According to Apple’s brief, it has documented specific instances where Psystar intentionally deleted the code it uses to install Mac OS X on PCs, and that company Principals and employees were made aware of their requirement to preserve evidence. “Yet, as admitted by [Psystar CEO] Mr. Pedraza, Psystar has not complied with its obligations and instead has destroyed evidence of its willful infringement,” Apple said.
“Remember that Apple both knows about this software from Rodolfo Pedaraz depositing and, I am sure, because Apple has copies of the software that it got off of Psystar’s computers that are in public circulation, even though Psystar apparently tried to remotely erase that software from its customers’ computers,” an attorney familiar with this type of case told The Mac Observer. “This is so incredibly stupid, because, morality aside, Psystar’s principals had no chance of preventing Apple from getting the offending software.”
As if Psystar’s plate isn’t full enough, its bankruptcy filing in Florida now looks suspicious since it was filed right after Mr. Pedaraz’s deposition where he revealed the existence of the software code that now appears to have been destroyed. If it turns out that Psystar filed for bankruptcy protection just to slow down Apple’s case in California, the company may have additional legal repercussions to deal with.
Apple filed its lawsuit against Psystar in U.S. District Court northern California claiming the company was violating the Mac OS X end user licensing agreement, and that it was violating the Digital Millennium Copyright Act with the steps it used to install the Mac operating system on PCs. Psystar countered that it is within its rights to build and sell PCs with Mac OS X pre-installed and that Apple is overstepping its bounds by blocking companies from selling Mac clones.
Apple and Psystar are scheduled to appear before Judge Alsup, the Judge hearing the case, to discuss the discovery dispute at 9:30AM on August 20. Judge Alsup will likely ask some very pointed questions, and if Psystar can’t offer satisfactory answers — including reasonable explanations as to why it hasn’t preserved evidence or provided Apple with requested software in a timely fashion — Mr. Pedaraz could potentially face criminal charges for contempt of court.
“Destroying evidence could be referred to the U.S. Attorney as possible obstruction of justice and/or perjury, both of which are federal felonies,” TMO’s legal contact said.
If Thursday’s hearing shows that Psystar intentionally destroyed evidence, its new legal team, Camara & Sibley, could potentially ask to be removed from the case as well since they came on board late in the game and wouldn’t likely want to be associated with clients that blatantly violate legal orders. If so, then Psystar’s luck at finding new legal representation probably wouldn’t go so well.
Apple is asking the court to order Psystar to produce the missing code, and if the company can’t, it is asking for court-imposed sanctions. If Psystar doesn’t cough up the requested software, Apple is asking the court to require the company to admit to destroying the evidence, and sanction Psystar for discovery misconduct.
The court could potentially go so far as to award a summary judgement in Apple’s favor, but at the very least Psystar could lose Judge Alsup’s respect and trust, which isn’t good for anyone hoping to win in court.
Psystar has promised to appear in court with “guns blazin’.” Its guns may be blazin’, but it there’s a good chance that they are pointed at their own foot.