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To read comments to this article, go here
Apple Prevails Again - Psystar to Produce Discovery by May 18; Deposition Do-Over June 3
Saturday, May 09 2009 @ 08:41 PM EDT

Psystar's excuses for not providing discovery didn't fly at the May 5th hearing, I gather, and the judge has granted Apple's motion to compel (by letter brief), as you can see from the docket entry at Justia. Here's a taste of what Psystar told the court:
"Apple's filing serves no other purpose than to serve as fodder for a blogosphere otherwise rabid for new details on this litigation or to incur unnecessary expense on behalf of Psystar....

As Apple readily admits, Rudy Pedraza, CEO of Psystar has testified that P&L and balance statements do not exist....

Prior to this litigation, some documents were lost during Psystar's transition to its current office space....Despite Apple's assumption to the contrary, drafts of the financial projection documents that Psystar created to obtain funding do not exist."

Evidently throwing fodder to rabid bloggers was not the only purpose, in the judge's eyes. The minutes from the hearing indicate that the parties were put in a room from 8 to 11 AM to see if they could work things out, and they were able to work out most issues between themselves. The judge took care of the final issue, and the outcome is that Psystar is to produce the discovery items by 5/18, by high noon. Does that mean the dog didn't eat *all* the financial documents after all? Just kidding. Not rabid.

: D

Also, Apple had requested another Psystar representative be produced for another deposition to answer officially for the company some financial questions that the CEO didn't answer at his deposition. The deposition is set to take place on June 3rd.

If Psystar complies fully, there will be no attorneys fees and expenses ordered; and the obvious implication is that if Psystar doesn't comply, then there will be. The parties were told to submit a joint proposed order by May 8, and they have already done so. It gives a list of all the items Psystar is to produce by noon on May 18.

Here's the list:

  •   All the underlying documents used to prepare the June 2008 profit and loss statement and balance sheet bates stamped PS010327-328, to the extent the documents have not been produced.

  •   All the underlying documents used or being used to prepare the aggregated financial statement referenced in Psystar’s opposition letter brief (Dkt. No. 61).

  •   All of the tabulations created by Jennifer Perez regarding the components needed to build Psystar’s products.

  •    Documents bates stamped PS01383-2000.

  •   Bank statements for all of Psystar’s accounts from Commerce Bank and TD Bank from April 2008 through September 2008.  To the extent that said statements are not immediately in the possession of Psystar either in physical or electronic form, Psystar shall ask Commerce Bank and TD Bank for these statements on an every other day basis until Commerce Bank and TD Bank provide said statements.

  •   A copy of all attachments to all previously produced emails and a copy of the corresponding email in hard copy or in electronic form.
The proposed order also says that Psystar is to provide "a designated representative to supplement Apple's previously noticed 30(b)(6) deposition on Topic 2 (financial information)" for the June 3rd date or any other date that week if the parties agree.

Also, Apple gets its attorneys fees and expenses in connection with bringing the discovery motion to compel if Psystar doesn't fully comply by May 18; otherwise it does not. That's the carrot.

Here's the stick: if Psystar doesn't completely produce all the financial documents by May 18, "Apple will be allowed to take a deposition after the fact discovery deadline regarding any documents produced after the Court's deadline of May 18, 2009." The obvious purpose is to make sure that if any discovery games were to be played, or even if it's just a stumblebum thing, if Psystar can't produce in time, Psystar doesn't win a tactical advantage and Apple is not left without any chance to read the documents prior to doing the deposition.

Here's the docket so you can see when you can look for a transcript:

May 5, 2009 - 67 - Minute Entry: Discovery Hearing held on 5/5/2009 before William Alsup (Date Filed: 5/5/2009). Dft shall attachments produced by 5//18/09. Deposition shall be held at 9am on 6/3/09. (Court Reporter Lydia Zinn.) (dt, COURT STAFF) (Date Filed: 5/5/2009) (Entered: May 8, 2009)

May 7, 2009 - 65 - Transcript of Proceedings held on 05/05/2009, before Judge William Alsup. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531-6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/3/2009. (Zinn, Lydia) (Filed on 5/7/2009) (Entered: May 7, 2009)

May 8, 2009 - 66 - Proposed Order re 59 Letter Brief, 61 Letter Brief [JOINT PROPOSED] ORDER COMPELLING PSYSTAR'S PRODUCTION OF FINANCIAL DOCUMENTS AND 30(B)(6) DEPOSITION by Apple Inc.. (Chung, Megan) (Filed on 5/8/2009) (Entered: May 8, 2009)

Update: The judge has now signed the order [PDF].

  View Printable Version


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