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| IBM's Unsealed Memo Opposing the Palmisano Deposition |
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Friday, May 06 2005 @ 07:36 PM EDT
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IBM has begun unsealing and filing redacted documents, as per Judge Kimball's latest order. This is IBM's Unsealed Memorandum in Opposition to SCO's Motion to Compel IBM to Produce Samuel J. Palmisano for Deposition [PDF], and I found it a bit chilling. In it, IBM highlights behavior on the part of SCO's attorneys that I found shocking. Our whole legal system depends on good faith by the parties, and when lawyers start to push over the edge, the system breaks down. Here is what IBM writes, on pages 9 and 10, after making their essential argument that Palmisano has no unique information to provide, a legal requirement, they point out, in order to depose a CEO or other high-level executive. Courts are aware of all the dirty tricks, of course, because they've seen them all before, and so they are aware that a party might just depose a CEO to harass the other side. After arguing that issue, IBM questions SCO's "good faith" by telling the court what has been going on behind the scenes.
Here's what they say on p. 9, including footnotes 7 and 8:
Third, SCO affirmatively asserts that its motion is made in good faith. (SCO Mem. at 9.) SCO's good faith is not, however an adequate basis for ordering Mr. Palmisano's deposition. As discussed, SCO must show that Mr. Palmisano has unique personal knowledge. In any event, the circumstances under which SCO filed this motion at least call into doubt any assertion that it is proceeding in good faith. SCO seeks discovery from IBM's chairman and chief executive on a topic of marginal relevance at best, without making a showing that the information it seeks cannot be had from others within IBM. IBM expressly invited SCO to specify topics which SCO believed Mr. Palmisano was "uniquely able to address", and SCO declined. (SCO Me., Ex. C at 2.) 7 Furthermore, in filing this motion, SCO violated the protective order in this case for at least the third time. 8
7 Contrary to SCO's claim at page 6 of its brief that counsel for SCO "referenced the publicly available information concerning Mr. Palmisano's key role in formulating and promoting IBM's Linux strategy" during a teleconference, counsel for SCO and IBM held a brief phone call during which SCO's counsel was again invited to explain its reasons for taking Mr. Palmisano's deposition. SCO offered none, and simply stated that the parties would have to "agree to disagree" on the issue.
8 On Wednesday, January 12, 2005, SCO filed its motion attaching five IBM confidential documents without filing the motion under seal, serving counsel for IBM by mail. (See Docket No. 374.) As a result, counsel for IBM did not know that the motion existed until two days later, when SCO's counsel called to discuss the fact that the motion had not been filed under seal. Although the certificate of service purports to show that the memorandum was served by mail on Wednesday, January 12, 2005, counsel for IBM did not receive the memorandum by mail until the following week. Accordingly, in filing this motion, counsel for SCO caused what should have been a sealed or redacted memorandum referencing IBM's confidential internal documents to be published on the Internet. I see several issues being complained about here, 1) that SCO's attorneys have on three occasions violated a protective order, with the clear implication that it was deliberate; 2) that they misrepresented facts in a court filing; and 3) that they served a motion that violated the protective order by snail mail, the slowest choice, and by the time IBM learned about it, from a phone call from SCO, the material was posted to the Internet, and 4) that they then filed an affidavit of service with the court with a dubious date, since it normally does not take a week for mail to arrive at its destination. If these allegations are true, IBM has told the judge a great deal about this law firm. Then, in their conclusion, IBM adds this:
Finally, SCO claims that IBM should be obligated to produce its chairman and CEO for deposition because SCO intends to produce its CEO, Darl McBride. Unlike Mr. Palmisano, however, Mr. McBride has unique knowledge of relevant facts in the case. For example, Mr. McBride is responsible for making public statements about this case and about SCO's alleged evidence in particular. These statements by Mr. McBride -- including that SCO and its experts have found "a mountain of code" in Linux and that "the DNA of Linux is coming from UNIX," among many other things -- form the basis for certain of IBM's counterclaims, which allege that SCO's lawsuit is designed to create fear, uncertainty, and doubt as part of an improper scheme to assert proprietary rights over Linux and to impede the use of that technology by the open-source community. Moreover, whereas there are many people at IBM who should be able to address the issues in which SCO is interested, there are very few, if any, others at SCO (other than Mr. McBride) who can address the issues in which IBM is interested. "SCO's lawsuit is designed to create fear, uncertainty and doubt as part of an improper scheme to assert proprietary rights over Linux and to impede the use of that technology by the open-source community." I think that says it all. I'll have the other documents up in a moment, but this one was important enough, I felt it needed its own space. Forbes recently wrote this about David Boies' reputation: David Boies, supreme private-sector litigator, takes on New York Attorney General Eliot Spitzer, consummate prosecutor and politician. They will slug it out over the fate of Maurice (Hank) Greenberg, the ousted chairman of American International Group. It would be tough to find two more ambitious, controversial litigators. Or a couple of opponents more alike in some ways. "We know each other, we like each other, we respect each other," says Boies. "I am a political supporter." Both men tend to try their cases in the press, to push until they overreach and to rely on questionable tactics that sometimes backfire. "Until they overreach." "Employ questionable tactics." That really isn't the kind of reputation a law firm normally strives for. For one reason, when you get a reputation like that, what kind of clients will you attract? Well, one thing is for sure. I don't think we'll have to read any more orders in this case about good sportsmanship or about crediting good faith to both sides. Good. Reality is important anywhere, but nowhere as much so as in litigation. That's what litigation is supposed to be, a search for truth.
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| Authored by: pscottdv on Friday, May 06 2005 @ 07:47 PM EDT |
"when you get a reputation like that, what kind of clients will you
attract?"
The kind you deserve.[ Reply to This | # ]
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| Authored by: overshoot on Friday, May 06 2005 @ 07:47 PM EDT |
Post links as <a href="http://www.example.com/">clickable
html</a> if you would. Use HTML mode and check with preview.[ Reply to This | # ]
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| Authored by: overshoot on Friday, May 06 2005 @ 07:55 PM EDT |
- How common is it for a party to flatly accuse the other of bad faith
like this?
- Have these (and earlier IBM examples) amounted to more than
ground clutter? In other words, are they complaining about what the Court will
see as trivialities?
- What are the chances of the Court taking official
notice of this
- By SCOX if it's actually beyond the pale, or
- By IBM
if it's not -- are they whining?
[ Reply to This | # ]
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| Authored by: analyzer on Friday, May 06 2005 @ 08:09 PM EDT |
| Post corrections here for PJ [ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 06 2005 @ 08:11 PM EDT |
Apparently IBM accidently sent SCO two priviledged documents and notified them
the next day. When this happens, a lawyer is supposed to immediately stop using
the document, remove any information about it from databases, and return all
copies to the other side -- without question. Instead SCO's lawyers refused to
respond for two weeks. Then they said they wouldn't return them until IBM
proved they should be confidential. Then they referenced them in filings.[ Reply to This | # ]
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| Authored by: stend on Friday, May 06 2005 @ 08:19 PM EDT |
Corrections go here, please! [ Reply to This | # ]
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| Authored by: stend on Friday, May 06 2005 @ 08:22 PM EDT |
| Use <a href="http://www.example.com/">This</a> for clickable links! [ Reply to This | # ]
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| Authored by: blang on Friday, May 06 2005 @ 08:33 PM EDT |
"That really isn't the kind of reputation a law firm normally strives for.
For one reason, when you get a reputation like that, what kind of clients will
you attract?"
The answer is: A deperate client, with nothing to lose, and with only marginal
chance for a win. The kind of case, where Wookie's features prominently.
In poker terms, a client with few chips left, needing to go all in soon.
Unfortunately for SCO, they don't know Poker, an dgetting Boies was an attempt
to bluff, to scare IBM. However, when you chip stack is very short, the other
card sharks won't even blink. They'll have you for dinner.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 06 2005 @ 08:55 PM EDT |
Ok, this is my first posting and I have been reading this case from the
beginning but after reading this type of activity from SCO's side, it really
gets me angry.
How can the Judge allow this type of inappropriate behavior continue?
Someone clue me in as to how this case is still going on without any word from
the Judge about this? I am linux developer but I am in no ways an expert in
litigation.
I have just about had it with these SCO attorneys. The judge is giving them so
much and IBM so little yet with all the unprofessionalism going on here, the
judge needs to step up and smack SCO upside their head and either have them
discontinue their behavior or end this case.
[ Reply to This | # ]
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| Authored by: NastyGuns on Friday, May 06 2005 @ 09:00 PM EDT |
As I posted under Quatermasses comment from the previous story:
I wonder
if one of these three instances includes #291. Just in case it wasn't mentioned
in #442, don't forget that SCO posted a full version of #291 before it was
released by the court in redacted form.
- You can find the full text here.
- And the story mentioning the redacted form here.
So that makes 3 of 3 (or maybe a different count) instances where
SCO released sealed (or should have been sealed documents). #291, #328 (MJ Wells
sealing the hearing transcripts concerning the IBM emails), and #374.
Might
I also mention reading Quatermass' comments from the previous story here.
---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back,
please keep me here." Unknown. [ Reply to This | # ]
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| Authored by: garbage on Friday, May 06 2005 @ 09:03 PM EDT |
The tactic of harrassing the judge & the defence team in the microsoft case
worked like a charm to get Monopoly$oft off the hook.
Is'nt this this more of the same?
Appears to me that Judge Kimball & IBM are aware of it though & are
adhering to high standards in order to defuse the tactic & slowly but surely
call the bluff of these vexatious litigants...
[ Reply to This | # ]
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| Authored by: LarryVance on Friday, May 06 2005 @ 09:03 PM EDT |
I fail to see a reason why this was sealed. If the objective to seal it was to
help protect tSCOg from exposure for their questionable tactics then it was big
of them, but I really so nothing that should have been concealed.
---
NEVER UNDERESTIMATE YOUR INFLUENCE!
Larry Vance[ Reply to This | # ]
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| Authored by: RedBarchetta on Friday, May 06 2005 @ 09:29 PM EDT |
From IBM's Memo:
These statements by Mr. McBride -- including
that SCO and its experts have found "a mountain of code" in Linux and that "the
DNA of Linux is coming from UNIX," among many other things -- form the basis for
certain of IBM's counterclaims [..]
This was worth
re-posting.
There is nothing more sweet then the words of Darl McBride
coming back to haunt him.
I can recall back when he made those
statements; I was a bit upset that someone could make such blatantly false
statements with such little accountability. Some Linux proponents even became
angry because of the moral outrage they felt. Not so much from the falsehoods
being spouted by the media, but because of their inability to affect matters
(i.e., they'd have to wait years for the courts to reveal the truth behind
mendacious McBride's statements).
In the face of the various FUD
forces, people like PJ (and others) kept up the fight, constantly shining the
light in those dark corners. As a result, along with some decisive court
statements, the tide has turned tremendously against SCO. Now it's Darl McBride
and his cronies who are getting upset at the media. Not because of moral
outrage (they have no morals), but because their ill-planned court cases are
falling apart!
Aside from a weak case, one of the leading causes of
their demise? McBride's mouth! Love
it!
---
Collaborative efforts synergise. [ Reply to This | # ]
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| Authored by: freeio on Friday, May 06 2005 @ 09:30 PM EDT |
For those of us who observe this case from a safe distance, and who are not
involved in the litigation, this case serves as an excellent example of why the
legal industry has such ill repute among the masses. Many so-called
"officers of the court" appear to act with an impunity which would get
any of the rest of us in the deepest of trouble. It would seem that there is
one law for them, and a much meaner law for us.
Could it be that the good-old-boy network protects the vast majority of the
bad-actors from facing any sort of ethics charges, simply because so many are
following the same course, and do not wish to bring attention to the ethical
lapses lest they also be investigated? It certainly appears to be so. Thus the
entire concept of "legal ethics" would seem to be an oxymoron for many
who practice law - i.e. a convenient euphimism for doing anything to win,
knowing full well that the odds of getting into any real trouble are exceedingly
small.
freeio
---
Tux et bona et fortuna est.[ Reply to This | # ]
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| Authored by: RFD on Friday, May 06 2005 @ 09:34 PM EDT |
There seems to be a gap at the bottom of page 6.
---
Eschew obfuscation.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 06 2005 @ 09:51 PM EDT |
"Our whole legal system depends on good faith by the parties, and when
lawyers start to push over the edge, the system breaks down."
If the legal system does not actively discourage bad faith it will flourish, as
has been seen in this case. Judge Kimball is not, IMHO, in full control in this
case, and he needs to be. He need not sanction SCOX for actions of their
attorneys but he certainly could sanction Boies for their bad behavior. A
strong response would send a message that good behavior and good faith efforts
are *required* in his court. This is not some village court, this is a
*Federal* courtroom![ Reply to This | # ]
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| Authored by: AllParadox on Friday, May 06 2005 @ 09:56 PM EDT |
Those who have followed my posts for some time know that I strongly tend to
discourage criticism of our judges and courts.
This is not driven by any sense that courts are above criticism, but rather, by
a motivation to minimize inappropriate and misdirected criticism. There are a
very large number of very dedicated, honest, and hard-working judges and court
staffers. I dislike seeing them criticised for their often outstanding
work-ethic and performances.
Here, on this topic, is where I weigh in.
The ABA and every State Bar Association should consider this the largest and
most visible disgrace, far above the next thing they might be considering, and a
central cause for much of the other complaints and ethical problems that they
handle. It is regularly seen by all the clients who participate in trials,
whether by judge or by jury. Parties who have engaged in trials often have a
very bad view of attorneys and their ethical conduct after trial experiences.
Moreover, this is all personal exerience: things they have heard with their own
ears, seen with their own eyes. After these very personal experiences, nothing
will persuade the disenchanted that attorneys are honest, or that our court
system works.
The U.S. legal system does a very poor job of regulating attorney misbehavior.
I would generally characterize it as grossly incompetent.
There are generally three corrective systems at work: judicial supervision of
attorney conduct during trial, disciplinary committee review of prior attorney
conduct, and market forces.
I have seen all of these operate, up-close-and-personal, and offer the following
observations.
Judicial supervision: during trials, attorneys engage in the most atrocious and
shameful conduct. For some reason, there seems to be little or no restraint on
this charade. Judges routinely expect opposing cousel to reign in this
unacceptable conduct. I have seen many that seemed genuinely offended when one
attorney did not control the other. At the same time, the judges refuse to
participate in controlling misconduct. How an attorney is supposed to control a
mis-behaving opponent, when the judge refuses to apply any kind of sanctions, or
even to entertain suggestions about applying sanctions, is beyond me. What are
we supposed to do, knee-cap the guy? Much as I might personally enjoy it, that
also would not be effective.
Supervising courts: in most states, the supervising courts are the State Supreme
Court and the various appellate divisions. The State of New York, as a
counter-example, has the Supreme Court as its trial court. Frequently, the
supervising courts sabotage efforts of trial courts to clean up the process. On
appeal, the trial court's conduct and sanctions are used as justification for
setting aside the rulings.
Simply requiring the attorneys to follow the rules, with appropriate sanctions
for failure, would go a long way toward solving the problem. For the most part,
most of the motion dockets I attended should have been a monumental
embarrassment to the legal profession. On every long docket I attended, the
great majority of the motions dealt with tSCOg-like failures to comply with
discovery requests. I distinctly recall one distraught counsel asking me what
to do: he had noticed up the opponent to depose the other party on four separate
occasions; all four times, no one appeared, and when called, opposing counsel
said he was "busy". All four times, my friend had filed a motion for
sanctions. All four times, the trial judge had admonished the opponent, and
waived sanctions, telling the opponent to appear for the next depo. At trial
time, the judge then refused to continue the trial. The opposing lawyer has
since been appointed to the bench in that circuit, and is as big a jerk as ever.
The above example is the biggest cause, in my opinion, for the longevity of
cases. If the opposing attorney above (a very bright fellow indeed) knew that
he personally would be sanctioned for not handling the depositions correctly,
then the first deposition would have taken place on time. Three deposition
settings would have been avoided. Four motions for sanctions, with hearings,
would have been avoided. A continuance of a trial, or a rehearing on remand
after appeal would have been avoided.
My warmest desire is that State Bar Associations begin to see that SCO vs. IBM
has exposed routine conduct to the public that most citizens find disgusting and
unacceptable. Our courts are buried in the kind of non-cooperation that has
kept SCO v. IBM from being resolved at least a year ago. The incessant
complaint on Groklaw has been "when will the court sanction the SCO lawyers
for non-complaince?" The revolting answer is: probably never.
Disciplinary committees try to reign in misconduct. Mostly, it is too little,
far too late. Timely intervention, with appropriate mild sanctions would be far
more effective than suspensions or disbarments years later. Also, disciplinary
actions are often politically driven. Finally, disciplinary actions are
complaint driven. Nothing happens until a complaint is made, then all
investigation is limited to the complaint, or anything obviously unethical seen
by an investigator during the investigation. I am not slamming the
investigators or the committees personally. I am saying that the process is
generally ineffectual in spite of their best efforts.
Finally, when a lawyer begins to get a reputation for slimey conduct, people
with any sense should shun him or her. Instead, many gravitate to the flagrant
types, praising their work as "great".
---
PJ deletes insult posts, not differences of opinion.
AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.[ Reply to This | # ]
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- Attorney misbehavior and reasons not to practice law - Authored by: Anonymous on Friday, May 06 2005 @ 11:11 PM EDT
- US legal system?? - Authored by: Anonymous on Saturday, May 07 2005 @ 12:20 AM EDT
- Don't defend bad behavior - Authored by: RedBarchetta on Saturday, May 07 2005 @ 12:43 AM EDT
- What is this "supervising court" vs. "trial court" distinction? - Authored by: Anonymous on Saturday, May 07 2005 @ 02:14 AM EDT
- See my post above - Authored by: Anonymous on Saturday, May 07 2005 @ 03:10 AM EDT
- Attorney misbehavior and reasons not to practice law - Authored by: inode_buddha on Saturday, May 07 2005 @ 05:32 AM EDT
- Attorney misbehavior and reasons not to practice law - Authored by: tknarr on Saturday, May 07 2005 @ 03:29 PM EDT
- please enumerate - Authored by: meshuggeneh on Saturday, May 07 2005 @ 04:02 PM EDT
- Attorney misbehavior and reasons not to practice law - Authored by: Anonymous on Saturday, May 07 2005 @ 10:47 PM EDT
- Attorney misbehavior and reasons not to practice law - Authored by: Anonymous on Sunday, May 08 2005 @ 01:09 AM EDT
- Attorney misbehavior and reasons not to practice law - Authored by: AllParadox on Sunday, May 08 2005 @ 03:07 AM EDT
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| Authored by: Anonymous on Friday, May 06 2005 @ 11:13 PM EDT |
are nothing more than salespersones working on commission. They are no longer
officers of the court since they now have a vested interest in the direct
outcome of the trial.[ Reply to This | # ]
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| Authored by: red floyd on Saturday, May 07 2005 @ 01:41 AM EDT |
Does anyone else find it deliciously ironic that IBM is explicitly using the
term "fear, uncertainty and doubt" in a court document, since Gene
Amdahl invented the term to describe IBM's tactics back in the '60s?
---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.
[ Reply to This | # ]
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| Authored by: inode_buddha on Saturday, May 07 2005 @ 03:59 AM EDT |
| "...and I found it a bit chilling. In it, IBM highlights behavior on the part
of SCO's attorneys that I found shocking. Our whole legal system depends on good
faith by the parties, and when lawyers start to push over the edge, the system
breaks down." I *hope* you are not just starting to figure this
out. ---
-inode_buddha
Copyright info in bio
"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman [ Reply to This | # ]
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| Authored by: blacklight on Saturday, May 07 2005 @ 04:16 AM EDT |
"Both men [David Boies and Eliot Spitzer] tend to try their cases in the
press, to push until they overreach and to rely on questionable tactics that
sometimes backfire." Forbes
I resent Forbes putting David Boies and Eliott Spitzer on the same footing, but
Forbes is an examplar of what used to be called "the yellow press". In
this case, Elliott Spizter does not have to try his cases in the press because
almost none of his targets wants to go to court. On the other hand, Elliots
Spitzer does have an obligation as a powerful elected public official to let the
people of New York State know what he is doing, who he is doing it to and why he
is doing it to them - We can hardly have responsible, accountable government if
our elected public officials clam up the minute they are in office.
I believe that Elliot Spitzer is doing the right thing: New York City can hardly
make any legitimate claim to be the financial capital of the world if the NYS
Attorney general is afraid to do his job. It is one thing to for an investor to
lose his money in a fair and transparent manner, and it is another thing
altogether when shady practices are involved and allowed to go on.
I used to work for a shady Silicon Alley outfit where the CEO's dream was of
getting his firm acquired: he was dumb, stupid and short-sighted as a CEO and he
was running his firm into the ground. And if some little old lady in Dubuque
lost her life savings to him buying his shell of an outfit based on his
prentenses and claims, that was just fine by him. Needless to say, I hated the
guy once I had a pretty good idea as to what he was up to, and dumped him as an
employer when the opportunity to do so presented itself. And yeah, I still think
he is a slimeball.[ Reply to This | # ]
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| Authored by: blacklight on Saturday, May 07 2005 @ 04:29 AM EDT |
It is about time that IBM gets down to the business of chipping away at judge
Welles' presumption that SCOG is acting in good faith - a presumption that will
be likely to color if not distort her decisions if she continues holding on to
it.[ Reply to This | # ]
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| Authored by: sproggit on Saturday, May 07 2005 @ 05:11 AM EDT |
If there is one thing I have learned from my limited experience of working with
the FOSS community, then it is that collaborative effort of this kind can solve
problems that proprietary organisations cannot begin to comprehend.
So let's stick to something we're collectively good at - which is being
positive, constructive and helpful - and put some thought into the issues raised
in this story thread.
For a start, if you haven't read it, please go back up a few posts and read the
entry from AllParadox. This response is offered as a starting point to the
observations made therein.
Next: an idea. It's probably quite a silly one, especially since IANAL. But
that's not the point. Let's see if we can use Groklaw to construct some helpful
suggestions to the Legal System that will prevent this type of failing from
happening again...
Improving the quality and consistency of the legal profession [given the nature
of the regulation that exists today] evokes memories of the old rhetorical
question: "Who will watch the Watchmen?" Many other organisations
around the world have a similar challenge.
For example, in many national civil and military aviation authorities, we see
that pilots monitor eachother's performance. They do so knowing that a mistake
in the air can cost the lives of not just the erring pilot, but also colleagues
and friends, including themselves.
In many field sports [such as English football (soccer)] in addition to a
referee there are also linesmen, who monitor the pitch when the eyes of the
referee are elsewhere.
So could we apply these principles to the legal world?
Well, in a case like this one, where the subject matter is so complex and IOHO
[in our humble opinion] one side are playing fast and loose with the rules, the
truth, and anything else they can sully with their hands, then we might argue in
favour of having some 'expert monitors'. An expert monitor might be another
judge [serving or retired] or another court officer who has some degree of
subject matter expertise in the material being challenged in court.
With a case like this, that might include a contracts expert, a software expert
and so on.
Now, I'm not suggesting for a moment that such additions to a courtroom would
have any new legal standing. In a soccer match the referee's call is final. They
do not have to refer to a linesman if they do not want to. However, when
disputes arise, or when others with expert knowledge believe that an injustice
is being permitted, then an opportunity may exist for a "Friend of the
Court" to step forward and explain,
"Hang on a second, Your Honour. Something has been missed here..."
It has become apparent through this case that legal systems the world over are
becoming tarnished, tainted, by a tiny number of people willing to "game
the system". If their actions impacted purely the case in point, then
things would not be so bad. However, the way the legal system works, often case
law sets precedents that can then last for decades or longer. Think software
patents, for example. That's a stinker of a precedent, if ever there was one...
Once an error is allowed to creep in, the law can be stuck with it.
Maybe our Groklaw Community can put their minds to a set of proposals to offer
the legal system, based upon our observation of this case. After all, we too can
cite real-world legal examples now...
So, PJ, is this worth a new Menu Item???
Regards,
sproggit
"None of us is as smart as all of us".[ Reply to This | # ]
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