Psystar Lawsuit Filings Reveal Potential Document Policy Problems at Apple

by , 4:00 PM EST, November 21st, 2008

In court documents filed in the lawsuit battle between would-be Mac clone maker Psystar and Apple Inc., statements by Apple reveal a lack of a company document retention plan or policy that could be a problem for the company. The policy in place at Apple leaves ultimate e-mail and other document retention in the hands of each of Apple's employees, which could be a problem during discovery phases of the company's many lawsuits.

The Industry-Standard first noticed the issue in Filing 28 of the court case, which included a statement from Apple concerning evidence preservation:

"At Apple, individual employees are tasked with maintenance of their own files including hard copy documents, emails, voicemails and other electronically recorded materials. Apple has not implemented any programs that result in the automatic deletion of emails. Similarly Apple does not determine which voicemails are saved or deleted by an individual recipient. However, the voicemail system is set up to delete saved messages after ninety days."

This shows that Apple doesn't have a system-wide plan, or even the infrastructure, for saving these kinds of documents. This may or may not be a problem for Apple, as many publicly traded companies have such correspondence subpoenaed during the course of various forms of litigation.

The Industry Standard quoted an anonymous e-discovery lawyer close to the story, who noted, "If litigation is anticipated, the party has a duty to preserve potentially relevant documents. An employee retention program with no organization or coordination is effectively incapable of compliance. Barring an act of God, or luck akin to picking every game right in an NCAA pool. Apple's retention policy is negligent."

The importance of e-mail, for both good an ill from a company's perspective might best be illustrated by Apple's used-to-be-and-seems-to-be-again major foe, Microsoft. Many of our readers may remember some of the many e-mails that came to light during Big Redmond's antitrust battle with the U.S. government, and from other cases.

Those e-mails have revealed things like Microsoft VP Jim "Open Source is Unamerican" Allchin saying he would buy a Mac if he didn't work for Apple, the company's anti-Linux strategy, the lengths to which the company was willing to go to crush Netscape, and more (do a Google search for "Microsoft email reveals" for more examples).

All that said, the Apple/Psystar legal filing also said that Apple had, "identified a group of employees who could potentially have documents relevant to the issues reasonably evident in this action. Apple then provided those individuals with a document retention notice which included a request for the retention of any relevant documents, including but not limited to emails, voicemails and other electronically-recorded materials relating to the issues in this lawsuit."

Whether or not that effort will be enough will only be determined by the courts. Psystar's antitrust claim has been dismissed, but Apple is currently involved in many other cases ranging from recalls to potential class actions, events the company may wish to be able to more easily follow a paper trail on or pay the price down the road.

Chris Barylick assisted with this article.