Mac clone maker's lawyer denies spilling Apple secrets
However, K.A.D. Camera, of the Houston, Texas law firm Camera & Shipley LLP and Psystar's chief counsel, did acknowledge that he approved a "circus day" at Psystar's headquarters last month as part of a public relations strategy to spin the case its way in the media.
In a response filed with a California federal court Sept. 2, Camera answered allegations that he disclosed case secrets to Charles Nesson, the William F. Weld Professor at Law at Harvard Law School, and the founder of the Berkman Center for Internet & Society. Nesson was Camera's tort professor when the latter was at Harvard, Camera said.
"The accusation that I have somehow violated the protective order is nothing more than an attempt to distract this Court from what is at issue in this round of supplemental briefing -- namely, Apple's complete failure to provide testimony from a corporate representative on damages," Camera said in the court filing last Wednesday.
In late July, Nesson posted on his blog a copy of an e-mail exchange between Camera and Rudy Pedraza, Psystar's CEO and co-founder. Camera had copied Nesson on his reply to Pedraza.
"I've also been thinking about the upcoming visit from Apple during depo[sition] week (which in my opinion is akin to letting Terrorists visit the Pentagon)," said Pedraza in his message to Camera on July 23. "Although the idea makes me uneasy, I figure that if we let them in, we might has well have an *event* for the public the same day showcasing our products and letting customers touch and feel them first hand. How do you feel about that?" Pedraza asked.
"The theme of this day would be something like 'The circus comes to town,' with everyone knowing Apple was also coming and at the same time making the public aware of how ridiculous Apple is behaving," continued Pedraza. "Of course, the key to pulling this off is planning, so we would need to get the visit date nailed down ASAP to ensure we get good media coverage."
Camera liked the scheme. "I also like the circus idea," he said in his reply to Pedraza later that day. "We need to make sure that our circus day doesn't vary in any material way from how we do business ordinarily, other than that lots of people plus Apple are also roaming around the office."
Psystar did extend an invitation to the public to "come and show your support" in an Aug. 8 entry on the company's blog. In that entry, titled, "The Circus Comes To Town", Psystar said Apple officials would visit its facility on Sunday, Aug 9. "They will observe the building process from start to finish, including the installation of OS X on our machines," an unidentified Psystar employee wrote. "We believe the only thing they will discover is what we have been open about from the start, and of course the scorching Florida heat."
Apple used the copying of the Pedraza-Camera exchange to Nesson to accuse Camera and Psystar of communicating "details of this case to individuals not bound by the protective order and thereby the public at large," Apple said in a Sept. 2 filing with U.S. District Court Judge William Alsup. The filing argued that Apple should not have to disclose its profit margins to Psystar, the latest bone of contention between the two companies, which have been locked in a legal fight for over a year.
"Given the actions of Psystar and its counsel, and their waiver of the confidentiality of Psystar's own privileged communications in an effort to drum up publicity, Apple's fear of disclosing its highly confidential information is genuine and well-founded," Apple's lawyers said.
Camera defended Psystar's right to take the case to the court of public opinion. "There is no secret about the fact that since our firm's engagement, a part of Psystar's strategy has been to engage with the press and attempt to clear up some of the very negative and, in our view, mistaken coverage that has appeared about Psystar's business and this litigation," Camera said in his response to the judge. "Engaging with the press in this way is Psystar's right, both under the protective order and as a constitutional matter."
He also took a shot at Apple's attempt to quash public discussion of the case, which revolves around Psystar's use of Apple's Mac OS X operating system on the Intel-based generic computers it sells that are able to run the California company's Leopard OS.
"Apple has attempted to draw a veil of secrecy over this litigation and over the conduct at issue in this litigation that, in my view, goes well beyond what is warranted," Camera told Alsup. "That is why so many documents of interest to the computer industry have had to be filed under seal and made available only in heavily redacted form, despite the widespread interest in the case among members of the public and the media that a simple Google search reveals."
Psystar's and Apple's filings were related to a dispute over Psystar charges that Apple's senior marketing executive, Philip Schiller, was "unprepared" and "unwilling to testify" during a deposition last month. Psystar demanded that Alsup force Apple, and Schiller, to schedule another deposition, and to reveal profits margins on its Mac line.
Apple and Psystar have been waging legal warfare in federal court since July 2008, when Apple sued Psystar over copyright infringement and software licensing charges.
Two weeks ago, Psystar sued Apple for a second time -- its first countersuit was tossed out by Alsup last November -- this time in a Florida court where Psystar charged Apple with illegally tying the new Snow Leopard operating system to its hardware. Since then, Psystar has started selling systems with Snow Leopard pre-installed.
In turn, Apple has argued that the two cases are so similar that either they should be consolidated, or that the newest lawsuit should also be dismissed.
The California case is slated to go to jury trial on Jan. 11.