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Thursday, February 26, 2009, 09:00 am PT (12:00 pm ET)

Apple, Psystar seek protective order in preparation for trial

Apple and unauthorized Mac clone maker Psystar have agreed to restrict access to certain trade secrets and software code in an effort to avoid any leaks to their respective competitors as they near the discovery process that will precede a formal trial.

Filed yesterday, the 18-page order will bound both parties to an agreement requiring all "personal, proprietary, or confidential information or trade secrets" be labeled with "CONFIDENTIAL" and/or "CONFIDENTIAL - ATTORNEYS' EYES ONLY". The order is pending approved by Northern District of California Judge William Alsup.

The material in question could be documents, software code, interrogatories, deposition testimony, and other information found during discovery, and it is "not intended to govern" the trial. Presumably, Judge Alsup will establish guidelines of protection during that phase of the litigation.

The protected materials can only be used for prosecuting or defending the legal action, potential appeals included.

"If any party or third party believes that disclosure of Discovery Materials would affect its competitive position, security interests, intellectual properties, or technological developments in an adverse manner," the order states, "that party or third party may designate the Discovery Materials as 'CONFIDENTIAL – ATTORNEYS' EYES ONLY.'"

The order continues, "The designation...shall be limited to Discovery Materials that the disclosing part in good faith believes contain extremely sensitive confidential information, the disclosure of which would create a substantial risk of serious competitive injury."

Either side will have an opportunity to review the résumés of their adversary's expert witnesses before they view the material and object at their discretion to any individual's participation. Once approved, those experts will be barred from consulting with a competitor (giving advice, analysis, or recommendations) for a full year after the trial – or appeal – has concluded. Each will sign an agreement attesting to those conditions before they participate.

Special provisions are in place for the discovery of software code produced by Psystar or Apple. Each side must make a secured computer "without access of any kind to the Internet or...network" available in a secure room at the law office of their attorneys. Every person who enters and leaves the room must sign and date a log, and no written or electronic record can be made of the software code, with one exception.

"The producing party shall make available a laser printer with commercially reasonable printing speeds for on-site printing during inspection of the Software Code," the order says. Printing is allowed only when "reasonably necessary" for case preparation, and only the portions needed can be printed. Those documents must be returned to the producing party at the end of all legal proceedings.

Apple, of course, has much more to lose if its software code is made public, as it would clear several hurdles for individuals who want to run Mac OS X on non-Apple hardware, putting the obvious competitive disadvantages with other companies aside. Psystar, meanwhile, may have to disclose the code it uses to circumvent the protection Apple uses to institute kernel panics and infinite loops on non-authorized hardware.

Psystar recently amended its complaint in mid-February, repeating its allegations that Apple is misusing its copyright to prevent third-parties from entering the Mac hardware business. Apple first sued last July to halt the cloner from selling its Open Computers with a hacked version of Mac OS X 10.5 Leopard installed. Apple's End User Licensing Agreement forbids the use of its software on non-Apple hardware.

The trial is scheduled for November 9th.