decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
IBM's Motion Granted - 1st Report from the Courthouse -UPDATED 5X
Tuesday, December 20 2005 @ 02:49 PM EST

Frank Sorenson made it to the hearing, thank heaven. IBM's Motion to Compel Documents on SCO's Privilege Log was granted. Frank's full report will be arriving soon, but in the meantime, here is the brief message he sent right after the hearing:
Hearing over. IBM's Mot. to Compel Prod of Docs on SCO's Priv Log GRANTED. SCO's Mot. to Compel Docs from Execs GRANTED/DENIED in PART.

As soon as I have more, I'll share it with you.

I hope any readers in the Utah area will give serious thought to attending hearings for us. It's quite a lot on Frank, for one thing, but it's also beneficial to have more than one. If there is a dispute over what happened, it is very good to have multiple eyewitnesses. That has happened, actually, and because we had 5 witnesses, three of them Groklaw's, it was very helpful indeed.

Don't imagine for a minute that this show is over. I've no doubt SCO will file something on the 22nd, the drop-dead deadline for listing any allegedly infringing code. If they've been holding anything in an inner vest pocket, or if they have some theory they think they can prove, or they stumbled on to some "evidence" -- remember the 2003 claimed "mountain of evidence"? -- it pretty much has to be now that they show it, at least to the court and to IBM. I expect claims as flamboyant as in the beginning. So there will be plenty of more hearings, I think, and we'll be needing coverage of those hearings, and to the extent that the hearings involve specific code, we'll need specificity if we are going to do research.

It's going to be fun. We're finally getting into the real meat of this case, now that a lot of the nonsense has been stripped away.

Frank has now filed more, so read on...

UPDATE:

Here's Frank's more detailed report:

Judge Wells heard arguments on two motions, and ruled on both.

IBM's Motion to Compel Production of Documents on SCO's Privilege Log: Wells found that the Novell->Santa Cruz sale did not transfer everything, and neither did the Santa Cruz->Caldera sale. The Broderick Affidavit is insufficient to establish the transfer of privilege. IBM's Motion is GRANTED.

SCO's Motion to Compel Production from IBM's Execs: Wells took a short recess to read up on a few things before making a finding that IBM has acted in good faith with respect to the production of documents from Palmisano & Wladawsky-Berger. In light of wording used in the February 2004 hearing, the March 2004 order was meant to include Paul Horn & Nick Bowen. IBM has stated that they have produced documents from their files, and should provide affidavits stating that IBM has performed a reasonable search of their files and produced responsive, non-privileged documents. If SCO believes the production is insufficient, they should ask the individuals during depositions (which, if taken, won't count against the 50 allowed). SCO's Motion is therefore GRANTED in part, and DENIED in part.

Wells stated that SCO's pending Motion to Compel Discovery was mooted by Kimball's order.

Wells asked about SCO's Motion for the Protective Order, and the parties stated that they had resolved the issue. She then signed an order prepared by the parties regarding it. Details are still unclear.

IBM's affidavits that they have produced responsive documents from Horn and Bowen will be due January 6th. SCO's production of documents from their privilege logs are also due January 6th. Both parties indicated that they would complete their responsibilities much earlier than that date.

So Wells will not be bothering with SCO's redundant request for relief to both judges, since Kimball's order makes the motion filed with her moot.

And IBM gets all the documents they asked for. SCO's protective order motion is resolved too, by agreement. Agreements are easier to achieve when one side starts losing right and left, which is what we are beginning to observe. It's also significant that Wells has ruled that IBM showed good faith in discovery regarding its executives. Think of all the pejorative hints at IBM wrongdoing that we have witnessed, not only in SCO filings but in "reporting" by some of SCO's press buddies. That thread is over now.

But here's the part that I can't wait to hear more about: "Wells found that the Novell->Santa Cruz sale did not transfer everything, and neither did the Santa Cruz->Caldera sale."

2nd Update:

Aaron also attended the hearing. Thank you, Aaron, so much, and he amplifies Frank's account, and then Frank comments in a couple of places:

I attended the hearing. Did not take notes but will give the highlights.

Judge Wells started by saying she had read everything and was up to speed, told the attorneys to specifically talk about why Judge Boyce's decision applies/does not apply. (Said that in legal, my translation) [Frank adds: "Yes, one of her specific requests was that they address that decision."]

When SCO replied they argued that Boyce's decision had been superceded by later cases.

Judge Wells ruled from the bench granting IBM's request, they get to write it up. Due Jan 6th or earlier.

The argument on the "renewed renewed renewed" motion to compel started. Judge Wells told the court she believed SCO's interpretation of her orders was correct and that IBM had construed it too narrowly. [Frank adds: "I believe she said IBM _may_have_ construed it too narrowly. I think IBM addressed it in their arguments, and explained how they understood it."] Was not looking good at this point. SCO's attorney was pretty quick in the first round. Just went over some areas he believed IBM was deficient in. [Frank adds: "They believed IBM was deficient because there _must_ be more to produce, and it's "hard to believe" there isn't more. He didn't identify any particular deficiencies, though.]

Mr. Shaughnnesy spoke for IBM. His main point was that in actuality they had complied with the order, and SCO was trying to broaden it. Ended by saying deny this motion or expect the 4th renewed, 5th renewed and 6th renewed motions.

SCO's attorney found this to be quite discourteous, talk of strafing. Judge Wells said she didn't find it so. SCO wants IBM to at least search all email for the words Linux and Unix and turn them over.

At some point mixed in there, I believe it was the 2nd time Mr. Shaughnnesy spoke he said they should ask the folks in their depositions if they aren't happy with the affidavits; that's the usual course of how discovery works. IBM deposed Mr. McBride and found more than 2 dozen emails that had not been turned over by SCO (emails to and from Microsoft). They sent a letter after the deposition and got the emails. That's normal discovery.

SCO's attorney spoke and said they would rather have the information before deposing them. Judge Wells recessed and left for about 10 minutes.

Denied SCO's motion in part and granted in part. Everything was denied except IBM is to provide affidavits from two more IBM execs that they complied with discovery. They also get free depositions on those two execs. SCO writes this one and also due Jan. 6th or earlier.

They jointly presented an order for Judge Wells to sign on the emergency motion on the accountants. She signed it so we should see it shortly.

Do you see how valuable it is to have multiple eyewitnesses? It's the same reason why Groklaw has such a good record for accuracy. When you have more than one person working on something, it works out well, because each person notices different things and knows different things. The detail about Darl McBride-Microsoft emails tells us two things I didn't know: Darl has been deposed. And 2) he sends more email than we thought. hahahaha. Maybe that is why SCO was stuck like a broken record on the idea that IBM executives *must* have more documents and email than were turned over?

In case you want to refer to the motions, here are the documents filed for today's hearing:

For IBM's Motion to Compel Document Production:

For SCO's Motion:

Also, if you've forgotten what privilege logs are, here's an explanation.

3rd Update:

And while I was compiling that list, Frank sent me his more detailed account, from notes taken during the hearing, and there will be a second half coming in a bit:

The hearing was held before Judge Wells, but in Judge Kimball's Courtroom, which is much larger.

SCO was represented by Ted Normand and Brent Hatch. IBM was represented by David Marriott and Todd Shaughnessy.

The Court began with IBM's Motion to Compel Production of Documents from SCO's Privilege Log. Wells first stated that she had reviewed all the documents, exhibits, etc., including the ruling from Judge Boyce.

Marriott starts by stating that SCO claims privilege due to transfers of all lines of business, and IBM asks the Court to compel production of the documents. According to Judge Boyce's decision, an asset sale doesn't mean that privilege passes as well. Caldera had asserted privilege over documents transferred from Novell to Caldera with a business unit -- and had a stronger argument than SCO now has.

Marriott says that Boyce's decision was that privilege does not pass, and counsel for Caldera conceded the point. SCO's cases are not applicable, and involve bankruptcy issues, attorney disqualification, etc.

Marriott mentions that SCO contends "the UNIX Business" passed from AT&T->Novell->Santa Cruz->Caldera. IBM believes there is no single "UNIX business". Marriott reads from the Novell->Santa Cruz APA, and the exhibits which detail what did and did not pass to Santa Cruz, particularly exhibit 1.1b, which details assets excluded from the transfer. He reads about copyrights, trademarks, patents, etc. He mentioned questions over the copyrights.

Marriott points out the the APA excluded large portions of "the UNIX business", and that Novell retains 95% of the proceeds from SVRx licenses, so SCO's contention that everything (including privilege) transferred isn't valid. Executing Amendment 2 a year later cannot restore privilege already lost.

Marriott discusses the Santa Cruz->Caldera transaction, and points out that Santa Cruz continued to exist. He says that Santa Cruz sold some (but not all) assets of 2 divisions and changed name to Tarantella. He points out that SCO does not continue to maintain the two divisions, and SCO's "UNIX Business" is nothing like previous "UNIX businesses" of Santa Cruz, Novell, USL, and AT&T.

Marriott corrects an error in IBM's response papers regarding whether OpenServer transferred, saying that last night IBM discovered an SEC filing where SCO or Tarantella mentions that OpenServer had transferred.

Marriott says that the Broderick Declaration only refers to transfers of assets, and acknowleges that Novell retained some. He says that Broderick speaks to other peoples' states of mind, and he isn't a lawyer. IBM requests that the Court compel production of the 1000 documents where privilege has been waived.

Wells asks how her ruling today might affect the infringement disclosures of the 22nd.

Marriott states that IBM hasn't seen the documents in question (obviously), but that the ruling from Wells shouldn't affect those disclosures.

Normand states he also doesn't believe that Wells' ruling should affect the disclosures either. He says he doesn't think the Court should rely too heavily on an oral ruling from Judge Boyce.

Wells says "You didn't know Judge Boyce."

Normand argues that the law has evolved since the ruling from Boyce and that according to recent case law, SCO has maintained control. He says that recent case law states that if a successor continued to operate the business, privilege applies to the successor. He cites several cases that demonstrate how privilege could be transferred.

Wells asks whether SCO contends that Boyce would have found differently, given the cases SCO is using?

Normand says that Boyce would have found them relevant. Normand quotes from the preamble to the APA that the intent of the APA was to transfer the entire UNIX business to Caldera and therefore the privilege with the documents. He says that in the case Boyce was referring to, it was determined that Caldera was not the legal successor to the business, but that SCO contends it is undisputed that SCO owns and operates the UNIX business at issue.

Normand says that according to the Broderick Declaration, in each instance, the UNIX business continued to operate using the same office space, furniture, people, equipment, etc.

Wells points out that the Broderick Declaration uses modifiers such as "virtually all."

Normand reiterates that SCO bought the entire business, and privilege should still apply.

Marriott says that SCO is reading 1.1a of the APA and ignoring 1.1b, and that 1.1a is subject to the exclusions in 1.1b. He points out that 95% of the revenue stream returns to Novell, and that privilege attaches to the corporation, not to the assets.

Wells states that she is prepared to rule. Wells indicates that the Novell->Santa Cruz sale did not transfer everything and neither did the Santa Cruz->Caldera sale. The Broderick declaration is insufficient to establish the transfer of privilege. IBM's Motion is GRANTED. Wells asks if there are any questions or clarifications needed? [no]

=== Grabbing a peanut butter sandwich and diving into the second half...

4th Update:

Properly refreshed, Frank continues:

On SCO's New Renewed Motion to Compel:

Wells starts out by saying that she'd like to focus the discussion by stating that SCO's interpretation of her March 2004 ruling is correct, and that she's concerned IBM may have interpreted it too narrowly to not include production from IBM's other executives.

Normand says that SCO interprets the March 2004 order to mean that IBM is to search the files of senior execs (not limited to Palmisano and Wladawsky-Berger) for Linux-related materials, and produce responsive, non-privileged documents. He says that IBM interprets the order to relate just to documents relevant to IBM's decision to adopt and embrace Linux.

Wells states that SCO's interpretation would be the correct interpretation.

Normand says that SCO found a Palmisano email that IBM did not produce, but which they found publicly available on the internet. He says that in Wladawsky-Berger's deposition, he was questioned about both the production of documents from his files, and emails he sent and/or received regarding Linux. Wladawsky-Berger had stated "I have sent and received emails regarding Linux, including to and from Palmisano."

Normand says that SCO believes the affidavits supplied did not clarify things, and they infer that there _must_ be more documents which are responsive.

Shaughnessy argued for IBM, saying, "We can't produce something we can't find," and that IBM had undertaken a reasonable search and produced the responsive documents they had identified . He says that IBM understood the March 2004 order instructed IBM to include documents from the files of senior executives. He argues that SCO is trying to expand the order to include all documents that in any way mention Linux.

Shaughnessy hands out a notebook to the Court and the other side. He states that SCO has brought up issues relating to the documents held by three custodians: Palmisano, Wladawsky-Berger, and the Board of Directors, over a time period involving 1999.

Shaughnessy says that Wladawsky-Berger has since moved on from his position at the time and is no longer involved with Linux. He points out that in Wladawsky-Berger's deposition, he was questioned at length about emails he sent regarding Linux, and the production of documents from his files. Shaughnessy states that Palmisano is IBM's CEO and Chairman and has changed positions two times since the time frame involved.

Shaughnessy points out that with the exception of Palmisano, none of IBM's board works for IBM (they work for American Express, UPS, etc.). He says that IBM maintains a set of files for the Board of Directors, and that those files were searched, but that IBM has not searched the personal files of the individual members of the Board of Directors, nor has IBM searched the files of American Express, UPS, etc.

Shaughnessy says that it's not unreasonable that there weren't documents to find from the Board of Directors. He says that there were no issues that required Board approval.

Shaughnessy discusses SCO's 4 relevant document requests. He says that IBM has undertaken a reasonable search of Mr. Palmisano's files, and to the extent they have found responsive documents, they have been produced, but that Palmisano's files don't include postings of code to SourceForge.

Shaughnessy says that to the extent IBM found responsive documents, IBM has produced them, including Linux business plans and others.

Shaughnessy clarifies that IBM understood that SCO was to withdraw their original motion and refile. He states that IBM understood the March 2004 order to mean that IBM should not exclude files from senior execs but that IBM didn't believe The Court intended to write SCO's document request for them.

Shaughnessy states that to the extent there were unclear issues, IBM sent SCO's counsel letters to clarify and make sure the parties understood the Court and each other.

Shaughnessy makes it clear that IBM has undertaken a reasonable search, and hasn't been limiting the search, but that SCO has never requested every file containing the word Linux. Doing so would be unreasonable, and would require them to sit down with Palmisano's files and "start with A".

Wells asks about document request 53 regarding documents relating to IBM's decision to embrace Linux.

Shaughnessy says that IBM has done so.

Wells asks again to make it clear if in fact IBM has performed a reasonable search.

Shaughnessy says that IBM has performed a reasonable search and produced everything relevant. He says that the October 2004 order declined to require IBM to produce the entire files from the executives, but rather submit declarations about the production. He says that IBM has offered a 30(b)(6) witness with respect to the production of documents.

Shaughnessy discusses the reasonable search of emails. He points out that the emails in question would have been 3 years prior to the litigation, the individuals had changed jobs, etc. He addresses SCO's contention that IBM produced Palmisano emails from the files of other people, but not from Palmisano himself and says that means the other employees kept the emails, but Palmisano himself hadn't. He says that SCO shouldn't find it so surprising, since the same could be said for Mr. McBride, SCO's CEO.

Shaughnessy suggests that if SCO has additional questions regarding production, they should ask the individuals during their depositions. SCO has leave to depose Palmisano (scheduled for January 11th), and has already deposed Wladawsky-Berger. SCO has still not identified deficiencies in the production, just contended it was insufficient and that there had to be more.

Shaughnessy mentions that IBM has followed this process, saying that during McBride's deposition, it was discovered that there were dozens of emails between McBride and Microsoft which had not been produced. After the deposition, IBM requested the additional documents in a letter to SCO's counsel.

Normand says that early in 2003, SCO requested all documents related to Linux, and IBM objected, saying it was a broad request. He contends that IBM now says they were too narrow [specifically relating to Palmisano and Wladawsky-Berger and about IBM's decision to embrace Linux].

Wells asks whether SCO isn't "presuming" there has to be more and asks why SCO doesn't follow Mr. Shaughnessy's suggestion for identifying deficiencies in the depositions?

Normand says that there are easier ways to execute the search, and that SCO would like to have the documents going into the depositions. He points out that email is electronically searchable, and that it shouldn't be too difficult to do the search.

Wells says that she takes IBM's counsel's argument at face value, and assumes good faith in complying. She asks why she shouldn't adopt Mr. Shaughnessy's suggestion?

Normand says it's a reasonable process to follow, with a few caveats. He mentions that he believes the scope of the production is still an issue.

Wells says that she'd like to take a short recess on the matter and disappears into chambers for about 10 minutes. When she returns, she says that she has reviewed several things, including the February 2004 hearing transcript and the March 2004 order.

Wells says that first, she'd like to make a finding that IBM has acted in good faith with respect to the production of documents from Palmisano and Wladawsky-Berger.

Wells says that in light of the wording used in the February 2004 hearing, the March 2004 order was meant to refer to Palmisano, Wladawsky-Berger, and other execs, such as Paul Horn and Nick Bowen. She says that IBM has stated that they have produced responsive documents from their files and should now provide affidavits for those two new individuals stating that IBM has performed a reasonable search of their files, and produced responsive, non-privileged documents.

Wells says that if SCO believes the production is insufficient, they should depose the individuals and ask more questions. If such depositions need to be taken, the parties won't have to count them against the 50 allowed depositions. SCO's Motion is therefore GRANTED in part and DENIED in part.

Wells then states that SCO's pending motion to compel discovery was mooted by Kimball's order.

Wells asks about SCO's Motion for the Protective Order, and the parties state that they have resolved the issue. She then signed an order prepared by the parties regarding it. See the order [586] for more details.

Wells then asks the parties how long they will need to comply, and both indicate they can do so within 6-8 business days. Wells then finds a 2006 calendar and sets the deadline for both parties to be January 6th.

There is some discussion about the time frame for Requests for Admissions. We'll have to wait for the transcript to know more details of what was said.

Update 5:

Here's the Order [PDF] regarding the accountants, and here are the minutes of today's hearing, as per Pacer:

587 Filed & Entered: 12/20/2005
Order on Motion to Compel

Docket Text: Minute Entry for proceedings held before Judge Brooke C. Wells: Motion Hearing held on 12/20/2005. Counsel for both parties present. The Court hears oral argument and rules as follows: re [537] MOTION to Compel Discovery filed by SCO Group - GRANTED IN PART, DENIED IN PART - Affidavits to be provided by 1/6/06, re: [514] MOTION to Compel production of documents on SCO's privilege log filed by International Business Machines Corporation - GRANTED - log to be provided by 1/6/06; re: [534] MOTION to Compel Discovery filed by SCO Group - FINDING AS MOOT - based on Judge Kimball's ruling; [582] MOTION for Protective Order filed by SCO Group - FINDING AS MOOT - The parties have reached a resolution and an order is executed and filed in open court. Order to be prepared by defendant; See order for specifics. Court is adjourned. Attorney for Plaintiff: Edward Normand, Attorney for Defendant David Marriott, Todd Shaughnessy.(Court Reporter Kelly Hicken.) (alp, )

And here's the text of the Order on the accountants. You'll notice it was written by IBM, and was originally titled "Proposed" Order. What SCO's now-mooted motion asked for was a protective order, the exact terms of which would be left to the judge. What happens under the stipulated order instead is that SCO gets a circumscribed opportunity to review documents for privilege, and if it thinks it has any such, it has to provide a privilege log, and basically prove it, presumably. They are not allowed to unduly delay, and there are no blanket exclusions. The third parties are to turn over everything, including tax documents, and then SCO can review for privilege. Of course, after Judge Wells' order today, all the assertions that SCO has the AT&T-Novell-Santa Cruz privileges are so over.

FINAL UPDATE: Pacer has corrected the minutes thus:

Modification of Docket [SCO v. IBM 588]: The previous minute entry contains an error as to ruling on motions. Correction: Motion 534 is GRANTED IN PART AND DENIED IN PART with affidavits due on 1/6/06; Motion 537 is MOOT per Judge Kimball's ruling (2005-12-21)

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Peter H. Donaldson (9642)
[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

CENTRAL DIVISION

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim Plaintiff.

[PROPOSED]
ORDER REGARDING THIRD PARTY
SUBPOENA PRODUCTION

Civil No. 2:03-CV-0294DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

1

Based on the submissions of the parties and good cause appearing,

IT IS HEREBY ORDERED that those third party accounting and auditing firms in receipt of validly served subpoenas in this matter shall produce or make available for production to IBM all documents responsive to the respective subpoenas, including those documents that may contain tax information or advice;

IT IS HEREBY FURTHER ORDERED that SCO may review for privilege the document to be produced in response to third party subpoenas, provided that SCO does not unduly delay the production of these documents and makes all reasonable efforts to expedite any such review and to otherwise avoid delaying the production of responsive documents; and

IT IS FURTHER ORDERED that in the event SCO withholds documents from production, it must promptly provide IBM a privilege log.

DATED this 20th day of December, 2005.

BY THE COURT

___[signature]___
United States Magistrate Judge
Brooke C. Wells

2

CERTIFICATE OF SERVICE

I hereby certify that on the __ day of December, 2005, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

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

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

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

[signature line, no signature]

3


  


IBM's Motion Granted - 1st Report from the Courthouse -UPDATED 5X | 669 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
IBM's Motion Granted - 1st Report from the Courthouse
Authored by: Anonymous on Tuesday, December 20 2005 @ 03:02 PM EST
Thank you very much Frank -- I do appreciate the time and effort to go to these
hearings -- especially as they are so often inconclusive.

This one, apparently, was different. Kimball was able to rule from the bench.
It must have been interesting to see.

Thanks again.

Thad

[ Reply to This | # ]

OT, other neat stuff here, please
Authored by: jbeadle on Tuesday, December 20 2005 @ 03:03 PM EST
Please make links clickable...

Thanks,
-jb

[ Reply to This | # ]

IBM's Motion Granted - 1st Report from the Courthouse
Authored by: Anonymous on Tuesday, December 20 2005 @ 03:08 PM EST
Excellent news! Looking forward to a full report from
Frank - and we should all say a big thank you to Frank.
Have a Merry Christmas and a Happy New Year!

Dave

[ Reply to This | # ]

Core eckshuns 'Ere
Authored by: DaveF on Tuesday, December 20 2005 @ 03:47 PM EST
In last paragraph:

"But here's the part that I can't wait to here more about"

should be

"But here's the part that I can't wait to hear more about"

---
Imbibio, ergo sum

[ Reply to This | # ]

IBM's Motion Granted - 1st Report from the Courthouse -UPDATED
Authored by: tknarr on Tuesday, December 20 2005 @ 03:48 PM EST

It sounds like, on SCO's motion to compel discovery, that the "granted in part, denied in part" amounts to Judge Wells granting what SCO'd already gotten and denying the rest. I'm sure SCO will spin it, but it's hardly a win for them.

[ Reply to This | # ]

IBM's Motion Granted - 1st Report from the Courthouse -UPDATED
Authored by: jmc on Tuesday, December 20 2005 @ 03:49 PM EST

But here's the part that I can't wait to here more about: "Wells found that the Novell->Santa Cruz sale did not transfer everything, and neither did the Santa Cruz->Caldera sale."

I've a feeling that won't say much more than "everything" in the sense of "the entire business" for the sake of whether privilege was transferred not what percentage of UNIX copyrights were or weren't, that's surely a matter for Kimball.

[ Reply to This | # ]

Privilege Log
Authored by: Anonymous on Tuesday, December 20 2005 @ 03:51 PM EST
Being a non American, can somebody explain to me what a Privilege Log is ?

[ Reply to This | # ]

IBM's Motion Granted - 1st Report from the Courthouse -UPDATED
Authored by: blacklight on Tuesday, December 20 2005 @ 03:55 PM EST
"IBM's Motion to Compel Production of Documents on SCO's Privilege Log:
Wells found that the Novell->Santa Cruz sale did not transfer everything, and
neither did the Santa Cruz->Caldera sale. The Broderick Affidavit is
insufficient to establish the transfer of privilege. IBM's Motion is
GRANTED"

It is not the fact that judge Welles granted IBM's motion that is devastating to
SCOG - It is the rationale that judge Welles applied that is devastating to
SCOG: it runs unapologetically counter to one of SCOG's long running and often
repeated key arguments in its pleadings. If judge Kimball's recent decision
marked the end of the beginning of the IBM litigation, judge Welles' current
decision marks the beginning of the end of the IBM litigation.


---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

SCO has to appeal Well's order
Authored by: AG on Tuesday, December 20 2005 @ 04:20 PM EST
SCO cannot let it stand that Novell->OldSCO and OldSCO->NewSCO are asset
sales. There is some devastating language in the contract with IBM regarding
change of control. Considering that they have a phone conference in two days, I
would even go out on a limb and say they will file something tomorrow.

[ Reply to This | # ]

The Santa Cruz - Caldera sale
Authored by: Anonymous on Tuesday, December 20 2005 @ 04:35 PM EST
That's the one we haven't paid much attention to.

What we do have in the Contracts section of the sidebar is something that looks
like some kind of merger. I'm confused.

"AGREEMENT AND PLAN OF REORGANIZATION
....
BY AND AMONG
...
CALDERA SYSTEMS, INC.,
... AND ...
THE SANTA CRUZ OPERATION, INC."

Any explanations will be gratefully received.

[ Reply to This | # ]

Thanks Frank and Aaron....
Authored by: Latesigner on Tuesday, December 20 2005 @ 04:37 PM EST
Now I join the rest mulling over what to make of it all.

---
The only way to have an "ownership" society is to make slaves of the rest of us.

[ Reply to This | # ]

E-mails to Microsoft
Authored by: SpaceLifeForm on Tuesday, December 20 2005 @ 05:05 PM EST
They ought to be useful to say the least.

[ Reply to This | # ]

Does Darl's deposition bear on his silence?
Authored by: dkpatrick on Tuesday, December 20 2005 @ 05:25 PM EST
One can only assume that his sworn deposition makes it really hard to say
anything contradictory in public. Therefore he says nothing ...

---
"Keep your friends close but your enemies closer!" -- Sun Tzu

[ Reply to This | # ]

Thank You Frank and Aaron
Authored by: rsteinmetz70112 on Tuesday, December 20 2005 @ 05:48 PM EST
.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Christmas presents opened early for IBM, a lump of coal for SCO
Authored by: dyfet on Tuesday, December 20 2005 @ 06:09 PM EST
If this idea that newSCO is NOT oldSCO is a matter of "fact", essentually not requiring a jury to "establish", as far as the judge is concerned, and this seems to be what is being signalled here, then I imagine when new motions are entertained, IBM's new/next summary judgement motion will look to dismiss contract claims entirely before trial.

[ Reply to This | # ]

Frank and Aaron . . .
Authored by: kjb on Tuesday, December 20 2005 @ 06:17 PM EST
Appreciate your time and energy. A safe and merry holiday to all.

---
keith.burt at gmail dot com
Copyright info in bio

"No! Try not. Do, or do not. There is no try."
- Yoda

[ Reply to This | # ]

Good Faith
Authored by: rsteinmetz70112 on Tuesday, December 20 2005 @ 06:20 PM EST
I note that Wells said that IBM had acted in "Good Faith". I wonder if
that will have the same effect it did back in the beginning when she said SCOG
had acted in "Good Faith" and BSF beat IBM over the head with it for
months.

I think it's clear that Wells and Kimball are getting tired of these motions and
are trying to put a stop to them. These swift rulings against SCOG are the best
weapon they have. Early on both judges seemed to suffer from a lack of
deciciveness which seems to me to have encouraged SCOG to push the envelope.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

i'm content
Authored by: Anonymous on Tuesday, December 20 2005 @ 06:27 PM EST
This is the first time i see any official doubt about the Santa Cruz->Caldera
step. I'm really satisfied :)

There are so many rungs missing from this ladder, i wonder how they imagined
they'll scale it.

[ Reply to This | # ]

"You didn't know Judge Boyce"
Authored by: Anonymous on Tuesday, December 20 2005 @ 06:39 PM EST
How dumb can these guys get? By implying that Judge Boyce's ruling was unimportant they brought his judgement into question. Didn't they know that Judge Boyce was a mentor to Judge Wells and she held him in the highest regard?

On another note, I see that David Boies now has his snout in the Alaska Gasline Port Authority suit against Exxon and BP.

[ Reply to This | # ]

IBM's Motion Granted - 1st Report from the Courthouse -UPDATED 4X
Authored by: FrnchFrgg on Tuesday, December 20 2005 @ 06:42 PM EST
"You didn't know Judge Boyce."

I love it. I can almost see the ice on the letters.

---
_FrnchFrgg_

[ Reply to This | # ]

I love this bit
Authored by: Anonymous on Tuesday, December 20 2005 @ 07:00 PM EST
"SCO contends it is undisputed that SCO owns and operates the UNIX business
at issue." - Normand

The reason I love it is because Wells ruled against SCO.
"Undisputed"? More like indisputable, and against SCO's position.

MSS2

[ Reply to This | # ]

IBM's Motion Granted - 1st Report from the Courthouse -UPDATED 5X
Authored by: oldgreybeard on Tuesday, December 20 2005 @ 10:07 PM EST
Looks like SCOX just found the other triplex and it is behind them and corn
field meet is about to occur.

[ Reply to This | # ]

A bump in the road
Authored by: webster on Tuesday, December 20 2005 @ 10:43 PM EST
1. This was a good day for IBM fans but it will not be so memorable compared
with items that have passed and certainly items yet to come.

2. The Judges can't help but learn more about their cases as more action passes
before them. They also can't help but form impressions. God help you if they
have impressions against you. Worse yet, they can form the wrong impressions
about the facts or the law and really give you fits. This case has such
scrutiny the Judges are sure to be prepared as we move forward. They also can't
help but form an impression about SCO's style and substance. SCO has an uphill
(upladder) struggle just to be heard. Wells has already found that they twist
her words when she tells them they twist her words. This is really bad for a
party or lawyer, especially if you have to make other appearances in other cases
before the same judge. Your reputation is everything and you want to be
authoritative, factual and fair. Reasonability helps, too. Tenacity is
admirable too, but not at the expense of the others.

3. The privilege log Order was expecially good for IBM because the judge didn't
even distinguish anything, i.e. find privilege with any of the SCO predecessors
in interest. They get everything they asked. One of the treats of GL was the
Judge Boyce angle. PJ for Judge!


4. SCO's winning the executive disclosure Motion may amout to two to four more
pieces of paper being filed. They say they have already complied. These IBM
guys are tough. They don't say they erased them, lost them, can't find them,
don't keep them, don't create them,...they just say they can't produce them and
they have looked. They put the burden on SCO to refute them i.e. "disclose
what evidence you have, and where you got it. Maybe you can help us find
ours." Not unlike fishing, or trapping. IBM is very disciplined.


5. The Stipulation caps a tempest in a teapot. With the accountants' subpoenas
and Privilege Log I suspect SCO was trying to hijack some documents prepared for
Novell. They figured IBM had them from Novell already so privilege could have
excluded them. Not having seen them we don't know their clout. It could be SCO
just making them work. However the speculation on this board lends one to
believe there is good impeachable material there.

6. The documents are there to be harvested and they are out of SCO control.
After today's hearing they won't bother too much with them since their argument
is gone. It was best explained above by the usual GL gem:

"Of course, after Judge Wells' order today, all the assertions that SCO has
... privileges is so over."

7. December 22 the non-interim deadline looms. If anyone expects anything
after two motions to compel and an interim deadline, lets sell him a bridge.


---
webster
>>>>>>> LN 3.0 >>>>>>>>>

[ Reply to This | # ]

Some OTHER things this and the last couple of hearings tell you
Authored by: Anonymous on Wednesday, December 21 2005 @ 04:51 AM EST
Go back in your mind to IBM's Partial Summary Judgement motions on the Copyright
and Contract claims

Remember Kimball denying them because discovery wasn't complete

Remember what discovery SCO wanted (in their rule 56f motion) - which they
allegedly hoped would help them reveal the infringing material in Linux?

1. The intermediate versions of AIX and Dynix from the IBM revision control
systems

2. Discovery on third party individuals' and corporations' contributions to
Linux

3. To depose IBM Linux programmers


From the recent hearings and motion papers, we have discovered what SCO has done
about each of these issues

On #1, SCO got it from IBM, at great expense to IBM, but seem to have found it
no use whatsoever - or so is the implication of the hearing that took place
about SCO's New Renewed Motion to Compel (the one where they wanted sanctions on
IBM, and IBM to produce everything from its files of Linux programmers
mentioning Linux, and where IBM agreed to produce programmers' files for 20
individuals).

On #2, SCO have apparently done none of this. It is mentioned in a recent IBM
filing.

On #3, SCO got the documents for 20 IBM programmers, wanted the documents for
250 IBM programmers, but then discovered that they were not deposing after
all.

In short, SCO's 3 *ESSENTIAL* items of Discovery to oppose Partial Summary
Judgements:
#1 - GOT IT, BUT NO USE
#2 - NOT DONE
#3 - NOT DONE BECAUSE NO USE

In short, SCO appears to have already conceded they have no more evidence, than
they had 1.5 years ago, when opposing IBM's PSJs -- and we know what Kimball
said about SCO's evidence then.


Meanwhile...

SCO is wasting time and depositions and motion practise to discover: IBM
executives about IBM's decision to embrace Linux, and whether they have produced
all dcuments relating to that decision (none of which would help them find
infringing code or contractual violations).


Quatermass
IANAL IMHO etc



[ Reply to This | # ]

Transfer of Name SCO
Authored by: thorpie on Wednesday, December 21 2005 @ 05:14 AM EST

For Caldera to change its name to The SCO Group it must have had permission from Tarantella (oldSCO). And Tarantella must have agreed not to use the name SCO or Santa Cruz.

Can anyone shed light on where this approval/agreement is? It would possibly highlight that it was an asset transfer rather than a change of control better than anything else

---
The memories of a man in his old age are the deeds of a man in his prime - Floyd, Pink

[ Reply to This | # ]

Missing transcript data
Authored by: DaveJakeman on Wednesday, December 21 2005 @ 05:20 AM EST
1. Courtroom ambient temperature = ???

2. Wells says "You didn't know Judge Boyce."

3. Courtroom ambient temperature = ???

Please take a thermometer with you next time.

---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

[ Reply to This | # ]

Who the frell is Judge Boyce?
Authored by: Anonymous on Wednesday, December 21 2005 @ 05:54 AM EST
Please?

[ Reply to This | # ]

Thanks to all the volunteers...
Authored by: akempo on Wednesday, December 21 2005 @ 08:13 AM EST
Thanks to Frank and the others who go to these hearings, and to those who help
PJ transcribe, proofread, and otherwise make this site excellent, keep up the
good work!

On the flip side, it's too bad you live so close to SCO, aka Chernobyl West.

Happy Holidays to all,
akempo

---
Problems cannot be solved on the same level of thinking that created them.
Albert Einstein

[ Reply to This | # ]

IBM's Motion Granted - 1st Report from the Courthouse -UPDATED 5X
Authored by: Anonymous on Wednesday, December 21 2005 @ 10:44 AM EST
"IBM's Motion to Compel Production of Documents on SCO's
Privilege Log: Wells found that the Novell->Santa Cruz
sale did not transfer everything, and neither did the
Santa Cruz->Caldera sale. The Broderick Affidavit is
insufficient to establish the transfer of privilege. IBM's
Motion is GRANTED."

to me this part is huge - at least the way I see it - this
could knock a hole in the whole case as far as I am
concerned. who cares if there is infringing code or not it
should be up to Novell to sue if there is and if this
statement is true.

[ Reply to This | # ]

Caldera v Microsoft CV 645B
Authored by: IMANAL on Wednesday, December 21 2005 @ 03:23 PM EST
Here is an exceedingly rich and in-depth link to the case Caldera v Microsoft CV 645B.

A related story, here from The Register in 2000:

"Evidence given under oath that Microsoft deliberately destroyed evidence that could be used in pending or forthcoming antitrust actions has finally come to light. Although its existence had been generally known, Microsoft has succeeded keeping it secret until now. But following an application by the Salt Lake Tribune, the San Jose Mercury and Bloomberg to unseal documents in the now-settled Caldera case, Judge Ronald Boyce released some of the sealed filings. Amongst the sealed pages were some extraordinary things: the lengths of golf course holes in China, photographs of a woman and an insect, published articles, and many blank pages. Caldera argued that the designations were "done by monkeys", but Microsoft protested that the purpose of these was to discourage other potential plaintiffs rather than the media. Boyce concurred with both viewpoints but unsealed most documents, noting that "Microsoft would have liked to have tried this case in secret... there are sharks circling out there, and this isn't going to be the only antitrust action that's going to be filed against Microsoft..."."



---
--------------------------
IM Absolutely Not A Lawyer

[ Reply to This | # ]

Impressions
Authored by: DaveJakeman on Wednesday, December 21 2005 @ 04:30 PM EST
I don't know if anyone else got this impression, but from reading the
transcripts I got the feeling Marriott has been perusing Groklaw. He made some
devastating points, several of which have been aired here before.

Well, we know SCO comes here, so it would be remiss of IBM not to. But it's
nice to see our collective thoughts reproduced in actual courtroom transcripts.

Possibly I've got it wrong and IBM raised these points first and we only
discussed them later. Maybe that's worth a look at: what was the exact
chronology?

Many eyes...

---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

[ Reply to This | # ]

IBM's Motion Granted - 1st Report from the Courthouse -UPDATED 5X
Authored by: Anonymous on Wednesday, December 21 2005 @ 06:08 PM EST
'Wells says "You didn't know Judge Boyce."'

In other words, she is not likely to discount Judge Boyce's opinion or ruling.

"Normand says that there are easier ways to execute the search, and that
SCO would like to have the documents going into the depositions. He points out
that email is electronically searchable, and that it shouldn't be too difficult
to do the search."

Why does this sound so much like their claim it is easy to pull stuff from CICS?

[ Reply to This | # ]

December 22 deadline reached - now what?
Authored by: Anonymous on Thursday, December 22 2005 @ 03:07 AM EST
Today, December 22, 2005, is the big day, the "Final Deadline for Parties to Identify with Specificity All Allegedly Misused Material". This is the day SCO finally has to put up or shut up on any copyright issues in Linux.

How soon do we find out what, if anything, SCO filed?

[ Reply to This | # ]

Hearing Attendance?
Authored by: Steve Martin on Thursday, December 22 2005 @ 07:56 AM EST

The hearing was held before Judge Wells, but in Judge Kimball's Courtroom, which is much larger.

Frank (and others who attended), this brings to mind one thing I don't think I saw mentioned; how full was the courtroom? Were there a lot of spectators? I would assume the hearing was moved to Kimball's courtroom because it's bigger(?), perhaps someone anticipated needing more space. Comments?

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

[ Reply to This | # ]

Who sees the subpoenaed documents first?
Authored by: Steve Martin on Thursday, December 22 2005 @ 08:01 AM EST

What happens under the stipulated order instead is that SCO gets a circumscribed opportunity to review documents for privilege, and if it thinks it has any such, it has to provide a privilege log, and basically prove it, presumably.
[...]
The third parties are to turn over everything, including tax documents, and then SCO can review for privilege.

Does this mean, then, that (a) the third parties turn the requested documents over to IBM, who then lets TSG review and cull them, or (b) the third parties turn them over to TSG, who reviews them and lets IBM have what they consider non-privileged? In other words, who sees them first?

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

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )