Apple Seeks NDCA Transfer of Third-Party Subpoena Dispute Related to Antitrust Litigation

On Tuesday, Apple Inc. requested that the Northern District of Illinois transfer the document request dispute with non-party Basecamp LLC, a web software company based in Chicago, Illinois, to the Northern District of California where the underlying actions are in progress. Apple’s motion is accompanied by another motion to expedite the transfer and motion to compel proceedings.

The filing briefly explains the allegations pending against Apple in the San Francisco, California litigation: a putative class of app developers and separately, a putative class of app consumers, contend, among other things, that the Apple App Store’s 30% commission on app sales and in-app purchases constitutes impermissible restraint on trade in violation of state and federal antitrust laws. A third antitrust action, filed by Epic Games Inc., developer of the popular video game Fortnite, recently culminated in a three-week bench trial, the motion notes.

In December 2020, defendant Apple asked Basecamp for documents, information, and communications relating to Basecamp’s relationship to and involvement with the Coalition for App Fairness. Apple also requested communications between Basecamp, or its counsel, and any app developer “regarding the subject matter of the antitrust litigation brought against Apple and/or matters relating to app marketplaces and Apple’s guidelines and policies.”

Basecamp opposed on various grounds, and though the parties met and conferred several times, they are thus far without resolution. In this week’s motion, Apple contends that “[t]his dispute with Basecamp cries out for adjudication by the Northern District of California and not the Northern District of Illinois, a stranger to the underlying litigation.”

Apple explains that transfer is warranted because of the expedited timeline, procedural posture, complicated nature of the underlying class actions, and proposed transferee district’s “intimate familiarity with these cases.” The tech giant asserts that U.S. Magistrate Judge Thomas S. Hixson, working with Judge Yvonne Gonzalez Rogers on the coordinated proceedings, has issued orders deciding more than two dozen discovery disputes, including those involving third-party subpoenas.

In support of its request to expedite the briefing of the transfer and compel motions, Apple notes that it must oppose class certification in the consumer and app developer litigation by August 10. The materials that it seeks are highly relevant to that opposition, the filing says.

Apple is represented by McDermott Will & Emery LLP and Basecamp by Kanter Law Group.