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Apple Files Reply Memo on Motion to Dismiss or Enjoin; Psytar Asks for Discovery Sanctions Again
Wednesday, September 23 2009 @ 05:04 AM EDT

Lots of activity in Apple v. Psystar, including Apple's filing its Reply Memorandum [PDF] regarding Apple's motion to dismiss or enjoin prosecution of the Psystar Florida litigation. Here's what Apple is responding to, if you'd like to compare, Psystar's Memorandum in Opposition to Apple's motion. Also there are three declarations in support of Apple's motion, one sealed, and one in which the declarant tells about registering copyright in Snow Leopard on Sept. 16 and it issuing on Sept. 21. So much for Psystar's allegation that there was no registered copyright on Snow Leopard. I couldn't figure out why Psystar even said that, frankly.

And the parties are fighting about Jacques Vidrine again. If you noticed, Apple filed under seal a declaration by Vidrine, docket number 137, with its motion to dismiss or enjoin prosecution, after telling the judge at the last hearing that it wouldn't be using him as an expert for trial and the judge so ordering. So once again, Psystar is claiming Apple violated that order by submitting the Vidrine declaration and is asking for sanctions, also that Vidrine's declaration be stricken. One thing is clear. Psystar really, really, really doesn't want Jacques Vidrine to testify about changes in Apple's technological protection measures in Snow Leopard.

We only find out what Psystar wants by reading Apple's Memorandum in Opposition [PDF], because Psystar sealed its motion. Psystar seems to be sealing a lot more than Apple is, but that could just be my impression. The essence of the Apple argument is that Apple says that it said it wasn't going to use Vidrine back when the case was only about Leopard, prior to Psystar starting to sell Snow Leopard. That changed things. Now, Vidrine's the very man Apple needs to explain the tech:

But Psystar contends the Court should not consider it because Apple in its Initial Disclosures never identified Mr. Vidrine as a witness Apple intended to rely upon. However, prior to August 27, 2009, when Psystar announced that it was going to sell a computer running Snow Leopard, Mr. Vidrine’s knowledge was not relevant to the matters in dispute between the parties. Now it is. Because of the recent change in circumstances, Apple has asked this Court to re-open discovery and to allow it to supplement its Initial Disclosure of witnesses pursuant to Federal Rule of Civil Procedure 37. Nothing in that Rule, or in anything Apple has previously said to this Court, precludes such a request. Psystar’s selective citation of the Status Conference Hearing Transcript to suggest otherwise is purposefully misleading.

Psystar also moves to strike Mr. Vidrine’s declaration pursuant to Rule 37(c) on the ground that it is improper expert testimony. Yet, Rule 37(c) does not govern whether opinion testimony is admissible. Under Federal Rule of Evidence 701, which is the appropriate standard, Mr. Vidrine’s testimony is admissible.

And they offer him for deposition by Psystar, if the court grants their request for more discovery. Apple quotes from the hearing transcript, showing where Apple said in open court it was requesting to reopen discovery and indicated its intent to use Vidrine in that connection. The court suggested at the hearing that Apple file a motion about reopening discovery, and so it did. Hence the reappearance of Vidrine:
Psystar’s assertion that Mr. Vidrine’s declaration violates an Order of this Court is wrong. At the September 4, 2009, Status Conference, the Court invited Apple to file a motion responding to Psystar’s new product announcement and duplicative lawsuit. The Court allowed Apple to attempt to establish through a motion that there is substantial justification for reopening discovery and amending its Initial Disclosures. That is precisely what Apple has done.

Trying to convince the Court that Apple cannot use evidence from Mr. Vidrine to demonstrate a substantial justification for amending its Initial Disclosures, Psystar selectively cites the September 4, 2009, Status Conference Hearing Transcript, but ignores the most relevant portions. A more complete review of the transcript clearly shows that the first half of the hearing related to issues that did not involve Psystar’s sales of computers running Snow Leopard. That is the part of the transcript Psystar quotes. But it was the second half of the Status Conference which involved Snow Leopard. That is the part of the transcript Psystar ignores. A complete review shows that Apple specifically requested that the Court re-open discovery on the issue of Snow Leopard and informed the Court and Psystar that Mr. Vidrine would be made available to testify as to any changes in the technological protection measure in Snow Leopard. Apple’s counsel stated:

Consequently, we suggest as follows: That the parties — that the Court allow discovery for another 30 days; that Psystar turn over the source code for its new product; that we be allowed to ask Mr. Pedraza what he did; and Apple will make Mr. Vidrine available to testify about any changes in the technological protection measure, so that those issues can be finally resolved at trial in January. . . . [O]ur request is that the Court allow us to take the small amount of discovery specifically related to the newest product, released seven days ago. And, in exchange, we will offer to make Mr. Vidrine available for anything that relates to the changes as between Leopard and Snow Leopard.
28 September 4, 2009, Status Conference Hearing Transcript, p. 28:6-21 (emphasis added).

(Declaration of James G. Gilliland, Jr. in Opposition to Psystar Corporation’s Motion to Strike, Ex. 1.)

The Court responded by asking Psystar’s counsel whether it released new products using Snow Leopard after the August 21, 2009, fact discovery cut-off:

The Court: Help me understand. When did Snow Leopard 10.6 come out?

Mr. Camara: I believe it was August 28th, which is –

The Court: Of this year?

Mr. Camara: Of this year.

The Court: August 28th.

Mr. Camara: Which is after the close of fact discovery in this case.

The Court: And when did your company make this announcement about your product?

Mr. Camara: It was last week. I don’t remember precisely which day last week.

The Court: And just tell me, what did your announcement say?

Mr. Camara: We announced we are offering for sale computers running Snow Leopard.

September 4, 2009, Status Conference Hearing Transcript, pp. 31:17-32:8.

After having heard this sequence of events, the Court went on to state that these new facts might warrant revised Initial Disclosures including the identification of Mr. Vidrine as a witness:

Mr. Camara: Your Honor, the change – the new discovery that would have to be taken is not trivial. For example, Mr. Vidrine, who the Court has already ordered will not be able to testify, is the person who is charged with designing the new technological protection measures for Snow Leopard. If Apple thought Snow Leopard was covered by this case, they should have disclosed Mr. Vidrine. He is the guy who designed the protection measures. We would have to take his deposition.

The Court: Well, I understand that. Possibly – I’m not saying it would be, but possibly this new development which just occurred would constitute, quote, substantial justification for a revised disclosure, even at this late date, add to Mr. Vidrine. And then he would be made available and so forth.

The Court then explicitly authorized Apple to file a motion seeking that specific relief:
The Court: Look, here is the answer to this, The answer is: You’ve got to bring a motion.
September 4, 2009, Status Conference Hearing Transcript, pp. 33:12-34:2.

Apple has now filed its Motion seeking to dismiss or enjoin the Florida lawsuit and also to re-open discovery in this case. [redacted] Psystar’s argument to strike Mr. Vidrine’s declaration is based solely on a purposefully selective misreading of the Court’s statements and should be denied.

Even if the court wishes to sanction Apple, striking the Vidrine declaration is overkill, Apple argues, citing a number of legal arguments that would allow the testimony in even if he couldn't testify as an expert witness.

Most interesting in the reply memorandum on the Apple motion to dismiss or enjoin is that Apple says that while it has indeed registered a copyright in Snow Leopard, despite Psystar's allegation otherwise, it says it didn't really need to for the court to order injunctive relief, because once a court has jurisdiction over a case, any further copyright infringement is covered with respect to injunctive relief. Apple quotes from the case Perfect 10:

Once a court has jurisdiction over an action for copyright infringement under ( 17 U.S.C.) section 411, the court may grant injunctive relief to restrain infringement of any copyright, whether registered or unregistered. See, e.g., Olan Mils, Inc. v. Linn Photo Co., 23 F .3d 1345, 1349 (8th Cir. 1994); Pac. & S. Co., Inc. v. Duncan, 744 F.2d 1490, 1499 n. 17 (11th Cir. 1984).
Not only that, but since Snow Leopard evolved from Leopard, it's a derivative work, and "once a court has jurisdiction over a registered work," Apple says, "it also has jurisdiction over unregistered works that are derivative of the registered work. That leads Apple to this conclusion: "Pystar's copying infringes Apple's copyrights in both works. Accordingly, this Court has jurisdiction over all of Apple's copyright claims against Psystar."

The filings:

09/21/2009 - 143 - MOTION to Seal PORTIONS OF APPLE INC.'S OPPOSITION TO PSYSTAR CORPORATION'S MOTION TO STRIKE THE DECLARATION OF JACQUES VIDRINE AND FOR SANCTIONS filed by Apple Inc.. (Attachments: # 1 Affidavit J. Jeb B. Oblak, # 2 Proposed Order)(Boroumand Smith, Mehrnaz) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 144 - Memorandum in Opposition TO PSYSTAR CORPORATION'S MOTION TO STRIKE THE DECLARATION OF JACQUES VIDRINE AND FOR SANCTIONS, 139 MOTION File Document Under Seal filed by Apple Inc.. (Attachments: # 1 Affidavit DECLARATION OF JAMES G. GILLILAND, JR., # 2 Exhibit 1 TO DECLARATION OF JAMES G. GILLILAND, JR., # 3 Exhibit 2 TO DECLARATION OF JAMES G. GILLILAND, JR., # 4 Proposed Order)(Boroumand Smith, Mehrnaz) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 145 - MOTION to Seal [MISCELLANEOUS ADMINISTRATIVE REQUEST TO FILE UNDER SEAL (1) PORTIONS OF APPLE INC.'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS OR ENJOIN, (2) CERTAIN EXHIBITS TO THE REPLY DECLARATION OF J. JEB B. OBLAK IN SUPPORT THEROF; (3) REPLY DECLARATION OF DR. JOHN P. J. KELLY AND EXHIBITS THERETO IN SUPPORT THEREOF] filed by Apple Inc.. (Attachments: # 1 Affidavit of Mehrnaz Boroumand Smith in Support Thereof, # 2 Proposed Order)(Boroumand Smith, Mehrnaz) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 146 - Reply Memorandum re 138 MOTION to Dismiss OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES filed by Apple Inc.. (Gilliland, James) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 147 - Declaration of J. Jeb B. Oblak in Support of 138 MOTION to Dismiss OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES [REPLY DECLARATION OF J. JEB B. OBLAK IN SUPPORT OF APPLE INC.S MOTION TO DISMISS OR ENJOIN] filed by Apple Inc.. (Attachments: # 1 Exhibit (s) 1-2 [submitted under seal])(Related document(s) 138 ) (Gilliland, James) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 148 - Declaration of Dr. John P. J. Kelly in Support of 138 MOTION to Dismiss OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES [REPLY DECLARATION OF DR. JOHN P. J. KELLY IN SUPPORT OF APPLE INC.'S MOTION TO DISMISS OR ENJOIN, SUBMITTED UNDER SEAL] filed byApple Inc.. (Attachments: # 1 Exhibit (s) 1-2 [submitted under seal])(Related document(s) 138 ) (Gilliland, James) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 149 - Declaration of Susan D. Carroll in Support of 138 MOTION to Dismiss OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES [REPLY DECLARATION OF SUSAN D. CARROLL IN SUPPORT OF APPLE INC.'S MOTION TO DISMISS OR ENJOIN] filed byApple Inc.. (Attachments: # 1 Exhibit (s) 1-4) (Related document(s) 138 ) (Gilliland, James) (Filed on 9/21/2009) (Entered: 09/21/2009)


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