Agentless Backup is Not a Myth

Biographer Walter Isaacson is fighting a subpoena to unlock his unpublished interviews with Steve Jobs in the Apple ebook price-fixing case.

When Apple moved into ebooks, it negotiated an agency model with publishers – not in itself illegal – where the publishers set the price and Apple took a 30 per cent cut.

Isaacson's attorney, Elizabeth McNamara, argues that journalists are only supposed to have subpoenas issued on their work as a last resort and not when the case has only just started. She also said in a letter to Judge Denise Cote that the plaintiffs hadn't shown that the material was relevant or unobtainable from other sources.

McNamara also insists that Isaacson doesn't have any tape-recorded interviews of Jobs chatting about ebooks, so anything he does have would be secondhand knowledge and could therefore be construed as hearsay.

In a handwritten scribbled note on the letter, Judge Cote wrote that the plaintiffs could renew their application when they could show that there was good legal reason to get Isaacson's notes.

But the plaintiffs are not giving up. They are now applying to have an informal discovery session – in other words, trying to force Isaacson and his lawyer to at least tell them what he has in his notes.

"Mr Isaacson's counsel maintained that all unpublished material was privileged and refused to describe what materials existed and in what forn, asserting the form of information was also privileged (although Mr Isaacson stated publicly that many interviews were recorded)," the plaintiffs' lawyer Steve Berman said in a letter to the court.

Berman maintained that Isaacson's unpublished stuff wasn't confidential and he'd already played some of the tapes on TV when he was promoting his book.

"Mr Isaacson conducted numerous interviews during the time Mr Jobs was involved in negotiating Apple's entry into the eBook market. And Mr Jobs discussed Apple's eBook strategy and negotiations with Mr Isaacson," Berman said.

"Not only are these discussions highly relevant, in light of his death, Mr Jobs' contemporaneous recorded statements of Apple's strategies, motives, and discussions with industry participants are unique evidence that cannot be obtained from other sources."

The class action case was filed after the Department of Justice launched its own case against Apple and five publishers for alleged price-fixing. Three of the publishers have settled their cases but Apple, Penguin and Macmillan are fighting on. ®

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