Just a little while ago, Psystar filed its response to Apple’s letter brief alleging discovery violations. The letter alleges that Psystar has produced all of the relevant documents in its possession, and it is Apple who has impeded the discovery process by producing reams of irrelevant documentary information. Psystar further alleges that Apple’s request for the Court to compel a supplementary Rule 30(b)(6) deposition was moot at the time that Apple submitted the request to the Court as supplementary dates had already been given to Apple. In many cases, documents sought by Apple simply do not exist since Psystar is a small company with a “continuously changing staff of less than 20 employees.” Psystar asserts:

Apple’s filing serves no other purpose than to serve as fodder for a blogosphere otherwise rabid for new details on this litigation or to incur unnecessary expense on behalf of Psystar.

That is quite an outburst. While I appreciate the ad hominem attack, I would really like to know how Psystar can prove such motivations on the part of Apple. Apple certainly has ignored my requests for information or clarification so they really don’t seem too hungry to feed this rabid writer.

Here though is the very interesting portion:

Psystar has produced the financial projections related to its products that exist and that are in its possession or control. Despite Apple’s assumption to the contrary, drafts of the financial projection document that Psystar created to obtain funding do not exist. The document ultimately sent to possible venture capital investors was a work in progress; Psystar did not print and save a hard copy whenever a change to the document was made. Because Apple wants a document to exist does not make it so.

Can anyone say spoliation of evidence? I can. Psystar from the beginning knew that it was acting contrary to Apple and that there was a very good chance that a lawsuit would ensue. Rudy Pedraza made it a point to openly mock and challenge Apple. As such, generally speaking (a qualified attorney would need to give a definitive opinion on this, I am not an attorney), Psystar had a duty to preserve all relevant documentation. Psystar claims that it has retained all of the documentation that it generated since it retained counsel. I wonder: what counsel? This current firm or any counsel? I ask because I find it VERY DIFFICULT to believe that they did not have legal counsel from the beginning to assist them, and I cannot imagine any prior counsel not cautioning them to keep everything.

Now with regard to the supplementary dates for the continuation of a Rule 30(b)(6) deposition and Psystar’s insinuation that Apple filed a letter brief on an issue that was already moot (which would be in bad faith), I believe that Psystar has left out some very important facts. Apple did not merely ask for a Motion to Compel the testimony. It asked for any such costs for this additional deposition to be paid by Psystar. Did Psystar agree to that already? If they didn’t, it is Psystar who is giving incomplete facts to the Court as well as Apple (for if there were already dates on the table, Apple should have disclosed that fact).

A copy of the letter brief filed by Psystar may be found here.