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Apple Accuses Psystar of Destroying Evidence; and in AutoZone, the 24th Hearing is Cancelled

By Pamela Jones et al.

Apple has filed a letter brief with the court, accusing Psystar of destroying evidence. I can't tell you much more than that, because the letter is heavily redacted, and most of the exhibits are sealed altogether. But those of you who followed the SCO v. IBM case will remember that spoliation, which is the legal word for destroying evidence, is a very serious matter. This is about Apple's DMCA claim, because one clear sentence reads:

Defendant, Psystar Corporation, has destroyed relevant evidence that it was legally required to preserve. Specifically, Psystar has overwritten -- i.e., erased -- infringing versions of the software code used on computers sold to its customers.

Apple goes on to state that it "contends and can prove" that Psystar violated the DMCA and infringed copyrights "by modifying Apple's Mac OS X software" and then installing it on non-Apple computers. When Apple deposed the Psystar CEO, Rodolfo Pedraza, it says, it did so to find out what method the company used to circumvent Apple's "technological protection measures", and that's how it found out about the erasures of prior versions of Psystar's software. This happened just before Psystar filed for bankruptcy.

Apple asks that the the court issue an order requiring Psystar to produce all master copies of its code, and if it can't, it request sanctions. One possibility is that Apple can win a default judgment on liability as a sanction. A slightly lesser sanction might be what's called an inference adverse to Psystar on the copyright and DMCA claims, not to mention Psystar having to pay Apple's attorneys' fees and costs of having to file this motion. Like I say, spoliation is serious, depending on how it happened and how important the evidence was, and Psystar's prior attorneys, Carr & Ferrell, know it, as you can see in the spoliation motion [PDF] they filed in the Burst v. Microsoft case.

There is incremental progress in the SCO v. AutoZone case, too, and if any of you were thinking of going on the 24th, cancel your plans. The judge has cancelled the hearing, since AutoZone does not object to SCO filing an amended complaint.

Full post as published by Groklaw on August 14, 2009 (boomark / email).