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The Intel Subpoena - PDF and text
Sunday, January 30 2005 @ 04:13 PM EST

Here is IBM's Subpoena In a Civil Case which it served on Intel. It's a subpoena for documents, that were supposed to be delivered for inspection on January 27, and also to do a deposition on whomever Intel wishes to send, set for February 2.

You'll note that it isn't identical to the one on PointServe. For one thing, we have done the preliminary boilerplate language as text as well this time, so it's a complete document. That way any who are visually impaired will be able to access all the information, including the instructions, which tell you what reasons there can be to ask the court to quash a subpoena. The only parts on the form that apply are where there is an X.

Second, it is a subpoena issued by a California court, because that is where Intel is located and that is where the deposition is scheduled to take place. It isn't asking about code or code analysis. It is asking about all communications between Intel and SCO or Canopy about IBM, Unix or Linux, all meetings with either concerning IBM, Unix or Linux, and all contracts or other business relations, past, present, or future, between Intel and SCO.

They also want to know the names of the right people to answer questions about all that, and they want Intel to turn over all documents concerning all of the above and concerning this lawsuit, including SCO's "alleged evidence" supporting its claims and any statements or declarations, analysis, or opinons concerning this lawsuit or SCO's claims, as well as any documents about any business relations, past present or prospective between Intel and SCO.

Don't ask me what it means, because all it means to me so far is that IBM suspects or knows something we don't yet know but we will, I'm sure, eventually find out. You don't usually have to depose your best friends, though. They tell you whatever you need to know volitionally, because they want you to win, and they'll do a declaration for you. You subpoena folks who are not eager to tell you what you wish to learn, or who wish to appear so. IBM has scheduled the deposition for February 2. The docket entry says, "(Note: Filing not considered a return of service executed as there was no proof of service/declaration of server included with these documents.)" but I'm assuming the service itself was correctly done and the deposition will go forward, and IBM just has to file the appropriate proof of service with the court.



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

Issued by the

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

_____________________

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation,

Defendant/Counterclaim-Plaintiff.

_______________________

SUBPOENA IN A CIVIL CASE

Case No. 2:03CV-0294 DAK

Pending in District of Utah, Central Division

Judge: Dale A. Kimball

______________________

TO:
Intel Corporation
[address, phone]

____YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.
_______________________
PLACE OF TESTIMONY - COURTROOM - DATE AND TIME
_________________________
__X__ YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
SEE Attachment A.
_________________________
PLACE OF DEPOSITION
Santa Clara Marriott
[address]

DATE AND TIME
February 2, 2005, 9:00 a.m.
_______________________
__X__ YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below (list document or objects):
______________________
PLACE
LegaLink
[address]
DATE AND TIME
January 27, 2005, 9:00 a.m.
_______________________
____ You are commanded to permit inspection of the following premises at the date and time specified below.
PREMISES
DATE AND TIME
_______________
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify, Federal Rules of Civil Procedure, 30(b)(6).
_______________________
ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT

___[signature]___
Attorney for Defendant
DATE - January 13, 2005
________________________
ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
Amy F. Sorenson, Snell & Wilmer, [address, phone]
________________________
(See Rule 45, Federal Rules of Civil Procedure, Parts C & D on Reverse)
_____________________
PROOF OF SERVICE
______________________
SERVED, DATE, PLACE
SERVED ON (PRINT NAME)
MANNER OF SERVICE
SERVED BY (PRINT NAME)
TITLE
_____________________
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.

Executed on _____

___[date, signature]____

Address of Server

_________________

Rule 45, Fed.R.Civ.P., Parts (c) & (d):

(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.

(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.

(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance;

(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c) (3) (B) (iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or

(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or

(iv) subjects a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or

(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or

(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) DUTIES IN RESPONDING TO SUBPOENA.

(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

ATTACHMENT A TO SUBPOENA TO INTEL CORPORATION

TESTIMONY SUBJECT MATTER

Pursuant to Federal Rule of Civil Procedure 30(b)(6), you are directed to designate one or more officers, directors, managing agents, or other persons who consent to testify on your behalf concerning the following:

1. All communications with SCO and/or Canopy concerning IBM, Unix or Linux.

2. All meetings with SCO and/or Canopy concerning IBM, Unix or Linux.

3. All contracts, agreements, or understandings of any kind, written or oral, with or relating to SCO.

4. All business relations (past, present, or prospective) between Intel and SCO.

5. The identity of Intel personnel knowledgeable concerning the subject matter of items 1-4, above.

6. Documents produced in response to this subpoena and concerning the subject matter set forth in items 1-5, above.

DOCUMENTS TO BE PRODUCED

You are instructed to produce the following documents at the time and place specified in the subpoena.

1. All documents concerning this Lawsuit (including SCO's claims and IBM's defenses and counterclaims), including but not limited to all documents concerning: (a) SCO's alleged evidence in support of its claims; and (b) any statement, affidavit, declaration, analysis, assessment or opinion concerning this Lawsuit or SCO's alleged rights or evidence.

2. All documents concerning any and all communications with SCO and/or Canopy, including any and all communications with SCO and/or Canopy concerning IBM, Unix or Linux.

3. All documents concerning any and all meetings with SCO and/or Canopy, including any and all meetings with SCO and/or Canopy concerning IBM, Unix or Linux.

4. All documents concerning any and all contracts, agreements or understandings of any kind, written or oral, with or relating to SCO.

5. All documents concerning any and all business relations (past, present, or prospective) between Intel and SCO.

INSTRUCTIONS AND DEFINITIONS

A. Definitions:

1. The term "communication" shall mean any transmittal of information, whether oral or written, including correspondence, electronic mail and other internet transmissions, web pages, Internet Relay Chat logs, instant messages, telexes, facsimile transmissions, telecopies, recordings in any medium of oral communication, telephone or message logs, or notes or memoranda concerning written or oral communications.

2. The term "Canopy" shall mean and include, collectively and/or individually, The Canopy Group, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of The Canopy Group, Inc.

3. The term "Linux" shall mean any and all versions, or other variants of any Linux computer operating system, including but not limited to any Linux kernel and/or GNU tools suite.

4. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing or constituting.

5. The term "document" shall be synonymous in meaning and usage with the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term "document" shall include without limitation all written, phonic, graphic or recorded matter, including without limitation, information stored on computers, disks, tapes (i.e. magnetic or other storage media), World Wide Web pages, electronic mailing lists or automated fax support systems. The term "document" specifically includes electronic mail, electronic correspondence, or electronic peer-to-peer messages ("e-mail') and any attachments and files created and maintained in electronic form in the normal course of business.

7. The term "including" shall mean including without limitation.

8. The term "Lawsuit" shall mean the action entitled The SCO Group, Inc. v. International Business Machines, Civil No. 2:03cv-0294, pending in the United States District Court for the District of Utah.

9. The term "Intel" shall mean and include, collectively and/or individually, Intel Corporation, and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of Intel Corporation.

10. The term "person" shall mean any natural person or any private or public entity.

11. The term "SCO" shall mean and include, collectively and/or individually, plaintiff Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were in part or in whole acquired by or merged with Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., and/or all other persons acting on behalf of Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc. This includes the Server Software and Professional Services divisions acquired in 2001 by Caldera International, Inc. from Tarantella, Inc., f/k/a The Santa Cruz Operation, Inc.

12. The term "Unix" shall mean any and all versions, flavors, or other variants of any Unix computer operating system, including but not limited to all operating systems certified as conforming to the Unix-brand standards set by The Open Group, the owner of the Unix trademark.

B. Instructions:

1. Each paragraph should herein be construed independently and, unless otherwise directed, without reference to any other paragraph for the purpose of limitation.

2. The use of any definition for the purposes of this request shall not be deemed to constitute an agreement or acknowledgment on the part of IBM that such definition is accurate, meaningful or appropriate for any other purpose in this action.

3. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, is shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

4. Each page or sheet produced is to be marked with a consecutive document control number.

5. All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

6. All documents produced in response to this subpoena shall be produced, where available, in electronic or machine-readable form.


  


The Intel Subpoena - PDF and text | 212 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here Please
Authored by: Greebo on Sunday, January 30 2005 @ 04:18 PM EST
If it's interesting....

---
PJ has permission to use my posts for commercial use.

[ Reply to This | # ]

Correction Here Please
Authored by: Greebo on Sunday, January 30 2005 @ 04:20 PM EST
So PJ can find them easy

---
PJ has permission to use my posts for commercial use.

[ Reply to This | # ]

Why Canopy?
Authored by: jim Reiter on Sunday, January 30 2005 @ 04:52 PM EST


Whatever this is, IBM seems to think that Canopy had a
part in it?

[ Reply to This | # ]

IBM and Intel friends?
Authored by: SCO_DNR on Sunday, January 30 2005 @ 04:57 PM EST
“You don't usually have to depose your best friends... “

IBM helped to make Intel the company it is today by picking the 8088 for the
first IBM PC. The 8088 was just a step above the Intel 8080 or the Zilog Z-80.
Other processors at the time would have been a better (Motorola 68000 or Zilog
Z8000) from a programmers point of view. It is also true the Intel and IBM both
support Linux, but for very different reasons.

IBM wants Linux to thrive because it allows IBM to invest more effort (read
money) into higher profit software. Linux also allows the Power processor
access to much of the same software as the Intel I-86 processors (at least on
the server side). Because of the cross platform nature of Linux IBM is hoping
to move Power processor servers into the low end market with out the price hit
of having to support AIX.

Intel needs to support Linux to make sure that it can sell processors into all
markets. Intel does not want to give up on any market. Linux embedded is
helping Intel push into new markets. Linux on the server side is pushing Intel
into higher and higher servers.

But IBM wants to see the Intel IA64 chips dead, and Intel would like the Power
processors to go the way of the dodo bird. If SCO could hurt just IBM and not
Linux, Intel may support SCO. If SCO had a good chance of killing Linux, Intel
would not be too unhappy.

[ Reply to This | # ]

The Intel Subpoena - why?
Authored by: RedBarchetta on Sunday, January 30 2005 @ 04:59 PM EST
Can anyone think of any reason why IBM would want to talk to Intel regarding the
case? It doesn't seem to be plainly obvious to me. I have a hard time
believing Intel is in bed with SCOG. Then again, this whole sordid tale is full
of twists and turns...


---
Collaborative efforts synergise.

[ Reply to This | # ]

When you might subpoena your friends
Authored by: Anonymous on Sunday, January 30 2005 @ 05:47 PM EST
You might subpoena a relatively friendly company for a couple of reasons. Off
the top of my head:

- The responding company might simply have a corporate policy of providing
information in a court case only under subpoena. (Such a policy is a good idea
for various reasons.)

- Intel might have confidentiality agreements so that it could not voluntarily
offer information that could be demanded under subpoena.

- If you're IBM's counsel, and you're going to tell SCO Group's counsel that
they might want to show up for a deposition of a third party, you should
probably put the third party under subpoena. If the third party then fails to
show up for the deposition, SCO Group's counsel can't complain that you dragged
them out to California and didn't even bother to put the deponent under
subpoena.

[ Reply to This | # ]

I've never been subpoena to testify...
Authored by: Night Flyer on Sunday, January 30 2005 @ 05:53 PM EST
I don't get to court that often, I am curious about the mechanics of the
process.

From reading GROKLAW, I have the image that the person subpoenaed is sitting in
a 'witness' chair with their lawyers adjacent, being quizzed by the lawyers that
placed the subpoena.

1.) I presume there is an impartial judge present. (?)

2.) Do they (and their lawyers) get to see the questions beforehand?

3.) Or is the process dynamic, where one question leads to another?

4.) Would you bring notes and files for reference, or are they subject to
scrutiny by the 'opposition'?

5.) What if you forget or remember wrong?
Is this contempt of court or perjury?
(I can't remember the fine details of what I did last week, never mind 5
years ago.)

6.) How would the lawyers come up to speed to know what questions to object
to?

7.) Does the fifth amendment apply?

8.) Assuming that the Intel employee did nothing improper or illegal, would
Intel pay for its employee's lawyer?

---------------------------------------------

In answer to a question posted above, I believe that IBM has designed and
markets chips that compete against Intel. In addition, IBM also installs and
services machines with Intel chips. Thus the relationship between IBM and Intel
is complex.

From Intel's viewpoint, since most Intel chips run Microsoft software, it is in
Intel's best interest to not annoy Microsoft. Specifically, being between IBM
and Microsoft in any kind of conflict is a no win for Intel.

(ie: Intel can just say, we were subpoenaed we had to tell the truth = they
made me do it.)

----------------------------
Veritas Vincit: Truth Conquers


[ Reply to This | # ]

Monterey
Authored by: arch_dude on Sunday, January 30 2005 @ 08:49 PM EST
It's about Monterey. Note the definition of "SCO" in the annex, which
specifically includes the business acquired from Tarantella and known as the
Santa Cruz Operation.

SCOG really does have one claim in this suit that is not entirely bogus. They
maintian that IBM contracted to market Unixware for the x86 as "Monterey
lite." as part of he larger Monterey collaboration, and that IBM abandoned
this commitment when they pulled the plug on Monterey. I think that this claim
is weak and that IBM can defend against it, but at east it's not a total fantasy
like the rest of SCOG's claims.

IBM abandoned Monterey because the The major goal of the project, Unix on
Itanium, had become irrelevant as the Itanium delivery dates sliped
continuously. This in turn rendered "Monterey lite" (basically a
trivial secondary project) irrelevant.

IBM needs to establish that the Santa Cruz Operation and/or SCOG knew that the
Itanium schedule was in serious trouble,and that Monterey was already non-viable
at the time IBM suspended work on the project. Intel was the entity that knew
this.

[ Reply to This | # ]

The Intel Subpoena - PDF and text
Authored by: blacklight on Sunday, January 30 2005 @ 10:32 PM EST
IBM is casting a wide net.

[ Reply to This | # ]

Watch for an Intel motion for a protective order
Authored by: marbux on Monday, January 31 2005 @ 06:55 AM EST
We may see an Intel motion for a protective order prior to the February 2nd date scheduled for the deposition. Intel's subpoena for production of records and some of the deposition subject matter specified by IBM encompasses potentially privileged matters such as attorney work product, attorney-client communications, and possibly trade secret or confidential business information subject to one or more non-disclosure agreements.

Under the Federal Rules of Civil Procedure, a non-party served with a subpoena must move, before the time set for production or deposition, for a protective order regarding any privileged matters that are the subject of the subpoena. Such a motion automatically delays the time set for the deposition or production of records until the court has ruled. If it happens, the motion should be filed in the Northern District of California, rather than in Utah, since Intel was required to produce the witness and records within the Northern District of California. However, the court in California may transfer the protective order issue to the court with jurisdiction over the originating lawsuit, in Utah. Also, if everyone involved agrees, they can stipulate to the motion for protective order being decided by the court in Utah.

---
Retired lawyer

[ Reply to This | # ]

A question about getting information
Authored by: tredman on Monday, January 31 2005 @ 07:06 AM EST
Here's a question.

SCOX offered anybody and their mother a look at their alleged evidence, and all
they had to do was to sign their name in blood and give up their first born via
an oppressive NDA.

Is there any way that IBM could get information from one of these sources via
subpoena? Even if their deposition is covered by the judge's protective order,
I would think that IBM would be able to call any number of these signatories,
not only to get information about SCOX's alleged evidence, but also to the
veracity of that evidence.

Is that too delicate of a legal minefield for IBM to traverse at this point, or
is it strictly off-limits because of the nature of the NDA?

Along the same lines, was there anybody of any credibility that actually signed
the NDA?

Tim

[ Reply to This | # ]

The Intel Subpoena - PDF and text
Authored by: Anonymous on Tuesday, February 01 2005 @ 10:50 AM EST
<i>You don't usually have to depose your best friends, though.</i>

Is this actually true? Someone on Slashdot, of all places, pointed out that you
do have to depose your friends if they're under NDA and want to release
information to you but can't without a subpoena.

[ Reply to This | # ]

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