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IBM's Legal Authority Re Otis Wilson Deposition, as text |
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Sunday, August 20 2006 @ 04:21 PM EDT
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Here's IBM's Legal Authority Re Otis Wilson Deposition [PDF], as text, thanks to the wonderful bot Carlo Graziani wrote for me. The bot can't do PDFs that are snapshots instead of text, however, which means we need volunteers to do the deposition transcript itself, at least an OCR, as well as the Edward Normand Declaration and Otis Wilson's Brief in Support of Motion to File Declaration [PDF] in the North Carolina ancillary action. To understand what is going on and have all the interested parties' positions represented, we need all of the above, at a minimum. The bot can do the Wilson document. When you read all three, you find that there is a dispute as to whether what Mr. Normand told the court about the teleconference was accurate. That does not surprise you? It seems IBM's attorney on that same call was out of the country and thus unable to present IBM's memory of what was said in an affidavit.
I finally have all the documents from the North Carolina action uploaded to the article's table, and I've marked the ones we had before in purple, so you will know which ones are new. Most are new. If there are others in the collection you'd like to do as text, just feel free to sing out that you'll work on it and then send to me as either plain text or HTML in a plain text email. We only had three or four of the NC documents to begin with, and there are around 20 documents in all, counting exhibits, so there's a lot more there now. You should be able to piece together the happenings very readily now, so you will be able to follow the arguments presented by all sides in the dispute over what SCO is allowed to ask Mr. Wilson at a second deposition.
I had an opportunity meanwhile to read a bit more of the deposition transcript, and I'm going back to read more now, but what I noticed is that according to what is said at the opening of the 2004 deposition, the two sides agreed to split the time evenly, with each side getting approximately 3 1/2 hours to ask Mr. Wilson what it wished to ask. The discussion at the beginning of the session went like this, beginning on page 7 of the June 2004 Otis Wilson deposition transcript, part 1 [PDF]:
Marriott: Counsel discussed before the deposition the ways in which we might allocate time, and we did not reach, I believe, a firm agreement, but it was at least proposed that we each contemplate taking somewhere in the order of 3.5 hours, and then if a party feels they -- they require more time, that's something they would take up with the appropriate court.
So I think our agreement, and you can tell me if I've got it right, Counsel, is that we'll each endeavor to be finished within -- within, say, our 3.5 hours, and --
Gant: We will each endeavor to roughly take that much time. We will endeavor not to take more of Mr. Wilson's time than necessary. And I don't anticipate that we'll have problems doing that, but that we can address the issue amongst ourselves or with the court, if necessary, if either party thinks they need more time.
Marriott: OK. Thank you. As I think you know, we, at Cravath, represent, not only IBM, but also Mr. Wilson. And I've provided for you as an exhibit a copy of the retention letter that exists between Mr. Wilson and Cravath. That's Exhibit 78. And I point this out, merely to say that Mr. Wilson retained us in or about the 6th of May 2004. So any communications that we had with Mr. Wilson before then, so far as we're concerned, are fair game for inquiry.
Communications after the time in which we began to represent him become a bit more problematic, and we can confront those when we -- when we do.
Mr. Wilson has -- has, as you know, I believe, Counsel, provided two sworn statements for litigation, and I want to just say for the record that those have been provided to you as -- not only this morning before the deposition, but as -- as required, as I understand it, by Magistrate Judge Wells in advance of the deposition.
Gant: And I'll confirm that we received those at approximately 11:00 p.m. this past Tuesday. And, although I don't think anyone has an interest in rearguing any of the issues related to that, I just want to note for the record SCO's objection, which we registered at the time of the deposition, which occurred this past Tuesday, where this issue first surfaced, that we do not believe that we were given an adequate opportunity to review declarations that were executed by third parties, and that it has prejudiced our ability to properly examine the witnesses, and these documents should have been produced earlier, and we will reserve all rights and the opportunity to request appropriate relief from the court on this issue....
So SCO's beef was that it didn't have time to review materials prior to the deposition. That is still their position. You can see why they carefully preserved that beef when you read from page 20:
Wilson: The -- the restrictive covenant of the licensing agreements only pertained to that portion of the software project originally supplied to our licensees. And so any -- any derivative or modification of work that they produced that contained parts of the software product that they were licensed for had to be protected under the same covenants of the software licensing agreement.
Marriott: Did -- did AT&T, as you understand it, Mr. Wilson, intend its licensing agreements to protect anything other than the software product, as that term is defined in the AT&T, UNIX licensing agreements?
Gant: Objection. Leading, vague, foundation, calls for speculation and legal conclusions.
Wilson: We did not.
Marriott: Did AT&T intend its UNIX licensing agreements to place restrictions on the extent to which its licensees could use, distribute, disclose or transfer modifications and derivative works of the software product independent of any software product included in the modification or derivative work?
Gant: Same objections and also compound.
Wilson: We did not.
So, piece by piece, the picture is getting clearer. I'll write more when I finish reading everything. For now, here's IBM's Legal Authority Re Otis Wilson Deposition [PDF] as text:
**********************************
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[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.
____________________________
IBM'S LEGAL AUTHORITY RE
OTIS WILSON DEPOSITION
Civil No. 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
___________________________
Pursuant to the request of the Court at the telephone conference held on August 14, 2006,
defendant and counterclaim plaintiff International Business Machines ("IBM") hereby submits
three cases addressing the issue raised by Magistrate Judge Wells--whether the North Carolina
District Court, in ruling on objections made by a third party, could properly modify or vacate a
discovery order previously entered by this Court in ruling on separate objections made by IBM.
The following cases recognize: (1) the judge before whom an action is pending has full
authority over discovery proceedings in that case (indeed that judge has an obligation to
supervise discovery1); and (2) while other "ancillary" courts may be necessary to issue or enforce
subpoenas, those ancillary courts must respect prior discovery rulings made by the court before
whom the action is pending (particularly where that prior ruling involves the objections of a
party (IBM) who was not before the court in the "ancillary" proceeding).
1. Fincher v. Keller Industries, Inc., 129 F.R.D. 123 (M.D.N.C. 1990) -- The very
federal district court that issued the order upon which SCO relies held that in an "ancillary"
proceeding to enforce a subpoena issued to a third party, the North Carolina court cannot allow
discovery that has been disallowed by the court before whom the action is pending. In resolving
an objection to a deposition subpoena, the North Carolina court stated "[e]ven though this Court
is the proper one to rule on plaintiffs' motion [to compel compliance with a deposition
subpoena], it nevertheless will look at the status of the proceedings in the district where the
action is pending and at relevant rulings issued by that court. . . . The parties discovery rights in
this district can rise no higher than their level in the district of trial." Id at 125 (emphasis
added).
2. Mycogen Plant Science, Inc. v. Monsanto Co., 164 F.R.D. 623 (E.D. Pa. 1996) --
In reviewing a motion to quash a subpoena issued in connection with an action pending in
2
another jurisdiction, the court recognized that "[t]he unpleasant task of determining the scope of
discovery" falls on the court before whom the action is pending. "A district court whose only
connection with a case is supervision of discovery ancillary to an action in another district should
be especially hesitant to pass judgment on what constitutes relevant evidence thereunder. The
ancillary court should take its law of the case from the non-ancillary court and should avoid
influencing that court's view of the legal issues." Id at 627.
3. Dreyer v. GACS, Inc., 204 F.R.D. 120 (N.D. Ind. 2001) -- In an action to enforce
a subpoena issued to a third-party in Indiana, the court stated that "[a]s the `ancillary' court, we
recognize [the forum court's] discovery deadlines as a matter of comity and accommodation to
the trial court. Stated another way, the Defendants' discovery rights here are no greater than they
are in the Western District of New York." Id at 122 n. 5 (emphasis added).
CONCLUSION
IBM respectfully requests that the Court enter an order stating that its prior order dated
January 26, 2006 [Docket #604] remains in effect.
DATED this 16th day of August, 2006.
Snell & Wilmer L.L.P.
/s/ Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
1
Paramount Film Distributing Corp. v. Civic Center Theatre, Inc., 333 F.2d 358, 362 (10th
Cir.1964) ("It is of course the duty of the trial judge to supervise and control discovery; he is the
only one who can do it effectively. If this duty is not exercised, the rules of discovery may be
perverted to bring about serious injustices.")
3
CERTIFICATE OF SERVICE
I hereby certify that on the 16th day of August, 2006, a true and correct copy of the
foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system
to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
and by U.S. Mail, postage pre-paid to:
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
/s/ Todd M. Shaughnessy
4
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Authored by: MathFox on Sunday, August 20 2006 @ 04:30 PM EDT |
For Pamela (and her pdf conversion bot)
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If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.[ Reply to This | # ]
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Authored by: MathFox on Sunday, August 20 2006 @ 04:38 PM EDT |
Other Open Source and Legal issues here.
Post links to other stories and a few lines describing the target of the link.
---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, August 20 2006 @ 04:48 PM EDT |
BS (now, there's an appropriate acronym) are objecting to questions put to Mr
Wilson about AT&T's intents as "speculation". As I understand it,
he's the best authority that IBM could find on the AT&T licenses, so if he
doesn't know, and BS view the question as Mr Wilson speculating on what
"AT&T" really intended, who is the "AT&T" in IBM's
question? Who could better represent them than Mr Wilson?[ Reply to This | # ]
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Authored by: sproggit on Sunday, August 20 2006 @ 05:44 PM EDT |
Some time ago, when we were reviewing documents in Novell, PJ posted a
fascinating piece in which we learned about a Board Meeting that had been held
by the Novell Directors, and which took place with close proximity to the date
of one of the key transactions with OldSCO.
We learned in that piece
that Novell as a company have this - and please excuse my lack of memory here -
centralised document store which can, IIRC, literally be a plain and simple
filing box. Salient points of the board meeting - ie records - would be filed in
this storage medium for future reference.
So I'm curious.
I
understand and accept that Mr Wilson is the closest thing that either side in
the SCO vs. IBM case can find to an expert on the terms and understanding
of the original AT&T/IBM transaction. He was there and he worked on the
deal. But I would also expect that a sale of this complexity and with the side
letters would also generate a certain amount of correspondence between AT&T,
their lawyers, IBM and their lawyers.
Notwithstanding the rights or
abilities for either party to subpoena these records [and I do believe that
after TSGs close of "Discovery" we saw a flurry of activity from IBM in terms of
requesting material from lawyers involved in the asset deals, would it not be
possible to simply go back to AT&T and ask for the detailed records. I guess
this is a stupidly rhetorical question to which the answer is "No!" - if not
someone would have done this by now. Not only should AT&T have records, IBM
should have a mirroring or complimentary set in their corporate documents.
Maybe I've just allowed myself to be carried along by PJ's boundless
enthusiasm and her descriptions of the way that good lawyers make sure that all
these details and legal transactions are "just so". Maybe that doesn't always
happen in every case and that even big companies suffer at the hands of
less-than-ideal law firms and don't always get what they think they've paid for.
Maybe that in this case the timescales we're discussing are so significant that
some of this material would be considered "beyond useful life" and could have
been disposed off. It's interesting that - considering the monetary value of
some of these transactions - the lack of clear, unambiguous and downright absent
documentation that seems to exist. For example, would anyone reading this cast
aside the deeds to a home that they had owned for 25 years, on the basis that,
shucks, we haven't needed this for so long, it can't be important or needed any
more??? [I don't think so!]
Maybe if I were a shareholder in any of
these companies I might be heading to the next Annual General Meeting to ask a
few questions and try and reassure myself that the company I was investing in
wasn't playing fast and loose with potentially valuable assets.
Which
brings me on to a completely unrelated thought in the follow-the-money train of
thought. Typically companies can or do undertake routine valuations of their
assets and then "write down" a portion of this each year for tax purposes. You
know the drill. You buy a truck for $50,000 and then each year for five
years you write off $10,000 as it depreciates due to age and miles
travelled. So if The SCO Group believed that it held the full rights to this
"intellectual property" as it claimed, surely it would be there, plain for all
to see, in financial statements lodged with the SEC? Profound apologied if we've
covered this angle before, but surely a failure to do this is negligent at best
and criminal at worst? Or - being deliberately provocative - it suggests that
newSCO did not and does not believe it owns those assets, contrary to what it's
been declaring in various Courts and to the media.
I guess that I'm
just amazed that companies as "old" and "wise" [and I do hope neither AT&T
nor IBM would be upset with me by describing them in this way] would fail to
adequately record such potentially useful data...
Fascinating![ Reply to This | # ]
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Authored by: kh on Sunday, August 20 2006 @ 06:12 PM EDT |
Why is it that it seems that IBM is representing Mr Wilson against a hostile
SCO? Just because IBM found him first?
Also It seems to me that SCO is claiming they are the complete successor to the
contract with AT&T so why don't they know more about the AT&T side of
the contracts?[ Reply to This | # ]
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Authored by: RFD on Sunday, August 20 2006 @ 06:40 PM EDT |
We know from the above document that there was a telephone conference on August
14--do we know anything else about it? Who asked for it? Why? Does anyone know
if there is anything on pacer about it. The timeline has three entries for that
day, but nothing about a telephone conference.
Was it during this telephone conference that MJ Wells learned about what was
going on in NC, or did she find out about it some other way, and she asked for
the conference?
Would the North Carolina court have advised the court in Utah of what was going
on?
Does a court reporter transcribe telephone conferencces?
---
Eschew obfuscation assiduously.[ Reply to This | # ]
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- I Am Curious - Authored by: PJ on Sunday, August 20 2006 @ 08:27 PM EDT
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Authored by: blacklight on Sunday, August 20 2006 @ 07:10 PM EDT |
"Marriott: Did -- did AT&T, as you understand it, Mr. Wilson, intend
its licensing agreements to protect anything other than the software product, as
that term is defined in the AT&T, UNIX licensing agreements?
Gant: Objection. Leading, vague, foundation, calls for speculation and legal
conclusions.
Wilson: We did not.
Marriott: Did AT&T intend its UNIX licensing agreements to place
restrictions on the extent to which its licensees could use, distribute,
disclose or transfer modifications and derivative works of the software product
independent of any software product included in the modification or derivative
work?
Gant: Same objections and also compound.
Wilson: We did not."
Gantt's objection does not make any sense, given that it is Otis Wilson's job to
administer the AT&T UNIX licensing program. If Otis Wilson cannot answer
Marriott's questions, then Otis Wilson would have been totally unqualified to
run AT&T's UNIX licensing program - because the questions that Marriott just
asked are the types of questions that a UNIX licensee of AT&T would be
expected to ask.
---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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Authored by: LouS on Sunday, August 20 2006 @ 08:02 PM EDT |
I would have thought that Cravath representing both IBM and Mr. Wilson would
present a conflict of interest. Why doesn't it?[ Reply to This | # ]
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Authored by: rsteinmetz70112 on Sunday, August 20 2006 @ 08:56 PM EDT |
Here we seem to have two orders from different courts allowing SCOG to take Mr.
Wilson's second deposition. One order limits that deposition to for house, the
other order limit's it to "new" information.
Both orders could be obeyed and if counsel were being respectful of the courts,
both would be I think. I doubt SCOG will and I would bet on IBM making a motion
later to strike part of Mr. Wilson deposition.
It appears that based on the request for IBM to cite legal authority in August
14 teleconference that Judge Brooks is considering another order related to this
deposition.
Finally I noticed that the hearing was recorded and a tape number given. Does
anyone know if a transcript of of the hearing was made or if a copy of the tape
can be obtained and transcribed?
---
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: CanonicalKoi on Sunday, August 20 2006 @ 10:47 PM EDT |
Unless someone's already started it, I'll do Part 1 of Wilson's deposition.
CanonicalKoi[ Reply to This | # ]
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