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Judge Wells' Order - No, Not That One
Friday, October 22 2004 @ 01:19 AM EDT

Here is Judge Brooke Wells' Order as she announced it at the end of the October 19th hearing in SCO v. IBM. This isn't the order on the substantive materials she took under advisement, which is still pending. It adds one thing she didn't mention at the hearing: the transcript of the hearing is being sealed. I expect this is because of SCO's reading aloud the confidential email during the hearing. That was unfortunate, and now she has to deal with it.

I figured that the transcript would be redacted, at a minimum, and while it's a shame not to be able to read some fine lawyering, as all the eyewitnesses have reported happened that day, some things are more important. Confidentiality is one of them, and speaking for myself, I admire her decision. Down the road, the transcript can be unsealed, but only by order of the court.

For a laugh, compare what she actually ordered with SCO's spin to the media.

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

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

_______________________________

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES
CORP.

Defendant/Counterclaim-Plaintiff.

______________________________

Case No. 2:03cv00294 DK

ORDER

Judge Dale A. Kimball

Magistrate Judge Brooke C. Wells

____________________________

On October 19, 2004, the court heard argument regarding SCO Group's renewed Motion to Compel Discovery. For good cause shown, the court hereby ORDERS:

1. Both parties are to prepare and exchange privilege logs within 30 days from the entry of this order.

2. IBM is provide affidavits from the Board of Directors, Mr. Palmisano and Mr. Wladawsky-Berger regarding production of all non-privileged documents pertaining to IBM's Linux strategy. The affidavits are to be filed within 30 days from the entry of this order.

3. The court takes the remainder of SCO's motion under advisement.

4. The court, sua sponte, hereby seals the transcript of the proceedings held on October 19, 2004. Copies of the transcript are to be provided to the parties in the case and to the court but the transcript shall remain sealed until further order of the court.

DATED this 20 day of October , 2004.

BY THE COURT:

_______[signature]_______
BROOKE C. WELLS
United States Magistrate Judge


United States District Court
for the
District of Utah
October 21, 2004

* * CERTIFICATE OF SERVICE OF CLERK * *

Re: 2:03-cv-00294

True and correct copies of the attached were either mailed, faxed or e-mailed by the clerk to the following:

Brent O. Hatch, Esq.
HATCH, JAMES & DODGE
[address]
EMAIL

Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]

Frederick S. Frei, Esq.
ANDREWS KURTH
[address]

Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]
EMAIL

Mr. Alan L Sullivan, Esq.
SNELL & WILMER LLP
[address]
EMAIL

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

Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]

EMAIL

Mr. Kevin P McBride, Esq.
[address]
EMAIL

Robert Silver, Esq.
BOIES SCHILLER & FLEXNER
[address]

Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]
EMAIL


  


Judge Wells' Order - No, Not That One | 280 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
deliberate ploy?
Authored by: belzecue on Friday, October 22 2004 @ 02:13 AM EDT
The question has to be asked: Did SCO's lawyers plan to read it aloud in the
hope of getting the transcript sealed sua sponte?

There seems to be a surge in sealed documents recently. Given that SCO cannot
silence Groklaw's analysis, the next best thing for them to do is try to DELAY
Groklaw's analysis...

[ Reply to This | # ]

Judge Wells' Order - No, Not That One
Authored by: Anonymous on Friday, October 22 2004 @ 02:39 AM EDT
It's Wells's. When will you ever learn?

[ Reply to This | # ]

What's missing
Authored by: Anonymous on Friday, October 22 2004 @ 02:39 AM EDT
How about a `sua sponte' conviction for contempt of court!

[ Reply to This | # ]

OT Here Please
Authored by: Anonymous on Friday, October 22 2004 @ 04:28 AM EDT
No meaningful text.

[ Reply to This | # ]

What to expect: my wager
Authored by: Anonymous on Friday, October 22 2004 @ 05:06 AM EDT
Wells grants SCO more of IBM's source code. Kimball is probably advising this
because he doesn't want another appeal overturn.

SCO is given 90 days to examine the code.

Meanwhile, PSJ CC10 is granted by Kimball with damages.

IBM files for forced bankruptcy of SCO, and to pierce the Canopy corporate
veil.

... SCO FINDS NO INFRINGING CODE!


And Merkey, with crumbs on his dress-shirt, swears he didn't eat that tempting
Lemon-kIwi-walNut-pUmpkin-Xberry pie!


[ Reply to This | # ]

Judge Wells' Order - No, Not That One
Authored by: Anonymous on Friday, October 22 2004 @ 05:25 AM EDT
Still no sanction against the lawyer for reading the sealed documents in an open
court room. This Judge is absolutely laughable. I guess we will probably see
this case go on for years to come given how these Judges won't do anything to
contain SCOs behavior.



[ Reply to This | # ]

Request for redacted transcript
Authored by: jig on Friday, October 22 2004 @ 05:27 AM EDT


can marriot request that a redacted transcript be made public?

did one of the parties need to ask that the transcript be sealed, or was this a
pre-emptive action taken by the judge alone?

can we (the public) make a request of our own?

if marriot requests a redacted transcript be made public->
1)will we know it
2)can SCO argue against it (even though they have no protected material there)

are contempt of court orders made public?


anyway, consider this my vote for getting hold of a redacted transcript. i will
sign a public petition. and i will do so for any other transcript that gets
hijacked by SCO (or IBM for that matter) misconduct.

[ Reply to This | # ]

Calling Judge Wells names is hardly constructive.
Authored by: Fourmyle on Friday, October 22 2004 @ 07:55 AM EDT
By all means disagree, but with reasons not perjoratives.

My own speculation falls in the range of the Judge not wanting to allow things
to be side tracked for fairly trivial matters. The SCO lawyer's transgression
was pointed out, and further dammage has been limited. If proceedings later
devolve into arguments over "who gets the doilies" then this can be
brought up.

On the SCO motivation side of the story, SCO doesn't appear to have either the
law or the facts on thier side, so abusing anyone they can and hoping for an
angry slip that they can capitalize upon, might be one thing they could try. In
alot of contests, if you can get your opponent angry then they will often make
mistakes. Desperate situations call for desperate measures. Right now SCO are
fighting for thier existance, so from thier corner anything goes. Right and
wrong hardly enter into consideration and suggestions that they are violating
proper decorum wouldn't come to mind.
This is a legal varient of a street fight, winning is good, but living through
it is what really counts.

I am in no way saying I approve of thier tactics, I'm just trying to understand
thier present motivation, and maybe have a better idea of what they may do
next.

[ Reply to This | # ]

A question from an ignorant but enquiring mind.
Authored by: ine on Friday, October 22 2004 @ 07:56 AM EDT
What are privilege logs?

Why do people exchange them?

[ Reply to This | # ]

SCO site Scoops Groklaw
Authored by: phrostie on Friday, October 22 2004 @ 08:25 AM EDT
well it seems SCO has found a way to block Groklaw from accurately documenting
the procedings. who beleaves they did not see this coming.

who wants to place bets that the new Pro-SCO site will post what they claim are
the transcipts that will of course show them in a favorable light.



---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu

[ Reply to This | # ]

Official "The SCO Group" Positions - 7 days without an offical post
Authored by: AllParadox on Friday, October 22 2004 @ 08:34 AM EDT
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group".

Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.
This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.

P.J. says you must be on your very best behavior.

If you want to comment on this thread, please post under "O/T"

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

McBride!
Authored by: Anonymous on Friday, October 22 2004 @ 09:27 AM EDT
(To the tune of the Rawhide theme)

Keep filin', filin', filin',
Though judges keep a rulin',
Keep them lawsuits movin' McBride!
Don't try to understand 'em,
Just write and seal and send 'em,
Sonn we'll be living high and wide.
Boy my heart's calculatin'
Microsoft will be payin', be payin me more money
on the side.

(CHORUS)
Move 'em on, write 'em up,
Talk 'em up, send 'em out,
Move 'em on, head 'em up McBride!
Write 'em out, send 'em in
Send 'em in, file 'em up,
File 'em up, send 'em out McBride!

Suin', suin', suin'
Suin', suin', suin'
Suin', suin', suin'
Suin', suin', suin'
McBride!

Suin', suin', suin'
Though your head is swollen
Keep them dogies rollin'
McBride!
Put that press release together
Stock prices gettin' better
Gettin' my lawyer by my side.
All the stock I'm sellin',
Gettin' me a second mansion
To live in at the end of my ride

(CHORUS)
Move 'em on, write 'em up,
Talk 'em up, send 'em out,
Move 'em on, head 'em up McBride!
Write 'em out, send 'em in
Send 'em in, file 'em up,
File 'em up, send 'em out McBride!

Keep suin', suin', suin'
Though the judge is disapprovin'
Keep them lawsuits movin'
McBride!
Don't try to understand 'em,
Just write and seal and send 'em,
Sonn we'll be living high and wide.
Boy my heart's calculatin'
Microsoft will be payin', be payin me more money
on the side.

(CHORUS)
McBride!
McBride!

[ Reply to This | # ]

I'd like to propose new slang
Authored by: Sgt_Jake on Friday, October 22 2004 @ 09:46 AM EDT
"You're so full of McBride"
Because it makes me laugh...

[ Reply to This | # ]

Sealed Transcript - Bad News
Authored by: rsteinmetz70112 on Friday, October 22 2004 @ 11:33 AM EDT
I'm very concerned that transcript was sealed. That certainly helps SCOG. It
also hurts the litigants in other cases, who have been pointing out to other
courts SCOG's lack of consistency and have a duty to report to the various
courts on SCOG actions. SCOG distortions and omissions may now go unchallenged
in those reports.

I have a couple of questions, for PJ or any lawyer or former lawyer out there.

1) Does the seal affect right of the people who were present at the hearing
(including press and the attorney's for both sides) to report fully on what
happened?

2) Can just anyone move to have the transcript unsealed and/or redacted, or must
it be a participant in the litigation?

3) Is there anyone out there willing to file such a motion with the court?

4) How can someone find out if Judge Wells is planning to review the transcript
and possibly release a redacted version?

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Oh dear, I seem to be addicted to this....
Authored by: skip on Friday, October 22 2004 @ 01:09 PM EDT
A year ago last thursday, I was strolling in the zoo
When I met a man who thought he knew the lot
He was laying down the law about the hackers and The FOSS
And the number of patents a Microsoft has got
So I asked him "What's that Kernel's name?" and he answered
"That's a Unix!"
And I'd have gone on thinking that was true
If the animal in question hadn't put that chap to shame,
And remarked "I ain't a Unix I'm a GNU!

I'm a GNU I'm a GNU
The g-nicest piece of software in the zoo
I'm a GNU how do you do?
You really oughtta g-know w-who's w-who
I'm a GNU spelt G - N - U
I'm not a SCO or a microsoft tha'noo
So let me introduce, I'm neither man nor moose
Oh, g-no, g-no, g-no, I'm a GNU!"

I had taken a few chances by declaring I'd be free
Whence I travelled first with Stallman at MIT
On the second night I stayed there I was wakened from a dream
Which I'll tell you all about some other time
Among the hunting trophies on the wall above my bed
Stuffed and mounted was a face I thought I knew
A bsd? An Unix? a win32 or three?
Then I seem to hear a voice—"I'm a GNU!

I'm a GNU—a-g-nother GNU
I wish I could g-nash my teeth at you
I'm a GNU A G-linux Gnu?
You really oughtta g-know w-who's w-who
I'm not a daft old McBride who'll sue
Nor am I in the least like that dreadful hearty beast
Oh, g-no, g-no, g-no, I'm a GNU!
G-no, g-no, g-no, I'm a GNU!
G-no, g-no, g-no, I'm a GNU!"

---

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"Mumbo, perhaps. Jumbo, perhaps not!"
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

[ Reply to This | # ]

I'd like to laugh...
Authored by: studog on Friday, October 22 2004 @ 01:11 PM EDT
> For a laugh, compare what she actually ordered with SCO's spin to the media.

...but the link brings up a blank page for me. PJ, corrected link?

...Stu

[ Reply to This | # ]

Inadvertent disclosure of privileged documents
Authored by: rand on Friday, October 22 2004 @ 02:59 PM EDT
Some links to background info:

"The Inadvertent Disclosure of Privileged Documents: Current State of the Law -- Heidi M. Staudenmaier, Sara M. Vrotsos"
From IBM's lawyers, Snell & Wilmer; there's a link on the page to the actual PDF.

David H. Williams also has a PDF available on his Legal Publications webpage. This one is aimed at non-lawyers.

Duke University has a version aimed more at legal professionals, here.

And finally, this treatment of the subject from FindLaw.

---
The wise man is not embarrassed or angered by lies, only disappointed. (IANAL and so forth and so on)

[ Reply to This | # ]

Definitely some SCO spin there...
Authored by: mt_f4nb0y on Friday, October 22 2004 @ 03:05 PM EDT
I don't know if I'm the only one to notice this, but look closely at the
timeline on that news article. There's an interesting tidbit there:

"January 12, 2004 -- SCO hands infringing code to IBM"

Did we Groklawians miss something here? I know IBM turned over several batches
of code, but where is this infringing code that SCO handed over?

Just an observation of what seems to be said here...

[ Reply to This | # ]

Can the public request the transcript unsealed?
Authored by: Anonymous on Friday, October 22 2004 @ 03:34 PM EDT
I'm just wondering how difficult it would be to file some
kind of request to unseal the transcript in a redacted form.

If all the judge is worried about is the letter SCO read aloud
in court, that information can be redacted from the rest. I
presume the judge may think her office is too busy but if a request is filed on
our behalf it would show that there is significant public interest in this case.
Which I'll presume is relevant to her ruling. If she knows the public is very
interested in this case she may be more likely to spend the resources necessary
to have the transcript redacted.

[ Reply to This | # ]

SCOX down 8.11% today!!
Authored by: Anonymous on Friday, October 22 2004 @ 04:22 PM EDT
At this rate in 12.33 days (+ 2 weekends) SCOX will be worth $0.00.

:-))

[ Reply to This | # ]

Who's affected by the sealing?
Authored by: Anonymous on Friday, October 22 2004 @ 05:08 PM EDT
Some of the threads here seem to suggest that nobody can quote what happened. Is
that the case? From the ruling, it sounds like all the judge did was stop the
court from releasing the transcript, but that anybody who was there can still
say anything they want.

Am I mis-understanding? I understand Groklaw and PJ's position on not quoting
priviliged documents, I'm just wondering what the actual legal position is. If
the judge did just stop the court from giving out the transcript, but people
started quoting eyewitness reports, what could the court do to stop this?

[ Reply to This | # ]

Some help
Authored by: moosie on Saturday, October 23 2004 @ 02:12 AM EDT
I have tried to find the APA on Groklaw (and Google), to no success. however, I
remember reading it and it (the APA) saying if SCO does not develop the UNIX
business, all rights revert to Novell. Can anyone help here. I could be
mistaken...

- Moosie.

[ Reply to This | # ]

Judge Wells' Order - No, Not That One
Authored by: odysseus on Tuesday, October 26 2004 @ 09:31 AM EDT
Look, people, the Judge sealed this immediately while
sorting out what to do. Once IBM has had a chance to
review the transcript and tell the judge what parts they
want redacted, then we'll get to see the transcript. Just
give them a few days to sort it out.

John.

[ Reply to This | # ]

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