A great deal of attention has been paid to the truth-is-stranger-than-fiction drama of the Psystar bankruptcy filings. However, buried in the flurry of filings were some overlooked gems. I had mentioned one of these in my last article in which I had pointed out that Rudy Pedraza threatened, in a Declaration to the Bankruptcy Court, a potential new suit against Apple to be filed in the Florida State Court system. However there was even more buried treasure.

A Closer Look at the Declaration of Rudy Pedraza

Though I was reluctant to definitively state in “my last article that the motivation for, and the timing of, Psystar’s bankruptcy was to elude complying with the Court order to pony up financial information and produce a representative that could say more than “I don’t know” at deposition, upon multiple readings of the Pedraza Declaration, there is no doubt. He basically admits as much in his “Declaration. How so? Remember that the context of this Declaration is Psystar’s opposition to Apple’s request to the Bankruptcy Court to life the automatic stay of the California case. Let’s connect the dots.

One. Pedraza unilaterally claims that there are no issues of fact before the Court.

That is patently untrue. Just off the top of my head without even going line by line through Apple’s Amended Complaint, Apple alleged that Psystar has modified Apple’s code (a disputed matter of fact), did not purposefully lead the public to associate itself with Apple by using the name “OpenMac” (a disputed matter of fact), and that they are in cahoots with ten as-yet-unidentified John Does (a disputed matter of fact). Unless Psystar is now admitting all of these issues, those are disputed issues of fact. It is simply ludicrous and less-than-honest to claim in a sworn document to a court that such is the case. It may turn out that any issues of fact turn out to be trivial; however, the Court has not declared that as of this date. To borrow a line from Psystar’s attorney Colby Springer, just because Pedraza wishes this to be the case does not make it so. In other words, if wishes were fishes we would all cast nets.

Two. Pedraza claims that Apple has engaged in extensive and unnecessary motion practice. I am sorry, but Pedraza is either woefully ignorant of complex legal cases or his nose grew when he swore to this. Let’s look at the facts.

On September 30, 2008, Apple filed a Motion to Dismiss Psystar’s Counterclaims. Up until this point, the two law firms were acting very judiciously by agreeing to give each other extensions for various items (and continued to do so) rather than running to the Court. Since this Motion was granted by the Court, I think it can hardly be called an unnecessary motion.

On November 26, 2008, Apple filed a Motion for Leave to File an Amended Complaint. Psystar agreed to this motion obviating any need for further Court involvement. That hardly seems like an unnecessary motion.

On December 8, 2008, Psystar filed a Motion for Leave to File an Amended Countersuit.

On December 30, 2008, Apple filed its opposition to the Amended Countersuit, which was granted in part. Again, obviously not unnecessary.

On February 25, 2009, the parties filed a JOINT Motion for Protective Order.

On April 29, 2009, Apple filed its Letter Brief alleging non-compliance with discovery. Apple prevailed in this regard. Obviously, once again, a meritorious filing.

I am sorry folks, but the above history is hardly indicative of extensive and unnecessary motion practice. I would love for Mr. Pedraza to take a look at some of the cases that I routinely work on. The records are publicly available. This particular case has gone rather smoothly between the two law firms with minimal need for motion practice and Court involvement.

Three. Pedraza claims that Apple simply pursued frivolous discovery in an attempt to stonewall and bury them.

The Court record proves otherwise. Judge Alsup found it was unreasonable that a computer company could not figure out that it should simply print-out email attachments if they had some file corruption that prevented them from being electronically duplicated; that Psystar did not make a good-faith attempt to get basic requested records; and that answering “I don’t know” over 90 times to relevant questions in a 30(b)(6) deposition was not acceptable. Project much Mr. Pedraza? I agree there was stonewalling going on, but the fingers pointing back at Psystar are the four fingers of the truthpocalypse.

Four. Pedraza asked the Bankruptcy Court to lift the stay, but hobble Apple so that it could not pursue its discovery rights that were granted by the California court.

It is crystal clear. Things didn’t not work out as Pedraza had hoped and someone is going to finally have to answer those questions that Apple has been asking. Methinks Mr. Pedraza doth protest too much.