The "third party" would, of course, be moi. Had there ever been a subpoena served or a deposition taken in Novell, or if there ever would be, then this memo addresses the four dispositive reasons IBM believes SCO's motion should be denied.

By dispositive, IBM means that each of them, standing alone, is enough to dispose of SCO's motion:

First, the Court already allowed SCO more than five times the number of depositions presumptively allowed by the Federal Rules of Civil Procedure.

Second, even if the Court had not already ruled that the deadline for taking depositions would not be extended, it could only be extended upon a showing of "extremely compelling circumstances".

Third, SCO has not shown, and cannot show, that Ms. Jones' testimony would be relevant (and thus potentially admissible) or even discoverable.

Finally, it is difficult to see SCO's motion as anything more than an effort to intimidate an individual with whose opinions SCO disagrees and to support SCO's continued efforts to re open discovery...

Good thing I'm too dumb to be intimidated. I'm sure that is what this is about, but I like doing Groklaw, we cover a lot more than just SCO, so I'll just keep right on, thank you very much, and besides, you guys seem to want to keep going and you make contributions, so we will continue, despite the harassment. For my take on all this, you can go here, here, here, here, here, and here. My, they must have made me mad. I had a lot to say.

In plain English, IBM is telling the court that SCO had plenty of time to depose me if it wanted to; its insinuation that there is some untoward connection between IBM and me -- unsupported by any evidence whatsoever, and unsupportable by any, because it is false in any case -- isn't new, so there is no excuse for SCO waiting until now to seek a deposition on that topic, when discovery is long over and summary judgment motions have already been argued; and I don't know anything relevant to tell them, so what would the legal excuse be for doing a deposition in the first place, if there is nothing discoverable to talk about?

Or as I earlier told you I thought, this is all so much legal silly putty SCO threw out there to see if it would bounce. And to slime me again and for the intimidation factor, as IBM points out.

Steve has tried something new in the pagination. As you know, sometimes the pages on a document don't match the page number of the PDF. Sometimes it matters, so Steve says he tried this:

There are dual page numbers on some of the docs; I did that so that folks who wanted to refer back to the official court documents could more easily find the sections being cited (especially with the transcript excerpts). The numbers in parentheses are page numbers in the PDFs of the respective filings, while the numbers outside parentheses correspond to the printed page numbers (where present) on the original document pages. So where, for example, the HTML of Addendum A shows a page number "65 (3)", this means it's page 3 of the Addendum A PDF, but the page in question corresponds to page 65 of the cited transcript as shown at the bottom of that page.

***************************

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address]
[phone]
[fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address]
[phone]
[fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC., Plaintiff/Counterclaim-Defendant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant/Counterclaim-Plaintiff.

IBM'S MEMORANDUM IN OPPOSITION TO SCO'S MOTION TO DEEM A PROSPECTIVE THIRD-PARTY DEPOSITION IN RELATED LITIGATION TO BE A DEPOSITION TAKEN IN THIS CASE AS WELL Civil No. 2:03CV-0294 DAK Honorable Dale A. Kimball Magistrate Judge Brooke C. Wells

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Defendant/counterclaim-plaintiff International Business Machines Corporation ("IBM") respectfully submits this memorandum in opposition to the motion of The SCO Group, Inc. ("SCO") to deem the prospective third-party deposition of Ms. Pamela Jones, which SCO purports to seek in its litigation with Novell, to be a deposition taken in this case.

Argument

More than a year after the close of fact discovery, SCO seeks to take the deposition of a third-party, Pamela Jones, whose proposed testimony SCO has not shown (and cannot show) to be relevant to this case. SCO does so despite the fact (nowhere mentioned by SCO) that the Court already ruled that it would not entertain a motion to re-open deposition discovery. Even in the absence of that ruling, however, discovery could only be re-opened (by order of the Court) upon a showing of "extremely compelling circumstances". SCO cannot establish extremely compelling circumstances to re-open discovery or otherwise justify the relief it seeks. Thus, SCO's motion to take Ms. Jones' (or any other) deposition should be denied.¹

In support of its motion, SCO insinuates that there is an untoward connection between Ms. Jones and IBM. (SCO Br. at 3-6.) This is false. SCO offers no support for its accusations, and there is none. IBM does not necessarily agree or disagree with Ms. Jones, whose views are her own. But we do not dwell here on these or other of SCO's assertions, because SCO's motion should be denied for at least four reasons, any one of which is dispositive.²

(2)

First, the Court already allowed SCO more than five times the number of depositions presumptively allowed by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 30(a)(2)(A) (allowing for a default of ten depositions per side). But in so doing the Court made clear that depositions not taken by the long-passed fact discovery deadline would be "foregone" and that no motion to extend the deadline would be entertained. (10/7/05 Hr'g Tr. at 66 (Addendum A hereto).) Not only did SCO not take Ms. Jones' deposition by the discovery deadline, it did not notice her deposition or give the slightest indication of its wish to depose her before the deadline. Thus, the Court's ruling of October 7, 2005 regarding additional depositions and the discovery cut-off, as to which SCO did not appeal, forecloses SCO's present motion. See Fed. R. Civ. P. 72(a) (requiring that objections to a magistrate judge's orders be made within ten days and providing that "a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made"). And the Court recently confirmed (in response to another of SCO's belated motions concerning discovery) that discovery is closed. (1/18/07 Hr'g Tr. at 58 (stating that re-opening discovery is not "open to question") (Addendum B hereto).)

Second, even if the Court had not already ruled that the deadline for taking depositions would not be extended, it could only be extended upon a showing of "extremely compelling circumstances". As set out in the Court's July 2005 Scheduling Order, the deadline for taking depositions cannot be modified except upon a showing of "extremely compelling circumstances". (7/1/05 Order at 4 (Docket No. 466); 6/10/04 Order at 3 (Docket No. 177).) SCO has not even attempted to show extremely compelling circumstances to re-open discovery — nor can it. Putting aside the fact that the proposed deposition testimony is irrelevant to any issue in this case (discussed below), there is no reason SCO could not have sought Ms. Jones' deposition well before discovery closed. Groklaw has covered this case (among other issues)

(3)

since the spring of 2003, and SCO has been falsely accusing IBM of being behind Groklaw from essentially Groklaw's beginning.³

Third, SCO has not shown, and cannot show, that Ms. Jones' testimony would be relevant (and thus potentially admissible) or even discoverable. Rule 26(b) of the Federal Rules of Civil Procedure limits the scope of discovery to "any matter, not privileged, that is relevant to the claim or defense of any party".⁵

(4)

are their own. And SCO has failed to show that they are relevant here — despite its burden.⁶

Finally, it is difficult to see SCO's motion as anything more than an effort to intimidate an individual with whose opinions SCO disagrees and to support SCO's continued efforts to re open discovery (e.g., SCO's Motion for Reconsideration of the Court's November 29, 2006 Order seeks additional depositions, and SCO's Objection to the Magistrate Judge's Order on IBM's Motion to Confine, if sustained, would require an extraordinary amount of additional discovery). Allowing SCO to re-open discovery at this juncture, when dispositive motions have been fully briefed and argued and the parties are preparing to make their final pretrial disclosures, would also be needlessly disruptive and unduly prejudicial to IBM, which has respected and organized its defense according to the scheduling order. For these additional reasons, SCO's motion should be denied.

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Conclusion

For the foregoing reasons, SCO's motion to deem the prospective third-party deposition of Ms. Pamela Jones to be a deposition taken in this case as well should be denied.

DATED this 27th day of April, 2007.

SNELL & WILMER L.L.P.

_/s/ Amy F. Sorenson____
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Alec S. Berman
[address]
[phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

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CERTIFICATE OF SERVICE

I hereby certify that on the 27th day of April, 2007, a true and correct copy of the foregoing, together with the addenda thereto, were electronically filed with the Clerk of the Court and delivered by CM/ECF system to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

_______________

¹ Citations to SCO's Corrected Memorandum in Support of Its Motion to Deem a Prospective Third-Party Deposition in Related Litigation to Be a Deposition Taken in This Case as Well, dated April 5, 2007, are given as "SCO Br. at __".

² SCO appears not to have served Ms. Jones in its litigation with Novell, though discoveryin that case closes on April 30, 2007.

³ Notably, most of the documents on which SCO relies in support of its motion were publicly available or produced to SCO long ago, before the close of fact discovery. (See, e.g., SCO's Ex. 6 (dated 2/12/04); SCO's Ex. 7 (dated 1/10/06); SCO's Ex. 10 (produced to SCO on 5/5/06); SCO's Ex. 11 (produced to SCO on 5/5/06); SCO's Ex. 12 (produced to SCO on 5/18/06); SCO's Ex. 14 (dated 12/9/03); SCO's Ex. 17 (dated 8/16/04); SCO's Ex. 18 (dated 8/13/04); SCO's Ex. 19 (dated 8/13/04); SCO's Ex. 21 (dated 3/26/04); SCO's Ex. 22 (dated 3/26/04); SCO's Ex. 23 (dated 3/30/04).)

⁴ Courts have refused to allow modifications to scheduling orders under the lesser "good cause" standard based on circumstances far more deserving of a modification of the scheduling order than those at issue here. See, e.g., Marcin Eng'g, LLC v. Founders at Grizzly Ranch, LLC, 219 F.R.D. 516, 520-21 (D. Colo. 2003) (refusing to re-open expert discovery four months after scheduling order deadline had passed, despite facts that plaintiff obtained new counsel in the interim and that the proposed discovery related to a "critical issue" in the case).

⁵ While the federal rules allow for broad and liberal discovery, they do not allow discovery upon topics that have no bearing on the claims at issue and could never lead to admissible evidence. "[T]he requirement of Rule 26(b)(1) that the material sought in discovery be 'relevant' should be firmly applied, and the district courts should not neglect their power to restrict discovery where 'justice requires'." Herbert v. Lando, 441 U.S. 153, 177 (1979).

⁶ SCO suggests that Ms. Jones may have relevant testimony because: (1) the OSDL (of which IBM is a member) contributed money to Groklaw; (2) IBM has contributed to ibiblio, which hosts Groklaw; and (3) IBM provided Ms. Jones with a copy of some of its filings. (SCO Br. at 3-6.) SCO is mistaken. During this lawsuit, the OSDL has been comprised of more than 75 members, including SCO. (See SCO's Ex. 12 at 2.) Ibiblio is a research project, which has hosted many websites. And, it is not uncommon for a litigant to provide a reporter with a courtesy copy of a non-confidential document, as SCO has likely done in this very dispute.

⁷ Where, as here, "relevancy is not apparent, . . . it is the burden of the party seeking discovery to show the relevancy of the discovery request". Mike v. Dymon, Inc., No. 95-2405, 1996 WL 674007, at *4 (D. Kan. Nov. 14, 1996) (Addendum D hereto). Where deposition testimony sought is "merely tangential" to a claim, discovery is often denied on grounds of irrelevance. See Glaxosmithkline Consumer Healthcare, L.P. v. Merix Pharm. Corp., No. 05436, 2007 WL 1051759, at *4 (D. Utah April 2, 2007) (Addendum D hereto); see also Thomas v. Int'l Bus. Machs., 48 F.3d 478, 483 (10th Cir. 1995) (upholding protective order barring deposition where proposed witness "lacked personal knowledge" of the relevant facts).

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INDEX TO ADDENDA

Addendum A: October 7, 2005 Hearing Transcript
Addendum B: January 18, 2007 Hearing Transcript
Addendum C: February 11, 2004 Letter from Kevin McBride to Todd Shaughnessy
Addendum D: Unpublished Opinions

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***************************************

Addendum A

(1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC., Plaintiff, vs. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant.

Case 2:03-CV-294

BEFORE THE HONORABLE DALE A. KIMBALL
OCTOBER 7, 2005
REPORTERS' TRANSCRIPT OF PROCEEDINGS
MOTION HEARING

Reported by: KELLY BROWN, HICKEN CSR, RPR, RMR

(2)

allowed additional days with existing SCO witnesses rather than just additional deposition. That's not why we're trying to have extra -- things in an uneven way, but rather because as SCO says in its papers, there are a lot more IBM people to depose than SCO people. There are fewer SCO people who have more information which will take longer to develop. And for that reason, we request the motion be denied. Thank you.

MR. SINGER: Very briefly, Your Honor. The 40 depositions per side figures were arrived at before any counterclaims were asserted by IBM. They asserted at least 10. The withdrawal of three patent counterclaims does not deal with the fact that they've asserted additional counterclaims dealing with copyright and other things which expanded beyond the original 40. We believe we've made a specific showing, and the material will be provided as to why we need additional depositions.

The fact that a lot of depositions haven't been taken in the front end reflects the normal course of litigation ifyou're wanting to review the documents before you take the depositions. And most of those documents are documents that have been produced within the last several months. There is no reason why the Court should not extend the number of depositions since we are not extending the time in which the depositions should be complete.

THE COURT: I am going to increase the number of

65 (3)

allowable depositions by 10 as to each side with this requirement, that they are to be completed within the alotted cut-off day. To the extent that they cannot be, they must be foregone because we will not entertain any motion for an extension of time to complete depositions.

Additionally, Mr. Marriott, I'm going to deny your request for additional time with them and hold both sides to the seven-hour requirement.

All right. Now, is there anything further of a substantive nature that we need to address?

MR. MARRIOTT: None here, Your Honor.

MR. SINGER: None here, Your Honor.

THE COURT: All right. I think we need to talk about the dates.

Mr. Marriott, with regard to the -- or Mr. Shaughnessy, whoever's going to deal with this, with regard to the 20 developers whose information you're going to provide, how much time do you reasonably need to provide that?

MR. MARRIOTT: I think if we had 60 days, Your Honor, we could do that. And if it is the people who are on the list that we already have, it would be useful to know that now because we could begin immediately on that.

MR. SINGER: Well, we'll need to look at the list and see which 20, since that's the number which is provided, the ones that are more significant.

66 (4)

*********************************

Addendum B

(1)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
CENTRAL DIVISION

THE SCO GROUP, INC.,	)
Plaintiff/Counterclaim-Defendant,	)
vs.	)	Case No.
INTERNATIONAL BUSINESS	)	2:03-CV-294DAK
MACHINES CORPORATION,	)
Defendant/Counterclaim-Plaintiff,	)
_______________________________________	)

BEFORE THE HONORABLE BROOKE C. WELLS
-----------------------------------
January 18, 2007
Motion Hearing

REPORTED BY: Patti Walker, CSR, RPR, CP
[address]

1 (2)

MR. SHAUGHNESSY: Nothing further, Your Honor.

THE COURT: Now I'm going to ask you, Mr. Shaughnessy, to answer that question: What if anything is IBM willing to do or do you have an obligation --

MR. SHAUGHNESSY: Your Honor, the day for asking for that passed a long time ago. That discovery in this case is closed. SCO has had that now for almost two years. And they were the ones who came in and told you, Your Honor, that they had to have this and that it would have the very information you just described. We have given them detailed instructions on how to use it.

And what you haven't heard, Your Honor, very curiously, is SCO comes in and says, well, we haven't offered evidence that, in fact, you can find this in SCO. What they haven't done, Your Honor, is they haven't attempted to come in and say to Your Honor in some evidentiary admissible form, we tried it and we couldn't do it. But at the end of the day, Your Honor, that day has passed. Fact and expert discovery in this case are closed. To the extent that information was important for those purposes, it should have been investigated and looked into long, long, long before now.

MR. JAMES: Just, finally, Your Honor, and I don't want to drag this out longer than it has to be, but it seems to me that Your Honor has denied the motion in large part on Your Honor's finding and belief that the evidence is available, that

57 (3)

it's not lost. And we've heard Mr. Shaughnessy say today that it is available and it's not lost, although we have spent literally hundreds of thousands of dollars trying to find that kind of thing and we can't. They say it's easily findable. Then Your Honor says, Mr. Shaughnessy, how about IBM, what is their willingness to find that easibly findable information, and we get the, well, we've represented to the Court it's easily findable and we contend it's easily findable, and that's the basis for the Court's rulings, but a year or two late. Sorry, you're out of luck.

THE COURT: The standard I think is reasonably available. I am going to ask IBM, in the spirit of cooperation, Mr. Shaughnessy, to do what you can or have others do it to see if you can assist in identifying it. That doesn't mean that anything is going to change in terms of the deadlines and the scheduling order cutoffs. But if there is somebody who readily has that information, I would ask you to assist in doing that.

MR. SHAUGHNESSY: Your Honor, if the Court would like us to do that, I'm happy to undertake that. What I want to make sure we're very, very clear about, Your Honor, is that we are not reopening discovery.

THE COURT: I think I just said that.

MR. JAMES: I think Your Honor made that very clear.

THE COURT: I don't think that's open to question.

58 (4)

So with that having been said and, Mr. Shaughnessy, if you will prepare a proposed order.

MR. SHAUGHNESSY: We would do that, Your Honor. Would you like us to prepare orders on both motions or did you address an order on the prior motion?

THE COURT: I did not ask. I will ask SCO to prepare the order on the first motion.

MS. BORUCHOW: We would be happy to, Your Honor.

MR. SHAUGHNESSY: Thank you, Your Honor.

THE COURT: Thank you. And we'll be in informal recess. Thank you.

(Whereupon, the proceeding was concluded.)

59 (5)

*************************************

Addendum C

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[Letterhead of Kevin P. McBride]

February 11, 2004

Todd Shaughnessy, Esq.
SNELL & WILMER, LLP
[address]

VIA FACSIMILE: [fax]

Re: SCO v. IBM

Dear Todd:

This letter follows our telephone conversations about how to best address Judge Wells' concern regarding litigation-related public statements. Our concern is that any agreement to refrain from such public statements should include not just IBM, but also affiliates and consultants that directly or indirectly receive financial support from IBM. This letter lists several persons and entities that, we are told, receive direct or indirect financial support from IBM. We would ask you to confirm if this is true.

Of principal concern is the Groklaw web site. It appears that Groklaw was conceived and launched by ibiblio.org in response to SCO's original filing against IBM. A fundamental purpose of the Groklaw website is to criticize SCO's litigation claims and evidence. Groklaw was taken to entirely unacceptable levels during the February 6 hearing before Judge Wells when a member of the gallery surreptitiously uploaded live commentary about the judicial proceedings to the Groklaw web site while the hearing was in process. This commentary included disparaging comments about participants in the hearing. We have been told that IBM is a sponsor of Groklaw and/or its parent organization ibiblio.org. If so, the Court has a right to know this in considering the scope of any order regarding litigation-related public statements in this case.

We are also concerned about the statements about SCO's litigation claims made by Linus Torvalds, who is employed by the Open Source Development Labs ("OSDL"), which is funded principally by IBM. Because of Mr. Torvalds' position in the technology world, his comments about SCO's evidence in this case are given particular weight in industry and popular press.

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We are also concerned about the many litigation-related statements made by Eric Raymond, who claims to be a paid IBM consultant, and by Columbia Law Professor Eben Moglen, who also claims to be an IBM consultant. Mr. Raymond and Professor Moglen have been highly critical of SCO's litigation claims. If paid by IBM it is only fair that they, along with Mr. Torvalds, be included in the scope of any stipulation or order regarding litigation-related public statements.

It is unlikely that Judge Wells would allow IBM's indirect use or sponsorship of Groklaw, Linus Torvalds, Eric Raymond, Prof. Moglen or other consultants to publicly comment on SCO litigation claims, while precluding a response from SCO. It is therefore necessary for us to gain more information about IBM's direct or indirect financial support for these people and entities before we can meaningfully address any kind of stipulation related to litigation-related public statements.

I will be out of the country until February 18, 2004. I would appreciate it if you could address this issue with Mark Heise or Brent Hatch as may be necessary during that period of time. Please let us know if IBM is willing to voluntarily provide the information requested above as part of our continued discussions to resolve this matter to the Court's satisfaction.

Thank you very much.

Yours truly,

(signature)

KEVIN P. McBRIDE

cc: Chris Sontag
Ryan Tibbitts
Mark Heise
Brent Hatch

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