Apple, Psystar Locked in Discovery Dispute

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Apple's lawsuit against Psystar took an interesting turn on Tuesday when Apple was granted a motion to file its discovery brief and exhibits under seal, meaning the documents and information will remain confidential and out of the public eye. The move indicates the two companies are likely embroiled in a major discovery dispute.

Apple filed a 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. Like Apple's brief and exhibits, the hearing will be sealed and private as well.

The two companies are also scheduled to appear before a Magistrate Judge on October 6 for a hearing to determine whether or not there's any possibility of settling the case out of court. That settlement hearing had originally been set for July 30, but was postponed so that it would fall after the August 21 discovery deadline, and so that Psystar's new legal team could get up to speed on the case.

Psystar replaced its original legal team of Carr & Farrell with Camara & Sibley, the legal firm that's known for defending Jamie Thomas-Rasset against the RIAA in a trial that that turned her US$22,000 penalty into a $1.92 million fine. Since Camara & Sibley came on board after court proceedings were well under way, they needed some time to familiarize themselves with the case.

There's no word on what Apple wants to keep secret in its discovery exhibits, and since next Thursday's hearing will be sealed means the public won't be able to find out, either. The closed door nature of the hearing also means that the public won't be able to watch in on what's likely to be a (to borrow a phrase from Psystar) "guns blazin'" event.


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Hi Jeff, quite likely that Apple’s lawyers found out details about Psystar’s business that are only meant for Apple’s lawyers and not for the public. For example, it would be very understandable if Apple’s lawyers want to know how many computers Psystar has actually sold with MacOS X installed, and they surely have the right to know. But that number is nobody’s business outside the court case, so it has to be filed under seal.

So I wouldn’t take this is any evidence of a dispute between Apple and Psystar about discovery. More like time saving, if it is the kind of information that Psystar would have the right to get sealed anyway.


I actually looked into the matter. Apple filed a brief complaining that Psystar deliberately destoyed evidence of previous bootloaders and other code, which is a big no-no. I believe the exhibits filed under seal include that code, which Psystar deems “proprietary” and is therefore covered by the protective order that both Psystar and Apple agreed to months ago.

More interesting that the sealed filing of some exhibits, though, is Apple’s accusation that Psystar is destroying and/or not retaining evidence.


More interesting that the sealed filing of some exhibits, though, is Apple?s accusation that Psystar is destroying and/or not retaining evidence.

Oops. I thought the rule is that when one party destroys evidence, the court can and will assume that the evidence would have proved whatever the other party claimed.

I would really be curious how much Psystar’s owners have to do so that Apple can hold them personally responsible for the whole matter instead of having to try to get damages out of a bankrupt company. And whether both their copyright infringement and their DMCA infringement could be judged as criminal. In that case destroying evidence might make sense for them.


Dear Gnasher and Foresmac:  I’ve read the small part of Apple’s filings on this matter that are in the public record, and there is nothing to indicate what Apple is complaining about. 

And no, Gnasher, this is not a an routine or time saving step.  Apple and Psystar already had a court-approved confidentiality order, wherbye Psystar could confidentially produce trade secrets and other confidential information, so had this simply been a matter of confidentially producing information Apple wouldn’t have had to get Judge Alsup involved. 

Apple’s decision to pursue this matter as a discovery dispute and the involvement of Judge Alsup show that this is a serious matter.  We don’t know how serious it is, because we don’t know, unless you have more than open source intelligence, what Apple is complaining about.



The letter brief specifically states that Psystar has deleted code, makes an explicit reference to bootloaders, and makes references to “missing” e-mails that Psystar is trying to claim where deleted by its SupportSuite software.

The document is no longer available to access via PACER this afternoon, but I viewed a partially redacted copy of it yesterday.


Foresmac:  Perhaps, I saw the docket after the Clerk removed it, because I wasn’t able to view anything of Apple’s letter brief.  Apple’s letter brief is now locked and requires the proper permissions to view it. 

Interestingly, Apple motion to seal its filings mentions that it is obliged to do so because, pursuant to the parties’ stipulated protective order, Psystar has marked the information at issue as “confidential for attorneys’ eyes only.”  So, if you were able to see Apple’s brief during the short time that the Clerk had posted it in error, you have the advantage of me.

Of course, Psystar, which has established a new Community Page and wiki, could allow Apple to disclose the confidential information so that we all can see what the dispute is about and judge the matter for ourselves.  Certainly, Psystar does not have any intellectual property to speak of us, except perhaps the probably illicit extensions that it uses to hack OS X to get OS X to run on generic PC hardware.  I know that Psystar isn’t standing on its right to protect any proprietary rights that it has in those extensions for two reasons.  First, as I said, supra, those extension are probably a violation of either Apple’s intellectual property rights or a violation of the DMCA or both, and thus, Psystar can have no rights in illegal software.  Second, no man can claim for himself those right that he would deny to others; therefore, Psystar should not be allowed to even assert any intellectual property rights in its extensions, since it has no respect for Apple’s rights in OS X.

Lee Dronick

I have Pystar on my Goggle Alerts and today I saw that they are going to depose some important Apple Inc individuals including Phil Schiller. This may be the reason that the discovery is going to be “in camera” (I think that is the correct term).


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