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Notes from Steve Jobs' biographer will not be used in DoJ e-book case against Apple

post #1 of 26
Thread Starter 
The U.S. Department of Justice decided last week that it would not incorporate notes taken by Apple cofounder Steve Jobs' biographer into its antitrust case, which is targeting the Cupertino company over alleged e-book price fixing.

According to court documents uncovered by PaidContent on Tuesday, notes written by "Steve Jobs" author Walter Isaacson during his time with the tech guru have been dropped from the case, meaning that the biographer will also not have to provide verbal testimony.

Previously, class action lawyers participating in the lawsuit called on Isaacson to testify and provide written notes from his numerous interviews with Jobs, but the author declined, citing a New York shield law protecting journalists from revealing their sources. While the lawyers argued that the shield did not apply to the biographer, they ultimately stopped pursuing the subpoena last week.

Steve Jobs


Apple is now the lone holdout in the DoJ e-book case after Macmillan opted to settle out of court in February, joining publishing houses Penguin, Hachette, HarperCollins, and Simon & Schuster.

The Justice Department is accusing Apple of colluding with the five publishers to falsely inflate e-book prices by using the so-called "agency model." Under that strategy, the publishing houses were allowed to set their own prices on most-favored-nations terms, meaning they could not offer the same products at lower prices through other retailers.

Apple's agency model was counter to Amazon's wholesale model, which puts pricing power in the hands of resellers by allowing them to sell e-books at or below cost.

Because end user costs were higher with the agency model, the DoJ launched an investigation into whether Apple and its publishing partners were "conspiring to raise e-book prices to consumers."

An amended complaint filed in January of 2012 included the first mention of Jobs' quotes as it related to the iBookstore's pricing model.
post #2 of 26
No kidding. Steve isn't around to defend himself or what he meant by comments so how could they even THINK about using his comments in court?
post #3 of 26
Originally Posted by EricTheHalfBee View Post
No kidding. Steve isn't around to defend himself or what he meant by comments so how could they even THINK about using his comments in court?

 

Well, Jefferson et. al. aren't around anymore and yet we use their words in courtrooms.


BOOM, political bombshell. lol.gif

 

But no, I certainly agree with you.

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post #4 of 26

The DoJ under EricHolder is, overall, such a waste of time on antitrust issues. I wish Obama would find someone better. 

 

(And, before someone makes it political, please know that I don't mean stuff like the 'fast and furious' conspiracy from the nutty wing of the right).

post #5 of 26
Quote:
Originally Posted by Tallest Skil View Post

Well, Jefferson et. al. aren't around anymore and yet we use their words in courtrooms.


BOOM, political bombshell. lol.gif

But no, I certainly agree with you.

Hmmm, mod starting politics..... I'll bite -

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post #6 of 26
Quote:
Originally Posted by EricTheHalfBee View Post

No kidding. Steve isn't around to defend himself or what he meant by comments so how could they even THINK about using his comments in court?

It's not that simple.

Presumably, these are being excluded under the hearsay rule. Under that rule, people can generally not testify as to what someone else said. There are, however, a number of exceptions to that rule.

One of the exceptions is deathbed confessions. If Jobs had written those words himself, they would probably have been admissible. But since someone else wrote them, they're not.

It's going to be pretty hard for the DOJ to make a case without those statements.
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post #7 of 26
Quote:
Originally Posted by EricTheHalfBee View Post

No kidding. Steve isn't around to defend himself or what he meant by comments so how could they even THINK about using his comments in court?

So what did he mean?

http://www.scribd.com/doc/128734594/Steve-Jobs-Emails
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post #8 of 26
Quote:
Originally Posted by dasanman69 View Post

So what did he mean?

http://www.scribd.com/doc/128734594/Steve-Jobs-Emails

It doesn't matter what he said or meant if it's not admissible into court.
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post #9 of 26
Quote:
Originally Posted by ChristophB View Post

"It is incumbent on every generation to pay its own debts as it goes. A principle which if acted on would save one-half the wars of the world." --Thomas Jefferson

Hella-tough to interpret in our time, right? There is decades of reading Mr. J provided.

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post #10 of 26
Is it true that the notes from Mr Jobs weren't admissible due to all the swearing?
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post #11 of 26

No. It's pretty clear from the article that the author was asserting shield rule protection.

 

In any case, I don't think hearsay would apply to interview notes or tapes (absent the shield rule,) since they stand alone as documents and what was said seems implicitly "on the record." More importantly, hearsay applies to what you head someone say about something you didn't actually experience. SInce this would be about what SJ had directly told the author in an interview, it is direct experience. The notes record the facts of the conversation. "This is what SJ said to me."

 

If your idea of hearsay were applied, there would be very little testimony made in court.

 

Frankly though, ethical journalists would do just about anything to avoid compromising sources.

Quote:
Originally Posted by jragosta View Post

Presumably, these are being excluded under the hearsay rule. Under that rule, people can generally not testify as to what someone else said. There are, however, a number of exceptions to that rule.

One of the exceptions is deathbed confessions. If Jobs had written those words himself, they would probably have been admissible. But since someone else wrote them, they're not.

It's going to be pretty hard for the DOJ to make a case without those statements.
post #12 of 26
Quote:
Originally Posted by DESuserIGN View Post

 

...ethical journalists would do just about anything to avoid compromising sources.

 

You're talking about Gizmodo, right?

 

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post #13 of 26
Quote:
Originally Posted by DESuserIGN View Post

No. It's pretty clear from the article that the author was asserting shield rule protection.

In any case, I don't think hearsay would apply to interview notes or tapes (absent the shield rule,) since they stand alone as documents and what was said seems implicitly "on the record." More importantly, hearsay applies to what you head someone say about something you didn't actually experience. SInce this would be about what SJ had directly told the author in an interview, it is direct experience. The notes record the facts of the conversation. "This is what SJ said to me."

If your idea of hearsay were applied, there would be very little testimony made in court.

Frankly though, ethical journalists would do just about anything to avoid compromising sources.

You need to read up on hearsay. Here's a start:
http://en.wikipedia.org/wiki/Hearsay_in_United_States_law
Quote:
Hearsay is the legal term for testimony in a court proceeding where the witness does not have direct knowledge of the fact asserted, but knows it only from being told by someone. In general the witness will make a statement such as, "Sally told me Tom was in town," as opposed to "I saw Tom in town," which is direct evidence. Hearsay is not allowed as evidence in the United States, unless one of about thirty eight exceptions applies to the particular statement being made.

If Jobs told something to the author, it's still hearsay - whether the author writes it down or not. If I tell you I robbed a bank, that is not admissible - no matter how many documents you put that information into. If the journalist had been present when Jobs talked with the publishers, his testimony would be admissible. Or if Jobs had written something down, that would be admissible (with some limits due to inability to cross examine). Simply saying "Jobs told me this" is absolutely inadmissible because of the hearsay rule.

There are plenty of exceptions, but I can't see any of them that wold cover the notes.

Now, you do get into a gray area if he has tapes of Jobs speaking. Death bed testimony is admissible under some circumstances, so admitting a tape isn't entirely out of the question. Similarly, admitting emails and/or letters from Jobs is possible under some circumstances. But I don't think those exceptions apply in this case.

And, for the person who said it was inadmissible due to the amount of swearing, that's 100%, totally false. There's absolutely no rule that makes something inadmissible due to excessive swearing.
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post #14 of 26
Hearsay is defined as an out of court statement, testified to in court, offered for the truth of the matter asserted. Here the "truth" is that Apple (Jobs) intended to raise prices in violation of the antitrust laws. It does not matter whether it is a written statement or oral. Isaacson's testimony about his notes is double hearsay: he would be testifying about what he wrote outside of court (hearsay) about what someone else said (hearsay) offered to proved that Apple intended to raise prices. Even the notes themselves are hearsay, since they are what he said Jobs said (hearsay).

This doesn't mean that there isn't an exception to hearsay that might apply, but the fact that the notes are written does not change the fact that they are still hearsay.
post #15 of 26
Quote:
Originally Posted by lssmit02 View Post

Hearsay is defined as an out of court statement, testified to in court, offered for the truth of the matter asserted. Here the "truth" is that Apple (Jobs) intended to raise prices in violation of the antitrust laws. It does not matter whether it is a written statement or oral. Isaacson's testimony about his notes is double hearsay: he would be testifying about what he wrote outside of court (hearsay) about what someone else said (hearsay) offered to proved that Apple intended to raise prices. Even the notes themselves are hearsay, since they are what he said Jobs said (hearsay).

Not quite. If Isaacson testifies about something he wrote outside of court, that's not hearsay. He directly experienced the writing process since he wrote it himself. Hearsay is when you testify to something that you did not directly experience.

Example:
Isaacson writes in his journal what he has for breakfast each morning. For some reason, the court wants to know what he had on January 10. He could testify to that - and it would not be hearsay.

Similarly, Jobs tells Isaacson what he has for breakfast each morning and Isaacson writes it in a journal. If asked to testify in court, the court would probably not allow it (if someone objected) because it would be hearsay (unless Isaacson actually had breakfast with Jobs on that date and could testify as to his own experience.'

Where it gets tricky, is that in the latter case, if he were asked "did you take notes during your discussion with Jobs?", that would not be hearsay and could be answered, since he actually took the notes himself. If asked "did the notes cover your discussion about Jobs' breakfast habits", that would also not be hearsay since Isaacson participated in a discussion about breakfast. However, if the question was "what did Jobs have for breakfast on January 10?", that would be hearsay and not allowed.
Quote:
Originally Posted by lssmit02 View Post

This doesn't mean that there isn't an exception to hearsay that might apply, but the fact that the notes are written does not change the fact that they are still hearsay.

That part is true.
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post #16 of 26
Quote:
Originally Posted by jragosta View Post


It doesn't matter what he said or meant if it's not admissible into court.

 

Just because the truth isn't admissible in court doesn't mean its not the truth.

post #17 of 26

 

Hearsay isn't simple, but generally speaking it is testimony or documents which quote someone unavailable to the court. And of course second hand information presented to establish fact is hearsay (i.e. "He told me that X had happened." or "He told me that he herd X had happened.") Contrary to what many think, hearsay does not apply to a statement simply because it was made "out of court." It applies to statements that cannot be examined by the court. (This is what cross examination does.) Hearsay is essentially "second hand" evidence that cannot be examined. But as you say, there are a lot of exceptions.

 

The best rational for not to allowing interview notes would be because SJ is dead and cannot testify. But obviously this case is about Apple, not SJ so his death may be less important than usual. The notes could be allowed, depending on what they are used to establish. The interview notes could fall under the "business documents" or "writings made at or near the time of the events" exception. The interview may be used to establish "plans and intentions."

Again, this isn't "proof," but it isn't hearsay either (depending on how it's used.)

 

 

Could you imagine if testimony such as "He yelled, 'I killed my wife!'" or "He offered me $10,000 to kill his wife." were not allowed in court? Simply because testimony reveals the content of a conversation does not make it hearsay.

 

 

I fail to see how tapes could be considered a "gray area."

 

 

Quote:

Originally Posted by jragosta View Post


You need to read up on hearsay. Here's a start:
http://en.wikipedia.org/wiki/Hearsay_in_United_States_law
If Jobs told something to the author, it's still hearsay - whether the author writes it down or not. If I tell you I robbed a bank, that is not admissible - no matter how many documents you put that information into. If the journalist had been present when Jobs talked with the publishers, his testimony would be admissible. Or if Jobs had written something down, that would be admissible (with some limits due to inability to cross examine). Simply saying "Jobs told me this" is absolutely inadmissible because of the hearsay rule.

There are plenty of exceptions, but I can't see any of them that wold cover the notes.

Now, you do get into a gray area if he has tapes of Jobs speaking. Death bed testimony is admissible under some circumstances, so admitting a tape isn't entirely out of the question. Similarly, admitting emails and/or letters from Jobs is possible under some circumstances. But I don't think those exceptions apply in this case.

 

I think they meant this as a joke.

 

Quote:

Originally Posted by jragosta View Post

And, for the person who said it was inadmissible due to the amount of swearing, that's 100%, totally false. There's absolutely no rule that makes something inadmissible due to excessive swearing.
 
post #18 of 26
Quote:
Originally Posted by DESuserIGN View Post

Hearsay isn't simple, but generally speaking it is testimony or documents which quote someone unavailable to the court. And of course second hand information presented to establish fact is hearsay (i.e. "He told me that X had happened." or "He told me that he herd X had happened.") Contrary to what many think, hearsay does not apply to a statement simply because it was made "out of court." It applies to statements that cannot be examined by the court. (This is what cross examination does.) Hearsay is essentially "second hand" evidence that cannot be examined. But as you say, there are a lot of exceptions.

I never said that it applied specifically because it was out of court. I was quoting someone else. You can read my posts on what is hearsay above - and you should read the Wikipedia article I cited.
Quote:
Originally Posted by DESuserIGN View Post

The best rational for not to allowing interview notes would be because SJ is dead and cannot testify. But obviously this case is about Apple, not SJ so his death may be less important than usual. The notes could be allowed, depending on what they are used to establish. The interview notes could fall under the "business documents" or "writings made at or near the time of the events" exception. The interview may be used to establish "plans and intentions."
Again, this isn't "proof," but it isn't hearsay either (depending on how it's used.)

The court in this case has already disagreed with you. Isaacson's notes are not admissible.

Quote:
Originally Posted by DESuserIGN View Post

Could you imagine if testimony such as "He yelled, 'I killed my wife!'" or "He offered me $10,000 to kill his wife." were not allowed in court? Simply because testimony reveals the content of a conversation does not make it hearsay.

Actually, it is hearsay. However, it falls under one of the exceptions. When you hear the defendant make a statement, it is admissible because the defendant is available for cross-examination.
Quote:
Originally Posted by DESuserIGN View Post

I fail to see how tapes could be considered a "gray area."

Already explained above.
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post #19 of 26
Quote:
Originally Posted by dasanman69 View Post


So what did he mean?

http://www.scribd.com/doc/128734594/Steve-Jobs-Emails

 

Reportedly mean, allegedly?

 

I sense the beginning of back-pedalling on this very weak case.

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post #20 of 26
Quote:
Originally Posted by lssmit02 View Post

Hearsay is defined as an out of court statement, testified to in court, offered for the truth of the matter asserted. Here the "truth" is that Apple (Jobs) intended to raise prices in violation of the antitrust laws.

 

The alleged "truth".

 

The truth is Apple wanted to provide the means for their customers to buy eBooks and the means for publishers to sell them to them.

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post #21 of 26
Quote:
Originally Posted by hill60 View Post

Reportedly mean, allegedly?

I sense the beginning of back-pedalling on this very weak case.

I'd say that this weakened the case, but there's enough circumstantial evidence that the publishers decided to settle. Publishers that are old, with deep pockets, friends in high places, and with white shoe law firms on retainer. Their legal team thought it best to settle.
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post #22 of 26
Quote:
Originally Posted by dasanman69 View Post

I'd say that this weakened the case, but there's enough circumstantial evidence that the publishers decided to settle. Publishers that are old, with deep pockets, friends in high places, and with white shoe law firms on retainer. Their legal team thought it best to settle.

Or maybe they were offered a better deal.

More likely, there may be evidence that the publishers colluded. That doesn't make Apple guilty.
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post #23 of 26
Quote:
Originally Posted by jragosta View Post

Or maybe they were offered a better deal.

More likely, there may be evidence that the publishers colluded. That doesn't make Apple guilty.

How many times did I argue with you that I believed that the publishers were guilty and Apple was not? Now you're changing your tune.
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post #24 of 26
Quote:
Originally Posted by dasanman69 View Post

How many times did I argue with you that I believed that the publishers were guilty and Apple was not? Now you're changing your tune.

No, I'm not.

The fact is that I don't know what happened and neither do you. I refuse to label any guilty without facts.

The point I was making is that there are lots of reasons why the publishers might settle and Apple wouldn't. I only gave a couple, but you could add:

- Publishers might have greater potential downside than Apple.
- Publishers might be more concerned about market share information coming out in court.
- Publishers might have more conservative lawyers.
Or any number of other reasons. The entire point is that your suggestion that Apple is guilty just because the publishers settled is nonsense.
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post #25 of 26
Quote:
Originally Posted by jragosta View Post

No, I'm not.

The fact is that I don't know what happened and neither do you. I refuse to label any guilty without facts.

The point I was making is that there are lots of reasons why the publishers might settle and Apple wouldn't. I only gave a couple, but you could add:

- Publishers might have greater potential downside than Apple.
- Publishers might be more concerned about market share information coming out in court.
- Publishers might have more conservative lawyers.
Or any number of other reasons. The entire point is that your suggestion that Apple is guilty just because the publishers settled is nonsense.

Show one post where I said Apple was guilty? No we don't know what happened but I believe where there's smoke there's fire, so if you want facts then let's look at some. These are the heavyweights of the publishing industry of which all the CEOs know each other well, and rub elbows with many a politician. They are well connected, so when I see a company like these that is very capable of defending themselves against the DoJ it raises my ears. I will say that you made valid points and I'd usually be inclined to agree but this is one time I believe something did happen but I repeat I don't believe Apple had any part of it.
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post #26 of 26
Quote:
Originally Posted by jragosta View Post

- Publishers might have more conservative lawyers.

 

Or more risk-averse executives.

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