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Novell Sends 3d Party Subpoena Re Santa Cruz and Caldera Deals
Tuesday, April 18 2006 @ 01:54 AM EDT

Novell's has sent Notice of 3rd party subpoena to SCO's legal team, letting them know about a subpoena issued from US District Court of the Northern District of California which will be served tomorrow on "Recall, c/o Jim Wruck". There is a data storage company called Recall with offices all over the place, although I couldn't find one in San Leandro, California, the address on the subpoena, but they have several California offices, so perhaps that is who is being served.

What is more interesting than who is getting the subpoena is what Novell is looking for. Novell would like to inspect and copy some documents Recall/Wruck has, or may have, and Wruck is to bring them to Morrison & Foerster's law offices in San Francisco on May 3, 2006 at 10 AM. There is a list of precisely what they would like him to bring on Exhibit A.

Novell would like to take a look at all the documents he has having to do with the Novell to Santa Cruz deal, Santa Cruz's business restructuring in 2000, the "sale or transfer" of Santa Cruz assets to Caldera Systems, "including all transactional, due diligence, and negotiation documents, and other communications concerning the sale or transfer," and all documents concerning the formation of Caldera International, "including its ownership of assets acquired from Santa Cruz."

At first, I saw the word "recall" and I thought maybe they'd subpoenaed Mr. Wruck before, and that maybe he was a Tarantella employee. But then I saw it says "Recall, c/o Jim Wruck" and so I realized I was off base. But by then I had gone to Pacer to check to see who had received a third party subpoena before, and I see Novell sent a couple of them, in late January and in February. One is blank as to who it was for, and one was to Datasafe, Inc. and I note that Datasafe is also a document storage company that stores business records and it has offices in California, including an office in San Francisco.

As for what the documents listed on Exhibit A mean, we can only imagine, but I did notice the phrase about Caldera being the "purported predecessor-in-interest" of the SCO Group in Novell's Answer to SCO's 2d Amended Complaint and Counterclaims. I wonder if someone has noticed something they'd like to investigate further as to whether all the Caldera Systems/Caldera International/Santa Cruz corporate T's were crossed and I's properly dotted in the elaborate re-arrangement that ended up as SCO Group. In time, we will find out.

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

EXHIBIT A

INSTRUCTIONS & DEFINITIONS

This subpoena requires you to produce all responsive documents in your custody or control. Please produce such documents in their entirety, as they are kept in the ordinary course of business.

As used below, “concerning” means, without limitation: comprising, alluding to, responding to, relating to, connected with, involving, commenting on, in respect of, about, discussing, evidencing, showing, describing, reflecting, analyzing, constituting, identifying, stating, or in any way touching upon.

“Documents” or “documents” shall have the broadest possible meaning permitted by Federal Rules of Civil Procedure 26 and 34 and the relevant case law, and shall include any tangible thing upon which any expression, communication, or representation has been recorded, as well as all “writings,” “recordings,” and “photographs,” as defined by Federal Rule of Evidence 1001. Notwithstanding this definition, these Requests seek only documents from the material abandoned by Brobeck Phleger & Harrison and its former clients. We do not request that Recall search for material beyond those archives. You are instructed to produce the following documents at the time and place specified in the subpoena:

DOCUMENTS TO BE PRODUCED

REQUEST NO. 1:

All documents concerning the Santa Cruz Operation, Inc.’s (“Santa Cruz”) acquisition of any assets from Novell, Inc. (“Novell”).

REQUEST NO. 2:

All documents concerning the restructuring of Santa Cruz’s business during its fiscal year 2000.

REQUEST NO. 3:

All documents concerning the sale or transfer of Santa Cruz assets to Caldera Systems (“Caldera”), including all transactional, due diligence, and negotiation documents, and other communications concerning the sale or transfer.

REQUEST NO. 4:

All documents concerning the formation of Caldera International, including its ownership of assets acquired from Santa Cruz.

REQUEST NO. 5:

All documents concerning Santa Cruz’s Board of Directors meetings regarding Santa Cruz’s acquisition of any assets from Novell, the restructuring of Santa Cruz’s business, or Santa Cruz’s sale or transfer of assets to Caldera.


  


Novell Sends 3d Party Subpoena Re Santa Cruz and Caldera Deals | 346 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT here please
Authored by: jbb on Tuesday, April 18 2006 @ 02:24 AM EDT
Clicky links.

Some people have their account setup to not see anon posts
thus the OT thread and corrections thread should be started
by a non-anonymous user.

---
Anyone who has the power to make you believe absurdities has the power to make
you commit injustices.

[ Reply to This | # ]

Corrections here please
Authored by: jbb on Tuesday, April 18 2006 @ 02:26 AM EDT
... so they are easy for PJ to find.

---
Anyone who has the power to make you believe absurdities has the power to make
you commit injustices.

[ Reply to This | # ]

Novell Sends 3d Party Subpoena Re Santa Cruz and Caldera Deals
Authored by: Anonymous on Tuesday, April 18 2006 @ 02:31 AM EDT
Something still not clear to me: Could SCO not being properly Caldera's successor-in-interest be a problem for Novell as well as SCO? Like if it miraculously turned out SCO wasn't totally Caldera's successor, could that have side-effects Novell might not want? For example, is it possible that along with losing certain assets in the transfer, SCO also lost certain obligations-- for example, their obligations to Novell under the UL contracts or somesuch? Exactly what is it possible that a "successor in interest" slipup could wind up changing, and could some of these changes hurt Novell or would it just be so overwhelmingly bad for SCO that Novell wouldn't mind the fragments of their case that get taken out as collateral damage? Some clarification would be greatly appreciated.

And who is Mr. Jim Wruck again? If I understand correctly from reading this article it appears he's most likely an employee with this data storage company, and they're subpeonaing him to surrender copies of documents his storage company is keeping? Or at least I am to understand this is PJ's theory?

[ Reply to This | # ]

Novell Sends 3d Party Subpoena Re Santa Cruz and Caldera Deals
Authored by: Anonymous on Tuesday, April 18 2006 @ 02:31 AM EDT
Could it be that Novell wants to see if anyone else has seen a copy of that
amendment that only SCO was aware off? }8-)

[ Reply to This | # ]

Who is recall
Authored by: mwexler on Tuesday, April 18 2006 @ 02:52 AM EDT

According to this page PJ had the right Recall. Note the address is the same and the link is to the Recall Document Management company that PJ mentioned.

[ Reply to This | # ]

  • Who is recall - Authored by: Anonymous on Tuesday, April 18 2006 @ 12:57 PM EDT
Looks like Novell is out to force SCO
Authored by: PeteS on Tuesday, April 18 2006 @ 03:40 AM EDT
to prove just what it really got through the transactions

Novell -> Santa Cruz
Santa Cruz -> Caldera

What will be telling will be the documents detailing the Santa Cruz ->
Caldera transactions, imo. If there were no copyrights for Santa Cruz to sell,
(in SVRx, at least, as we believe, and as Novell contends) then either the
records will be silent on this, or perhaps will actually state that no
copyrights except for new code added by Santa Cruz are attached to the sale of
Unix assets (a killer for SCO).

Things are getting more interesting by the day

PeteS


---
Artificial Intelligence is no match for Natural Stupidity

[ Reply to This | # ]

Novell Sends 3d Party Subpoena Re Santa Cruz and Caldera Deals
Authored by: Anonymous on Tuesday, April 18 2006 @ 04:07 AM EDT
The key statement in the subpoena is material abandoned by Brobeck Phleger & Harrison and its former clients.

Brobeck Phleger was a high-profile top-tier Silicon Valley law firm that imploded in 2003. The partners and associates scattered, and all of Brobeck Phleger's clients acquired new representation. Before its demise, Brobeck Phleger was one of the small number of high-powered Silicon Valley law firms that represented many high-tech clients. Anything "abandoned by Brobeck Phleger" and now in Recall's possession is no longer privileged.

If Brobeck Phleger was counsel of record in any of the transactions that led to the formation of SCOX and their claim to own SVR3, the files with the workpapers of that transaction will make fascinating (and probably illuminating) reading.

[ Reply to This | # ]

If I were Recall, I would fight this subpoena.
Authored by: Anonymous on Tuesday, April 18 2006 @ 04:18 AM EDT
If I am a document storage company, the actual content of the documents is none
of my business. All I care about is that I am storing documents for somebody.
Knowing what the documents contain is an unfair burden on me. It would be much
easier for me to cough up all the documents owned by Caldera/Sco.

It's amusing to think that someone could fight a subpoena for being overly
narrow.

[ Reply to This | # ]

Agreement and Plan of Reorganisation - Caldera/Santa Cruz - 1 August 2000
Authored by: Brian S. on Tuesday, April 18 2006 @ 06:29 AM EDT

1.5 Closing Matters. Unless this Agreement has been terminated as provided in Section 8 below, the closing of the transactions contemplated by this Agreement (the "Closing") (i) will take place at the offices of Brobeck, Phleger & Harrison LLP at Two Embarcadero Place, 2200 Geng Road, Palo Alto, California 94303 on a date (the "Closing Date") and at a time to be mutually agreed upon by the parties, which date shall be as soon as practicable after the Caldera Stockholders Meeting and SCO Stockholders Meeting and, in any event, no later than the third business day after all conditions to Closing set forth herein shall have been satisfied or waived, unless another place, time and date is mutually selected by SCO and Caldera and (ii) will take place concurrently with the Effective Time.... Findlaw - Google Cache

Brian S.

[ Reply to This | # ]

Document Storage costs money...
Authored by: Anonymous on Tuesday, April 18 2006 @ 07:59 AM EDT
... who would be paying for 'abandoned stuff' to be stored..?
If I were the document company, I'd return (or burn) documents once the storage
fees stopped coming.

[ Reply to This | # ]

Your are missing the point here
Authored by: Anonymous on Tuesday, April 18 2006 @ 08:08 AM EDT
As PJ pointed out the lawyers for Novell are VERY good.

Novell could care less about the legal papers, they want the "asset
impairment analysis" and commentary which was done as part of the deal. If
they can show everyone KNEW what was going on then Daryl's "I am shocked, I
am absolutely shocked" act goes out the window and all of the bad faith
damages will hit SCO like a freight train.

And to serve them on the document storage company is brilliant, the papers
"have been give up to third party control" blowing much of privelege
out of the water.

[ Reply to This | # ]

Could Novell be digging for info on the APA ammendment #2?
Authored by: Reven on Tuesday, April 18 2006 @ 08:25 AM EDT
Something that has always struck me as odd is the statement Novell released when SCO found ammendment numner two to the asset purchase agreement:
To Novell's knowledge, this amendment is not present in Novell's files.
Something like that just doesn't happen without one side even knowing about it - especially not Novell. I could see some documents getting overlooked by SCOX since they probably don't have anyone working for them from Santa Cruz who actually negotiated the sale from Novell. But for Novell not to know about this has always struck me (and I think probably a lot of people) as fishy.

Companies like Recall are often used to store digital images of documents. They are the last resort if, say, your head office burns down with all your corporate documents. Novell isn't just after the textual contents of a document if they are going to Recall - they are after images of what the paper looked like. My thought is, perhaps ammendment #2 was something that was discussed, and maybe even drafted, but never actually closed. If Recall's version of those documents are unsigned, then SCOX could be in hot water.

Oh, I know, probably just so much wishful thinking, but I think it passed the first test, and that is nothing in the theory is outside the realms of possibility. And really, wouldn't it be nice?

---
Ex Turbo Modestum

[ Reply to This | # ]

Novell Sends 3d Party Subpoena Re Santa Cruz and Caldera Deals
Authored by: Anonymous on Tuesday, April 18 2006 @ 08:40 AM EDT
To: PJ and the group

I see great confusion here as to the names of the companies
and who is who company wise.

Could some one do either a flow chart or directory of all
the companies, not people, but companies involved in this.
Currently I believe it is over 100 and counting if one
includes all the financial, software, and legal firms with
no less than 3 or 4 being named Caldara. This confusion I
believe on the part of Caldara and The SCO Group I believe
is dileberate and is being used for improper transformation
of goods by the same mrthoid as a crook selling his
neighbor's car and getting away with it simply because they
both have the same last name.

[ Reply to This | # ]

The Trademark Ownership Paper Trail
Authored by: DaveJakeman on Tuesday, April 18 2006 @ 10:16 AM EDT
SCO's parentage is a very interesting area for Novell to investigate. Could it
turn out tSCOg are illegitimate?

If you look at the trademark assignment records at USPTO, you will see trademark
transfers occurring between different organisations, two separate transfers
occurring on the same day. An attempt to modify history?

Here's what tSCOg would like you to believe about their heritage, as derived
from the "SCO and tree design" trademark:

01 Aug, 2000: The Santa Cruz Operation, Inc. -> Caldera Holdings, Inc
11 Sep, 2000: Caldera Holdings, Inc -> Caldera, Inc.
25 Sep, 2000: Caldera, Inc. -> Caldera International, Inc.
16 May, 2003: Caldera International, Inc. -> The SCO Group, Inc.

The dates above are from the "Exec Dt" field of the assignment
records. However, the "Received" date field of same presents a
different story:

07 Jan, 2003: The Santa Cruz Operation, Inc. -> Caldera Holdings, Inc
07 Jan, 2003: Caldera Holdings, Inc -> Caldera, Inc.
15 May, 2003: Caldera, Inc. -> Caldera International, Inc.
12 Jun, 2003: Caldera International, Inc. -> The SCO Group, Inc.

There's History and Revised History - take your pick.

Let's look at the "CALDERA" trademark instead (received date):

06 Jul, 2000: Caldera, Inc. -> The Canopy Group, Inc.
28 Aug, 2000: The Canopy Group, Inc. -> Caldera Systems, Inc.
[quantum leap: Caldera Systems, Inc. -> Caldera, Inc. (with no assignment
record)]
13 Jan, 2003: Caldera, Inc. -> Caldera International, Inc.
12 Jun, 2003: Caldera International, Inc. -> The SCO Group, Inc.

So "CALDERA" was originally owned by Caldera, Inc. A few transfers
later, it was again owned by Caldera, Inc. And with a quantum leap for good
measure. The same Caldera, Inc? How odd does that look to you?

And for "CALDERA SYSTEMS" (received date):

06 Jul, 2000: Caldera, Inc. -> The Canopy Group, Inc.
28 Aug, 2000: The Canopy Group, Inc. -> Caldera Systems, Inc.
12 Jun, 2003: Caldera Systems, Inc. -> SCO Operations, Inc.

SCO Operations, Inc. Who they?

And for "UNIXWARE" (a dead one, by received date):

(missing date): Unix System Laboratories, Inc. -> Novell, Inc.
10 Aug, 1998: Novell, Inc. -> The Santa Cruz Operation, Inc.
07 Jan, 2003: The Santa Cruz Operation, Inc. -> Caldera Holdings, Inc.
07 Jan, 2003: Caldera Holdings, Inc. -> Caldera, Inc.
15 May, 2003: Caldera, Inc. -> Caldera International, Inc.

(There's another, recent "UNIXWARE" registration in the system, from
the X/Open Company, but it looks like they didn't submit the appropriate fee.)

The validity of these USPTO records is open to question, as there are plentiful
errors to be found amongst their data. But valid or not, one can probably take
it as read these are the paper trails tSCOg want the outside world to believe.
It will be very interesting to see if Novell manage to unearth a different
story. I'm convinced they will. If the story Novell digs up shows tSCOg are
not who they say they are, things will get very interesting indeed.

Also, by asking for documents that in a perfect world Novell *should* have
copies of, maybe they are addressing the document SCO pulled out of a hat - the
one Novell "hadn't seen before".

---
SCO: hunting for snarks in an ocean of sharks
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

[ Reply to This | # ]

Total Recall
Authored by: Anonymous on Tuesday, April 18 2006 @ 10:51 AM EDT
I think I understand what Novell is doing here. As we all know, Recall is a
company that specializes in implanted memories. If you can't afford a vacation
on Jupiter, have the memory of it implanted for a fraction of the cost. Novell
wants to see the patient logs that show Darl McBride purchasing the "I own
Unix" fantasy.

[ Reply to This | # ]

Could this expose Canopy?
Authored by: DMF on Tuesday, April 18 2006 @ 11:52 AM EDT
IF the transfers from Novell to oldSCO and from oldSCO to Caldera were legit,
then Novell's question of whether newSCO is the true successor-in-interest to
the Unix business involves all the corporate machinations once the business came
under the Canopy canopy. If the assets and obligations do not reside with
newSCO, then they must reside with some other Canopy entity.

The gorilla in the strategy room is that newSCO is just about busted. If Novell
wins, they get what? a piece of paper? But Canopy has real money.

[ Reply to This | # ]

Attorney-Client Privilege
Authored by: AllParadox on Tuesday, April 18 2006 @ 03:41 PM EDT
A number of earlier posts under this article have raised issues of privilege.
This is an appropriate question.

Let's analyze it.

In the courtroom, there are many privileges. Depending on the situation, some
are irrelevant, and some are automatically waived.

I assume from the context of the subpoena that we are talking only about
"attorney-client" privilege.

The purpose of "attorney-client" privilege is primarily two-fold: to
get very open and honest communication between the client and his attorney, and
also to force opponents in a lawsuit to do their own work without requiring the
client to disclose his strategies. For this discussion, I also assume that
there is no "work-product"/"trial strategy" issue here.

The privilege does not belong to the attorney. The privilege belongs to the
client, alone. If the client waives the privilege, a court may require the
attorney to disclose formerly privileged details.

An example is the criminal defendant who claims that but-for
-his-attorney's-malpractice in representing him, the defendant would have gone
free. This post-criminal-trial remedy has a pitfall: the convicted defendant
waives all his attorney-client privilege about the criminal charge. This is a
bad time for the court to learn that the defendant admitted the whole thing to
his lawyer.

Attorneys tend to work mainly in their offices, but they employ secretaries,
clerks, investigators, bookkeepers, accountants, document storage facilities,
couriers, and movers. The character of attorney-client privilege does not
depend upon the character or nature of the employment by the attorney. The
label of the employee does not matter.

As long as the privilege exists, the attorney confers it upon anyone he engages,
with the reasonable expectation of privacy.

Privilege continues past the death of the lawyer. It also continues past the
breakup of the client's law firm. This is because death of a lawyer, like the
breakup of the law firm, is irrelevant.

All the privilege belongs to the client. In most States, the documents and
document copies in attorney's files also belong to the client. The only things
in the client files that do not belong to the client are the attorney's personal
notes.

The proper procedure for a document storage company served with such a subpoena
is to promptly (*very* promptly) notify interested parties that there has been a
subpoena served, then leave it up to the parties to handle any objections and
claims of privilege. If I were an attorney for the storage company, I would
insist on courier-delivered notices, with signatures for receipt.

The value of serving the subpoena on the docuument storage company is that it
flushes out the real parties in interest - those who claim privilege.

The biggest problem is that it appears that the documents are being held for a
law firm in bankruptcy. This is very likely to irritate a bankruptcy judge.
Bankruptcy judges sort-of report to the Federal District judges for the local
district, in this case the Northern District of California. They do not report
to Judge Kimball. Because they are in different districts, the District of
Northern California bankruptcy judges are effectively on a par with Federal
District judges for Utah.

Bankruptcy judges are usually very jealous of their prerogatives, and do not
take kindly to folks messing about with estate assets, even those of clients of
bankrupt law firms.

IMHO, the bankruptcy judge in charge of the estate of the California law firm
has the power to find Judge Kimball in contempt of court, if Kimball tampers
with estate property without the prior consent of the bankruptcy judge.

Again, if I were an attorney for a storage company, where the items in question
were part of a bankrupt estate, and the storage company received such a
subpoena, I would immediately file in the bankruptcy court asking for advice.
This would admit that the bankruptcy court is the current owner of the documents
(in the sense of being a bailee or trustee), and give the court notice so that
the trustee-in-bankruptcy or the court could deal with the issue.

As for me, I am not impressed with this stunt by the Novell attorneys. IMHO, I
would have filed with the bankruptcy court first.

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

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

[ Reply to This | # ]

Tails I Win, Heads You Lose
Authored by: argee on Tuesday, April 18 2006 @ 04:35 PM EDT
I think I see where this is leading. It is looking now as
if the SCO vs IBM and SCO vs Novell cases may go south.
There are counterclaims galore.

So.... if SCO wins a case, IBM or Novell has to pay.
If SCO loses, then all of a sudden "...oh, SCO has no
money. All that stuff....it belongs to Canopy."

What Novell is trying to do here I think is to straighten
out who is what, who owns what, and who is responsible for
what. If SCO is not the successor, or has no assets that
are being hurt, then they have no standing to sue. By the
same token, if they have standing to sue, they have to
stand if they lose. Or something like that, IANAL.


---
--
argee

[ Reply to This | # ]
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