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IBM's Memo Opposing SCO's Motion for In Camera Review
Wednesday, June 07 2006 @ 10:20 AM EDT

Here's IBM's Memorandum in Opposition to SCO's Motion for In Camera Review of Privileged Documents [PDF], which the remarkable Steve Martin has already done as text for us. Thank you.

IBM provides the court with the documents it asserts are privileged that SCO would like to have, although it says it isn't required to. It is doing so because it wants to speed things along.

You'll recall that SCO in its motion and the memorandum in support [PDF] stated that the materials it wants didn't seem to be "written at the direction of an attorney or in anticipation of litigation". IBM says that they were indeed prepared for attorneys. "The attorney-client privilege protects communications made by corporate employees to counsel for the corporation acting as such, at the direction of corporate superiors in order to secure legal advice from counsel." That's the case here, IBM is stating. It also provides "for in camera review the declarations of Sharon Dobbs, Esq. and Mark Walker, Esq., describing the documents in question and substantiating IBM's claim of privilege."

IBM then concludes:

As demonstrated by the documents themselves and the declarations submitted herewith, each of the three documents (i) was prepared at the request and under the direction of counsel for IBM; (ii) was prepared for counsel's use in giving legal advice to IBM or incorporated counsel's legal advice and opinions; (iii) was not used to render business advice; and (iv) was kept confidential within IBM.

Further, SCO's suggestion that it should be permitted to review the documents at issue at the same time the Court reviews them in camera is meritless. SCO provides no authority for this proposition. The entire purpose of in camera review is to determine whether an opposing party is entitled to review the documents in the first place. Allowing an opposing party to review the documents in question before the Court decides the issue would defeat the entire purpose of in camera review.

It also tells the court in a footnote that to date, although it has repeatedly requested it, SCO has failed to provide IBM with its privilege log, despite whining to the court about IBM allegedly being slow to provide its log. And in footnote 4, IBM cites a case that indicates the court can refuse to even do the in camera review, that it can rely upon the declarations of the attorneys that the materials are protectable by the attorney-client privilege. I'm sure that's a hint as to what it would prefer.

It seems that SCO told the court something that was not true. When it asked to do depositions again, if the review by the court revealed the materials were not privileged, SCO represented to the court that two of the three documents in question, about the Journaled File System, were claimed as privileged by IBM during a Rule 30(b)(6) deposition. IBM refutes that assertion:

Finally, SCO's suggestion that that the Court should grant leave to take further depositions on these documents is meritless as well. The two documents concerning the Journaled File System were not, as SCO claims, withdrawn as privileged during a Rule 30(b)(6) deposition: They were identified as privileged during the deposition of William Baker, a third party witness who was not at the time of his deposition nor currently an IBM employee.

Rule 30(b)(6) says that a party can subpoena a corporation or other entity, and the corporation can pick an executive or board member or whatever, whoever is best able to answer the questions, to show up to testify on behalf of the corporation on whatever matters the subpoena sets out. Obviously, someone who is not an employee of IBM would find it hard to fill those shoes more effectively than an officer or executive of the company. Could it be an honest mistake? I suppose. But the first thing that normally happens at a deposition is the person is asked his name and position. And after a deposition, the attorneys normally get transcripts. The Rule does say it can be "one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf," so maybe SCO thought Mr. Baker was testifying on behalf of IBM. But that's a pretty big gaffe. Why didn't it check that detail more carefully? I have no idea. This whole litigation is a mystery to me. And so are the details.

I also don't know who Mr. Baker is. It's the first time his name comes up, that I recall. Wikipedia lists quite a few William Bakers, I doubt it's any of the ones on that list, actually, so we'll just have to be patient and find out down the road who this Mr. Baker is. Maybe this is he? IBM's wording makes me believe he used to be an employee. But I don't know, because I wasn't at the deposition. That's my excuse. [ Update: A reader suggests this Mr. Baker may be the one.]

I'm thinking if SCO keeps this up, it's going to lose its reputation as a truth-teller. Joke. Joke. I think I may safely state that there is very little danger of that happening.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address]
[phone]
[fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address]
[phone]
[fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

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.
IBM'S MEMORANDUM IN OPPOSITION
TO SCO'S MOTION FOR IN CAMERA
REVIEW OF PRIVILEGED DOCUMENTS


Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

1

IBM respectfully submits this memorandum in opposition to SCO's motion for in camera review of privileged documents.1

Argument

SCO moves to compel IBM to submit in camera three documents that IBM recalled from its production of documents because the documents are protected by the attorney-client privilege.2 Although IBM does not believe that a motion for in camera review requires a party to submit the documents sought to the Court for review, in the interest of expediting the resolution of the core issue of whether the documents are in fact privileged, IBM is submitting the documents at issue directly to the Court for in camera review. In addition, IBM is submitting for in camera review the declarations of Sharon Dobbs, Esq. and Mark Walker, Esq., describing the documents in question and substantiating IBM's claim of privilege.3

The attorney-client privilege protects communications made by corporate employees to counsel for the corporation acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Upjohn Co. V. United States, 449 U.S. 383, 394 (1981)

2

(holding that "communications must be protected against compelled disclosure" where the "communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel".) "[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Sprague v. Thorn Americas, Inc., 129 F.3d 1355,1370 (10th Cir. 1997) (quoting Upjohn, 449 U.S. at 390). Documents that are prepared by a non-attorney employee for an in-house attorney's use in giving legal advice to a corporate client are protected by the attorney-client privilege. Motley v. Marathon Oil Co., 71 F.3d 1547, 1550-51 (10th Cir. 1995) (affirming district court's ruling that documents were privileged where in-house attorney declared that they "'were prepared for my use in giving legal advice to the [corporation],' that the memorandum and lists were treated as confidential documents, and that '[he] did not render business advice in the Memorandum and Lists'")(Exhibit A)4; see also In re Brand Name Prescription Drugs Antitrust Litigation, No. 94 C 897, 1995 WL 557412 at *1 (N.D. Ill. Sept. 19, 1995) (ruling that document was privileged because it was "prepared at the request of AHP's attorneys for the purpose of enabling counsel to give legal advice")(Exhibit B); Olen Properties Corp. v. Sheldahl, Inc., No. CV 91-6446-WDK, 1994 WL 212135, at *1 (C.D.Cal, April 12, 1994) (holding that documents were privileged where employee "prepared the documents to gather information for BMC's

3

attorneys to assist the attorneys in evaluating compliance with relevant laws and regulations")(Exhibit C).

Based on these settled principles, the documents in question here are protected by the attorney-client privilege. As demonstrated by the documents themselves and the declarations submitted herewith, each of the three documents (i) was prepared at the request and under the direction of counsel for IBM; (ii) was prepared for counsel's use in giving legal advice to IBM or incorporated counsel's legal advice and opinions; (iii) was not used to render business advice; and (iv) was kept confidential within IBM.

Further, SCO's suggestion that it should be permitted to review the documents at issue at the same time the Court reviews them in camera is meritless. SCO provides no authority for this proposition. The entire purpose of in camera review is to determine whether an opposing party is entitled to review the documents in the first place. Kerr v. U. S. Dist. Court for Northern Dist. of California, 426 U.S. 394, 404-05 (1976). Allowing an opposing party to review the documents in question before the Court decides the issue would defeat the entire purpose of in camera review.5

4

Conclusion

For all of the foregoing reasons, IBM respectfully requests that the Court find the three documents sought in SCO's motion are privileged, and deny SCO's Motion for In Camera Review.

DATED this 6th day of June, 2006.

SNELL & WILMER L.L.P.
/s/ Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintif
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Jennifer M. Daniels
Alec S. Berman
[address]
[phone]

Attorneys for Defendant/Counterclaim-Plaintif
International Business Machines Corporation

5

CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of June, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system 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


1 The first seven pages of SCO's memorandum consist of a lengthy recitation of purported facts regarding the privilege logs IBM has provided to SCO in this matter. It is both inaccurate and incomplete, but ultimately irrelevant to any issue before the Court, and we therefore do not undertake to respond here. However, we do note (and the exhibits to SCO's memorandum confirm) that throughout our discussions with counsel for SCO on this issue, we have repeatedly asked SCO when we can expect to receive its privilege log, and we repeatedly have been told it is forthcoming. As of today's date, SCO still has not provided it.

2 Paragraph k of the Attorney's Planning Report (Docket Entry # 24) provides that "documents that a party claims as privileged, including all copies made, will be returned immediately without the need to show the production was inadvertent." Consistent with this requirement, SCO does not argue that IBM waived the privilege by inadvertently producing the documents to SCO.

3 Declarations from the authors of the documents can also be obtained if the Court deems them necessary.

4 In Motley, the district court did not review the documents in camera, but instead relied on an affidavit of counsel in making its determination that the documents at issue were privileged. Motley, 71 F.3d at 1551. The Tenth Circuit upheld the district court's decision not to review them in camera. Id. at 1551-52.

5 Finally, SCO's suggestion that that the Court should grant leave to take further depositions on these documents is meritless as well. The two documents concerning the Journaled File System were not, as SCO claims, withdrawn as privileged during a Rule 30(b)(6) deposition: They were identified as privileged during the deposition of William Baker, a third party witness who was not at the time of his deposition nor currently an IBM employee.


  


IBM's Memo Opposing SCO's Motion for In Camera Review | 135 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Go Here Please.
Authored by: Hiro Protagonist on Wednesday, June 07 2006 @ 10:35 AM EDT
Corrections Go Here Please.

---
I Grok... Therefore... I am.

[ Reply to This | # ]

Off Topic Goes Here.
Authored by: Hiro Protagonist on Wednesday, June 07 2006 @ 10:37 AM EDT
Make links "clicky".

---
I Grok... Therefore... I am.

[ Reply to This | # ]

For what its worth
Authored by: rsteinmetz70112 on Wednesday, June 07 2006 @ 10:46 AM EDT
I once testified on behalf of a former employer as a representative of that
former employer. As it turned out I had left that company but was the primary
person responsible for the project which was the subject of the suit.

This is perhaps how someone who is not currently nor at the time of the
deposition was an employee of IBM could end up "testifying on behalf of
IBM". I was also paid to testify in that case, but was not an expert.

---
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 | # ]

No more tSCOg games
Authored by: bbaston on Wednesday, June 07 2006 @ 10:53 AM EDT
Seems to me that IBM is no longer feeding tSCOg rope, and is assertively yanking rugs out from under tSCOg's dancing court tactics.

'Bout time.

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

William Baker?
Authored by: rsteinmetz70112 on Wednesday, June 07 2006 @ 11:05 AM EDT
I found a reference to

Mr. Bill Baker, Senior State Executive
IBM Corporation
Public/Private Community Partnerships

In a program for

Project DIANE
2nd Annual Showcase and Reception

April 8th, 1997
Cumberland Science Museum, Nashville, Tennessee

Perhaps this is the same person. Perhaps he was retired from IBM at the time of
the deposition?

Maybe we can find some more information on this Bill Baker.

---
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 | # ]

In a word, No!
Authored by: DaveJakeman on Wednesday, June 07 2006 @ 11:20 AM EDT
Tell SCO to stop being so sneaky!

What I keep learning, forgetting and having to re-learn is that it isn't just
what you say that matters in litigation, but what you don't say. There are so
many deep, tapering crevasses to tumble down.

Given the many "variations on a theme" SCO have produced to date, I
estimate they must be near the bottom of one of those and the glacier is about
to shunt forwards.

---
Shampoo for my real friends, real poo for my sham friends - not Francis Bacon
---
Should one hear an accusation, try it out on the accuser.

[ Reply to This | # ]

... it's going to lose its reputation...
Authored by: Anonymous on Wednesday, June 07 2006 @ 12:10 PM EDT
They are actively developing and refining SCO's reputation. It may not be
possible to ruin something that is the result of so much effort and planning.

... we own that too!

[ Reply to This | # ]

Lack of arguments against the in camera Review
Authored by: Anonymous on Wednesday, June 07 2006 @ 12:37 PM EDT
I'm a bit surprised by the motion:
IBM doesn't really argue much against the in camera review, instead they provide
declarations and the actual documents for the in camera review.
They do argue against letting SCO look at the documents during the in camera
review.

Was that expected? Are requests for in camera review virtually always granted?

[ Reply to This | # ]

Projection in the Privilege Logs ...
Authored by: Dave23 on Wednesday, June 07 2006 @ 03:54 PM EDT
[Footnote 1] The first seven pages of SCO's memorandum consist of a lengthy recitation of purported facts regarding the privilege logs IBM has provided to SCO in this matter. It is both inaccurate and incomplete, but ultimately irrelevant to any issue before the Court, and we therefore do not undertake to respond here. However, we do note (and the exhibits to SCO's memorandum confirm) that throughout our discussions with counsel for SCO on this issue, we have repeatedly asked SCO when we can expect to receive its privilege log, and we repeatedly have been told it is forthcoming. As of today's date, SCO still has not provided it. [Italics mine]
... which is exactly what SCOX complained about what IBM was (not) doing. SCOX/BSF uses Projection as a pre-emptive version of the tu quoque fallacy, and IBM has had to defend against the tactic more than once in this case.

---
Gawker

[ Reply to This | # ]

TSG's Privilege Log
Authored by: sproggit on Wednesday, June 07 2006 @ 04:52 PM EDT
So from the filing of this motion, we learn from IBM that The SCO Group have yet
to provide a copy of their privilege log.This despite the fact that

Discovery has closed.
The SCO Group have complained bitterly about IBM's own log.
The SCO Group have protested mightily about IBM's own failure to produce
evidence in discovery.

It does not take an act of genius to understand why BSF would not provide even
this simplest of professional courtesy. When their case is as flimsy as
Magistrate Judge "Is this all you've got?" Wells observed it to be,
then it falls to BSF to try and eke out any real or imagined advantage as best
they can.

However, two things about this strike me as being particularly concerning.
Firstly, from the perspective of the United States' Legal System, it strikes me
as exceptionally disappointing that one of the legal firms representing in such
a high-profile and internationally-observed case should be permitted to escape
un-sanctioned from this behaviour. We have watched from the sidelines, with
dismay, as BSF and/or The SCO Group have been able to continue with appalling
conduct. We've had wild public accusations from the CEO of the Plaintiff that
have not been substantiated in Court. We've had privilege material read out
"by accident" in Court. We've had, as PJ diligently points out here,
errors and ommissions and repeated failings to obey simple directives of the
Court. In all but one or two instances TSG/BSF have emerged unscathed.

I am disappointed beyond measure that the Court - any Court for that matter [and
I make no partisan accusation against BSF, Judge Wells or Judge Kimball] - feel
compelled to permit the Plaintiff such incredible "scope". Since I
like to think of myself as seeing the good in people, I like to believe that
Magistrate Judge Wells and Judge Kimball have entertained this
"performance" in order to ensure, beyond any reasonable doubt, that
The SCO Group are left no grounds for appeal. I'm very hopeful that this is
indeed why we see this.

But even more than this, I am a little surprised and more than a little
disappointed that IBM are almost complicit in this state of affairs. Here we
have another written submission to the Court from Cravath, Swaine and Moore. In
a footnote at the bottom, we get :-

"Oh, yeah, and Judge? Another thing: umm, we still haven't seen that
Privilege Lodge of theirs. We don't know what we're charged with, we've seen no
evidence and we have no idea what information is being witheld from us, since
the Plaintiff won't tell us even that..."

It's almost like they don't really care.

I suppose there could be a couple of explanations for that. One is that they are
sitting on a mound of evidence that is going to decimate The SCO Group's case,
once and for all. If that's the case, then I imagine we'll see some fireworks
when IBM are permitted to refile their Partial Summary Judgements. Another, more
disturbing explanation, is that CSM are going off the boil. I do hope that isn't
the case. A third and even more frightening tactic would be to assume that this
is to lull BSF into false complacency, but I don't really believe that. You
don't play games in a Court of Law, and certainly not when the stakes are this
big.

I can't believe for one moment that I'm the only person following this case who
is surprised at IBM's apparent lack of interest at carefully documenting this
TSG/BSF conduct for the Court. Does anyone have any strong theories about why
they should be so relaxed?

Is it over-confidence? Lack of interest? Something else?

[ Reply to This | # ]

Understand how brilliant this is of IBM
Authored by: Anonymous on Wednesday, June 07 2006 @ 08:40 PM EDT
By giving the documents to the judge now for review they kill this motion so SCO
does NOT get to do a rebuttal, there is nothing to comment on since IBM has
complied with the purported reason for the motion. SCO has been deprived of a
sounding board and the judge will rule, given the odds and the parties, most
likely for IBM.

Given SCO's "unclean hands" they can not do a motion on the privelege
log since they have not provided one, which was really the subtext here. This
now allows IBM to leisurely produce their own log and the day after file a
motion against SCO for not having supplied their's.

With respect to sanctions IBM wants to give SCO NOTHING which is appealable,
which sanctions at this point would be. The day after this is wrapped expect a
motion by IBM to make BSF as well as SCO responsible for IBM's attorney fees.
That should go a long way to straightening out BSF since at that point SCO will
be bankrupt and Cravath Swaine and Moore will be getting a check from BSF
instead.

[ Reply to This | # ]

IBM's Memo Opposing SCO's Motion for In Camera Review
Authored by: Anonymous on Wednesday, June 07 2006 @ 08:55 PM EDT
> Suxy,...SuShI...SusE

Cute.

OK, dumb question. How exactly is SUSE *supposed* to be pronounced? It might
sound absurd, but I really don't know, and I would like to.

Nevin

[ Reply to This | # ]

Why do you keep saying "Joke. Joke"?
Authored by: Anonymous on Friday, June 09 2006 @ 12:05 PM EDT
Is this some sort of obsessive-compulsive thing?

[ Reply to This | # ]

Judges can't be happy
Authored by: GLJason on Saturday, June 10 2006 @ 03:41 PM EDT
It looks like SCO spent 7 pages chastising IBM for not producing it's privilege
log, which is totally irrevelant to this motion. That can't sit well with Judge
Kimball, whose page says he appreciates lawyers that get to the point and don't
waste the court's time. Then they want to review the documents with the judge,
when the whole purpose of the "in camera" review is to see if the
documents should be viewed by them.

[ Reply to This | # ]

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