Mac clone maker takes testimony from senior Apple execs

Apple accuses Psystar of destroying evidence in copyright infringement case

Lawyers for the Mac clone maker fighting with Apple over copyright infringement charges have taken testimony from Philip Schiller, Apple's head of marketing, and will depose other executives next week, said Florida-based Psystar yesterday.

Apple, in turn, has accused Psystar of destroying evidence, including source code and e-mails, and has asked a federal judge to punish the company.

In an e-mail to customers, Psystar said it had struck an agreement with Apple to allow lawyers from each company to take depositions from employees. Schiller, who has recently stepped into CEO Steve Jobs' shoes to host several high-profile launch events, was deposed Thursday, according to Psystar's schedule.

A week from today, its lawyers will question Bob Mansfield, Apple's senior vice president of Macintosh hardware engineering.

Others at Apple who have been deposed or will be next week include Mike Culbert, the senior director of Mac hardware; Simon Patience, who heads Apple's core operating system development; and Mark Donnelly, a vice president of finance at Apple.

"After numerous depositions of Psystar employees and associates, the shoe is finally on the other foot," crowed Psystar.

Apple and Psystar have been battling in federal court since July 2008, when Apple sued Psystar over copyright and software licensing charges. Psystar struck back the following month in a countersuit that accused Apple of breaking antitrust law, but those claims were tossed out by U.S. District Court Judge William Alsup last November.

Since that defeat, Psystar has been on the defensive, and has resorted in an amended countersuit to arguing that Apple abused federal copyright laws when it tied Leopard to Apple's own hardware.

In May, Psystar filed for bankruptcy, a move many interpreted as a delaying tactic, but Alsup denied a stay of the case, which has resumed. Psystar has since dropped its original legal team -- it owed the Palo Alto, Calif. firm of Carr & Ferrell nearly $US90,000 in back bills, according to its bankruptcy filings -- and has hired a Texas firm, Camara & Sibley, as well as another California firm, Welker & Rosario, to represent it in the case.

For its part, Apple has filed a letter brief with the court, claiming that Psystar erased earlier versions of the software it uses to make Mac OS X run on its clones, even though Alsup had expressly told Psystar not to delete anything.

"As stated in the October 30, 2008 Joint Case Management Statement, Psystar's principals were put on notice of this duty to preserve, and a document preservation notice was sent out to Psystar's employees," Apple said in the letter brief dated Aug. 10.

"Yet, as admitted by Mr. Pedraza [Psystar's president], Psystar has not complied with its obligations and instead has destroyed evidence of its willful infringement."

The heavily-redacted brief lacked specific examples of what Psystar was alleged to have deleted.

Apple also cast suspicion on Psystar's explanation of missing e-mails, which the Florida clone maker attributed to buggy e-mail and customer support software.

"Apple is unaware of any other steps taken by Psystar to halt the deletion of relevant emails by Psystar's email system," Apple said in a footnote to the letter brief.

Apple asked Alsup to demand that Psystar turn over "the code and all master copies that Psystar has used." If it can't come up with the requested software, Apple said it wanted Alsup to require Psystar, under penalty of perjury, to admit that it destroyed documents and code.

The California computer maker also asked Alsup to sanction Psystar for its misconduct, including granting Apple what's called an "inference adverse" to Psystar. If granted, the judge or jury would then be allowed to infer that whatever was deliberately deleted must have been unfavorable to Psystar.

Alsup has set a hearing about the issue for next Thursday.

Currently, the case is schedule to hit trial on Jan. 11, 2010. The deadline for discovery by both sides is Aug. 21.

Psystar, which started installing Mac OS X 10.5, aka Leopard, on its clones in April 2008, continues to sell the faux Macs on its Web site.

The least-expensive system packs an Intel 2.5GHz dual-core processor, 2GB of RAM, a 500GB hard drive, and an Nvidia GeForce 9400GT graphics card, and is priced at $US599.99. The machine does not include a keyboard, mouse or display.

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Gregg Keizer

Computerworld (US)

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