Edible Apple

The ongoing litigation between Apple and un-authorized clonemaker Psystar is turning into a full-fledged legal circus of epic proportions.  In what seems to be a pattern here, it seems that Psystar has yet again engaged in some questionable legal conduct.  Moreover, Psystar once again seems more concerned with publicly mocking Apple than it is with, oh I don’t know, actually mounting a coherent legal defense.

Early last week, Apple filed a motion with the court accusing Psystar of destroying pertinent and potentially incriminating evidence.  The legal term of art for such actions is spoilation of evidence, with the legal definition being the “intentional or negligent withholding, hiding, alteration or destruction of evidence relevant to a legal proceeding.”  As you can imagine, the purposeful destruction of evidence is a criminal offense and a legal no-no of the highest order.

So what exactly is Psystar accused of deleting?  Apple’s motion reads:

Defendant, Psystar Corporation, has destroyed relevant evidence that it was legally required to preserve.  Specifically, Psystar has overwritten -i.e., erased – infringing versions of the software code used on computers sold to its customers.

Though certain portions of Apple’s motion are redacted, there’s no question as to what evidence Apple feels Psystar purposefully deleted.

Apple goes on to write that it deposed Psystar CEO Rodolfo Pedrazza and Psystar’s technical consultant (whose name is redacted) in order to determine how Psystar was specifically able to circumvent security measures in OS X Leopard to enable it to run on non-Apple hardware.  When Apple subsequently examined Psystar’s source code, it noticed that Psystar’s circumvention software code was conveniently missing, leading Apple to conclude:

Psystar has erased prior versions of its software that Apple’s experts independently have found on defendant’s computers.

And now things get even more interesting.

Apple writes that upon finding evidence of Psystar destroying evidence, it “sent a letter identifying this spoilation issue and other deficiencies in Psystar’s document production.”  But before the issue could be investigated further, Psystar mysteriously filed for bankruptcy protection, a move which some have speculated was done to prevent or delay the handing over of pertinent financial records that Psystar was  unwilling to hand over.

As a result of their bankruptcy filing, the ongoing litigation between Psystar and Apple came to a standstill so that the court could sort through Psystar’s financial statements and filings.  But Apple reacted swiftly and soon filed a motion to remove the stay put in place after Psystar filed for bankruptcy protection, a motion which was subsequently granted by the court.  Then, surprise surprise, Psystar filed a motion to dismiss its Chapter 11 bankruptcy filing.  After all, if the bankruptcy wouldn’t serve to delay the trial and depositions, then why bother, right?

Which leads us back to Apple’s current motion and its allegations of spoilation of evidence.

Apple’s motion goes on to point out that Psystar has refused to hand over the source code it uses to run OS X on Pystar hardware because it feels it has “no obligation to preserve source code modifications”, an argument which Apple points out is in direct contravention to the Federal Rules of procedure which require all litigants to “preserve relevant evidence.”

According to Apple, 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.”  Apple’s motion then lists redacted examples of code that Apple alleges Psystar erased.

In terms of relief, Apple asks the Court to “order Psystar to produce the code for [redacted] and all master copies that Psytar is used.”  In the event that Psystar still refuses to comply, Apple asks that the “Court issue an order: (1) requiring Psystar – under the penalty of perjury – to admit that it has destroyed documents and (2) making a factual finding that prior versions of Psystar’s software included [redacted] and were destroyed by Psystar.”  Lastly, Apple asks that Psystar also be subject to sanctions for “discovery misconduct.”

While it’s unclear if Psystar really grasps the severity of their situation, the fact is that they’re in some serious legal hot water. For as much as Psystar likes to portray itself as the “little guy” just trying to make an honest living selling computers, the intentional destruction of evidence is a serious offense which, if proven true, can render the need for an actual trial unnecessary via a default judgement for Apple, burden Psystar with paying all of Apple’s legal fees, and potentially land Psystar employees in jail.

And if there were any doubt as to how seriously the court is taking the matter, Judge Alsup responded just one day after receiving Apple’s motion and called for a “meet and confer” meeting between Psystar and Apple scheduled for August 20, 2009.  As for Psystar, they have until Wednesday August 19 to file a response to Apple’s motion and it’ll be interesting to see what sort of ridiculous explanation/s they come up with.