updated 02:00 am EDT, Fri August 16, 2013
Adopts dismissive tone that adds to impression of pre-judgement
Judge Denise Cote, who presided over the Apple vs. Department of Justice e-book trial and has stymied Apple's attempts to both present rebutting evidence and obtain a stay of any penalties until after the appeal is heard, continued the pattern yesterday by denying and dismissing Apple's charges of nine specific judicial errors it plans to use to overturn both her initial verdict and denial of a stay of punitive action until the appeal is heard. Her responses, obtained by Fortune's Philip Elmer-Dewitt, paint a picture of pre-judgement as a major factor in her decision-making.
Apple may have better luck with Judge Cote in the May 2014 damages trial, which will be argued to a jury rather than the judge. Should Apple be successful in winning appeals on both her original ruling and the denial of the stay, most observers will put it down to the fact that Apple was arguing its cases to judges that didn't issue preliminary findings of guilt ahead of the trial or any evidence being presented.
During a recent hearing, Judge Cote examined a list of nine objections over evidence that it believes was "improperly admitted, excluded or disregarded" during the trial. In her response, Cote mostly dismissed the charges without explanation of her weighing of the evidence, saying simply that she did consider the testimony. She also notes that she found witnesses from Google and Amazon -- Apple's main competitors in the e-book market -- credible in spite of contradictory testimony from the witnesses themselves and from representatives of the publishers. Apple maintains that the witnesses demonstrated problems with their credibility.
In another example, Apple pointed out that the court "decided" what had actually happened during a dinner meeting between Apple Vice President Eddy Cue and representatives of MacMillan despite emails from the parties in question that contradicted the court's finding that Cue encouraged MacMillan to force Amazon to move to the agency model. Judge Cote said she found the live testimony of Cue and a MacMillan representative to have some "inconsistencies," but appeared to continue to ignore the contemporaneous emails that contradicted her finding.
A confusing response came when challenged by Apple that Cote had ignored evidence and testimony presented in court that undermined a key element of the DOJ's case -- that Apple was a ringleader that forced publishers to force Amazon to abandon the "wholesale" model for e-book selling. Publisher Hatchette and representatives of Barnes & Noble both said that they had discussed changing Hatchette's deal with Amazon to the agency model ahead of any involvement or contact with Apple. Cote said she noted this in her ruling, but the judgement still claimed that Apple was responsible for the publishers making Amazon change models. She did not elaborate on the apparent contradiction.
Reviews of Judge Cote from judicial rating site The Robing Room -- mostly written by attorneys but which were written years before the Apple vs. DOJ case was tried -- referred to her as a judge who "pre-determines which parties should win at the outset, and is blatantly enamored of big-name firms and government entities" while another said that (in an unrelated case) "it seemed clear that she had pre-judged the case and the parties before hearing the merits, and proceeded to rule accordingly without regard for the facts and law." Her overall rating at the site was 4.5 out of a possible 10.0.
While many commenters (in statements mostly from 2011 and earlier) noted her tendency to pre-judge and forcibly exclude evidence that might exonerate the pre-designated loser, even the negative commenters noted that she is meticulous about reading the relevant filings by both parties ahead of a trial, and was described as "hard-working" and "no-nonsense" with a tendency towards speedy decisions. The reviews, however, are nearly unanimous that Cote tends to pre-judge cases and that she has a nearly-unblemished record of siding with major-firm or government lawyers -- a fact that Apple may be able to leverage to gain appeals of her decisions.