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Apple's lawyer accuses the media of asking to see 'a dead man' in Steve Jobs video testimony

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Company fighting tooth and nail to keep it from being made publicly viewable

Apple/Norman Seeff

A California judge is still mulling a decision to make public a video deposition of Apple CEO Steve Jobs, recorded just months before his death in 2011. A motion filed by the Associated Press, Bloomberg, and CNN yesterday asked for the tape, a section of which was played during trial last week, to be released. Some 27 minutes of that footage were shown in court last week. Despite the potentially beneficial statements made by Jobs in Apple's defense, the company's lawyers fought the effort to make it public, saying it was not admitted into evidence as an exhibit, and thus does not fall under a court order that requires each exhibit to be shared with the press.

"Steve Jobs is not your typical trial witness."

"We're not asking for anything other than what the jury heard," argued Tom Burke, a partner at law firm David Wright Tremaine who's representing the media companies. "Steve Jobs is not your typical trial witness, and that's what makes this a unique circumstance."

Apple's lawyer Jonathan Sherman, a partner at law firm Boies, Schiller, and Flexner accused Burke and the media companies of being opportunistic during a hearing in Oakland's federal court building this evening.

"The marginal value of seeing him again, in his black turtleneck — this time very sick — is small," Sherman said, contrasting that with high-profile appearances like Apple product releases, and when Jobs stumped for a new campus at a city council meeting in Cupertino. "What they they want is a dead man, and they want to show him to the rest of the world, because it's a judicial record." Burke replied by saying it was not a frivolous request, and calling the testimony "invaluable."

US district court judge Yvonne Gonzalez Rogers voiced strong concerns about somehow making the video public, saying it would break the court's basic rule that keeps any of the proceedings from being recorded on video. "The request you're asking for frankly is diametrically opposed from the rule that says I cannot allow the recording of these proceedings," Judge Rogers told Burke. "So if I'm treating witnesses the same, I haven't recorded any of the experts, I haven't recorded anything and none of that's going to go to the jury." Judge Rogers ultimately said she still needed more time to go over the arguments, and would accept an additional argument from Burke and the companies as long as it's filed by the end of the week.

This hasn't been the only hiccup

This hasn't been the only hiccup during the trial, which started last week. With 8 million iPod buyers that are a part of a class action lawsuit against Apple, it's turned out to be awfully hard to find one who actually bought the right product at the right time. For the past week, attorneys in the case — which accuse Apple of locking out competing music services from iTunes and iPods made in the mid-2000s — have been scrambling to come up with someone to represent that group after others have been removed for being found ineligible.

While there are millions who bought the devices during the affected time period, the law requires someone to represent that class as a lead plaintiff, which means they purchased the correct device at the right time and have no conflicts of interest. Two plaintiffs have already been dropped from the complaint, including one yesterday who the court decided did not purchase the correct devices at the correct time, and whose purchases were made using her ex-husband's law firm's credit card.

They're still trying to get a replacement plaintiff

Faced with the prospect of having no plaintiffs, attorneys for the class filed to get a new group of potential replacements. One made it through questioning earlier today, and could ultimately represent the 8 million people in the class. That person purchased two iPods, only one of which appears eligible during the timeframe outlined in the suit.

"We've got someone here who made a purchase with her own funds, has some experience, is intelligent and concerned, and doesn't have any relationship to the lawyers, and reached out on her own accord," Judge Rogers told the plaintiffs' lawyers. "In light of that, I'm happy to have you investigate further," she told Apple.

With a possible $350 million in damages, the stakes for Apple in the case are relatively low in light of the billions it rakes in every quarter. That number could be tripled, though, if the jury says Apple violated antitrust laws, which would push it beyond what Apple initially won in its patent trial against Samsung two years ago.

The stakes for Apple are low

The trial kicked off in earnest last week with testimonies from two of its executives, Eddy Cue and Phil Schiller, as well as the recorded Jobs deposition. Jeff Robbin, who headed Apple's iTunes team after Apple bought his company SoundJam and turned it into its own music software, also testified. All said that any changes the company made to iTunes were done to fulfill contracts with record labels as well as for security purposes, likening any competing efforts by other companies (such as RealNetworks' Harmony software) to malicious hacking.

The case is expected to close as soon as Monday of next week, with jury deliberations to follow. Apple still has yet to make its defense, though it has pushed its side of the story when its employees were up on the stand. The trial was originally expected to wrap up this Friday, a deadline that was derailed after the disqualification of plaintiffs.