decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books


Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook


Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

Psystar Files Its Appeal by Mail and a Notice of Filing Under Seal
Tuesday, May 18 2010 @ 05:45 PM EDT

Psystar has just filed its notice of filing under seal [PDF] with the US Court of Appeals for the Ninth Circuit, saying that it's mailing in its opening brief and that the district court requires sealing:
Appellant Psystar Corporation hereby gives notice that it is today filing by mail its opening brief and record excerpts under seal. The order from the district court requiring sealing is attached to this notice.
I don't read that order as requiring sealing of all documents, but since I don't know what in the world Psystar has put in its appeal brief, I'll show you the order [PDF] referenced, and you can read it for yourself. My assumption is that eventually we will get to read the appeal brief, if not the sealed excerpts. The wording's not yet totally clear to me, but that makes the most sense. Here's the rule on exceptions to the general rule about filing electronically, number 9 on the list.

The parties stipulated to [PDF] a protective order, but notice the title of Judge William Alsup's order is "Order Approving Stipulated Protective Order Subject to Stated Conditions". The stated conditions, as I read them, are that the parties were to seal as little as possible, so that is why I am assuming Psystar can't file its opening brief 100% under seal.

Here's the docket entry:

05/17/2010 - 9 - Submitted (ECF) Opening brief for review. Submitted by Appellant Psystar Corporation. Date of service: 05/17/2010. [7340196] (KDC)

Also filed is a letter [PDF] from Camara & Sibley, Psystar's law firm, to Townsend and Townsend and Crew's Jim Gilliland, Apple's attorney, regarding an extension to the filing date. Apple's deadline to respond is now June 16, but Psystar agrees in advance to let them have another two weeks if they want. Here's a FAQ on this appellate court's rules on filings and other things lawyers have to pay attention to. I notice it will be a while before the oral hearing:
18. How long does it take from the time of the notice of appeal until oral argument?

For a civil appeal, approximately 12-20 months from the notice of an appeal date. If briefing isn’t delayed, approximately 9-12 months from completion of briefing.

After the hearing, there's a wait for a decision that can vary, it says, from 3 months to a year. So, don't hold your breath. Likely that's also why Psystar doesn't mind another two weeks.

We also now have the transcript [PDF] from the July 9, 2009 hearing in Apple v Psystar. It's the hearing where Carr & Ferrell, Psystar's original law firm, told the judge that Camara & Sibley would be substituting for them going forward, and it's just about scheduling dates.

Here's the judge's March 29th order, as text, so you can compare it with Psystar's interpretation, whatever it turns out to be:



APPLE INC., a California corporation






No. C 08-03251 WHA



The stipulated protective order submitted by the parties is hereby APPROVED, subject to the following conditions, including adherence to the recently announced strict caution against sealing orders by the Ninth Circuit (as set out below):

1. The parties must make a good-faith determination that any information designated "confidential" truly warrants protection under Rule 26(c) of the Federal Rules of Civil Procedure. Designations of material as "confidential" must be narrowly tailored to include only material for which there is good cause. A pattern of over-designation may lead to an order un-designating all or most materials on a wholesale basis.

2. In order to be treated as confidential, any materials filed with the Court must be lodged with a request for filing under seal in compliance with Civil Local Rule 79-5. Please limit your requests for sealing to only those narrowly tailored portions of materials for which good cause to seal exists. Please include all other portions of your materials in the public file and clearly indicate therein

where material has been redacted and sealed. Each filing requires an individualized sealing order; blanket prospective authorizations are no longer allowed by Civil Local Rule 79-5.

3. Chambers copies should include all material, "both redacted and unredacted‚" so that chambers staff does not have to reassemble the whole brief or declaration. Although chambers copies should clearly designate which portions are confidential, chambers copies with confidential materials will be handled like all other chambers copies of materials without special restriction, and will typically be recycled, not shredded.

4. In Kamakana v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006), the Ninth Circuit held that more than good cause, indeed, "compelling reasons‚" are required to seal documents used in dispositive motions, just as compelling reasons would be needed to justify a closure of a courtroom during trial. Otherwise, the Ninth Circuit held, public access to the work of the courts will be unduly compromised. Therefore, no request for a sealing order will be allowed on summary judgment motions (or other dispositive motions) unless the movant first shows a "compelling reason," a substantially higher standard than "good cause." This will be true regardless of any stipulation by the parties. Counsel are warned that most summary judgment motions and supporting material should be completely open to public view. Only social security numbers, names of juveniles, home addresses and phone numbers, and trade secrets of a compelling nature (like the recipe for Coca Cola, for example) will qualify. If the courtroom would not be closed for the information, nor should any summary judgment proceedings, which are, in effect, a substitute for trial. Motions in limine are also part of the trial and must likewise be laid bare absent compelling reasons. Please comply fully. Noncompliant submissions are liable to be stricken in their entirety.


5. Any confidential materials used openly in court hearings or trial will not be treated in any special manner absent a further order.

6. This order does not preclude any party from moving to undesignate information or documents that have been designated as confidential. The party seeking to designate material as confidential has the burden of establishing that the material is entitled to protection.

7. The Court will retain jurisdiction over disputes arising from the proposed and stipulated protective order for only NINETY DAYS after final termination of the action.


Dated: March 2, 2009




Psystar Files Its Appeal by Mail and a Notice of Filing Under Seal | 116 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: Christian on Tuesday, May 18 2010 @ 06:03 PM EDT
Putting the correction in the title is helpful.

[ Reply to This | # ]

[OT] Off Topic
Authored by: Aladdin Sane on Tuesday, May 18 2010 @ 06:34 PM EDT
Babble here.

For a successful technology, reality must take precedence over public relations, for nature cannot be fooled. --Richard Feynman

[ Reply to This | # ]

[NP] News Picks
Authored by: Aladdin Sane on Tuesday, May 18 2010 @ 06:36 PM EDT
Tell us what you think. Tell us what News Pick you think it of.

For a successful technology, reality must take precedence over public relations, for nature cannot be fooled. --Richard Feynman

[ Reply to This | # ]

Noncompliant submissions are liable to be stricken in their entirety.
Authored by: ankylosaurus on Tuesday, May 18 2010 @ 06:44 PM EDT
Should we hope that Psystar has misread the order and their motion might be
stricken in its entirety?

The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Psystar secrecy shows lack of credibility
Authored by: Anonymous on Tuesday, May 18 2010 @ 06:51 PM EDT

Let's see, the SCO-Auto Zone settlement was secret. Hasn't even shown up in
SCO's MOR's. Which should tell you how significant it was.

It wasn't enough to get SCO out of bankruptcy. But had it been made public,
investors would have known how little it really meant. Well, they kinda figured
that out anyway.

Same thing here. Psystar doesn't want you to know how weak their case really is.
Secrecy is a sign of weakness.

[ Reply to This | # ]

Another Slow Appeal -- Dismissal of anti-LHC Lawsuit
Authored by: Anonymous on Tuesday, May 18 2010 @ 08:46 PM EDT
March 21, 2008 -- Complaint Filed in Honolulu
September 10, 2008 -- Large Hadron Collider circulates beam for up to 10 days.
September 26, 2008 -- Case Dismissed
October 20, 2008 -- Appeal filed
June 18, 2009 -- Final brief filed
June 29, 2009 -- (The case being fully-briefed) Calendar check performed
November 20-30, 2009 -- LHC sets world record
March 30, 2010 -- LHC sets new record and begins frequent operation
June 17, 2010 -- Appellate Hearing to be held, in Honolulu

Hawaii District Court Case No. 1:2008cv00136
9th circuit appellate court Docket No.: 08-17389
My commentary

[ Reply to This | # ]

Psystar Files Its Appeal by Mail and a Notice of Filing Under Seal
Authored by: Anonymous on Tuesday, May 18 2010 @ 09:22 PM EDT
chambers copies with confidential materials will be handled like all other chambers copies of materials without special restriction, and will typically be recycled, not shredded.

That courtroom sounds like a great place to go dumpster diving! I bet the Chinese have already staked it out. Seriously, what's up with that?

[ Reply to This | # ]

Filing Under Seal with nary a flap
Authored by: webster on Tuesday, May 18 2010 @ 09:30 PM EDT

While the court with its order and rules seems to make a to-do about sealing,
the parties are quite content to let each other seal away.

It is non-parties and observers who get upset about sealing. A party won't
challenge an opponent's sealing lest the opponent challenge his sealing.

There was a notable exception years ago when SCO was desperately trying to out
some sealed IBM emails during a hearing. The lawyer flirted with contempt. Two
searches haven't brought it up. Let's hope it turns up. It contributed to the
SCO reputation.


[ Reply to This | # ]

OH NO! (Gasp! ) It's the "P" word!
Authored by: Anonymous on Wednesday, May 19 2010 @ 12:33 PM EDT
You've put 'Psystar' right in the title!

Set troll shields to 'maximum'!

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )