Steve Jobs holds an iPhone 4 at the 2010 Worldwide Developers Conference
Steve Jobs holds an iPhone 4 at the 2010 Worldwide Developers Conference (Matt Yohe)

SAN FRANCISCO — More than two years after his death, Steve Jobs still casts a long shadow—over Apple, consumer tech, and over the federal courthouse in San Jose. The attention lately hasn’t been flattering.

“News flash: Steve Jobs bullied rivals and was kind of a dick,” reads the headline on a blog post plaintiffs’ attorneys plan to use in a case over alleged no-poach pacts involving Apple and other major tech companies. Emails submitted to the court describe “veiled threats” from an “irate” Jobs.

Accounts that Apple’s late cofounder, chairman and CEO was volatile and hard to work with are hardly revelations, but they have become a battleground in a class action over recruitment practices at Apple Inc., Google Inc., Intel Corp. and Adobe Systems Inc.

In a brief submitted Thursday night, plaintiffs’ attorneys argued those statements and others are key evidence in their case that Jobs conspired with his peers at other major tech companies not to hire each others’ employees in order to keep down wages.

“[T]he force of Mr. Jobs’ personality and reputation has been squarely put at issue by [defense] witnesses and is interwoven with the facts of the case,” states the motion from colead counsel at Lieff Cabraser Heimann & Bernstein and the Joseph Saveri Law Firm.

U.S. District Judge Lucy Koh certified a class of more than 60,000 skilled workers in October, and the massive case is set for trial in May. Intuit Inc., Lucasfilm Ltd. and Pixar Animation Studios Inc. have already settled similar claims for a combined $20 million.

Last week defense attorneys accused their opponents of attempting a “free-floating character assassination” against Jobs and asked Koh to exclude all evidence relating to Jobs’ character.

“Rule 404(a) bars plaintiffs’ attempt to introduce evidence that Mr. Jobs was allegedly ‘mean’ or ‘a bully’ and acted in accordance with that character in reaching no-cold-call agreements,” defense attorneys wrote.

O’Melveny & Myers represents Apple; Jones Day is counsel to Adobe; Munger Tolles & Olson is defending Intel; and Keker & Van Nest and Mayer Brown jointly represent Google.

The evidence defense attorneys want to block includes the colorfully headlined blog post, as well as quotes from Walter Isaacson’s 2011 biography of Jobs.

Plaintiffs’ lawyers argue the blog post is relevant because it describes Jobs’ attempt to obtain a no-recruit agreement with Palm, a smartphone manufacturer later acquired by Hewlett-Packard Co.

“At worst, the motion signals an intention to interfere with the presentation of admissible evidence, merely because such evidence may also reflect poorly on Mr. Jobs,” the attorneys wrote.

Plaintiffs’ attorneys have already used the Isaacson biography to show Jobs’ involvement with antirecruitment agreements, quoting the book in a February brief: “Mr. Jobs ‘kept a tight rein on the hiring process.’ … He ‘acted as if he were not subject to the strictures around him,’ and had a ‘Nietzschean attitude that ordinary rules didn’t apply to him.’”

Plaintiffs’ attorneys also intend to use admissions Jobs made in the book as evidence at trial. It’s not the first time the work would be used in court, they point out, as U.S. District Judge Denise Cote in the Southern District of New York “cited, quoted, and relied on” statements from the biography in a federal case over alleged e-book price-fixing.

Jobs’ 2011 death complicates matters because he can’t testify, said Zelle Hofmann partner Francis Scarpulla, an antitrust expert not involved in the no-poach case.

Plaintiffs’ attorneys have submitted pages of emails describing Jobs’ alleged intimidation, some of which Scarpulla said might be questionable. For instance, emails from Google cofounder Sergey Brin in 2005: “So I got a call from Steve Jobs today who was very agitated,” one states. In another, “Basically, he said, ‘if you hire a single one of these people that means war.’” Scarpulla said emails describing Jobs’ actions via third parties could qualify as hearsay. “It’s a very complicated issue,” he said.

Character evidence rarely comes up in antitrust litigation, according to Judith Zahid, another Zelle Hofmann partner.

Defense lawyers also asked Koh to exclude other evidence, including references to Justice Department investigations of the companies, the settlements with Intuit, Lucasfilm and Pixar, and to the compensation and personal wealth of tech executives.

“[U]nlike the individual class representatives, who have chosen to place their salaries and compensation at issue through this lawsuit, non-class-members’ wealth and compensation are irrelevant and inadmissible,” defense lawyers stated in a joint motion in limine.

Defense attorneys also want a ban on evidence concerning tech employees who are not members of the class, including foreign workers.

That would exclude 2006 emails between Jobs and Google executive Alan Eustace detailing how Google bowed to Jobs’ objections and canceled plans for a Paris engineering center. Google wanted to hire four people who used to work at Apple in Paris, but had since left the company or given notice. A one-line response from Jobs shut down the entire project: “We’d strongly prefer that you not hire these guys.”

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