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| A Decision on the Wilson Deposition from Judge Wells and Some Context |
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Tuesday, August 22 2006 @ 01:29 AM EDT
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There is a decision on the matter of the deposition of Otis Wilson. Magistrate Judge Brooke Wells has issued her Order and Memorandum Decision [PDF]. If I had to describe it in one sentence, I'd say she has thrown poor Mr. Wilson to the wolves in North Carolina and told him it's his own fault. The problem, according to Judge Wells, is that Mr. Wilson submitted himself to the North Carolina court by submitting a motion to quash there. He should have come to her court, she says, in effect, if he wanted relief from her. You will recall that Intel did exactly that when it got a subpoena at the same time as Mr. Wilson. However, Mr. Wilson was probably relying on Judge Wells' previous order limiting SCO to new matters and blocking them from asking personal questions. The North Carolina judge, however, quite reasonably pointed out in the hearing transcript that he doesn't know what is new and what isn't, so it's not an enforceable line in his court, so he chose the time limit of 4 hours as a surrogate. And because the matter of the deposition is now in North Carolina, I gather Judge Wells can't see what she can do about it.
They have, she says, the authority to modify subpoenas (that leaves for appeal, if anyone bothers, whether they have the authority to alter her orders, because they just did). So she threw up her hands and he's SCO's now for four hours. As I read this order, they can ask him about his ex-wives for four hours, if they wish to. They can ask him again everything they asked in 2004 and see if they can get him to contradict himself. They can ask him about new matters and old. Judge Wells states that SCO is not to view this as an opportunity to reopen discovery, but that is a bit meaningless, because it is another deposition, and if there are no restrictions other than time, why isn't it reopening discovery? If SCO asks about new matters, it does reopen discovery. And if they don't ask about new matters because they can't reopen discovery, then what can they ask him about? Rehash the old and hope he slips up? It's a meaningless sentence in the context of the Order, to my reading. For one thing, if her orders can be overthrown by North Carolina, what does her restriction matter? SCO is salivating, I'm sure. This is, indubitably, a victory for SCO. Why might it matter? I can see it mattering in a motion for summary judgment by IBM, if SCO can rattle or confuse this retired gentleman so that he says things that appear contradictory. That should be just enough to survive summary judgment, I'd think, if SCO can raise a slim doubt about what the contract meant. That's really all you need to survive a summary judgment motion. I don't think it matters to the litigation in the end, though, no matter what happens in North Carolina.
The moral of the story is lawyers should not go on vacation. Todd Shaughnessy was unreachable during this drama in North Carolina, unfortunately, while he was on vacation (and did SCO lawyers know that and use it? -- I would guess so). I'm kidding. They need a break like all other humans, but that is what happened. And in retrospect, it might have been better if Mr. Wilson had kept David Marriott as his lawyer. So now he will just have to endure SCOfolk a bit longer. I doubt it will make a huge difference to the case, but it will make a difference to Mr. Wilson. So you can understand how SCO pulled this trick off, here are four documents in the North Carolina matter, first the Declaration of Edward Normand [PDF], then the Brief in Support of Motion for Leave to File Declaration [PDF] and the Declaration by Todd Shaughnessy [PDF], and finally SCO's Plaintiff's Supplemental Opposition Memorandum in Response to Otis Wilson's Motion to Quash Deposition [PDF], as text. My thanks to Chris Lingard for helping. This isn't the complete record, but I picked the ones that expressed each parties' position best, just to give you a clear picture of what has been going on in North Carolina. I think it's self-explanatory, especially if you've been reading Groklaw a while. Remember when all those weird subpoenas went out to Intel and the others, and we were all laughing at how incomplete they were and so very odd to have sent them out the night before, telling people to show up in two different states, etc.? It turns out SCO did the same thing to Otis Wilson, sending him a subpoena, without telling him where to appear. So he and IBM pretty much treated it as not effective. But as I read what happened next, I see now why SCO did the subpoenas that way, because when the trick works, it works. And in North Carolina, it worked. The trick, I gather, is to be the only one prepared to speak to the judge. While Mr. Wilson was trying to find his own lawyer, and did, and the lawyer needed time to get up to speed and evaluate how to handle the matter, SCO was telling the judge that IBM's Todd Shaughnessy was kinda sorta if not exactly representing Wilson. And compounding the problem, Shaughnessy, the only lawyer in the teleconference with Wells on January 26, and hence the only one who could rebut SCO's Normand as to what happened, was on vacation and unreachable. And from all I can see, by the time he came back, the North Carolina judge was already persuaded by SCO's whining about unfairness. Old timers here will remember that the same technique worked pretty well in Utah at first too. SCO, I gather, would like to talk to Mr. Wilson about the BSDi case. And they told the judge in NC that they only had a week to prepare for the first deposition of Mr. Wilson and they didn't notice his deposition from that case in time to ask him about it. Shaughnessy tells the court, when he finally tries to explain, first that he never represented Mr. Wilson and that since SCO purports to be Novell's successor-in-interest, how could it not have that old, old testimony? In any case, it wasn't IBM holding out documents; it turned over to SCO materials it got from Novell when it got them. But judging from the ruling in NC, the judge there wasn't buying it or just didn't care, so he ordered the deposition to go forward. Judge Wells had earlier allowed it, and the only difference is that there are now no limits other than time. I'll place the texts of the North Carolina matter after the Order, separated by rows of stars, so you will understand the context. As I say, ultimately it probably doesn't much matter, because there are so many other witnesses who confirm what Mr. Wilson has said about the contract's interpretation. But I feel very bad for poor Mr. Wilson. ********************************
_____________________________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
_____________________________________________
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
_________________________________
ORDER AND MEMORANDUM
DECISION
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
___________________________________
On August 14, 2006, the court held a conference call at the request of the parties with Mr.
Edward Normand representing The SCO Group Inc. (SCO), and Mr. Todd Shaughnessy
representing International Business Machines Corporation (IBM). The crux of the instant
dispute revolves around the deposition of Mr. Otis Wilson that is to occur in North Carolina. Mr.
Wilson was deposed previously and is to undergo a second four hour deposition as ordered by
Magistrate Judge Sharp from the Middle District of North Carolina. The parties are in
disagreement about the scope of the deposition. IBM argues that it should be confined to only
"new matters" as previously ordered by this court.
Conversely, SCO argues that the scope of
the deposition is not limited. At the end of the call, the court asked both parties to provide what
they perceived to be the three strongest cases in support of their positions. On August 16 both
parties provided the court with their respective cases.
After considering the relevant law, the
parties' arguments, the transcript of the proceedings before Magistrate Judge Sharp and the
written order that followed those proceedings, the court enters the following:
The court finds that pursuant to Rule 45(c) the North Carolina court had jurisdiction to
"quash or modify the subpoena."
"The Court for the district wherein the deposition is being
taken decides controversies with respect to depositions."
By petitioning the court in North
Carolina to quash his deposition, Mr. Wilson submitted to the jurisdiction of that court in matters
pertaining to his deposition. Moreover, if Mr. Wilson was concerned about how the court in
North Carolina would rule because it was not as familiar with this case, Mr. Wilson could have
sought a stay in North Carolina and asked that court to remit the matter to this court where the
action is pending. Mr. Wilson, however, did not seek this type of procedure.
IBM argues that a "parties' discovery rights . . . can rise no higher than their level in the
district of trial."
Thus, SCO is bound by this court's previous order limiting the deposition to
new matters. The court does not disagree with IBM's contention that a party is bound by the
discovery rights in the district where a case is being tried. The court finds, however, that this
case is markedly different than the primary case relied upon by IBM. The court further finds that
2
Magistrate Judge Sharp considered this court's prior ruling and in essence enacted it through the
time limitation requirement.
In Fincher,
discovery had ended and the plaintiffs sought discovery in another district
without first obtaining permission to conduct additional discovery from the court where the
underlying action was proceeding.
Here, this court gave SCO permission to redepose Mr.
Wilson prior to the proceedings in North Carolina. Thus, SCO had the underlying right to
depose Mr. Wilson.
Next, at the conclusion of the hearing the following exchange took place between counsel
for Mr. Wilson and Magistrate Judge Sharp.
Your Honor, I think you did indicate you were not placing any limits on the subject
matter. I'm assuming that to the extent that the Utah court had limited it to new matters
. . . that would still be enforce.
The time limitation -- the new matters is an impossible defining line. It just -- it couldn't
be enforced in the deposition room. It couldn't be meaningfully enforced here in this
courtroom. So the time limitation is the surrogate for that.
Based on the foregoing, the court orders that the deposition of Mr. Wilson should go
forward in the time and manner as ordered by the North Carolina court. But, the court wishes to
note that its decision should not be viewed as any type of invitation to reopen the discovery
process.
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IT IS SO ORDERED.
DATED this 21st day of August, 2006.
Brooke C. Wells
United States Magistrate Judge
1
See docket no. 604 entered on January 26, 2006.
2
SCO provided their documents by hand delivery and IBM e-filed their document. See docket no. 740.
SCO's respective cases include, In re Sealed Case, 141 F.3d 377 (D.C. Cir. 1998); Lieberman v.
American Dietetic Assoc., 1995 WL 250414 (N.D. Ill. 1995); High Tech Communications v. Panasonic
Co., 1995 WL 58701 (E.D. La. 1995). And, although not in SCO's "top three," SCO also cites to
Peterson v. Douglas County Bank & Trust Co., 940 F.2d 1389 (10th Cir. 1991), as potentially controlling
of the issue before this court. IBM's cases include Fincher v. Keller Industries, Inc., 129 F.R.D. 123
(M.D.N.C. 1990), a case arising from the same federal district court that issued the subpoena to Mr.
Wilson in this case; Mycogen Plant Science, Inc. v. Monsanto Co., 164 F.R.D. 623 (E.D. Pa. 1996); and
Dreyer v. GACS, Inc., 204 F.R.D. 120 (N.D. Ind. 2001).
3
Fed. R. Civ. P. 45(c)(3)(A).
4
Fincher, 129 F.R.D. at 125.
5
Fincher, 129 F.R.D. at 125.
6
129 F.R.D. 123.
7
See id.. at 125.
8
Trans. from hearing before Magistrate Judge Sharp p. 30-31 (emphasis added).
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**************************
UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
Misc. No.
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
_________________________
DECLARATION OF
EDWARD NORMAND
_________________________
1. I am a member of the law firm Boies, Schiller & Flexner LLP ("BSF"), which represents The SCO Group, Inc. ("SCO") in the action styled The SCO Group, Inc. v. International Business Machines, Inc., Case No. 2:03CV0294DAK (D. Utah) (the "Utah litigation"). I submit this Declaration in connection with SCO's Motion to Enforce Subpoena and Compel Deposition filed on April 12, 2006.
2. I describe below the relevant events leading up to the parties' teleconference with Magistrate Judge Brook T. Wells of the United States District Court for the District of Utah on January 26, 2006, the substance of the January 26 teleconference as it relates to SCO's Motion, and my unsuccessful efforts to enforce the Order issued by Magistrate Judge Wells.
3. In the Utah litigation, International Business Machines, Inc. ("IBM") is represented by two law firms: Cravath, Swaine & Moore, in New York, New York ("Cravath"); and Snell & Wilmer LLP, in Salt Lake City, Utah ("Snell & Wilmer"). Cravath has also represented non-party Otis Wilson since May 2004.
4. On January 16, 2006, SCO sent a subpoena and notice of deposition for Mr. Wilson to Peter Ligh of Cravath. SCO did so in consideration of the fact that Cravath had previously accepted notices of deposition for third parties that Cravath represented. Mr. Ligh subsequently informed BSF, however, that Cravath would not accept service for Mr. Wilson. Accordingly, on January 19, a process server retained by BSF served a deposition subpoena on Mr. Wilson in Greensboro, North Carolina. The deposition was noticed for January 27 in Greensboro.
5. On January 25, I took a deposition, defended by Mr. Ligh, of another non-party. In response to my question during a break in the deposition, Mr. Ligh told me that it was his belief that Mr. Wilson had not been served with a subpoena and that as far as he knew there would be no deposition of Mr. Wilson on January 27. He suggested that I contact David Marriott of Cravath or Todd Shaughnessy of Snell & Wilmer.
6. I subsequently left a message for Mr. Marriott (after I was unable to reach him) and spoke with Mr. Shaughnessy informing him that Mr. Wilson had been properly served with a subpoena for deposition on January 27, that in SCO's view Mr. Wilson was obligated to appear for deposition on January 27, and that if Cravath or IBM believed otherwise it should raise the issue during the previously scheduled teleconference with Magistrate Judge Wells on January 26.
7. Mr. Shaughnessy appeared for IBM during the January 26 teleconference with the Court and stated that although Cravath (not Snell & Wilmer) represented Mr. Wilson, Mr. Marriott would not be able to participate in the call. With respect to Mr. Wilson's deposition, Mr. Shaughnessy argued that Mr. Wilson had already been deposed
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and therefore should not be deposed again. He also argued that in cross-examining Mr. Wilson in that deposition, counsel for SCO had asked too many personal questions.
8. In addition, Mr. Shaughnessy said that he was not sure whether Mr. Wilson had been properly served with a deposition subpoena, but that even if Mr. Wilson had been properly served, it was Mr. Shaughnessy's understanding that no attorney from Cravath was prepared to defend to deposition. Mr. Shaughnessy therefore asked that the deposition be moved back a few weeks.
9. I informed the Court that Mr. Wilson had been properly served and that he was obligated to appear for deposition the next day. I explained to the Court that it was IBM who had noticed the deposition of Mr. Wilson in June 2004, not SCO. I explained that although SCO did cross-examine Mr. Wilson after IBM's examination, several new matters had arisen in the case since the time of that deposition, including that SCO had found in a large document production (made only a week before Mr. Wilson's deposition) the transcript of testimony Mr. Wilson had given in another matter involving the same issues as his June 2004 declaration and deposition testimony, and that in response to questions from counsel for IBM, several subsequent deponents had testified to their agreement to Mr. Wilson's June 2004 testimony.
10. I further expressed my surprise that no attorney from Cravath was prepared to defend the deposition, and I noted that although Mr. Shaughnessy said he did not represent Mr. Wilson, I understood him to be asking to postpone Mr. Wilson's deposition on behalf of IBM. I said that as a courtesy to counsel I would agree to take Mr. Wilson's deposition at a later date, in February, with the understanding that Mr. Wilson remained under subpoena. (I have since reached similar agreements with Mr.
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Shaughnessy with regard to other third parties.) Mr. Shaughnessy agreed to those conditions of the postponement.
11. The Court orally ruled that Mr. Wilson's deposition was postponed for a date to be determined by the parties in February, that his deposition was to be limited to "new matters," including Mr. Wilson's previous deposition testimony, and that Mr. Wilson not be asked about "personal matters" during the deposition. The Court subsequently entered the following on the docket:
Minute Entry for proceedings held before Judge Brooke C. Wells:
Telephone Conference held on 1/26/2006. The Court hears
arguments as to depositions as rules as follows: The depositions
of Otis Wilson and Ted Kennedy ONLY may be extended by 30
days (by 2/26/05). Counsel are to agree on the date and time. As to
Mr. Wilson - he is not to be subjected to any questions other than
reasonable inferences re: new information ONLY. As to the
depositions of the three corporations addressed by SCO, the Court
will not address this except via motion, which SCO may file.
Attorney for Plaintiff: Ted Normand, Attorney for Defendant Todd
Shaughnessey. (alp, ) (Entered: 01/26/2006)
12. On February 10, as had been our practice for many months, I spoke with Mr. Shaughnessy regarding the numerous pending discovery-related issues. Considering his involvement in the January 26 teleconference, I included Mr. Wilson's deposition among the issues discussed with Mr. Shaughnessy by asking that IBM provide a date for the deposition. Mr. Shaughnessy acknowledged my request in a February 11 e-mail to me, in which he listed the issues we had discussed and his response. Confirming the Court's order that Mr. Wilson appear for deposition, Mr. Shaughnessy wrote:
4
3. SCO has requested proposed deposition dates for Otis Wilson and Edward Kennedy.
We are working on dates. Please let me know whether you have an objection to one/both of these depositions occurring in late March.
13. I responded to Mr. Shaughnessy's February 11 e-mail on February 12 writing: "SCO would strongly prefer to depose both Mr. Wilson and Mr. Kennedy in the next few weeks."
14. I subsequently requested a date for Mr. Wilson's deposition during phone calls with Mr. Shaughnessy. Mr. Shaughnessy said at least once during those calls that counsel for IBM had not been able to "get a date" from Mr. WIlson. On February 27, alluding to the scheduled end of discovery on March 17, I sent Mr. Shaughnessy the following e-mail:
Todd --
This is to confirm that I have now repeatedly asked you to provide a deposition date for Otis Wilson, that IBM regards the Court as having ordered their counsel to produce Mr. Wilson for deposition (I recall that she asked you to provide a date for him in February), that counsel for IBM has attempted to obtain a deposition date from Mr. Wilson, that counsel has not been able to obtain a deposition date from Mr. Wilson, that counsel is continuing to attempt to get a deposition date from Mr. Wilson, and that SCO is entitled to depose Mr. Wilson after March 17 if Mr. Wilson does not make himself available for deposition before that time. Please let me know. Regards,
Ted
15. In response, Mr. Shaughnessy raised the issue of what "new matters" SCOC proposed to raise with Mr. Wilson during the deposition. He also said that it was now his understanding that an attorney in North Carolina might be representing Mr. Wilson but
5
that he did not know the name of the attorney. On March 2, I sent Mr. Shaughnessy the following e-mail:
Todd --
We do need to resolve the Otis Wilson deposition issues. If IBM continues to disagree with my view of the appropriate scope of the deposition (or if IBM and/or Mr. Wilson's attorney does not agree to a flat time limitation, like 4 hours), or if Mr. Wilson and/or his attorney simply decline to provide a date to IBM, then I need to call the Magistrate Judge. I would propose to do so today or tomorrow. Thanks,
Ted
16. In response, Mr. Shaughnessy said that he would get the name of Mr. Wilson's North Carolina attorney. On March 6, I asked Mr. Shaughnessy by e-mail to send me the name of the North Carolina attorney. On March 6, Mr. Shaughnessy sent me the following e-mail:
Ted,
Otis Wilson's North Carolina counsel is Mike Medford, who can be reached at [redacted]. Snell has never represented Mr. Wilson. Cravath is not handling Mr. Wilson's motion to quash and/or for a protective order, though I don't believe Cravath has been fired.
Todd
17. I subsequently spoke with Mr. Medford on several occasions to try to arrange a date for Mr. Wilson's deposition within a scope acceptable to Mr. Medford and his client, but we were unable to reach agreement. It is my understanding from those discussions that Mr. Medford has had some trouble getting in touch with Mr. Wilson.
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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
This the 12th day of April, 2006.
[signature]
Edward Normand
7
*******************************
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 01: 06-mc-00046 PTS
The SCO Group, Inc.,
Plaintiff,
v.
International Business Machines Corp.,
Defendant.
______________________________
BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO FILE DECLARATION
______________________________
Otis L. Wilson, through undersigned counsel and pursuant to L. R. 7.3 (M.D.N.C.),
submits this memorandum in support of his Motion for Leave to File the Declaration of Todd
Shaughnessy.
Plaintiff SCO Group, Inc. filed its Motion to Compel Deposition and Enforce Subpoena
on April 12, 2006. That Motion contained an Affidavit of Edward Normand, purporting to recite
what happened in a conference call with the Magistrate judge in the Utah Action to which the
proposed deposition in this district relates. At SCO Group's request, the Court entered an order
on April 19, 2006, giving Mr. Wilson until Friday, April 21, to respond to SCO Group's Motion.
In accordance with the Court's expedited briefing order, Mr. Wilson filed his response
and a corresponding Motion to Quash April 21. As noted in those papers, counsel for IBM had a
different understanding of events in the conference call than the description set forth in Mr.
Normand's Affidavit. Unfortunately, that counsel was out of the country during the period
covered by the expedited briefing schedule, so that an affidavit or declaration could not be
obtained from him in time for inclusion with the papers filed on the expedited deadline. Mr.
Wilson's papers informed the Court of this problem.
SCO Group's most recent filings continue to rely on the interpretation of the conference
call with the Magistrate judge in Utah that differs from that of the IBM attorney who participated
in the same conference call. That IBM attorney has now returned to the country and counsel for
Mr. Wilson has obtained a declaration executed by him to document his recollection of the
disputed conference call with the Magistrate judge and certain other matters addressed in SCO
Group's affidavit and papers. Mr. Wilson now seeks leave of court to file that declaration, and
this brief is submitted in support of that motion.
ARGUMENT
It is in the interest of the fair and efficient administration of justice that Mr. Wilson be
granted leave to file the Shaughnessy declaration to the extent that leave of court is required.
That declaration was not included with Mr. Wilson's original papers solely because Mr.
Shaughnessy's absence from the country until after expiration of the expedited deadline
precluded Mr. Wilson from obtaining the declaration at that time. It would be unfair to Mr.
Wilson if he were precluded from providing the Court with the opposing affidavit of Mr.
Shaughnessy solely because of the interaction of the expedited briefing schedule with Mr.
Shaughnessy's trip out of the country.
CONCLUSION
For the reasons stated, the Motion for Leave to File the Shaughnessy declaration should
be granted.
-2-
This the 28 day of April, 2006.
/s/Michael T. Medford
Michael T. Medford
N.C. State Bar # 7227
Of MANNING, FULTON & SKINNER, P.A.
Attorneys for Otis L. Wilson
[address, phone, fax, email]
3
CERTIFICATE OF SERVICE
This is to certify that a copy of the Brief in Support of Motion For Leave to File
Declaration was duly served this date on counsel for all parties by electronic means if available
or otherwise by forwarding a copy thereof enclosed in a postage-paid envelope, deposited in the
United States Mail, addressed as follows:
Robert R. Marcus
SMITH MOORE, L.L.P.
[address, phone, fax]
Heather Howell Wright
SMITH MOORE, L.L.P.
[address, phone, fax]
Brent O. Hatch
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER, LLP
[address, phone, fax]
David Marriott
Cravath, Swaine & Moore LLP
[address, phone, fax]
Todd Shaughnessy
Snell & Wilmer
[address, phone, fax]
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This the 28 day of April, 2006.
/s/Michael T. Medford
Michael T. Medford
N.C. State Bar # 7227
Of MANNING, FULTON & SKINNER, P.A.
Attorneys for Otis L. Wilson
[address, phone, fax]
5
**************************
UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
Misc. No.
THE SCO GROUP, INC.,
Plaintiff,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant.
_________________________
DECLARATION OF TODD M. SHAUGHNESSY
_________________________
1. I am more than eighteen years of age and all statements in this declaration are based on my personal knowledge, except as otherwise expressly indicated.
2. I am duly licensed by the Utah State Bar as an attorney at law, and I am admitted to practice before the United States District Court for the District of Utah. I am a partner with the law firm of Snell& Wilmer, LLP.
3. I am counsel of record for International Business Machines ["IBM"] in a case pending before the United States District Court for the District of Utah bearing the caption The SCO Group, Inc. v. International Business Machies Corp., and designated as Civil Action No. 2:03CV-0294DAK.
4. Neither myself nor Snell & Wilmer have ever represented Mr. Otis L. Wilson. Indeed, I have never met or spoken to Mr. Wilson.
5. I have reviewed the attached Declaration of Edward Normand that I understand to have been submitted in connection with motions relating to the proposed depositon of Mr.
Wilson. I have been personally involved in various proceedings before the Utah court with respect to the proposed deposition of Mr. Wilson, and submit this declaration to clarify what has occurred during these proceedings.1
6. On July 1, 2005, the Court in the Utah action set a deadline of January 27, 2006, for the completion of certain fact discovery, including the discovery for which The SCO Group, Inc. ["SCO"] seeks to take Mr. Wilson's deposition.
7. On January 26, 2006, the day prior to the expiration of that deadline, the parties held a telephone conference with Magistrate Judge Brooke Wells, the Magistrate Judge assigned to handle discovery matters in the Utah case. I participated in that conference call on behalf of IBM. Mr. Normand participated on behalf of SCO. At issue was a request by SCO to take five depositions. Mr. Wilson's deposition was among them.
8. Although counsel for SCO had provided a copy of a subpoena that purported to require Mr. Wilson to appear for a deposition on January 27, 2006 (with no location for the deposition specified), counsel for SCO did not provide me or file with the Utah court a return of service for that subpoena. Mr. Normand did not inform me that Mr. Wilson had been served with that subpoena until the day before the January 26 telephone conference, and less than two days before SCO purportedly intended to depose Mr. Wilson. Because of this, and because IBM objected to SCO taking Mr. Wilson's deposition, we had not made arrangements to appear for the deposition on January 27.
9. At the outset of the January 26 hearing, I informed Judge Wells that I was appearing for IBM, that I did not represent Mr. Wilson, and that I did not represent any of the
2
other third parties whose depositions were the subject of the hearing. Three of the depositions at issue, for example, were of corporations that I knew were represented by their own counsel. I was sensitive to the fact that these corporations may have had their own reasons for filing motions for protective orders or to quash the subpoenas purportedly served on them (which I understand at least two subsequently did) and I did not believe it was appropriate for me to address whatever objections they may have had to the subpoenas. I therefore communicated very clearly to Judge Wells that I did not represent any of the third parties (including Mr. Wilson), that these third parties may have their own, independent reasons for challenging the subpoenas which I could not properly address, and that I was arguing againsst the depositions only on behalf of my client, IBM.
10. I informed the Court that IBM objected to these depositions for a variety of reasons. The principal reason was because the Court previously had ordered that these depositions must be completed by January 27, that SCO could and should have sought leave to take these depositions earlier in the case, and that SCO effectively was seeking to take these depositions during a time that the Court had ordered discovery be limited to other matters. I also advised the Court that IBM objected to a second deposition of Mr. Wilson, and informed the Court that while I did not attend Mr. Wilson's deposition, and do not represent him, it was my understanding that counsel for SCO had asked him a number of questions about his personal life that were unrelated to any issue in the case and which I believe were inappropriate.
11. Judge Wells orally ruled that two of the depositions at issue, Mr. Wilson's deposition and the deposition of Mr. Ted Kennedy, could be taken after the January 27, 2006 discovery cutoff. With respect to Mr. Wilson's deposition, Judge Wells further order that
3
counsel for SCO was not to inquire into personal matters and that his deposition would be limited to "new information."
12. Contrary to the statements in Mr. Normand's declaration, I did not agree, during the telephone conference or thereafter, to make Mr. Wilson available for a deposition. As mentioned above, I do not represent Mr. Wilson, I have never spoken to him, and I have never had the authority to agree on his behalf to his deposition being taken a second time. During the hearing, I was asked by Judge Wells when his deposition could be taken. I informed the Court that we did not learn until the day before that SCO had purported to serve Mr. Wilson, that I was not certain whether he actually had been served, and we therefore could not appear for a deposition in North Carolina the next morning. I informed Judge Wells that counsel would cooperate in setting an appropriate date.
13. During February and early March 2006, I corresponded with Mr. Normand about a variety of discovery matters, including Mr. Wilson's deposition. In response to Mr. Normand's question, I informed him that we did not have a date for Mr. Wilson's deposition. I also attempted to get an understanding from Mr. Normand about what "new" information SCO intended to inquire duing Mr. Wilson's deposition. Mr. Normand was unwilling to commit to any meaningful limitation in this regard.
14. I was advised that Mr. Wilson had counsel in North Carolina representing him and communicated this fact to Mr. Normand. I also communnicated to him my belief that while Judge Wells had granted SCO leave to take this deposition after the discovery cutoff, I did not understand her to have ruled on whatever objections Mr. Wilson may have to his deposition being taken a second time.
4
15. Importantly, Mr. Normand's declaration omits any reference to our subsequent conference call with Judge Wells on the issue of Mr. Wilson's deposition. On March 3, 2006, Mr. Normand and I participated in a conference call with Judge Wells on various matters. During that call, I raised with Judge Wells the issue of Mr. Wilson's deposition and her January 26 ruling with respect to the taking of his deposition. I raised this issue with her for at least two reasons. First, I wanted to make sure she was aware of the status of this matter. Second, I hoped to get further guidance from her about whether she had indeed considerred and rejected Mr. Wilson's objections to having his deposition taken a second time, as I understand SCO argues in the papers it has filed with the Court.
16. I advised Judge Wells that Mr. Wilson's deposition had not been taken, that he was represented by counsel in North Carolina, and that Mr. Wilson's North Carolina counsel was evaluating Mr. Wilson's objections to having his deposition taken a second time and was considering filing a motion with the Federal District Court in North Carolina, the Court from which the subpoena was issued. I reminded Judge Wells that Mr. Wilson was not represented at the January 26 hearing and that I understood her January 26 ruling to have resolved only the issue of whether SCO could take the deposition after the January 27, 2006 discovery cutoff.
17. In response, Mr. Normand argued to Judge Wells that her January 26 ruling was not so limited. Mr. Normand argued that Judge Wells had considered and rejected Mr. Wilson's various objections to having his deposition taken a second time and urged Judge Wells to limit the authority of the North Carolina Court to consider Mr. Wilson's objections. Judge Wells declined to do so. She informed Mr. Normand and me that matters relating to any objections or motion to quash by Mr. Wilson were matters that would need to be raised with the Court in North Carolina.
5
I understand that counsel for SCO has raised with this Court the issue of documents that were produced prior to Mr. Wilson's last deposition, including a transcript of his deposition in another matter. I was not personally involved in the production of these documents, but I am reliably informed and understand the following to be true:
(a) The documents to which SCO refers were not produced by IBM. The documents were produced by Novell, Inc. ["Novell"] in response to a subpoena. The documents were produced by Novell to Cravath, Swaine & Moore, LLP ["Cravath"], co-counsel for IBM in the Utah action.
(b) After receipt of the documents, Cravath copied the production in its entirety and as a courtesy provided it to counsel for SCO. The documents were provided in advance of Mr. Wilson's prior deposition. The manner and timing of the production was consistent with the way in which we have provided to SCO documents produced by other third parties.
(c) Additionally, the documents at issue were available to SCO long before being provided by Cravath. SCO has asserted from the beginning of the Utah case that it is Novell's successor-in-interest with respect to the assets at issue, and SCO has produced thousands of pages of documents that it received from Novell in connection with the acquisition of the assets at issue.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on the 28th day of April, 2006.
[signature](SEAL)
TODD M. SHAUGHNESSY
I was out of the country on a family vacation from April 13, 2006 to April 23, 2006, during which time I understand some of the briefing on these motions was filed. Counsel for Mr. Wilson attempted to reach me during that time for the purpose of responding to Mr. Normand's declaration, but I was unable to respond.
6
CERTIFICATE OF SERVICE
This is to certify that a copy of the Declaration of Todd M. Shaughnessy was duly served this date on counsel for all parties by electronic means if available or otherwise by forwarding a copy thereof enclosedf in a postage-paid envelpe, deposited in the United States Mail, addressed as follows:
BRENT O. HATCH
Mark F. James
HATCH JAMES & DODGE
[address, phone, fax]
Stuart H. Singer
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]
David Marriott
Cravath, Swaine & Moore, LLP
[address]
7
Todd M. Shaughnessy
Snell & Wilmer. LLP
[address]
Donald J. Rosenberg
[address]
This the ____day of April, 2006
/s/Michael T. Medford
Michael T. Medford
N.C. State Bar #7227
Of MANNING, FULTON & SKINNER, P.A.
Attorneys for Otis L. Wilson
[address, phone, fax, email]
8
*************************************
UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 01: 06-MC-00046 PTS
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
_________________________
Case No. 2:03CV0294DAK (pending in the District Court of Utah before Judge Dale A. Kimball)
ORAL ARGUMENT REQUESTED
_________________________
PLAINTIFF'S SUPPLEMENTAL OPPOSITION MEMORANDUM IN
RESPONSE TO OTIS WILSON'S MOTION TO QUASH DEPOSITION
Pursuant to Rules 30 and 45 of the Federal Rules of Civil Procedure and Local Rule 7.3
of the United States District Court for the Middle District of North Carolina, Plaintiff, The SCO
Group, Inc. ("SCO"), submits the following supplemental opposition memorandum in response
to the new matter raised in Otis Wilson's Reply Brief in Support of Motion to Quash.
ARGUMENT
In his Reply Memorandum, Otis Wilson relies on the declaration of Todd M.
Shaughnessy, whose declaration Mr. Wilson did not present in his opening memorandum, both
to raise new matters therein and to make other arguments that Mr. Wilson could have made but
did not make in his opening memorandum. To address the new matters and new arguments
raised in Mr. Shaughnessy's declaration, SCO files this supplemental response memorandum and
shows below why each of the new points that Mr. Wilson and IBM jointly present is incorrect
and unavailing.
First, Mr. Wilson now argues that this new deposition could not be limited to "new"
matters because this deposition would focus on his 1992 deposition testimony, the transcript of
which was produced among 50,000 pages of documents at most one week before his IBM
deposition. Neither Mr. Wilson nor his joint IBM counsel Mr. Shaughnessy disputes that the
Magistrate Judge rejected that argument because it is not reasonable to conclude that in five
business days, at most, SCO could have reviewed 50,000 pages of documents relating to
hundreds of issues and determined which fraction of those documents would be relevant to Mr.
Wilson's deposition. Indeed, it takes more than one week to load 50,000 pages of documents
into the searchable document database that SCO uses. By way of example, SCO produced to
IBM one of the world's largest computer companies twelve days ago approximately 30,000
pages of documents that might or might not be relevant to the deposition of a former SCO
engineer, and IBM claims that it cannot depose that engineer this week because it has not been
able to review the documents.
Second, Mr. Wilson now argues that SCO could have and should have obtained Mr.
Wilson's deposition testimony directly from the party that produced it to IBM (Novell, Inc.),
because Novell is SCO's predecessor-in-interest. Mr. Wilson either carefully avoids or is simply
ignorant of the facts. In fact, SCO sued Novell in January 2004 in United States District Court
for the District of Utah. The suggestion that SCO could have simply contacted its predecessor-
in-interest and quickly obtained all documents that might relate to Otis Wilson is incorrect. And
Mr. Wilson has no response to the fact that both prior to and at the time of producing the 50,000
pages of documents, IBM declined to inform SCO that any documents produced from Novell
were even in the production.
Third, Mr. Wilson now argues that if his previous deposition were all that SCO was
concerned with, SCO should have sought his deposition shortly after SCO discovered the
previous deposition testimony. This argument does not relate in any way to the substance of
2
both SCO's and Mr. Wilson's motions at issue. It obviously makes no difference to the
relevance of his previous testimony or to the minimal burden Mr. Wilson faces. To the extent
that Mr. Wilson intimates that SCO must not have regarded his previous testimony as relevant,
the argument is specious. Both SCO and IBM faced a limit on the number of depositions that
could be taken. Unsure whether Magistrate Judge Wells would regard SCO's request as a
"deposition" to be counted against it, SCO more than reasonably waited to complete a substantial
number of its depositions before determining that it could afford to subpoena and notice Mr.
Wilson. In addition, a party prefers to have in hand as many relevant documents as possible
before deposing any key fact witness. If anything, the amount of time SCO took between June
2004 and January 2006 was proportional to and a function of how relevant SCO regards Mr.
Wilson's testimony to be. Mr. Wilson simply ignores, moreover, the increasing weight that IBM
sought to place on his testimony during the depositions of fact witnesses deposed subsequent to
his deposition in June 2004.
Fourth, Mr. Wilson now tries to suggest through Mr. Shaughnessy's carefully worded
declaration that Magistrate Judge Wells somehow disagrees with SCO's description of her
January 2006 ruling. But Mr. Shaughnessy uses the careful language he does for a reason.
During the call on March 3, 2006, Magistrate Judge Wells made the unremarkable point that to
the extent Mr. Wilson had acquired North Carolina counsel and was intent on opposing the
subpoena in this jurisdiction, there was nothing she could do to interfere with that process. She
made no comment on the merits of SCO's argument that is, she did not revise in any way her
resolution of the merits of the issue during the previous teleconference on January 26, 2006. It is
correct to say that Magistrate Judge Wells could not preclude Mr. Wilson's motion to quash, just
as it is correct to say that Mr. Wilson and IBM are in privity for purposes of his motion a point
3
that Mr. Wilson makes no effort to oppose in his reply memorandum, and that Mr. Wilson's
reliance on Mr. Shaughnessy's declaration supports. The Magistrate Judge's January 2006
Order, which SCO has never argued operates to preclude this Court from hearing Mr. Wilson's
motions, does bind both Mr. Wilson and IBM.
Fifth, Mr. Wilson's latest round of arguments further underscore the patently unfair
outcome that he and IBM have sought to achieve over the last several months. It should be clear
that if, contrary to fact, Mr. Shaughnessy had prevailed in his arguments to Magistrate Judge
Wells on January 26, 2004, then IBM would have argued thereafter that SCO could not take a
deposition of Mr. Wilson whether or not SCO filed a motion in North Carolina. Yet Mr.
Wilson and Mr. Shaughnessy in support of his motion argue now that Magistrate Judge Wells's
ruling is of no significance whatsoever, and they now cite as supposed evidence of the
irrelevance of that ruling the fact that Mr. Wilson's counsel at the time simply declined to appear
at the January 2006 teleconference regarding their client's rights. This procedural
gamesmanship stands in stark opposition to the courtesy extended to Mr. Wilson, his counsel,
and IBM's counsel at the time.
Finally, Mr. Wilson now says nothing about the two main factors regarding the propriety
of a third-party deposition namely, the relevance of the testimony and the burden imposed on
the proposed deponent. SCO's previous submissions establish that Mr. Wilson's testimony in
the multi-billion dollar case in Utah is central, his prospective deposition testimony will be
crucial, and the deposition would impose a small burden on him. Mr. Wilson's failure to say
anything about those points is telling.
4
CONCLUSION
SCO respectfully requests that the Court order Mr. Wilson to appear for deposition
pursuant to Rules 30 and 45 of the Federal Rules of Civil Procedure. SCO also respectfully
requests that the Court hear oral argument on these motions.
This the 2nd day of May, 2006.
/s/ Robert R. Marcus
Robert R. Marcus
N.C. State Bar No. 20041
Heather H. Wright
N.C. State Bar No. 28874
OF COUNSEL:
SMITH MOORE LLP
[address, phone, fax]
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Edward Normand
[address, phone, fax]
Attorneys for The SCO Group, Inc.
5
CERTIFICATE OF SERVICE
The SCO Group, Inc. hereby certifies that a true and correct copy of the foregoing was
served by facsimile and first-class mail on International Business Machines Corporation and
counsel for Otis Wilson on:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address, fax]
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address, fax]
Michael T. Medford, Esq.
Manning, Fulton & Skinner, P.A.
[address, fax]
This the 2nd day of May, 2006.
/s/ Robert R. Marcus
Robert R. Marcus
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| Authored by: entre on Tuesday, August 22 2006 @ 01:33 AM EDT |
| For PJ [ Reply to This | # ]
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| Authored by: Aladdin Sane on Tuesday, August 22 2006 @ 02:12 AM EDT |
Please put off-topic comments here.
You can do that by clicking "[Reply to This |" directly under this
message.
---
"There is nothing unexplainable, only that which has yet to be explained." --Dr.
Who[ Reply to This | # ]
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| Authored by: mwexler on Tuesday, August 22 2006 @ 02:14 AM EDT |
So this means that SCO has 4 hours to depose Mr. Wilson on any topics it wants.
Does it mean that the Utah court has to admit the results of the deposition as
evidence?
Could the Utah court disallow some or all of the testimony because it is outside
the discovery deadline and outside of Judge Wells original order?
Is it likely that the Judge Wells would do this?
Or are we really likely to see discussions of contradictory testimony on the
names of his ex-wives and his teen-age run-in with a police office in at summary
judgement time?[ Reply to This | # ]
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| Authored by: NemesisNL on Tuesday, August 22 2006 @ 02:15 AM EDT |
Since IBM was never heard in all of this couldn't they take steps to remedy the
situation. I still feel it is strange that an existing order is overturned in
this manner without the judge doing anything about it.[ Reply to This | # ]
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| Authored by: lannet on Tuesday, August 22 2006 @ 02:35 AM EDT |
...I would be speaking veeeeerrrry sloooowwwwly, and taking a long pause before
each answer to give his lawyer time to make a veeeerrrry slooowww and detailed
objection. I would also think frequent comfort breaks would be in order. I'm
sure 4 hours could be made very unproductive...
Age can also bring about "I have no recollection of that at this
time...".
I think it's called gaming the system...
---
When you want a computer system that works, just choose Linux.
When you want a computer system that works, just, choose Microsoft.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 03:05 AM EDT |
1) That is a new issue which you are not permitted to raise.
2) I refer you to my previous answer on that issue.
Would giving one of those answers, and only one of those answers, be a problem
for Mr Wilson?[ Reply to This | # ]
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| Authored by: tknarr on Tuesday, August 22 2006 @ 03:30 AM EDT |
I think IBM's got one avenue open: SCO can ask Mr. Wilson anything they want
at the deposition, but when it comes time to use any of that material there's
still Judge Wells' order in force in her courtroom. If SCO tries to bring in
material from the deposition that goes beyond what the order allows, IBM should
be able to object and demand that it be stricken and not allowed
in.
Frankly, though, Mr. Wilson's lawyer should've pulled one from SCO's
playbook and asked for a delay to let him get up to speed on the material. As a
non-party, Mr. Wilson should have more ability to force IBM and SCO to honor his
convenience. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 03:31 AM EDT |
PJ, the way you tell it you'd think Otis Wilson is in his dotage. In fact he's
only in his mid-60s!
Whilst I'm sure you are correct that SCO is pleased to get this chance, is there
any reason to suspect that Otis Wilson will struggle to give consistent
answers?
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 03:33 AM EDT |
I'm afraid that SCO will conduct a memory test like this :
SCO lawyer : What did you have for breakfast last week ?.
Wilson : Umm, I can't remember it.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 03:50 AM EDT |
The way the original "End Run" story read, evil SCO had gone behind
the back of the Utah court and tried to trick another Judge into opening up this
deposition.
But according to this, that's not what happened. SCO didn't go to the NC court -
Wilson did, he tried to quash the deposition that Judge Wells had already
ordered should happen. It was _Wilson_ who tried to con the other judge, not
SCO: he/his lawyers gambled, and they lost.
"Poor Mr. Wilson"? Poor nothing. He played the tricks, he lost. I
don't see why this article should be written so pro-Wilson; or why it should
still talk of SCO's tricks. It makes me wonder what else is spun.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 04:23 AM EDT |
Wells wrote: "the court wishes to note that its decision should not be
viewed as any type of invitation to reopen the discovery
process."
IANAL, so in general I don't know what is correct or not.
But it can't be competent to include meaningless verbiage in a ruling, as Wells
has done here. What is the effect of the above quoted sentence? Absolutely nil.
So why did she write it? The decision partly re-opens the discovery process,
period. [ Reply to This | # ]
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| Authored by: hopethishelps on Tuesday, August 22 2006 @ 04:37 AM EDT |
I assume that time-limited depositions are governed by some rule that
prevents the witness from taking 4 hours to answer the first question. Is there
any case law that indicates how slowly a deposee may answer questions, without
the court imposing some sanction or extending the time allowed for
deposition? [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 04:51 AM EDT |
This is such a basic conflict of laws jurisdictional point that I am really
shocked that Cravath Swaine missed it.
It's the first real chink in IBM's armour throughout the entire litigation.
Here in Australia, it is a fundamental concept that if you want to challenge a
court's jurisdiction, you should do enter the jurisdiction for the sole purpose
of challenging the court's jurisdiction. Doing anything else is equivalent to
submitting to the court's jurisdiction.
Really highlights to you the importance of lawyers, and how easily you make a
slip up. And really shows you how good Boies Schiller are. They really are quite
formidble[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 05:30 AM EDT |
This case is before the Utah court, yet a judge from North Carolina is making
decisions that affect the case.
100 years ago maybe this was required because people couldn't travel from one
end of the USA to the other in a matter of hours. Not everyone had phones and
faxes. So maybe some decisions had to be made in the "local" court.
Its the 21st century, and its about time the court system updated itself just
slightly. For a single case all depositions and everything else should be
managed by the one court. Is that too complicated????
Of course we won't mention that about 5 depositions / motions have been written
with thousands of words arguing over this farcical episode. How many hours etc
have been wasted?
To get justice in the US legal system you require $millions to pay lawyers. Its
pathetic.
[ Reply to This | # ]
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| Authored by: Groo on Tuesday, August 22 2006 @ 05:47 AM EDT |
If Mr Wilson is smart, or his lawyers are smart, there is a lot they can do to
answer things in a way that adds much to the case. For example, imagine the
following statements at deopsition, and remember, there is a 4 hour limit.
SCO: Mr Wilson, what is XYZ?
Wilson: Well, umm.... it is, well, you know, XYZ started out, wait, no, let me
start with the people. It started out with Randy and I looking into XYZ. Randy
liked to wear blue shirts, which was kind of odd at the time, I vividly
rememeber it every time we mention XYZ because at the time, that was 1978, or
was it 1979? No, it was 1978, I remember because Bertha had her kid home from
college, and he graduated in 1978, so it could not have been 1979. Anyway, where
was I? Oh yeah, umm, XYZ. Randy came in to my office to talk about XYZ, but the
first time he did it, he was not wearing his trademark blue shirt, which at the
time I found really odd. He asked me about XYZ, and I replied, and I, umm, I
remember this quite vividly because of the shirt he was wearing was green that
day, that XYZ was.... ummmm... Can I go to the bathroom?
SCO: Answer the question.
Wilson's laywers: Objection on the grounds of the Magna Carta, where it says....
(insert large tracts of the Magna Carta).
Wilson: (after the dust settles) Oh yeah, Randy. He was, ummm, talking about
XYZ, and umm, it was odd becuase the shirt was green....
Rinse and repeat.
The point being that what can SCO do? Now that the judges are on to them, if
they appeal or otherwise ask for a redo, do you think they will get anything
near as liberal terms? If..... Mr..... Wilson..... speaks.... really....
slowly.... and.... deliberately.... often going off on tangents that need to be
objected to, wrangled over, and otherwise lawyered upon, the clock keeps
ticking.
If SCO needs to get back in front of a judge, I am willing to bet there are all
sorts of issues that can be raised by Wilson, his lawyers and IBM. Since all
parties are wiser now, wouldn't that be fun to see?
-Charlie
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 06:35 AM EDT |
Over and over, scox gets all the time they want. But scox never has to give
anybody else adequate notice. Why is that?
Could IBM have mugged Darl in deposition, in this manner?[ Reply to This | # ]
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| Authored by: billyskank on Tuesday, August 22 2006 @ 06:55 AM EDT |
SCO appears to have got another Judge, unrelated to this case, to overturn the
order of the Magistrate Judge in this case. How were they able to do this? And
can they do this just as easily to any others of Magistrate Wells' orders?
Yours very perplexed,
billyskank.
---
It's not the software that's free; it's you.[ Reply to This | # ]
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| Authored by: LarryVance on Tuesday, August 22 2006 @ 07:14 AM EDT |
"(and did SCO lawyers know that and use it? -- I would guess
so)"
I would suspect that a slimy trick like this is just what
a slimy lawyer would do. I see BS as slime to the core. ---
Never
underestimate your influence!
Larry Vance [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 07:28 AM EDT |
Judge Wells has now made it clear that she is a patsey. SCO has shown over and
over that they do not respect her authority. Clearly they had her figured out
because right here Judges Wells, in the most obvious way, has once again turned
down a chance to fight for her ruling.[ Reply to This | # ]
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| Authored by: DaveJakeman on Tuesday, August 22 2006 @ 07:31 AM EDT |
SCO were warned about the discovery cutoff, yet on the eve of the cutoff, in
response to SCO's subpoena gamesmanship, the Magistrate Judge tossed SCO a
bone.
Now look what they've done with it. They've dug up the whole flower bed and
still haven't buried it.
This order from Wells doesn't sit easily with itself, nor her prior ones. It
will probably cause future wranglings, too. The situation doesn't make her look
good, yet goaded by SCO, she played some part in allowing it to happen. Maybe
this is why she came down so hard on SCO with her last epic order.
---
Unfortunately for us, common sense is not very common.
---
Should one hear an accusation, try it out on the accuser.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 07:35 AM EDT |
To all the people saying Wilson should "stall", or hesitate or
lengthen his answers or even not answer:
1) Not answering would very likely see you in some sort of contempt of court.
You've been summoned to a court to answer questions - if you refuse to answer
you will be in BIG trobule. If you are caught deliberately stalling, that will
be just the same, albeit harder to prove.
2) Just because SCO want to play games, doesn't mean that you should stoop to
their level. By being even slightly unco-operative, you would just help them be
seen in a more favourable light and you in a less favourable one.
The most famous sportsmen in history (at least in the UK) are those that played
completely fair AND STILL WON even when their opponents weren't. Those are the
real winners, every single time. Take, for example, football/soccer player Gary
Lineker or Sir Stanley Matthews - two of the most famous British football/soccer
players in history - neither received a single yellow or red card in their (very
long) careers and yet both played at International level and achieved marvellous
success.
What's the better achievement? To win the case by playing dirty or to win the
case by playing fair despite whatever your opponent does? Who's going to be
seen in a good light by the judge/jury? If, even with all these dirty tactics
and back-handedness, SCO still lose, what's that say about SCO's case in the
first place?
I say, let them dispose him. Do it in the best, politest manner possible - this
doesn't mean let them get away with everything - still query the law on what
they are allowed to ask him, still object to questions etc. but do it perfectly
to the rulebook. Let them do everything the court's told them to and grin at
them and even help them along while they do it. Let them have 4 and a half
hours if they want it. And then, when they STILL don't have anything
worthwhile, the judge will see just who's playing the game and who's playing the
SYSTEM.
When SCO lose and it comes to appeal, make sure that it's known that not only
did you co-operate but that you went above and beyond the call of duty EVERY
SINGLE TIME and still they couldn't fabricate a good enough case to win.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 09:03 AM EDT |
Hey, everybody! (Especially Webster, Steve Martin, and the other law
iconoclasts.)
Everybody's good and angry. Which figures. After so much success in smacking
SCO down, there's a hiccup. As the saying goes, anytime things are going your
way, you've overlooked something.
However, I want to table my own anger for a moment. I'm so focused on it, I'm
missing the big picture. So they depose the guy.
Worst case scenario, what happens?
What does this mean for the PSJ's? I mean, there certainly seems to be enough
that I would think creating conflicting testimony wouldn't matter. Maybe IBM
can depose someone else from the deals and negate any conflict.
I don't trust SCO to not song and dance a jury, they've shown you can't trust
them. The PSJ's are still the goal. What does this do to that goal? It may be
a win for SCO, but what difference will it make?
Dobre utka,
The Blue Sky Ranger[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 09:15 AM EDT |
| The North Carolina judge, however, quite reasonably pointed out in the
hearing transcript that he doesn't know what is new and what isn't, so it's not
an enforceable line in his court ....
What is reasonable about this? If
IBM cited the law correctly, the law of the district in which this judge sits is
that "The parties discovery rights in this district can rise no higher than
their level in the district of trial." (Citation omitted). This means the
North Carolina judge has the obligation to determine what the parties' discovery
rights are in the Utah district proceeding. That he is unwilling to do so
indicates his disregard for the law of his own district.
It seems as though
judges simply disregard the plain meaning of the law whenever it suits them. If
it requires a little effort on their part to comply, they look the other way.
To be fair, they have heavy caseloads. But still I can't help but wonder when I
see such rulings if the real reason is laziness, incompetence or corruption. [ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Tuesday, August 22 2006 @ 09:21 AM EDT |
Wells refers to a transcript of the hearing. I talked to the court in NC and no
official transcript was made.
Is there really a transcript of the hearing somewhere, or did Wells get a copy
of the tape and listen to it?
I'm not sure but I don't think anyone ordered a tape.
---
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: seanlynch on Tuesday, August 22 2006 @ 09:25 AM EDT |
Mr. Wilson should have his lawyers look into the stalking law in Utah. I believe
that he could have both the SCO Group and their lawyers brought up on chargers
under that very wide ranging anti-stalking law.
If any of the planning for this end run around Judge Wells took place in Utah,
and if it made Mr. Wilson feel uncomfortable, I think he should look into
pressing charges.
Members of the Bar, as officers of the Court, should not be allowed to abuse
their powers in this way. They should be given a taste of their own medicine.[ Reply to This | # ]
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| Authored by: greybeard on Tuesday, August 22 2006 @ 09:43 AM EDT |
I guess that I am missing something, but the fact that Mr. Wilson's lawyer takes
off on vacation would not seem to me to be so much of a factor if the firm had
any kind of effective plan for dealing with contingencies in his absence. Mr.
Wilson appears to have gotten poor advise from his lawyer leading him to fail
where Intel and the others succeeded with SCOs outlandish antics. Cravath
cannot be cut any slack for failing to anticipate some SCO underhandedness.
They have been dealing with these lowlifes for several years and it defies
belief that only one part of the Craveth practice would be aware of it.
---
-greybeard-[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 10:02 AM EDT |
If the law protects the purpetrators of this kind of underhanded trick, then the
law is evil.[ Reply to This | # ]
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- bad lawt - Authored by: davogt on Wednesday, August 23 2006 @ 04:12 AM EDT
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| Authored by: tredman on Tuesday, August 22 2006 @ 10:11 AM EDT |
As I see it, though this minor skirmish is a victory for SCOX, there are only
one of two possible outcomes here:
1) BSF grills Mr. Wilson with questions related to the previous deposition, and
take a tack to argue that his current answers contradict his previous ones. IBM
eventually goes to Judge Kimball with an appeal that the deposition should be
stricken because it exceeds the original Judge Wells order. It's not a slam
dunk, but them succeeding on those grounds is entirely plausible.
2) BSF grills Mr. Wilson with questions related to the previous deposition, and
he answers them precisely as he did before. BSF has just wasted four hours of
valuable deposition time. Mr. Wilson has been inconvenienced for four hours
(plus travel time). IBM has a bulletproof, iron-clad interpretation of the APA
and related agreements, and this case is over before the year is out.
I think it can be viewed as a risk/reward proposition. The risk means that SCOX
can delay the inevitable a little bit longer. The reward is that IBM sinks the
18th hole on the first shot.
---
Tim
"I drank what?" - Socrates, 399 BCE[ Reply to This | # ]
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| Authored by: ExcludedMiddle on Tuesday, August 22 2006 @ 11:34 AM EDT |
I expect excellent coaching for this 4-hour deposition by Mr. Wilson's attorney.
I'm not too concerned about this, because he seems like an intelligent person.
I can't believe that this mere possibility of creating a slip-up during this
follow-up is so important to SCO's strategy. Or, if it is, they must be in bad
shape. Even if so, this contract matter is only one of the assertions of the
PSJs from before.[ Reply to This | # ]
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| Authored by: mtew on Tuesday, August 22 2006 @ 12:43 PM EDT |
Obviously Otis Wilson will be there.
His lawyer will almost certainly be there.
A gaggle of SCOundrels will be there.
But will the Nazgul be there?
Also when is this to happen?
---
MTEW[ Reply to This | # ]
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| Authored by: wowbagger on Tuesday, August 22 2006 @ 12:44 PM EDT |
I have a question about preparation, and about Wells' statement about this not
being an invitation to extend discovery.
First of all: Is there any legal reason why Otis cannot review the transcript of
the previous deposition? Upon being asked a question previously answered (after
IBM's "Objection: Asked and Answered previously") say "Well, as I
said in the previous deposition (page N line L), <...> And I have received
no additional information to cause me to change that answer."
Second of all: In her ruling upon this, Wells ends with a statement to the
effect that "this should not be taken as an invitation to reopen
discovery". OK, as I understand it, her previous ruling on this was
"IBM doesn't object, Otis doesn't object, I'll allow this even though it is
after the deadline". If my understanding is correct, can she, upon being
presented with any new information gained at this deposition, say "Sorry,
but this was beyond the discovery deadline, and I won't allow it. Previous
ruling? What about it - you voided it when you got the NC judge to exceed what I
allowed. I get to make a new ruling. Here, have a nice cold dish of
crow."
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 12:46 PM EDT |
I have a growing concern that BSF is in the process of creating a
"How-TO" for the destruction of a legal system. If all these tricks
are put together in a single "book", then, all that is left is
lawlessness. There is no law, when, the law can be stalled until the poorer
folds for lack of money. Is perhaps time for the non-lawyers to do something
about the lawyers? If not, what is left?[ Reply to This | # ]
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- A growing concern - Authored by: Anonymous on Wednesday, August 23 2006 @ 01:56 AM EDT
- A growing concern - Authored by: Anonymous on Wednesday, August 23 2006 @ 12:12 PM EDT
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| Authored by: DMF on Tuesday, August 22 2006 @ 12:47 PM EDT |
Can Wilson's counsel deal with this by objecting during the deposition to every
new line of questions, then moving to get those responses thrown out because
they "re-open discovery"?
In other words, it's one thing to get a response; it's another to get it the
response admitted.
What might Marriot's objection be?
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 01:39 PM EDT |
Fortunately for Mr Wilso the the judge didn't prescribe how many questions per
hour he must answer... hmm 15 minutes of thinking for each answer should make
the four hours quite bearable. I was never one about making lawyers happy![ Reply to This | # ]
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| Authored by: Kevin on Tuesday, August 22 2006 @ 02:02 PM EDT |
I was recently reading Mr Wilson's deposition in the
BSDI
case, and was struck by how much better a job the lawyers did
of time
management in that case. There is the odd objection, for
instance on page
40:
MR. KENNEDY: Counsel, I really want to give you as much leeway
as
possible with Mr. Wilson, because he is the individual who signed
these
agreements, but I have to object to that question on the grounds
of form. I
think we're getting argumentative.
MS. FITHIAN: I don't mean to
be.
MR. KENNEDY: My objection to form has been made.
MS. FITHIAN:
That's fine. Would you read back the question?
(The reporter read back the
last question.)
But generally, the flow goes, "question,
answer, question, answer,"
without a lot of noise from the opposing counsel.
Why is this? The
secret lies in the stipulations that appear on pages 3-5 of the
PDF,
particularly
paragraph 3:
[It was stipulated by and between counsel
representing the
Plaintiff(s) and counsel representing the Defendant(s) as
follows:]
3. That except as to the form thereof, each question
propounded to the
witness either upon direct, cross examination or redirect or
recross
examination is deemed objected to and excepted to in the same manner
as
if objections and exceptions were noted and appeared of record, and
the right on
the part of all counsel to object and except to each
question is reserved
(except such as related to the form of the
questions), and such objections and
exceptions to each question may be
made upon the offering of this deposition in
evidence and may be
passed upon by the Judge or Magistrate at that time, or at
any
pretrial hearing thereof; in the same manner and to the same extent as
if
statutory formalities in respect to the taking of this deposition
had been
observed in detail.
The answer of the witness to each question
propounded is deemed to
have been subjected to a motion to strike and exception
to the ruling
of such motion reserved, in the same manner as if a notation or
such
motion to strike and exception appeared of record, and the right on
the
part of counsel to move to strike out each answer and to except to
an adverse
ruling on such motion at the time of the offering of this
deposition is
reserved.
It would appear to be me that it would be "in
the interest of judicial
efficiency" for counsel to proffer such stipulations as
a matter of
routine. Is there something in the local rules in Utah, or a change
in
the FRCP since the BSDI case that precludes the parties from
agreeing
to terms like these?
---
73 de ke9tv/2, Kevin (P.S. My surname is not
McBride!) [ Reply to This | # ]
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| Authored by: Kevin on Tuesday, August 22 2006 @ 02:09 PM EDT |
It appears that SCOX is recalling Mr. Wilson for further direct examination.
Wasn't he called by IBM originally? Isn't it a general axiom that if both sides
do direct examination of the same witness, one side is crazy?
Never mind, don't answer that. I know which side it is.
---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 02:11 PM EDT |
> Judge Wells states that SCO is not to view this as an opportunity to reopen
discovery, but that is a bit meaningless, because it is another deposition, and
if there are no restrictions other than time, why isn't it reopening discovery?
If SCO asks about new matters, it does reopen discovery. And if they don't ask
about new matters because they can't reopen discovery, then what can they ask
him about? Rehash the old and hope he slips up? It's a meaningless sentence in
the context of the Order, to my reading. For one thing, if her orders can be
overthrown by North Carolina, what does her restriction matter?
Well, can't Judge Wells block any introduction of material from that deposition
into this case? That would, in my mind, defeat the purpose of SCO's new
deposition, no? And it would maintain some limits on discovery in a sense--that
is, while they would be able to get additional discovery this way, they wouldn't
be able to use it.
It really stinks, though, for them to have gotten in a low blow like this. It's
a really evil, sneaky trick, but I guess that an ambush is pretty much SCO's
only hope at this point, so I can't say I'm surprised.[ Reply to This | # ]
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| Authored by: electron on Tuesday, August 22 2006 @ 02:56 PM EDT |
> I'll place the texts of the North Carolina matter after the
> Order, separated by rows of stars, so you will understand
> the context. As I say, ultimately it probably doesn't much
> matter, because there are so many other witnesses who
> confirm what Mr. Wilson has said about the contract's
> interpretation. But I feel very bad for poor Mr. Wilson.
Why is it that a lower court in the USA can issue orders overriding the rulings
of another lower court in the USA?
What that suggests is that if a person/company doesn't like a ruling then all
they need to do is to locate another judge who will simply enter another ruling
in their favour.
---
Electron
"A life? Sounds great! Do you know where I could download one?"[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 03:32 PM EDT |
| The problem, according to Judge Wells, is that Mr. Wilson submitted himself
to the North Carolina court by submitting a motion to quash there.
The
Federal Rules tell such a deponent that their motion to quash should be filed in
the court that issued the subpoena.
Fed. R. Civ. P. 45(3)(A) provides: "On
timely motion, the court by which a subpoena was issued shall quash or modify
the subpoena if it ... [reasons for quashing enumerated]."
The subpoena in
question was issued from the Federal District Court for the Middle District of
North Carolina. Under the plain language of Fed. R. Civ. P. 45(3)(A), that is
the court in which a motion to quash the subpoena should be filed. So Judge
Wells is penalizing Mr. Wilson for adhering to the rules of civil procedure. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 03:34 PM EDT |
I still do not understand how a court in North Carolina can make a ruling in a
case that it has no jurisdiction. Can SCO go from state to state until it gets
the rulings it wants?
Now that SCO's dirty trick is out in the open can't the ruling be appealed and
made null and void?
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 05:59 PM EDT |
Ok, first my usual disclaimer: I'm not trolling, and I tend to be blunt, both
in word and form. If anyone is offended, please post it in the thread and if I
see it, I will apologize and clarify the topic of offense, if it will help.
Oh, I'm not good at analogies. I apologize for them in advance.
Having said that...
A lot of Groklawers are incensed that this has happened. I am as well.
However, I don't believe that a Groklaw-equivalent call of "Off with her
head!" needs to be raised.
First and foremost, this was a trick by SCO, not that any of us should be
surprised at that. For as many stunts as they have pulled, they got one
through. We should have expected that as well, as it was bound to happen. Yes,
I know many people will probably think "Yes, but it keeps happening!".
And it does, to a certain extent, but I think it isn't because of judicial
negligence or incompetence. I think it's trying to be as accomodating as
reasonably possible. As an example, can anyone provide a few examples of IBM
making an overly-broad request? I'm thinking of the "all the notes, emails,
etc from every developer that work on linux who sat near someone who's best
friend's extended family's relatives had some sort of exposure to some form of
unix, including but not limited to advertising, magazine articles, and reading /
hearing the letters u,n,i,x in any order at all in their lives" type
requests. Okay, maybe I'm exaggerating a tad, but it's only to prove a point.
I can't recall any gargantuan requests that IBM made. As such, we're comparing
apples to my big toe
Secondly, I have a few questions:
First, how exactly was SCO able to pull this off? I'm guessing that Mr. Wilson
(gotta resist the 'SCO-nis the Menace' remarks) lives / works in NC, right?
Now, I'm not 100% on this but certain enough to advance it as a potential
refutation to one of the undercurrents running through this topic, but SCO can't
just "shop the judiciary" as some people have been discussing. I've
always been under the impression that stuff like this can only be done in states
where there is a residency / business presence.
If that is correct, then SCO couldn't just start hopping courtroom venues until
it found one that was sympathetic to it's case. It had to be either Utah where
the case is occurring or NC where Mr. Wilson lives. I mean, if a lawyer could
choose any courtroom from anywhere in the country, don't you think this would be
common practice?
Secondly, did SCO lie to the NC judge? I read from another comment that Mr.
Normand hinted that Mr. Shaughnessy was "sorta kinda" Otis Wilson's
lawyer. If that is the case, isn't that some sort of mis-representation, or was
the reader incorrect in interpretation?
Third, does IBM have grounds to appeal this to Judge Kimball? I've seen a few
people state that there is a federal law (and I'm being lazy and not getting the
info, sorry) which states that the proper venue, when attempting to quash a
subpoena, is the courtroom that issued said subpoena. If the NC court issued
the subpoena, then it was the proper courtroom to quash it, yes? If so, then
this creates an unavoidable catch-22. By attempting to quash the subpoena, the
quasher automatically and intrinsically recognize the authority of the issuing
court, which doesn't make sense as it essentially ignores the law. I could see
something like:
Def Lawyer: Your honour, the plaintiff lives in Texas and my client, ABC
Company, does business only in Texas and Arkansas. As such, this subpoena for a
deposition issued from this courthouse in the state of Wyoming is invalid, due
to Federal statute <citation here>.
Judge: That is correct. However, since you are in my courtroom attempting to
quash the subpoena, you recognize this courts authority to issue the subpoena.
Sorry, you lose.
If that's not the case and there are no additional addendums or stipulations
that would validate SCO's methodology, then does that mean that Judge Wells
interpretation is factually incorrect, if the law is interpreted strictly as
written? Is that something that can be appealed?
Lastly, even though this deposition is taking place, IBM will have the ability
to object to materials that are deemed out of scope of the deposition, right?
Does anyone here honestly expect them to not try and shred the deposition to the
extent that the only things allowed in are Mr. Wilson validating his name, age,
and address?
In summary, do I think Judge Wells made a mistake? Personally, yes I do but it
was nothing intentional. I think the bigger problem is that SCO has a
demonstrable history of gaming the court with actions that show a total
disregard for the judge, the court, and the letter of law. This latest move is
just another example. I'm honestly surprised that the law apparently allows
this kind of action, or at least does not provide enough discouragement.
Also, please remember that the IBM lawyers have been dubbed the 'Nazgul' for a
reason. If this was an oversight on their part (a first, I think), then I'm
guessing that they'll be doubly careful from here on out. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 06:36 PM EDT |
| So, in the USA, 'software' is copyrightable and patentable. Not a lot I can do
about that; I don't have a vote there.
Also, in Indiana (I think) for a
while, 'pi' was legally 3.2 . I think that law got repealed, when wagon wheel
rims stopped fitting the spokes; you need 'pi' to be 3.14159 or so, if you want
to cut the right length of rim.
However, as an engineer, the important thing
to me is that the software should be maintainable. We make these software models
of what is going on in the physical world, and we keep having to 'tweak' them to
get them to match reality adequately. We engineers need our freedom to tinker,
otherwise the things we design and build won't stand up.
There's 'closed
source' software, and 'open source' software.
Give 100 copies of 'closed
source' software to 100 users, they will all stay using the same software, and
it will be relatively cheap to service the defects; you can fix it once for
everyone. But it probably won't do what they want, if they are 'advanced'
users.
Give 100 copies of 'open source' software to 100 users, they will
make their own modifications, and it will become more expensive to service the
defects; you have to fix each defect 100 times over. But it will do exactly what
they want, if they are 'advanced' users.
Anyway, that's the engineering
opinion. If you want a legal opinion, ask a lawyer. If you want a medical
opinion, ask a doctor.
I stick to engineering. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, August 22 2006 @ 09:29 PM EDT |
"IBM respectfully requests that the Court enter an order stating that its
prior order dated January 26, 2006 [Docket #604] remains in effect."
Isn't this too ambigious. If the court entered such order, wouldn't SCO then
have been in contempt of court for asking questions clearly contary to a valid
clear court order?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, August 23 2006 @ 10:03 AM EDT |
| If the limit is four hours... I say draw out his answers, one an hour. [ Reply to This | # ]
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- 4hrs... - Authored by: Anonymous on Wednesday, August 23 2006 @ 08:07 PM EDT
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