Amazon attorneys last week filed a letter with the court asking that it be allowed to redact sensitive business information about its Kindle e-book program gathered as evidence for the upcoming Apple price-fixing trial. Apple attorneys, however, are fighting the effort with a letter of its own, arguing that Amazon does not come close to meeting the legal standard for having the information in question redacted or sealed, and asking the court to grant public access to evidence gathered from Amazon.
Although Amazon is not a party to the suit, it has a “principal role” in the case coming to trial, Apple attorneys wrote in a letter to Judge Denise Cote. “Amazon is no disinterested third party,” wrote Apple attorney Howard Heiss last week. “Amazon was instrumental in launching this case.”
While Heiss concedes that some of the information Amazon wishes to keep private may be “potentially embarrassing,” for Amazon, including documents and testimony pertaining to “profitability, pricing, and contract terms,” he called Amazon’s approach to confidentiality “unreasonable,” and argued that public access would not harm Amazon’s “competitive standing”—the legal standard for redacting or sealing documents.
Amazon attorneys, however, call the redactions a matter of “critical importance,” noting that several of Apple’s pretrial filings contain “highly confidential” proprietary business information, including detailed “transactional data” regarding e-book sales; internal pricing rules; specific terms of Amazon’s contracts with publishers and “documents reflecting its strategy in negotiating those contracts, ” as well as other “internal planning and strategy” documents.
“Amazon has never shared its confidential sales and strategic information with anyone outside the company; this is true even for historical information,” writes Amazon attorney Michael Kipling, arguing that even older information, which Apple deems “stale” can still be “interpreted to reveal [Amazon’s] current strategy, strengths, and weaknesses.” Kipling asked the court to allow Amazon to redact information that is “valuable to Amazon because of its secrecy, and to which no third party would have had access but for Amazon's obligation to comply with subpoenas in this litigation.”
But the public could finally get a peek behind the Amazon curtain. Just because Amazon is notoriously secretive about its business practices does not mean that disclosure would harm Amazon’s interests, argue Apple attorneys. “How a litigant treats its own information is not the standard,” Apple attorneys wrote to Cote. "Amazon has fallen far short of making the specific showing of how disclosure of specific facts or data would harm it competitively.”