Apple Inc. v. Psystar Corporation

Filing 61

Letter Brief dated May 4, 2009 in response to Plaintiff's Letter Brief Dated April 29, 2009 filed byPsystar Corporation. (Springer, Colby) (Filed on 5/4/2009)

Apple Inc. v. Psystar Corporation

Doc. 61

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WRITER'S DIRECT DIAL & EMAIL C [phone] [e-mail]

ay 4, 2009
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HIA ELECTRONIC FILING onorable William H. Alsup United States District Court 450 Golden Gate Avenue Courtroom 9, 19th Floor San Francisco, CA 94102 R e: Apple Inc. v. Psystar Corporation (Case No. CV 08 03251 WHA) D ear Judge Alsup: A C pple Inc. ("Apple"), through its letter dated April 29, 2009, asserts that Psystar p orporation ("Psystar") has failed to meet its discovery obligations with regard to the a roduction of requested financial information. Apple's assertion is incorrect as Psystar, mstart up company with a continuously changing staff of less than 20 employees, has ade a good faith effort to meet--and has met--all of its obligations to produce responsive documents to Apple. Apple's request for relief should be denied. P b er the agreement of the parties, Psystar has produced documents on a rolling a asis beginning December 5, 2008. Psystar continues to produce documents to Apple on rolling basis in line with latest documents created or received by Psystar in the month prior to production.1 As of the date of this letter, Psystar has produced all responsive f inancial documents in its possession. Psystar continues to--and will continue to-- produce responsive financial documents in line with its monthly rolling production. P systar has also submitted proposed dates to Apple for supplementing deposition testimony on the 30(b)(6) deposition topic related to Psystar s financial information. In that regard, Apple's motion to compel is moot. Apple was informed of t 2his forthcoming production and identification of dates prior to its filing of the April 29, 1 009 letter. Notwithstanding, Apple elected to submit the aforementioned letter to the
m comparison, Apple has produced almost exclusively non responsive documents despite numerous By T eet and confer sessions on the part of Psystar to streamline Apple's production to certain keywords. he documents produced by Apple are generally publicly available documents (e.g., screen shots of Psystar's website) that ignore the scope of Psystar s discovery requests. Absent a January 9, 2009 `p o roduction' of publically available copyright and trademark registrations along with copies of decades ld litigation pleadings, Apple's `production' did not even begin in earnest until April 13, 2009. C

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o ourt. Apple's filing serves no other purpose than to serve as fodder for a blogosphere therwise rabid for new details on this litigation or to incur unnecessary expense on b Tehalf of Psystar. Such a filing, in either case, is inappropriate. he Categories of Alleging Missing Documents A f pple complains that Psystar has not produced P&L, balance, and "other" tinancial statements. As Apple readily admits, Rudy Pedraza, CEO of Psystar, has aestified that P&L and balance statements do not exist. As explained during deposition f nd during meet and confer sessions between counsel, Psystar has not generated any formal monthly/quarterly/yearly profit and loss statements. Psystar did create a inancial statement for certain payment processor vendors, such as Gravity Payments, in order to do business with those entities based on receipts and other information that was e dither on hand or recalled at the time of its creation. Psystar has produced such t ocuments to Apple. Apple has subpoenaed--and received--information from those rhird party entities. Apple's request--regardless of merit--thus seeks to have Psystar p produce or create `from scratch' information already in Apple's possession via a third e arty production. P systar has also produced all of the underlying documentation in its possession, sncluding invoices as well as those related to sales and revenue. Prior to this litigation, i ome documents were lost during Psystar's transition to its current office space. Psystar has, however, diligently retained and produced all documents in its possession r aesponsive to Apple's discovery requests since Psystar retained counsel. Psystar has f lso produced all of the paper invoices, electronic invoices, electronic receipts and other orms of receipts in its possession. P systar has produced the financial projections related to its products that exist and that are in its possession or control. Despite Apple's assumption to the contrary, d rafts of the financial projection document that Psystar created to obtain funding do not exist. The document ultimately sent to possible venture capital investors was a work in progress; Psystar did not print and save a hard copy whenever a change to the d ocument was made. Because Apple wants a document to exist does not make it so. U P nlike Apple, Psystar is a small start up company with limited resources. l systar has, due to Apple's discovery tactics, focused much of those resources on itigation. Most of Psystar's financial transactions ­ including customer receipts ­ occur in electronic form. Psystar does not receive hard copies of its bank statements. Psystar does not unnecessarily create paper documents that exist in electronic form. Psystar has C

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ot created formal monthly/quarterly/yearly profit and loss statements and is just now beginning to aggregate such information based on the same documents and information that Psystar produced to Apple in this litigation. P systar has, however, undeniably met its obligation under the Federal Rules of Civil Procedure and produced all responsive documents in its possession in response to A p pple's discovery requests regarding Psystar's financial information. Psystar has e roduced roughly 12,000 pages of documents in response to Apple's requests ­ roughly w uivalent to the scope of Apple's limited production prior to the filing of this motion, q hich will, unfortunately, be the topic of a forthcoming letter from Psystar to this Court. P systar has also proposed additional dates for the supplemental 30(b)(6) deposition regarding Psystar's financial information. Apple's motion to compel is a nnecessary and should be denied. The production that Apple seeks to compel has u lready been produced to the extent that it exists, and Psystar continues to produce documents on a rolling basis for each successive month. V

Cery truly yours,

Colby B. Springer B. for Counsel for Psystar Corporation Corpo