In its rebuttal to a motion filed earlier in the week by the Associated Press, Bloomberg and CNN, Apple’s lawyers argued that releasing the video could discourage others from testifying if they knew that the resulting images would end up broadcast or used on the internet.
“If Movants are correct that the ‘substantial public interest’ requires disclosure of a video record ‘only available to those fortunate enough to be in court that day,’ then the testimony of every witness who consensually sits for a video deposition in every litigation in this country will be affected by the knowledge that they, too, one day could be someone else’s ‘interest,’ and hence decline to appear for testimony,” Apple said in its motion.
On Monday, the three news firms asked US District Court Judge Yvonne Gonzalez Rogers to force Apple to release the video, which Jobs recorded in April 2011. The deposition was taken for a class-action lawsuit alleging that Apple stifled competition by blocking consumers from playing music acquired from rival digital music stores on their iPods. The antitrust case is currently being heard by a California federal jury.
While 27 minutes of Jobs’ video deposition were shown to the jury on 5 December and a transcript has been made public, the news companies wanted copies of the complete deposition. “Because Jobs’ video deposition was used as trial testimony, it is now part of the trial record [and] therefore there is a strong presumption that the public and the press have a right to access it,” the attorney for the trio argued.
Apple countered, saying that there was no First Amendment right to video recordings, whether from a federal trial itself or a deposition, and that there was nothing in Jobs’ testimony that would “promote the public interest.”
In fact, implied Apple, the media companies only wanted ratings and page views. “Movants’ request is simply an attempt to generate public interest for reasons wholly unrelated to the resolution of this trial,” Apple said.
More tellingly – and perhaps the root of Apple’s refusal to release the video – the company’s lawyers did not want Jobs, especially a visibly frail Jobs, to become the face of the case.
Jobs recorded the deposition during his final medical leave from his role as Apple CEO, and just months before he died from pancreatic cancer in October 2011. His last public appearance was in June when he urged the Cupertino city council to approve plans for Apple’s new headquarters, which is still under construction.
“Mr. Jobs is the only witness in this case whose testimony the broader public would ever see,” the motion stated. “The public’s view of this estimated ten-day trial – and almost ten years of litigation – would be shaped entirely by a few minutes of one witness’ testimony.”
In other news about the trial, the court approved a new plaintiff, Barbara Bennett, after two earlier plaintiffs had withdrawn from the class-action lawsuit and a third was tossed by the judge because she had not met the iPod purchase requirements.