Mac clone maker takes testimony from senior Apple execs

Apple accuses Psystar of destroying evidence in copyright infringement case

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For its part, Apple has filed a letter brief with the court, claiming that Psystar erased earlier versions of the software it uses to make Mac OS X run on its clones, even though Alsup had expressly told Psystar not to delete anything.

"As stated in the October 30, 2008 Joint Case Management Statement, Psystar's principals were put on notice of this duty to preserve, and a document preservation notice was sent out to Psystar's employees," Apple said in the letter brief dated Aug. 10. "Yet, as admitted by Mr. Pedraza [Psystar's president], Psystar has not complied with its obligations and instead has destroyed evidence of its willful infringement."

The heavily-redacted brief lacked specific examples of what Psystar was alleged to have deleted.

Apple also cast suspicion on Psystar's explanation of missing e-mails, which the Florida clone maker attributed to buggy e-mail and customer support software. "Apple is unaware of any other steps taken by Psystar to halt the deletion of relevant emails by Psystar's email system," Apple said in a footnote to the letter brief.

Apple asked Alsup to demand that Psystar turn over "the code and all master copies that Psystar has used." If it can't come up with the requested software, Apple said it wanted Alsup to require Psystar, under penalty of perjury, to admit that it destroyed documents and code.

The California computer maker also asked Alsup to sanction Psystar for its misconduct, including granting Apple what's called an "inference adverse" to Psystar. If granted, the judge or jury would then be allowed to infer that whatever was deliberately deleted must have been unfavorable to Psystar.

Alsup has set a hearing about the issue for next Thursday.

Currently, the case is schedule to hit trial on Jan. 11, 2010. The deadline for discovery by both sides is Aug. 21.

Psystar, which started installing Mac OS X 10.5, aka Leopard, on its clones in April 2008, continues to sell the faux Macs on its Web site. The least-expensive system packs an Intel 2.5GHz dual-core processor, 2GB of RAM, a 500GB hard drive, and an Nvidia GeForce 9400GT graphics card, and is priced at $599.99. The machine does not include a keyboard, mouse or display.

Copyright © 2009 IDG Communications, Inc.

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