As per the agreed extension between the parties, Psystar filed its Opening Brief with the Ninth Circuit yesterday. However, the entire thing was filed under seal. Here is the actual filing including the parameters of the Protective Order. Apple's response is due June 16, 2010, but as per a letter from Attorney Camara included with the filing, Psystar would not oppose a reciprocal extension if Apple should require one. At this point, it is unknown how much of this case will actually be available for public review, but I shall stay on top of it and report back. I did find the following section of the Stipulated Protective Order of general interest as to the agreement of the parties dealing with the production of Software Code:
10. Disclosure and review of Software Code shall be restricted in accordance with the following provisions and paragraphs 11 and 12:
(a) Software Code that is produced by Psystar Corporation, if any, shall be made available for inspection in electronic format at the Palo Alto office of its outside counsel, Carr & Ferrell LLP, or at any other location mutually agreed upon by the parties. SoftwareCode that is produced by Apple Inc., if any, shall be made available for inspection in electronic format at the San Francisco office of its outside counsel, Townsend and Townsend and Crew LLP, or at any other location mutually agreed upon by the parties. Prior to the first inspection of any requested piece of Software Code, the requesting party shall provide thirty (30) calendar days notice of the Software Code that it wishes to inspect. The requesting party shall provide three (3) business days notice prior to any additional inspections.
(b) A party producing Software Code that is designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be permitted to give written notice to the receiving party that the receiving party must conduct its inspection and review of such Software Code in accordance with any or all of the following provisions:
(i) All Software Code shall be made available by the producing party to the receiving party’s outside counsel and/or experts in a private room, on a secured computer without access of any kind to the Internet or any other computer over a network, as necessary and appropriate to prevent and protect against any unauthorized copying, transmission, removal, or other transfer of any Software Code outside or away from the computer on which the Software Code is provided for inspection (the “Software Code Computer”). The producing party must produce Software Code in the form in which it is kept in the ordinary course of the producing party’s business. In particular, if the producing party has any copy of Software Code in computer- searchable format, the producing party will load such searchable Software Code on the Software Code Computer. In addition, the producing party shall install tools that are sufficient for viewing and searching the Software Code on the platform produced if such tools exist and are presently used in the ordinary course of the producing party’s business. The receiving party’s outside counsel and/or experts may request that additional software tools for viewing and searching Software Code (commercial or proprietary) be installed on the Software Code Computer for the receiving party to perform its review of the Software Code. In such an instance, the receiving party must provide the producing party with the CD or DVD containing such licensed softwaretool(s) at least five (5) business days in advance of the date upon which the receiving party wishes to have the additional software tools available for use on the Software Code Computer. The receiving party’s outside counsel and/or experts may create a back-up copy of the Software Code on the Software Code Computer. The receiving party may use the searching tools to annotate and number the lines of the back-up copy of the Software Code. The back-up copy will remain on the Software Code Computer and shall otherwise be subject to all of the provisions of this Protective Order governing Software Code.
(ii) The receiving party’s outside counsel and/or experts shall be entitled to take notes relating to the Software Code but may not copy the Software Code into the notes. Any attempt to do so shall constitute a material breach of the Protective Order. No copies of all or any portion of the Software Code may leave the room in which the Software Code is inspected except as otherwise provided herein. Further, no other written or electronic record of the Software Code is permitted except as otherwise provided herein. 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 receiving party may print portions of the Software Code only when reasonably necessary to facilitate the receiving party’s preparation of the case, including when reasonably necessary to prepare any filing with the Court or to serve any pleadings or other papers on any other party; to prepare internal work product materials; or to prepare other necessary case materials such as testifying expert reports, consulting expert written analyses, and related drafts and correspondences. The receiving party shall print only such portions as are reasonably necessary for the purposes for which any part of the Software Code is printed at the time. The printed pages shall constitute part of the Software Code produced by the producing party in this action. Upon printing any such portions of Software Code, the printed pages shall be collected by the producing party. The producing party shall Bates number and label “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” any pages printed by thereceiving party. The producing party shall then provide one copy set of such pages to the receiving party within five (5) business days. Except as otherwise provided herein, the producing party may not videotape or otherwise monitor review of code by the requesting party.
(iii) A list of names of persons who will view the Software Code will be provided to the producing party in conjunction with any written (including email) notice requesting inspection. All persons viewing Software Code shall, each day they view Software Code, (a) each sign a log including the names of persons who enter the locked room to view the Software Code; (b) when each person entered the room; and (c) when each person departed the room. A copy of the log must be available for inspection by the producing party at the producing party’s request.
(iv) Unless otherwise agreed in advance by the parties in writing, following each day on which inspection is done under this Protective Order, the receiving party’s outside counsel and/or experts shall remove all notes, documents, laptops, and all other materials from the room that may contain work product and/or attorney-client privileged information except for the backup copy of the Software Code, which shall remain on the Software Code Computer. The backup copy of the Software Code shall be considered the receiving party’s attorney work product. The producing party shall not be responsible for any other items left in the room following each inspection session.
(v) Other than as provided in subsections (b)(i) through (b)(iii) above, the receiving party will not copy, remove, or otherwise transfer any Software Code from the Software Code Computer including, without limitation, copying, removing, or transferring the Software Code onto any other computers or peripheral equipment. The receiving party will not transmit any Software Code in any way from the producing party’s facilities or the offices of its outside counsel.
(vi) The receiving party’s Counsel of Record may make no more than ten (10) copies of any portions of the Software Code received from a producing partypursuant to this Paragraph, not including copies attached to Court filings or used at depositions. The receiving party’s Counsel of Record shall maintain a log of all paper copies of the Software Code received from a producing party that are delivered by the receiving party to any qualified person under this Protective Order. The log shall include the names of the reviewers and/or recipients of paper copies and locations where the paper copies are stored. A copy of the log must be made available by the receiving party for inspection by the producing party at the producing party’s request.
(vii) The receiving party’s Counsel of Record and any person receiving a copy of any Software Code shall maintain and store any paper copies of the Software Code at their offices in a manner that prevents duplication of or unauthorized access to the Software Code, including, without limitation, storing the Software Code in a locked room or cabinet at all times when it is not in use.
(viii) AllpapercopiesofSoftwareCodeshallbesecurelydestroyedinatimely manner if they are no longer in use (e.g., at the conclusion of a deposition). Copies of Software Code that are marked as deposition exhibits shall not be provided to the Court Reporter or attached to deposition transcripts; rather, the deposition record will identify the exhibit by its production numbers.
(ix) Except as provided in this sub-paragraph, absent express written permission from the producing party, the receiving party may not create electronic images, or any other images, or make electronic copies, of the Software Code from any paper copy of Software Code for use in any manner (including by way of example only, the receiving party may not scan the Software Code to a PDF or photograph the code). Images or copies of Software Code shall not be included in correspondence between the parties (references to production numbers shall be used instead), and shall be omitted from pleadings and other papers whenever possible. If a party reasonably believes that it needs to submit a portion of Software Code as part of a filing with the Court, the Software Code shall be filed under seal pursuant to the Civil Local Rule 79- 5 of the Northern District of California. In no case, however, may a Party submit moreSoftware Code as part of a filing with the Court than is necessary to argue the precise point that the Software Code supports, and any Software Code that is included on the pages submitted but which is not required to argue the precise point that the Software Code supports shall be redacted. The Court filing or other materials containing any portion of Software Code (paper or electronic) shall at all times be limited solely to individuals who are expressly authorized to view Software Code under the provisions of this Order. The receiving party shall maintain a log of all such electronic copies of any portion of Software Code in its possession or in the possession of its retained consultants, including the names of the reviewers and/or recipients of any such electronic copies, and the locations where the electronic copies are stored. A copy of the log must be made available for inspection by the producing party at the producing party’s request. Additionally, any such electronic copies must be labeled “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as provided for in this Protective Order.