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Order from Feb. 24, 2006 Hearing in SCO v IBM
Thursday, April 27 2006 @ 06:56 AM EDT

The Order [PDF] by Judge Brooke Wells from the February 24, 2006 hearing is available now from Pacer. Of course, we know what happened, because she announced her decision from the bench, and we have the transcript of the hearing. This is the written order that she asked IBM to prepare. As I've mentioned, to the victor go the spoils, so to speak, and if you win a motion, generally you are asked to do the written order. Our thanks to mwexler for doing the plain text for us.

This was the hearing about two motions, SCO's motion for leave to take 30(b)6 depositions of Intel, the Open Group, and Oracle, which SCO lost flat out, and SCO's Motion to Compel -- the order says it's Docket number 592, and I have to tell you that one of the best things about discovery being over is that I don't have to struggle to keep track of all the SCO motions to compel any more, but I believe this was SCO's last motion to compel -- which SCO lost without prejudice to refile within 30 days, after it finished reviewing some IBM materials and pruned out of their motion all the blah blah blah. That's my translation of what the judge told them to do. However, instead the parties later stipulated to some discovery matters, one of them being what topics the parties could bring motions to compel about, and so all the shouting in SCO's discovery motion to compel ended up quietly fading away.

It's kind of fun to compare the transcript of the hearing with the final order. Here's what Judge Wells ordered from the bench regarding the motion to compel discovery, and notice how the two attorneys, thinking on their feet, try to get the details the way they are most beneficial to their respective sides:

THE COURT: I'm going to rule now on the motion to compel. And I'm going to deny SCO's motion to compel at this time. I'm going to deny that without prejudice. And I'm going to allow you 30 days in which to file a renewed motion. Should you file such a renewed motion, however, it must clearly and narrowly define those areas which are not addressed in the documents that you've been presented and which cannot be resolved through some additional meet-and-confer requirements. All right?

MR. SHAUGHNESSY: So then will the motion then be limited to this production in January and the deficiencies --

THE COURT: Yes. Yes. Are there any other questions that need to be posed or should be posed and answers given, or is that clear?

MR. SHAUGHNESSY: I think that's clear. Would you like me to prepare an order on that, as well?

THE COURT: Yes. Yes.

MR. JAMES: I'm sorry, Your Honor. If you don't mind, I want to make sure that I'm absolutely clear because I don't want to have any quarreling, I suppose, with opposing counsel about issues that may come up as far as relating to the January production. And that is, there are a number of issues that we have already identified in our motion but that I wasn't able to clearly articulate whether they're satisfied or not because I haven't been able to -- you know, we haven't completed our review. We'll be able to raise those issues, won't we, if we can narrowly address them?

THE COURT: Yes.

MR. JAMES: Okay. Thank you.

THE COURT: Is that understood?

MR. SHAUGHNESSY: So then it's whatever items that are in the motion, the currently pending motion, if any?

THE COURT: Yes.

MR. SHAUGHNESSY: And then deficiencies in the January production?

MR. JAMES: That's my understanding.

THE COURT: Yes. And that's what I intended.

MR. SHAUGHNESSY: And I expect the Court would require the parties to meet and confer, obviously before that motion is filed.

THE COURT: Yes. I'm going to require that.

As you can see in the written order, those details appear. Would they have, if the lawyers had not spoken up? Probably not. The need to meet and confer before filing a motion is normal, but IBM made sure it was specifically ordered. That tells me that SCO hasn't been doing that, and if you look at the order on the motion regarding deposing third parties, that is one of the things the Court said SCO failed to do. Here's the transcript, so you can compare:

THE COURT: Counsel, I'm prepared to rule in this matter. Looking at this case individually on its particular set of facts, I find that the subpoenas on January 26th gave inadequate notice and also gave inadequate time for the deponents to prepare.

I find that the subpoenas of January 12th were defective both in substance and service and would have constituted, even if not technically defective, would have also likely provided inadequate notice in time to prepare.

I also note and find that the parties failed to comply -- or SCO failed to comply with the meet-and-confer requirement of the Northern District of California.

And finally, I find and will deny the motion of SCO to allow these additional depositions, finding that the requirements of the October 12th order were clear and could not -- or were not the subject of unilateral decisions to violate. It was clear. It said, to the extent that such depositions could not be completed within that period of time, they must be foregone.

And SCO should have noticed them up earlier and at minimum overseen the preparation of those subpoenas such that the argument would be that they were effective on January 12th. Nonetheless, they weren't.

So that would be the ruling. And, Mr. Shaughnessy, if you'll prepare an order as to that decision.

MR. SHAUGHNESSY: I will, Your Honor. Thank you.

If you compare the order with the hearing transcript, you'll notice that one part of her decision from the bench didn't make it into the written order: "...I find that the subpoenas on January 26th gave inadequate notice and also gave inadequate time for the deponents to prepare." I don't know why it isn't in there. I believe it should be. Perhaps there will be a corrected Order in time. Things like that happen. It's not a big deal, really, because the transcript is there, so the record is clear, but it's better to have it in the order, so the Pacer record is clear. Since the written order states that the notice on January 12th wasn't early enough, a subpoena on the 26th obviously wouldn't be more timely. So it's a mistake without consequence, probably. But for folks coming along years from now, who don't have the transcript, since hearing transcripts are not filed on Pacer, it could be confusing if not corrected.

I can't help but smile to myself that it probably reflects the IBM confidence that of all the orders in this litigation, this is the one least likely to be appealed by SCO, ever, ever, ever. It's been embarrassing enough already, and in fact, this order is a rebuke.

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.

____________________________

ORDER

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

____________________________

On February 24, 2005, Plaintiff/Counterclaim Defendant The SCO Group, Inc.'s ("SCO) Motion for Leave to Take Certain Prospective Depositions (Docket No. 607) and Motion to Compel (Docket No. 592) came on for hearing before this Court. Brent Hatch and Mark James appeared for SCO. Todd Shaughnessy and Curtis Drake appeared for Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM"). Based upon the memoranda, exhibits, and the arguments of counsel, and good cause appearing, the Court hereby orders as follows:

A. SCO's Motion for Leave to Take Certain Prospective Depositions (Docket No. 607):

With regard to SCO's Motion for Leave to Take Certain Prospective Depositions: the Court finds as follows:

1. The subpoenas that SCO served on Intel, Oracle, and The Open Group on or about January 12, 2006, were defective both in substance and service and even if not technically defective would have also likely provided inadequate notice in time to prepare for those depositions;

2. SCO failed to comply with the meet-and-confer requirement of the local rules of the Federal District Court for the Northern District of California, the court from which two of the subpoenas were issued;

3. The requirements of the Court's October 12, 2005, Order were clear and not subject to unilateral decisions to violate;

4. SCO should have noticed these depositions earlier and, at a minimum, overseen the preparation of those subpoenas such that the argument would be they were effective on January 12, 2006, which they were not.

Accordingly, it is HEREBY ORDERED that SCO's motion is DENIED.

B. SCO's Motion to Compel (Docket No. 592):

With regard to SCO's Motion Compel, Docket No. 592, it is HEREBY ORDERED that SCO's motion is DENIED, WITHOUT PREJUDICE. SCO is granted leave to file a new motion to compel no later than March 26, 2006. Any such motion shall:

1. Be filed only after meeting and conferring with IBM in good faith;

2. Be limited to (a) deficiencies in the documents produced by IBM during the latter half of January 2006, which SCO contends it had not had an adequate opportunity to review, and (b) those items identified in the Motion to Compel (Docket No. 592) which SCO determines remain outstanding after review of IBM's January production; and

2

3. Provide a much more detailed and concise statement of what SCO seeks to compel from IBM.

DATED this 26th day of April, 2006.

BY THE COURT

___[Signature]____
Brooke C. Wells
U.S. Magistrate Judge

APPROVED AS TO FORM:

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

By ____/s/ Mark F. James____
Counsel for Plaintiff/Counterclaim-Defendant

3

CERTIFICATE OF SERVICE

I hereby certify that on the 25th day of April, 2006, 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
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Todd M. Shaughnessy

4

  


Order from Feb. 24, 2006 Hearing in SCO v IBM | 164 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: Kevin on Thursday, April 27 2006 @ 07:06 AM EDT
I refuse to succumb to the temptation of putting an intentionally misspelt word
in this message.

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Off topic
Authored by: Kevin on Thursday, April 27 2006 @ 07:08 AM EDT
Off-topic items here.

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

I just LOVE Mutually-exclusive requirements!
Authored by: Anonymous on Thursday, April 27 2006 @ 07:13 AM EDT
"Provide a much more detailed and concise statement" Given that SCO has been neither in most of their filings, watching them try to be both should be quite entertaining...

[ Reply to This | # ]

Order from Feb. 24, 2006 Hearing in SCO v IBM
Authored by: mikeprotts on Thursday, April 27 2006 @ 07:15 AM EDT
A couple of points:
> 1. Be filed only after meeting and conferring with IBM in good faith;

The 'good faith' part should of course not be needed, but in this case ...

> 2. Be limited to (a) deficiencies in the documents produced by IBM during
the latter half of January 2006, which SCO contends it had not had an adequate
opportunity to review, and (b) those items identified in the Motion to Compel
(Docket No. 592) which SCO determines remain outstanding after review of IBM's
January production; and

I can see wriggle room here - 'there is a letter e in the first paragraph, so we
need all documents with the letter e in them, including (but not limited to) any
documents ever produced any where that have anything similar to any letter. If
these are hieroglyphics on a pyramid, then we would like 2 millenium extension
to discovery ...'

> 3. Provide a much more detailed and concise statement of what SCO seeks to
compel from IBM.

And here I can see a motion to file an 'overlength concise statement'

Cheers
Mike

[ Reply to This | # ]

Order from Feb. 24, 2006, but written only now?
Authored by: Anonymous on Thursday, April 27 2006 @ 07:30 AM EDT
I guess I am confused. Is this transcribed order, dated April 26th the one
related
to the Feb. hearing? Why such a long time to write such a short document?

[ Reply to This | # ]

Isn't IBM's rebuttal ...
Authored by: rsteinmetz70112 on Thursday, April 27 2006 @ 08:48 AM EDT
... to the Marc Rochkind declaration due today?

I wonder how long it will take to show up on PACER?

---
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 | # ]

Law School 101
Authored by: gumnos on Thursday, April 27 2006 @ 09:18 AM EDT
"The requirements of the Court's October 12, 2005, Order were clear and not subject to unilateral decisions to violate"

My first thought on this was "well, duh!". Isn't it some requirement for passing Law School 101 that you know court orders are "not subject to unilateral decisions to violate"?!

Dumbfounding that SCO has to be told this. It also comes as a funny barb (from IBM's penning of the order), with overtones of "we're dealing with morons here".

It reminds me of SCO's blunder a while back of not shepardizing one of their supporting cases. I was thumbing through a book titled something like How and When to be your own Lawyer, and within the first 50 pages, they soundly chastened the reader into ensuring that they shepardize every supporting case, all the way through. Maybe SCO's lawyers need to go back to Law School 101.

-gumnos



[ Reply to This | # ]

"LIKELY"
Authored by: Anonymous on Thursday, April 27 2006 @ 09:30 AM EDT
From the transcript - The Court: "...would have also likely provided inadequate notice in time to prepare."

From the Order: "...would have also likely provided inadequate notice in time to prepare for those depositions..."

This is mostly a 'just curious' kinda Q.
I am wondering why the court didn't make a more declarative statement.
Why the word likely was used - it is a more powerful (and unappealable) sentence without "likely" in there.

[ Reply to This | # ]

  • "LIKELY" - Authored by: Anonymous on Thursday, April 27 2006 @ 10:32 AM EDT
  • "LIKELY" - Authored by: rsteinmetz70112 on Thursday, April 27 2006 @ 11:19 AM EDT
March 26 Has Come and Gone
Authored by: llanitedave on Thursday, April 27 2006 @ 10:35 AM EDT
Did SCO file a new, revised motion, or is it truly over?

---
Of course we need to communicate -- that goes without saying!

[ Reply to This | # ]

Sharp and Harsh words for "The SCO Group"
Authored by: AllParadox on Thursday, April 27 2006 @ 11:38 AM EDT
"SCO failed to comply with the meet-and-confer requirement of the local
rules"

Federal judges are generally more civil than State Court judges. It is not the
people, it is the institutions.

Federal Magistrate judges, being inferior to Federal District judges, are
generally more civil than Federal District judges.

Many, many errors are committed by attorneys. The great majority are minimal,
and have no effect on any outcomes. Judges understand that the purpose of the
process is to resolve disputes by the parties, not to impose irrelevant rules on
very mortal lawyers.

Intentionally embarrassing an attorney this way is quite rare.

Note that Judge Wells used the word "clear". Lawyers almost never use
this word. It is too often and too easily disputed. Use of this word, alone,
is a mild rebuke.

The order requires attorneys for "The SCO Group" to confer with the
IBM attorneys. This goes without saying. That the Court felt compelled to
include it in the order is a sharp rebuke.

Generally, those who receive such criticism have, by conduct, repeatedly begged
for it.

Criticism like this places the party and his attorney in a bad position. Once a
judge has had to take the step of a specific and open rebuke, they, the judge,
are much, much more willing to do it again. As I noted above, attorneys are
mortal and make mistakes. After a judge starts criticising you, even fanatical
attention to following the rules may not be enough, because you will still make
errors.

The only way out, usually, is to fanatically follow the rules, and then lull the
other side into making an even worse error. After that happens, judges stop
caring. This is very common in Divorce proceedings.

Lulling the IBM team at this stage will be next-to-impossible. From here on
out, this lawsuit is a chess game, and "The SCO Group" is down by
several important pieces, with a very bad position.

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

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

[ Reply to This | # ]

It occurs to me, Judge Wells might see a pattern
Authored by: Anonymous on Thursday, April 27 2006 @ 12:31 PM EDT
If you compare the last two hearings, there is a strong parallel:

In SCO's motion to compel: SCO essentially said "We need more stuff from
IBM, lots more stuff, but we can't specifically tell you what exact stuff it
is."

In SCO's disclosures of allegedly infringing material: SCO essentially said
"We think there's infringing code from IBM, lots of infringing code, but we
can't specifically tell you what exact code it is."


Seems to me, there's an obvious parrallel between the two. I'd be surprised if
Wells doesn't see, even if she doesn't mention in her orders.


Quatermass
IANAL IMHO etc

[ Reply to This | # ]
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