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| IBM Still on the Move: Letters Rogatory |
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Saturday, March 04 2006 @ 02:33 PM EST
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More IBM activity on Pacer. It has subpoenaed Michael Sean Wilson -- it wants to depose him -- and it has obtained letters rogatory. Here's what Pacer is showing: 637 -
Filed & Entered: 03/03/2006
Order on Motion for Miscellaneous Relief
Docket Text: ORDER granting [629] STIPULATION & JOINT MOTION regarding requests for admission signed by Judge Brooke C. Wells on 3/3/06. (mjw, )
638 -
Filed & Entered: 03/03/2006
Remark -
Docket Text: Remark: Letters Rogatory issued by the clerk's office and given to counsel Todd M. Shaughnnessy. (jwt, )
635 -
Filed & Entered: 03/02/2006
Affidavit of Service -
Docket Text: AFFIDAVIT OF SERVICE for Subpoena in a Civil Case served on Michael Sean Wilson on 2-22-2006, filed by Defendant International Business Machines Corporation. (Donaldson, Peter)
What in the world are letters rogatory and who is Mr. Wilson?
Letters Rogatory
Here's what Law.com provides as a definition:
rogatory letters
n. a written request by a judge to a judge in another state asking that a witness in the other state have his/her testimony taken in the other state's court for use in the local court case. If you are in state courts, that's what you have to use to get a witness in another state to testify. It's horribly time and work-intensive, as you can see in this description of how to get a California witness in a New York case. But IBM is in federal court, so they don't need letters rogatory to get a witness in another state, I don't think. You can also use letters rogatory if you want to get the testimony or documents of a witness who lives out of the US. Might that be it? You don't ever use letters rogatory if you can help it, because it takes forever and it's cumbersome. Not only that, some countries won't even let you be there to ask the questions yourself. You use letters rogatory also to get papers that you want. This page by the US State Department explains it in depth. If you want to get testimony from a noncooperative someone who is in another country, you need letters rogatory to get the other country to make it happen:
WHAT IS A LETTER ROGATORY: A letter rogatory is a formal request from a court in one country to "the appropriate judicial authorities" in another country requesting compulsion of testimony or documentary or other evidence or effect service of process. . . .In some countries which do not permit the taking of depositions of willing witnesses, letters rogatory are the only method of obtaining evidence or serve process. . . .This does not obligate the foreign country to execute the request, but simply provides a formal avenue by which the requests may be made....Letters rogatory are a time consuming, cumbersome process and should not be utilized unless there are no other options available.
HOW IS A LETTER ROGATORY EXECUTED: The foreign court will execute a letter rogatory in accordance with the laws and regulations of the foreign country. In obtaining evidence, for example, in most cases an American attorney will not be permitted to participate in such a proceeding. Occasionally a local, foreign attorney may be permitted to attend such a proceeding and even to put forth additional questions to the witness. Not all foreign countries utilize the services of court reporters or routinely provide verbatim transcripts. Sometimes the presiding judge will dictate his recollection of the witness's responses.... Compulsion of Evidence: When a witness is not willing to testify or produce documents or other evidence voluntarily, the assistance of foreign authorities generally must be sought. The customary method of compelling evidence is by letter rogatory. See Rule 28(b), Fed. R. Civ. P.... ADMINISTRATIVE CASES: Except as provided by statute, U.S. Administrative agencies do not have the power to compel persons outside the U.S. who have no contact with the U.S. (and therefore are not under a federal court's personal jurisdiction) to produce evidence for an investigation. Perhaps somebody in another country doesn't wish to be deposed and/or hand over some documents. Who? I don't know. But we're not just talking about exotic places like Casablanca. Canada, for example, is a country you may need to use letters rogatory to compel someone there to cooperate with a US court process. I personally have been wondering why no one with the Royal Bank of Canada at the time of the deal has been subpoenaed. And here's one last piece: It must always be kept in mind that letters rogatory cannot normally be used for purposes of discovery. It will be necessary to establish that the evidence being sought is necessary for and anticipated to be used at trial. It may be that there are questions that you may want to ask of witnesses in other depositions that will help to establish the need for the B.C. witness’s evidence. Excerpts of those depositions should be included in the material being considered by the B.C. Court.
On the other hand, there may be occasions where the main function of the deposition will be to obtain documents that are physically located in British Columbia, or another Canadian province. It is still necessary to establish that they will be used for trial.
Now, I'm just speculating here, but if, for example, you couldn't serve RBC in the US, and they refused to cooperate, and you knew your trial was a year off, then a year taken to arrange the letters rogatory and the Canadian requirement that you demonstrate that the evidence will be used at trial wouldn't matter, would it? Meanwhile, you let the other side know that you are serious as a heart attack and that you intend to get that document or that testimony or both. As I say, I don't know this is about RBC, but they are the missing link. Bay Star has been hit, Microsoft, Anderer, now Wilson. It seems only logical to me that someone then with RBC be asked what inspired them to invest in SCO. Was it Microsoft's idea? (A reader suggests that another good guess is maybe Gregory Blepp.) Michael Sean Wilson Mr. Wilson was Senior Vice President for Corporate Affairs at SCO in 2003, as you can see from this SEC form showing him acquiring 6,000 shares at .66 and selling the same day, July 15, 2003, 2,000 at $10.8 and 4,000 at $10.66. Here's 6,000 more the day before, something I noted at the time, because it struck me that it happened just before the July 21st teleconference at which SCO announced that they had filed for copyright registrations and were offering the Linux license. It seemed to me that if Mr. Wilson had deep faith in the future of the company, he'd hold on to at least some of his shares. Of course, who knows what his circumstances were, but I remarked it at the time. He's on this MarketWatch list of SCOX Insiders, but again all you get is 2003 information. After that stock sale, Mr. Wilson seems to have disappeared. He's not listed in the most recent annual report or on this list of SCO's executives in a January 8K. It's possible, therefore, depending on when he left the company, that he sold his stock on his way out the door. Unfortunately, IBM didn't file, at least not digitally, the topics for deposition, so this will just have to remain a mystery for now. UPDATE: A reader provides more information from Caldera's 10K/A for the year ending October 31, 2002, where Mr. Wilson is listed as M. Sean Wilson and referred to as Sean Wilson: Sean Wilson has served as senior Vice President, Solutions Group since June 2002. Mr. Wilson is responsible for developing growth strategies for the company by building relationships with strategic partners and searching out business development opportunities. Mr. Wilson has over 10 years of technology experience in business development, strategic partnerships, channel development and product marketing. From September 2000 to May 2002 Mr. Wilson served as VP Strategic Alliances for Franklin Covey and from 1996 to September 2000 Mr. Wilson served as Vice President of Strategic Relations at IKON Office Solutions where he was a key executive responsible for building its systems integration division through the acquisition and integration of more than 30 solution providers. Additionally, he held full executive authority for developing and delivering strategic alliance programs with high technology software, hardware and distribution companies such as Compaq, HP, Citrix, Novell, TechData and others. Before his service at IKON, Mr. Wilson was the Senior Manager of Business Development at Novell, Inc. While at Novell, Wilson was responsible for business development, product marketing, and partner relations. Mr. Wilson holds a bachelor's degree in Accounting from Utah State University VP Solutions Group at that time, responsible for "developing growth strategies." And a background at Franklin Covey, where Darl McBride was CEO from from May 2000 to May 2002, according to the same 10K/A. So they came to SCO the same month, same year, from the same company, where they worked from 2000 to 2002. Wilson also worked at IKON, and so did Darl: Darl McBride has served as the Company's President and Chief Executive Officer since June 2002 and is responsible for the company's strategic direction and planning. Mr. McBride oversees all aspects of the Company including engineering, support, marketing and sales. A technology industry veteran, Mr. McBride has 18 years of executive management and leadership experience. Before joining the Company, Mr. McBride was the president of Franklin Covey's online planning business from May 2000 to May 2002. During 2000 to 2002, Mr. McBride was also serving as the chairman and CEO of SBI and Company, and from 1999 to 2000 was the CEO of PointServe. While at the helm of these companies, Mr. McBride was responsible for raising more than $100 million in venture capital. Mr. McBride has also been the senior vice president of IKON Office Solutions where he managed 4,000 employees and the buildup of a $500 million systems integration unit through numerous acquisitions, channel programs, and industry partnerships. From 1988 to 1996, Mr. McBride worked at networking leader Novell where he was responsible for growing Novell Japan's growth to more than $100 million in revenue. Mr. McBride concluded his tenure at Novell as vice president and general manager of Novell's Embedded Systems Division (NEST). Mr. McBride holds a Bachelor of Science degree from Brigham Young University and received a Masters degree from the University of Illinois at Urbana-Champaign. So they seem to be long-time associates. In researching Mr. Wilson, I see SCO has filed an S-1, labeled Pre-Effective Amendment, whatever that is. I haven't read it yet myself, so we can do it together.
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| Authored by: Anonymous on Saturday, March 04 2006 @ 02:46 PM EST |
Let's hope IBM will get something from Mr. Wilson that looks more or less like a
defense against SCOX Allegedly Misused Material for a change. I'm sure IBM knows
what it is doing.[ Reply to This | # ]
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| Authored by: VivianC on Saturday, March 04 2006 @ 02:46 PM EST |
...but who was that guy in Germany with the briefcase full of stolen code? Maybe
they want to talk to him or get a look at the briefacase?[ Reply to This | # ]
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| Authored by: Just_Bri_Thanks on Saturday, March 04 2006 @ 02:55 PM EST |
Off topic here, clicky if you got it.
---
Bri. Just Bri. Thank you.
(With a long i sound.)
Without qualification, certification,
exception, or (hopefully) bias.[ Reply to This | # ]
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| Authored by: Just_Bri_Thanks on Saturday, March 04 2006 @ 02:57 PM EST |
unpossible!
---
Bri. Just Bri. Thank you.
(With a long i sound.)
Without qualification, certification,
exception, or (hopefully) bias.[ Reply to This | # ]
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| Authored by: tredman on Saturday, March 04 2006 @ 03:23 PM EST |
The S-1 document is a very confusing and disjointed tale. Obviously, this was
filed quite recently (01-Mar-2006), and even mentions Me, Inc., but they still
talk about the Daimler-Chrysler case as if it's still going on. Have I missed
something? Has my attention been so diverted that I didn't notice they refiled
something against DC?
I do enjoy reading the risk section, however. I understand that in an SEC
filing, a company has to be completely forthcoming about not only the upsides to
buying their stock, but also the downsides. However, it's still amusing to
compare the Risks section of this document to SCOX's (and particularly Mr.
McBride's) public statements and assertations.
I find myself slipping back into an 80's mindset every time I finish an item in
that section. After every one, I just want to yell at the top of my lungs,
"Well, DUH!".
---
Tim
"I drank what?" - Socrates, 399 BCE[ Reply to This | # ]
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| Authored by: BobinAlaska on Saturday, March 04 2006 @ 04:36 PM EST |
I loved this section;
"Our engagement agreement with the law firms representing us in the SCO
Litigation requires us to pay for expert, consulting and other costs, which
could harm our liquidity position if these costs are higher than anticipated.
As of October 31, 2005, we had a total of $10,437,000 in cash and cash
equivalents and available-for-sale securities and an additional $2,875,000 of
restricted cash to be used in our operations and pursue the SCO Litigation.
Since October 31, 2004, we have spent $2,125,000 for expert, consulting and
other costs as agreed in the Engagement Agreement with our legal counsel in the
SCO Litigation. As we continue with discovery and other trial preparations
during the year ending October 31, 2006, we believe that we will spend the
$2,875,000 remaining in escrow and we may be required to place additional
amounts into the escrow account, which could harm our liquidity position."
Another indication that they are rapidly running out of cash and desperately
need the "Pipe Fairy" to reappear.
---
Bob Helm, Juneau, Alaska
No, it is not always cold and dark.[ Reply to This | # ]
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| Authored by: stats_for_all on Saturday, March 04 2006 @ 05:14 PM EST |
| This post is a
succint bio of Michael Sean Wilson.
The author makes the important point
that Bob Bench's temporary post-
retirement position replaced Sean's title--
effectively demonstrating he had
left the company.
An unverifiable poster
on two stock boards prone to dropping obscure hints,
"Norfolk..." , seeks to
connect Biff and Sean. [ Reply to This | # ]
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| Authored by: lannet on Saturday, March 04 2006 @ 07:07 PM EST |
| I don't get it.
If RBC (presumably a CA entity) invested in TSC (presumably a
US entity) under the terms of US law with its accompanying "benefits" and
jurisdiction, then surely they leave themselves open to being questioned about
those investments under US law and cannot hide behind the skirts of their CA
nationality. ...but then I'm just an AU amazed at how this is all being allowed
to go on and on and on and on... ---
When you want a computer system that
works, just choose Linux.
When you want a computer system that works, just, choose Microsoft. [ Reply to This | # ]
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| Authored by: The Mad Hatter r on Saturday, March 04 2006 @ 07:45 PM EST |
OK, it appears that he may have left TSCOG in 2003. The timing is curious (as is
the timing of his share sale). One possible reason for leaving would have been a
lack of confidence in the company's legal prospects. Now there are a horde of
other reasons that he could have left, illness, better job, incompatibility with
the rest of management, etc. however my mind went immediately to the legal
issues.
For most of this case it's looked like TSCOG has had no case. In fact from
outside it looks like the leadership at TSCOG has been using non-perscription
drugs in large quantities (see the quotes page under "Darl McBride".)
Since from an outsider's point of view TSCOG appears to have no case, where is
the exodus of insiders that you would expect? Logic would suggest that insiders
would know more about the case than we do.
Now of course they could have a different opinion of the evidence at hand than
we do. After all they hopefully know more about it. Hopefully. Or it could be
that the leadership's charisma has convinced them to ride it out.
I don't know. But I would still expect some staff to decamp, including some
management, and it's possible that the lack of comment on Michael Sean Wilson
leaving, and his lack of visibility since then may stem from a fundamental
disagreement with the course the company was taking, and also with a
non-disclosure agreement. It's also possible that other staff have left, and
that by being quiet about their departures TSCOG has hidden them from us -
however apparently not from IBM, and the IBM legal team.
From what I remember the requirement to testify in court supersedes the
non-disclosure, and his is a deposition that I'd really like to sit in on.
Of course IANAL, nor am I the world's greatest genius, or psychic, so I may be
dead wrong about everything...
---
Wayne
http://urbanterrorist.blogspot.com/
[ Reply to This | # ]
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| Authored by: jto on Saturday, March 04 2006 @ 07:53 PM EST |
Things I noticed in the S1:
- We have filed a registration statement with
the Securities and Exchange Commission (“SEC”), which has been declared
effective, covering the potential resale by one of our shareholders of up to
2,105,163 shares of common stock, or 10.0% of our outstanding common
stock.
- In addition, the shares being registered under this registration
statement, covering the potential resale by some of our shareholders of up to
2,852,449 shares of our common stock, represents 13.6% of our outstanding
common stock.
- The existence of a substantial number of shares of common
stock subject to immediate resale could depress the market price for our common
stock and impair our ability to raise needed capital.
- As of February 24,
2006, there were 389 holders of common stock of
record.
---
Regards, Jim Elliott [ Reply to This | # ]
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| Authored by: stats_for_all on Sunday, March 05 2006 @ 12:26 AM EST |
| RBC Dominion Securities Corporation, now renamed RBC Capital Markets
gives a
NYC business address.
Jeffery D. Eichenberg, Steven C. Milke, Johan
Wahlstedt are the three RBC
managing directors who signed SCOX contracts. All
three had area code 212
business numbers helpfully available on the RBC
Dominion website. Richard J.
Tavoso has signed other contracts (e.g. XM
Satellite) with Baystar. He is a
Director of the Canadian Corporation now, and
Johan Wahlstedt now show an
Ontario phone number.
RBC Capital Markets is a
US registered broker dealer.
Steven Milke
Contact
information in the New York based "Global Equity Derivative Group [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, March 05 2006 @ 01:02 AM EST |
First of all, they are essentially issuing 2 million plus shares, for which they
intend to recieve no compensation.... Um. yeah. Im not sure I want to know.
Actually looking at this, it seems to be an AMENDMENT to thier
original S-1 which looks to amend the registration to account for
previously-disclosed improperly granted options for which SCO recieved and
intends to recieve no compensation and which employees have not sold back in
previous offers made by SCO.
Aside from all that, I just wanted
to point out what the summary of the risk factors SCO lists in thier prospectus
looks like:
We do not have a history of profitable operations.
We may not
prevail in our SCO Litigation, which may adversely affect our ability to
continue in business.
We operate in a highly competitive market and face
significant competition from a variety of current and potential sources; many of
our current and potential competitors have greater financial and technical
resources than we do; thus, we may fail to compete effectively.
If the market
for UNIX continues to contract, our business will be harmed.
We may lose the
support of industry partners leading to an accelerated decline in our UNIX
products and services revenue.
Our claims relating to our UNIX intellectual
property may subject us to additional legal proceedings.
We rely on our
indirect sales channel for distribution of our products, and any disruption of
our channel at any level could adversely affect the sales of our products.
Our
future SCOsource licensing revenue is uncertain.
Fluctuations in our operating
results or the failure of our operating results to meet the expectations of
public market analysts and investors may negatively impact our stock price.
Our
foreign-based operations and sales create special problems, including the
imposition of governmental controls and taxes and fluctuations in currency
exchange rates that could hurt our results.
If we are unable to retain key
personnel in an intensely competitive environment, our operations could be
adversely affected.
Our engagement agreement with the law firms representing us
in the SCO Litigation requires us to pay for expert, consulting and other costs,
which could harm our liquidity position if these costs are higher than
anticipated.
We have issued options under our equity compensation plans without
complying with registration or qualification requirements under the securities
laws of California, Georgia and possibly other states, and, as a result, we may
incur rescission liability for such options and may face additional potential
claims under state securities laws.
Our stock price is volatile.
There are
risks associated with the potential exercise of our outstanding options.
Common stock available for resale may depress the market price of our common
stock.
Our stock price could decline further because of the activities of short
sellers.
The right of our Board of Directors to authorize additional shares of
preferred stock could adversely impact the rights of holders of our common
stock.
Our stockholder rights plan could make it more difficult for a hostile
bid for our company or a change of control transaction to succeed at current
market prices for our stock.
Lets review....
We work in a highly
competitve environment with a shrinking market. We carry a debt load about 8
times our annual revenue. We have a history of unprofitability. We are
hemorraging skilled people. We have ongoing litigation that has not only
spawned multiple litigations against us by industry competitors but about a
quarter of our annual losses are going into legal defense. Oh, and speaking of
which, we lose about $10 mil a year and we only have about $12 mil on
hand.
And if that werent all enough, we have just diluted our common
stock on the market by roughly 23%, our directors can grant more shares at will,
and beyond the short sellers hovering around our stock like sharks at a tuna
convention, we have a poison pill that will dash any hopes you have of making
money on a takeover opportunity.
Now that we have said everything we
are legally obligated to say... uh.... how about some money? I mean, yeah we
are a great investment opportunity, right? Wait... where are you going?
And... why are you laughing so hard?[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, March 05 2006 @ 02:21 AM EST |
Digging though the US State
Department's web page, I found the
following:When a witness is
unwilling to testify or when
production of documents is required, litigants and
tribunals must obtain the
required evidence by a letter rogatory/letter of
request to the appropriate
Canadian court.
Looks to me like
someone (Michael Sean Wilson?) doesn't want to talk and/or
visit the US and/or
took his files to Canada with him. Can anyone check
on Pacer (in the various
locations where IKON did acquisitions) to see if there
is any pending
litigation that might cause that amount of angst? [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, March 05 2006 @ 07:03 AM EST |
....but is this basically a move along the lines of
"There's nowhere to hide, so it might be a bad idea to continue funding
SCO's lawyers."
? or are SCO still rich ?
___________________
biteydog
[ Reply to This | # ]
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| Authored by: PeteS on Sunday, March 05 2006 @ 07:04 AM EST |
| Just my quick take on Mr. Wilson:
From a post by the ever helpful
stats_for_all :
"Before his service at IKON, Wilson was the senior manager
of Business Development at Novell, Inc. While at Novell, Wilson
was responsible for product marketing, partner relations and contract and
royalty management ."
One of IBM's defenses is that SCOX does not,
and did not, inherit Unix lock, stock and barrel.
Mr. Wilson appears to
have been at Novell during the time Santa Cruz bought the Unix codebase and
agreed to be a royalty collector for Novell, and although this is mere
supposition, I suspect the deposition may have touched on this subject.
Even
though Novell has other people who could testify that Santa Cruz never bought
the existing SVRx licenses, merely the right to service the acount, being able
to subpoena a SCOX employee who was responsible for it while at Novell is
just too delicious to pass up.
PeteS ---
Artificial Intelligence is
no match for Natural Stupidity [ Reply to This | # ]
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