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| SCO v IBM Stipulation Re Discovery & Order |
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Saturday, March 18 2006 @ 08:06 AM EST
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The parties in the SCO v. IBM litigation have stipulated to an adjustment to the schedule in the case regarding discovery, and there is a proposed Order Re Discovery [PDF]. The new deadlines would be:
Initial Expert Reports - May 12, 2006 (it was April 14)
Opposing Expert Reports - June 9, 2006 (it was May 19)
Rebuttal Expert Reports - July 7, 2006 (it was June 16)
Dispositive Motions - August 4, 2006 (it was July 28). It's not a significant shift, as you can see. The final deadline for expert discovery hasn't changed. It is still July 10. But what is really interesting is this Stipulation Re Discovery [PDF] between the parties, in which they try to settle all outstanding discovery issues not mentioned in the Order. Essentially, except for the items listed here, fact discovery is over as of yesterday, March 17, and there are no further disputes between the parties over discovery except what is in the stipulation. There are still some permitted depositions, of course, and some documents still to be turned over, and they agree that there could be issues related to those discovery matters down the road. The stipulation includes this agreed term: The parties agree that relevant documents produced by any party in the SCO v. Novell litigation shall be provided to counsel for the parties in this case. It is inevitable that this would happen, because of how important some of the issues are in the Novell case -- most fundamentally whether SCO even has ownership of the copyrights to the code they are suing everyone about -- and the overlap between the two cases.
IBM has an interest in knowing about discovery on issues in that case that impact this litigation, so they negotiated, I gather, this term. There is now a process in place in principle whereby IBM will be given anything either party provides the other that is relevant here. Of course, there certainly could be disputes about the definition of "relevant". Actually, the stipulation says "any party", not "either party", so if other parties were to enter the case down the road, discovery materials provided by them would also be covered by this stipulation. I don't know if that is foreshadowing other parties being drawn in, or if it is just one of those times when this word happened to be chosen instead of that one. Lawyers use words purposefully and carefully, however, so they generally do mean something, if only that they are trying to cover all conceivabilities. The parties have also agreed to limit motions to compel. That's good. SCO was running out of titles to call their new re-re-renewed re-re-refiled motions to compel again. Of course, we'll have a bit less fun. You will recall that SCO was given permission to file a renewed motion to compel by Judge Wells at the February 24, 2006 hearing. She told SCO it had 30 days to file a renewed motion which clearly and narrowly defined areas not addressed by documents already produced by IBM. However, in the meantime, the parties have narrowed what that motion to compel would include, if it ever gets filed. The parties are still negotiating, and it's possible things will be resolved without the need for a motion. That whole strategy, to try to make IBM look like it was dragging its feet in discovery and not handing over what it should, didn't work out for SCO. Now, there is a stipulation to cut it out. At least, that is how it strikes me. On the other hand, just because SCO says they won't bring a motion to compel doesn't mean it can't invent some workaround way to do more or less the same thing, I suppose. The stipulation goes essentially like this regarding motions to compel: The parties have agreed that SCO will only ask in a motion to compel for materials in Topic 9 and 10 of SCO's Notice of Deposition dated November 11, 2005 (that would be found in this document [PDF]), and only if the parties can't agree. Topic 9 and 10 read like this: 9. The restrictions that IBM's AIX Licenses have imposed on the licensees' use or distribution of AIX source code, methods, or concepts, or of products that the licensee develops after entering into the AIX License.
10. The restrictions that IBM's Dynix/ptx Licenses have imposed on the licensee's use or distribution of Dynix/ptx source code, methods, or concepts, or of products that the licensee develops after entering into the Dynix/ptx License.
IBM agrees it will only bring a motion to compel regarding certain listed issues found in a Ted Normand letter of March 10, 2006 to Todd Shaughnessy, on Topics 5 and 18 of IBM's March 19, 2005 deposition notice, and Topic 23 of IBM's February 14, 2006 deposition notice. I can't find a March 19, 2005 or a February 14, 2006 deposition notice or the letter, so I have no idea what that is about, but I'll keep looking and will provide a link later if I succeed. The deposition notices should be on Pacer, but I can't match up the dates. It's possible I just can't see them right in front of my nose, but I just spent over an hour hunting for the referenced materials, and I simply don't find them. If you do, sing out, please. Discovery isn't always done in public, and I see several references to letters between the attorneys, and it's certainly possible we'll never see those letters. We'll likely be able to figure out the gist of it in time, as we watch developments, however. Other than that, the parties agree not to bring motions to compel, unless it is about something in discovery that hasn't happened yet or it's about privilege logs. That may indicate that the privilege log order hasn't yet been fully complied with or that the parties just haven't finished reviewing what was turned over, so they are keeping their foot in the door, just in case they decide the production wasn't complete. So in general, this is a document to wrap up discovery, but to allow the straggling stuff that still didn't get finished. They have depositions still to do and some document discovery still to go. It also prevents unnecessary motion practice in two ways: it is an agreement listing what can be the topic for a motion to compel, which hopefully will keep SCO from getting too creative; and second, it lays out the groundwork of the agreement so that if either party doesn't keep a promise listed, the other side has a solid basis to take action. Finally, there is now an Order [PDF], based on the stipulation by the parties, signed by Brooke Wells on March 10th, that the court clerk is to seal "Exhibits 1 and 2 of Attachment A to the subpoena attached as Exhibit A to the Notice of Subpoena Duces Tecum re Houlihan Valuation Advisors, filed on February 22, 2006 (Docket No. 631)." As you can see, lawyers need a good head for detail. Speaking of detail, I think this is the first document filed with this notation: (e-filed with authorization of counsel).
******************************
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Nathan E. Wheatley (9454)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
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.
________________________________
STIPULATION RE DISCOVERY
Civil No.: 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
The parties, by and through their counsel of record, hereby stipulate and agree as follows:
1. The Court’s Scheduling Order, dated July 1, 2005, shall remain in force and effect, except that certain deadlines shall be modified as follows:
Initial Expert Reports May 12, 2006
Opposing Expert Reports June 9, 2006
Rebuttal Expert Reports July 7, 2006
Dispositive Motions August 4, 2006
2. All fact discovery is closed as of March 17, 2006, except that the depositions, as noticed, of (a) Messrs. Messman, Wilson, Lemon, Prosser, MacKay, Negris, Young, Spencer, and Bawa; (b) the Rule 30(b)(6) depositions described below, and (c) the depositions of Sun, Microsoft, HP, and Baystar/Goldfarb to the extent of subpoenas already served on those parties, shall not be precluded based on the close of fact discovery.
3. IBM shall produce Mr. Sandve for two additional hours of Rule 30(b)(6) deposition testimony pursuant to Topics 6, 7 and 12 of SCO’s Notice of December 23, 2005; subject to the reservation of objections set forth therein, SCO shall produce 30(b)(6) witnesses as described in Ted Normand’s email to Todd Shaughnessy dated March 9, 2006; and IBM will make a reasonable effort to produce that discovery set forth in the first paragraph of Ted Normand’s email to Todd Shaughnessy dated March 17, 2006, if it can do so without undue burden.
4. The parties have reviewed one another’s document productions, met and conferred, and agree that, except as stated below, there are no discovery disputes between them, subject to the following representations.
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a. IBM represents that it has taken reasonable steps to supplement its document production, except that IBM will undertake a reasonable search for additional documents from the files of the individuals identified in Ted Normand’s letter of February 23, 2006, to Todd Shaughnessy;
b. SCO represents that it has taken reasonable steps to supplement its document production, except that SCO will undertake a reasonable search, after consultation with IBM concerning some of those requests, for those categories of documents in Ted Normand’s March 10, 2006, letter to Todd Shaughnessy as to which SCO has not concluded a reasonable search;
c. The parties agree that relevant documents produced by any party in the SCO v. Novell litigation shall be provided to counsel for the parties in this case.
5. The parties shall not pursue motions to compel against one another, including the motion to compel allowed by the Court at the February 24, 2006, hearing, except as follows:
a. If the parties are unable to resolve their differences, SCO may pursue a motion to compel against IBM regarding Topics 9 and 10 of SCO’s Notice of Deposition dated November 11, 2005.
b. If the parties are unable to resolve their differences, IBM may pursue a motion to compel against SCO regarding issues identified in Ted Normand’s letter of March 10, 2006, to Todd Shaughnessy as to which SCO has not yet concluded a reasonable search for responsive documents; Topics 5 and 18 of IBM’s March 19, 2005, Rule 30(b)(6) deposition notice; and Topic 23 of IBM’s February 14, 2006, Rule 30(b)(6) deposition notice.
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c. If the parties are unable to resolve their differences, either party may pursue a motion to compel with respect to the fact and Rule 30(b)(6) depositions that have not yet occurred identified in paragraphs 2 and 3 above. With respect to the deposition of Bill Sandve referred to in paragraph 3 above, any such motion shall be limited to objections or instructions made at the time of that deposition.
d. The parties reserve the right to bring motions to compel regarding the sufficiency of their respective privilege logs and/or documents claimed as privileged, or other privilege issues.
6. The parties shall exchange responses to one another’s Requests For Admission on or before May 1, 2006; all existing deadlines to respond to Requests for Admissions shall be extended to May 1, 2006.
DATED this 17th day of March, 2006.
Snell & Wilmer L.L.P.
/s/ Nathan E. Wheatley
Alan L. Sullivan
Todd M. Shaughnessy
Nathan Wheatley
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
4
DATED this 17th day of March, 2006.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER, LLP
Stuart H. Singer
By___/s/ Stuart H.Singer_____________
Counsel for Plaintiff
(e-filed with authorization of counsel)
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| Authored by: Anonymous on Saturday, March 18 2006 @ 08:27 AM EST |
Is it possible SCO see the light, and decided to act nice
from this point on?
If not, then I hope the light they are seeing is in a
tunnell, and the light is the front of a train coming
their way.
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| Authored by: MathFox on Saturday, March 18 2006 @ 08:31 AM EST |
If any...
---
When people start to comment on the form of a message, it is a sign that they
have problems to accept the truth of the message.
[ Reply to This | # ]
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| Authored by: MathFox on Saturday, March 18 2006 @ 08:34 AM EST |
For Open Source and legal issues.
There is a receipe for the creation of links on the comment page; don't forget
to select HTML mode.
---
When people start to comment on the form of a message, it is a sign that they
have problems to accept the truth of the message.
[ Reply to This | # ]
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| Authored by: tiger99 on Saturday, March 18 2006 @ 08:49 AM EST |
| IANAL, so I am wondering if such a thing has ever happened before, in a large
and complex case? Anywhere for that matter, not necessarily in Utah or even the
US. Obviously all Groklaw regulars will have their opinions, mostly in
agreement, about the final outcome, but I am wondering merely about the
precedent for such a thing, and whether other cases ever got this far, or does
this really set a new worldwide level of stupidity and foolishness, as far as
the legal process is concerned? Maybe it also sets a new level of tolerance by
judges? (Yes, I know they are only allowing SCO every possible chance to present
their case, to avoid any excuse for an appeal, but even so....) Or perhaps we
could say that they have been given the longest ever piece of rope, with which
to hang themselves? [ Reply to This | # ]
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| Authored by: iksrazal on Saturday, March 18 2006 @ 08:58 AM EST |
Hi all,
I'm just wondering if the March 17th cutoff date and these adjustments clear up
when we can expect partial summary judgements. I guess I'm really asking when we
can expect that Kimball will issue orders removing much of SCO's case due to
that they (SCO) have no facts in question for a trial to decide.
And I'm also curious when the Nazgul will start earning its reputation and
really start to hit SCO with its counter claims.
IOW, I'd like to know when SCO will finally take a huge hit so that the media
will stop using this case to flame against OSS.
Lastly, what, if anything, looks like its going to trial.
I'm a newbie so bear with my questions if they are too big.
iksrazal - obviously IANAL[ Reply to This | # ]
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| Authored by: Dan M on Saturday, March 18 2006 @ 09:04 AM EST |
"Finally, there is now an Order [PDF], based on the
stipulation by the parties, signed by Brooke Wells on
March 10th, that the court clerk is to seal "Exhibits 1
and 2 of Attachment A to the subpoena attached as Exhibit
A to the Notice of Subpoena Duces Tecum re Houlihan
Valuation Advisors, filed on February 22, 2006 (Docket No.
631)."
I would think that if these exhibits are of value to
investors in a public corporation it shouldn't be allowed
to be sealed. [ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Saturday, March 18 2006 @ 09:21 AM EST |
"ANY party IN the SCO v. Novell litigation" seems to include THIRD
parties, not just the parties "TO" the litigation.
I wonder if my reading is correct and if any of that discovery is covered by
confidentiality agreements which might lead to objections from those third
parties?
Also who gets to decide what is relevant?
SCOG has access to all of the material, but IBM doesn't and would either have to
rely on Novell (or SCOG) to determine what is relevant or review it all
themselves.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
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| Authored by: Anonymous on Saturday, March 18 2006 @ 09:27 AM EST |
Am I the only one who thinks SCO will try to seal damaging documents in the SCO
v. Novell litigation thus excluding IBM from reading them?[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Saturday, March 18 2006 @ 11:12 AM EST |
While the end of discovery certainly was a major factor in IBM and SCOG coming
to terms, I wonder how much effect Judge Wells' recent comments and rulings
had.
In recent hearings she has made several comments about the responsibilities of
counsel to cooperate. She also firmly and quickly denied SCOG's motions.
Taken together I wonder if this caused SCOG to conclude they could get more
horse trading with IBM than by going back to Wells?
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
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| Authored by: The Mad Hatter r on Saturday, March 18 2006 @ 11:28 AM EST |
This move by BSF reminds me of a particularly bratty child my children used to
play with. Inevitably he would under parental pressure (his parents are really
nice people) agree to play nicely, and five seconds later - bang!
I should mention that said bratty child has turned into a responsible nineteen
year old man, who has now bought a house, and was married to a wonderfull young
lady a week ago today.
So maybe BSF is turning a new leaf. Maybe they just think they've gotten away
with as much as they can for now. Or maybe this is a publicity stunt to make
them look better.
Time will tell.
---
Wayne
http://urbanterrorist.blogspot.com/
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| Authored by: stats_for_all on Saturday, March 18 2006 @ 11:39 AM EST |
| This stipulation-to-delay reveals that Tim Negris has been served by IBM.
I
don't believe that has been previously reported.
In August 2005, MO'G
reported on the Negris hire. She led the story with a
memorable turn of phrase,
"What's an ex-IBM'r parachuting into SCO without
a haz-mat suit." (paraphrased
from memory).
That same story revealed that Negris had personally reviewed
the evidence of
"infringement" with SCO lawyers and found it convincing, before
accepting
the job offer as VP Marketing.
The Negris deposition may indicate
that IBM wants to get his description of
that "convincing" evidence-- since
they can't get a straight answer from SCO
otherwise.
My difficulty with
this account of Negris reviewing the code before hiring on is
the MO'G story
has completely vaporized from the web. Anyone have any
reference to the
"parachuting into SCO without a Haz-Mat" story, please?
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| Authored by: AllParadox on Saturday, March 18 2006 @ 12:00 PM EST |
You should presume that there is a direct line between the offices of the IBM
attorneys and the Novell attorneys.
There are strong reasons for them to work together on most issues, and a few
reasons for them to keep confidentialities on a few topics.
Assume that anything publicly filed in SCO v. Novell is already being copied,
daily, by a clerk for the IBM attorneys.
Assume that anything not publicly filed, but not sealed, is being automatically
copied by a Novell clerk and sent to IBM, daily.
Assume that IBM is already getting most of the sealed documents disclosed by
Novell to "The SCO Group". Assume also that this is becuse IBm has
signed a non-disclosure agreement with Novell, agreeing to keep confidential all
those sealed documents.
Assume from now on that anything filed under seal in SCO v. Novell by "The
SCO Group" will have a cross-check performed. A Novell clerk will call a
counter-part at IBM and ask if they have a copy of the "XYZ" document,
dated "the fourth of whenever". If not, a low-level Novell attorney
will review the document and give IBM a heads-up about whether the document
might be interesting or not.
Please consider the history of this case, and the apparently appalling lack of
records by "The SCO Group".
As a practical matter, this implies that they simply do not have most records
prior to a certain date, probably the date of the oldSCO / Caldera-newSCO
transaction.
At this point, there is little that "The SCO Group" has to hide about
direct issues in either case, that is not already in the hands of either IBM or
Novell.
As a practical matter, it is likely that IBM now knows better than "The SCO
Group" about what "The SCO Group" has done, at least about things
directly related to issues in SCO v. IBM. Everything the attorneys for
"The SCO Group" attempt will be disemboweled by opposing cousel
holding documented facts.
For the attorneys for "The SCO Group", future motions and hearings
will be an unrelenting descent into a lawyer's worst nightmares.
---
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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| Authored by: geoff lane on Saturday, March 18 2006 @ 02:16 PM EST |
| When TSG is a smoking caldera, who else will have a serious headache? It's
pretty obvious that IBM is tracking the money back from TSG and almost certainly
has it's legal people talk to the legal people of Novell, Sun, HP and others on
a regular basis (Sun especially as they now own everything of SCO that didn't
get spun off as what would become TSG.)
If there is one common object of
hate between this group of companies it is Microsoft. At various times in the
past each of IBM, Novell, Sun and HP has had problems with Microsoft. Some have
had legal paydays some haven't yet.
If a money transfer from Microsoft to
TSG (however indirect) is discovered that cannot be explained away by a
legitimate business transaction, exactly how much trouble would Microsoft be in?
Could it trigger an anti-trust investigation of the connections between
Microsoft and TSG?
Could EV1, Redhat, Daimler-Chrysler, Novell have a case
against Microsoft?
---
I'm not a Windows user, consequently I'm
not
afraid of receiving email from total strangers.
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