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Novell Files Expedited Motion to Compel Production
Thursday, November 09 2006 @ 03:18 AM EST

Guess who apparently isn't turning over discovery the way they said they would?

So Novell is filing a motion to compel. No, better -- an *expedited* motion to compel -- Novell's Expedited Motion to Compel Production of Deposition Transcripts and Exhibits from SCO v. IBM [PDF]. Here's the memorandum in support [PDF]. The exhibits are two cases.

Talk about what goes around, comes around.

I enjoy watching the SCO v. Novell case very much. It tickles my funny bone to see SCO on the receiving end of discovery motions to compel. After watching all their motions to compel in SCO v. IBM, I just can't help but find it funny that now the shoe is on the other foot.

Guess how many depositions there were in the IBM case? There were 82 witnesses deposed, some more than once, so there are 130 transcripts, and of those, SCO has handed over to Novell 10 transcripts of 5 witnesses in a year's time. As you will recall, the parties were supposed to share the IBM discovery materials that are relevant to the Novell case. But Novell says that's all they got and worse:

Moreover, upon reading the exhibit lists for IBM’s recent motions for summary judgment, Novell has determined that, even for the five witnesses from whom SCO has produced testimony, SCO has apparently withheld some deposition transcripts, without explanation.

Naughty, naughty. The list of what SCO has not turned over is a hoot. They didn't turn over Ralph Yarro's deposition or Mike Anderer's or Sam Palmisano's or Blake Stowell's or some of Chris Sontag's or Robert Bench's or Jeff Hunsaker's or "eight of the nine witnesses whose deposition testimony IBM cites in support of its motion for summary judgment on SCO’s breach of contract claims — breaches that SCO claims Novell helped instigate." Sound relevant to you? Me too.

There is also a Declaration of Kenneth Brakebill, with exhibits:

  • Exhibit A - two emails from Ted Normand to Kenneth Brakebill and one going the other way, Oct. 14, 16 and 17, 2005 -- "Ken, we are fine with Novell having attorneys' eyes only access to the documents produced in the SCO-IBM litigation..." "Ted... depositions and underseal briefs...?" "Ken - I meant to include those materials as well."
  • Exhibit B email from David Marriott to Kenneth Brakebill giving IBM permission to share discovery, Feb. 8, 2006
  • Exhibit C - Scheduling Order - "...SCO authorizes Novell to have attorneys' eyes only access to those confidential materials in the SCO v. IBM case, including document productions, depositions, under-seal briefings, and discovery responses, that reasonably relate to a claim or defense in this litigation."
  • Exhibit D - Novell's 1st Set of Requests for Production (the first one on the list asked for production of transcripts of depositions and sealed materials from IBM case)
  • Exhibit E - email from Brakebill to Normand attaching a copy of the material in Exhibits A and B as a reminder
  • Exhibit F - Nov. 2 and 3, 2006 emails between Brakebill and Normand - "Ken - ... We will begin a rolling production...as soon as practicable..." "Ted - SCO's commitment to begin 'rolling' production 'as soon as practicable'... advances the ball no further than where we were a year ago....we can wait no longer and will put a motion on file..."
  • Exhibit G - SCO's Responses and Objections to Novell's 1st Set of Interrogatories and Second Set of Requests for Production and
  • Exhibit H - Novell's Second Set of Requests for Production.

If you were wondering where Ted Normand was, as you see, he's working on the Novell case. All of the above is to support Novell's position, that SCO agreed to do this sharing of IBM discovery and it's too late to object now. They waived by letting so much time go by without objecting to the discovery requests. SCO won't like that concept.

Man, this Novell law firm, Morrison & Foerster, gives no quarter. They are pleasant and calm and friendly and polite, and all the while carefully planning what to do to SCO, should SCO try to get cute. They set up their position, piece by piece, in this case a year ago, and then, when SCO acts like SCO, no, when SCO *starts* to act like SCO, just like Novell thought SCO might, the trap that was set up the year before is suddenly sprung. If SCO had turned over what it said it would, then the trap isn't sprung, and it's just some pleasant emails. There's no obvious foreshadowing. Like a skilled poker player. But afterwards, you look back and you see they were carefully establishing a position that could be clearly shown to the court should SCO not cooperate the way it promised it would and the court ordered it to. It's really fun to watch. I've never seen anything quite like it. There's a subtlety that makes it art, not just skill.

Novell asks the court to compel SCO to turn over all relevant transcripts, naturally, and since there is no way for Novell to know what SCO is withholding that actually is relevant, it requests that "SCO should also be compelled to describe, on a transcript by transcript basis, why any withheld transcripts do not reasonably relate to a claim or defense in this litigation."


  


Novell Files Expedited Motion to Compel Production | 176 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Thursday, November 09 2006 @ 03:30 AM EST
If Required

---
IANAL
My posts are ©2004-2006 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Off-topic here
Authored by: ankylosaurus on Thursday, November 09 2006 @ 03:34 AM EST
Please remember to make clickable links (and then post in HTML).

---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Off topic
Authored by: Anonymous on Thursday, November 09 2006 @ 03:37 AM EST
First one to come here and first time replying too.

Enjoy reading your blogs PJ. Keep it up.

[ Reply to This | # ]

  • Off topic Off-topics? - Authored by: Anonymous on Thursday, November 09 2006 @ 03:44 AM EST
  • thanks - Authored by: PJ on Thursday, November 09 2006 @ 03:59 PM EST
I hope they know the proper sequence
Authored by: billyskank on Thursday, November 09 2006 @ 03:43 AM EST
after this they should then file a renewed motion to compel, then a new renewed
motion to compel...

:D

---
It's not the software that's free; it's you.

[ Reply to This | # ]

Novell Files Expedited Motion to Compel Production
Authored by: feldegast on Thursday, November 09 2006 @ 03:48 AM EST
'...since there is no way for Novell to know what SCO is withholding that
actually is relevant, it requests that "SCO should also be compelled to
describe, on a transcript by transcript basis, why any withheld transcripts do
not reasonably relate to a claim or defense in this litigation."'

I suspect Novell's lawyers are reading Groklaw just as hard as IBM and SCO's
lawyers are.

---
IANAL
My posts are ©2004-2006 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Will SCO - use Groklaw - Mathfox read this.
Authored by: tqft on Thursday, November 09 2006 @ 04:26 AM EST
Any bets on how SCO say is too much work for SCO and their maybe not getting
paid anymore lawyers and supply a link to Groklaw? Well except for the redacted
stuff.

Mathfox - you may want to get your wget bot/spider disabler ready.

---
anyone got a job good in Brisbane Australia for a problem solver? Currently
over employed in one job.

[ Reply to This | # ]

Can Novell subpoena IBM and get the discovery material?
Authored by: Totosplatz on Thursday, November 09 2006 @ 04:32 AM EST
I'm curious to know why Novell doesn't just get these materials from IBM.
Probably a very dumb question.

Not a lawyer, and so on.

---
All the best to one and all.

[ Reply to This | # ]

Novell Files Expedited Motion to Compel Production
Authored by: Anonymous on Thursday, November 09 2006 @ 05:03 AM EST
hmm imho rather than Novell's lawyers being subtle per see isn't it more of a
case of just good practise.

KJ
too lazy to log in.

[ Reply to This | # ]

With the holidays coming,
Authored by: Waterman on Thursday, November 09 2006 @ 05:51 AM EST
will we again see the " but our lawyers were on vacation " stall? Looks like Novell beat them to that excuse for not producing. :-)

If SCOG refuses to turn them over, the judge can ask IBM if it minds, which they have already said they didn't, and likely turn it over thru the court system. With SCOG having to pay the court costs. Either way SCOG is sunk.

[ Reply to This | # ]

Expedited? It makes me laugh because
Authored by: Anonymous on Thursday, November 09 2006 @ 10:32 AM EST
Nothing in these cases will be expedited! The courts are so over burdened that
asking expedited is the same as not asking expedited. Does anyone know how a
fast a normal expedited motion takes? I have seen expedited alot especially
from Novell and it appears the judge just doens't care and takes his good old
time.

[ Reply to This | # ]

Morrison & Foerster
Authored by: Anonymous on Thursday, November 09 2006 @ 01:21 PM EST
The web address of Morrison & Foerster is www.mofo.com.

From what I understand, it has been pointed out to them that this might not be
the best abbreviation. They replied that they are perfectly happy with it.

[ Reply to This | # ]

art, not skill?
Authored by: mipmip on Thursday, November 09 2006 @ 01:59 PM EST
On the face of it I don't see this as a "win" for Novell.

Essentially SCO could never have prevented Novell from getting the documents. If
not from SCO, then from IBM.

So they tried their best to do what they've done hundreds of times before,
producing delay by doing nothing.

They could have also delayed with opposition motions but that would have cost
them time and money too, and Novell could have just agreed and then moved on to
ask IBM instead.

So they just sat there and waited. They got at least one year out of it by doing
nothing.

Anything wrong with my impression that SCO got the most it could reasonably get
out of this?





[ Reply to This | # ]

SCO response I would like to see
Authored by: PM on Thursday, November 09 2006 @ 04:56 PM EST
IBM (to SCO) - Linux source is on the internet for all to see.

SCO (to Novell) - the documents you are seeking discovery of are on Groklaw for
all to see.

[ Reply to This | # ]

Darl shoulda listened to himself...
Authored by: Anonymous on Friday, November 10 2006 @ 01:29 PM EST
In the course of researching this, I stumbled upon this from Desktop Linux:

DL: I think Novell and Linux are the great unrecognized marriage in today's OS space.
McBride: Right. I think you're on to something.

Gee, Darl, how could you forget? You stepped right in it, you knucklehead... (reaches over and gives Darl a fond noogie)
-Mike Schwager, aka Atticus

[ Reply to This | # ]

Novell Files Expedited Motion to Compel Production
Authored by: davidf on Friday, November 10 2006 @ 07:25 PM EST
Its just this legal team's cleverness and subtlety that has led me to believe
that there is more behind this Novell M$ Patent deal than meets the eye.

On the surface it looks like a nothing deal or at least a very stupid one but
I think there's something more that Novell's attorneys are after and it needs
access that Novell doesn't normally have to the M$ underbelly. I have no idea
what it is, but then it wouldn't be cleaver if we could figure it out here,
would it?

cheers
davidf

[ Reply to This | # ]

exhibit lists -- Novell Files Expedited Motion to Compel Production
Authored by: Anonymous on Sunday, November 12 2006 @ 09:56 AM EST
"Moreover, upon reading the exhibit lists for IBM’s recent motions for
summary judgment, Novell has determined that, even for the five witnesses from
whom SCO has produced testimony, SCO has apparently withheld some deposition
transcripts, without explanation."

Where do you think they found that exhibit list? Hummm --

Thanks PJ

[ Reply to This | # ]

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