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Friday, August 21, 2009, 09:25 am PT (12:25 pm ET)

Psystar claims Apple exec "unprepared" for testimony

In the latest court filings from the ongoing Apple lawsuit against Psystar, the clone Mac maker accuses Apple executive Phil Schiller of being "unprepared" for his deposition, while the Cupertino, Calif., company seeks to keep its profit margins private.

Last week, Psystar, via its official blog, boasted that it would give Apple officials "a taste of their own medicine," and provided a list of executives who would be deposed. Included was a deposition with Apple's senior vice president of Worldwide Product Marketing, Phil Schiller, scheduled for Aug. 14.

Psystar's deposition of Schiller apparently did not go as the defendant had hoped it would, as the company filed a complaint this week alleging the Apple executive was "wholly unprepared and unwilling to testify" about injuries his company claims to have suffered. Apple has alleged that Psystar's knock-off PCs install Mac OS X by circumventing the software's copy protection and violate the Digital Millennium Copyright Act. According to Psystar's filing, from counsel David Welker, Schiller did not answer questions asked during the deposition. The heavily-redacted document does not include descriptions of the events.

"Apple's furnishing a witness on injury who was wholly unprepared to testify about that subject is a discovery violation that relates to a core issue in this case, the harm, if any, that Apple suffered as a result of Psystar's conduct," Psystar's filing reads. "Psystar respectfully requests that this Court (1) order Apple to properly prepare Mr. Schiller for his deposition as a corporate representative on injury, (2) require that Mr. Schiller appear for a continuation of his deposition in Houston, at the offices of Psystar's lead counsel, within the next fourteen days, and (3) pay Psystar's attorneys' fees associated with Mr. Schiller's deposition, this brief, and any subsequent proceedings."

Apple responded by filing a document in which it said that Psystar's deposition of Schiller was "nothing more than an effort to harass one of Apple's senior executives and prematurely seek expert testimony." It states that the letter from Psystar leaves out key facts, and asks that the request to re-depose Schiller be denied.

"Despite Apple's objections, Psystar's counsel sought testimony on the quantification of damages — the subject of expert testimony — rather than the injury suffered by Apple..." the filing from the Townsend Law Firm reads. "Mr. Schiller was fully prepared to discuss the non-quantifiable injury to Apple but Psystar's counsel chose to not ask those questions and terminated the deposition instead."

In another twist, Apple has told the court it will not seek recovery of lost profits from Psystar. The decision came after Apple allegedly reviewed the "still-incomplete financial records" provided by the company, which recently emerged from bankruptcy.

It goes on to say that Apple's internal profit margin data is "closely guarded," and the risk of that information being leaked is not worth the lost profits it might be able to obtain from Psystar. As a result, Apple is no longer seeking those lost profits for recovery in the suit.

"In light of Apple's decision not to seek lost profits and Psystar's stated intent to disclose Apple's confidential information, Apple now seeks a protective order specifically precluding the discovery by Psystar of Apple's non-public profit margins on the sale of individual products or product lines," Apple's filing states. "Indeed, Apple believes that discovery of its non-public financial information should be limited to revenues, R&D and advertising costs related to Mac computers and Mac OS X."

Earlier this month, Apple sent its own laywers to Psystar's Florida headquarters for discovery in the trial, scheduled to start in 2010.