Here is Exhibit 2 [PDF], as text, attached to
SCO's Memorandum in Opposition to Novell's Motion to Stay Claims Raising Issues Subject to Arbitration. SCO attached it in order to demonstrate to the court that Novell has been deeply involved in discovery for some time. It's part of SCO's argument that it's too late, in its view, for Novell to seek arbitration.
From our standpoint, though, it's just pure gold, because we get to see some interrogatories and requests for documents that we otherwise would never get to see. And it's very interesting to notice what Novell's attorneys are seeking.
For example, take this request: REQUEST FOR PRODUCTION NO. 36:
Please produce all documents concerning SCO's general ledger transactions (and supporting documentation) for SCO's intangible assets for the period January 1, 1995 to present.
I think Novell is trying to paint SCO into a corner here. SCO's position is that its predecessor in interest, oldSCO, got all the UNIX copyrights in the asset transfer from Novell. Novell is saying that if that is true, there should be some paperwork to memorialize it. Show us how you valued those assets at the time, in other words. If your predecessor in interest really got those assets, where are they in the books? Of course, the attorneys have certainly already looked at Santa Cruz/Tarantella's SEC filings, I'm sure. I have, and I saw nothing to memorialize the copyrights moving from one to the other. Perhaps Novell's attorneys did the same, and they're asking SCO for paperwork to back up their claims. Novell also wants to see everything there is from Jim Wilt,
Steve Sabbath,
Ed Chatlos (see also this article), and
William Broderick, including whatever they have in their files about the 1995 Asset Purchase Agreement, all drafts of their declarations, etc. For example: REQUEST FOR PRODUCTION NO. 2:
Please produce all documents concerning the Declaration of Jim Wilt, executed November 23, 2004 and filed in the IBM Litigation, including but not limited to, the declaration and any drafts thereof; all communications between SCO and Mr. Wilt concerning this declaration and any drafts thereof; any depositions by Mr. Wilt in the IBM Litigation, and accompanying exhibits or other documents used in these depositions; all statements and communications by Mr. Wilt concerning the APA; and Mr. Wilt's files concerning the APA. The first three provided declarations in support of SCO's opposition to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims, all suggesting they thought the copyrights were part of the deal, and Broderick showed up supporting SCO's doomed opposition to IBM's Motion to Compel Production of Documents on SCO's Privilege Log. But you'll probably remember him best from his work in the DaimlerChrysler case, where his declaration was to the effect that the license required certification of Linux as well as Unix, which the court did not accept, and threw the case out, except for one question that doesn't matter to anyone, without skipping a beat. The DaimlerChrysler court accepted his representation that he'd been continuously employed by the successive companies that
"owned the Unix business and technology." His declaration in IBM was to the same effect but when IBM deposed him, he admitted he actually had not been continuously employed, and Judge Brooke Wells so ruled, tactfully writing in her order, "The declaration of Mr. Broderick is insufficient, by itself, to establish continuity of the business, and Mr. Broderick's declaration is contrary to statements made by him during his deposition". Here, Novell says it would like to see all the drafts for all these declarations. And given the history, can you blame Novell? No doubt they have some curiosity about what the first drafts looked like, not to mention any sticky notes. Oh, and everything these four have in their files.
You will note, once again, the extremely detailed nature of these requests for documents. It appears to be the Morrison & Foerster style to be detail-oriented. Notice, for example, how carefully they ask for documents that might have sticky-style notes. They'd like the documents with the notes, unless they are provided copies, and then they want them copied with and without the notes: A "document" also shall include all attachments and enclosures, all drafts or copies that differ in any respect from the original, and all handwritten notations or notes attached on the front or back via adhesive or the like. (If copies are made of documents with notes attached on the front or back via adhesive, they shall be produced both with and without the attached adhesive notes.) You don't see that every day. But it's more than a style. Novell knows a lot of the water that flowed under this particular bridge, and it no doubt helps the lawyers to be told precisely what to go after. For example, take a look at this request: REQUEST FOR PRODUCTION NO. 25:
Please produce all SCO Board of Director meeting minutes and presentation materials concerning the APA, including, but not limited to, all communications by and between Board members or other attendees relating to these meetings. Remember the Novell 1995 Board of Director minutes from a meeting the day before the Asset Purchase Agreement was signed, that showed that Novell's intention was to retain the copyrights? With that knowledge, Novell asks SCO for its Board of Director minutes: REQUEST FOR PRODUCTION NO. 34:
Please produce all SCO Board of Director meeting minutes and presentation materials concerning UNIX or UnixWare copyrights, including, but not limited to, all communications by and between Board members or other attendees relating to the subject. Novell is saying, "We have proof. Do you?" We'll see if newSCO can produce those minutes, since they were not there and didn't have a thing to do with the agreement. If they had bought the entire oldSCO company, maybe they'd get the corporate kits, but as it was, they only bought two of oldSCO's units. So I really wonder what they will be able to dig up in the way of Board of Director minutes. Novell also asks about the Merged Product mentioned in the APA. What did SCO ever do to complete it? And finally, notably, Novell makes sure to ask for all documents concerning any transfer of UNIX or UnixWare assets from oldSCO to any of Caldera's personas, whether to Caldera, Inc., Caldera Systems, Inc., or Caldera International Inc. I don't know yet if this is another example of extreme attention to detail, or if Novell's nose is to the ground, sniffing on a trail. In any case, there is no stone unturned, and for sure, you don't want to be deposed by this firm. One can't help but wonder, reading these discovery demands, at what point SCO's lawyers will advise their client that there is little if any hope. The documents also reference SCO's October 31, 2004 Form 10-K; its
10-K for fiscal year ended October 31, 2003, and
SCO's Answer to Novell's Counterclaims. I've linked to them, but keep in mind you can always find all the legal documents on the Novell Timeline page or the Legal Docs page, the SEC filings on our SCO Financials page, and contracts on the Contracts page. If all else fails, try the chronological Archives, or the Search engine. That is how I find it all. *****************************
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[Address]
[Phone]
[Fax]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[Address]
[Phone]
[Fax]
Attorneys for Defendant & Counterclaim-Plaintiff Novell, Inc.
_________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
|
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff & Counterclaim-
Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant & Counterclaim-
Plaintiff.
|
NOVELL, INC.'S FIRST SET OF
REQUESTS FOR PRODUCTION TO
THE SCO GROUP, INC.
Case No. 2:04CV00139
Judge Dale A. Kimball
|
TO THE SCO GROUP, INC. AND ITS COUNSEL OF RECORD:
Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Defendant and Counter-Plaintiff Novell, Inc. ("Novell") hereby requests that Plaintiff and Counter-Defendant The SCO Group, Inc. ("SCO") produce the identified documents and materials for copying and inspection
1
at the offices of Morrison & Foerster LLP, [address] within thirty (30) days after the service of this request.
DEFINITIONS
As used herein, the following terms have the following meanings:
1. "SCO" means Plaintiff and Counter-Defendant The SCO Group, Inc. and (i) its present and former directors, officers, employees, agents, representatives, accountants, investigators, consultants, attorneys, and predecessors and successors in interest, and any parent, subsidiary, and affiliated entities; (ii) any other person or entity acting on its behalf or on whose behalf it acted or has acted; (iii) any other person or entity otherwise subject to its control, or which controls or controlled it, or with which it was or is under common control; and (iv) any person or entity otherwise in the corporate family of The SCO Group, Inc., including any predecessor or successor in interest or any parent, subsidiary, or affiliated entity, no matter how far removed from The SCO Group, Inc.
2. "You" and "your" refers to SCO, as defined immediately above.
3. "Person" means any individual, firm, entity, association, partnership, joint venture, organization, or entity.
4. "APA" means the Asset Purchase Agreement By and Between The Santa Cruz Operation, Inc. and Novell, Inc., dated as of September 19, 1995, and any amendments and schedules thereto.
5. The "IBM Litigation" means The SCO Group, Inc. v. International Business Machines Corp., Case No. 03-CV-0294, United States District Court for the District of Utah.
6. "Documents" or "document" 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. "Document" shall include materials stored electronically or electromagnetically
2
(such as electronic mail or any other electronic files) and all drafts or non-final versions, alterations, modifications, and amendments to any of the foregoing. A "document" also shall include all attachments and enclosures, all drafts or copies that differ in any respect from the original, and all handwritten notations or notes attached on the front or back via adhesive or the like. (If copies are made of documents with notes attached on the front or back via adhesive, they shall be produced both with and without the attached adhesive notes.)
7. "Communication" means any transmission, conveyance, or exchange of information, whether by written, oral, or other means. It includes, without limitation: any meeting, discussion, contact, conference, telephone conversation, letter, e-mail transmission, Internet posting, memorandum, document, message, telegram, telefax, mailgram, billing statement, any electronic recording, or other form of written or oral information transmission or exchange.
8. "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.
9. "Any" or "each" should be understood to include and encompass "all"; "or" should be understood to include and encompass "and"; and "and" should be understood to include and encompass "or".
10. All nouns, whether single or plural herein, should be construed in both the singular and plural form.
DOCUMENT REQUESTS
REQUEST FOR PRODUCTION NO. 1:
Please produce the following documents from the IBM Litigation:
(a) All SCO document productions concerning claims and defenses at issue in this case;
(b) SCO's production log;
3
(c) The deposition of all SCO witnesses deposed on subjects concerning claims and defenses at issue in this case;
(d) The deposition of all former Novell employees deposed on subjects concerning claims and defenses at issue in this case;
(e) All exhibits or other documents used in the depositions in (c) and (d) above;
(f) All under-seal papers filed by SCO in opposition to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims (items 346-350 on the official Pacer docket);
(g) SCO's privilege log filed on March 18, 2005 (items 418 on the official Pacer docket);
(h) SCO's "Interim Disclosure of Material Misused by IBM" filed on October 28, 2005 (items 544-545 of the official Pacer docket);
(i) SCO's written responses to IBM's Requests for Production;
(j) SCO's written responses to IBM's Interrogatories; and
(k) SCO's written responses to IBM's Requests for Admission.
REQUEST FOR PRODUCTION NO. 2:
Please produce all documents concerning the Declaration of Jim Wilt, executed November 23, 2004 and filed in the IBM Litigation, including but not limited to, the declaration and any drafts thereof; all communications between SCO and Mr. Wilt concerning this declaration and any drafts thereof; any depositions by Mr. Wilt in the IBM Litigation, and accompanying exhibits or other documents used in these depositions; all statements and communications by Mr. Wilt concerning the APA; and Mr. Wilt's files concerning the APA.
REQUEST FOR PRODUCTION NO. 3:
Please produce all documents concerning the Declaration of Steven Sabbath, executed November 19, 2004 and filed in the IBM Litigation, including but not limited to, the declaration and any drafts thereof; all communications between SCO and Mr. Sabbath concerning the
4
declaration and any drafts thereof; any depositions by Mr. Sabbath in the IBM Litigation, and accompanying exhibits or other documents used in these depositions; all statements and communications by Mr. Sabbath concerning the APA; and Mr. Sabbath's files concerning the APA.
REQUEST FOR PRODUCTION NO. 4:
Please produce all documents concerning the Declaration of Ed Chatlos, executed October 1, 2004 and filed in the IBM Litigation and in this case, including but not limited to, the declaration and any drafts thereof; all communications between SCO and Mr. Chatlos concerning this declaration and any drafts thereof; any depositions by Mr. Chatlos in the IBM Litigation, and accompanying exhibits or other documents used in these depositions; all statements and communications by Mr. Chatlos concerning the APA; and Mr. Chatlos's files concerning the APA.
REQUEST FOR PRODUCTION NO. 5:
Please produce all documents concerning the Declaration of William Broderick, executed October 21, 2005 and filed in the IBM Litigation, including but not limited to, the declaration and any drafts thereof; all communications between SCO and Mr. Broderick concerning this declaration and any drafts thereof; any depositions by Mr. Broderick in the IBM Litigation, and accompanying exhibits or other documents used in these depositions; all statements and communications by Mr. Broderick concerning the APA and/or the transfer of UNIX assets; and Mr. Broderick's files concerning the APA and/or the transfer of UNIX assets.
DATED: December 6, 2005
MORRISON & FOERSTER LLP
By: ___[signature]____
Kenneth W. Brakebill
5
6
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[Address]
[Phone]
[Fax]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[Address]
[Phone]
[Fax]
Attorneys for Defendant & Counterclaim-Plaintiff Novell, Inc.
____________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
|
THE SCO GROUP, INC., a Delaware corporation,
Plaintiff & Counter-Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant & Counter-Plaintiff.
|
NOVELL, INC.'S FIRST SET OF
INTERROGATORIES TO THE SCO
GROUP, INC.
Case No. 2:04CV00139
Judge Dale A. Kimball
|
TO THE SCO GROUP, INC. AND ITS COUNSEL OF RECORD:
Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Defendant and Counter-Plaintiff Novell, Inc. ("Novell") hereby requests that Plaintiff and Counter-Defendant The SCO Group, Inc. ("SCO") respond to the following interrogatories within thirty (30) days after the service of this request.
7
DEFINITIONS
As used herein, the following terms have the following meanings:
1. "SCO" means Plaintiff and Counter-Defendant The SCO Group, Inc. and (i) its present and former directors, officers, employees, agents, representatives, accountants, investigators, consultants, attorneys, and predecessors and successors in interest, and any parent, subsidiary, and affiliated entities; (ii) any other person or entity acting on its behalf or on whose behalf it acted or has acted; (iii) any other person or entity otherwise subject to its control, or which controls or controlled it, or with which it was or is under common control; and (iv) any person or entity otherwise in the corporate family of The SCO Group, Inc., including any predecessor or successor in interest or any parent, subsidiary, or affiliated entity, no matter how far removed from The SCO Group, Inc.
2. "You" and "your" refers to SCO, as defined immediately above.
3. "APA" means the Asset Purchase Agreement By and Between The Santa Cruz Operation, Inc. and Novell, Inc., dated as of September 19, 1995, and any amendments and schedules thereto.
4. "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.
5. "Any" or "each" should be understood to include and encompass "all"; "or" should be understood to include and encompass "and"; and "and" should be understood to include and encompass "or".
6. "UNIX License" refers to: (i) any license or agreement concerning UNIX or UnixWare entered into, renewed, or amended by SCO since the execution of the APA on September 19, 1995; (ii) any of SCO's licenses or agreements with Sun Microsytems, Inc. or Microsoft Corporation, referred to in Paragraphs 50-51 or 59 of SCO's Answer to Novell's
8
Counterclaims; (iii) any of SCO's licenses or agreements resulting from or concerning SCO's "SCOsource Licensing," the "SCO Intellectual Property License Program," the "SCO IP Protection Program," or the "Linux End-User Intellectual Property License Initiative" (see, e.g., SCO Oct. 31, 2004 Form 10-K; http://www.caldera.com/scosource/); (iv) SCO's licenses or agreements with IBM and Sequent, referred to in Paragraphs 85 and 86 of SCO's Answer to Novell's Counterclaims; and (v) any license or agreement that conveys or concerns any right to these items listed in Section VI or Schedule 1.1(a) of the APA or Attachment A to APA Amendment No. 1.
7. All nouns, whether single or plural herein, should be construed in both the singular and plural form.
INTERROGATORIES
INTERROGATORY NO. 1:
Please identify all UNIX Licenses, including on a license-by-license basis the identities of each party to the UNIX License in question, the title (or other identifying information) and execution date of the UNIX License; the amount of SCO revenue attributable to each UNIX License under each UNIX License, and information sufficient to locate the UNIX Licenses in SCO''s document production (e.g., the Bates range or filename).
INTERROGATORY NO. 2:
If you contend that any of the UNIX Licenses identified in response to Interrogatory No. 1 are not "SVRX Licenses" under sections 1.2 or 4.16 of the APA or that the revenues therefrom are not "SVRX Royalties" under section 1.2 or 4.16 of the APA, please state in detail all bases and evidence in support of that contention, on a license-by-license basis. INTERROGATORY NO. 3:
State all bases and evidence in support of your contention in paragraphs 74 and 90 of your Answer to Novell's Counterclaims that the term "SVRX Licenses" as used in the APA
9
refers only to "then-existing SVRX licenses for their distribution of binary-code versions of System V products pursuant to sublicensing agreements."
DATED: December 30, 2005
MORRISON & FOERSTER LLP
By: ____[signature]____/ME
Kenneth W. Brakebill
10
11
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[Address]
[Phone]
[Fax]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[Address]
[Phone]
[Fax]
Attorneys for Defendant & Counterclaim-Plaintiff Novell, Inc.
_____________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
|
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff & Counter-Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant & Counter-Plaintiff.
|
NOVELL, INC.'S SECOND SET OF
REQUESTS FOR PRODUCTION TO
THE SCO GROUP, INC.
Case No. 2:04CV00139
Judge Dale A. Kimball
|
TO THE SCO GROUP, INC. AND ITS COUNSEL OF RECORD:
Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Defendant and Counter-Plaintiff Novell, Inc. ("Novell") hereby requests that Plaintiff and Counter-Defendant The SCO Group, Inc. ("SCO") produce the identified documents and materials for copying and inspection
at the offices of Morrison & Foerster LLP, [address] within thirty (30) days after the service of this request.
12
DEFINITIONS
As used herein, the following terms have the following meanings:
1. "SCO" means Plaintiff and Counter-Defendant The SCO Group, Inc. and (i) its present and former directors, officers, employees, agents, representatives, accountants, investigators, consultants, attorneys, and predecessors and successors in interest, and any parent, subsidiary, and affiliated entities; (ii) any other person or entity acting on its behalf or on whose behalf it acted or has acted; (iii) any other person or entity otherwise subject to its control, or which controls or controlled it, or with which it was or is under common control; and (iv) any person or entity otherwise in the corporate family of The SCO Group, Inc., including any predecessor or successor in interest or any parent, subsidiary, or affiliated entity, no matter how far removed from The SCO Group, Inc.
2. "You" and "your" refers to SCO, as defined immediately above.
3. "Person" means any individual, firm, entity, association, partnership, joint venture, organization, or entity.
4. "APA" means the Asset Purchase Agreement By and Between The Santa Cruz Operation, Inc. and Novell, Inc., dated as of September 19, 1995, and any amendments and schedules thereto.
5. The "IBM Litigation" means The SCO Group, Inc. v. International Business Machines Corp., Case No. 03-CV-0294, United States District Court for the District of Utah.
6. "Documents" or "document" 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. "Document" shall include materials stored electronically or electromagnetically
(such as electronic mail or any other electronic files) and all drafts or non-final versions, alterations, modifications, and amendments to any of the foregoing. A "document" also shall
13
include all attachments and enclosures, all drafts or copies that differ in any respect from the original, and all handwritten notations or notes attached on the front or back via adhesive or the like. (If copies are made of documents with notes attached on the front or back via adhesive, they shall be produced both with and without the attached adhesive notes.)
7. "Communication" means any transmission, conveyance, or exchange of information, whether by written, oral, or other means. It includes, without limitation: any meeting, discussion, contact, conference, telephone conversation, letter, e-mail transmission, Internet posting, memorandum, document, message, telegram, telefax, mailgram, billing statement, any electronic recording, or othe form of written or oral information transmission or exchange.
8. "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.
9. "Any" or "each" should be understood to include and encompass "all"; "or" should be understood to include and encompass "and"; and "and" should be understood to include and encompass "or".
10. All nouns, whether single or plural herein, should be construed in both the singular and plural form.
DOCUMENT REQUESTS
REQUEST FOR PRODUCTION NO. 6:
Please produce the agreement SCO and Sun Microsystems, Inc. ("Sun"), referenced in your Answer to Paragraphs 50-51 of Novell's Counterclaims, and any other agreements between SCO and Sun concerning UNIX or UnixWare.
REQUEST FOR PRODUCTION NO. 7:
Please produce all documents concerning the agreements between SCO and Sun referenced in Request for Production No. 6, including, but not limited to, your communications
14
and
negotiations with Sun relating to these agreements and SCO's revenue attributable to each agreement.
REQUEST FOR PRODUCTION NO. 8:
Please produce the agreement between SCO and Microsoft Corporation, referenced in your Answer to Paragraphs 50-51 of Novell's Counterclaims, and any other agreements between SCO and Microsoft concerning UNIX or UnixWare.
REQUEST FOR PRODUCTION NO. 9:
Please produce all documents the agreements between SCO and Microsoft referenced in Request for Production No. 8, including but not limited to, your communications and negotiations with Microsoft relating to these agreements and SCO's revenue attributable to each agreement.
REQUEST FOR PRODUCTION NO. 10:
Please produce the intellectual property agreements "SCO has negotiated and continues to negotiate" with Linux end-users, referenced in your Answer to Paragraph 59 of Novell's Counterclaims, and any other agreements between SCO and Linux end-users resulting from SCO's Linux End-User Intellectual Property License Initiative, referenced in SCO's Form 10-K for the fiscal year ended October 31, 2003.
REQUEST FOR PRODUCTION NO. 11:
Please produce all documents concerning the agreements between SCO and the Linux end-users referenced in Request for Production No. 10, including, but not limited to, your communications and negotiations with Linux end-users relating to these agreements and SCO's revenue attributable to each agreement.
REQUEST FOR PRODUCTION NO. 12:
Please produce all agreements between SCO and UNIX vendors resulting from SCO's SCOsource business, as referenced in SCO's Form 10-K for the fiscal year ended October 31, 2004.
15
REQUEST FOR PRODUCTION NO. 13:
Please produce all documents concerning the agreements between SCO and UNIX vendors referenced in Request for Production No. 12, including but not limited to, your communications and negotiations with UNIX vendors relating to these agreements and SCO's revenue attributable to each agreement.
REQUEST FOR PRODUCTION NO. 14:
Please produce all documents concerning SCO's intellectual property licensing programs referred to as "SCOsource Licensing," the "SCO Intellectual Property License Program," and the SCO IP Protection Program" (see, e.g., http://www.caldera.com/scosource/), including but not limited to, all documents concerning any license or agreement considered or made thereunder, the negotiations relating to each license or agreement, and all SCO revenue attributable to each license or agreement.
REQUEST FOR PRODUCTION NO. 15:
Please produce all documents concerning your denial in paragraphs 78 and 91 of your Answer to Novell's Counterclaims that SCO's agreements with Sun, Microsoft, Linux end-users, or UNIX vendors "are 'SVRX Licenses.'"
REQUEST FOR PRODUCTION NO. 16:
Please produce all documents concerning your denial in paragraphs 85 and 86 of your Answer to Novell's Counterclaims that SCO's agreements with IBM and Sequent "were'SVRX Licenses.'"
REQUEST FOR PRODUCTION NO. 17:
Please produce all documents concerning the allegations in paragraphs 74 and 90 of your Answer to Novell's Counterclaims that the term "SVRX Licenses" as used in the APA refers only to "then-existing SVRX licensees for their distribution of binary-code versions of System V products pursuant to sublicensing agreements."
16
REQUEST FOR PRODUCTION NO. 18:
Please produce all documents concerning your Answer to Paragraph 15 of Novell's Counterclaims.
REQUEST FOR PRODUCTION NO. 19:
Please produce all documents concerning your Answer to Paragraph 74 of Novell's Counterclaims.
REQUEST FOR PRODUCTION NO. 20:
Please produce all documents concerning the contention at page 111 of your Memorandum in Opposition to IBM's Motion for Summary Judgment on SCO's Breach-of-Contract Claims, filed November 30, 2004, in the IBM Litigation that "SVRX Licenses" "refer(s) just to the SVRX product Schedules that, unlike the software agreements themselves, identify all such amounts," including, but not limited to, all SVRX Product Schedules.
REQUEST FOR PRODUCTION NO. 21:
Please produce all documents concerning any licenses or agreements relating to UNIX, UnixWare, or the Merged Product (or future versions of the Merged Product) that SCO has negotiated, entered into, renewed, or amended since the execution of the APA, including but not limited to, the licenses, agreements, renewals, or amendments, SCO revenue attributable thereto, and all communications by and between SCO and Novell relating thereto.
REQUEST FOR PRODUCTION NO. 22:
Please produce all contracts or licenses that convey or concern any right to those items listed in Section VI of Schedule 1.1(a) of the APA.
REQUEST FOR PRODUCTION NO. 23:
Please produce all contracts or licenses that convey or concern any right to those items listed in Attachment A to APA Amendment 1.
REQUEST FOR PRODUCTION NO. 24:
Please produce all documents concerning the drafting or negotiation of the APA.
17
REQUEST FOR PRODUCTION NO. 25:
Please produce all SCO Board of Director meeting minutes and presentation materials concerning the APA, including, but not limited to, all communications by and between Board members or other attendees relating to these meetings.
REQUEST FOR PRODUCTION NO. 26:
Please produce all documents concerning any communications between you and Novell concerning the APA.
REQUEST FOR PRODUCTION NO. 27:
Please produce all documents concerning any communications between you and any third parties concerning the APA.
REQUEST FOR PRODUCTION NO. 28:
Please produce all documents concerning any communication between you and Novell concerning UNIX or UnixWare copyrights.
REQUEST FOR PRODUCTION NO. 29:
Please produce all documents concerning any communication between you and any third parties concerning UNIX and UnixWare copyrights.
REQUEST FOR PRODUCTION NO. 30:
Please produce all documents concerning your Answer to Paragraph 38 of Novell's Counterclaims, including, but not limited to, all referenced communications between SCO and Novell.
REQUEST FOR PRODUCTION NO. 31:
Please produce all documents concerning your Answer to Paragraph 39 of Novell's Counterclaims, including but not limited to, all referenced communications between SCO and Novell.
18
REQUEST FOR PRODUCTION NO. 32:
Please produce all your public statements, written or oral, concerning the ownership rights or intellectual property rights in UNIX or UnixWare.
REQUEST FOR PRODUCTION NO. 33:
Please produce all documents concerning your allegation in paragraph 17 of your Amended Complaint that "SCO is the sole and exclusive owner of all copyrights related to UNIX and UnixWare source code and all the documentation and peripheral code and systems related thereto."
REQUEST FOR PRODUCTION NO. 34:
Please produce all SCO Board of Director meeting minutes and presentation materials concerning UNIX or UnixWare copyrights, including, but not limited to, all communications by and between Board members or other attendees relating to the subject.
REQUEST FOR PRODUCTION NO. 35:
Please produce all documents relating to SCO's purchase price allocation for the APA, including, but not limited to, the final purchase price allocation and all drafts thereof, all reports, presentations and workpapers relating to any allocation undertaken, and all communications by or between SCO, its auditors, other third parties, and/or Novell on this subject.
REQUEST FOR PRODUCTION NO. 36:
Please produce all documents concerning SCO's general ledger transactions (and supporting documentation) for SCO's intangible assets for the period January 1, 1995 to present.
REQUEST FOR PRODUCTION NO. 37:
Please produce all documents relating to SCO's financial valuation of the APA, including, but not limited to, the final valuation and all drafts thereof, all reports, presentations and workpapers relating to any valuation performed and all communications by or between SCO, its investment bankers, any valuation firms or other third parties, and/or Novell on this subject.
19
REQUEST FOR PRODUCTION NO. 38:
Please produce all documents concerning your claim that Novell is without authority or right to effect the waivers of the IBM and Sequent agreements that Novell describes in Paragraphs 86-88 of its Counterclaims, including, but are not limited to, all documents concerning or cited in pages 41-47 and 107-119 of your Memorandum in Opposition to IBM's Motion for Summary Judgment on SCO's Breach-of-Contract Claims, filed November 30, 2004, in the IBM Litigation.
REQUEST FOR PRODUCTION NO. 39:
Please produce all documents concerning any statement made by Novell that you claim constitutes slander of title.
REQUEST FOR PRODUCTION NO. 40:
Please produce all documents concerning any claim that statements made by Novell concerning its ownership of UNIX or UnixWare copyrights were made with malice.
REQUEST FOR PRODUCTION NO. 41:
Please produce all documents concerning any claim that statements made by Novell concerning its ownership of UNIX or UnixWare copyrights were not privileged.
REQUEST FOR PRODUCTION NO. 42:
Please produce all documents concerning any claim that statements made by SCO concerning its purported ownership of UNIX or UnixWare copyrights were made without malice.
REQUEST FOR PRODUCTION NO. 43:
Please produce all documents concerning any claim that statements made by SCO concerning its purported ownership of UNIX or UnixWare copyrights were privileged.
20
REQUEST FOR PRODUCTION NO. 44:
Please produce all documents concerning SCO's efforts after the execution of the APA to market, sell, or promote its UNIX platform and/or its products relating to UNIX or UnixWare, or to complete the Merged Product.
REQUEST FOR PRODUCTION NO. 45:
Please produce all documents concerning the transfer of any UNIX or UnixWare assets from the Santa Cruz Operation, Inc., to or between Caldera, Inc., Caldera Systems, Inc., Caldera International Inc., and/or SCO.
DATED: December 14, 2005
MORRISON & FOERSTER LLP
By: __[signature]___
Kenneth W. Brakebill
21
22
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[Address]
[Phone]
[Fax]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[Address]
[Phone]
[Fax]
Attorneys for Defendant & Counterclaim-Plaintiff Novell, Inc.
_____________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
|
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff & Counter-Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant & Counter-
Plaintiff.
|
NOVELL, INC.'S NOTICE OF THIRD
PARTY SUBPOENA
Case No. 2:04CV00139
Judge Dale A. Kimball
|
TO THE SCO GROUP, INC. AND ITS COUNSEL OF RECORD:
Please take notice that, in accordance with Rule 45 of the Federal Rules of Civil Procedure, Novell, Inc. intends to serve a document subpoena on DataSafe, Inc. A copy of the subpoena is attached to this notice.
23
The subpoena will be served February 2, 2006.
DATED: January 31, 2006.
MORRISON & FOERSTER LLP
By: ___[signature]___
Kenneth W. Brakebill
24
|
Issued by the
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
|
The SCO Group, Inc.
V.
Novell, Inc.
|
SUBPOENA IN A CIVIL CASE
CASE NUMBER:1 C-04-0139 (DAK)
(pending in D. Utah)
|
To:
DATASAFE, INC. (Attn. Frank Cornejo, Manager of Client Services)
[address, CA]
___YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.
|
PLACE OF TESTIMONY
|
COURTROOM |
|
|
DATE and TIME
|
|
YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
|
|
PLACE OF DEPOSITION
|
DATE AND TIME
|
X YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place,
date, and time specified below (list documents or objects):
Please see Exhibit A.
|
PLACE
Morrison & Foerster LLP
[address, CA]
|
DATE AND TIME
10:00 a.m.,
February 15, 2006
|
|
____YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. |
|
PREMISES
|
DATE and TIME |
|
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officer, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify, Federal Rules of Civil Procedure, 30(b)(6).
|
ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)
[signature of David Melaugh]
|
DATE
1/31/2006
|
ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
David E. Melaugh, Morrison & Foerster LLP, [address] CA [phone]
|
(See Rule 45 Federal Rules of Civil Procedure, Parts C & D on Reverse)
1 If action is pending in district other than the district of issuance state district under case number.
25
PROOF OF SERVICE
Date ________
Place ___________
Served on(Print name) ___________
Manner of Service ___________
Served By (Print name)___________
Title __________
Declaration of Server
I declare under penalty of perjury under the laws of the United States of
America that the foregoing information contained in the Proof of Service is true
and correct.
Executed on
______
DATE
____________
SIGNATURE OF SERVER _____________
ADDRESS OF SERVER
Rule 45. Federal Rules of Civil Procedure, Parts C & D
(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
(1) A party or an attorney responsible for the issuance and service of a
subpoena shall take reasonable steps to avoid imposing undue burden or expense
on a person subject to that subpoena. The court on behalf of which the subpoena
was issued shall enforce this duty and impose upon the party or attorney in
breach of this duty an appropriate sanction, which may include, but is not
limited to, lost earnings and a reaonable attorney's fee.
(2) (A) A person comanded to produce and permit inspection and copying of
designated books, papers, documents or tangible things, or inspection of
premises need not appear in person at the place of production or inspection
unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and
permit inspection and copying may, within 14 days after service of the subpoena
or before the time specified for compliance if such time is less than 14 days
after service, serve upon the party or attorney designated in the subpoena
written objection to inspection or copying of any or all of the designated
materials or of the premises. If objection is made, the party serving the
subpoena shall not be entitled to inspect and copy the materials or inspect the
premises except pursuant to an order of the court by which the subpoena was
issued. If objection has been made, the party serving the subpoena may, upon
notice to the person commanded to produce, move at any time for an order to
compel the production. Such an order to compel production shall protect any
person who is not a party or an officer of a party from significant expense
resulting from the inspect and copying commanded.
(3) (A) On timely motion, the court by which a subpoena was issued shall quash
or modify the subpoena if it
(i) fails to allow reasonable time for compliance
(ii) requirs a person who is not a party or an officer of the party to travel
to a place more than 100 miles from the place where that person resides,
is employed or regularly transaction business in person, except that
subject to the provisions of clause (c)(3)(B)(ii) of this rule, such a
person may in order to attend trial be commanded to travel from any such
place within the satete in which the trial is held, or
(iii) requires disclosure of priviledged or other protected matter and not
exception or waiver applies, or
(iv) subject a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research,
development, or commercial information or
(ii) requires disclosure of an unretained expert's opinion or information not
describing specific events or occurances in dispute and resulting from the
expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur
substantial expense to travel more than 100 miles to attend trial, the
court may, to protect a person subject to or affected by the subpoena,
quash or modify the subpoena or, if the party in whose behalf the subpoena
is issued shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship and assures that the person
to whom the subpoena is address will be reasonably compensated, the court
may order appearance or production only upon specified conditions.
(d) DUTIES IN RESPONDING TO SUBPOENA
(1) A person responding to a subpoena to produce documents shall produce them as
they are kept in the usual course of business or shall organize and label them
to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is
priviledged or subject to protection as trial preparation materials, the claim
shall be made expressly and shall be supported by a description of the nature of
the documents, comunications, or things not produces that is sufficient to
enable the demanding party to contest the claim.
26
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.
27
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.
28
29
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[Address]
[Phone]
[Fax]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[Address]
[Phone]
[Fax]
Attorneys for Defendant & Counterclaim-Plaintiff Novell, Inc.
________________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
|
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff & Counterclaim-
Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant & Counterclaim-
Plaintiff.
|
NOVELL, INC.'S NOTICE OF THIRD
PARTY SUBPOENA
Case No. 2:04CV00139
Judge Dale A. Kimball
|
TO THE SCO GROUP, INC. AND ITS COUNSEL OF RECORD:
Please take notice that, in accordance with Rule 45 of the Federal Rules of Civil Procedure, Novell, Inc. intends to serve a document subpoena on Recall, Inc. A copy of the subpoena is attached to this notice.
30
The subpoena will be served April 19, 2006.
DATED: April 17, 2006.
MORRISON & FOERSTER LLP
BY: /s/ Kenneth W. Brakebill
Kenneth W. Brakebill
31
|
Issued by the
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
|
The SCO Group, Inc.
V.
Novell, Inc.
|
SUBPOENA IN A CIVIL CASE
CASE NUMBER:1 C-04-0139 (DAK)
(pending in D. Utah)
|
To:
Recall, c/o Mr. Jim Wruck
[address, CA]
___YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.
|
PLACE OF TESTIMONY
|
COURTROOM |
|
|
DATE and TIME
|
|
YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
|
|
PLACE OF DEPOSITION
|
DATE AND TIME
|
X YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place,
date, and time specified below (list documents or objects):
Please see Exhibit A.
|
PLACE
Morrison & Foerster LLP
[address, CA]
|
DATE AND TIME
10:00 a.m.,
May 3, 2006
|
|
____YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. |
|
PREMISES
|
DATE and TIME |
|
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officer, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify, Federal Rules of Civil Procedure, 30(b)(6).
|
ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)
[signature of David Melaugh]
|
DATE
April 17, 2006
|
ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
David E. Melaugh, Morrison & Foerster LLP, [address] CA [phone]
|
(See Rule 45 Federal Rules of Civil Procedure, Parts C & D on Reverse)
1 If action is pending in district other than the district of issuance state district under case number.
32
PROOF OF SERVICE
Date ________
Place ___________
Served on(Print name) ___________
Manner of Service ___________
Served By (Print name)___________
Title __________
Declaration of Server
I declare under penalty of perjury under the laws of the United States of
America that the foregoing information contained in the Proof of Service is true
and correct.
Executed on
______
DATE
____________
SIGNATURE OF SERVER _____________
ADDRESS OF SERVER
Rule 45. Federal Rules of Civil Procedure, Parts C & D
(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
(1) A party or an attorney responsible for the issuance and service of a
subpoena shall take reasonable steps to avoid imposing undue burden or expense
on a person subject to that subpoena. The court on behalf of which the subpoena
was issued shall enforce this duty and impose upon the party or attorney in
breach of this duty an appropriate sanction, which may include, but is not
limited to, lost earnings and a reaonable attorney's fee.
(2) (A) A person comanded to produce and permit inspection and copying of
designated books, papers, documents or tangible things, or inspection of
premises need not appear in person at the place of production or inspection
unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and
permit inspection and copying may, within 14 days after service of the subpoena
or before the time specified for compliance if such time is less than 14 days
after service, serve upon the party or attorney designated in the subpoena
written objection to inspection or copying of any or all of the designated
materials or of the premises. If objection is made, the party serving the
subpoena shall not be entitled to inspect and copy the materials or inspect the
premises except pursuant to an order of the court by which the subpoena was
issued. If objection has been made, the party serving the subpoena may, upon
notice to the person commanded to produce, move at any time for an order to
compel the production. Such an order to compel production shall protect any
person who is not a party or an officer of a party from significant expense
resulting from the inspect and copying commanded.
(3) (A) On timely motion, the court by which a subpoena was issued shall quash
or modify the subpoena if it
(i) fails to allow reasonable time for compliance
(ii) requirs a person who is not a party or an officer of the party to travel
to a place more than 100 miles from the place where that person resides,
is employed or regularly transaction business in person, except that
subject to the provisions of clause (c)(3)(B)(ii) of this rule, such a
person may in order to attend trial be commanded to travel from any such
place within the satete in which the trial is held, or
(iii) requires disclosure of priviledged or other protected matter and not
exception or waiver applies, or
(iv) subject a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research,
development, or commercial information or
(ii) requires disclosure of an unretained expert's opinion or information not
describing specific events or occurances in dispute and resulting from the
expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur
substantial expense to travel more than 100 miles to attend trial, the
court may, to protect a person subject to or affected by the subpoena,
quash or modify the subpoena or, if the party in whose behalf the subpoena
is issued shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship and assures that the person
to whom the subpoena is address will be reasonably compensated, the court
may order appearance or production only upon specified conditions.
(d) DUTIES IN RESPONDING TO SUBPOENA
(1) A person responding to a subpoena to produce documents shall produce them as
they are kept in the usual course of business or shall organize and label them
to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is
priviledged or subject to protection as trial preparation materials, the claim
shall be made expressly and shall be supported by a description of the nature of
the documents, comunications, or things not produces that is sufficient to
enable the demanding party to contest the claim.
33
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.
34
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.
35
|
