Consumers seeking damages from Apple Inc. for its role in an alleged plot to fix e-book prices urged the court overseeing the multidistrict litigation Wednesday to reject the iPad maker’s bid to redo its discovery in the case.
As the court gets ready for a May 2014 trial date for the damages phase of the case, the plaintiffs claim that Apple is trying to stretch out the discovery process by seeking information that it either already obtained or had the chance to request during the original discovery phase.
“Apple’s discovery plan hits the ‘reset’ button,” the plaintiffs wrote. “But it should have already pursued, or did pursue, these facts, just as class plaintiffs did.”
U.S. District Judge Denise Cote agreed in July with the U.S. Department of Justice and 33 state attorneys general that Apple indeed conspired with Simon & Schuster Inc., Penguin Group USA, Macmillan Publishers USA, Hachette Book Group Inc. and HarperCollins Publishers LLC to fix e-book prices.
Though the DOJ’s case will be resolved once the court issues an injunction, the states and the private plaintiffs are still seeking damages that could reach nearly $500 million.
Now that the private plaintiffs are preparing to seek class certification, however, they say that only limited discovery is needed to combat Apple’s challenges to certification. Apple, meanwhile, wants another nine months of discovery, according to the plaintiffs’ letter.
“We believe our approach is consistent with this court’s case management orders and the extensive fact discovery already obtained,” the plaintiffs wrote. “Apple rejects this approach, however, and intends to serve far-flung fact discovery on plaintiffs, publisher defendants and third parties.”
The proposed class wants discovery limited to two specific topics based on arguments Apple has raised against class certification. It wants Apple to identify the titles of the e-books released by the defendant publishers whose prices declined during the class period. Apple has said the alleged plot actually drove prices down for some titles.
The plaintiffs also want e-book retailers to lay out their capacity to identify class members and what e-books they bought.
The plaintiffs pointed out that the defendants initially pushed to ensure their witnesses would be deposed only once, before the liability trial, to avoid the need for further depositions again on class certification and damages.
As a result, the court ruled that fact witnesses would not be allowed to be deposed again “absent an extremely strong showing,” according to the letter. The plaintiffs say they coordinated with the states and the DOJ in order to ensure they got all the discovery they needed the first time. They argue that Apple either did so as well or had the opportunity to do so.
“Class plaintiffs followed the court’s directives … Apple seems to believe it was not similarly required to do so,” the letter said.
Apple is now claiming it needs nine months for new discovery despite telling the court last fall that it could handle class certification in reasonable time if it were delayed until after the liability trial, according to the plaintiffs.
Apple received an extension from the court until Friday to file its own letter on the scope of discovery. A representative for Apple was not immediately available for comment Thursday.
The case is In re: Electronic Books Antitrust Litigation, case number 1:11-md-02293, in the U.S. District Court for the Southern District of New York.
