In my past article, I had claimed that in my personal lay opinion, Apple’s counsel did not perform at their best during the August 20, 2009 hearing. I will defend that opinion in this article by examining the filings and hearing arguments relating to the issue of spoliation (destruction) of evidence.

Apple’s Letter Brief dated August 10, 2009

 

You may read this Letter Brief in full here.

As you can see, Apple outlines the history of the discovery of the destruction of certain data. It is interesting that Psystar filed for its bankruptcy protection right after Apple notified Psystar of this spoliation and other deficiencies in the Court-ordered production. Despite this, Psystar didn’t take any corrective measures until months after Apple’s notification.

Even though the deleted code featured so prominently in discussions, please note footnotes 3 and 5 of the Letter Brief:

Footnote 3 [the text to which this footnote refers is redacted]: When asked why, Psystar’s counsel stated that Psystar’s email and customer support software (SupportSuite) randomly “deleted or loses” emails. While counsel says that Psystar has contacted SupportSuite regarding this issue, Psystar has yet to find any emails or chat messages showing such contact with that vendor. Psystar also has not provided evidence of, and Apple is unaware of, any other steps taken by Psystar to halt the deletion of relevant emails by Psystar’s email system. Moreover, Psystar did not inform the Court of this email deletion at the two CMCs [case management conferences] in this case or at the last motion to compel hearing where Psystar’s emails and attachments were at issue.

Footnote 5 [the text to which this footnote refers is redacted]: Psystar has produced one version of the bootloader and just last week provided its July 2009 bootloader. However, Psystar has not produced the other bootloaders it previously used on its computers.

In its request for relief, Apple asks for sanctions citing general case law on the scope and breadth of the Court’s authority in this regard, but specifically requests:

If Psystar does not produce all prior versions of its code, then Apple respectfully requests that the Court exercise its inherent authority by granting Apple an inference adverse to Psystar on its copyright and DMCA claims and by awarding Apple its fees and costs associated with bringing this motion or as the Court otherwise sees fit.

This Letter Brief was authored by Mr. Gililand who, although he was present at the August 20, 2009 hearing, did not argue the issues.

Psystar’s Response Letter Brief dated August 19, 2009

 

You may read this Letter Brief in full here.

This filing is, quite literally, a piece of work. Let me count the ways.

Psystar has not destroyed evidence or acted in bad faith in its discovery responses.

Really? Psystar has not destroyed evidence?

The only materials not produced…

Why were they not produced? BECAUSE THEY WERE DESTROYED! Is Mr. Camara suffering from cognitive dissonance in this filing?

Since Psystar acted in good faith to comply with its discovery duties…

Did it? In my world, “good faith” means actually being knowledgeable about what your duties are. As Apple pointed out, the Court’s Supplemental Order governing discovery stated that the parties must “take affirmative steps as are necessary to preserve evidence.” And, quoting from Apple’s Letter Brief:

Moreover, 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.

Yet we are to believe that (even if their prior attorney never advised them, which I absolutely do not believe) that poor little “cash-strapped” Psystar was too stupid to figure out that a lawsuit about their alleged wrongful use of code would require the preservation of the code that was at the heart of the case!

As the parties agreed in their list of legal issues at issue, this topped the list:

3. Legal Issues: The Parties submit the following list of legal issues in dispute:
a. Whether Psystar’s alleged use, reproduction, creation of derivative works, distribution and/or
display of Apple’s copyrighted works constitutes direct and/or contributory copyright infringement
under the federal Copyright Act, 17 U.S.C. §501 et seq.

We aren’t talking about their July 2008 order for pencils and staples or even the precise brand of packing peanuts that were found by a South Florida service technician inside a Psystar box when it was opened up to be serviced, but the very issues that are being litigated. And if this were so, why just some of the code? Why wasn’t all the code other than the current generation being used erased if this was just standard operating procedure for this “small, understaffed” persecuted start-up?

As did Apple, I draw the readers’ attention to the Court’s Supplemental Order to Setting Initial Case Management Conference docketed July 21, 2008.

4. Pursuant to FRCP 26(d), no formal discovery shall be initiated by any party until after the meet-and-confer session required by FRCP 26(f), except by stipulation or prior court
order. As soon as a party has notice of this order, however, the party shall take such affirmative
steps as are necessary to preserve evidence related to the issues presented by the action, including, without limitation, interdiction of any document-destruction programs and any ongoing erasures of e-mails, voice mails, and other electronically-recorded material.

Umm, “electronically-recorded material”? Should that be unclear to a technology company?

But even more telling is Psystar’s own statement in the JOINT proposed Case Management Statement docketed October 30, 2008:

6. Evidence Preservation

Psystar’s Statement. Counsel for Psystar has personally counseled the principals of Psystar as
to the retention of documents and other information as they pertain to the issues in this lawsuit. A
retention notice was subsequently issued to the principals of Psystar memorializing the same.
Retention of documents includes but is not limited to electronic mail, physical documents and things,
and other electronically-recorded materials.

So who is lying here? I also have to wonder in these numerous allegations of malpractice by Psystar’s former counsel whether or not there has been a limited waiver of the attorney-client privilege so that Apple could depose Colby Springer on this issue. Hey this is just me, but I would be hesitant to so openly bad-mouth and throw under the bus a business to whicht you owe $80,000.00.

Mr. Camara goes on to state:

This case deserves to be resolved on the merits. While Apple would achieve its goal of destroying a competitor and leaving the law ambiguous, a grant of relief in the form of infringement and DMCA claims resolved entirely in favor of Apple would be a gross distortion of justice.

It is a gross distortion to suggest that such extreme measures are what Apple requested. I quoted above what was specifically requested and what would amount to summary judgment on the DMCA and infringement claims is noticeable by its utter absence.

In describing Psystar’s (Mr. Camara also makes the mistake of mispelling his own client’s name at least two times in his filing) procedures, he admits that each Psystar unit loaded with OS X is not in fact loaded with an individually purchased disk for each unit. In fact, what Psystar has done is to create one or more “master copies” that are used to produce the merchandise. Thus in fact, Psystar has not stepped in the shows of an initial purchaser that allegedly has the right to do what it wishes with its purchased copy (this is wording things in a light most favourable to Psystar when in fact I do not agree that it is a purchased copy but rather a purchased license). That purchased copy is never installed. An improper and (in my opinion) clearly illegal COPY is. This explains what appeared to be the utterly inane Requests for Admissions asking for Apple to admit that any two or more copies of the “Mac OS” install disk are the same for all intents and purposes, such as Requests for Admissions number 174, 177, and 179 discussed in a prior article.

Continuing:

Apple focuses its complaints on three non-Psystar and non-Apple files allegedly discovered on Pystar machines sold in the past: dsmos.kext (“dsmos”), AppleDecrypt.kext (“AppleDecrypt”), and Netkas. Psystar acknowledges that it has previously downloaded and evaluated these binary files. It is possible that any or all of these files may have accidentally appeared on a production machine, since evaluation often occurred on the same machine used to manage the master copy for production machines. Psystar is a small business and cannot afford the equipment or personnel needed to fully isolate all of its activities to prevent these kinds of mishaps. However, none of these files (a) have ever formed a part of the Psystar system; (b) have been necessary to run a Psystar computer; or(c) currently exist in any form on Psystar production machines. Nor possessed or viewed the source code to dsmos, AppleDecrypt, or Netkas.

First, let’s have a moment of silence to mourn Psystar, of whom we must be continually reminded that they are only a small leech and cannot afford the equipment or personnel needed to comply with discovery requirements. Ahem. More seriously, is this paragraph true? And did Psystar seriously claim that it never used AppleDecrypt and Netkas and that these may have “accidentally” appeared on a production machine? Did Mr. Camara actually see his client’s nose growing when those representations were made?

From the hearing:

1 MS. BOROUMAND SMITH: Okay.
2 So in order to run Mac OS X on nonApple hardware,
3 Psystar had to do two things: They had to use the kernel
4 extensions that I’ve been talking about, and they also had to
5 modify the operating system by using different boot loader

Compare that with Mr. Camara’s statement that:

However, none of these files (a) have ever formed a part of the Psystar system; (b) have been necessary to run a Psystar computer; or (c) currently exist in any form on Psystar production machines.

Mr. Camara is being very slippery here. Technically he can say that those specific files are not necessary to run a Psystar computer, but that is highly misleading as either those files or their equivalents ARE in fact necessary. He would also have us believe that Apple just happened to find those files which his client has never used that Casper the Friendly Ghost slipped in on one of his midnight jaunts. Come on.

Observations from the August 20, 2009 Hearing

 

Now I shall defend why I was disappointed in Apple’s performance at this hearing. As you can see above, the statements and activities are pretty outrageous, at least in my opinion. Yet Apple’s counsel walked into this hearing fully prepared to simply enter into a Stipulation with opposing counsel that this code can be assumed for sake of argument to have been on all Psystar machines produced prior to September 2008. Mr. Camara was about to be handed the not only the golden goose but a nice golden egg it laid.

MR. CAMARA: We would, but we have offered to
5 stipulate that until the time the computers had open Cojones on
6 them, we will stipulate that all of them had this code on them.

MS. BOROUMAND SMITH: So that’s stipulation works,
21 so long as it’s presented to the jury.
22 THE COURT: Of course it would be.

3 MR. CAMARA: If what we are telling the jury is that Apple
4 decrypt dsmos and the Netkas boot loader were on all Psystar
5 computers shipped before a certain date, we are happy to have
6 that be an instruction to the jury.
7 What I was talking about was if the Court were to
8 prefer a more prejudicial instruction, like Psystar destroyed
9 evidence.
10 THE COURT: What’s wrong with telling the jury that
11 you destroyed the evidence?
12 MR. CAMARA: Well, Your Honor, we think —
13 THE COURT: Is there an issue of bad faith in this
14 case?
15 MR. CAMARA: Yes, Your Honor.
16 THE COURT: Well, if there is an issue of bad faith
17 and somebody’s been destroying evidence, that’s highly
18 relevant.

6 THE COURT: If your people happened to destroy
7 evidence along the way that’s relevant, then the jury is going
8 to hear about it. And that’s your problem if it’s prejudicial
9 because, you know, evidence can be prejudicial, but rightly so.
10 And if somebody is destroying evidence, that’s your — to my
11 mind, a jury can at least say, hey, they’ve been out destroying
12 evidence, they’re guilty as sin.

13 THE COURT: Well, let me give you some general
14 principles. I’m missing something in this discussion, so I
15 want you to help me understand what I’m missing.
16 One way to go here is to just let Apple prove —
17 we’ll have no stipulations. One way to go is no stipulations,
18 and then Apple just prove it up at trial that all this stuff
19 was destroyed. That happens in a lot of trials, and the jury
20 then says, ah-hah, they destroyed evidence, I don’t like these
21 people, they are trying to infringe.
22 But the jury gets all that information because it’s
23 highly relevant to the issue of intent. That’s one way to go.
24 Another way to way go would be have a stipulation,
25 but if you have a stipulation, you can’t have it both ways.
1 You can’t then start putting in the same evidence that the
2 stipulation goes to. So you would just have a cold two or
3 three sentence stipulation that says here is what we did, here
4 is what we did not do. And then you just argue it to the jury
5 that there is bad faith, based on — you wouldn’t be putting in
6 additional evidence because that would be superfluous.
7 Those are two different ways to try a case, one with
8 a stipulation that knocks out a lot of the Q and A, one without
9 it but you don’t get the benefit of the stipulation but you
10 would then get the Q and A.
11 Ms. Smith, what bothers me about your approach is
12 you want me to instruct — I’m not going to do all this
13 instructing the jury. I can tell them that if somebody
14 destroys evidence, they can consider that on the issues of bad
15 faith, sure I can do that. But I’m not going to say that there
16 has been bad faith. I’m not going to say that there has been
17 destruction, unless something — if you all were to stipulate
18 and say here is what was destroyed, here is what is not
19 destroyed, then I can instruct the jury along those lines, of
20 course.
21 But then that would preclude you from — maybe not
22 100 percent, but 90 percent from getting into the details of
23 that with evidentiary material because that is the whole point
24 of the stipulation. So what am I missing here?
25 Now, I’ll give you one other — some lawyers in your
position, Ms. Smith, would be delighted to have all this
2 evidence, and you would just throw it in front of the jury and
3 say look how bad these people are. And you would not want a
4 stipulation. You would not — so what is it you are trying to
5 ask me to — be careful what you wish for, because you might
6 get it and regret it at trial.

The Court goes on in its explanation but as you can see, it appears that Judge Alsup saw that Ms. Smith was about to willingly lose a huge potential advantage at trial and spoon-fed her on why she might want to reconsider that position.

The final agreement was discussed in this portion:

2 THE COURT: Here is one thing that I think should be
3 done, and this is not a stipulation, per se, it’s going to be a
4 court ordered interrogatory.
5 But Ms. Smith, you are going to write it. I don’t
6 want a big firm — I don’t want a big firm thing with
7 definitions and instructions, just a plain interrogatory with
8 no lead-in that says something like, do you admit that Apple
9 decrypt was used on computers? You make it, you know, refine
10 that.
11 Then I assume your answer is going to be “yes.”
12 MR. CAMARA: Well, Your Honor, I think so, too, but
13 we haven’t seen the basis for their motion. They haven’t
14 supplied the expert testimony.
THE COURT: They don’t need to.
16 Listen, you ought to go what was on your own
17 computers. If you don’t know what’s on your own computers, I’m
18 going to get upset.
19 MR. CAMARA: We have offered that as a stipulation,
20 and the answer will be yes, Your Honor.

I chuckled at the Court’s statement that if Psystar doesn’t know what is on their own computers he is going to be upset.

The hearing went on to discuss the specifics and requirements for these interrogatories and the subjects that should be covered. The bottom line was:

THE COURT: Now, the jury may take into account that during the
16 course of discovery you tried to clean up the problem. But
17 they can also figure out, probably, that there was some monkey
18 business going on earlier. And maybe that indicates bad faith,
19 and that’s up to them.
20 If they want to — you know this would be classic
21 evidence that goes to intent, if they were lying about whether
22 the Apple decrypt was used or not. So that part I think should
23 be done.

During this portion, Apple could have also emphasized much more how Psystar was not in compliance with the Court’s prior Order on discovery with regards to email and attachments and the concoction of the new story of how their email provider just deletes random emails willy-nilly. That is quite a tall tale. Heck, I am smaller (and possibly even more cash-strapped) than even poor little teensy-weensy Psystar, and I have three full backups of all of my data at any one given time so if Google decides to randomly delete emails, I still have them. Yet, we are to believe that this just did not occur to these guys who fancy themselves the champions of Open Source hacking? I couldn’t even hack into my own computer, and it occurs to me. I am gullible, but I am not THAT gullible.

Lastly, the Court asked Ms. Smith what relief Apple was seeking:

7 THE COURT: Now, how much are you asking for by way of
8 sanctions?
9 MS. BOROUMAND SMITH: We are seeking the amount that
10 we expended on filing this motion.
11 THE COURT: How much is that?
12 MS. BOROUMAND SMITH: I haven’t done the
13 calculation. I apologize.
14 THE COURT: You get $5000.
15 MS. BOROUMAND SMITH: Okay, thank you, Your Honor.
16 THE COURT: Probably a lot less than you really
17 spent. But —
18 You going to complain about $5000?
19 MR. CAMARA: No, Your Honor.

Of course he isn’t going to complain. He knows his client just dodged a potentially crippling bullet. I would bet my biscuits that the actual amount was closer to $15,000.00. I am not an attorney and am not privy to their strategy etc., but as a lay observer and backseat driver it seems to me that Ms. Smith should either have come prepared with that figure or been able to throw out some calculations on the fly that would have given the Court something to work with rather than having to pull a round number out of the air. This is especially so considering the fact that Psystar doesn’t have two pennies to rub together and such a sanction could greatly motivate them to go away for a nuisance sum.

Now lest the reader think that the Court unfairly led Apple into a situation that would be more favourable to them at trial, in a future article I will show where something similar was done for Psystar (in addition to the Court’s very merciful sanctions).

I think that’s enough for now. Talk to you more soon!