Last week, Xbox business development VP Lori Wright acted as a third-party witness in the Epic Games vs. Apple trial, during which she stated that Microsoft has never made a profit on the sale of an Xbox console. Now Apple is trying to get her testimony thrown out.
As The Verge reports, Apple’s lawyers are arguing that Microsoft failed to provide the evidence to substantiate the claims being made by Wright in court. Wright’s testimony could prove key, as she was helping establish the difference between a general-purpose and specialized device, discussed how xCloud was forced to be a web app on iOS, and how Xbox hardware is sold at a loss with games sales and subscriptions eventually making the enterprise profitable.
The last point especially riled Apple, with the filing stating, “Ms. Wright testified about the supposed unprofitability of Microsoft’s console business without providing the P&L statement from her files that could have substantiated (or disproven) her testimony.”
Apple wants the testimony struck from the record because, “Microsoft’s intentional withholding of relevant documents is not substantially justified. Indeed, it was on ample notice of the consequences of failing to provide relevant documents to Apple, and it has chosen to produce nothing.” Apple’s lawyers claim they were not able to properly cross-examine Wright because of this.
The filing goes on to claim that the opportunity for that proper cross examination “has passed,” and that, “The result—as spelled out in this Court’s previous order—should be to enter an adverse credibility finding as to the entirety of her testimony on direct and redirect examination by Epic.”
It’s unclear what will happen next. The court may decide to side with Apple and have the testimony struck off the record, or it could disagree and the case continues uninterrupted. A third option, which Microsoft wouldn’t enjoy, is the court requesting the relevant documents to substantiate Wright’s testimony. Would Microsoft be forthcoming and share them publicly?
