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AutoZone Interrogatories & Depositions and Two More SCO Attorneys, Etc.

Saturday, October 09 2004 @ 10:17 AM EDT

Here's some AutoZone info, showing AutoZone steps in the discovery process and very aggressive steps, too. First, we have what can best be described as the "Collected Works of SCO v. AutoZone", a 89-page collection of filings in the case, certified by one of SCO's attorneys, including the transcript of the July hearing, some letters, one from SCO to the judge and another, dated September 1, from AutoZone attorney, David J. Stewart, to SCO attorney, David Stone, on page 66, letting Boies Schiller know they wish to depose anyone knowledgeable SCO wishes to provide to be deposed, tentatively scheduled for October 13, on some copyright questions. Like... um... do you actually own any? AutoZone also asks to depose Darl McBride and Chris Sontag, who apparently are being asked to travel to Las Vegas for the depositions some time during the last two weeks of October.

Also in the letter are references to interrogatories AutoZone served on SCO, AutoZone's First Interrogatories, and a note that AutoZone's attorney is trying to contact Jim Greer for available dates for his deposition. Mr. Greer, as you will recall, handled the transfer from Unix to Linux for AutoZone. The list of contents is on page 2. This all happened prior to the September 15 hearing.

Then, on page 68, you find the interrogatories AutoZone served on SCO. The first item on the list is:

1. Identify with specificity each copyrighted work that you allege AutoZone has infringed, including, but not limited to, each of the works identified in Paragraph 2 of SCO's Injunctive Relief Statement. For source code, identify the specific lines of code that you allege AutoZone has infringed. For non-source code, identify the specific lines or sections of the materials that you allege AutoZone has infringed.

Ah, the eternal quest to get a simple answer to the simple question, Exactly what have we infringed? I like their questions number 4-6 quite a lot, too:

4. Describe in detail when and how SCO obtained ownership of the copyright of each work identified in response to Interrogatory No. 1 above.
5. Identify by registration number the United States copyright registration for each copyrighted work identified in response to Interrogatory No. 1 above.
6. Describe with specificity how AutoZone has infringed the copyright in each work identified in response to Interrogatory No. 1 above.

But my all-time favorite interrogatory in the entire SCO saga must be AutoZone's #9:

9. Describe in detail all harm that you are suffering as a result of each alleged act of infringement identified in response to Interrogatory No. 6 above.

If anyone could OCR and transcribe this document, that would be wonderful.

Next, on page 73, we find AutoZone's First Request for Production of Documents served on SCO. It would be nice to have this transcribed too. The first item on the list is a request for a copy of each work identified in their Interrogatories. For computer code, that means they want SCO to provide "copies of the relevant source and object code." They also want all correspondence about the copyrights with any party, including Novell, and copies of the registered copyrights themselves, as well as all documents "including analyses, that evidence or relate to your claims that the works, or relevant portions thereof, that you identified in response to Interrogatory No. 1 of AutoZone's First Interrogatories are subject to protection under the Copyright Act." Does one discern a hint of skepticism as to SCO's ownership of the copyrights allegedly being infringed? They also want to know what expert witnesses SCO intends to call and they ask for all documents, including correspondence, sent to or received from such experts and all documents referenced or relied upon by any such witness.

The next document, which should be transcribed too, is their notice of the first deposition of any knowledgeable SCO person who will be deposed regarding the copyrights, a 30(b)(6) deposition. This is on page 80. Here's what a 30(b)(6) deposition means, under the Federal Rules of Civil Procedure, Rule 30, Depositions Upon Oral Examination:

(6) A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

The list of topics includes the functionality of any source or object code SCO claims is infringed, its creation, how AutoZone infringed them, the dates SCO first learned that AutoZone allegedly was infringing, and note this: the "factual investigation SCO performed in advance of filing this action against AutoZone" and the "harm that SCO is suffering". Whoever SCO wants to send to be deposed on these subjects, they can send.

We also have Judge Jones's Minutes of the Court on AutoZone's Emergency Motion to Stay. The list also includes the cover page only of the hearing transcript on AutoZone's emergency motion in September (the rest is here), and Judge Robert Jones's Order.

SCO v. IBM:

Here's a Motion and Order granting SCO's motion to add two more attorneys from Boies Schiller to the SCO team. The two new pro hac vice lawyers are Edward Normand and Sean Eskovitz. Their assignment, it's been jokingly suggested, is to bring the NoDoze. Actually, Mr. Eskovitz appears to be as serious as a heart attack. He seems to be an appeals court lawyer. Hmm. What might they be thinking? And if you can stand the Flash on the Boies Schiller website, in their profile for him, it says that his "main practice areas include complex commercial litigation and business crimes." Double hmm. It adds:

Before joining Boies, Schiller & Flexner LLP, Mr. Eskovitz served from 1999-2003 as an Assistant United States Attorney for the Southern District of New York. In that capacity, he prosecuted complex criminal cases involving racketeering, financial and bank fraud, tax fraud, money laundering, violent crimes, and narcotics offenses.

Eek. Violent crimes and narcotics offenses. Hopefully it won't come to that.

He was law clerk to the Honorable Paul V. Niemeyer on the United States Court of Appeals for the Fourth Circuit from 1995 to 1996. Martindale-Hubbell's Statement of Practice on Mr. Eskovitz says this about him:

Statement of Practice: Litigation in all Federal and State Courts. Antitrust, Securities, Commercial and Banking Law, Bankruptcy, Criminal, Civil RICO, Appellate Practice, First Amendment and Civil Rights, Libel, Intellectual Property, Professional Liability, Employment, Environmental and Arbitration.

He is a partner at the firm, and here is a bit about his background:

Sean Eskovitz, (Partner) born Santiago, Chile, October 31, 1970; admitted to bar, 1997, New Jersey; 1998, District of Columbia; 1999, New York. Education: University of Pennsylvania (B.A., magna cum laude, 1992); New York University (J.D., magna cum laude, 1995). Order of the Coif. Recipient, New York State Bar Foundation Award in Legal Ethics. Finalist, Orison S. Marden Moot Court Competition. Executive Articles Editor, Annual Survey of American Law. Law Clerk to the Hon. Paul V. Niemeyer, U.S. Court of Appeals for the Fourth Circuit, 1995-1996. Co-Author, with Gerald A. Feffer, "Unsealing Your Client's Fate: Obtaining Preindictment Access to Search Warrant Materials," Business Crimes Bulletin, September 1997. Assistant U.S. Attorney, United States Attorney's Office, Criminal Division, Southern District of New York, 1999-2003. Languages: Spanish. Practice Areas: Litigation; Business Crimes.

While you are on that same page, scroll down and you find this info for Mr. Normand:

Edward J. Normand, (Partner) born Portland, Maine, August 24, 1969; admitted to bar, 1996, New York; 1998, U.S. District Court, Southern District of New York. Education: College of William & Mary (B.A., magna cum laude, 1992); University of Pennsylvania (J.D., 1995). Phi Beta Kappa. Editor-In-Chief, University of Pennsylvania Law Review, 1994-1995. Law Clerk: Honorable Marjorie O. Rendell, U.S. District Court, Eastern District of Pennsylvania, 1995-1996; Honorable Joseph M. McLaughlin, U.S. Court of Appeals, Second Circuit, 1997-1998. Practice Areas: Civil Litigation.

The Boies Schiller profile on Mr. Normand says his "main practice area is complex commercial litigation." He also represents "the London-based insurers in the ongoing litigation regarding the extent of coverage of the program of insurance for the World Trade complex." Complex commercial litigation probably doesn't get more complex than that. Or how about this? He represented "two hedge funds in matters arising from the economic crisis in Russia" and "large public companies undertaking to implement changes in their corporate governance structure." He also "represented an online music trading service in its litigation with major record companies." I gather the firm does not use the N word? Perhaps I assume too much. Actually, their style seems to be not to name clients specifically, except that David Boies' profile does. There you find out that he represented Lloyd's of London "and other insurers" and that "Mr. Boies obtained a defense verdict" on their behalf in the World Trade Center matter. His profile doesn't even allude to Napster, let alone list it. Actually, both new lawyers assigned to SCO are probably cool guys. If you met them at a dinner party, they'd probably be fascinating to talk to. The biggest mystery to me has always been, how did all these nice guys end up in a place like this?

There is a Katherine Eskovitz at Boies Schiller too, so I'm thinking it's maybe Mr. Eskovitz's wife, since she also clerked for the same judge he did, and a brother and sister both ending up clerking together seems less likely than that they met on the job there and got married. She defended the United States in a lawsuit originally brought by President Nixon seeking compensation under the 5th Amendment Taking Clause for President Nixon's White House tapes, photographs and documents. She used to work, ta-dah, at Cravath. I deduce from all this that SCO is getting some heavy hitters, but their skills are so numerous, it's not possible yet to see which skills they are being sent in to use. What the two share in common is complex civil litigation, so it could be as simple as that, all joking aside.

Just to keep us up-to-date, there are some minor filings in SCO v. IBM too, nothing earth-shaking. First, there is a Stipulation giving SCO more time to reply to IBM's Supplemental Memorandum re Discovery. The deadline was October 4. Then we also have Order granting the stipulation, the IBM's Ex Parte Motion for Leave to File Overlength Memorandum, again on the SCO discovery motion, the Order granting the motion. There are two sealed documents as well listed on Pacer, SCO's Reply Brief re: Supplemental Memorandum re: Discovery, #316, and SCO's Declaration of Jeremy O. Evans, #317, which goes with SCO's sealed Reply Brief.

SCO v. Novell:

To bring us up-to-date on Novell, here's the list there:

SCO v. Novell - 10/1/04 50 Ex parte motion by SCO Grp for leave to file overlength opposition memo (blk) [Entry date 10/05/04]
10/1/04 -- Proposed document from SCO Grp entitled: Memo in opposition to Novell's motion to dismiss amended complaint (blk) [Entry date 10/05/04] (This is what became #52, which we have)
10/4/04 51 Order granting [50-1] ex parte motion for leave to file overlength opposition memo signed by Judge Dale A. Kimball , 10/4/04 cc:atty (blk) [Entry date 10/05/04]

Of course, we have the #52 document, SCO's Memorandum in Opposition to Novell's Motion to Dismiss already and are busy trying to get a text version.

Red Hat v. SCO:

There is also a Red Hat filing in Delaware, which we should have by Monday.

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Corrections Here

Authored by: spuluka on Saturday, October 09 2004 @ 10:34 AM EDT

So they are easy to find.

---
Steve Puluka
Pittsburgh, PA