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| S2 Objects to Subpoena, Admits It Met With Microsoft |
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Tuesday, April 20 2004 @ 07:03 PM EDT
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S2 Strategic Consulting has filed Objections to Subpoena Duces Tecum Directed to S2 Strategic Consulting, LLC, and Response. In it they raise a number of reasons they feel they shouldn't have to cough up what IBM has asked them to produce, including claiming the protection of a confidentiality agreement with SCO. They assert that some of the info IBM asked them to produce is confidential and/or proprietary, "which S2 protects from its competitors." But they say they will produce such documents under a protective order. However, what they do acknowledge is dynamite.
Here is the meat from Responses 5 and 6:
5. . . .Without waiver of those objections, S2 responds that it has in its possession, custody and control documents that entail communications between it and Microsoft, that relate to parties in this litigation, that will be produced only in accord with paragraph 10 of the SPO. S2's documents pertaining to its own, unrelated, confidential and proprietary business dealings with Microsoft will not be produced.
6. . . . Without waiver of those objections, S2 responds that it has in its possession, custody and control documents that concern meetings between it and Microsoft, that relate to parties in this litigation, that will be produced only in accord with paragraph 10 of the SPO. So, once again, IBM is on the ball, and it's all going to come out in the wash. IBM asked S2 to produce: - all documents related to the lawsuit
- all documents concerning any communications with or meetings with SCO and/or Canopy
- all documents concerning any agreements or understandings (written or oral) with or relating to SCO and/or Canopy
- all documents concerning any communications with Microsoft
- all documents concerning any meetings with Microsoft
- all documents concerning any meetings with BayStar
- all documents concerning any communications with RBC
- and any documents concerning any meetings with RBC
- all documents concerning any services performed for SCO and/or Canopy including but not limited to all services performed pursuant to the contract dated July 1, 2003 between SCO Operating, Inc. and S2.
S2 does not acknowledge any documents related to Canopy. I can't explain two things: there is a duplicate response to a request for all documents concerning all meetings with BayStar and no question about any communications with BayStar. That could be because IBM goofed, or because S2 goofed when replying. Also, I have no idea yet what "SCO Operating, Inc." is. I went to both Utah and Delaware's corporate name reservations sites, to see if I could reserve the name or if it was already taken, and the name is available in both states. So this could be another mistake, or someone playing games, or it could be a new name that isn't in the databank yet in whatever state it might have been registered in. For a definition of subpoena duces tecum, click on the law.com link and then on "S" and then scroll down. Or just click on this link. It's the kind of subpoena where they seek documents, looking for useful evidence: "It is the common way to obtain potentially useful evidence, such as documents and business records, in the possession of a third party. . . . Failure to respond to a subpena duces tecum may subject the party served with the subpena to punishment for contempt of court for disobeying a court order." The Stipulated Protective Order's Number 10 reads like this: "10. Confidentiality Interests of Third Parties: A party may refuse to produce otherwise discoverable information pursuant to a subpoena, deposition question, or discovery request, if the party is under an obligation to a third party not to disclose such information. In such an event, the objecting party shall:
"A. Promptly provide to the person or entity whose confidentiality interests are implicated (i) notice of its intention to disclose the information in question and (ii) a copy of this Order; and
"B. Within thirty (30) business days of the notice sent pursuant to (A), produce the requested information in question in compliance with this Order, unless the request is otherwise objectionable, or the person or entity whose confidentiality interests are implicated moves for or obtains a protective order precluding such disclosure from this Court within that time." This indicates, in section B, that SCO has 30 days to object to this material being produced, after which, if it fails to do so, S2 will have to produce it, unless any of its other objections stick. Of course, IBM will have something to say about all this too, I'm sure.
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| Authored by: PJ on Tuesday, April 20 2004 @ 07:37 PM EDT |
| Please put all corrections in this thread, so I can find them quickly. Thanks. [ Reply to This | # ]
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| Authored by: mrsam on Tuesday, April 20 2004 @ 07:42 PM EDT |
S2's main objection is that they want a protective order in place before they'll
cough anything up.
They'll probably get that.
There's also some claptrap about them objecting on the basis that they have to
make a "legal conclusion" whether or not some particular document is
responsive to the discovery request. It's patently obvious -- even to a
non-lawyer type -- that they pulled this argument out of their hindquarters.
If this drivel is actually a valid legal argument it must mean that nobody ever
needs to respond to any subpoena, because doing so will require making a
"legal conclusion" as to the responsiveness of each potential
document.
S2 really doesn't want to give anything up, that's clear. But they'll have to,
and they know it. The most they could hope for (and they'll probably get it) is
to have a protective order in place.
Of course, after getting the documents, IBM is free to object to the protective
order. Heh heh...
[ Reply to This | # ]
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| Authored by: brenda banks on Tuesday, April 20 2004 @ 07:46 PM EDT |
we can hope can't we?
hehehehe
Go IBM Go!!!
---
br3n
irc.fdfnet.net #groklaw
"sco's proof of one million lines of code are just as believable as the
raelians proof of the cloned baby"[ Reply to This | # ]
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- Public opinion - Authored by: Anonymous on Tuesday, April 20 2004 @ 08:17 PM EDT
- Not Likely - Authored by: Anonymous on Tuesday, April 20 2004 @ 08:25 PM EDT
- Public opinion - Authored by: dkpatrick on Tuesday, April 20 2004 @ 08:32 PM EDT
- Public opinion - Authored by: Hykin on Tuesday, April 20 2004 @ 08:39 PM EDT
- Public opinion - Authored by: Anonymous on Tuesday, April 20 2004 @ 09:02 PM EDT
- Public opinion - Authored by: Anonymous on Wednesday, April 21 2004 @ 05:17 AM EDT
- 15 years ago... - Authored by: Ruidh on Tuesday, April 20 2004 @ 09:04 PM EDT
- Public opinion - Authored by: greybeard on Tuesday, April 20 2004 @ 10:13 PM EDT
- Public opinion - Authored by: Anonymous on Wednesday, April 21 2004 @ 12:03 AM EDT
- The day the Earth stood still.... - Authored by: MikeA on Wednesday, April 21 2004 @ 02:24 AM EDT
- Public opinion - Authored by: Arker on Wednesday, April 21 2004 @ 09:47 PM EDT
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| Authored by: mobrien_12 on Tuesday, April 20 2004 @ 07:53 PM EDT |
| Was S2 like BayStar? I can't remember. [ Reply to This | # ]
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| Authored by: dmscvc123 on Tuesday, April 20 2004 @ 08:00 PM EDT |
Actually I think they meant SCO Operations Inc., which searching Utah corporate
records shows "SCO Operations" to be at the address for SCO's
corporate headquarters. I don't know what the deal is with that since there's
also the SCO Group, which is a separately registered corporation at the same
address.[ Reply to This | # ]
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| Authored by: moopster on Tuesday, April 20 2004 @ 08:02 PM EDT |
The SCO case will go nowhere…. SCO will file bankruptcy before this case reaches
any resolution.
IBM needs to go scorched earth on this. They need to hunt down and exposed every
detail of this Faustian deal. I believe it is in their interest to make
companies feel pain for doing business like this.
IBM may go straight for Microsoft’s jugular... With all of the documents that
could possibly be exposed they may be able to demonstrate that Microsoft has
hurt their Linux efforts to the tune of hundreds of millions of dollars.
I think a lot of consumers/courts would be happy to see Microsoft shedd a few
more billion in lawsuits!
** *** ***** ******* ***********
[ Reply to This | # ]
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| Authored by: the_flatlander on Tuesday, April 20 2004 @ 08:05 PM EDT |
Were this a criminal case S2 would look, to me, really good for a charge of
conspiracy.
Is there a rule against conspiring to commit trade liable?
Can you be an accessory, before or after the fact, to liable and/or slander?
IANAL
The Flatlander
So, ah, it looks as if Darl's little protection racket isn't going to make it to
Memorial Day. LOL
[ Reply to This | # ]
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- Co-Conspirators - Authored by: Anonymous on Wednesday, April 21 2004 @ 10:41 AM EDT
- Co-Conspirators - Authored by: Anonymous on Wednesday, April 21 2004 @ 11:33 AM EDT
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| Authored by: pogson on Tuesday, April 20 2004 @ 08:10 PM EDT |
PJ wrote:
I can't explain two things: there is a duplicate response
to a request for all documents concerning all meetings with BayStar and no
question about any communications with BayStar. That could be because IBM
goofed, or because S2 goofed when replying.
We have seen IBM has
a very low error rate even on huge documents. The subpoena was pretty short and
to the point. I doubt IBM goofed. The part about having lots of business with
the purveyor of that other OS that is unrelated to the litigants is interesting.
It could be relevant to the case if there is a pattern of behaviour
involving MSFT and its opposition. I expect IBM knows something about
this behaviour causing IBM to ask about MSFT. The nazgul are very reserved, but
they might crack a smile if they can find evidence that this case is not about
damage to SCOG's business, but about keeping MSFT's opponents at
bay... ---
http://www.skyweb.ca/~alicia/ , my homepage, an eclectic
survey of topics: berries, mushrooms, teaching in N. Canada, Linux, firearms and
hunting... [ Reply to This | # ]
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| Authored by: Xenographic on Tuesday, April 20 2004 @ 08:11 PM EDT |
Wow, they sure have an odd choice of lawyers here :]
That, or I just
see SCO everywhere these days.
Still, what are the odds that S2 would
hire someone named Scofield? *boggle*[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 20 2004 @ 08:14 PM EDT |
| MSS [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 20 2004 @ 08:18 PM EDT |
There is a regime of questionning in which one side deposes the secretaries and
clerical staff about documents. They ask them if they changed, destroyed, hid,
misfiled any documents, or told to do so, and then about documents in
particular. This leads to great tension in the office. Witness does not know
what boss or coworkes said. They don't know if the inquisitor already knows.
The truth is out there. It just has to be harvested. You can't get a whole
staff to lie, or at least tell the same lie as others, or lie the same way
twice. As is always the case, the coverup will do more to harm your defense
than the original offense.
This is desperate delay on S2's part. They have been outed. They have the
goods, but they are not a target. They will be crushed in the struggle between
the behemoths. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 20 2004 @ 08:28 PM EDT |
Looks like Mr. Anderer is about to put in a lot more time for those fees he
apparently got, in the Halloween X. Plus Novell has got to be in line to find
out what SCOG owes them in royalties (the APA angle). Meanwhile, we may have a
hint here why M$ has been freeing up lawyers by settling suits; they may be
thinking they'll need them for the fallout from S2 revelations.
Just when you thought you knew what was happening, up pops another
jack-in-the-box.
[ Reply to This | # ]
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| Authored by: the_flatlander on Tuesday, April 20 2004 @ 08:33 PM EDT |
PJ,
I don't understand why S2 cites the SPO. They aren't party to the lawsuit.
They are an example of a third party, referenced by the Protective order, no?
So didn't the subpoena itself serve as all the notification *they* need that the
information is about to get released to one of the parties in the lawsuit?
Certainly they don't need to tell the SCOundrels that IBM wants the information,
the SCOundrels already knew that. I don't understand.
My first guess is that S2's lawyers are no brighter than Kevin McBride, but
inasmuch as IANAL, I could be wrong. (Probably am.)
The Flatlander
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 20 2004 @ 08:34 PM EDT |
What is the relationship between the S2 info and BayStar saying they were lied
to????[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 20 2004 @ 08:41 PM EDT |
| "I have no recollection of that, Senator." [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 20 2004 @ 09:16 PM EDT |
Wasn't there a stockholders meeting today? It would seem likely that at
least one person who posts here would have attended, if just for the
entertainment. Any reports on what happened there (Provo) today? [ Reply to This | # ]
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| Authored by: stevem on Tuesday, April 20 2004 @ 09:59 PM EDT |
I suspect that with such orders going out, IBM is in their own subtle way making
it quite clear to anyone else who would play such games:
"That we will do everything! to stop this activity from continuing".
As we have seen, it's one thing for TSG to start a suit, but there are many
other companies being pulled into the vortex as well.
I for one would be very reluctant to support any company that had an obvious
legal anti-FOSS/Linux "idea". Would be all too easy to incur all sorts
of additional, non-recoverable, costs. Mainly thru answering all the legal
argy-bargy goings on.
The end result? SCO Mark2 may want to start a suit, but would find it very
difficult to get any support from needed third parties to go forward.
Oh a very sweet long term defence!
- SteveM
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| Authored by: danamania on Tuesday, April 20 2004 @ 10:42 PM EDT |
After the initial fuss over the original Anderer email died down, it feels now a
little like a scene from The Matrix trilogy. Ten thousand IBM lawyers, and one
Mr Anderer.
"Welcome back, Mr.Anderer... we missed you"
*cue large legal massacre*
---
--
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 20 2004 @ 10:58 PM EDT |
Is that really just a coincidence? Maybe it's my CS paranoia taking over, but if
the judge dismisses these objections, IBM may have just struck it lucky.
Why, if they were performing services for SCO all this time, did they enter into
this "ostensible confidentiality agreement" two months after IBM sent
its first interrogatory. okashi na... hmmm
** nefertiti
Oh yeah according to the timeline:
16-Sep-03; IBM; IBM files certificate of service regarding 2nd set of
Interrogatories and 2nd Request for Production of Documents[ Reply to This | # ]
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| Authored by: glarepate on Wednesday, April 21 2004 @ 01:07 AM EDT |
If they'll SPAM the Yahoo Finance message boards they'll chase any ambulance
they see or are even told about. We could send them to kernel.org to look up
potential clients who are listed in the source code.... But why do that to
perfectly nice programmers, especially now, thanks to SCO, that OSRM exists and
OSDL has an indemnification policy?[ Reply to This | # ]
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| Authored by: glarepate on Wednesday, April 21 2004 @ 01:13 AM EDT |
Somehow my reply to Hmmm got onto the main branch of discussion where it appears
completely out of context and disconnected. 'pologies....
OF@P (Old "fellow" at play)[ Reply to This | # ]
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| Authored by: rand on Wednesday, April 21 2004 @ 01:20 AM EDT |
| This might
be the contract referred to between SCOO (?) and S2.
INDEPENDENT
CONTRACTOR AGREEMENT
Between
SCO OPERATIONS, INC.
And
S2
Strategic Consulting, LLC ---
carpe ductum -- "Grab the tape" (IANAL and
so forth and so on) [ Reply to This | # ]
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- So now we have... - Authored by: Anonymous on Wednesday, April 21 2004 @ 11:53 AM EDT
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| Authored by: Anonymous on Wednesday, April 21 2004 @ 01:23 AM EDT |
Well...well...well. Now if the DOJ had any real morality, they'd immediately
subpoena S2 for ALL documents of communication between itself and Microsoft on
grounds of suspected anti competitiveness and monopolistic behaviour. Take said
documents into federal custody immediately pending the possibility of documents
being deliberately destroyed or altered by 3rd parties. This is the only way to
nab Microsoft. This would prove beyond a doubt that Microsoft is in no way
abiding by the DOJs earlier ruling, and is deliberately interfering in illegal
ways and methods with competing business, in order to enhance their own
competitiveness and monopoly. If this is the case, and it's proven i'd suggest
a truly *massive* fine given their previous track record. Say...us $80 billion.
That's a fair sum. Until something severe like this happens to Microsoft, and
actually sticks they will continue along the same path of destroying
competition.
Dave[ Reply to This | # ]
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| Authored by: Juggler9 on Wednesday, April 21 2004 @ 01:32 AM EDT |
Could this be why Microsoft is settling up with everybody and buying off
current/pending lawsuits and calling the lawyers home?
Circling the wagons? Or planning an onslaught?
This could be a very interesting summer.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 21 2004 @ 11:00 AM EDT |
s2 set up the BayStar/RBC investment, but has no documents relating to them.
Only documents relating to Microsoft...[ Reply to This | # ]
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| Authored by: icebarron on Wednesday, April 21 2004 @ 11:37 AM EDT |
This last couple of filings were what I had expected! I have a really hard
gut feeling that some very damaging emails are about to be unleashed somewhere
on the net very shortly. Would anyone care to take a guess just who's trying to
hide behind their flunky front men on the financial side of the S2/Baystar/RBC
connections. Old uncle willy is a sly son of a...
Dan
TRUSTED
COMPUTING INIT...,[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 21 2004 @ 11:43 AM EDT |
S2 says it has no documents relating to Baystar?
Hello!?!?!? Ahem. From the HalloweenX document, the memo Eric Raymond leak that
1st brought S2's name into the picture:
"2) Baystar is easy as they were just a Microsoft referral and would be
2%"
I would say that if S2 is requiring payment from SCO for referral of the
BayStart investment, IBM has more than a reasonable basis to seek any
information S2 has on this subject and I can't believe S2 has NO documentation
on this if they helped broker the deal, which they did if they are getting paid
for it.
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| Authored by: Night Flyer on Wednesday, April 21 2004 @ 09:47 PM EDT |
In and after the lawsuit between Eastman Kodak and Polaroid, we were given
several specific instructions:
1.) If someone sends a note to 10 people, all copies are often asked for in
discovery. Suppose one of the 10 retrieved copies has notes scribbled in the
margin... this edited version becomes an official document. (We were told this
was the case even if there was no evidence that it was distributed to anyone.)
Supposing someone writes "I told them not to do this", or "this
isn't what I remember", or "go get 'em boss", this leads to
further subpoenas and discovery requests.
2.) We were instructed to NEVER make notes on memos.
3.) We were instructed to skinny our files in the legal minimum time (my memory
is fading, maybe it was 5 years). This means that only contracts and certain
things were allowed to be kept in storage. (This freed up quite a bit of space,
and suddenly there were thousands of surplus file cabinets.)
4.) Apparently some of the appended comments were quite damning and caused a
number of upper managers considerable embarrassment. Some of these people
disappeared from the corporate scene soon after.
[ Reply to This | # ]
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