This was one of those great, late summer weekends—but not for Apple attorneys. With tomorrow’s hearing on a proposed final order looming in Apple’s e-book price-fixing case, Judge Denise Cote wants to see exactly what parts of the DoJ’s proposed injunction Apple objects to. So, late last Friday, the judge ordered Apple attorneys to submit “a red-lined version of the Plaintiffs’ Revised Injunction striking any language to which Apple objects,” by 10 a.m. this morning.
At press time, that filing has yet to show up in the court’s electronic filing system, but we can imagine that it will be one bloody-red document. In filings last week, the two sides were able to find little common ground on the contours of injunctive relief, although the DoJ did soften its initial proposal somewhat.
Meanwhile, Apple attorneys asked Judge Cote to order the DoJ to withdraw its Friday brief in support of its revised injunction. Apple attorneys argue that the two sides were to submit letters to the court following their court-ordered discussions, but that the DoJ instead filed a “12-page broadside masquerading as a brief,” along with 72 pages of docments, which Apple claims raises facts and issues beyond the scope of the trial." Cote denied Apple’s request this morning, leaving the DoJ brief in the record.
Which makes the second part of Judge Cote’s order all the more interesting: she has asked Apple not only to strike the language it objects to, but also to submit "a second red-lined version" with “alternative language” in the event that the court “adopts each of the plaintiffs' substantive requests.”
The order seems to invite an awkward response. Apple has already submitted its proposed injunction, but the court is now basically asking Apple to write its own proposed punishment by rewriting the government’s proposal. The two sides will be back in court tomorrow.