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| Novell's Rule 26 Pretrial Disclosures - Update: SCO's too |
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Thursday, August 02 2007 @ 10:03 PM EDT
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Novell has filed its Rule 26 Pretrial Disclosures [PDF]. What's that? It's required by Federal Rule of Civil Procedure Rule 26 that the parties tell in advance what witnesses, depositions, and exhibits or documents they expect to use at trial. SCO will have to file similarly, but I gather from Novell's wording that they haven't finished fighting about discovery issues yet, so neither party's lists will be carved in stone. Here are Novell's lists [PDF]. Novell tells the court this about outstanding discovery matters: Novell notes that: SCO recently produced over 1,000 pages of third-party production SCO claims is relevant to this litigation; expert discovery is not complete; the parties have various evidentiary and summary judgment motions pending; and the parties are continuing to meet and confer regarding certain outstanding discovery issues. Novell therefore reserves the right to supplement or otherwise modify these disclosures. One thousand pages of new discovery materials *now*? SCO just can't let go of discovery. They're like Miss Havisham in Great Expectations, frozen in time, sitting by her wedding cake, long after the outcome is obvious and, to everyone else on Planet Earth, totally over. Yes, it's painful for Novell not to have rulings on the summary judgment motions, because they don't really know what will be left on the table, so they have to assume everything at this point. SCO likes it that way, I guess, since they are still digging through their rubbish, prospecting for gold. But the thing is, with SCO apparently still presenting new materials in abundance, how exactly is the judge supposed to rule yet? Well, I guess he could tell them to cut it out. But Novell would have to bring a motion first. If they don't care, why should we? Kidding. They care. It's why they just told the judge. So, at this point who is Novell thinking of calling as witnesses? You will see folks you would expect to see. Some are friendly witnesses, others not so much.
For example, in the first category, I see folks we've heard from before, like Allison Amadia, Tor Braham, and Kellie Carlton. These three though won't be needed if Judge Kimball rules for Novell on its motions regarding copyright ownership and contract issues. See what I mean? In the second category, I see Michael Anderer, Duff Thompson, one of the many witnesses SCO lined up all swearing on the Bible that they thought copyrights transferred, and Sandeep Gupta. That poor Gupta guy. They'll turn him into mincemeat, I expect. And there is no way he won't be called, I don't think, in this as well as in the IBM case. Anyone who loves him should pray for rain so severe that it cancels the entire SCO farce. Joke. Joke. I wish global warming was that effective and um... localized. If only there was a way to harness that stuff. Nah. Then Microsoft would buy it. If there was a committee deciding who got it, they'd line up all their gold partners and lo and behold, Microsoft would be the proud owner -- by consensus, no less, or maybe under the new rules of only majority vote and in a room that only handles enough spaces for Microsoft and its partners and a couple of independents and no room for IBM or Sun people -- of global warming. Then they'd point it at Oregon full blast. And Armonk. Presto. A New World Order. I for one.... : ) No, I can't even say it as a joke. I guess there is some hope for Gupta in the Novell case, since he's listed as one of the witnesses whose testimony Novell is objecting to. Here's the requirement regarding the witnesses they expect to call, as required to be disclosed under Rule 26(a)(3)(A): (A) the name and, if not previously provided, the address and telephone number of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises; The second is the list of depositions under the Rule 26(a)(3)(B) list of deposition testimony: (B) the designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; and Finally, there is the list of exhibits, under Rule 26(a)(3)(C): (C) an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.
We can't understand everything on the Novell lists, because they are referencing lists that are not public and only the parties can match up by numbers, but if you see, for example, that they expect to call Steven Sabbath and you see that there is an exhibit they plan to use that came up in his deposition, you can sometimes figure out what they plan to bring out. Update: SCO has filed its lists [PDF] now also. A more intimate list, but we'll get to see Ralph Yarro and Maureen O'Gara called to the stand. And I see in the documents list that they may offer the "first and last 25 pages of UNIX 5th Edition Operating System (Source Code), considered by Thomas Cargill in his May 29, 2007 expert report." You'll also see source code from every other version going forward and backward and UnixWare on the "to be determined" list. Again, that depends on how the judge rules on Novell's evidentiary objections, which as you'll recall included Cargill: Here, the expert testimony offered by SCO's witnesses is not based on sufficient facts or data, employs the wrong method, and does not apply the method reliably to the facts of this case. In addition, the expert reports of Evan Ivie and Thomas Cargill are not even from the current litigation, but from SCO v. IBM to which Novell is not a party. They are therefore improper in this case. We also get a hint from SCO as to what the meet and confer stuff is about in footnote 1: In a letter dated June 28, 2007, counsel for SCO informed counsel for Novell that it has waived the attorney-client privilege with respect to many documents listed as entries on Novell's privilege logs, including documents that Novell produced in redacted form and documents that Novell has withheld entirely. With respect to most of these documents, the parties appear to be in disagreement as to whether there has been any waiver and, if so, the extent of its scope and the potential relevance of the referenced documents, but the parties are continuing to meet and confer on the issue. SCO reserves the right to supplement the information provided in its Pretrial Disclosures with any additional documents that Novell has improperly redacted or withheld based on its privilege objection, as well as with the names and contact information of any other witnesses identified through any such documents. Well, that's a new one. They would like to waive SCO's privilege so Novell has to produce documents? Hmm. They are always so fun to watch, these SCO elves as they work, work, work to make things new and different from the norm. Thank heaven the trial actually starts on September 17. They have to stop once the trial is over, at the latest. Update 3: As readers have pointed out, there is another way to read this. It could mean that SCO has a theory whereby it alleges that somehow Novell has waived its privilege. If that is the proper understanding, I smell motion practice ahead. Update 2: I'm hearing from folks asking if Patrick McBride, on Novell's witness list, is a relative of you know who. No. He's not. He's a Novell lawyer, as Groklaw old timers will recall.
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| Authored by: tiger99 on Thursday, August 02 2007 @ 10:19 PM EDT |
| If needed [ Reply to This | # ]
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| Authored by: tiger99 on Thursday, August 02 2007 @ 10:21 PM EDT |
| . [ Reply to This | # ]
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| Authored by: tiger99 on Thursday, August 02 2007 @ 10:23 PM EDT |
| The anonymous thread will not show for people who have opted not to see
anonymous posts. Please, if you are anonymous, do not start any top-level
threads for that reason. Please try to make clickies, where possible. [ Reply to This | # ]
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| Authored by: tiger99 on Thursday, August 02 2007 @ 10:36 PM EDT |
| The entire case is based on REDACTED, because SCO REDACTED, while
Novell REDACTED, as a result of IBM REDACTED using Linux to
REDACTED, while Autozone was REDACTED, and Daimler Chrysler failed
to respond to REDACTED. There now, isn't it simple and straightforward,
once the facts are known? [ Reply to This | # ]
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| Authored by: kawabago on Thursday, August 02 2007 @ 10:37 PM EDT |
Get your tickets early to the Maureen O'Gara Hearsay Festival!
What is it with SCO and discovery? They're on a fishing trip, unfortunately
their blind guide has inadvertently taken them to the Dead Sea and every time
they cast their net full of wishes it always returns empty of fishes.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 02 2007 @ 10:53 PM EDT |
...Microsoft would have already bought the weather.
[ Reply to This | # ]
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| Authored by: The Mad Hatter r on Friday, August 03 2007 @ 12:25 AM EDT |
till we see some action. That is assuming that they don't try to get the trial
rescheduled...
---
Wayne
http://sourceforge.net/projects/twgs-toolkit/
[ Reply to This | # ]
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| Authored by: seanzig on Friday, August 03 2007 @ 02:38 AM EDT |
Update 2: I'm hearing from folks asking if Patrick McBride, on
Novell's witness list, is a relative of you know who.
Lord
Voldemort?
[ Reply to This | # ]
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| Authored by: sproggit on Friday, August 03 2007 @ 03:45 AM EDT |
PJ wrote,
And I see in the documents list that they may offer the
"first and last 25 pages of UNIX 5th Edition Operating System (Source Code),
considered by Thomas Cargill in his May 29, 2007 expert report." You'll also see
source code from every other version going forward and backward and UnixWare on
the "to be determined" list.
Not sure if this observation is
unfair, but this seems to me like yet another attempt by SCO to smother the
other side - in this case Novell - with a huge stack of 'evidence' without
explaining why it is included or what, specifically, they wish to use it for.
We're back to shoplifting and store catalogues again.
I guess something
that interests me about this stage of the case is the way we're now seeing
references to what seem like new items of evidence. Is this the case? Are SCO
adding to their evidentiary disclosures, or are they actually drilling down and
getting more specific about the portions that they want to bring to court?
Hopefully the Federal Rules are such that they will be found in
contempt if they try to introduce something not properly identified at the right
time. It would be nice if Judge Kimball could open the trial proceedings with a
warning that either party found gaming the system in such a way will be found to
be in contempt of court and subjct to sanction...
Well, in the interim
I am sure that Novell will hope for the best, plan for the worst, and do their
homework.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 03 2007 @ 06:23 AM EDT |
Just have to add that if SCO is taking PJ's suggestion and praying for rain,
they have the wrong jurisdiction! I doubt Salt Lake City has been shut for rain
in a long time. It's in the middle of the desert.[ Reply to This | # ]
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| Authored by: Steve Martin on Friday, August 03 2007 @ 06:45 AM EDT |
They would like to waive SCO's privilege so Novell has to
produce documents?
PJ, that's one way to read it, and
that's the way I took it as I scanned through it. On second reading, though,
another way to read it (and one that might make more sense) is like
this:
In a letter dated June 28, 2007, counsel for SCO informed
counsel for Novell that [Novell] has waived the attorney-client privilege
with respect to many documents listed as entries on Novell's privilege logs,
including documents that Novell produced in redacted form and documents that
Novell has withheld entirely.
This reading would have TSG
contesting whether Novell has already waived the privilege on which Novell
relies in not producing documents.
---
"When I say something, I put
my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: rocky on Friday, August 03 2007 @ 04:01 PM EDT |
Hee hee! You got me laughing here at my desk. I thought I was having a
Slashdot flashback there. That was really clever.
---
"I just *know* there's more to this than even Novell knows about. They didn't
buy what they thought they bought." -cybervegan[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 03 2007 @ 04:02 PM EDT |
Does this mean that SCO's bogo claims have survived the summary judgments and
their claims are going to a jury? A while ago, a friend of mine who knows
somebody who used to work at SCO, told me that SCO's senior management have made
comments about how Kimball would always go the extra mile for them and give them
another chance, rather than throwing the case out. I didn't believe it at the
time, but now i'm starting to get this horrible feeling that perhaps it's true.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 03 2007 @ 08:39 PM EDT |
Are cameras not allowed in the courtroom? I want to see Maureen O'Gara crying on
the stand.[ Reply to This | # ]
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