Update on last week’s Apple/Psystar hearing

Tue, Sep 8, 2009


The last time we left off with the Psystar/Apple drama, Psystar was arguing that Apple’s secretive profit margin data was discoverable and relevant information, while Apple was arguing that Psystar wasn’t trustworthy enough to keep that confidential information private.  This past Friday, Apple and Psystar met with Judge Alsup to discuss that issue and others.

As it turns out, though, the Friday brouhaha didn’t provide us with any juicy new details or rulings, and instead focused primarily on scheduling issues.

Regarding the issue of Apple’s profit margin data, Groklaw writes that the issue was “resolved” , but that since the parties came to an understanding during the pre-hearing meeting, we’re not privy to those details, though we might soon find out soon enough what sort of compromise, if any, the parties reached.

Interestingly, a Groklaw reader actually attended the public hearing and reported back on what he observed.  Below are the most pertinent excerpts.

Regarding an Apple engineer Psystar wanted to depose:

Then ensued an involved discussion about “rule 26(a)” regarding expert testimony of an Apple engineer either already (or yet to be) deposed, which Psystar thought could be a “discovery violation”.

Psystar complained that Apple didn’t list or want deposed Mr. Vidrine, who seemed important to Psystar’s case, perhaps because he knew about how technical security cat & mouse changed between 10.5 and 10.6, which only was officially released on August 28.

The judge then entered into a technical discussion of rule 26(a), whatever that is, but was spelling out the underpinnings about when someone is actually required to be deposed. Except the judge then mused that if *Apple* thought he was important, and wanted to bring him up in some “supplement”, then it would be OK for Psystar to make an issue.

So Alsup directly asked Apple if they wanted to “use” him (Vidrine) for the trial. They said no, so the judge ruled that neither side could then utilize info from him either directly or indirectly through the testimony of other people, unless some drastic change (requiring the filing of a “new supplement”) occurred.

Regarding allegations of Apple discovery violations:

There was much ado from Psystar about Apple’s “unorganized” document production, whereby emails, files, and folders did not have “metadata” revealing their source. Chung replied that there were agreements made with former attorneys on the case, but they were not written. She intimated that although Psystar was overreaching on the source for every email, agreements were struck with former counsel reducing the burden of document production, privilege logs, and source version control, with some exception made for Psystar’s website change records.

Judge Alsup again expressed unease about the time lag to raise these objections, but also seemed miffed about Apple’s lack of written record about the informal attorney documentation limitation agreements, so he had attorney Chung testify on the spot under oath about this.

After some examination, the Judge seemed to feel that Ms. Chung acted in good faith. He was disturbed about these issues not being raised “long ago”, but sympathetic enough to ask both parties to each produce, by Tuesday next (and replies to each other by Friday) fuller annotations and sourcing of their “top 50” documents requested of each other. “But we’re not gonna go back for re-litigation beyond that”.

On where Apple wants the case to proceed:

Apple then summarized what they wanted to transpire in the near term, including a Florida case transfer and re-opening discovery for 30 days to obtain Psystar’s Snow Leopard-related source code, among other lesser things. Psystar’s rejoinder revolved around the evidence in the Florida case being completely different due to OS technical protection measures, and Apple’s “carving out” of Snow Leopard from enquiries. More sparring over 10.5/10.6 issues continued, with Gilliland pleading that, in the interest of efficiency “nothing can possibly be more inefficient” than not finding out now what common issues can be transferred to this court in preparation for trial in January.

So as it stands now, Apple has until September 11th to file a motion arguing why disovery should be re-opened to include a look into how Psystar gets Snow Leopard to run on Psystar machines.  Psystar then has until September 18th to respond to Apple’s motion.  Then, if need be, Apple has until the 21st to address Psystar’s response.  And finally, a hearing of the matter is scheduled for September 24th.

So that’s basically went down at the hearing on Friday – somewhat interesting, but not terribly substantive stuff (mysterious profit-margin data agreements aside).



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