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Apparently You Don't Even Have to Send an Email for It to Be Used Against You by the Gov't


"...I'm not sure we can be competitive."

Just as draft emails played a role calling out the affair between former CIA Director Gen. David Petraeus and Paula Broadwell, Apple is currently involved in an antitrust case and an unsent, draft email from the late Steve Jobs could be one of the key players as well.

Steve Jobs in April 2007. (Photo: CARL DE SOUZA/AFP/Getty Images)

The case involves a price-fixing trial where Apple has been accused of scheming with major book publishers to drive up the cost of electronic books. The trial stems from an antitrust lawsuit brought last year by the Justice Department alleging Apple and the publishers devised a plan that allowed publishers to convert retailers into "agents" who were restricted from lowering the publisher-set retail price. The arrangement guaranteed Apple a 30 percent commission on each e-book it sold.

The five publishers - Hachette, HarperCollins, Simon & Schuster, Holtzbrinck Publishers, doing business as Macmillan, and The Penguin Publishing Co. Ltd., doing business as the Penguin Group - settled with the government before the nonjury trial. Apple chose to go to trial, denying claims that its agreements required publishers to force Amazon to charge more for e-books.

Evidence in the case includes emails written by Jobs before he died in 2011.

One email that was intended for Apple Senior Vice President Eddy Cue, who took to the stand last week in the case, read: "I can live with this as long as they move Amazon to the agent model too for new releases for the first year. If they don't, I'm not sure we can be competitive. Steve"

Apple Cue Federal Court Eddy Cue, Apple's senior V.P. of Internet Software and Services , center, exits Manhattan federal court following his testimony in the e-book pricing trial, Thursday, June 13, 2013, in New York. (Photo: AP/ Louis Lanzano)

SlashGear explained that to the prosecuting Justice Department, this email shows that the company was trying to end competition for pricing e-books, while Apple's defense attorney, Orin Snyder, dismissed the note because it was never actually sent.

CNET reported Apple's defense responded to this draft email by calling forward the email that was actually sent.

This was Jobs' sent response to Cue's original email:

steve jobs email (Image via DOJ)

Cue has said five draft messages by Jobs never reached Cue's inbox. CNET has more on the issue of stamps on the drafts:

The DOJ, which questioned Cue about the documents several times during his testimony, said the document they cited had the most recent time stamp, indicating it was Jobs' actual thoughts about the situation. Apple's attorneys have refuted that claim. Cue said that he had never received the e-mails, and that he couldn't be sure they were actually composed in the order shown by the time stamps.

"Time stamps don't always tell what the latest draft was," Cue said. He noted that people could have multiple windows open, and just because they closed one last, it would have the most recent time stamp even if it wasn't the most recent draft.

However, Judge Denise Cote, in questioning Cue, got him to admit he had no reason to doubt the time stamps didn't indicate the actual order Jobs was drafting the message.

Draft emails, like sent emails, can be obtained through court orders from service providers.

On the witness stand last week, Cue said negotiating with publishing houses at the time to set prices as high as $14.99 for books sold in the iBookstore was not an effort to force Amazon into similar deals. Amazon at the time had a $9.99 price set for e-books on its Kindle, which has since been discontinued.

Cue also said he didn't think publishers were working together as Apple negotiated with them, despite phone records showing their chief executives were in frequent communication.

The Associated Press contributed to this report. 

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