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Apple accuses Psystar of destroying evidence

Could be disastrous
Fri Aug 14 2009, 17:19

UPSTART MAC CLONE MAKER Psystar has been accused by Apple of having destroyed evidence it was legally required to preserve in their ongoing court battle.

Apple's accusation came in a letter brief (PDF) filed with the court. Though much of the letter is redacted and most of the accompanying exhibits are sealed, the thrust of it looks to be related to Apple's claim that Psystar violated the US Digitial Millenium Copyright Act (DMCA), which forbids circumvention of technical means used to protect copyrights.

In this case, the copyrights at issue are those that cover Apple's Mac OS X operating system, which Apple contends Psystar improperly modified or reverse engineered "to enable Mac OS X [to run] on Psystar computers".

In its letter to the court, Apple wrote, "Defendant, Psystar Corporation, has destroyed relevant evidence that it was legally required to preserve. Specifically, Psystar has overwritten -- i.e., erased -- infringing versions of the software code used on computers sold to its customers."

The allegation goes to the heart of Apple's complaint against Psystar, in which it claims that Psystar violated the DMCA in order to infringe Apple's copyrights on Mac OS X by modifying and installing it on computers not made by Apple, which Apple further claims violated the terms of its Mac OS X licence.

Apple says it found out that Psystar erased prior versions of its software when it deposed Rodolfo Pedraza, Psystar's CEO, in order to discover how the Mac clone maker was going about circumventing its "technological protection measures".

Apple's letter asks the court to order Psystar to produce all master copies of its source code and related documents and, if Psystar can't, to impose sanctions.

If proven, such an allegation can have serious legal consequences for a litigant. The legal term for destroying evidence sought by an opposing party in the discovery phase of a civil lawsuit is 'spoliation'. Courts take an extremely dim view of such acts, especially, as in this case, when a party is subject to a court order directing that it preserve all evidence relevant to an ongoing civil lawsuit.

Psystar could find itself in deep kimchee over this, ranging from a stern warning by the judge - not likely here, as Apple's case might depend upon the evidence that Psystar allegedly destroyed - through a directed inference that the evidence destroyed was unfavorable to Psystar, a directed finding of liability against Psystar, a default judgment in favour of Apple, up to any of the above plus contempt sanctions against Psystar and even its lawyers. µ



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