When it comes to the destroyed evidence, Apple focusses on three pieces of non-Apple and non-Psystar code Apple allegedly found on Psystar production machines - namely, dsmos.kext, AppleDecrypt.kext, and Netkas. However, Psystar alleges that those pieces of code were never part of any Psystar production machine at all. "None of these files have ever formed a part of the Psystar system; have been necessary to run a Psystar computer; or currently exist in any form on Psystar production machines," they state, "Nor has Psystar ever possessed or viewed the source code to dsmos, AppleDecrypt, or Netkas."
Still, the clone maker offers an explanation for why said code could have ended up on certain machines. Even though Psystar makes use of "OpenCojones" to "[facilitate] the decryption by OS X of certain binaries licensed to OS X users", Psystar claims that they have, in the past, "downloaded and evaluated" binary versions of similar tools, more specifically dsmos and AppleDecrypt. However, these last two have never been part of any official Psystar product, but - and here comes the catch - they may have still, accidentally, ended up on master copies of the software Psystar installs, and that's how Apple may have found them.
So, when Apple asked for the source code of the tools Psystar uses, Psystar only produced the code to OpenCojones, and not those of possible other, similar tools. "But Psystar never deleted or failed to produce the source code for dsmos or AppleDecrypt, because Pystar has never possessed or even viewed that source code," the clone maker explains, "The two kernel extensions - dsmos and AppleDecrypt - are widely available on the internet (see Exhibit A) in binary form and can be downloaded by anyone."
An interesting aspect of this story is that even though Psystar denies having used Netkas, the company used to have an open source page which gave credit to Netkas. It is important to note that Psystar was using an old version of Netkas' code, from before he changed the license to not allow commercial usage.
Furthermore, Psystar states that they have not kept copies of every master hard drive image used on Psystar machines; more specifically, a few small changes were made in the 10.5.4 image during its production run, and not every copy was saved properly. As such, they cannot be handed over to Apple. "At no point did Pystar take affirmative action to either destroy or not preserve these intermediate master copies," they explain, "Rather, Psystar innocently failed to initiate new measures to preserve certain of its electronic data." According to Psystar, their previous legal team never advised them to do so.
As Groklaw notes, this is no longer a normal lawsuit. Sadly, Groklaw has to go all black helicoptry by suggesting Microsoft is somehow behind it and that it's all related to SCO.
In any case, this is no longer a simple case, and it doesn't seem like we geeks will get any decent answer out of this case about the idiocy of Apple's - and other companies' - EULAs. Psystar is making a bit of a mess out of all this, and Apple is of course trying to steer the case towards the DMCA and possible copyright infringement.