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Report From Yesterday's Apple v. Psystar Hearing
Saturday, September 05 2009 @ 05:13 PM EDT

Groklaw member Retiarius attended the Apple v. Psystar hearing yesterday, and he sends us a report. It's gratifying to know what happened from someone who is not a party to the litigation. Thank you so, so much for going and sending us the news.

Guess who uses a 13" Apple MacBook? Psystar's attorney. Yup. He had his iPhone at the attorney table with him, too. See what you'd never know if Retiarius hadn't attended for us?

And it's a good thing he did go, because Psystar's law firm sent me and other journalists the Order [PDF] that resulted from the hearing, and I would not have understood the order fully without Retiarius's notes. Actually I would have misunderstood it. (No, Apple has never sent me anything, in case you were wondering. It's fine with me though if either side wants to send me documents. Plain text would be loverly.)

What the hearing turned out to be about was mainly scheduling and Psystar complaining about "discovery abuse" regarding document production from the past, before the new law firm came on board. And there was a dispute about testimony of an Apple engineer regarding the Mac OS X technical protection measures. The upshot on the documents issue was that the judge said the complaints were raised very late, after discovery was closed, but that while Apple said there was an oral understanding with the prior Psystar law firm to do it the way Psystar's new lawyer is complaining about, since there was no written record of the previous agreement, both sides will now do it the new Psystar way, redoing 50 of their most important documents by Tuesday. But the judge seemed satisfied that Apple acted in good faith. So no abuse there.

On the engineer issue, Psystar's complaint was that an expert hadn't been listed by Apple, but Apple told the judge it wasn't planning to use his testimony, and so that was that. Psystar then asked if it would get a money judgment for discovery abuse, and the judge said no, that Psystar was lucky to get what it did. If you recall, Psystar had to pay $5,000 itself earlier for bringing a discovery motion. I guess it was hoping to even the score, but it didn't happen.

The dispute about Phil Schiller's testimony, which Psystar made a big media splash with, was resolved, but we have no idea how yet, because the lawyers came to an agreement in the pre-hearing meet. In time, we may find out.

Finally, Apple does want the two cases consolidated in California to the degree possible, and that came up at the hearing, and of course Psystar opposed, but the judge said that consolidating them might make it necessary to put off the trial date, so in the end the judge asked Apple to do formal briefing on that subject. There will be a hearing September 24.

And guess who left to get coffee together, apparently, after the hearing? The lawyers for the parties. Did I tell you or did I tell you? Lawyers battle in the courtroom, but there's a collegiality to it afterward.

The Order reads like this:



C-08-3251 - WILLIAM ALSUP - DATE 9/4/09
Case Number - Judge - Time: 10:00 a.m. - 11:00 a.m.



Deputy Clerk: T. De Martini Court Reporter: Katherine Sullivan


Defendant’s Motion to Compel - Granted in Part Denied in Part.

Witness Megan Chung - sworn

Ms Chung Testified as to the Rule 26(f)conference call on 9/2/08

Ms. Chung questioned by the Court

Ms. Chung questioned by Mr. Camara

The Court ruled that this issue should have been raised earlier in the case. By 12:00 p.m on Tuesday September 8, 2009 parties are to send a letter to each other identifying the first page of 50 documents. Responses are due by 12:00 p.m. on Friday September 11, 2009 stating in what files the documents can be found.

Defendant’s Request for Attorneys Fees is - Denied.

Defendant’s Motion to Exclude the Testimony of Jacques Vidrines - Granted.

Sections Two and Three of Defendant’s Discovery Motion are - withdrawn.

Parties waive any conflict with the Court as to witness Tom LaPerle

Status Conference - Held

Plaintiff’s Request to reopen discovery for 30 days to include Snow Leopard source code. - Discovery will not be reopened at this point. Plaintiff may bring a motion to enlarge discovery.

Plaintiff’ Motion to Reopen Discovery to be filed by 9/11/09
Opposition due: 9/18/09
Reply due: 9/21/009
Hearing Date: 9/24/09 at 8:00 a.m.

Plaintiff’s Motion for a Protective Order - Pending.

When I first read it, I found it hard to comprehend. It looked like Apple lost something, the right to use an expert. But with our notes, we see it wasn't precisely the case. The hearing followed a meeting between the two sides' attorneys for an hour, trying to resolve the issues, and the judge began by asking if all the issues on a list were resolved. They all were, but the two.

Retiarius's report begins with him explaining a long-time interest in attending court hearings about IP cases, long before there was a Groklaw. And here's Rule 26 that he mentions, specifically (a)(2), "Disclosure of Expert Testimony". The Order references Rule 26 also, but "(f) Conference of the Parties; Planning for Discovery". Enjoy:


By way of introduction, I'm an infrequent contributor here, but you might find this useful as a trip report. I am a semi-retired software engineer who has worked on public domain, BSD-based, and GPLed Unix code for the likes of NASA Ames Research Center, Adobe, and Sun. I'll disclose further that I'm listed a couple of times in the copyrights tucked away into every iPhone, and hold AAPL shares long. I'm not a legal beagle, but I did help put a significant other through law school.. . I once considered a second career in IP law after winning a small administrative law battle with the USPTO to sit for the patent bar, but never pursued this in favor of remaining in the software field.

I came into this very cold, only having read about the case from your article the previous day, plus quick scanning of a few of the docs. Oh, that and seeing references to Psystar out of the corner of my eye at various Apple/Macophile blogs. So please forgive my not having the history of the proceedings down enough to harden any fuzzy verbiage or references in my notes.

Watching IP cases every few years at the Federal Building is only a hobby, really, rather like Shirley Temple Black who was known to watch medical operations just for the entertainment (she was quoted as saying "gall bladder" procedures were the most colorful)!

I once saw Judge Vaughn Walker "rule from the bench" in Apple v. Microsoft years ago after a long lead-up. I couldn't see how Apple would ever snow him (but perhaps a jury) with some fanciful theories of interface copyright, at least in the face of "substantial similarity of protectible expression". I witnessed a biotech patent case in front of a poor, confused jury -- all parties eventually realized one shouldn't waste spending $6M per side on fighting a patent for a drug *before* FDA approval. (It never did get approved.)

So, now to the status conference and hearing in the Apple v. Psystar litigation:

Courtroom scene, and banter: Attorneys present included Jim Gilliland, Mehrnaz Smith, and Megan Chung for Apple, plus Kiwi Camara for Psystar. Few were in the peanut gallery, except those seemingly associated with production of some chartboard exhibits to show to Judge Alsup. The stenographer verbalized "there seem to be a lot of boards -- are they all for us?"

At attorney Camara's table, his iPhone and 13" Apple MacBook were in conspicuous use (!)

He lightly joked with Apple counsel Gilliland about Apple "swag" and missing his hat in order to travel light. Judge Alsup mentioned he would be attending the wedding of a former law clerk who would be marrying a witness to the present matter and whether there would be any objections (to waivers of conflict). None were discerned.

Judge Alsup: "Have you resolved?":

-- parts 2 & 3 of "the brief"?
-- Mr. Schiller's testimony?
-- the "missing affidavit"?
-- issues of document production?
-- testimony of an Apple engineer, Jacques Vidrine (familiar w/issues of Mac OS X technical protection measures)
At this point Ms. Chung for Apple seemed to speak for both sides that mainly the latter two issues needed addressing.

For those who want to skip ahead, in the 45 minutes or so of the hearing there was no talk of Apple profit margins, legal theories of copyright infringement, reverse engineering techniques, or other heavy-duty notions. It was mostly chatter about case procedure.

Then ensued an involved discussion about "rule 26(a)" regarding expert testimony of an Apple engineer either already (or yet to be) deposed, which Psystar thought could be a "discovery violation".

Psystar complained that Apple didn't list or want deposed Mr. Vidrine, who seemed important to Psystar's case, perhaps because he knew about how technical security cat & mouse changed between 10.5 and 10.6, which only was officially released on August 28.

The judge then entered into a technical discussion of rule 26(a), whatever that is, but was spelling out the underpinnings about when someone is actually required to be deposed. Except the judge then mused that if *Apple* thought he was important, and wanted to bring him up in some "supplement", then it would be OK for Psystar to make an issue.

So Alsup directly asked Apple if they wanted to "use" him (Vidrine) for the trial. They said no, so the judge ruled that neither side could then utilize info from him either directly or indirectly through the testimony of other people, unless some drastic change (requiring the filing of a "new supplement") occurred.

There was much ado from Psystar about Apple's "unorganized" document production, whereby emails, files, and folders did not have "metadata" revealing their source. Chung replied that there were agreements made with former attorneys on the case, but they were not written. She intimated that although Psystar was overreaching on the source for every email, agreements were struck with former counsel reducing the burden of document production, privilege logs, and source version control, with some exception made for Psystar's website change records.

Judge Alsup again expressed unease about the time lag to raise these objections, but also seemed miffed about Apple's lack of written record about the informal attorney documentation limitation agreements, so he had attorney Chung testify on the spot under oath about this.

After some examination, the Judge seemed to feel that Ms. Chung acted in good faith. He was disturbed about these issues not being raised "long ago", but sympathetic enough to ask both parties to each produce, by Tuesday next (and replies to each other by Friday) fuller annotations and sourcing of their "top 50" documents requested of each other. "But we're not gonna go back for re-litigation beyond that".

Camara: "Any award of fees for this document production?"

Alsup: "No, you are lucky to get this."

The Florida venue came to the fore. Psystar stressed that the Florida case was really about Mac OS 10.6 (Snow Leopard) in contradistinction to 10.5 Leopard as in California. There was some jockeying to enable judicial understanding of the import of this distinction, but not before Mr. Gilliland posited that "one had spots".

There was a show-and-tell by Apple on a chart not visible to yours truly about paragraphs 24 and 46 of some fuzzy reference, and a teaser mention of the DMCA, wherein Apple claimed Psystar admitted, without limitation, that such issues applied to both Leopard versions.

Apple emphasized that 10.6 cannot run without 10.5 as a pre-requisite, and cited some case law (In Re: Rutter?) about another company having gone through a similar ordeal, coalescing cases 3,000 miles apart due to some form of versionitis red herring (my term).

[Ed note: at this juncture I heard some mumbling about technical issues causing the hearing to become closed. I looked up from my note scribbling to hear Judge Alsup ask the audience, seemingly only myself, about who might be present in the courtroom; I volunteered aloud that I was a just curious citizen of San Francisco but not a directly-interested party. The proceedings continued apace, without further elaboration. No one said to leave.]

Judge Alsup: (paraphrasing) "This is a status conference, not a place to file or issue judgments on motions."

Apple then summarized what they wanted to transpire in the near term, including a Florida case transfer and re-opening discovery for 30 days to obtain Psystar's Snow Leopard-related source code, among other lesser things. Psystar's rejoinder revolved around the evidence in the Florida case being completely different due to OS technical protection measures, and Apple's "carving out" of Snow Leopard from enquiries. More sparring over 10.5/10.6 issues continued, with Gilliland pleading that, in the interest of efficiency "nothing can possibly be more inefficient" than not finding out now what common issues can be transferred to this court in preparation for trial in January.

Judge Alsup's entreaty was that the complexities really required filing new formal motions, but that since he had "400 other cases" there was no way to entertain a January trial date without dedicating all the time on just this one case, which is not to be. That and a warning about trial date slippage as a tradeoff against litigating "Snow Leopard". The judge acknowledged the possibility of "stonewalling by Apple" to enlarge the proceedings as being possibly unfair. Nonetheless, if Florida wanted to transfer issues from their venue he'd have to seriously consider it.

Meanwhile, sayeth the Judge, the schedule stands, whereby one party submits (particular items for the record, which I missed) by the 11th, a reply by the other side by the 18th, further reply by the 21st, all eliciting a hearing scheduled for September 24th at 8 a.m, with copious weekend work in between.

Without earthshaking decisions being hammered down (at least in public), I stepped on to the elevator with Gilliland and Camara, with the "innocent" question of what Judge Alsup thought was to be protected from any roving eyes and ears. They agreed this would be details of any code enabling hosting of Snow Leopard on Psystar's recently announced gear. At least those two protagonists then scattered away for coffee.


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