Ahead of a status conference set for today in the three lawsuits—by the Justice Department, numerous states’ attorneys general and the class action suit led by Hagen’s Berman—against Apple and five publishers charging them with fixing e-book prices, Judge Denise Cote, who is overseeing all three cases, received letters from most of the parties involved on various procedural issues. The letters highlight splits between the different defendants as well as the possibility of the investigation moving to include evidence from overseas parties.
In its letter, Apple stressed what it said earlier this week—that it wants a relatively brief period of discovery and to be trial ready by March 26. Apple noted that the DoJ has already conducted an 18-month investigation which included “over a dozen subpoenas for documents, depositions, numerous interviews, and meetings with over a dozen Amazon employees.” Apple agrees with Macmillan and Penguin that the DoJ’s case be “delinked” from the state and class action cases since the DoJ case “implicates important public interests as well as Apple’s own interest in vindicating its conduct.”
For its part, Macmillan said it needs a longer period for discovery since the company, the smallest of the publisher defendants “lacks the litigation resources of Apple, or for that matter, the government, It has limited internal personnel that can be deployed to handle litigation request.” Macmillan, the letter continues, had already produced “hundreds of thousands of pages of extensive discovery,” and that responding to more detailed requests will require a longer time period unless the court imposes restrictions on the date range and number of discovery request by the plaintiffs. Macmillan also notes that it will need an extended discovery period because it appears the plaintiffs are gearing up to ask for materials Macmillan has supplied to foreign regulators during their own price fixing investigations. “These discovery requests,” Macmillan notes “raise serious issues under foreign data privacy laws that restrict the collection, review, and transfer of ESI in these actions and will impose substantial and time-consuming additional compliance burdens on Macmillan and [parent company] Verlagsgruppe.
The U.S. attorney believes that ending discovery by March 22 is fair to all parties and that contrary to the defendants’ stance, there is still much to be unearthed. Mark Ryan, director of litigation for the DoJ, notes, for example that the class action suit is seeking class action certification and both the class action and state cases are looking for damages.
The government also throws cold water on a bid by the “settling defendants”(Simon & Schuster, Hachette, HarperCollins)to be given special treatment as nonparties in participating in discovery since they have reached deals with the federal government and states, but not the class action. The DoJ notes that the publishers did not obtain limitations on providing future discovery when they settled with the U.S. and states, and notes that since this is a conspiracy case, there is “no remotely plausible argument that they are not likely to be sources of highly relevant evidence.” The government also touched on the foreign investigation into price fixing, noting that the documents the settling publishers have turned over to the European Commission have not been turned over to the U.S. or states. “Immunizing the settling defendants from further discovery may result in those documents never coming to light in these proceedings and may thwart efforts to obtain testimony from European-based conspirators, not to mention testimony from U.S. personnel.
In Hagen’s Berman’s letter, Steve Berman argues for discovery in all cases to proceed together and that all publishers and Apple be subject to discovery.