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Declaration of John Wadsworth, as text
Saturday, February 04 2006 @ 11:58 PM EST

Here's the Declaration of John V. Wadsworth in Support of Oracle Corp.'s Motion to Quash Third Party Subpoena Duces Tecum or, in the Alternative, for a Protective Order [PDF], as text. He is Managing Counsel for Oracle and he provides all the details of what happened and everything SCO got wrong.

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

DECLARATION OF JOHN V.
WADSWORTH IN SUPPORT OF ORACLE
CORP.'S MOTION TO QUASH THIRD
PARTY SUBPOENA DUCES TECUM OR,
IN THE ALTERNATIVE, FOR A
PROTECTIVE ORDER

[CASE NO.: MISC., U.S. DISTRICT COURT FOR THE
DISTRICT OF UTAH, CASE NO. 2:03CV-0294]

________________

I, John V. Wadsworth, declare as follows:

1. I am an attorney duly licensed to practice law before this Court. I am Managing Counsel for Non-Party Oracle Corporation ("Oracle"). The following statements are made of my

own personal knowledge, and if called upon as a witness in this action, I could and would competently testify thereto.

2. Attached hereto as Exhibit A is a true and correct copy of the Second Amended Complaint, dated February 27, 2004, filed by Plaintiff The SCO Group, Inc. ("SCO") in this action.

3. Attached hereto as Exhibit B is a true and correct copy of the Second Amended Counterclaim filed by Defendant International Business Machines Corp. ("IBM") in this action.

4. Attached hereto as Exhibit C is a true and correct copy of a Subpoena Duces Tecum to Oracle dated January 10, 2006 ("Subpoena"), which was served on Oracle by SCO on January 11, 2006.

5. Attached hereto as Exhibit D is a true and correct copy of SCO's Notice of 30(b)(6) Deposition ("Deposition Notice"), which was served on Oracle by SCO on January 11, 2006 by U.S. Mail.

6. The corporate headquarters of Oracle are located in Redwood City, California. All of the witnesses who would testify on the subjects listed in the Deposition Notice are located at Oracle's headquarters in Redwood City. I also work at Oracle's headquarters in Redwood City.

7. In addition to the Subpoena and Deposition Notice recently served on Oracle, Oracle has been served with three other Rule 45 subpoenas. The first subpoena was issued by IBM on March 19, 2004 and requested various documents relating to Oracle's business relationships with SCO and another affiliated company called The Canopy Group, Inc. The subpoena also requested documents relating to the Unix or Linux operating systems. I have been

2

informed that IBM served a copy of the subpoena on SCO. Given the broad scope of the requests and the marginal relevancy to the action, Oracle objected to the vast majority of the requests and produced several documents. IBM agreed not to pursue the requests further.

8. Oracle was served with a second subpoena from IBM on or about January 13, 2005. I have been informed that IBM served a copy of the subpoena on SCO. This subpoena requested testimony relating to a series of topics similar to the topics in the previous request. Oracle responded to that subpoena to IBM's satisfaction.

9. Oracle was served with a third subpoena dated October 24, 2005. This subpoena was issued by SCO and sought documents relating to any meetings, conversations, etc. between a group of seven large technology vendors, including Oracle, relating to creation of a so-called Linux Consortium. Oracle searched for any responsive documents and found none (the Oracle employee who had interfaced with this group no longer works for Oracle). However, Oracle worked with the other members of the group, who had also been subpoenaed, and on information and belief, documents were produced to SCO by Dell Inc.

10. The Subpoena was served on Oracle by SCO on January 11, 2006 via Oracle's agent for service of process, Corporation Service Company. No witness fees were tendered at that time, or since. I received the Subpoena from CSC on January 12, 2006. The Deposition Notice was served on Oracle by SCO on January 11, 2006 by U. S. Mail. At no time prior to serving the Subpoena or the Deposition Notice did SCO confer with me or anyone else at Oracle about the date on which it wished to conduct the deposition. Nor did SCO confer with me or anyone else at Oracle after SCO served them.

3

11. On January 19th, I contacted counsel for SCO, Edward Normand, via email and advised him that SCO's Subpoena and Deposition Notice were defective because, among other things, the applicable witness fees were not tendered; the Subpoena was issued out of the "District of California," which does not exist; and because the Deposition Notice specifies that the deposition is to take place in Armonk, New York (even though the Subpoena specifies the deposition site as Oakland, California). I also stated that the topics are overbroad, seek irrelevant testimony, and would require the production of several different witnesses. I requested that SCO confer to discuss the possibility of agreeing to narrow the scope, or else Oracle would be required to file a motion to quash. Finally, I advised Mr. Normand that I was already scheduled to be in Burbank, California on the date specified for the deposition (January 27th) for a long-planned board of directors meeting of the Civil Justice Association of California, on whose board I sit.

12. Mr. Normand responded via email on January 21st. Since that day was a Saturday, I did not receive the response until Monday, January 23rd. Mr. Normand stated that SCO might be willing to agree to modify the scope of the Subpoena. However, Mr. Normand stated that the discovery cutoff in the case was Friday, January 27th, and SCO could not agree to move the date of the deposition. Mr. Normand did not respond as to where SCO expected the deposition to take place, Armonk or Oakland. Nor did Mr. Normand offer to tender the necessary witness fees.Mr. Normand stated that he expected "that Oracle would file a motion for protective order regarding (at least) the timing of the subpoena before January 27."

13. I was recently informed by counsel for another non-party that has been subpoenaed by SCO that SCO has only recently noticed Rule 30(b)(6) depositions of IBM on the same topics on which SCO seeks non-party testimony, including testimony from Oracle.

4

I declare under the penalty of perjury that the foregoing is true and correct. Executed on January 26, 2006 at Redwood Shores, California.

___[signature ]______
John V. Wadsworth

5

PROOF OF SERVICE

THE SCO GROUP, INC. v. INTERNATIONAL BUSINESS MACHINES CORP.,

I, Maya Beech, declare:

I am employed in the County of San Mateo, State of California, in the office of a member of the bar of this court, at whose direction the service was made. I am over the age of eighteen years, and not a party to the within action. My business address is [redacted ] . On the date set forth below I served the following:

DECLARATION OF JOHN V. WADSWORTH IN SUPPORT OF ORACLE CORP.'S MOTION TO QUASH THIRD PARTY SUBPOENA DUCES TECUM OR, IN THE ALTERNATIVE, FOR A PROTECTIVE ORDER

(X) By placing such a copy enclosed in a sealed envelope postage thereon fully prepaid, in the United States Postal Service for collection and mailing this day.

( ) By hand delivery on this date.

( ) By consigning such a copy to an express mail service for guaranteed delivery on this date.

( ) By consigning such a copy to a facsimile operator for transmittal on this date.

I served the above on:

Edward Normand
Boies, Schiller & Flexner LLP
[ address]

Amy F. Sorenson, Esq.
Snell & Wilmer LLP
[address]

I declare under penalty of perjury that the foregoing is true and correct. Executed in Redwood City, California on January 26, 2006.

___[signature]____
Maya Beech
Legal Assistant

6

  


Declaration of John Wadsworth, as text | 246 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The Corrections Thread
Authored by: Aladdin Sane on Sunday, February 05 2006 @ 12:11 AM EST
Please place corrections beneath this comment.

Please distinguish between mistakes in the text and PDF versions.

---
"If it doesn't come naturally, leave it" --Al Stewart

[ Reply to This | # ]

The Off Topic Thread.
Authored by: Aladdin Sane on Sunday, February 05 2006 @ 12:14 AM EST
Please place off-topics comments and links below this one.

It is possible to make links clickable. I leave the rest to the student.

---
"If it doesn't come naturally, leave it" --Al Stewart

[ Reply to This | # ]

Item 12...
Authored by: bbaston on Sunday, February 05 2006 @ 12:27 AM EST
...screams of tSCOg's intent to create further delay in resolving anything, through very obvious gaming of the legal system.

[rant]
How obvious does it need to be that tSCOg is working for Microsoft? Vista's not ready yet, tSCOg must have more time.
[/rant]

---
Ben, Groklawian in training
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold
Have you donated to Groklaw this month?

[ Reply to This | # ]

Sounds like SCO wanted it screwed up
Authored by: kawabago on Sunday, February 05 2006 @ 12:29 AM EST
so they could manufacture an excuse to extend discovery again. I guess they
just don't want those summary judgements to start happening. The SCO management
must feel a bit like the french aristocracy looking at the guillotine.

---
TTFN

[ Reply to This | # ]

BSF trying to get fired?
Authored by: Anonymous on Sunday, February 05 2006 @ 12:36 AM EST
...for inadequate representation?

The fees are capped, they're not getting any more money...surely there's a
clause somewhere that SCO can fire them for cause.

You have to wonder.

[ Reply to This | # ]

Declaration of John Wadsworth, as text
Authored by: Anonymous on Sunday, February 05 2006 @ 12:36 AM EST
Clear, straight to the point.

No obfuscation anywhere.

I strongly suspect that Judge Kimbal and Magistrate Wells will be less than
impressed with SCOX' last minute filing after comparing it to John Wadsworth's
Declaration.

As PJ pointed out earlier, SCOX didn't actually 'lie'. But SCOX sure did 'omit'
a lot of highly relevant facts.

On a more personal basis, this certainly doesn't put Normand in a good light
either. After all, Normand is the lawyer responsible for SCOX' last minute
motion _and_ he did, in point of fact, have communication with Oracle prior to
filing.

Not good. Not good.

[ Reply to This | # ]

Musical locations for deposition
Authored by: AllParadox on Sunday, February 05 2006 @ 12:36 AM EST
This is the one that continues to astound me.

Those who follow my posts know that I can be somewhat contrary. Were I in the
position of this attorney, and did not have to be somewhere else that day, I
would have moved heaven and earth to get people ready, and to appear, wherever
was least likely.

"You asked us to appear. We did. You didn't. Now it is your problem. We
will not appear again, voluntarily."

Most judges will go along. That's it. No more depositions for the folks that
tried to work within the system.

---
PJ deletes insult posts, not differences of opinion.

AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.

[ Reply to This | # ]

Declaration of John Wadsworth, as text
Authored by: blacklight on Sunday, February 05 2006 @ 01:03 AM EST
If the quality of the Oracle subpoena is a harbinger of the shape of things to
come, I expect that there will be a lot of finger pointing between SCOG and its
outside lawyers once the IBM trial is over. It's one thing to cook up an
adequate subpoena and hand it in at the last minute. It's another to wait until
the last minute and hand in a slap dash of a subpoena. It appears that SCOG's
outside lawyers - not just SCOG's top management, are hell-bent on losing in the
most graceless, counter-productive and self-destructive way possible.

---
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 | # ]

SCOX Arrogance
Authored by: tredman on Sunday, February 05 2006 @ 01:12 AM EST
I love reading some of the documents out of this case. SCOX has an almost
authoritarian attitude in their conduct. Everything has to be on their terms,
no room for compromise. And the way they tell it, their opinion is the rule of
law. I guess we can tell Judge Kimball and Magistrate Judge Wells that they can
go home now. Their services are no longer required.

I guess "good faith" doesn't mean anything to this group.

---
Tim
"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

Declaration of John Wadsworth, as text
Authored by: Anonymous on Sunday, February 05 2006 @ 05:23 AM EST
Given SCO's conduct, if I were IBM's attorneys I would go to the courthouse in
Utah, photocopy everything in the 7 magic boxes SCO delivered and then do a line
by line comparison with what SCO delivered to IBM. With the astounding level of
care with which SCO is handling legal documents who knows what they might have
accidentaly failed to include in the boxes going to IBM or perhaps an earlier
version of something was substituted by mistake.

[ Reply to This | # ]

SCO instructed their lawyers, a trainee did the work?
Authored by: Chris Lingard on Sunday, February 05 2006 @ 07:26 AM EST

One paragraph stands out here

13. I was recently informed by counsel for another non-party that has been subpoenaed by SCO that SCO has only recently noticed Rule 30(b)(6) depositions of IBM on the same topics on which SCO seeks non-party testimony, including testimony from Oracle.

It was SCO that instructed their lawyers to take this action; and not part of the lawyer's strategy. The SCO managers have panicked, having suddenly noticed previous action by IBM. Possibly Oracle, Intel and Open Group might not acknowledge that SCO own everything, and SCO needs to throw mud.

This might account for the mistakes in the subpoena. Many years ago, I worked for a company in Manchester, England. They had a beautiful office, sharp and intelligent management. They believed that they totally owned the staff; but they had one big fault; they did not believe in paying wages, and other money due. I rapidly got another job, and did some work for my new boss, whilst working out my notice. I was called into the bosses office and "fired", for doing this extra evening work, which suited me fine because I was leaving anyway.

Shortly after this I got a Solicitors, (Lawyers), letter. This letter had dozens of spelling and grammar mistakes, (along with being factually untrue). I got a Solicitor of my own and very quickly won.

Years later I found out that if a Solicitor/Lawyer is instructed by the client to take some action that the Solicitor believes is stupid; they pass it on to a trainee; and that is why there were so many mistakes.

Since SCO lawyers have no more money to gain, anything outside their strategy will be done by a clerk or a trainee. The SCO lawyers will go through the motions to fulfil their contract with SCO, but any extra work such as these subpoenas will be delegated to whoever happens to be handy; and that future SCO court action will be some automatic response to minimise the lawyers costs.

[ Reply to This | # ]

Dell Inc.
Authored by: Anonymous on Sunday, February 05 2006 @ 09:52 AM EST
Has anyone (except SCO and Dell...) seen the documents produced by Dell, as
indicated above: "However, Oracle worked with the other members of the
group, who had also been subpoenaed, and on information and belief, documents
were produced to SCO by Dell Inc."

Or were they never published?

[ Reply to This | # ]

A technical question about "pro hac vice"
Authored by: rsteinmetz70112 on Sunday, February 05 2006 @ 11:06 AM EST
I wonder if one of the lawyers out there could answer a question about the
status of a "pro hac vice" lawyer.

This is, as I understand it, in essence a temporary recognition for a specific
matter of a lawyer by a court that the lawyer is not recognized to regularly
practice in.

Also as I understand it for lawyers to be admitted "pro hac vice" they
must get permission from the judge and associate with a lawyer who is regularly
admitted in that jurisdiction.

Edward Normand was admitted "pro hac vice" for this case, why is he
not able to issue subpoenas in this matter? What if any limitations are imposed
on "pro hac vice" lawyers, beyond having an association with a locally
admitted lawyer?

I don't recall seeing this discussed here before.

---
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 | # ]

Declaration of John Wadsworth, as text
Authored by: Darkside on Sunday, February 05 2006 @ 12:15 PM EST
Can somebody explain to me what the practical difference
is between an order to quash, and a protective order?

[ Reply to This | # ]

Some thoughts on the SCO story
Authored by: Anonymous on Sunday, February 05 2006 @ 02:52 PM EST
In the previous post an anonymous poster quoted some marketing material from
Caldera in 1996. This has suggested a few things to me that might help join up a
few dots.

1991: Linux first released

1994: Caldera founded

1996: marketing suggests that Linus is a form of Unix.

Lets just imaging this was believed to be true at Caldera. Canopy is being run
by Ray Noorda. Now Ray was (is?) a great salesman. Salesmen go for the USP
(unique selling point) of a product. Its their nature/training. Unix was Good
then. A decent version NT was barely a gleam in BG eye. NT was being advertised
as a better form of Unix. Recall the POSIX compliance story for NT? There was no
love lost between Novell and MS - mostly over networking products. Now we have
it on the record that Noorda *may* have been beinging to suffer from Alzheimers
about now. It is possible that the difference between Linux and Unix might not
have been made clear to him. This might not have been important then - but being
who he was he would almost certainly have signed off on the marketing.

So lets assume that the idea Linux is a derivative of Unix became embedded in
the company DNA about then. Its Unix but (1) its cheaper and (2) we can use it
without paying anyone. Recall the hoohaa about the use or rather the non use of
the Lyons book earlier here?

1995: AT&T sell the Unix business to oldSCO. Caldera may or may not have
assumed that thier version of Unix (Linux) might be allowed under the
"sealed" settlement. After oldSCO take over the business there is
still no problem using Linux.

OldSCO have a difficult to understand contract with AT&T - at least in parts
its difficult. They know that they can run the Unix business and sell stuff on
top. They know that they will have recourse to any copyright backup they need.
As it turns out they dont need this. But somewhere along the road they realise
they cant sue anyone using Linux. Maybe AT&T can but oldSCO know that they
cant. Im sure the idea did occur to them - this sort of thinking comes as
naturally as breathing to some folk. But it never amounts to anything.

1998: First Canopy hits pay dirt via Caldera over DR DOS that Caldera owns.
Nasty squabble between Canopy and Caldera over the spoils. Noorda retires from
active management. Yarro takes over.

Now Yarro and others cannot but have been impressed with how a dispute over
copyrights with the SW titan MS amounted to a windfall for Caldera/Canopy.

There was a phrase in Yarro's affidavit that has been bugging me for ages. He
refered to Noorda treating him like a son . He also refered to the fact that
Noorda taught him about business.

Now this is very likely to be reading far too much into this. If any one else
posted this I would be one of the first to point this out also. But bear with me
please.

What if Yarro was telling the truth - at least as he saw it? Sons do admire
thier fathers - sometimes justifably so; sometimes not. Noorda is/was an awesome
business man turning round Novell from its near death experiecnce (~12 or so
staff) into a huge multinational. Yarro working with him could not but be
impressed. Now Yarro - if I recall correctly - was appointed to Canopy in 1995.
This would be in the middle of the DR DOS suit. If the paperwork had not been
filed but then it would have been in preparation. It may have been the reason
Yarro was hired.

Noorda is one in a couple of million. Yarro would have realised that he could
not compete with Noorda's salesmanship. But he is smart enough to spot the
opertunity ovr IP cases. Please make no mistake: Yarro is a *very* smart chap.

Caldera floated in 2000. They bought the Unix divisions in 2001 with the float
money.

They may have bought the Unix divisions in part because they assumed that this
would given them control over Unix - and by extension Linux. If the sales
channels dont work out they could sue - just like Caldera had over DR DOS. Hence
the overpayment.

IBM were the obvious target. Could afford to buy out Caldera. Were big users on
Linux. Bad blood over Monterey.

Need a cheerleader - enter D McB. Need money
(1) to pay exec bonuses
(2) most importantly - to raise the value of the company pre buyout
(3) have a strategic reserve just in case the case des end up in court.

Enter Anderer.

Thanks to stats and Steve (and others) we have connections between Royce, RBC,
MS and possibly other players.

Why a hedge fund or a back?

Confedentiallity.

PIPE funds. Venture capital from a bank. Hedge funds. New licences =>
multiple non overlapping fuding sources. All legit. Only the licence fees need
be revealed. And they will bolster SCO public claims also.

Add in a 'Get the FUD' campaign to run simultaneously. Get the AdTI and/or
others to run interference. Add a big name law firm. The expertese in shady
legal transactions makes sense - with all these multiple funds runing how best
to cover the traces?

As far as SCO were concerned - (1) Linux = Unix and (2) SCO owned Unix. BSF went
along with the story - they are not tech experts. They figured they could if
need be hire some tech experts as they went along.

Yarro's upside. Noorda had humbled MS in court. Yarro would do the same to IBM.
Its not about money per se. Yarro has lots of that. Sure it might mean that he
ends up with canopy as well but I think the 'face factor' here is at least as
important. At the amount he was making its only a matter of keeping score.

The only other game he might have in mind is politics. He would need a LOT of
money for that. But given his low to invisible profile politics does not sound
like him. At least as the candiate for election. Behind the scenes - who knows?

D McB: he finally gets to run his own company. He gets the kudos of being the
man to turn SCO round.

BSF get to nail a win against IBM on thier wall.

MS get to do a LOT of Fud against Linux and IBM.

Its a win-win situation for everyone.

++++++++++++++

Please note this a layer upon layer of guesswork, speculation and similar. There
are SO few solid facts to rely on here please treat with extreme caution.

--

MadScientist

[ Reply to This | # ]
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