Psystar claims Phil Schiller was unprepared during deposition, responds to accusations of destroying evidence

Fri, Aug 21, 2009

Legal, News

The ongoing legal saga between Apple and Psystar continues to get stranger and stranger.

If you recall, Psystar bragged on its website a week or so ago that it would be deposing top Apple executives and that Apple would soon be getting “a taste of its own medicine.”  The most notable figure on Psystar’s deposition list was Phil Schiller, Apple’s Senior VP of Worldwide Product Marketing.

If you’ve followed the Apple/Psystar case, you’re probably aware of Psystar’s attempts to skirt around Apple’s deposition questions.  Psystar’s evasiveness was to such a degree that Apple eventually filed a motion with the court seeking to compel Psystar employees to either answer pertinent questions or to provide someone who could.

And now, interestingly enough, Psystar recently filed their own motion alleging that Phil Schiller “appeared at his deposition wholly unprepared and unwilling to testify” when questioned about how Psystar’s clones hurt Apple’s business.

Specifically, Psystar’s motion points out that it wants Schiller to opine on how much business Apple is missing out on as a result of Psystar, and how Apple calculated its “lost profits.”  Interestingly enough, Computer World notes that “Apple reportedly objected to the topic on a variety of grounds” but that they eventually relented and tasked Schiller with answering those questions.

What’s confusing here is why Apple eventually gave in to Psystar’s demands, especially in light of Psystar’s own recalcitrance during its depositions.  The fact of the matter is that any lost profits suffered by Apple are ultimately irrelevant in determining the legality of Psystar’s actions.  Again, why Apple agreed to this line of questioning is somewhat perplexing.

Psystar’s motion concludes with a request that the court force Apple to “properly prepare Mr. Schiller for his deposition”, which if all goes according to plan, is set to take place yet again in 2 weeks.

Also of note was Psystar’s response to accusations that it purposefully destroyed incriminating software which enabled it to put OS X on its own hardware.

The motion reads:

At no point did Psystar take affirmative action to either destroy or not preserve these intermediate master copies.  Rather, Psystar innocently failed to initiate new measures to preserve certain of its electronic data.

Then how were Apple “experts” previously able to find prior versions of the relevant sourcecode on Psystar machines.  Shockingly, Psystar has a convenient excuse, uh.. I mean explanation for this as well.

It is possible that any or all of these files may have accidentally appeared on a production machine since evaluation often occurred on the same machine used to manage the master copy for production machines. Psystar is a small business and cannot afford the equipment or personnel needed to fully isolate all of its activities to prevent these kinds of mishaps.

Ah, but of course! Psystar is just a small homebrew company without the resources to prevent such accidental erasures of evidence.

The problem is that this explanation contradicts previous statements from Psystar, such as its defiant assertion that it’s under “no obligation to preserve source code modifications.”  And now that they’re being called on it, they’re claiming that source code modifications might have gone unaccounted for simply because they lack the resources to prevent it.

Also, keep in mind that Psystar was made aware of its duty to preserve all of its source code in October 2008, yet wilfully ignored its legal obligations and instead “destroyed evidence of its willful infringement”, according to Apple.

So in classic paradoxical Psystar fashion, it first claims that it was under no obligation to preserve source code, and then conveniently claims that any deleted source code was an innocent mistake.

Psystar has been singing 2 different tunes for some time now and it seems like it’ll only be a matter of time before their house of lies comes crumbling down.  Okay, that’s a bit dramatic, but there’s only so long that Psystar can keep on engaging in double speak with the court.  Sooner or later, shit’s gonna hit the fan.



1 Comments For This Post

  1. CEO JOHN Says:

    Damn, this is gettin saucy!

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