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Apple Tells CA Court About Psystar's FL Move; Asks for Transfer/Consolidation & More Discovery
Tuesday, September 01 2009 @ 08:41 PM EDT

Apple has let the California court know about Psystar filing an almost identical complaint in Florida [text], trying to litigate there the same issues already before the California court. It is not happy, and it asks the court to take charge of all issues. It accuses Psystar of the "worst kind of forum shopping".

Psystar, on the other hand, is still upset about discovery issues regarding the Schiller deposition, and it has filed a supplemental brief asking for Apple's financial info, explaining why it needs it (I gather it thinks there is zero damage to Apple, or at least none that can be proven) and it pooh poohs Apple's worries about confidentiality, saying that Psystar has not violated and will not violate the protective order.

And I ask you, if you can't trust folks like Psystar to abide by the strictest letter and spirit of the law, who *can* you trust?

There is a status conference on September 4th, to handle the discovery dispute between the parties. And Apple has requested a status conference regarding the Florida mess.

Here is the voluminous docket:

08/31/2009 - 104 - Declaration in Support of 105 filed by Psystar Corporation. (Camara, Kiwi) (Filed on 8/31/2009) Modified on 9/1/2009 (sis, COURT STAFF). (Entered: 08/31/2009)

08/31/2009 - 105 - MOTION Motion to Seal Motion for Administrative Action filed by Psystar Corporation. (Camara, Kiwi) (Filed on 8/31/2009) (Entered: 08/31/2009)

08/31/2009 - 106 - Proposed Order to Seal 105 Motion for Administrative Action filed by Psystar Corporation. (Camara, Kiwi) (Filed on 8/31/2009) Modified on 9/1/2009 (sis, COURT STAFF). (Entered: 08/31/2009)

08/31/2009 - 107 - Letter Brief Court Ordered Supplemental Briefing filed byPsystar Corporation. (Camara, Kiwi) (Filed on 8/31/2009) (Entered: 08/31/2009)

08/31/2009 - 108 - NOTICE by Apple Inc. OF PENDENCY OF OTHER ACTION (Attachments: # 1 Affidavit Declaration of Mehrnaz Boroumand Smith In Support of Notice of Pendency of Other Action, # 2 Exhibit 1 to Declaration of Mehrnaz Boroumand Smith In Support of Notice of Pendency of Other Action, # 3 Exhibit 2 to Declaration of Mehrnaz Boroumand Smith in Support of Motion of Pendency of Other Action)(Boroumand Smith, Mehrnaz) (Filed on 8/31/2009) (Entered: 08/31/2009)

08/31/2009 - 109 - AFFIDAVIT 108 of Mehrnaz Boroumand Smith In Support of Notice of Pendency of Other Action by Apple Inc.. (Attachments: # 1 Exhibit 1 to Decl. of Mehrnaz Boroumand Smith, # 2 Exhibit 2 to Decl. of Mehrnaz Boroumand Smith)(Boroumand Smith, Mehrnaz) (Filed on 8/31/2009) Modified on 9/1/2009 (sis, COURT STAFF). (Entered: 08/31/2009)

08/31/2009 - 110 - ORDER SETTING STATUS CONFERENCE ON FRIDAY, 9/4/2009 AT 10:00 A.M. [re 108 Notice (Other), Notice (Other) filed by Apple Inc.]. Signed by Judge William Alsup on 8/31/2009. (whasec, COURT STAFF) (Filed on 8/31/2009) (Entered: 08/31/2009)

08/31/2009 - 111 - Letter Brief Motion to Seal filed byPsystar Corporation. (Attachments: # 1 Proposed Order)(Camara, Kiwi) (Filed on 8/31/2009) (Entered: 08/31/2009)

08/31/2009 - 112 - Letter Brief Letter Brief Dated August 31, 2009 - REDACTED VERSION- filed byPsystar Corporation. (Attachments: # 1 Exhibit A)(Camara, Kiwi) (Filed on 8/31/2009) Modified on 9/1/2009 (sis, COURT STAFF). (Entered: 08/31/2009)

09/01/2009 - 113 - ORDER GRANTING REQUEST FOR ORDER PERMITTING THE FILING UNDER SEAL OF LETTER BRIEF DATED AUGUST 18, 2009 by Judge Alsup (re 92 Motion). (whalc1, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/01/2009)

09/01/2009 - 114 - AMENDED ORDER SETTING STATUS CONFERENCE for Friday, 9/4/2009 at 11:00 AM [re 108 Notice (Other), Notice (Other) filed by Apple Inc.]. Signed by Judge William Alsup on 9/1/2009. (whasec, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/01/2009)

09/01/2009 - 115 - ORDER RE DEFENDANT'S LETTER OF 8/31/2009 RE DISCOVERY DISPUTE [re 112 Letter Brief filed by Psystar Corporation]. Signed by Judge William Alsup on 9/1/2009. (whasec, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/01/2009)

Apple views the new Florida move as a delaying tactic:
Psystar should not be allowed to delay resolution of the disputes between Apple and Psystar yet again through procedural tactics of filing yet another action in Florida, in addition to its prior tactic of filing for bankruptcy in Florida (Case 09-19921-RAM). Though Apple has not been served yet with the Florida complaint, Apple intends to notify the Florida court of the pending California action. Furthermore, when appropriate, Apple will seek dismissal or transfer of the Florida action to California and consolidation with the California action.
But Apple requests to be able to do limited discovery right now, say 30 to 60 days, not waiting for transfer or consolidation, just on the issue of Psystar's plans regarding Snow Leopard. Psystar, for its part, writes a letter saying it would like the court to keep the present schedule. The letter is so redacted, there's no way to know what else it said. Probably this is a good time for Psystar to be a very good doobee about sealing things.

On the Florida move, Apple tells the court that it's duplicative of what is happening in California already:

Psystar should not be allowed to re-assert in a new action the antitrust claims that this Court dismissed and that Psystar chose not to amend. Nor should Psystar be permitted to simultaneously litigate, in another forum, the same subject matter pending in this case and before this Court. Permitting this blatant forum shopping is not only prejudicial to Apple in that it will delay the determination of matters at issue in this case, but it is also a waste of judicial resources and will unnecessarily create the possibility of inconsistent results. Psystar’s market definitions alleged in the Florida action – defining the relevant markets as those for Mac OS X and hardware for premium computers priced at over $1000 – were and/or could have been raised in this California action. Psystar’s limitation of the market to Mac OS X is no different than the one-product market definition previously asserted and dismissed in the California action. Nor does Psystar’s modified definition for hardware take into account that many of Psystar’s computers are sold for less than $1000. Moreover, this Court has already found that Mac OS-compatible computer hardware systems do not constitute a distinct submarket or aftermarket under applicable antitrust laws. Hence, the fact that Snow Leopard is a new version of the Mac OS X operating system does not raise any new issues in terms of the alleged tying and monopoly claims. Thus, Psystar’s Florida claim is in essence a compulsory counterclaim that Psystar voluntarily dismissed when the Court gave it opportunity to amend its counterclaims nine months ago.
Apple says Psystar is just forum shopping:
Apple’s policies and license agreements restricting the use of Apple’s software remain the same as previous versions of Mac OS X and it remains Apple’s lawful prerogative to not license to its competitors. 1 Contrary to Psystar’s allegations in the Florida complaint, Mac OS X Snow Leopard is covered by Apple’s Amended Complaint in the California case. Indeed, as Psystar’s lead counsel, K.A.D. Camara (who signed the Florida complaint), noted in a deposition for the California action, “Snow Leopard beta seeds are still within your cause of action.” (See Boroumand Smith Decl., Ex. 2.) Thus, the issues raised in the Florida action regarding Snow Leopard version is admittedly covered by the California case. More importantly, in the California action, Apple specifically requested in its prayer for relief a preliminary and/or permanent injunction that prevents the sale or distribution of any device that allows installation of Apple’s software on non-Apple computers or that allows for the installation by circumventing Apple’s access control measures. Psystar’s later-filed complaint in Florida specifically requests the Florida district court to allow the sale and distribution of such infringing computers. The Florida action is a clear example of forum-shopping at its worst.
Significantly, Apple says Psystar's lawyer already acknowledged that Snow Leopard is covered by its California complaint, and it offered an almost totally redacted excerpt of a deposition transcript where Apple says he said so. That would prove fatal to Psystar's claim that the Florida action is about totally new issues. It claims the California case is only about Leopard; Snow Leopard, it suggests, is what Florida will be about. Apple says, Puh lease.

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