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SCO's Response to G2's Motions to Intervene/Unseal - as text
Sunday, February 06 2005 @ 05:00 AM EST

Here is SCO's Response to G2 Computer Intelligence Inc.'s Motion to Intervene and Unseal the Court's File, as text, thanks to fudisbad. We earlier commented on this filing. Carefully reading it again to proofread the document, it strikes me how singularly unenthusiastic SCO appears to be about G2's motion to unseal. There does, then, seem to be a disjoint between G2's and SCO's goals here.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]  

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovicz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]  

Attorneys for The SCO Group, Inc.

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

RESPONSE TO G2 COMPUTER
INTELLIGENCE INC.'S MOTION TO
INTERVENE AND MOTION TO
UNSEAL COURT'S FILE

Case No. 2:03CV0294DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells


The SCO Group, Inc. ("SCO") respectfully submits this memorandum with respect to the Motion of G2 Computer Intelligence, Inc. ("G2") to Intervene and to Unseal Court's File.

ARGUMENT

I. SCO DOES NOT OBJECT TO G2'S MOTION TO INTERVENE

As a matter of "permissive intervention" under Federal Rule of Civil Procedure 24(b), the Court in its discretion may permit a non-party to challenge a protective order. See United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990); Shump v. Balk , 574 F.2d 1341, 1345 (10th Cir. 1978). The Court "shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Fed. R. Civ. P. 24(b)(2). The Court may also consider the nature and extent of the intervenor's interests and the degree to which those interests are adequately represented by other parties. See H.L. Hayden Co. of N.Y. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir. 1986). Although G2 has not articulated a specific interest in the disclosure of any materials in connection with this case, SCO does not oppose G2's limited motion for intervention.

II. G2 HAS NOT SPECIFIED REASONS FOR MODIFYING THE PROTECTIVE ORDER OR FOR UNSEALING DOCUMENTS

Under Federal Rule of Civil Procedure 26(c), "good cause" must exist for the entry of a protective order. 1 See Exum v. United States Olympic Comm., 209 F.R.D. 201, 206 (D. Colo. 2002). "Generally, the 'good cause' determination requires the court to balance the party's need for the information against the injury which might result from unrestricted disclosure." Id. (citations omitted). In entering the Protective Order in this case, this Court properly determined that "good cause" exists in this litigation to protect the parties' proprietary and confidential materials. Under the Protective Order, the Court has allowed the parties to make certain confidentiality designations and to file certain documents involving confidential material under seal with the Court.

Although the Tenth Circuit has not resolved the issue, the District of Colorado recently relied on Public Citizen v. Liggett Group, Inc., 858 F.2d. 775 (1st Cir. 1988), in holding that a motion to modify a protective order must demonstrate that "the reasons underlying the initial promulgation of the order in respect to the particular document sought no longer exist" and that "public interest considerations favored allowing counsel to make those particular documents public." Taylor v. Solvay Pharm., Inc., 223 F.R.D. 544, 549 (D. Colo. 2004) (noting that standard to be used in modifying a protective order "is not obvious"). The Protective Order in this case has been necessary in order to permit the parties to disclose documents as part of the ongoing discovery process and to present confidential materials to the Court efficiently. See In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987) (per curiam) (upholding similar protective order, stating that "[b]usy courts are simply unable to hold hearings every time someone wants to obtain judicial review concerning the nature of a particular document" and recognizing that judicial review should be limited to material that is filed and relevant to legal issues raised). Where, as here, the parties have made their confidentiality designations in good faith, 2 the rationale for the Protective Order remains. 3

Furthermore, the press and public's right to judicial documents is not absolute, and "not all documents filed with a court are considered judicial documents." United States v. Gonzalez, 150 F.3d 1246, 1255 (10th Cir. 1998). SCO has filed approximately twenty sealed documents, and IBM has filed approximately nineteen sealed documents. The majority of these documents concern only discovery issues, and thus do not qualify as judicial documents giving rise to any right of access. 4 See, e.g., Diversified Group, Inc. v. Daugerdas, 217 F.R.D. 152, 163 (S.D.N.Y. 2003) (holding that sealed motions, memoranda, and supporting documents related to a discovery issue were not judicial documents and therefore not subject to public right of access) (citation omitted). This same rationale applies to the extent that G2 seeks access to correspondence between the parties and the Court. See G2 Mem. at 8-9.

As for judicial documents, the Court should "determine the weight of the presumption of public access by evaluating the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts." See S.E.C. v. TheStreet.com, 273 F.3d 222, 232 (2d Cir. 2001) (citation and internal quotation marks omitted). Where the documents were not used at trial or were not otherwise material to a court's disposition of a case on its merits, the presumption of access is weak. See United States v. Amodeo, 71 F.3d 1044, 1049-50 (2d Cir. 1995). If the Court determines that certain documents at issue in the parties' pending motions (such as IBM's motions for summary judgment and  SCO's motion to amend its complaint) are material, then the Court should resolve the question of public access to those documents by balancing any presumption of access that applies against countervailing factors, including privacy interests and the interest of judicial efficiency. Id. at 1050-51. 5

CONCLUSION

For the reasons stated above, SCO does not oppose G2's intervention, but G2 has not indentified reasons for modifying the Protective Order or for unsealing any documents in this case.

DATED this 20th day of January, 2005.

Respectfully submitted,

HATCH JAMES, DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stephen N. Zack
Edward Normand
Sean Eskovitz

By___[signature]___

Counsel for The SCO Group, Inc.


1 Rule 26(c) provides in relevant part that a court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c).

2 The Protective Order defines "Confidential Information" as "information or Documents or other materials that the Disclosing Party in good faith believes is not publicly known that would be valuable to third parties, including but not limited to the Disclosing Party's actual and potential competitors, and that the Disclosing Party would not normally reveal, and has not revealed, to third parties without an agreement to maintain it in confidence." Protective Order ¶1.C.

3 G2 cites Procter Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996), for the proposition that the Court must independently determine whether to release each sealed document. But the protective order in that case permitted the parties to modify its terms without court approval. Id, at 222. The parties modified the order by filing sealed documents that did not fall within the definition of "confidential." Id. The court concluded that by giving the parties' such unilateral discretion, the protective order did not conform with Rule 26(c). Id. at 227. The Protective Order here does not suffer from any such flaw.

4 Of the 375 docketed items to date, approximately 39 documents have been filed under seal with the Court, including an Ex Parte Order, see Docket No. 270, and the October 19, 2004 hearing transcript on SCO's Renewed Motion to Compel Discovery.

5 G2 cites Grundberg v. Upjohn Co., 137 F.R.D. 372 (D. Utah 1991), for the proposition that the parties must now show that each sealed document "will cause a clearly defined, serious injury" to business. G2 Mem. at 7. Upjohn merely reflects the common situation where a plaintiff reserves the right under a protective order to challenge a defendant's confidential designations, and the defendant bears the burden of demonstrating that such confidential designations are indeed warranted. See 137 F.R.D. at 389 n.21. Each party will exercise its right to do so under the Protective Order in this case where appropriate. See Protective Order ¶8.


CERTIFICATE OF SERVICE

Plaintiff/Counterclaim Defendant, The SCO Group, Inc., hereby certifics that a true and correct copy of the foregoing Response to G2 Computer Intelligence, Inc.'s Motion to Intervene and Motion to Unseal Court's File was served on on the 20th day of January, 2005, by U.S. mail to the following:

IBM Corporation:

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]

G2 Computer Intelligence, Inc., CNET Networks Inc., and Forbes Inc.:

Michael P. O'Brien, Esq.
Jones Waldo Holbrook & McDonough PC
[address]


___[signature]____



  


SCO's Response to G2's Motions to Intervene/Unseal - as text | 47 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: Anonymous on Sunday, February 06 2005 @ 05:01 AM EST
So PJ can get some sleep!

[ Reply to This | # ]

OT Here Please
Authored by: SilverWave on Sunday, February 06 2005 @ 05:22 AM EST
Links to interesting stuff etc.

---
"...They put in one hour of work, but because they share the end results they
get nine hours of "other peoples work" for free..."
Interview with Linus Torvalds

[ Reply to This | # ]

SCO's Response to G2's Motions to Intervene/Unseal - as text
Authored by: Anonymous on Sunday, February 06 2005 @ 09:27 AM EST
Yes, I think that the Lawyers are responding to SCO's trying to gain a PR piece,
that may not be in their own best interest.

SCO's trying to use something for PR purpose and using their favorite media
mouth to do it, only the lawyers can see how it could turn around and bite them
badly, BUT they have their orders from the client, so they have to
"support" the intervention.

The second time reading this, it really does sound like they didn't want to
write it, nor really do it, no matter what SCO has publicly stated.

Carl Somerton,
racercarl, not logged in (again)

[ Reply to This | # ]

SCOG's Response
Authored by: Anonymous on Sunday, February 06 2005 @ 10:50 AM EST

Is it just me or does this filing actually reflect a level of proffesionalism which isn't normal for SCOG? It's a little hard to identify for myself as IANAL. It seems to me like this was reasonably done showing prior cases as well as case law thrown in with a reasonable amount of diplomatic posturing to say they don't necessarily agree that G2 should have access.

Deffinitely not what I'm used to seeing in filings against IBM.

RS

[ Reply to This | # ]

SCO's Response to G2's Motions to Intervene/Unseal - as text
Authored by: blacklight on Sunday, February 06 2005 @ 12:22 PM EST
G2's demands for access to the sealed documents is adding up to so much
blah-blah-blah: everything that G2 is asking for lies within judge Kimball's
discretion, and it is totally up to him to decide. If I were judge Kimball, I
would take the following facts into consideration:

(1) there are enough unsealed documents and filings that press coverage has been
both adequate and accurate, assuming that the will of the reporters involved is
there as exemplified by groklaw's and Bob Mim's coverage;

(2) judge Kimball's first and foremost obligation is to manage the courtroom
process to produce a fair trial and everything else is secondary - including
giving G2's lawyers any right to rummage through the sealed documents and second
guess him;

(3) a document that is improperly sealed may not affect the outcome of the
trial, but a document that has been improperly unsealed might. If that happens
on his watch, he is the fall guy - not G2;

(4) Keeping an eye on G2's "intervenors" during the entire trial might
be an activity he needs like getting a hole drilled into his head;

(5) SCOG is right to be wary: if G2 gets its way to the sealed documents, so can
anyone else including groklaw -Let's say that anything that G2 fails to look at,
say groklaw will.


G2'as intervention is a tempest in a teapot, which judge Kimball can get rid of
with a wave of his hand and he should.

[ Reply to This | # ]

SCO's Response to G2's Motions to Intervene/Unseal - as text
Authored by: Steve Martin on Sunday, February 06 2005 @ 03:55 PM EST

I found it quite interesting that TSG's lawyers cited this:

The Court "shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Fed. R. Civ. P. 24(b)(2).
Since it would seem to be universally obvious that G2's request would possibly (even probably) delay this trial by an unimaginable amount if each and every sealed document must go through the motion-to-unseal / opposition-brief / reply-brief / hearing / decision process, this cite of 24(b)(2) would seem to be "on all fours", as they say. (Imagine TSG arguing against more delay...) It seems to my "IANAL" eyes that this gives Judge Kimball an objectively valid reason for denying G2's motion to unseal, at least as written.

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

Who's pulling the strings, then
Authored by: Anonymous on Sunday, February 06 2005 @ 06:06 PM EST
Is it possible that SCO and G2 really are working in concert, but they're trying
to hide it?

If they're not working together, then it makes one wonder if there is a higher
level puppetMaSter directing the whole charade. How would G2 know about some of
the secret things they know if it weren't fed to them? If not from SCO, then
the questions get interesting.

[ Reply to This | # ]

SCO's Response to G2's Motions to Intervene/Unseal - as text
Authored by: Anonymous on Monday, February 07 2005 @ 02:16 PM EST
Kings and Queens, Gods and Goddess'...

The prophet procedes to reveal how maureen knew what was said, though no one
heard that which has been alleged to have been said.

* It was SCO's plan all along to read from the sealed email that caused this
whole little "to seal or not to seal" episode. As with much of their
facts and evidence, this email represented another example of their skewing the
facts and quoting out of context whatever it was that a representative of IBM
said in the aforementioned email. ot- you can use almost anything to support
almost any position when looking at isolated phrases where the context has to be
viewed at in light of the entire document.

Maureen was told by SCO that they were going to be reading a juicy bit of
evidence at court that day. They probably also told her the same bit of
material taken out of context from the ibm email beforehand as a small insurance
policy. You see, SCO KNEW that the juicy bit was from a sealed document. They
also knew that they would get struck down by ibm, and then more than likely, by
the judge herself. They HOPED that they could get it read aloud beforehand so
as to drop a little tasty morsel upon the journalists for the benefit of their
shareholders and competitors.

They didn't get the chance to read it aloud, because IBM recognized it pdq.

They still got the effect because they let O'Gara know in advance what was in
that letter.

Since she was not there, she couldn't have heard that the comment was cut off,
and not allowed in court. That's why, when she wrote her little article, she
could have no idea that what she had written about never happened officially in
court. Also, since SCO wasn't quick enough with getting the info out, no one
else heard it either, and her credibility was shot.

SO, she HAS to go back and get it unsealed, but the better question is why SCO
can tell Maureen "facts" from a sealed document. Didn't know she
joined their all-star legal team.

[ Reply to This | # ]

SCO's Response to G2's Motions to Intervene/Unseal - as text
Authored by: HockeyPuck on Tuesday, February 08 2005 @ 01:08 PM EST
I believe this is a two fold attempt. One position is G2 and the others feel
they can get a "scoop" from this (even though they cannot report it
until the information is unsealed). The other position is they feel they need to
justify some of their reporting (specifically Maureen's). They are losing or
have lost all credibility with the Linux community. If they hope to keep anyone
coming back to them for news; they have to at least pretend they care.

Taking this to the conspiracy route; the mere mention of this motion implies
that something very important to the public is sealed and we will never see it
(the question remains how they know about a “sealed” document unless someone
broke the law and told them what’s in it; which is implied by others). Perhaps
this is something SCO wants public badly, but SCO downplays this fact to be seen
not as an advocate; but simply as someone with no choice if the matter is
accepted. I certainly believe IBM wants the media to stay out of it, but I think
SCO does as well. They just hide this fact because they fully expect (know) the
judge will rule against G2; so they look like the innocent party. They act like
“oh well, we can’t see all those bad revealing IBM, ah, court sealed documents
(did we say that out loud)”.

The fact remains that regardless if something is unsealed regarding the case;
public opinion is not going to sway a judge from doing his sworn duty and
upholding the law.

[ Reply to This | # ]

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