Personal issues have kept me from writing as regularly on my favourite case as I would like, but hopefully that has ended or at least been minimized. Many interesting things have happened recently, particularly regarding discovery, and I have only just began to digest the information and do not write on a subject until I am fairly sure that I have the facts down and some solid defensible opinions. However, this is a perfect opportunity to step back and take a look into the discovery between the parties prior to Psystar filing and then just as suddenly, fleeing, bankruptcy. As far as I have seen, this information has not been reviewed elsewhere on the Apple web.

Typically, in Federal Court, discovery requests and answers are not filed with the Court unless there is some dispute, and even then, they are often heavily redacted as we have already seen with the Letter Brief filed by Apple on April 29, 2009. In fact, the parties had earlier requested, and had been granted, a Protective Order allowing the redaction (or filing under seal) of certain areas of inquiry in any discovery which must be used as an attachment in support of any filing. Due to these circumstances, we know precious little about precisely what types of inquiries were propounded by both parties. However, attached to Rudy Pedraza’s Declaration filed with the Bankruptcy Court were copies of Apple’s Answers to Psystar’s First, Second, and Third Requests for Admission (comprising 181 separate Requests).

General Information on Requests for Admission

 
Before discussing the contents of the filings uncovered, I will give a short primer for the layperson on the nature and purpose of the discovery avenue of “Requests for Admission.”

Requests for Admission are covered under Rule 26 of the Federal Rules of Civil Procedure. The interested reader can go to the link to read the rule and its technicalities in full. But to put it simply, Requests for Admissions are used to determine what items that the parties can agree are true or false and thus will not need to be proven at trial. For example, in an auto accident case, one party may ask the other to admit that it was not raining at the location of the accident at the time of the accident. This would obviate the need to obtain official weather records in order to prove that particular fact. Another common use of Requests for Admissions are to establish the authenticity of documents so that the original author or records custodian of the documents is not required to come into Court at trial simply to tell the jury that the document is genuine and kept in the ordinary course of business. My general philosophy is that attorneys should not ask stupid Requests for Admissions (with stupid being my subjective standard—the Rules are pretty lenient so that worthwhile requests are not chilled, and the responding party has the protection of objecting in detail). My personal opinion of an example of such would be asking the other party to admit that the basis for their case is entirely without merit (which Psystar did in fact do in their requests). That is just inane, and well, insulting to the intelligence of the recipient and contributes to the public perception that a great deal of law practice is silly showboating. Unfortunately, that is the nature of the beast at times in American jurisprudence.

In my particular job as a legal assistant, some cases tend to be very document-intensive. In such situations, Requests for Admissions are very helpful to both sides to get document authentication out of the way which will shorten the trial and spare the jury from strictly pro forma testimony.

Now however boring all of that might seem, one can glean a great deal of a party’s trial strategy and case theories from the Requests made.

Rudy Pedraza’s Representations Regarding Apple’s Responses to Psystar’s Requests for Admissions Numbered 1 through 181

 
Here are the discovery documents that Pedraza provided.

Apple Inc.’s Responses to Psystar Corporation’s First Set of Requests for Admission (Nos. 1–53)
Apple Inc.’s Responses to Psystar Corporation’s Second Set of Requests for Admission (Nos. 54–84)
Apple Inc.’s Responses to Psystar Corporation’s First Set of Requests for Admission (Nos. 85–181)

First, I wonder if Pedraza obtained the permission of Apple of make these publicly available considering that the parties had agreed to keep certain discovery private. In fact, in Apple’s request to the Bankruptcy Court for relief from the automatic stay, its main exhibit was filed under seal to maintain the privacy of the discovery process. I found it difficult to imagine that Apple agreed to this publication.

Here is what Pedraza stated in his sworn Declaration to the Bankruptcy Court:

Notice that Pedraza alleged that Apple failed to answer and instead has objected to all Interrogatories and/or Requests for Admissions in an attempt to further bury Psystar in legal bills without providing any information, and as example, he provides the Bankruptcy Court with Psystar’s 181 REQUESTS FOR ADMISSION! Hello Mr. Pot, there is a kettle over here that suspects you and he share a colour. In examining these Requests we can get a good glimpse into Psystar’s thought processes as to their discovery and litigation strategy. I will extract some broad areas for examination in this article (not intending to cover every minutiae).

Is it TRUE that Apple “failed to answer and instead has objected to all Interrogatories and/or Requests for Admissions”?

 
Short Answer: No, it is not true.

Long Answer: For those with no experience in the legal field, a review of Apple’s responses may appear to support Pedraza’s assertions. However, Apple’s responses are typical form and practice in the legal industry. Lawyers are paid and trained to advocate zealously for their clients to the best of their abilities within the bounds of professional ethics. As such, they look for even the slightest advantage or phrase that they can use to help their client. Therefore, in written discovery, unless a question/request is very straightforward, nearly every answer will be prefaced by certain objections so that they are preserved, and then, the answer will say something to the effect of “however, without waiving said objections, Plaintiff/Defendant responds XYZ.” Pedraza is correct in that Apple provided objections to all the Requests for Admissions (and as I will show, some of Psystar’s requests are just plain ridiculous and tiresome), he is absolutely duplicitous in his claim that Apple failed in toto to answer. Pedraza is not some innocent illiterate from the boondocks who “gosh golly gee” didn’t know that prefacing answers with objections are typical legal pracitce. In fact, I would LOVE to know if Psystar did the exact same thing. Here is a typical Request and Answer from the very first Request propounded (the General Objections referred to are typical prefaces to all discovery responses that form the first few pages):

Apple responded as is typical in legal proceedings. It protected itself as best as possible from any vulnerabilities in poor wording or ambiguity in the Request and then answers to what it represents is the best of its ability. Nearly every single Request and Answer follows this pattern. There are only few that were objected to in full without a denial or admission. In fact, I had to read all the way to Request Number 47 to find the first example. Did Apple use invisible magic ink so that Pedraza could swear to the Court that Apple failed to answer and only objected to ALL Requests for Admissions? Truth has not been Psystar’s trademark. It is not surprising that they conjure up fake facts considering that they make fake Macs.

In fact, the only Requests that were objected to in full were Requests numbered 47, 48, 49, 50, 51, and 53. That is 6 out of 181. Mr. Pedraza appears to have a bit of an exaggeration problem. In my review, Apple readily admitted to numerous issues of fact. In my own job, I have seen Responses come back in which every (or nearly every) Request is denied. However, all that being said, stepping back from my perspective of being accustomed to such filings, I can understand how Pedraza would be frustrated though I find it difficult to have any sympathy since he answered “I don’t know” over 80 times to questions about the finances of his “very small company” (his representation as he loves to continually whinge in order to represent Apple as the fat bully in the sandbox).

While we are talking about Pedraza’s internal reality distortion field, let’s compare these two statements.

First, from Psystar’s response to Apple’s request to the Bankruptcy Court to lift the automatic stay:

Okay, so Apple has not filed a motion for injunctive relief though it is requested in its Amended Complaint. Now notice what Pedraza says:

It seems that in Rudy-land “has not” is equivalent to “unable to” and evidences that Apple’s case is not clear. Interesting. Why? Because Psystar asked for injunctive relief as well in its Amended Counterclaims but also has not filed a motion for same. Will Pedraza apply the same standard to Psystar? Long live Janus.

And let us not forget this zinger:

Is it true that Psystar ”made every effort to provide them all the documents in our possession”? Well only if you believe not even bothering to print out email attachments and giving potentially contradictory statements as to whether they even still exist comprises making every effort. In my world, the sky is blue, and that is not making every effort.

Moving on…

What can we glean about Psystar’s case strategy from these Requests for Admissions?

 
Obviously I cannot bore you to death by going through all 181 requests individually. Well, technically I could, but I won’t. I have grouped what seems to be the most important and interesting categories for brief discussion with selected example Request(s) and Answer(s) for examples.

Category: Vendors other than Apple sell the “Mac OS.”

 

Apparently Psystar believes that it is somehow pertinent that users may obtain OS X from entities other than Apple. How that is relevant is beyond me. The consumer does not buy Windows directly from Microsoft; does that somehow denigrate Microsoft’s interest in controlling their intellectual property? The consumer does not generally buy books directly from the authors; does that mean they can produce unauthorized derivative works at will? I would conjecture that Psystar is attempting to piggy-back a case that since the OS is available outside of Apple that Apple has no right to dictate how it can be used. This seems even more likely to be the goal when considering the next category.

Category: Consumers can buy a retail box of the “Mac OS” without purchasing any other Apple product.

 

Once again, the relevance fails me. A person may buy a copy of Leopard and use it for kindling if they wish. A person can be given a Macintosh upon which they install the product. This is inanity. My guess, again, is that Psystar is attempting to show that although Apple has placed restrictions on the use of the product; it has not required any proof or point of sale proof of being able to actually enforce the restrictions.

Category: It is possible to install and run the “Mac OS” without modifying the “Mac OS” on machines manufactured by vendors other than Apple.

 

And

Okay, this category is more substantive and appears to be geared towards defeating Apple’s claim of violation of the DMCA which requires anti-circumvention technology. Yet, and interestingly separated by over thirty Requests, Psystar appears to pursue a completely different admission as follows (for example):

I have noted this contradictory tension in prior articles here and here. I must note, however, it is not unusual in Requests for Admissions for a party to ask for two contradictory admissions in order to pin the opposing party to commit one way or the other.

Category: Apple has no copyright rights on any code which is licensed to Apple under an open source license.

 

I think that is a very valid and interesting point raised by Psystar. I know basically nothing about code and programming so I can only comment on the issues it may pose in this case taking what Psystar is alleging as true. Is Apple’s code a derivative work? and if so, how does that affect the intellectual property rights? My gut reaction is that this argument is NOT good for the open source community or organizations pushing for open standards. Why would a company want to risk losing its intellectual property rights simply because it mixed open source code with its proprietary code? This is just one of the many points that irritates me about some Psystar supporters. Get this straight: Psystar is NO friend of the open source community and “open-ness.” They are just a couple of guys looking to make a buck without much care of how it affects anyone or anything else. There is a reason why the osx86 Project creator is no fan.

Category: Ahhh, we’re right! Just admit it!

 
I am sorry, but I found these next Requests hilarious along the lines of “when did you stop beating your wife?” These are allowable under the Rules as far as I can see, but in my personal opinion this is the type of nonsense that causes people to think poorly of the law and attorneys.

Category: Lack of Real Damages

 

Basically Psystar wants to establish that even if there were some violation of copyrights or other intellectual property rights; Apple suffered no quantifiable damages from Psystar, presumably because Psystar paid full retail price for each of its copies of Leopard (allegedly) and that its customer base wouldn’t have purchased an Apple-labeled computer due to the higher cost. This of course ignores other intangible losses such as brand dilution and the like (though Psystar did address those in separate Requests).

Category: The Clone program was profitable. Or was it?

 

Eh? So if Apple made money, then the big, bad corporation wants to make more money (as if that is inherently wrong), and if they didn’t, well that is why they want to persecute poor little Psystar. Tails Psystar wins, Heads Apple loses. Ahem.

Category: Go ahead Apple, admit you want to make money.

 

Apple is not a charity and wants to make the most money possible. Shocking I know. Somehow I suspect that Psystar would also like to make as much money as possible. In fact, I have it through the grapevine that Rudy has bragged about his own ambitions to be filthy rich.

Category: Ignorant Consumers

 

Shall Apple waterboard them until they do? Seriously, if anyone states that they have read and agree to certain terms and conditions, the other party has every legal reason to rely upon that declaration (assuming mental competence, age, etc.) I admit it; I have never read any EULA. But I also would never claim that my agreement to something I didn’t read is anyone’s problem but my own. Further, its not as if the end-users are agreeing to something that is a well-kept secret or outlandish.

Category: Apple is the exclusive licensor of “Mac OS,” and has in the past licensed it to other entities who then sold Macintosh “clones” to the public.

 

It seems, Psystar wants to establish the foundation that Apple as a company had no issue with a business model that included third-party licensing. The inference that Psystar might want to draw from this is that Apple should not have an issue with it today; and it was a viable business model in the past. My response: So? Businesses can change their models for whatever legal reason they choose. Psystar puts some distance between these Requests and the following:

Category: It’s all Steve’s fault (and he’s a hypocrite).

 

The video linked to above has since been removed, but here is another copy of it (light profanity warning).

Last year my best friend said she would give me a thousand dollars and has since changed her position after figuring out that she was better off keeping it. That basically is what their argument amounts to. It is so vapid I am almost without words. Will Psystar be suing Apple when they eventually include the Bag ‘O Hurt also known as Blu Ray? Psystar has changed its positions faster than Linda Blair has spun her head so I find this beyond chutzpah or the Dunning Syndrome on their part.

Category: All Steve Jobs stated that Apple wanted from its licensees was that they pair their “fair share” for the licensing rights and that said “fair share” would be the retail cost.

 

Psystar seems poised to argue that it is fulfilling what Steve Jobs wanted prior cloners to do: pay full retail price. Yes, this is hopelessly naive and simplistic, but that appears to be their point. And I hate to give them a much needed reality-check: the technology world is not the same as it was a decade ago.

Category: Apple is picking on us!!! Or put another way, Apple is aware of other third parties who are violating the EULA, such as the osx86 project, but has not sought to enforce the EULA against them.

 

That sound you hear is Psystar attempting to throw the Hackintosh hobbyist community under the bus so that they can make a buck off of someone else’s work. In legal strategy, they seem to be claiming selective enforcement and waiver. However, I think this will be a tough row to hoe since Rudy was well aware that they were purposefully spitting in Apple’s pie and didn’t really care if they got sued.

Category: Apple informs the public that a purchaser owns the actual physical media which contains the software. Further, Apple has never requested the return of the physical media.

 

I feel dumber just reading and writing that. Let’s move on.

Category: Installing the software creates a copy on the user’s machine and in the RAM each time the software is executed.

 

I didn’t think it could get worse. It did. It has already been decided in a case cited earlier (I could get the case if someone really, really wants it) that the machine loading a “copy” into RAM isn’t a license violation and basically is a useless argument against licenses.

Category: Licensing rather than sale is done to circumvent 17 U.S.C. §109, §117

 
and

Category: Apple’s EULA defining the software as licensed and not sold is intended to keep the software from being installed on machines made by other vendors.

 

This right now is their best argument, but unfortunately for them; the District in which this suit is filed has not been persuaded by this line of reasoning in the past.

Category: Apple hardware is not covered by any Apple copyrights, and Apple-labeled hardware is not expressly defined in Apple’s filings.

 

and

Category:Apple has alleged that Psystar has violated multiple sections of U.S.C. 17 and one or more licenses attached to Apple’s filings.

 

This line of argumentation was discussed pretty thoroughly here for the interested reader. Again, this is part of their stronger points (the word “stronger” being used in a very loose manner).

Category: Apple distributes labels that resemble the Apple logo with the “Mac OS” and that people can put those stickers on any computer.

 

Oh come on!!! You’ve have GOT to be kidding me. That is almost as bad as this:

Category: Apple-labeled computers may be purchased from Apple’s websites.

 

Okay……

Category: Exhibits 13 through 15 from the March 19, 2009 deposition of Rudy Pedraza cannot by authenticated or verified by Apple.

 

Without knowing what these documents are, it is difficult to comment. Apparently there are documents that Psystar doesn’t like and wishes to put as much distance between it and them as possible.

Category: Apple purchased computers from Psystar both before and after July 3, 2008.

 

Okay….. so now we know who bought the ones that were sold to entities other than Engadget and the like.

Category: Apple dissembled, decompiled, and reverse-engineered a Psystar restore disc.

 

Okay…..

Category: Any two or more copies of the “Mac OS” install disk are the same for all intents and purposes.

 

I am not at all sure what they are driving it besides a colossal tribute to Captain Obvious. Well this look into their prior discovery will assist in my upcoming articles on the newest bizarre twists that this case has taken over the past week. Be on the lookout for more! Oh goody!

Remember, I am NOT an attorney and any legal opinions would have to be determined by a properly licensed and qualified attorney.

In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.