Apple Inc. v. Psystar Corporation

Filing 135

Declaration of MEHRNAZ BOROUMAND SMITH IN SUPPORT OF APPLE'S MOTION TO DISMISS OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES filed byApple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Boroumand Smith, Mehrnaz) (Filed on 9/11/2009)

Apple Inc. v. Psystar Corporation

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TOWNSEND AND TOWNSEND AND CREW LLP JAMES G. GILLILAND, JR. (State Bar No. 107988) MEHRNAZ BOROUMAND SMITH (State Bar No. 197271) MEGAN M. CHUNG (State Bar No. 232044) J. JEB B. OBLAK (State Bar No. 241384) Two Embarcadero Center, Eighth Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiff and Counterdefendant APPLE INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

APPLE INC., a California corporation, Plaintiff, v. PSYSTAR CORPORATION, a Florida corporation, and DOES 1-10, inclusive, Defendants. AND RELATED COUNTERCLAIMS

Case No. CV 08-03251 WHA DECLARATION OF MEHRNAZ BOROUMAND SMITH IN SUPPORT OF APPLE'S MOTION TO DISMISS OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES Date: Time: Courtroom: Trial Date: September 24, 2009 8:00a.m. 9 January 11, 2010

DECLARATION OF MEHRNAZ BOROUMAND SMITH IN SUPPORT OF APPLE'S MOTION TO DISMISS OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES, CASE NO. CV 08-03251 WHA

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I, Mehrnaz Boroumand Smith, declare as follows: 1. I am an attorney licensed to practice law in the State of California and am admitted to

practice before this Court. I am a partner in the law firm of Townsend and Townsend and Crew LLP, and am one of the attorneys representing Plaintiff and counterdefendant Apple Inc. ("Apple") in the above-captioned matter. I make this declaration on personal knowledge and if called as a witness could and would competently testify with respect to the matters stated herein. 2. Attached as Exhibit 1 is a true and correct copy of the complaint filed by Psystar

Corporation ("Psystar") against Apple in the Southern District of Florida on August 27, 2009, Case No. 09-22535 CIV Hoeveler. The Florida complaint was signed by K.A.D. Camara, who is also lead counsel for Psystar in this lawsuit. 3. Attached hereto as Exhibit 2 is a true and correct copy of excerpts of the definitions

included in both Apple and Psystar's discovery requests for production of documents, requests for admissions and interrogatories in this case. 4. Attached hereto as Exhibit 3 is a true and correct copy of Request for Production Nos.

12, 17 and 28 in Apple's First Set of Requests for Production of Documents served on November 4, 2008, and Request for Production No. 53 in Apple's Second Set of Requests for Production of Documents served on November 11, 2008. Documents relating to Psystar's development of prototypes and products capable of running Mac OS X Snow Leopard should have been produced in response to these requests. Psystar never produced any such documents. 5. On November 4, 2008, Apple served Psystar with Apple's First Set of Interrogatories,

including Interrogatory No. 1. Attached hereto as Exhibit 4 is a true and correct copy of Apple's Interrogatory No. 1. Psystar responded to Interrogatory No. 1 on December 4, 2008 and supplemented its response on March 6, 2009. Attached hereto as Exhibit 5 are true and correct copies of Psystar's responses to Interrogatory No. 1. Psystar did not supplement its response to Interrogatory No. 1 to identify any Psystar prototype that could run Snow Leopard or product that it was contemplating or thinking of offering for sale with Mac OS X Snow Leopard. 6. Attached as Exhibit 6 is a true and correct copy of an excerpt from the transcript of the

August 19, 2009 deposition of Simon Patience. I attended Mr. Patience's deposition and represented
DECLARATION OF MEHRNAZ BOROUMAND SMITH IN SUPPORT OF APPLE'S MOTION TO DISMISS OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES, CASE NO. CV 08-03251 WHA

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him on behalf of Apple. During that deposition, Mr. Camara asked Mr. Patience about the technological protection measures for the beta seed of Mac OS X Snow Leopard. The portion of the testimony attached hereto as Exhibit 6 is the exchange between Mr. Camara and I in which he stated that the testimony relating to the Snow Leopard seed that he sought was relevant to this case, followed by some of Mr. Patience's testimony regarding Snow Leopard. 7. After Mr. Patience's deposition, Mr. Camara requested that Apple provide another

employee to further testify on the technological protection measure for Mac OS X Snow Leopard. I asked whether Psystar intended to release products running Mac OS X Snow Leopard and he said he would not respond to that question. 8. In addition to Simon Patience, other Apple witnesses testified regarding Snow Leopard

at their depositions. Attached hereto as Exhibit 7 is a true and correct copy of excerpts from the August 13, 2009 individual deposition of Philip Schiller where he testified regarding Snow Leopard. Attached hereto as Exhibit 8 is a true and correct copy of excerpts from the August 12, 2009 individual deposition of Kevin Van Vechten where he testified regarding Snow Leopard. Attached hereto as Exhibit 9 is a true and correct copy of excerpts from the August 14, 2009 individual deposition of Michael Culbert where he testified regarding Snow Leopard. Attached hereto as Exhibit 10 is a true and correct copy of excerpts from the August 21, 2009 individual deposition of Bob Mansfield where he testified regarding Snow Leopard. Attached hereto as Exhibit 11 is a true and correct copy of excerpts from the August 21, 2009 individual deposition of Greg Christie where he testified in response to a theoretical question regarding Snow Leopard. 9. Attached hereto as Exhibit 12 is a true and correct copy of the Software License

Agreement for Mac OS X Leopard. Attached as Exhibit 13 is a true and correct copy of the Software License Agreement for Mac OS X Snow Leopard. Both license agreements restrict the use of Mac OS X to Apple computers. The Software License Agreement for Mac OS X Leopard states: 2. Permitted License Uses and Restrictions. ... This license allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so. (Emphasis added.)
DECLARATION OF MEHRNAZ BOROUMAND SMITH IN SUPPORT OF APPLE'S MOTION TO DISMISS OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES, CASE NO. CV 08-03251 WHA

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The Software License Agreement for Mac OS X Snow Leopard states: 2. Permitted License Uses and Restrictions. ... Subject to the terms and conditions of this License, unless you have purchased a family pack or Upgrade license for the Apple Software, you are granted a limited nonexclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded-computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-branded computer, or to enable others to do so. (Emphasis added.) 10. Attached hereto as Exhibit 14 is a true and correct copy of excerpts from the transcript

of the August 26, 2009 individual deposition of Rodolfo Pedraza, Psystar's co-founder and CEO. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on September 11, 2009, at San Francisco, California.

/s/ Mehrnaz Boroumand Smith Mehrnaz Boroumand Smith
62211708 v1

DECLARATION OF MEHRNAZ BOROUMAND SMITH IN SUPPORT OF APPLE'S MOTION TO DISMISS OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES, CASE NO. CV 08-03251 WHA

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