UPDATE: March 13: Judge Cote ruled today that Cook must testify, Reuters reports.
I have just reviewed some public court documents that provide more details on Apple CEO Tim Cook and the Department of Justice’s antitrust lawsuit against the company.
As you may have read in the news, the Department of Justice alleged in a suit filed in April 2012 that Apple and several book publishers illegally worked together to raise e-book prices in an effort to combat Amazon.com, which had gained dominance over the e-book market. All of the publishers have settled. The Cupertino, California-based company is the sole remaining defendant.
As Bloomberg reported on March 8 (Friday), recent court filings show that the government wants Apple CEO Tim Cook to testify in the case.
The newest court filings, posted today, provide additional insight into the case the DOJ is making to depose Cook, and the reasons that Apple’s lawyers are using to try to shield him from testifying.
In a March 6 letter to U.S. District Judge Denise L. Cote, filed today, the DOJ argued that “While subsequent discovery only has confirmed the need for Mr. Cook’s deposition, Apple continues to refuse to make Mr. Cook available.”
The government says it has offered various “accommodations in order to minimize any burden on Mr. Cook,” such as “limiting the length of the deposition and providing him a list of examination topics in advance — all of which have been rejected.”
The DOJ letter says that as an “executive team member and confidant” of the late Apple CEO Steve Jobs, Cook “is likely to have highly relevant information regarding Apple’s decision to enter the e-books market and its related strategies that are at issue in this case.”
The government says Cook received updates on Apple’s “efforts to move the entire e-books industry to an agency model, and even received boastful e-mails from Mr. Jobs that Apple had ‘helped stir things up in the publishing world.” The government adds that Cook and Jobs would likely have had private discussions about e-books that “cannot be discovered other than through Mr. Cook’s deposition.”
The DOJ says that Apple has countered that any discussions the two might have had would not be relevant because Jobs’s “statements themselves are not relevant to this action.”
Next, In an emailed letter dated March 11 (yesterday) to Judge Cote, a New York-based attorney writing “on behalf of Apple” opposed the DOJ’s request to depose Cook, cross-moving for a protective order.
The attorney cites a legal standard from past cases that “disfavor[s] apex executive depositions” where “the executive has no unique personal knowledge of relevant facts…lower-level executives can provide the same information…” and “the party seeking discovery has not exhausted alternative information sources…”
The letter references a declaration from Cook stating that he “has no unique knowledge about Apple’s decision to enter the e-books market and recalls no relevant ‘private conversations’ with Mr. Jobs.”
The letter continues: “The complaint does not reference Mr. Cook. None of the 29 witnesses deposed to date testified that Mr. Cook played any role in relevant events. And no publisher witness even mentioned Mr. Cook at his or her deposition.”
The letter goes on to argue that Cook had only a “tangental role as an outsider to the issues in dispute in this case.” The letter also notes that in all, 11 Apple executives will be deposed, and that “on March 12 and 13, the government will depose Eddy Cue, the senior Apple executive who reported directly to and communicated regularly with Mr. Jobs about the day-to-day development of the iBookstore.”
It continues, “Two days later, it will depose a member of Mr. Jobs’ executive team, former mobile software SVP Scott Forstall. And, as the court will recall, the government deposed Apple’s chief marketing offer Phil Schiller (over Apple’s objection) last December…”
“The government should not be permitted to depose Apple’s current CEO on a fishing expedition for what would be, at best, cumulative testimony.”
Note: I have bolded the names above for easier reading.
(Image: “Apple CEO Tim Cook,” via Wikimedia Commons.)
