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Apple v. Psystar takes a darker turn in discovery

By Pamela Jones et al.

Psystar has a new lawyer, as you know, and there is action aplenty as the case moves forward in discovery. There are several filings in Apple v. Psystar to tell you about, and this story has taken a darker turn.

Psystar's new lawyer seems to be setting out on a new strategy, and we see shifts on the Apple side as well. This is actually typical to some extent when lawyers change midstream, particularly if what was tried already wasn't working. The new guy has his own plan, and so things are a-changing. The discovery battles are stepping up, now that Psystar has left bankruptcy protection. And Psystar's tone has changed from whiny to aggressive.

Psystar answers Apple's discovery complaints about missing code, code which Apple alleges was deliberately destroyed. Psystar's response [PDF] is essentially that it didn't know it was supposed to keep it, so ... so what? It admits it doesn't have some early versions of master copies, didn't keep them, and blames the previous attorney for failure to advise Psystar to retain everything. But then it makes a claim that you may find surprising, saying if Apple found dsmos, Netkas, or AppleDecrypt on any early Psystar computers, as alleged, Psystar didn't put it there intentionally. It doesn't use any of them and never has, it says.

It may not surprise you, then, to learn that Apple has filed a letter brief [PDF] in which it tells the court that it doesn't trust Psystar to honor a protective order, so it is willing to drop its claims for lost profits, if necessary, because to pursue that particular claim, Apple would need to provide in discovery some very private financial data Psystar is asking for, and it doesn't trust Psystar not to make it public because of something Psystar wrote on its website. Apple says that Psystar has been less than candid with the court and with Apple in the past, and Apple feels it must take steps to protect itself. This is in response to Psystar asking the court for a third opportunity to depose Apple's Philip Schiller (Psystar terminated its last crack at him midstream, Apple says), and Apple asks that this request be denied. Significantly, it tells the court that Psystar's account of what happened at the last deposition "is misleading, leaves out key facts and should be denied." If not denied, if Psystar's discovery request is granted, Apple then reserves its right to pursue lost profits after all.

In short, there is a real breakdown in trust. But I suspect it's also a shifting of the ground under the case, as the new Psystar lawyer takes over the steering wheel.

Full post as published by Groklaw on August 23, 2009 (boomark / email).