Why Does it Take So Long to Get a Judicial Decision?

In Epic Games, Inc. v. Apple, Inc., 2024 WL 4947269 (N.D. Cal. Dec. 2, 2024)(Hixon, J.), aff’d, 2024 WL 5318836 (N.D. Cal. Dec. 31, 2024)(Rogers, J.), the Hon. Thomas S. Hixson wrote:

The parties have a dispute about attorney-client privilege. With respect to document production concerning compliance with the injunction, Apple has produced about 95,000 documents and has withheld about 57,000 documents, meaning that Apple has asserted privilege over more than one third of the responsive documents…. Epic identifies 11 examples of documents that it says exemplify Apple’s overreaching claims on privilege. The Court has reviewed the documents in camera, and now rules on the 11 examples….

Turning to the first document:

This document is not privileged. It does not contain any legal advice, and it does not ask for legal advice. It is a business analysis. While the top of page 5 of the presentation indicates why this business analysis was being undertaken, a business analysis of ways to comply with a legal requirement is not privileged. The legal advice requested of counsel, and the advice provided, are privileged, but that’s it. Privilege does not descend like a giant fog bank over every document that is in some way connected with an effort to achieve legal compliance. Lawyers can tell their client what is legally permissible and impermissible, and those communications are privileged. But it is also true that business people decide among the options legally available to them, and they consider things like profit, cost, competition, and so on; those communications are not privileged. Entry No. 7077 is a business case analysis bereft of any legal advice. Apple’s claim of privilege over this document is overruled.[emphasis added].

Three other documents contained unprivileged business advice.  The fourth document contained a redacted “draft user interface of the external purchase link.”  The court wrote that there was no allegation that it was sent only to attorneys “and as a matter of common sense” it was primarily driven by technical and marketing considerations.  It was also not privileged.

The fifth document was “a draft of a case summary to be provided externally to the press.”  No legal advice was requested or provided in it.  Instead, Apple made a “before and after” argument, “contending that ‘[d]isclosing to Epic previous iterations of the system disclosure sheet and comparing them to the final version would reveal the substantive content of counsel’s advice to Apple.’”  However, the court wrote:

[W]ould Apple’s “before and after” argument nonetheless support a claim of privilege? Well, let’s think about that. There is no indication who reviewed this draft document. For Apple’s “before and after” argument, you have to know who is reviewing the draft, and it has to be a lawyer. That’s how a comparison of the “before” draft with the “after” final version causes legal advice to be revealed. For this document, Apple has said nothing about who reviewed the draft, and nothing in the document is legal advice or the request for any. Apple’s claim of privilege over the redacted portions of this document is overruled.

The court sustained some of Apple’s objections and overruled others.  For example, in one redaction, the privilege claim was overruled because: “The redacted language does not contain any legal advice or a request for legal advice. It states that the business team will perform a task that will be subject to business and legal approval.”

Apple’s “appeal” of the United States Magistrate Judge’s decision was denied.  Apple’s “dual-purpose communications” argument was again rejected.  After review of the documents, the District Judge found that the  Magistrate Judge had exercised a “nuanced assessment.”   As a belts and suspenders precaution, the Court reviewed Apple’s declaration and found it unconvincing:

The Court further rejects Apple’s claim that Judge Hixson denied it the opportunity to be heard fully on the factual context. Apple strains credulity by arguing that it does not know how the expedited discovery-dispute protocol works in the Northern District of California. These arguments were waived as they were not presented to Judge Hixson.

According to the most recent District of Maryland 2021 Annual Report, the weighted case filing per judgeship was 405. In FY 2021, 3,450 civil cases and 413 criminal cases were filed.  United States Magistrate Judges disposed of 13,762 citations, and there were 1,206 consents to proceed before them, 119 referrals for discovery motions, plus 91 referrals for post-judgment motions, and 682 other referrals, mostly for settlement.  Magistrate Judges conducted 676 settlement conferences.

In FY 2023, Maryland circuit courts had 169,460 filings.  Fiscal Year 2023 Statistical Abstract.  Of them, 73,698 were civil family cases; 43,813 were criminal; 43,670 were general civil cases; and, 8,009 were juvenile cases.  There were 175 judges.