It turns out IBM asked Arthur Andersen for documents "related to Andersen's engagements for The Open Group, Novell, Sun Microsystems, Tarantella, Santa Cruz Operations, and Caldera." Notice two names you were not expecting on this list? Me too. The Open Group and Sun Microsystems. See what happens when you tell the court you are the same as the Santa Cruz Operation? IBM takes SCO at its assertion for the purpose of the subpoenas, turns around and says that if SCO is oldSCO, and oldSCO named itself Tarantella, and Tarantella got bought by Sun, then IBM would like to see documents from all those transactions.

Here's the definition of "Santa Cruz" in Exhibit D:

6. The term "Santa Cruz "shall mean and include, collectively and/or individually, The Santa Cruz Operation, Inc., Tarantella, Inc., or Sun Microsystems, Inc., and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of The Santa Cruz Operation, Inc., Tarantella, Inc., or Sun Microsystems, Inc.

The question in my mind is whether that might include documents from the earlier Sun dealings with SCO, new SCO, or just the Tarantella acquisition. How I wish we could see those Sun-SCO documents. What was Sun's involvement in all this?

KPMG's subpoena is Exhibit A. Arthur Andersen's is Exhibit B. Ernst & Young's is Exhibit C. Deloitte & Touche's is Exhibit D. Exhibit E is an email from IBM attorney Peter Donaldson of Snell & Wilmer to KPMG's lawyers, with ccs to Boies Schiller, memorializing that unless SCO objected, KPMG would turn over documents to IBM on December 16. Hence, SCO now urgently objects, and just in the nick of time. This document is dated December 14 and filed the same day.

Exhibit F is a letter from Andersen to IBM, with a long list of requirements before it will make documents available: it doesn't mind opening up its storage facilities in three cities for IBM to go sort through them looking for documents its own, but IBM must pay for the documents, up front. Andersen say it's not in a position to go on a search themselves. And they also require that the documents remain confidential, viewable only by the parties in this action, any experts or consultants hired for the litigation, and the court. That means we won't get to see them, although we're bound to get a hint, sooner or later, litigation being the way it is.

SCO is bringing the motion, because the accountant firms have indicated, to SCO or IBM, that they will comply with the subpoenas. SCO wants to review the documents, because maybe they are covered by attorney-client privilege or are confidential:

The documents responsive to the foregoing subpoenas may include documents that reflect attorney-client privileged communications, attorney work-product, and/or SCO confidential information.

It seems they couldn't get two of the accountants to let them look first, KPMG and Arthur Andersen, and SCO is trying to reach the other two. When they told IBM about it, IBM told them to go tell it to the judge. That is what happens in litigation. If one side is mean as a snake, the other side is disinclined thereafter to do it any favors. Then the snake has to fight for every inch.

This isn't, I don't think, about delay. It looks to me that both parties know what IBM is after, and a serious battle is going on. IBM intends to get what it is looking for, and SCO knows it and is doing whatever it can to block. You'll remember that SCO is also claiming privilege on other documents by AT&T, Novell, Santa Cruz, etc. This is probably related.

SCO brings the motion pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. Here is Rule 26(c):

(c) Protective Orders.

Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the disclosure or discovery not be had;

(2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the court;

(6) that a deposition, after being sealed, be opened only by order of the court;

(7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

Here's Rule 37, referenced in the final paragraph. It's the rule on sanctions for failing to cooperate in discovery.

I want to thank nsomos, rm6990, and mwexler for helping me do the transcript and the HTML on this massive document. Don't be amazed if you find mistakes. We are too tired to see straight any more, and rather than hold off, until I can take a break, I decided to post it, and ask if you guys would mind doing the checking for mistakes. I couldn't figure out a way to do the subpoena forms. If anyone has a brainstorm on how to accomplish it, that's fine, but since it's just a form, I figured it wasn't essential. UPDATE: Joe Gombarick tackled page one of the subpoenas, which is lovely, because that is the page with any text particular to this litigation, so I am happy to add it. Thank you, everyone.

*******************************

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC., Plaintiff/Counterclaim-Defendant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant/Counterclaim-Plaintiff.

PLAINTIFF'S MOTION FOR PROTECTIVE ORDER Case No. 2:03CV0294DAK Honorable Dale A. Kimball Magistrate Judge Brooke C. Wells

1

IBM has served the following subpoenas on the following accounting firms on the following dates: (1) KPMG LLP, October 28, 2005; (2) Arthur Andersen LLP, November 8, 2005;(3) Ernst & Young LLP, November 8, 2005; and (4) Deloitte & Touche LLP, November 9, 2005. (Exhs. A-D hereto.) Each of the foregoing accounting firms previously performed accounting work for SCO. The documents responsive to the foregoing subpoenas may include documents that reflect attorney-client privileged communications, attorney work-product, and/or SCO confidential information. SCO has filed this Motion in order to preserve its right to review the documents responsive to the subpoenas before they are produced to IBM or made available for IBM's review.

To the best of SCO's knowledge, two of the foregoing four accounting firms have informed IBM that they plan to produce or make available to IBM responsive documents. KPMG has informed the parties that absent objection from SCO they would produce to IBM responsive documents on December 16, 2005. (Exh. E hereto.) Arthur Andersen has informed IBM that it will permit IBM to review on-site documents under Arthur Andersen's control that may be responsive to the subpoena. (Exh. F hereto)

SCO objects to KPMG's production of responsive documents until SCO has had adequate opportunity to review the responsive documents, and objects to IBM's review of potentially responsive documents in Arthur Andersen's control until SCO has had adequate opportunity to review the potentially responsive documents. In addition, to the extent that Ernst

2

SCO has communicated the foregoing to IBM and KPMG, and will seek as appropriate to communicate with the other accounting firms regarding their responses to their respective subpoenas. In response, IBM has asserted that in order to enforce its rights to review responsive or potentially responsive documents, SCO is obligated to bring the instant Motion.

SCO respectfully submits that, to the extent that any of the foregoing accounting firms has not or will not permit SCO to review the documents responsive or potentially responsive to the foregoing subpoenas prior to producing such documents to IBM or making such documents available for IBM's review, the Court should grant SCO's Motion for Protective Order.

DATED this 14th day of December, 2005.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By___[signature]___

Counsel for The SCO Group, Inc.

3

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Reply Memorandum in Further Support of SCO's New Renewed Motion to Compel Discovery was served on Defendant International Business Machines Corporation on the 23rd day of November, 2005:

By U.S. Mail and Facsimile:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]

___[signature]___

4

EXHIBIT A

5

THE SCO GROUP INC

Plaintiff(s),

v

INTERNATIONAL BUSINESS MACHINES CORP

Defendant(s)

AFFIDAVIT OF SERVICE

Case No. 2:03-CV-00294 DAK

HEARING DATE: 11-14-2005

_______________________________________

I HEREBY MAKE RETURN OF SERVICE AND CERTIFY

1. I am a citizen of the United States and a person over 18 years of age and was at the time of this service and not a party to, nor interested in, the above entitled action.

2. I received the SUBPOENA IN A CIVIL CASE on the date of 10-28-2005 and served same upon the subject of service, by leaving one copy with a person of suitable age and discretion at the subject's residence or X place of business who is authorized by law to accept or receive service of process on subject's behalf.

3. Subject of service: KPMG LLP

By leaving a copy with: CRAIG OMER, REGISTERED AGENT

On the date of: 10-31-2005 at the time of: 11:40 AM

At the address of: [address]

4. I declare under penalty of perjury under the laws of the State of Utah that the foregoing is true and correct.

___[signature]__
CLIFFORD STOWERS, PROCESS SERVER

Subscribed and sworn to before me this 10-31-2005.

[notary seal; signature]
Miles: 1 Trip: 1 Service: $15.00 Mileage: $1.50 Total: $16.50
ProServe Professional Services, LLC [address, phone]

6

7

8

9

10

ATTACHMENT A TO SUBPOENA TO KPMG LLP

You are instructed to produce the following documents at the time and place specified in

Documents To Be Produced
Novell-Santa Cruz Unix Transaction Documents

3. The following documents specifically referred to in the APA:

a. Allocation of the Purchase Price (Section 1.2(c)),
b. Copies of the financial statements delivered pursuant to Section 2.3,
c. Bill of sale,
d. Operating Agreement between Novell and SCO (Section 5.1(c)),
e. Legal opinion of legal counsel of Buyer (Section 5.2(c)),
f. Legal opinion of legal counsel of Seller (Section 5.3(c)).

4. The final report, including supporting exhibits, and all work papers supporting the allocation of the purchase price paid by Santa Cruz to Novell for the 1995 purchase of Unix or Unix related assets, including but not limited to the following:

a. Drafts,
b. Market research,
c. Historical financial information for the Unix business,

11

d. Financial projections for the Unix business,
e. Notes,
f. Client interviews,
g. Discount rate support and analysis,
h. Licensing agreements of the intellectual property or any licensing agreements used in the allocation
i. Any other information used to allocate the purchase price of the acquisition for financial reporting purposes

5. The final report and all documents supporting any impairment analysis or valuation of intangible asset concerning Unix or Unix-related assets, from 1995 to 2001.

6. Any and all documents, communications, or correspondence, whether formal or informal, concerning the foregoing topics.

Santa Cruz-Caldera Unix Transaction Documents

2. Any and all transactional, due diligence, or financial documents concerning the sale or transfer of Unix or Unix-related assets from Santa Cruz to Caldera (defined below).

3. The following documents, specifically referred to in the Agreement and Plan:

a. Attachment A to the Third Amendment (or the amended Exhibit 1.4(b)),
b. Exhibit 1.4(c)(i)(B),
c. Attachment B to the Third Amendment (or the amended Exhibit 13.15A),
d. Attachment C to the Third Amendment (or the amended Exhibit 13.15B),
e. Attachment D to the Third Amendment (or the amended Exhibit 13.15D),
f. Exhibit 13.15C,
g. Attachment E to the Third Amendment (or the amended Exhibit 13.15E),

12

a. Drafts,
b. Market research,
c. Historical financial information for the Unix business,
d. Financial projections for the Unix business,
e. Notes,
f. Client interviews,
g. Discount rate support and analysis,

h. Guideline or company research or analysis,
i. Any other information used to allocate the purchase price of the acquisition for financial reporting purposes

5. The final report and all documents supporting any impairment analysis or valuation of intangible assets concerning Unix or Unix-related assets, from 2001 to the present

6. Any and all documents, communications, or correspondence, whether formal or informal, concerning the foregoing topics.

Definitions and Instructions

A. Definitions:

2. The term “concerning” shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing or constituting.

3. The term “document” shall by synonymous in meaning and usage with the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term

13

4. The term “including” shall mean including without limitation.

5. The term “person” shall mean any natural person or any private or public entity.

6. The term “Santa Cruz” shall mean and include, collectively and/or individually, The Santa Cruz Operation, Inc., Tarantella, Inc., or Sun Microsystems, Inc., and all its directors,

7. The term “Unix” shall mean any and all versions, flavors, or other variants of any Unix computer operating system, including but not limited to all operating systems certified as conforming to the Unix-brand standards set by The Open Group.

8. The term “Unix-related” shall mean any and all technology or intellectual property related to or based upon Unix, including but not limited to the “UnixWare” and “SCO OpenServer” technologies.

B. Instructions:

10. The use of any definition for the purposes of this request shall not be deemed to constitute an agreement or acknowledgment on the part of IBM that such a definition is accurate, meaningful or appropriate for any other purpose in this action.

14

12. Each page or sheet produced is to be marked with a consecutive document control number.

13. All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

14. All documents produced in response to this subpoena shall be produced, where available, in electronic or machine-readable form.

15

EXHIBIT B

16

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]

Attorneys for Defendantl/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

___________________

THE SCO GROUP, INC.

PlaintiffiCounterclaim-
Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-
Plaintiff.

_________________________

DEFENDANT/COUNTERCLAIM
PLAINTIFF IBM'S NOTICE OF SERVICE
OF SUBPOENA DUCES TECUM

Civil No. 2:03-CV-00294 DAK Honorable Dale A. Kimball Magistrate Judge Brooke C. Wells

_____________________________

PLEASE TAKE NOTICE that, pursuant to Rule 45 of the Federal Rules of Civil Procedure, and the definitions set forth in the Subpoena attached to this Notice as Exhibit A, as served on the following,

17

C/O CT Corporation System
Registered Agent, Arthur Andersen LLP
[address]

is required to produce for inspection and copying the documents specified in the attachment to the Subpoena, at the specified location, no later than November 28, 2005.

DATED this 8th day of November, 2005.

Snell & Wilmer L.L.P.

_[signature]___
Alan L. Sullivan
Todd M. Shaughnessy
Peter H. Donaldson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

18

CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of November, 2005, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

__[signature]___

19

EXHIBIT A

20

21

22

23

24

ATTACHMENT A TO SUBPOENA TO ARTHUR ANDERSEN, LLP

You are instructed to produce the following documents at the time and place specified in

Documents To Be Produced
Novell-Santa Cruz Unix Transaction Documents

2. Any and all transactional, due diligence, or financial documents concerning the sale or transfer of Unix or Unix-related assets from Novell to Santa Cruz.

3. The following documents specifically referred to in the APA:

a. Allocation of the Purchase Price (Section 1.2(c)),
b. Copies of the financial statements delivered pursuant to Section 2.3,
c. Bill of sale,
d. Operating Agreement between Novell and SCO (Section 5.1(c)),
e. Legal opinion of legal counsel of Buyer (Section 5.2(c)),
f. Legal opinion of legal counsel of Seller (Section 5.3(c)).

4. The final report, including supporting exhibits, and all work papers supporting the allocation of the purchase price paid by Santa Cruz to Novell for the 1995 purchase of Unix or Unix related assets, including but not limited to the following:

a. Drafts,
b. Market research,
c. Historical financial information for the Unix business,

25

d. Financial projections for the Unix business,
e. Notes,
f. Client interviews,
g. Discount rate support and analysis,
h. Licensing agreements of the intellectual property or any licensing agreements used in the allocation
i. Any other information used to allocate the purchase price of the acquisition for financial reporting purposes

5. The final report and all documents supporting any impairment analysis or valuation of intangible asset concerning Unix or Unix-related assets, from 1995 to 2001.

6. Any and all documents, communications, or correspondence, whether formal or informal, concerning the foregoing topics.

Santa Cruz-Caldera Unix Transaction Documents

2. Any and all transactional, due diligence, or financial documents concerning the sale or transfer of Unix or Unix-related assets from Santa Cruz to Caldera (defined below).

3. The following documents, specifically referred to in the Agreement and Plan:

a. Attachment A to the Third Amendment (or the amended Exhibit 1.4(b)),
b. Exhibit 1.4(c)(i)(B),
c. Attachment B to the Third Amendment (or the amended Exhibit 13.15A),
d. Attachment C to the Third Amendment (or the amended Exhibit 13.15B),
e. Attachment D to the Third Amendment (or the amended Exhibit 13.15D),
f. Exhibit 13.15C,
g. Attachment E to the Third Amendment (or the amended Exhibit 13.15E),

26

a. Drafts,
b. Market research,
c. Historical financial information for the Unix business,
d. Financial projections for the Unix business,
e. Notes,
f. Client interviews,
g. Discount rate support and analysis,

h. Guideline or company research or analysis,
i. Any other information used to allocate the purchase price of the acquisition for financial reporting purposes

5. The final report and all documents supporting any impairment analysis or valuation of intangible assets concerning Unix or Unix-related assets, from 2001 to the present

6. Any and all documents, communications, or correspondence, whether formal or informal, concerning the foregoing topics.

Definitions and Instructions

A. Definitions:

2. The term “concerning” shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing or constituting.

27

4. The term “including” shall mean including without limitation.

5. The term “person” shall mean any natural person or any private or public entity.

6. The term “Santa Cruz” shall mean and include, collectively and/or individually, The Santa Cruz Operation, Inc., Tarantella, Inc., or Sun Microsystems, Inc., and all its directors,

7. The term “Unix” shall mean any and all versions, flavors, or other variants of any Unix computer operating system, including but not limited to all operating systems certified as conforming to the Unix-brand standards set by The Open Group.

8. The term “Unix-related” shall mean any and all technology or intellectual property related to or based upon Unix, including but not limited to the “UnixWare” and “SCO OpenServer” technologies.

B. Instructions:

28

11. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, is shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

12. Each page or sheet produced is to be marked with a consecutive document control number.

13. All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

14. All documents produced in response to this subpoena shall be produced, where available, in electronic or machine-readable form.

29

EXHIBIT C

30

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]

Attorneys for Defendantl/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

___________________

THE SCO GROUP, INC.

PlaintiffiCounterclaim-
Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-
Plaintiff.

_________________________

DEFENDANT/COUNTERCLAIM
PLAINTIFF IBM'S NOTICE OF SERVICE
OF SUBPOENA DUCES TECUM

Civil No. 2:03-CV-00294 DAK Honorable Dale A. Kimball Magistrate Judge Brooke C. Wells

_____________________________

PLEASE TAKE NOTICE that, pursuant to Rule 45 of the Federal Rules of Civil Procedure, and the definitions set forth in the Subpoena attached to this Notice as Exhibit A, as served on the following,

31

C/O David R. Jolley
Registered Agent, Ernst & Young LLP
[address]

is required to produce for inspection and copying the documents specified in the attachment to the Subpoena, at the specified location, no later than November 23, 2005.

DATED this 8th day of November, 2005.

Snell & Wilmer L.L.P.

_[signature]___
Alan L. Sullivan
Todd M. Shaughnessy
Peter H. Donaldson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

32

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of November, 2005, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

__[signature]___

33

EXHIBIT A

34

35

36

37

38

ATTACHMENT A TO SUBPOENA TO ERNST & YOUNG, LLP

You are instructed to produce the following documents at the time and place specified in

Documents To Be Produced
AT&T-Novell USL/UNIX Transaction Documents

2. Any and all transactional, due diligence, or financial documents concerning the sale or transfer of Unix or Unix-related assets from AT&T or USL to Novell.

3. Any and all documents, including reports, supporting exhibits, and workpapers, that that refer, reflect or relate to the allocation of the purchase price paid by Novell for the transaction(s) referenced above, including but not limited to the following:

a. Drafts,
b. Market research,
c. Historical financial information for the Unix business,
d. Financial projections for the Unix business,
e. Notes,
f. Client interviews,
g. Discount rate support and analysis,
h. Licensing agreements of the intellectual property or any licensing agreements used in the allocation,

39

i. Any other information used to allocate the purchase price of the acquisition for financial reporting purposes.

4. Any and all documents, whether contemporaneous or subsequent to the transaction(s) referenced above, that refer, reflect or relate to the valuation of the Unix or Unix- related assets acquired by Novell.

5. Any impairment analyses or valuations of intangible assets, annual or otherwise, relating to Unix or Unix-related assets.

6. Any and all documents, communications, or correspondence, whether formal or informal, concerning the foregoing topics.

Novell-Santa Cruz Unix Transaction Documents

2. Any and all transactional, due diligence, or financial documents concerning the sale or transfer of Unix or Unix-related assets from Novell to Santa Cruz.

3. The following documents specifically referred to in the APA:

a. Allocation of the Purchase Price (Section 1.2(c)),
b. Copies of the financial statements delivered pursuant to Section 2.3,
c. Bill of sale,
d. Operating Agreement between Novell and SCO (Section S.l(c)),
e. Legal opinion of legal counsel of Buyer (Section 5.2(c)),
f. Legal opinion of legal counsel of Seller (Section 5.3(c)).

4. The final report, including supporting exhibits, and all work papers supporting the allocation of the purchase price paid by Santa Cruz to Novell for the 1995 purchase of Unix or Unix related assets, including but not limited to the following:

40

a. Drafts,
b. Market research,
c. Historical financial information for the Unix business,
d. Financial projections for the Unix business,
e. Notes,
f. Client interviews,
g. Discount rate support and analysis,
h. Licensing agreements of the intellectual property or any licensing agreements used in the allocation,
i. Any other information used to allocate the purchase price of the acquisition for financial reporting purposes.

5. The final report and all documents supporting any impairment analysis or valuation of intangible assets concerning Unix or Unix-related assets, from 1995 to 2001.

6. Any and all documents, communications, or correspondence, whether formal or informal, concerning the foregoing topics.

Definitions and Instructions

A. Definitions:

1. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing or constituting.

2. The term "document" shall be synonymous in meaning and usage with the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term "document" shall include without limitation all written, phonic, graphic or recorded matter, including without limitation, information stored on computers, disks, tapes (i.e. magnetic or other storage media), World Wide Web pages, electronic mailing lists or automated fax support systems. The term "document" specifically includes electronic mail, electronic correspondence, or electronic peer-to-peer messages ("e-mail") and any attachments and files created and maintained in electronic form in the ordinary course of business.

3. The term "including" shall mean including without limitation.

4. The term "person" shall mean any natural person or any private or public entity.

41

6. The term "Unix" shall mean any and all versions, flavors, or other variants of any Unix computer operating system, including but not limited to all operating systems certified as conforming to the Unix-brand standards set by The Open Group.

7. The term "Unix-related" shall mean any and all technology or intellectual property related to or based upon Unix, including but not limited to the "UnixWare" and "SCO OpenServer" technologies.

B. Instructions:

8. Each paragraph should herein be construed independently and, unless otherwise directed, without reference to any other paragraph for the purpose of limitation.

9. The use of any definition for the purposes of this request shall not be deemed to constitute an agreement or acknowledgment on the part of IBM that such definition is accurate, meaningful or appropriate for any other purpose in this action.

10. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, is shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

11. Each page or sheet produced is to be marked with a consecutive document control number.

12. All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

42

43

EXHIBIT D

44

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]

Attorneys for Defendantl/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

___________________

THE SCO GROUP, INC.

PlaintiffiCounterclaim-
Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-
Plaintiff.

_________________________

DEFENDANT/COUNTERCLAIM
PLAINTIFF IBM'S NOTICE OF SERVICE
OF SUBPOENA DUCES TECUM

Civil No. 2:03-CV-00294 DAK Honorable Dale A. Kimball Magistrate Judge Brooke C. Wells

_____________________________

PLEASE TAKE NOTICE that, pursuant to Rule 45 of the Federal Rules of Civil Procedure, and the definitions set forth in the Subpoena attached to this Notice as Exhibit A, as served on the following,

45

C/O Paul G. Child
Registered Agent, Deloitte & Touche LLP
[address]

is required to produce for inspection and copying the documents specified in the attachment to the Subpoena, at the specified location, no later than November 23, 2005.

DATED this 9th day of November, 2005.

Snell & Wilmer L.L.P.

_[signature]___
Alan L. Sullivan
Todd M. Shaughnessy
Peter H. Donaldson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

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CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of November, 2005, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

__[signature]___

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ATTACHMENT A TO SUBPOENA TO DELOITTE & TOUCHE LLP

You are instructed to produce the following documents at the time and place specified in the subpoena:

Documents To Be Produced

Santa Cruz-Caldera Unix Transaction Documents

1. All documents in your possession, custody, or control that refer, reflect or relate to the Agreement and Plan of Reorganization, dated August 1, 2000 and amended on September 13, 2000, December 12, 2000, and February 9, 2001 (the "Agreement and Plan") by and between Santa Cruz, Caldera Systems, Inc., and Caldera International, Inc., including, without limitation, any and all transactional, due diligence, or financial docments related to the sale or transfer of assets in connection with that transaction together with any reports, analyses, valuations, appraisals, or opinions in your possession, custody, or control related to the transaction.

2. Any and all transactional, due diligence, or fmancial documents concerning the sale or transfer of Unix or Unix-related assets from Santa Cruz to Caldera (defined below).

3. The following documents, specifically referred to in the Agreement and Plan:

a. Attachment A to the Third Amendment (or the amended Exhibit 1.4(b)),
b. Exhibit 1.4(c)(i)(B),
c. Attachment B to the Third Amendment (or the amended Exhibit 13.15A),
d. Attachment C to the Third Amendment (or the amended Exhibit 13.15B),
e. Attachment D to the Third Amendment (or the amended Exhibit 13.1 SD),
f. Exhibit 13.15C,
g. Attachment E to the Third Amendment (or the amended Exhibit 13.15E).

4. The final report, including supporting exhibits, and all work papers supporting the Impairment/Valuation Analysis, incorporated in Caldera's October 31, 2001 10K filing with the

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a. Drafts,
b. Market research,
c. Historical financial information for the Unix business,
d. Financial projections for the Unix business,
e. Notes,
f. Client interviews,
g. Discount rate support and analysis,
h. Guideline or company research or analysis,
i. Any other information used to allocate the purchase price of the acquisition for financial reporting purposes.

5. The final report and all documents supporting any impairment analysis or valuation of intangible assets concerning Unix or Unix-related assets, from 2001 to the present.

6. Any and all documents, communications, or correspondence, whether formal or informal, concerning the foregoing topics.

Definitions and Instructions

A. Definitions:

1. The term "Caldera" shall mean and include, collectively and/or individually, Caldera Systems, Inc., Caldera International, Inc., the SCO Group, Inc., or any affiliated entities, and all directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of Caldera Systems, Inc., Caldera International, Inc., the SCO Group, Inc., or any affiliated entities.

2. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing or constituting.

3. The term "document" shall be synonymous in meaning and usage with the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term "document" shall include without limitation all written, phonic, graphic or recorded matter, including without limitation, information stored on computers, disks, tapes (i.e. magnetic or

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4. The term "including" shall mean including without limitation.

5. The term "person" shall mean any natural person or any private or public entity.

6. The term "Santa Cruz "shall mean and include, collectively and/or individually, The Santa Cruz Operation, Inc., Tarantella, Inc., or Sun Microsystems, Inc., and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of The Santa Cruz Operation, Inc., Tarantella, Inc., or Sun Microsystems, Inc.

7. The term "Unix" shall mean any and all versions, flavors, or other variants of any Unix computer operating system, including but not Limited to all operating systems certified as conforming to the Unix-brand standards set by The Open Group.

8. The term "Unix-related" shall mean any and all technology or intellectual property related to or based upon Unix, including but not limited to the "UnixWare" and "SCO OpenServer" technologies.

B. Instructions:

9. Each paragraph should herein be construed independently and, unless otherwise directed, without reference to any other paragraph for the purpose of 1imitation.

10. The use of any definition for the purposes of this request shall not be deemed to constitute an agreement or acknowledgment on the part of IBM that such definition is accurate, meaningful or appropriate for any other purpose in this action.

11. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, it shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

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13. A11 documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

14. A11 documents produced in response to this subpoena shall be produced, where available, in electronic or machine-readable form.

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EXHIBIT E

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Sent: Mon Dec 12 17:12:19 2005
Subject: SCO v. IBM -KPMG Subpoena Response

Joe Warganz, Esq.
Office of General Counsel
KPMG LLP
[address, email address]

Dear Mr. Warganz (Joe):

Pursuant to our discussions and correspondence, this email confirms that on Friday, December 16, 2005, you will produce to IBM all the responsive documents you have gathered in response to the subpoena that was served upon KPMG LLP on October 31, 2005 in The SCO Group, Inc. v. IBM Corp., No. 2:03-CV-00294 DAK.

Counsel for SCO must contact you and me prior to that time if they wish to halt production or otherwise object. If by December 16, 2005, you have heard nothing from counsel for SCO, you will mail us the responsive documents on that day, at our expense.

Thank you for your assistance in this matter.

Sincerely,

-Peter Donaldson

Peter H. Donaldson

Snell & Wilmer

__L.L.P.__

[address]

[url, date]

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[mail to:pdonaldson email address]

www.swlaw.com

PRIVILEGE STATEMENT - The information in this message (and any attachments) is confidential and may consist of attorney work product and/or legally privileged information. If you are not the designated recipient of this message, please immediately contact Peter H. Donaldson by telephone: [phone]. Thank you.

CIRCULAR 230 DISCLAIMER - Any tax advice included in this message is not intended, and cannot be used for the purpose of (i) avoiding any federal tax penalty, or (ii) promoting, marketing or recommending any transaction or matter to another person.

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EXHIBIT F

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November 21, 2005

VIA FACSIMILE

Peter H. Donaldson
[address]

RE: The SCO Group, Inc. v. IBM;
Subpoena Served On Arthur Andersen LLP ("Andersen")

Dear Mr. Donaldson: I am writing in regard to the subpoena served on Arthur Andersen LLP ("Andersen") in the above-referenced matter.

It is my understanding that the subpoena seeks documents related to Andersen's engagements for The Open Group, Novell, Sun Microsystems, Tarantella, Santa Cruz Operations, and Caldera (together, for purposes of this letter only, "Caldera") for the time period from 1995 through 2001. From a review of Anderson's records, it appears that work related to the engagements was performed in Boston, Salt Lake City, and San Francisco.

As you may be aware, Andersen has closed its operations in Boston, Salt Lake City, and San Francisco. As part of this process, all files have been sent to storage in Iron Mountain facilities in those cities. In addition, it is my understanding that Andersen no longer has any employees sufficiently familiar with the engagements to conduct a meaningful search for documents responsive to the subpoena. In light of these circumstances, Andersen objects to the subpoena on the grounds that it imposes an unwarranted and undue burden on Andersen, a non-party to this litigation. Moreover, the subpoena is oppressive and unreasonable to the extent it seeks information that could be obtained or made available, or that has been obtained or made available, from some other source that is more convenient, less burdensome, or less expensive. In addition, Andersen objects to the requested production of electronic information as duplicative and unduly burdensome on a third party - particularly given Andersen's practice of storing relevant engagement information in hard-copy form, the expense associated with searching for and retrieving any such information, and the lack of personnel available at Andersen to undertake these efforts. Notwithstanding and without waiving the foregoing objections, Andersen will comply with the subpoena through the following process.

The documents, which appear to be related to Andersen's engagements for Caldera for the time period from 1995-2001, will be made available for your review at an Iron Mountain facility.

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You may review the documents at your convenience and tab the documents you wish to have copied. In the alternative, you may request to have the documents pulled and copied directly. Copies of all selected documents will be made by Ikon. The copies will be bates numbered with an AA prefix and will be stamped as "confidential." Ikon will bill you directly for the costs of these copies, and will only release the copies to you upon receipt of full payment. Once the documents have been made available to you, Andersen will consider its obligations under the subpoena to be complete.

Andersen will undertake this process subject to the following conditions:

1. You agree to notify Caldera, The Open Group, Novell, Sun Microsystems, Tarentella, and Santa Cruz Operations or its counsel of both the subpoena and Andersen's intended procedure for responding to the subpoena. In particular, Caldera, or its counsel, should be provided with copies of both the subpoena and this letter, should be informed of the date on which the documents will be made available, and should be instructed to contact me directly should they have any questions or concerns.

2. You agree to bear all costs associated with any production of documents. As indicated above, you will be billed directly for all costs of production, including file retrieval and other access charges and copying costs. Copies of the documents will be released to you only upon full payment of all amounts due.

3. Andersen considers any documents to be produced to be confidential. Thus, Andersen will only produce documents with your agreement that their use will be limited in the following ways: (i) their use will be confined to the above-referenced proceeding; (ii) they will not be further copied or disclosed to persons other than the parties, the court, and experts or consultants retained by the parties in this proceeding; (iii) as a condition precedent to showing or disclosing these documents to your client, experts or consultants, you secure their agreement to be bound by the terms of this letter and/or any applicable protective order; (iv) the documents shall be covered by and subject to the provisions of any protective order issued by the court or agreed upon by the parties to this proceeding; and (v) the documents and all copies thereof will be destroyed after the proceeding has been concluded.

4. Pursuant to Section 7216 of the Internal Revenue Code, Andersen cannot produce any documents or information relating to the provision of tax services without either the express written authorization of the taxpayer or a court order. To the extent you seek the production of documents covered by Section 7216, you agree to obtain from Caldera, The Open Group, Novell, Sun Microsystems, Tarentella, and Santa Cruz Operations express written authorization permitting Andersen to produce such documents. I have attached hereto a sample letter containing the language you should use in obtaining client authorization to release documents or information relating to the provision of tax services. Unless such

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written authorization is provided to Andersen or you obtain a court order, documents covered by Section 7216 of the Internal Revenue Code will be excluded from Andersen's production.

5. Access to documents may not be provided to the extent Caldera, The Open Group, Novell, Sun Microsystems, Tarentella, and Santa Cruz Operations asserts, or has asserted, a privilege-based objection to their production and agrees to provide you with any requisite privilege log. If Caldera makes a privilege-based objection to all or part of the requested production and to the extent Andersen withholds documents as a result of that objection, you agree to resolve any production dispute arising from that privilege assertion directly with counsel for Caldera.

6. You agree that inadvertent production of documents or information subject to the attorney-client privilege, the work product doctrine or any other applicable evidentiary privilege shall not constitute a waiver of, nor a prejudice to, any claim that such or related material is privileged. If you are notified by Andersen that documents have been inadvertently produced, you agree to immediately return such documents to Andersen and destroy all known copies of such documents. If you dispute the propriety of the privilege asserted by Andersen, you agree to seek resolution with the Court only after the documents have been returned to Andersen. In addition, you will not refer to or rely on the inadvertent production as a basis for seeking the production of the documents at issue.

7. In providing you access as described above, it is possible that you may have access to certain documents that are outside the scope of the subpoena. You agree that such access is inadvertent, and expressly agree to only request copies of documents that are in fact within the scope of the subpoena -- i.e., documents related to Andersen's engagements for Caldera and called for by the document requests. If you are provided access to documents related to any other Andersen engagements, or otherwise beyond the express scope of the subpoena, you agree not to copy such documents, and further agree that you will not use such information for any purpose or disseminate such information to any person.

Please be advised that to the extent you undertake a review of documents pursuant to the procedures described above, Andersen will understand that you do so in agreement to each of the conditions detailed above. Please contact me at [phone] to confirm the logistics for the production of documents. Very truly yours,

___[signature]____

Catherine J. Smith

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Attachment

[DATE]

[NAME]
[ADDRESS]

Re: /CASE NAME/

On behalf of [TAXPAYER], please accept this letter as the consent of [TAXPAYER] for Arthur Andersen LLP ("Andersen") to produce the documents responsive to the subpoena directed to Andersen in the above-referenced matter. I understand that some of the documents being produced may have previously been protected under IRS Code 7216 and this letter serves as an express authorization to release the documents.

Sincerely Yours,

______________
[TAXPAYER]

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