Judge Cote assigns anti-trust monitor mediator, warns Apple against withholding documents
February 21, 2014 | 3:46 pm
The Apple anti-trust affair proceeds apace. In the wake of the appeals court decision allowing the monitor’s work to go ahead, Andrew Albanese reports at Publishers Weekly, Judge Cote has assigned a magistrate judge to act as a first-line mediator to resolve any disputes between Apple and anti-trust monitor Michael Bromwich, subject to appeal to her. (It’s the same magistrate, Michael Dolinger, who was also assigned to arbitrate the matter of Bromwich’s fee, so apparently his brief has been widened.) Cote also told Apple it needs to go ahead and fork over all the documents Bromwich requested by February 26th.
A raft of new documents have appeared in PACER (and, hence, RECAP), too. Watching the byplay, it starts to become clear just how “smoothly” things are going to run from here on out.
Here’s a letter from Michael Bromwich to Judge Cote (PDF) in which Bromwich fills Cote in on the state of things going forward, notes he has sent Apple another communication requesting the documents, and requests regular conferences through which both parties can iron out their differences. Here’s Judge Cote’s order (PDF) directing Apple to provide those documents, but denying the request for regular conferences at the moment. Instead, she ordered both parties to speak to Magistrate Judge Dolinger to resolve any disputes, and to schedule a meeting with him during the first couple of weeks of March. (And here’s the official paperwork for that order (PDF).)
Here’s a letter from Apple counsel Theodore Boutrous to Judge Cote (PDF) in response to her ruling, holding that, in agreeing with the DoJ’s interpretation of Bromwich’s role, the court had “rejected the broad mandate that Mr. Bromwich had claimed.” and that it would produce “all non-privileged documents [that Bromwich had requested] that are…consistent with the scope of his mandate.”
Apparently Judge Cote was not amused. She issued another order (PDF) telling Apple in no uncertain terms that Apple did not get to decide unilaterally what documents are “consistent with Bromwich’s mandate”:
To the extent that Apple believes that any responsive documents should be withheld because they are protected from disclosure to the Monitor by a privilege, it shall produce a privilege log and follow the procedure outlined in the February 19 Order to resolve or address any disputes in this regard as well.
(Albanese covered this subsequent exchange here.)
Something tells me Magistrate Judge Dolinger is going to get quite a judicial workout in weeks to come. The appeals court might have said Bromwich could go ahead, but I have a feeling the real party is just getting started.