued that this documentation is required by March 8, 2021, in order for it to produce arguments based on them for a hearing on March 15. The court has ordered Valve to produce the information from request 2 by March 8, which is no small deal, though it has narrowed the focus of Apple's original demand: "the Court narrows [request 2] and orders Valve to produce the per-app information only for the 436 apps available on both Steam and the Epic Games store (as providing that information broken down for all 30,000+ apps is an unnecessary burden on Valve), and to produce that within 30 days."

The other bone of contention is request 32, which wanted "(a) the name of each App on Steam; (b) the date range when the App was available on Steam; and (c) the price of the App and any in-app product available on Steam." The court granted this, but only from 2017 (Apple had requested 2015: the judge pointed out the Epic Store didn't launch until 2018). Valve is ordered to produce this information within 30 days.

It will not surprise you to know that this latest twist is far from the end of Apple and Valve's tussle, let alone the brewing battle with Epic. The case was first filed in August 2020, since when there's been a huge amount of back-and-forth, hearings and documentation. This discovery order was the 356th document produced by the case thus far, which is obviously a somewhat meaningless number but gives you an idea of the paperwork these legal eagles are generating. Valve will no doubt continue to fight its corner and appeal against this discovery order.

Apple has told PC Gamer it has no comment to make on the Valve case, though it did provide the following statement on its case against Epic in Europe.

“For twelve years, the App Store has helped developers turn their brightest ideas into apps that change the world. Our priorities have always been to provide customers with a safe and trusted place to download software and to apply the rules equally to all developers. Epic has been one of the most successful developers on the App Store, growing into a multibillion dollar business that reaches millions of iOS customers around the world, including in the EU. In ways a judge has described as deceptive and clandestine, Epic enabled a feature in its app which was not reviewed or approved by Apple, and they did so with the express intent of violating the App Store guidelines that apply equally to every developer and protect customers. Their reckless behavior made pawns of customers, and we look forward to making this clear to the European Commission.”

I've contacted Valve to ask for comment on this order and whether it will appeal, and will update with any response.