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| Wells' 2nd Order on SCO's Motion for in Camera Review - PDF and text |
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Friday, June 23 2006 @ 01:33 AM EDT
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Remember I told you that I thought Judge Wells had ruled on SCO's motion prior to reading SCO's Reply Memorandum [PDF]? Now that she has read it, she has issued a second Order [PDF], granting SCO's new request that it be allowed to see at least redacted versions of the two declarations that IBM attached to its Memorandum in Opposition and to be allowed to present arguments. IBM is to file the declarations also under seal with the court. I told you we hadn't heard the end of the matter. What does it mean? That SCO raised a new issue in a convincing memo it put a lot of effort into, an issue that no judge could ignore without raising other issues, and in her view, there doesn't seem to be much point in not sharing the declarations with SCO, since SCO already saw the underlying documents by mistake. The declarations are from two attorneys, basically saying, I gather, that the underlying documents were indeed privileged. Usually when there is an in camera review request, the party requesting it has not seen the documents. So she is being pragmatic. It also means *we* don't get to see the declarations, let alone the underlying documents, only the judge and the parties. If SCO wishes to present arguments in support of its motion to try to convince the judge that the underlying documents are not privileged after looking over the declarations, it can, with a deadline of July 7. Time will tell if IBM has anything further to add to this mix. Technically, it has had its say, but SCO did raise a new issue, so the door is a bit ajar. I don't know if IBM cares enough to bother.
But that doesn't mean it doesn't matter. I think it does, because it signals that we're in for a bit of a mini-battle over these allegedly privileged documents, and that means delay, and that's SCO's middle name. I can't tell if that's all SCO cares about or if these documents seem truly important to SCO. It's impossible to weigh those nuances when you can't read the documents. Of course, that was SCO's argument precisely, which is why its request was granted. It's a valid issue to raise, and once raised, it has to be walked through. That's how the system works. Litigation can be won and lost on such small details, although in this case, SCO seems doomed no matter what it does.
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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 RE SCO’S MOTION FOR IN
CAMERA REVIEW
JUDGE DALE A. KIMBALL
MAGISTRATE JUDGE BROOKE C. WELLS
__________________________________ After considering Plaintfiff/Counterclaim Defendant The SCO Group’s (SCO) Reply Memorandum in support of SCO’s Motion For In Camera Review of Allegedly Privileged Documents1 and for good cause shown the court hereby orders the following:
Defendant/Counterclaim-Plaintiff International Business Machines Corporation (IBM) is to provide SCO a copy of the declarations from Sharon Dobbs, Esq. and Mark Walker, Esq by June 30, 2006. Additionally, these declarations are to be filed with the court under seal by that
same date. These declarations may be provided in a redacted form although in the court’s view there does not appear to be much material in the declarations that warrants redaction especially given the fact that SCO has reviewed the underlying documents when IBM allegedly disclosed them by mistake.
After reviewing the declarations SCO may file with the court a reply memoranda in support of its motion if it so chooses by July 7, 2006 following which the court will render a decision on SCO’s motion.
IT IS SO ORDERED.
DATED this 22nd day of June, 2006.
BY THE COURT
____[signature]________
BROOKE C. WELLS
United States Magistrate Judge
2
1Docket no. 678.
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| Authored by: Anonymous on Friday, June 23 2006 @ 02:10 AM EDT |
with my apologies for posting a Corrections thread after logging out.
---
--Bill P, not a lawyer. Question the answers, especially if I give some.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 23 2006 @ 02:12 AM EDT |
| Here ya go. See the red text under the typing box for linky
reminders. ---
--Bill P, not a lawyer. Question the answers, especially
if I give some. [ Reply to This | # ]
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| Authored by: elronxenu on Friday, June 23 2006 @ 02:20 AM EDT |
| Sounds like a storm in a teacup to me.
SCO still doesn't get to read over
the Judge's shoulder.
Although they apparently know what's in these documents,
I
guess they want to be able to use some of it in court.
It seems like IBM
tripped over on a minor procedural point
and so SCO are now going to draw it
out for all that it is
worth. [ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Friday, June 23 2006 @ 02:26 AM EDT |
Wells has already made up her mind and is only crossing the "Is" and
dotting the "Ts".
---
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
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 23 2006 @ 02:37 AM EDT |
Couldn't IBM just say the whole of the documents are redacted, until the court
rules otherwise ?
[ Reply to This | # ]
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| Authored by: DaveJakeman on Friday, June 23 2006 @ 04:43 AM EDT |
If you go back and read SCO's Reply Memorandum in Further
Support of SCO’s Motion For In Camera Review of Allegedly Privileged
Documents[PDF] - the one that made Wells change her mind - you will see it
is markedly different to the wild ramblings in SCO's Memo
Opposing IBM's Motion to Confine/Strike.
In their Further Support
memorandum SCO are pounding the law; and in Opposing IBM's Motion to
Confine/Strike, they are clearly pounding the table.
I think the mistake IBM
made was to send copies of the documents to Judge Wells. If they hadn't done
that, Wells' first order might still be good.
---
Shampoo for my real
friends, real poo for my sham friends - not Francis Bacon
---
Should one hear an accusation, try it out on the accuser. [ Reply to This | # ]
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| Authored by: DaveJakeman on Friday, June 23 2006 @ 06:52 AM EDT |
Having reread PJ's article and reread Well's order, I've decided that I'm
confused. Or at least I was confused and might still be:
There seem to be two sets of documents here:
1. The original three documents that SCO saw by accident, has since
"forgotten" and no longer has copies of (honest, gov);
2. The declarations of Sharon Dobbs and Mark Walker.
IBM attached the two declarations “describing the documents in question and
substantiating IBM’s claim of privilege” - according to SCO.
Wells' second order is saying that SCO should be allowed to see redacted
versions of 2 above, not 1.
Presumably then, the declarations are not documents SCO has seen, or "seen
and forgotten", and has not requested or been given via discovery, but is
now requesting.
To my mind then, Wells' second order in no way conflicts with her first order,
which still stands. At first, I thought it effectively cancelled her first
order.
Am I still confused? Is anyone else?
---
Shampoo for my real friends, real poo for my sham friends - not Francis Bacon
---
Should one hear an accusation, try it out on the accuser.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 23 2006 @ 10:46 AM EDT |
Ok, I'm confused. Judge Wells indicates that tSCOg has clearly violated the
agreed upon terms between the parties of returning mistakenly provided
"priviledged" documents. She states "...especially given the fact that SCO has
reviewed the underlying documents..."
So, if tSCOg has violated not only
the parties agreed upon terms, but also normal lawyer ethics by viewing the
documents, why hasn't BSF's conduct at least been brought forward to the lawyers
ethics board? Or am I just wishing to much?
Any lawyers care to
elaborate? [ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 23 2006 @ 01:57 PM EDT |
Sco wants to delay while it launches new products, and while other companies
launch or try to launch new products.
This is so yesterday in the world of tech.It's not about launches anymore,
someone tell these morons they are looking goonish.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 23 2006 @ 01:59 PM EDT |
1. SCO wanted due process so they are getting it. They continue to grasp at
their straws because they have little confidence in their substance.
2. PJ proclaims delay. There is no delay unless the scheduling order changes.
Motions are anticipated in the scheduling.
3. The Judge doesn't seem to think there is much to this. She sees no harm or
concern to anyone by disclosing the documents and she does not anticipate an
argument. She just says she'll rule. Wouldn't it be cute if she issued the
exact same order.
4. There must be some incriminating sounding phrases in this material. If they
are to or from a lawyer, SCO is wasting their time.
5. Comments suggest a reason SCO gets to see it: to be sure they are the
documents they think they had. Wouldn't want IBM to pull a fast one and
mistakenly slip in the wrong doeuments. IBM obviously now has a documented
record carelessness or a record of documentary carelessness.
6. It is obviously something SCO wants to use. For example, it may be a lawyer
discussing how it is necessary to hide similar code for legal reasons. How
frustrating for SCO! Very desirable, but privileged!
7. The Courts and the bar wouldn't want to do anything to prevent clients from
consulting their attorneys. Supposedly consulting your attorney will lead to
compliance with the law. It will also lead to exchange of fees. So your
doctor, confessor, and lawyer are obliged to respect confidentiality.
Communications are therefore priviliged and can't be used. Beyond that lawyers
must respect their client's confidences which is an even broader term.
8. True situation: What does a lawyer do when he sees a sexual deviant he has
represented working in a neighbors flower bed? The neighbor has children.
webster ....[not anonymous but this out of town windows computer won't
let me log on.][ Reply to This | # ]
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