A magistrate judge last week denied a bid by Amazon and the Big Five publishers to temporarily stay discovery in a lawsuit that alleges a conspiracy to fix e-book prices. But according to new filings this week, a dispute has now arisen over a proposed discovery schedule.
The latest twist in the closely watched case comes after defendants Amazon and the Big Five publishers (Hachette, HarperCollins, Macmillan, Penguin Random House, and Simon & Schuster) had asked the court back in July to delay discovery in the case until after the court rules on their motions to dismiss, the logic being that proceeding with discovery would pose a substantial burden on the defendants while the case against them was unsupported by evidence and likely to be tossed.
Indeed, last month both Amazon and the publishers filed motions to dismiss the case, arguing that there is no evidence of any coordination or agreement among them to fix e-book prices, and more to the point, the alleged conspiracy—in which the five largest American trade publishers are accused of ceding monopoly power over the e-book market to Amazon—was “illogical” and “implausible.” The defendants have also moved to dismiss a related case filed by a potential class of booksellers involving print book sales.
At a closed October 7 conference, however, judge Debra Freeman denied the defendants’ bid to stay all discovery pending a decision on their motions to dismiss, and asked the parties for a revised proposed discovery schedule. But lawyers for the defendants now argue that the parties had already agreed to most of the terms of a stipulation that calls for “limited discovery,” which they claim the plaintiffs “now wish to renege on” and instead want to “open up discovery fully,” defense lawyers told the court this week. “That should not be permitted.”
In response, lawyers for the plaintiffs insist there was in fact no agreement to renege on, noting among other things that had the Court intended the parties’ earlier discussions to serve as a stipulation of limited discovery the court would not have asked for revised discovery schedule.
The suit was first filed in the Southern District of New York on January 14 (and later amended) by Seattle-based firm Hagens Berman—the firm that successfully sued Apple and five major publishers for colluding to fix e-book prices in 2011. It alleges that Amazon and the Big Five publishers are co-conspirators in an alleged scheme to keep e-book prices artificially high, specifically through the use of various forms of a Most Favored Nations clause (MFN).
It is not known when the court will rule on Amazon and the publishers’ motions to dismiss the case.