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SCO's Redacted Memo re Protective Order of Dr. Leitzinger's Personal Financial Info - updated, as text |
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Thursday, October 26 2006 @ 09:09 PM EDT
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Now we find out a bit more of what the dispute over Dr. Jeffrey Leitzinger's personal financial information is about. Here's SCO's Motion for a Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and Certificate of Compliance with Rule 37(c) [PDF]. In it we find out that at his September 15th deposition, IBM asked Dr. Leitzinger a question about his income last year from his company, Econ One, including direct compensation from Econ One and his status as a shareholder, as well as how much Econ One has billed SCO in connection with this litigation. SCO's lawyer told him not to answer the question and now seeks a protective order. I guess IBM would like to know if the entirety or the preponderance of his income last year was from SCO alone, which could be used at trial to give the jurors a clue as to independence.
IBM feels it's entitled to the information, and at the deposition it pointed out that SCO had asked the "same question" of IBM experts "who are not professional witnesses and they've answered," stating that the information was relevant to "potential cross-examination material as to his impartiality." So, there's our clue that they do intend to let the jury know that Dr. Leitzinger, in their view, is a "professional witness," which is what I mentioned earlier this might be about. If you are curious, here's Hiero Gamos' Legal Directory of Expert Witnesses. SCO asked Andrew Morton, for example, that same question, and their justification for asking him about his income is the following: 8. The sole justification IBM gives for seeking such information -- that SCO sought such information from IBM expert Andrew Morton -- has no applicability here. Mr. Morton's income is relevant for reasons that are entirely inapplicable to Dr. Leitzinger: IBM co-founded, funds, and largely manages and controls the OSDL, which pays Mr. Morton's salary. The payment of salary to Mr. Morton under these circumstances, as well as the amount of that salary, is highly pertinent to the partiality of his opinions in this case. Isn't that a hoot? Doesn't SCO have *any* competent paralegals to do research for them? Here's the membership of OSDL. Yes. Approximately 70 member companies, including HP, Intel, Google, Red Hat, Novell, Hitachi, Xandros, Fujitsu, Motorola, Monta Vista, Nokia, TurboLinux, Wind River, Linspire, Siemens, Scalix, Red Flag, Levanta, Lynuxworks, AMD, Black Duck, and Mitsubishi Elelctric. Update: I forgot to mention the part that is so funny. A reader reminded me. When OSDL was founded, Caldera was there and joined up itself, as you can see in the OSDL press release announcing OSDL's formation in 2000: Hewlett-Packard, Intel Corporation, IBM and NEC Corporation today announced the Open Source Development Lab, the industry's first independent, non-profit lab for developers who are adding enterprise capabilities to Linux*. The four companies plan to provide significant equipment and funding to the lab over the next several years. Additional contributors and sponsors of the lab include Caldera, Dell, Linuxcare, LynuxWorks, Red Hat, SGI, SuSE, Turbolinux and VA Linux....Caldera: "The effort of these companies - especially Intel - validates the Open Source development model," said Darren Davis, vice president of development for Caldera Systems, Inc. "We're behind any efforts like these that advance Open Source." Linus went to work at OSDL precisely because it is independent of any one company. Here's what he said in 2003, in connection with his decision: "It feels a bit strange to finally officially work on what I've been doing for the last twelve years, but with the upcoming 2.6.x release it makes sense to be able to concentrate fully on Linux," Torvalds said. "OSDL is the perfect setting for vendor-independent and neutral Linux development." Linus wasn't supporting any company. OSDL was supporting Linux development, so all companies can benefit, whoever wishes. In fact, SCO could have too, if they hadn't been so silly as to choose to push Unix instead of Linux. Morton is also an OSDL Fellow, but he works for Google, before that for Digeo. OSDL arranges for him to be able to work full time on Linux. Here's the press release from 2003: OSDL, a global consortium of leading technology companies dedicated to accelerating the adoption of Linux, today announced that Linux kernel maintainer Andrew Morton has joined forces with the lab and will be focused exclusively on the 2.6 kernel during its maintenance cycle.
Under terms of the agreement between Digeo and OSDL, OSDL will support Morton's Linux kernel development work while he continues in his official role as principal engineer at Digeo, Inc. Digeo is a leading provider of media center products and interactive television services. The sponsorship frees Morton to dedicate himself to his new role as the lead maintainer of the Linux production kernel while Linus Torvalds, the creator of Linux, maintains the development kernel.
"It's great that both Andrew and I can work full-time on Linux through OSDL. Now the maintainers of both the development kernel and the stable kernel have the support of a vendor-neutral organization committed to advancing Linux", said Torvalds, the creator of Linux. Sounds a lot different than SCO's ugly spin, doesn't it? The whole point of joining OSDL was because it's vendor neutral. The other plus is it gives them both access to state of the art computing resources. That's not at all the way SCO is making it sound. Maybe they just don't understand ethics. Don't they realize how much money both Linus and Morton could rake in, if they were willing to work for a vendor? OSDL is a nonprofit, for heaven's sake. Here's why Morton wanted to go to Google from Digeo: The OSDL offered to directly employ Morton while he worked from home, but Morton indicated that he preferred to work in an office with other engineers. Thus a search for a new home was underway.
So why Google? Other than the well-known perks for working in Google's Silicon Valley campus, Morton had a strong ethical attraction to working for the company.
"In my position as kernel maintainer I feel that I should not be employed by a company which has a direct interest in the kernel.org kernel because this would put me in a position of making decisions which are commercially significant to my employer's competitors," Morton explained. "As Google maintains their own kernel variant for internal use, their interests are largely decoupled from what happens in the kernel.org kernel."
Google's active use of Linux and participation in open source development was another big draw. "It is beneficial to me (and to Linux) that I be in day-to-day contact with people who use Linux for real things. Hence Google is a good all-round fit," Morton added. In SCO's eyes, everyone is an IBM shill. They've accused Eric Raymond of it. Me too, and now Andrew Morton. It's truly laughable. But it's also ugly. What an ugly place their minds must be to dwell in all the time. I always feel like a shower when I so much as peek inside their brain processes. But the thing is, this information is freely available on the Internet. It took me less than five minutes to collect it. So is it that SCO doesn't know any better? Or is it that they hope the judge, and the jury eventually, don't? Meanwhile, Morton's good name has been smeared. SCOfolk just don't care, of course, but I do, and that's why I wanted to clarify.
*********************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]
Stuart H. Singer (admitted pro hac vice)
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]
Attorneys for The SCO Group, Inc.
___________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
____________________________________
THE SCO GROUP,
Plaintiff/Counterclaim-Defendant
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff
___________________________________
SCO'S MOTION FOR A
PROTECTIVE ORDER REGARDING
DR. JEFFREY LEITZINGER'S
PERSONAL FINANCIAL
INFORMATION AND CERTIFICATE
OF COMPLIANCE WITH RULE 37(c)
FILED IN REDACTED FORM
[ORIGINALLY FILED UNDER SEAL]
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
Plaintiff/Counterclaim Defendant, The SCO Group, Inc. ("SCO"), through its undersigned Counsel, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and Local Rules, files this Motion for a Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and in support thereof states:
1. At his September 15, 2006 deposition, Dr. Jeffrey Leitzinger testified fully about his hourly billing rate for work on this case, and also estimated the total amount that the firm EconOne has billed in connection with this litigation. (Leitzinger Dep. 10:7-11:1, Sep. 15, 2006, Attached as Ex. A)
2. At the deposition, counsel for IBM also asked Dr. Leitzinger the following question: "And within - well, let me take taxable year 2005. How much income have you derived either from direct compensation from Econ One or as a result of your status as shareholder of Econ One?" (Id. 7:13-16) Counsel for IBM then confirmed he was seeking Dr. Leitzinger's total income from those two sources, and not just what Dr. Leitzinger receives from what he bills in this litigation. (Id. at 7:17-20)
3. EconOne is an economics firm that provides services to many different clients.
4. This question poses an unwarranted intrusion into Dr. Leitzinger's personal affairs, is wholly collateral to this litigation, and causes undue annoyance and embarrassment. Accordingly, counsel for SCO instructed Dr. Leitzinger not to answer the question, and agreed to seek a protective order. (Id. at 8:15-10:3)
5. On September 28, counsel for SCO wrote to counsel for IBM in order to try to resolve the issue before seeking a protective order. (Ex. B) On October 16,
2
counsel for IBM informed SCO that he still believed IBM was entitled to the information. (Ex. C) Accordingly, SCO has brought this motion for a protective order.
6. At the deposition, counsel for IBM stated that SCO had asked the "same question" of IBM experts "who are not professional witnesses and they've answered," and the information was relevant to "potential cross-examination material as to his impartiality." (Leitzinger Dep. 8:7-9, 8:13-14, Ex. A) Neither explanation justifies such an intrusion into Dr. Leitzinger's personal affairs.
7. It is well established an expert witness is not obligated to disclose his personal financial affairs. Courts have been diligent in protecting the privacy interests of expert witnesses from undue intrusion in the discovery process, particularly when the information sought is unrelated to the case in which the expert is testifying. See, e.g., Elam v Alcolac, Inc., 765 S.W.2d 42 (Mo. App. 1988) (holding that trial court properly refused cross-examination as to fees expert witness received for services in other cases); State By and Through State Highway Commission v. Superbilt Mfg. Co., 204 Or. 393, 406, 281 P.2d 707, 713 (Or. 1955) (holding that "the question as to how much money [witness] had received as an appraiser and witness in prior unrelated cases was improper" because "[s]uch an inquiry opened the doors to purely collateral matters"); In re Wier, 166 S.W.3d 861, 865 (Tex. App. 2005) (reversing trial court decision to allow discovery of financial information of an expert witness unrelated to that case, court held: "The intrusion on the witness's privacy interest, the burden in obtaining the information, and the impact on the willingness of reputable experts to provide testimony when needed in litigation outweigh any possible benefit from the additional discovery ordered.")
3
8. The sole justification IBM gives for seeking such information - that SCO sought such information from IBM expert Andrew Morton — has no applicability here. Mr. Morton's income is relevant for reasons that are entirely inapplicable to Dr. Leitzinger: IBM co-founded, funds, and largely manages and controls the OSDL, which pays Mr. Morton's salary.1 The payment of salary to Mr. Morton under these circumstances, as well as the amount of that salary, is highly pertinent to the partiality of his opinions in this case.
9. In contrast, the majority of Dr. Leitzinger's income from EconOne is wholly unrelated to SCO. While Dr. Leitzinger did testify about the approximate amounts EconOne has billed SCO for work on this case, the remainder of his income from EconOne has no relation to SCO, no bearing on the opinions he has rendered in this case, and would be collateral to any effort by IBM to impeach him. Thus, the intrusiveness of this request into Dr. Leitzinger's private matters far outweighs its probative value.
For the foregoing reasons, SCO respectfully requests that this Court enter a protective order precluding IBM from asking Dr. Jeffrey Leitzinger how much income he derived from direct compensation from EconOne or as a result of his status as a shareholder of EconOne.
REDACTED
4
CERTIFICATE OF COMPLIANCE WITH RULE 37(c)
Counsel for SCO has endeavored, in good faith, to reach agreement with IBM before filing this Motion. As described herein, counsel for SCO wrote to counsel for IBM in order to try to resolve the issue before seeking a protective order. (Ex. B) On October 16, 2006, counsel for IBM nevertheless informed SCO that he still believed IBM was entitled to the information. (Ex. C) Accordingly, SCO believes the parties are at an impasse, and has brought this Motion for a protective order.
5
DATED this 20th day of October, 2006.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
Sean Eskovitz
By__[signature]___
Counsel for The SCO Group, Inc.
6
CERTIFICATE OF SERVICE
Plaintiff/Counterclaim Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing SCO'S Motion for a Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information was served by email (by agreement of the parties) or U.S. Mail, first class postage prepaid, on Defendant International Business Machines Corporation on the 20th day of October, 2006, to the following:
VIA EMAIL:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address, email]
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address, email]
VIA U.S. MAIL:
Donald J. Rosenberg, Esq. [address]
By___[signature]___
7
EXHIBITS FILED UNDER SEAL
8
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Authored by: buttahlips on Thursday, October 26 2006 @ 09:42 PM EDT |
It still amazes me that they can get away with this. [ Reply to This | # ]
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Authored by: TimMann on Thursday, October 26 2006 @ 09:42 PM EDT |
If any. [ Reply to This | # ]
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Authored by: Steve Martin on Thursday, October 26 2006 @ 09:47 PM EDT |
"...I always feel like a shower when I so much as peak inside their brain
processes."
"peak" => "peek"
---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"[ Reply to This | # ]
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- peak - Authored by: LegalIdiot on Thursday, October 26 2006 @ 10:17 PM EDT
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Authored by: Anonymous on Thursday, October 26 2006 @ 09:49 PM EDT |
I don't have time to write a long new post right now, so I'm reposting something
I posted a few days ago, plus 2 cases where JL as served as a witness...
The 2 links in the first part give us the most likely reason why IBM is
interested in and believes itself entitled to this information.
The 2 links in the 2nd part are cases in which Dr J.L has testified previously
--------------------------------------------------------
Two important points:
1. SCO is seeking a protective order, to protect Dr J.L's personal financial
information from IBM.
If the purpose simply was to protect Dr J.L's personal information from the
public at large, including of course Groklaw, then it would seem to me that
sealing the item would be sufficient.
2. The other thing that I believe tells us that SCO wish to protect DR J.L's
information from IBM, is that this is going to be an opposed motion.
First, there would be no need for a protective order, if nobody was seeking to
discover his "personal financial information". Obviously SCO, are not
seeking to discover it (they are seeking to prevent discovery), so it must be
IBM who are seeking to discover it.
Second, it's not a stipulated motion.
SO:
1+2 = 3. What, I believe that we know is that IBM is seeking to discover some
information about Dr J.L. that SCO describes as his "personal financial
information", and that SCO's motion for a protective order is intended as
an attempt to prevent this discovery.
AND:
4. Another point to consider is that Dr J.L. apparently (or at least so far) the
only expert witness in this situation, what makes him difference from other
expert witnesses in the case?????
WHICH RAISES THE QUESTION:
Why 3 and 4?
What could IBM want to know about his personal financial information, and why
might they think it relevant (from 3)
What makes Dr J.L different from other expert witnesses in the case (from 4)?
Of course, we don't know until we seem SCO's motion or IBM's reply.
One thing we can say (which may or may not be anything like what is happening in
this case), is that in other cases, experts' personal financial information has
been considered an issue relevant to discovery, when a question has arisen over
whether the expert witness is a person who earns a significant part of his
living by testifying on a particular side in court cases (the so-called
professional expert witness).
Here is a Pennsylvania Supreme Court ruling on such a case:
http: //www.courts.state.pa.us/OpPosting/Supreme/out/J-51-2005mo.pdf
Here is a memo in another case, where it is claimed that that a particular
person was a professional expert witness (who withdraws whenever his financial
information is sought inorder to establish that) and then in that particular
case filed a protective order to prevent that.
http ://www.millerandzois.com/Protective-Order-Expert-Financials.html
One other thing that I suppose might possibly be relevant to this discussion, is
that BSF do appear to have used Dr J.L in a number of cases previously. That of
course, does not necessarily imply anything at all about the quality of his
testimony - but it might be the trigger for IBM to look at him more closely than
other expert witnesses (my point 4)
Quatermass
IANAL IMHO etc.
--------------------------------------------------------
Catz/Catalyst + Dr J.L
Page 71-72 of this ruling
http://www.getcatalyst.com/press_rel/Court%20Rulings%20Excerpts%20&%20Links_
(05-15-03).pdf
And criticism of how the jury used his testimony in page 73-75
The key part reading (p75): Moreover, the law requires plaintiffs to distingush
between damages caused by lawful and unlawful conduct [...] (damages set forth
were speculative because plaintiff did not establish its lost profits or unjust
gain from infringing activity with reasonable certainty). Here, CATC [the side
Dr J.L testified for damages about] did not distinguish between damages caused
by trademark infringement, as opposed to Catalyst lawful use of the design as a
trade dress or copyright. In fact, CATC did not prove with reasonable certainty
any amount of damages resulting from trademark infringement.
Blades vs Monsanto - another must -read
pages 9-11 here:
http://www.omm.com/webdata/content/publications/monsanto_opinion.pdf
An interesting side point is that the defendants sought to exclude Dr. J.L's
testimony as allegedly unscientific/unreliable (Daubert test referenced on page
9).
Anyway, the judge chose not exclude Dr J.L's testimony, but effectively
discarded it on any relevant point of contention anyway.
1. On Page 10:
"Dr. Leitzinger _assumes_ the answer to this critical issue and
plaintiffs,
in turn, have asked the Court to rely on this _conclusion_ as support for class
certification. I cannot "presume" or "assume" -- much less
"conclude" - class-wide impact here because the evidence submitted
during the class certification hearing demonstrates that such a presumption
would be improper.
[yes the underlined words are both italicized in the original]
2. Page 11:
Plaintiffs did not meet their burden of establishing the necessary elements of
Rule 23(b)(3) through the testimony of Dr. Leitzinger, whose
"assumptions," "presumptions" and "conclusions"
fall far short of actually _establishing_ antitrust impact on a class-wide
basis
through common proof.
[and yes, establishing is underlined]
--------------------------------------------------------
Quatermass
IANAL IMHO etc.
[ Reply to This | # ]
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Authored by: sk43 on Thursday, October 26 2006 @ 09:57 PM EDT |
SCO, Motion for a Protective Order regarding Dr. Jeffrey Lietzinger's Personal
Financial Information:
"4. This question poses an unwarranted intrusion into Dr. Leitzinger's
personal affairs, is wholly collatoral to this litigation, and causes undue
annoyance and embarrassment."
--------
SCO, 2004 deposition of Otis Wilson:
"How long have you been married to your current wife?"
"What's her name"
"What's her last name?"
"And how many times were you previously married"
"Could you tell me the names of your ex-wives and when you married and
divorced each of them?"
"You're current and paid up in full with your federal income tax?"
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 26 2006 @ 09:58 PM EDT |
Is that one of the original members was, wait for it,... Caldera
See the press release announcing opening OSDL:
http://www.osdl.org/newsroom/press_releases/2000/2000_03_30_santa_clara.html
SANTA CLARA Calif., Aug. 30, 2000 - Hewlett-Packard, Intel Corporation, IBM and
NEC Corporation today announced the Open Source Development Lab, the industry's
first independent, non-profit lab for developers who are adding enterprise
capabilities to Linux*. The four companies plan to provide significant equipment
and funding to the lab over the next several years. Additional contributors and
sponsors of the lab include Caldera, Dell, Linuxcare, LynuxWorks, Red Hat, SGI,
SuSE, Turbolinux and VA Linux.
...
Quote Sheet
Open Source Development Lab
Caldera: "The effort of these companies - especially Intel - validates the
Open Source development model," said Darren Davis, vice president of
development for Caldera Systems, Inc. "We're behind any efforts like these
that advance Open Source."
Quatermass
IANAL IMHo etc.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 26 2006 @ 10:04 PM EDT |
"This question poses an unwarranted intrusion into Dr. Leitzingers personal
affairs...."
Anyone remember Otis Wilson?[ Reply to This | # ]
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Authored by: Yossarian on Thursday, October 26 2006 @ 10:20 PM EDT |
>SCO had asked the "same question" of IBM experts
I hear somewhere in the background a steel trap locking.
IBM found real experts that don't need the income from IBM
to make a living; e.g. Brian Kernighan. It had two goals:
1) It is hard to argue with a real expert. E.g. who want to
argue with Kernighan about concept and methods written in C?
It is like playing chess against a GM.
2) Independence. The more source of income, unrelated to IBM,
they have, the less question there is about their motives.
Now it seem like IBM had another trick. It wanted SCO to
ask IBM's experts about their sources of income. It gives
IBM the great argument of "they asked out experts the same
questions, and therefore we are entitled to similar rights".
And SCO, and most of us, did not see it coming.[ Reply to This | # ]
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- control of OSDL - Authored by: Anonymous on Thursday, October 26 2006 @ 11:23 PM EDT
- Same question - Authored by: Anonymous on Thursday, October 26 2006 @ 11:23 PM EDT
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Authored by: SpaceLifeForm on Thursday, October 26 2006 @ 10:41 PM EDT |
Please use clickable links if you got them.
---
You are being MICROattacked, from various angles, in a SOFT manner.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 26 2006 @ 11:48 PM EDT |
We asked IBM's witness that question because its pertinent, since IBM paid him.
For our witness it has no bearing, its irrelevant, and has no possible
connection to the case. So irrelevant, in fact, that we want it sealed,
protected, locked away permanently and IBM should be prohibited from ever asking
that question. Make them stop. Whatever we paid him (which we didn't) is
confidential and IBM is simply being intrusive. They should stick to the topic,
which is Mr. Wilson's ex-wife... er, we mean the contracts.[ Reply to This | # ]
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Authored by: kawabago on Thursday, October 26 2006 @ 11:58 PM EDT |
So they'll grasp at any straw to keep from sinking. Too bad it won't help.
[ Reply to This | # ]
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Authored by: stats_for_all on Friday, October 27 2006 @ 12:08 AM EDT |
Leitzinger was the plantiff's expert in a long running class action case on the
price paid for salmon in Alaska's Bristol Bay.
In 2003 several Alaska
newspapers reported his hourly billing was $550, and
"up to" $800,000
was paid for a report claiming a vast conspiracy involving
81 fish buyers to
suppress prices paid for Salmon.
Source: March 17, 2003; Anchorage Daily
News in Google News Archive (fee
required)
Leitzinger was hired by the
Texas lawfirm Susman Geofrey (of Caldera v.
MSFT fame) to support a fantastic
conspiracy theory in a class action against
fish buyers. The long-running
lawsuit extracted $40MM in pre-trial
settlements, but ended with a jury
exonerating the remaining defendants in 5
hours.
A long review
article on
the "Bristol Bay Conspiracy" trial and Leitzinger's conspiracy report
is
available online.
From the article.
In short,
Rausser and Leitzinger were used to tie the fragmentary evidence
together and
spin a conspiracy theory. Although the court did not permit
them to testify as
conspiracyologists, namely, that a conspiracy actually
existed, they were
permitted to testify that the actions of the processors and
importers were
consistent with a conspiracy and inconsistent with
competition.
+++++
In
subsequent interviews, jurors stated that the plaintiffs never got a single
vote because the jury simply could not find evidence of conspiracy. Two
jurors
said the lack of evidence was “appalling,” another said the defendants
should
be awarded punitive damages.
Jeffrey Leitzinger is a
founding director of a new Califorinia bank: 1st
Enterprise Bank. The bank was
announced in July 2006 and began publicly
trading under the symbol FENB.ob in
August 2006. It is up a couple of dollars
from the IPO price on generally low
volume.
New reports at the time of announcement stated that 350 investors
had put
up 27 Million to capitalize the bank. The bank has a California
Business Entity
registration from Feb. 2006. No Edgar filing exist under the
California
registered name, or any similar combinations, a very, very peculiar
situation
for an OTCBB trading stock.
News article on FENB bank
PR newswire announcement of bank
The "just-a-fish-story,
but not low priced Salmon" explanation of the Jeffrey
J. Leitzinger protective
order is that the poor man is envious of the notorious
Esker Melchior.
Leitzinger's boat came in third in the 2005 Cabo San Lucas marlin
tournament. The boat picked up a very lousy and embarassing $456,233.00
prize for catching a 321 lb. Black Marlin.
ref: Tournament
results
The boat, "Felina", is a 86 Ft AGUILAR, chartered for the
pittance of $25,000/
week. The good doctor Leitzinger is likely humiliated
by his nautical
inferiority in comparison to Mr. Esker "Anti-trust" Melchior.
Aguilar rental
page
The 2006 tournament kicks off this week, so perhaps Leitzinger
just wants
some privacy to concentrate on his tackle.
Ref: 2006 contest
[ Reply to This | # ]
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Authored by: webster on Friday, October 27 2006 @ 12:10 AM EDT |
.
1. Before reading the motion the jaw drops. If what they want to protect Docta
L from is irrelevant, then let him answer. If it is embarassing to Docta L, let
him answer and seal. One must now suspect that it is embarassing to Docta L AND
SCO. Sometimes SCO seems to do frivolous things. What could be more frivolous
than trying to hide a Docta's financial interest in his hiring and testimony?
[Yes, there are many answers to that in this case, but this is obvious!] Let's
read it.
2. Now Docta L answered about his rate and estimated the total amount Econ One
had billed. Econ should have billed more than Docta L's rate. IBM then went on
to ask how much he made from Econ One as compensation or as shareholder.
Imagine what the significance of this would be if Econ One had no other income,
or SCO income represented his total profit margin. One might think that Docta L
was singing for his supper.
3. And notice it was SCO's lawyer objecting to this information not Docta L or
his own lawyer. SCO must know something or they had an objection already
arranged. Why don't they want IBM to know it? If it is irrelevant and
embarrassing, then it won't come out. The Judge can see to that.
4. SCO does argue that the remainder of his income from Econ One has no
relation to SCO. Then the redacted part must be some Econ One figures to
persuade the Judge, without disclsoing the figures that IBM wants to see.
5. If Docta L got a significant part of his income from SCO, how can that not
be relevant? This would be a good one for Magistrate Judge Brooke C. Wells.
6. They are going to have to ask him about any form of PIPE Fairy money, too.
---
webster
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Authored by: Anonymous on Friday, October 27 2006 @ 01:03 AM EDT |
I don't know that this is an SCO thing. This may well be BSF protecting their
expert-pet-mouthpiece.
If IBM is allowed to ask him (in open court, with newspapers present) how much
he makes for ANYTHING besides selling his sworn testimony to the highest bidder
-- his reputation would spread, his public credibility would be affected.
Well, we may not know for sure HOW his credibility would be affected. But it
seems IBM isn't concerned about that.[ Reply to This | # ]
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Authored by: Anonymous on Friday, October 27 2006 @ 01:46 AM EDT |
"In SCO's eyes, everyone is an IBM shill. They've accused Eric Raymond of
it. Me too, and now Andrew Morton. It's truly laughable. But it's also
ugly"
If it was rephrased as;
"In Groklaw's eyes, everyone who disagrees is a SCO shill." it would
be just as applicable. It does not feel nice, does it? [ Reply to This | # ]
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Authored by: Anonymous on Friday, October 27 2006 @ 02:24 AM EDT |
Here is Econ One's own description of what you get when you hire them (emphasis
added).
Litigation demands a special kind of commitment. We
understand that we operate in a service business. Our clients know us to be
responsive to their problems, always ready and able to do whatever it takes
to get the job done. We do this to deliver good work and because we want
them to come back to us again the next time.
It's good to know
that when you hire an expert witness, that they will do whatever it takes to
get the job done. With that special kind of commitment, no wonder
firms like Boise Schiller come back to them the next time. That's just
the sort of expert witness I'd be looking for if I were SCO.[ Reply to This | # ]
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Authored by: tknarr on Friday, October 27 2006 @ 06:30 AM EDT |
It's interesting that SCO's point #8 may boomerang on them. IBM can clearly
show that they don't primarily fund and run OSDL, which completely blows the
basis for SCO's argument out from under them. But, their argument can be turned
around and used to justify asking about Dr. L's finances for exactly the same
reasons SCO cites. It may or may not turn out to be the case, but IBM can't know
without asking and getting an answer.
I'll go out on a limb and suspect
that BSF is the doctor's only client and the source of the overwhelming majority
of his income. [ Reply to This | # ]
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Authored by: Anonymous on Friday, October 27 2006 @ 06:37 AM EDT |
Here, when IBM asks about their expert's funding, they had a perfectly good
opportunity to add another claim against IBM for violating their "methods
and concepts."
Why that should be worth another billion dollars!
bkd[ Reply to This | # ]
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Authored by: Steve Martin on Friday, October 27 2006 @ 07:48 AM EDT |
From the Motion:
"Courts have been diligent in protecting the
privacy interests of expert witnesses from undue intrusion in the discovery
process, particularly when the information sought is unrelated to the case in
which the expert is testifying."
I confess to being
appalled. After Scott Gant spent over six pages of deposition transcript
asking Otis Wilson about his divorces, his finances, his military history,
whether or not he ever had trouble with the IRS, about being arrested, about any
possible liens on his income, and any other intrusive questions they could come
up with, Brent Hatch has the gall to sign his name to this?
--- "When
I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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- Amazing. - Authored by: Anonymous on Friday, October 27 2006 @ 09:32 AM EDT
- Amazing. - Authored by: Anonymous on Friday, October 27 2006 @ 11:10 AM EDT
- Amazing. - Authored by: tiger99 on Friday, October 27 2006 @ 12:10 PM EDT
- Amazing. - Authored by: Steve Martin on Friday, October 27 2006 @ 05:06 PM EDT
- Amazing. - Authored by: Anonymous on Saturday, October 28 2006 @ 02:21 AM EDT
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Authored by: Anonymous on Friday, October 27 2006 @ 09:59 AM EDT |
Does anyone suspect (I do) that one or more of Mr. Wilson's ex wives will be
called at trial to label him a liar?[ Reply to This | # ]
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Authored by: sproggit on Friday, October 27 2006 @ 05:25 PM EDT |
Just an observation, but so far we all seem to be assuming that BSF have
implemented a robust [one might be tempted to use the word 'fanatical'] defense
of Dr. Leitzinger because there is a possibility that IBM can prove that the
good Doctor may be a "professional witness".
There is another explanation that I'd like to offer at this time. Suppose BSF
have ratcheted up their campaign of making this case as difficult and expensive
for IBM to defend as they possibly can. They cannot simply object to everything
without trying the patience of both judges and earning themselves a contempt
ruling. But that doesn't mean to say that BSF cannot throw every reasonable
objection and procedural spanner into these works.
The only doubt in my mind here relates to their sudden eagerness to get to
trial.
I just find it interesting that BSF are suddenly so defensive for this
particular witness. I have to say, I do hope that this particular debate goes
before the Court for review. I'd love to see IBM's Legal Team draw out BSFs
whining document and then a copy of the Otis Wilson deposition and ask BSF to
square the two. That would be fun!
With respect to strategy, I have another thought I'd like to share in the hope
that it might generate some feedback. We're now just beginning to see that there
has been a switch in tactics and that The SCO Group are eager to get into court
just as soon as they can. There are at least two potential reasons for this.
The first and simplest [Occam's Razor, maybe] is that since BSFs pay for this
case is fixed and capped, the more effort they spend on motion practice, the
more money they stand to lose in the long run. They are committed through the
trial at a minimum, and I can't remember if that includes an appeal - though I
don't believe so.
The second and more conspiratorial would be to consider that this quiet
decimation of The SCO Group's case [along with the subsequent reporting of same
in the mainstream press] is exactly the wrong kind of publicity that any
anti-Linux FUD campaign would like to see. Now, the best possible counter for
this would be to get to court, and to have the likes of Sam Palmisano and other
IBM heavyweights testify, to have David Boies perform his legal equivalent of a
David Blaine act and pull a rabbit from a hat. Once in court, there is a whole
new world of potential headline-grabbing fireworks that would fuel an anti-Linux
campaign. So there might be an eagerness to get into that phase of this project
before certain investors see their cash all used up.
These speculations are just that - sorry - so it might be helpful if someone who
can explain to us exactly what BSF have been paid for - and are therefore
obliged - to do without more funding could explain that and give us a view as to
whether any of that bears on this sudden haste from the plaintiff?[ Reply to This | # ]
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