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Wells Grants in Part/Denies in Part SCO's Motion for In Camera Review of IBM Docs - UPDATED
Tuesday, June 20 2006 @ 08:13 PM EDT

We certainly have enough to read. The court has agreed to review IBM's allegedly privileged documents, as SCO requested in its Motion for In Camera Review of Allegedly Privileged Documents, as expected (you'll recall IBM didn't oppose that -- in fact, it delivered the documents itself to the court) but Magistrate Judge Brooke Wells strongly denied SCO's laughable request to look over her shoulder in real time while the review is going on (which IBM did oppose), ruling:
In the court's view this would destroy the purpose of an in camera review as is currently envisioned by the Federal Rules.

That's legalese for: Don't be silly. You know you can't do that. Courts follow the Federal Rules. Don't you?

What does she mean, seriously? She means that under the Federal Rules, if a party gets hold of a document and then is told it's privileged, it must return it immediately and not look at it again. Period. If it wants to see the document again and use it, claiming it is not privileged, it must ask the court to review and rule on whether the document is in fact privileged. If it is, the request will be denied. If not, they will be allowed to view and use them. You'll recall SCO wants to redepose some folks, using the documents. To let SCO look at them prior to that decision would make the process of review moot, would it not?

A confirmed cynic might suspect that SCO already secretly made Xerox copies of all those documents despite the rules and is putting everyone through this motion's request to pretend otherwise. Of course, cynicism isn't nice, so I try never to turn into a cynic, myself, so I'm going to assume that this time SCO is following the Federal Rules to the letter, despite a request to the court to go in the opposite direction. The only way we'll be able to tell is if they get to redepose people and things slip out.

Here's the Order [PDF], so you can read it for yourself. There is also a filing by SCO about serving without using the digital method, Notice of Conventional Filing of SCO's Memorandum in Opposition to Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final Disclosures and Supporting Exhibit [PDF], so I hope you're a speed reader, because more is coming our way. It filed the memo conventionally because it's too large to file electronically, larger than 2 MBs.

UPDATE: SCO filed a Reply Memorandum in Further Support of SCO's Motion for In Camera Review of Allegedly Privileged Documents [PDF] today. It appears that unless the judge is a speed reader herself, she ruled prior to reading it. She already knows the Federal rules, and she's allowed to do that. It's happened before. SCO did a lot of research for this memo, and it raises a new issue, because it is mad that IBM submitted two declarations as to their documents' privileged status without providing SCO with a copy or at least a redacted copy. That deprives SCO, according to SCO, of the opportunity to argue as to the privilege, so SCO does so in the Reply Memorandum. Raising a new issue in a Reply Memorandum deprives IBM of the opportunity to speak on the matter, of couse, but SCO only keeps track of "offenses" to itself, according to its unique world view.

There are three exhibits. Exhibit A is sealed; Exhibit B [PDF] and Exhibit C are available, both of which relate to an older case where there was a hearing scheduled regarding allegedly privileged documents, which was then cancelled, and the party claiming privilege was ordered to provide the court with declarations for in camera review, and redacted copies to the other side, along with a list of all exhibits. What SCO doesn't point out is that this was a special order in a particular circumstance where there was already apparently a pitbull fight going on over certain documents, and in that case, it appears the court didn't trust the party claiming privilege. Here we seem to have the opposite. But SCO wants these documents badly. It wants IBM to have to give it redacted declarations so it can argue as to the privilege. It closes like this:

SCO does not believe that the documents in question here were or remotely suggest that they were created for the "primary purpose" of seeking legal advice or services. SCO requests that the Court reject IBM's privilege claim. SCO also requests the opportunity to review the declarations IBM has submitted ex parte to address their content and whether they support IBM's claim of privilege.

I gather SCO doesn't trust the judge to get it right. It certainly doesn't trust IBM. It wants to be able to guide Judge Wells' judgment, so SCO can argue each point. Being SCO, it's possible we haven't heard the end of this, despite Judge Wells' order today.

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


IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH


THE SCO GROUP INC.
Plaintiff/Counterclaim
Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES CORP.
Defendant/Counterclaim Plaintiff.

__________________________________

Case No. 2:03cv00294 DAK

ORDER GRANTING IN PART SCO'S
MOTION FOR IN CAMERA REVIEW

JUDGE DALE A. KIMBALL

MAGISTRATE JUDGE BROOKE C. WELLS

________________________________

This matter is before the court on Plaintfif/Counterclaim Defendant The SCO Group's (SCO) Motion For In Camera Review of Allegedly Privileged Documents.1 Defendant/Counterclaim-Plaintiff International Business Machines Corporation's (IBM) has submitted the documents at issue for in camera review. Accordingly, SCO's motion is GRANTED in PART. The court is reviewing the documents and will inform the parties in due course whether the court finds the documents at issue privileged.

1

The court however, DENIES SCO's request for a contemporaneous review of the documents. In the court's view this would destroy the purpose of an in camera review as is currently envisioned by the Federal Rules.

IT IS SO ORDERED.

DATED this 20th day of June, 2006.

BY THE COURT:

___[signature]___
BROOKE C. WELLS
United States Magistrate Judge

2

1 Docket no. 678


  


Wells Grants in Part/Denies in Part SCO's Motion for In Camera Review of IBM Docs - UPDATED | 58 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: SpaceLifeForm on Tuesday, June 20 2006 @ 08:55 PM EDT


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Off-topic here, please
Authored by: overshoot on Tuesday, June 20 2006 @ 09:12 PM EDT
The usual instructions, thank you.

[ Reply to This | # ]

SCO files overlength motion as text, rather than electionically.
Authored by: sschlimgen on Tuesday, June 20 2006 @ 09:40 PM EDT
In the past, SCO has filed ex parte motions requesting permission to file
electronically on overlength motions, but they didn't this time.

Hmm.

You don't suppose it's because that will slow down IBM's access to the verbiage,
and the analysis here as well, do you?

My cynicism meter has pegged on this one. I can just see some poor paralegal at
BS&F getting yelled at: "What do you mean, the pdf is less than 2MB?!?
Add more whitespace! Throw in a couple more pages of random citations! We've GOT
to get it over that limit, so IBM has to do the scanning work!"

Every time I think SCO has hit bottom, they find another sewer to slither into.

---
Meandering through life like a drunk on a unicycle.

[ Reply to This | # ]

2 MB !!
Authored by: eamacnaghten on Tuesday, June 20 2006 @ 09:43 PM EDT
2 MB is massive. It is about the size of the Bible.

Was this not the document that SCO wanted to give IBM 3 days to reply to? (link).

In fact, I believe they only have 7 to go through this monster.

I find it amazing that such childish tactics are tolerated, and sometimes applauded, in what is meant to be a system for distributing justice.

Web Sig: Eddy Currents

[ Reply to This | # ]

Wells Grants in Part/Denies in Part SCO's Motion for In Camera Review of IBM Docs - UPDATED
Authored by: Anonymous on Tuesday, June 20 2006 @ 10:02 PM EDT
"Notice of Conventional Filing of SCO's Memorandum in Opposition to Motion
to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final
Disclosures and Supporting Exhibit"

BSF must think they are being paid by the word!

I think this is the longest motion title yet!

[ Reply to This | # ]

Any way to tell when it's been filed?
Authored by: Anonymous on Tuesday, June 20 2006 @ 10:25 PM EDT
I might be able to run over to the courthouse and Xerox it - or would they PDF
it first, before they let people off the street get at it?

MSS2

[ Reply to This | # ]

Document 707
Authored by: fava on Tuesday, June 20 2006 @ 10:29 PM EDT
Document 707.pdf aka "Memorandum in Opposition to Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final Disclosures and Supporting Exhibit" is available at:

http://www.u pload2.net/page/download/Y3WtTzyACwuKPiD/707.pdf

Its 631 kB and 20 pages, not that massive.

fava

[ Reply to This | # ]

Is SCO's oposition to the declarations valid?
Authored by: Anonymous on Tuesday, June 20 2006 @ 11:34 PM EDT
Do they have a legitimate claim? Im just wondering if the reply memo was just
some inventive way to get what SCO wanted.

[ Reply to This | # ]

Federal rules
Authored by: lordshipmayhem on Tuesday, June 20 2006 @ 11:49 PM EDT
"Courts follow the Federal Rules. Don't you?"

SCOX: "No."

[ Reply to This | # ]

Privilege logs?
Authored by: whoever57 on Wednesday, June 21 2006 @ 12:30 AM EDT
I wonder if IBM has received the SCO's privilege logs yet and, if not, what they
plan to do about it.

[ Reply to This | # ]

"Cynicism isn't nice"
Authored by: Anonymous on Wednesday, June 21 2006 @ 05:01 PM EDT
PJ, you realise that there are entire nations, for example the UK, whose peoples are renowned for their cynicism? Are you saying we all aren't nice? :-)

[ Reply to This | # ]

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