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Deposing Mr. Wilson in SCO v IBM - A NC End Run
Thursday, August 17 2006 @ 11:00 AM EDT

An IBM filing today on Pacer clues us in at last, just as I told you would eventually happen, on the dispute over redeposing Otis Wilson. You may recall that the day before fact discovery was due to close, there was a conference with Magistrate Judge Brooke Wells on January 26, and the outcome was posted on Pacer like this:
[604] Minute Entry for Telephone Conference held on January 26, 2006 before Judge Brooke C. Wells. The Court Rules The depositions of Otis Wilson and Ted Kennedy ONLY may be extended by 30 days (by 2/26/06). Counsel are to agree on the date and time. As to Mr. Wilson - he is not to be subjected to any questions other than reasonable inferences re: new information ONLY. As to the depositions of the three corporations addressed by SCO, the Court will not address this except via motion, which SCO may file. Attorney for Plaintiff: Ted Normand, Attorney for Defendant Todd Shaughnessey

At the time, I wrote that I had no idea what it meant or even what was happening, but that I was sure that in time, we'd find out. Now we do. What happened after Judge Wells limited SCO to asking Mr. Wilson only about new matters is SCO went to North Carolina in April and persuaded an unrelated judge there (IBM was not in attendance - Wilson is represented by another firm) that it could depose Mr. Wilson about anything at all.

See why this case is never boring? Boies Schiller does unusual things.

Normally, if you don't like a judge's decision, you ask the judge to reconsider or you appeal. SCO did neither. They didn't like Judge Wells' decision, so they have been trying to do an end run around her. That tells me that they don't respect the court system the way I do, and yes, I'm shocked. And it also tells me they have given up on any hope of Judge Wells forgetting all that they have done and said in her courtroom, and they figured they'd have better results from a judge who doesn't know them that well yet.

So off they went, and it worked. So now we have a conflict: two different judges, and conflicting orders. Exactly what the legal system hates to have happen. There was a telephone conference, and Judge Wells requested IBM to provide her with cases supporting IBM's argument that her word should prevail. The result is this document, IBM's Legal Authority Re Otis Wilson Deposition [PDF]. This was all happening around the time that SCO was trying, and failed, to properly depose Intel and the others. Here's the heart of IBM's current position:

The following cases recognize: (1) the judge before whom an action is pending has full authority over discovery proceedings in that case (indeed that judge has an obligation to supervise discovery); and (2) while other "ancillary" courts may be necessary to issue or enforce subpoenas, those anciallary courts must respect prior discovery rulings made by the court before whom the action is pending (particularly where that prior ruling involves the objections of a party (IBM) who was not before the court in the "ancillary" proceeding).

It's hard to comprehend an actual discussion about which judge's decision should prevail. It is so obvious that a prior order by the judge actually handling a case should be respected, but with SCO, everything, every pukey little thing, is a struggle.

We also find the answer to the puzzlement I wrote about in January about who originally deposed Otis Wilson. I knew only about an IBM deposition, so I couldn't understand who was asking to do it a second time. The answer is found in the Ted Normand Declaration [PDF], where he tells the North Carolina judge that it was, in fact, IBM that deposed Wilson, but SCO did some cross examination at that deposition. So that mystery is finally solved.

Otis Wilson is a witness whose earlier testimony at the prior deposition was so devastating to SCO. Wilson was in charge of the licensing department at AT&T for years, and he clearly testified that his understanding of the contract between IBM and AT&T was that "we did not intend to exercise any control or restriction on those products that did not contain portions of the software products;" As for methods and concepts, he said that this phrase was removed from IBM's contract and that AT&T did not seek to enforce rights to methods and concepts of UNIX.

So why would SCO wish to depose him again and particularly wish to ask him about the same matters again? I hate to think this, but what I feel may be happening is that because he is elderly, they think maybe he'll testify slightly differently if they ask him things just right. Like I say, I'm just guessing, but it would certainly help SCO to undermine that testimony. It is sometimes possible to rattle elderly persons with rapid questions. I really hope that's not the plan, particularly because this appears to be a lost cause for SCO no matter what they do.

I have collected some documents from the North Carolina court, as well as the docket, and here they are. I wish to thank Steve Martin for helping me so much with this material. I will add to them as I get them uploaded:

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

1:06-mc-00046-PTS

THE SCO GROUP, INC. v. INTERNATIONAL BUSINESS MACHINES CORPORATION
P. TREVOR SHARP, referral

History

Doc.
No.
Dates Description
--
Filed: 04/12/2006
Entered: 04/13/2006
Filing Fee Received
Docket Text: Filing fee: $39, receipt number 091210 (McClain, Abby)
--
Filed: 04/12/2006
Entered: 04/13/2006
Case Assigned/Reassigned
Docket Text: Case Assigned to Magistrate Judge P. TREVOR SHARP as referral Judge. (Powell, Gloria)
1
Filed: 04/12/2006
Entered: 04/13/2006
Terminated: 05/31/2006
Motion to Enforce
Docket Text: MOTION to Enforce Subpoena and Compel Deposition by THE SCO GROUP, INC. (Attachments: # (1) Exhibit A) (McClain, Abby)
2
Filed: 04/12/2006
Entered: 04/13/2006
Memorandum
Docket Text: MEMORANDUM filed by Plaintiff THE SCO GROUP, INC. in support of re [1] MOTION to Enforce Subpoena and Compel Deposition filed by THE SCO GROUP, INC. (Attachments: # (1) Exhibit A:Normand Declaration(2) Exhibit B# (3) Exhibit C# (4) Exhibit D)(McClain, Abby)
3
Filed: 04/12/2006
Entered: 04/13/2006
Terminated: 04/19/2006
Motion to Expedite
Docket Text: MOTION to Expedite Briefing Schedule by THE SCO GROUP, INC. (Attachments: # (1) Exhibit A: Proposed Order)(McClain, Abby)
--
Filed & Entered: 04/17/2006
Motions Referred
Docket Text: ***Motions Referred: [3] MOTION to Expedite Briefing Schedule to Magistrate Judge P. TREVOR SHARP - (Powell, Gloria)
4
Filed & Entered: 04/19/2006
Order on Motion to Expedite
Docket Text: ORDER signed by Judge P. TREVOR SHARP on 4/19/06 that Plaintiff's motion to expedite briefing schedule (Pleading No. 3) is GRANTED and that Otis Wilson and/or IBM be required to file a Response Brief to SCO's Motion to Enforce Subpoena and Compel Deposition, if any, by 21 April 2006 and that SCO berequired to file a Reply Brief, if any, by 25 April 2006. (Wilson, JoAnne)
5
Filed & Entered: 04/21/2006
Terminated: 05/31/2006
Motion to Quash
Docket Text: Third Party MOTION to Quash Subpoena and for Protective Order by Otis L. Wilson. Responses due by 5/15/2006 (MEDFORD, MICHAEL)
6
Filed & Entered: 04/21/2006
Response to Motion
Docket Text: RESPONSE Memorandum in Support of Motion to Quash Subpoena and for Protective Order and in Response to Plaintiff's Motion to Enforce Subpoena and Compel Deposition filed by Deponent Otis L. Wilson re [1] MOTION to Enforce filed by THE SCO GROUP, INC., filed by Otis L. Wilson. Replies due by 5/2/2006. (Attachments: # (1) Exhibit Attachment 1.A Docket# (2) Exhibit Attachment 1.B Docket# (3) Exhibit Attachment 2 Second Amended Complaint# (4) Exhibit Attachment 3.A Wilson Deposition Transcript# (5) Exhibit Attachment 3.B Wilson Deposition Transcript# (6) Exhibit Attachment 3.C Wilson Deposition Transcript)(MEDFORD, MICHAEL)
7
Filed & Entered: 04/21/2006
Brief
Docket Text: Memorandum in Support of Otis Wilson's Motion to Quash Subpoena and for Protective Order BRIEF re [5] Third Party MOTION to Quash Subpoena and for Protective Order by Deponent Otis L. Wilson filed by Otis L. Wilson. (MEDFORD, MICHAEL)
8
Filed & Entered: 04/25/2006
Reply to Response to Motion
Docket Text: REPLY, filed by Plaintiff THE SCO GROUP, INC., to Response to [1] MOTION to Enforce Subpoena filed by THE SCO GROUP, INC.. (MARCUS, ROBERT)
9
Filed & Entered: 04/25/2006
Response in Opposition to Motion
Docket Text: RESPONSE in Opposition re [5] Third Party MOTION to Quash Subpoena and for Protective Order filed by THE SCO GROUP, INC.. Replies due by 5/8/2006. (MARCUS, ROBERT)
--
Filed & Entered: 04/26/2006
Motions Referred
Docket Text: ***Motions Referred: [1] MOTION to Enforce, [5] Third Party MOTION to Quash Subpoena and for Protective Order to Judge P. TREVOR SHARP - (Williamson, Wanda)
10
Filed & Entered: 04/28/2006
Terminated: 05/31/2006
Motion for Leave to File
Docket Text: MOTION for Leave to File Declaration by Otis L. Wilson. Responses due by 5/22/2006 (MEDFORD, MICHAEL)
11
Filed & Entered: 04/28/2006
Brief
Docket Text: Brief in Support of Motion for Leave to File Declaration BRIEF re [10] MOTION for Leave to File Declaration by Deponent Otis L. Wilson filed by Otis L. Wilson. (Attachments: # (1) Declaration of Todd M. Shaughnessy)(MEDFORD, MICHAEL)
12
Filed & Entered: 04/28/2006
Reply to Response to Motion
Docket Text: REPLY, filed by Deponent Otis L. Wilson, to Response to [5] Third Party MOTION to Quash Subpoena and for Protective Order Otis Wilson's Reply Brief in Support of Motion to Quash filed by Otis L. Wilson. (MEDFORD, MICHAEL)
13
Filed & Entered: 05/02/2006
Response in Opposition to Motion
Docket Text: RESPONSE in Opposition re [5] Third Party MOTION to Quash Subpoena and for Protective Order (Supplemental Response) filed by THE SCO GROUP, INC.. Replies due by 5/15/2006. (MARCUS, ROBERT)
14
Filed & Entered: 05/09/2006
Notice of Hearing on Motion
Docket Text: NOTICE of Hearing on Pending Motions. Motion Hearing set for 5/30/2006 09:30 AM in Greensboro Courtroom #1A before MAG/JUDGE P. TREVOR SHARP. (Williamson, Wanda) Attached document with correct case number on 5/9/2006 (Williamson, Wanda).
--
Filed & Entered: 05/30/2006
Motion Hearing
Docket Text: Minute Entry for proceedings held before Judge P. TREVOR SHARP : Motion Hearing held on 5/30/2006 re [3] MOTION to Expedite filed by THE SCO GROUP, INC.,, [10] MOTION for Leave to File Declaration filed by Otis L. Wilson,, [1] MOTION to Enforce filed by THE SCO GROUP, INC.,, [5] Third Party MOTION to Quash Subpoena and for Protective Order filed by Otis L. Wilson. Court to enter written order. Proceedings recorded 06S-6civ. (Tape #06S-6civ.) (McCarty, Dianne)
15
Filed & Entered: 05/31/2006
Order on Motion to Enforce
Docket Text: ORDER ENFORCING SUBPOENA signed by Judge P. TREVOR SHARP on 5/31/06. For reasons announced in open court, SCO's motion to enforce its subpoena served upon non-party Otis Wilson, (Pleading No. 1) is GRANTED and that Mr. Wilson appear for the deposition in accordance with the subpoena. The only limitation imposed upon the deposition is that SCO may depose Mr. Wilson for no greater length of time than 4 hours. Mr. Wilson's motion for leave to file a declaration, Pleading No. 10, is GRANTED. Mr. Wilson's motion to quash subpoena and for protective order (Pleading No. 5) is hereby DENIED. (Welch, Kelly)
16
Filed & Entered: 07/06/2006
Terminated: 07/07/2006
Motion to Compel
Docket Text: MOTION to Compel DEPOSITION OF OTIS WILSON AND REQUEST FOR EXPEDITED RESOLUTION TO DISCOVERY DISPUTE by THE SCO GROUP, INC.. Responses due by 7/31/2006 (MARCUS, ROBERT)
--
Filed & Entered: 07/07/2006
Motions Referred
Docket Text: ***Motions Referred: [16] MOTION to Compel DEPOSITION OF OTIS WILSON AND REQUEST FOR EXPEDITED RESOLUTION TO DISCOVERY DISPUTE to Judge P. TREVOR SHARP - (Powell, Gloria)
--
Filed & Entered: 07/07/2006
Telephonic Notice
Docket Text: Telephone Notice from Attorney Heather Wright held on 7/7/2006: MOTION [16] filed 7/6/06 to Compel DEPOSITION OF OTIS WILSON AND REQUEST FOR EXPEDITED RESOLUTION TO DISCOVERY DISPUTE by THE SCO GROUP, INC. has been RESOLVED. (Powell, Gloria)


  


Deposing Mr. Wilson in SCO v IBM - A NC End Run | 332 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: rocky on Thursday, August 17 2006 @ 11:05 AM EDT
Thank you.

[ Reply to This | # ]

Off topic thread
Authored by: rocky on Thursday, August 17 2006 @ 11:07 AM EDT
Free for all here.

[ Reply to This | # ]

Language, PJ!
Authored by: Anonymous on Thursday, August 17 2006 @ 11:09 AM EDT
"Pukey"! Is this allowed?

Actually, I can perfectly understand your irritation.

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: rocky on Thursday, August 17 2006 @ 11:16 AM EDT
Remember the situation we talked about a couple weeks ago where the technical
people who like organized systems have been learning from the people in the
legal field, where things aren't always so controlled or straightforward? This
seems like one of those things that is going to make the technical people's
brains explode.

I can't even understand how this came up. Why would any judge ever try to make
a ruling on a case that isn't even before them and with which they are not
familiar? Yeah, SCO showed amazing chutzpa to try something like this, but it
seems like pure ignorance from the North Carolina judge to make a ruling on
someone else's case.

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: Anonymous on Thursday, August 17 2006 @ 11:17 AM EDT
Is there much more that BS&F can do to aggrevate, annoy, or agitage Judges
Wells or Kimball? I'd think that a run-around like this (in essence not
dissimilar to venue shopping ... gee, who else has been caught doing that,
hmmm?) would be an egregious affront to the court hearing the matter. Talk
about disrespect!

Sounds to me like it's time for an in camera "come to an
understanding" meeting (I had other terms in mind, but they'd violate PJ's
t's and c's for posting :-) ) between TSG's legal team and Judges Kimball and
Wells.

...D

[ Reply to This | # ]

Could this Lead to a "Show Cause" Order
Authored by: RFD on Thursday, August 17 2006 @ 11:17 AM EDT
to SCO's lawyers commanding them to show cause why they should not be held in
contempt of court? I would love to see it!

---
Eschew obfuscation assiduously.

[ Reply to This | # ]

So what is Kimball likely to think...
Authored by: Jude on Thursday, August 17 2006 @ 11:18 AM EDT
... about SCO doing an end run around his magistrate judge? IANAL, but this
doesn't sound like a move that's likely to win SCO a lot of judicial good
will.

[ Reply to This | # ]

Man, this is unbelievable
Authored by: Anonymous on Thursday, August 17 2006 @ 11:19 AM EDT
I mean, not SCO, that is perfectly consistant. I mean this NC Judge. What was he thinking? What business did he have sticking his ill-informed nose in this case? "I'll just override the presiding judges order with my own, blatently contradictory order, to help out these grifters here". I have trouble, as with much of this case, seeing how this could possibly be an honest mistake. One make in good faith, if you will.

Is there anyway some fines or something could be levied on him? Nothing major, just a couple of hundred grand or so.

[ Reply to This | # ]

Amusing tidbit
Authored by: Anonymous on Thursday, August 17 2006 @ 11:25 AM EDT
I've looked at 2 or 3 of SCO's filings in the NC docket.

Amusingly in each of them,"SCO" is misspelled as "SOC" some
of the time. It's not just a typo, as the error is repeated many times
(although not all the time). And it's not dyslexia, as all the other words
appear to be spelt correctly.

Perhaps whoever the lawyer who drafted these filings is, even he isn't familiar
with who his client is?


Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Sanctions
Authored by: joef on Thursday, August 17 2006 @ 11:25 AM EDT
Are there appropriate sanctions for this sort of behavior? If the sanction is
to merely lose the ability to present any information gleaned via the end run, I
would think a "nothing to lose" mentality would result. In this case,
I think a minimum sanction should be to require the devious party to pay all
costs, immediately and in specie of the realm, to the injured party. And maybe
have the offending counsel spend a few days in the pokey on contempt charges.

[ Reply to This | # ]

  • Sanctions - Authored by: JamesK on Thursday, August 17 2006 @ 06:55 PM EDT
    • Sanctions - Authored by: Anonymous on Thursday, August 17 2006 @ 11:35 PM EDT
      • Sanctions - Authored by: DL on Friday, August 18 2006 @ 09:53 AM EDT
  • ITYM "injured parties" - Authored by: Anonymous on Monday, August 21 2006 @ 03:45 PM EDT
Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: tknarr on Thursday, August 17 2006 @ 11:27 AM EDT

You know, I think SCO's given up all hope of any sort of appeal on any other grounds and they're merely trying to goad Wells and/or Kimball into actually verbally exploding (either in the courtroom or in an order) so they can appeal on grounds of bias and ask for either a dismissal or at least a new trial with a new judge. I mean, this little stunt's not only going to anger Judge Wells, it's going to anger the North Carolina judge too.

BSF better watch out as well. Having a rep as an aggressive firm is one thing, having such a bad rep with judges that they expect the worst from you and cut you absolutely no slack whatsoever's quite another entirely. Clients start to wonder if the judge's opinion of the lawyers is going to spill over into their opinion of the client and his case too.

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: hardcode57 on Thursday, August 17 2006 @ 11:30 AM EDT
I think SCO may have got to the stage where they are simply trying to annoy the
judges so much that they make a reversable error.
This is so blatantly insulting to the judge that I can see no other possible
reason.

[ Reply to This | # ]

Undeniable
Authored by: Anonymous on Thursday, August 17 2006 @ 11:34 AM EDT
 

Absolutely hilarious. This is the best line:

    IBM respectfully requests that the Court enter an order stating that its prior order dated January 26, 2006 [Docket #604] remains in effect.
 

[ Reply to This | # ]

Judge/Court Shopping???
Authored by: Anonymous on Thursday, August 17 2006 @ 11:36 AM EDT
If I went doctor-shopping for XYZ prescription pills...it would be illegal...

Any think like this in legal system??

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: WirelessComGuy on Thursday, August 17 2006 @ 11:42 AM EDT
After all this time, I was sure that SCO & Co. could still make my eyebrows
rise. However, I didn't think that they could still shock me.

Boy was I wrong.

The outright bold faced audacity of this is enough to make one speechless....
It's kinda like a child trying to play one parent against the other. If I
remember right, that doesn't work very well. :)

Eric

[ Reply to This | # ]

Precendence
Authored by: Anonymous on Thursday, August 17 2006 @ 11:56 AM EDT

The fact that IBM easily found cases against what SCOG has pulled would indicate BSF isn't the first legal firm to pull this.

RAS

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: ExcludedMiddle on Thursday, August 17 2006 @ 12:09 PM EDT
Wow. So, they not only performend an end-around run in an attempt to get broader
discovery latitude, they made sure that IBM was unaware of this and not present
during this action?

What I don't understand is how SCO thought they could get away with this. I
mean, it's not like IBM would be unaware of the results of the deposition, or
fail to recognize that exceeded Wells' authority. Whatever might have been
gleaned from this would naturally be challenged by IBM. And it's not like Wells
would not remember such a distinct order even if IBM failed to bring the actual
order up.

I guess we can only thank SCO for continuing to antagonize the court. Any future
chances for sympatheic ears on the magistrate bench are certainly dashed. And
the bench in this case wasn't well-inclined in the first place, based on the
wording of the order.

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: Jamis on Thursday, August 17 2006 @ 12:11 PM EDT
Is there any way that Judges Wells or Kimball can prevent information procured
from the deposition authorized by Judge Sharp from being used? Or is this
something that will have to come up during the jury trial?

Ignorance is NOT bliss.

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: shiptar on Thursday, August 17 2006 @ 12:14 PM EDT
Why wouldn't Wilson's people get IBM and the other Judges involved? He wanted
to be deposed again?

Or that docket entry was IBM and judges getting involved?

What did they do, ask the other judge, we need to depose this guy, and no one
asks why? Seems like the legal system needs work. Relying on gentlemenly
lawyer behaviour seems slightly foolish.

It's a bad thing to do, though I think it is worse that it was allowed to happen
at all.

[ Reply to This | # ]

So, what now?
Authored by: Anonymous on Thursday, August 17 2006 @ 12:31 PM EDT
I mean, ok, so SCO took this deposition that wasn't allowed, by going to another
Judge. Seems to me that all that needs to happen is that the court that is
*actually hearing the case* refuses to allow the deposition to be entered into
the case as evidence.

With that sanction in place, the deposition has accomplished absolutely zero for
SCO in this case, yes?

And, on the civil (and possibly criminal) front, it seems to me that Otis Wilson
has grounds for bringing some kind of lawsuit or charges against both SCO, and
Boies-Schiller for some kind of harrasment. I don't know enough about the laws
or statutes about this kind of thing, but it seems to me that what SCO did is
basically illegal.

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: Anonymous on Thursday, August 17 2006 @ 12:36 PM EDT
Did SCO serve on IBM the papers it filed in NC? If not, that strikes me as a
fundamental violation of the rules of civil procedure. It also would seem to
make the filings ex parte communication between SCO and the NC court, a very big
no no. It's clear the NC court knew of IBM's involvement. See, e.g., item 4 in
the History. Did the NC court send the order to IBM?

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: Anonymous on Thursday, August 17 2006 @ 12:39 PM EDT
Given the behavior of BSF here and previous, I have a couple of questions. Is
there any reliable definition of "contempt of court"? Particularly in
reference to lawyer/law firm conduct. Second, there must be so much money behind
SCO/BSF that no executive/partner is worried in the slightest about future
income, even if both companies are distroyed. How can that much money be hidden
from the IRS?

[ Reply to This | # ]

What were they thinking
Authored by: tangomike on Thursday, August 17 2006 @ 12:47 PM EDT
N.B. Quatermass has noted that the lawyer who filed in NC spelled 'SCO' wrong
several times in the filings. This probably indicates that the lawyer and
(therefore) the judge were likely to figure this was just routine
business/process. That leaves BS&F firmly holding this diaper.

Sooooo.... what were they thinking?

Option A: This is, timewise, part of the spectacular subpoena screw-up in
January. So it's just one more example of the incompetence displayed then.

Option B: It is an intentional end run.

I bet Judge Wells reaffirms her order, as IBM requested, and that's the end of
it. It would be fun if BS&F were required to explain this in open court
though.


As to motive, I find it really difficult to believe that these were just
mistakes. I think BS&F are making this as painful as they possibly can for
IBM, and they don't give a hoot about the court. Once again, IBM lawyers do a
pile of work that should never have had to be done.

---
Deja moo - I've heard that bull before.


[ Reply to This | # ]

Class Act
Authored by: Anonymous on Thursday, August 17 2006 @ 12:50 PM EDT
The situation sucks, but even in a short memo IBM's team shines-
1. Fincher v. K Keller Industries, Inc., 129 F.R.D. 123 (M.D.N.C. 1990)—The very federal district court that issued the order upon which SCO relies held that in an “ancillary” proceeding to enforce a subpoena issued to a third party, the North Carolina court cannot allow discovery that has been disallowed by the court before whom the action is pending. In resolving an objection to a deposition subpoena, the North Carolina court stated “[ e]ven though this Court is the proper one to rule on plaintiffs’ motion [to compel compliance with a deposition subpoena], it nevertheless will look at the status of the proceedings in the district where the action is pending and at relevant rulings issued by that court. . . The parties discovery rights in this district can rise no higher than th their level in the district of trial. trial.” Id. at 125 (emphasis added).
Love that they found a quote from the NC court at issue!

[ Reply to This | # ]

The Usual SCO No Time To Reply Trick
Authored by: BassSinger on Thursday, August 17 2006 @ 12:51 PM EDT
I notice looking at the documents filed in the NC court that SCO convinced that
judge to sign an order (Document #4) on April 19th that gives IBM and Mr. Wilson
only until April 21st to file a reply.

These are the kind of lawyers and judges who give the legal system a reputation
for not being fair, contrary to PJ's assertions that fairness is the desired
method in legal proceedings. What I think is criminal is that BS will reap
millions in profits from this case, win or lose, despite being disreputable.

---
In A Chord,

Tom

Proud Member of the Kitsap Chordsmen
Registered Linux User # 154358

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: Anonymous on Thursday, August 17 2006 @ 01:09 PM EDT
I get the picture but, pardon my ignorance. What does "A(n?) NC end
run" mean? I'm presuming North Carolina...?

[ Reply to This | # ]

Rule 3.3(d)?
Authored by: Anonymous on Thursday, August 17 2006 @ 01:43 PM EDT
This seems like an ex-party procceding, and clearly there was not a disclosure of all materal facts. Utah has adopted MRPC 3.3 , as has North Carolina so I think this was actually over the ethics line. Not that it matters in terms of the case proper, but it could be something that could mean an apperance before the state board

[ Reply to This | # ]

  • Sanctions? - Authored by: Anonymous on Thursday, August 17 2006 @ 02:14 PM EDT
Where does any of this say...
Authored by: Anonymous on Thursday, August 17 2006 @ 01:52 PM EDT
that SCO deposed Mr. Wilson about anything that was not included in Judge Wells'
order? The Ted Normand declaration to the north Carolina court says that Judge
Wells had ordered the depositon to take place and that SCO was to only ask
questions on "new" material and not to ask "personal"
questions. The order from the NC judge is to deny Mr. Wilson's motion to quash
the subpoena altogether.

Did SCO ask Mr. Wilson questions on "old' material or "personal"
questions? If so, where does any of these documents say that?

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: arthurpaliden on Thursday, August 17 2006 @ 02:04 PM EDT
Being as you seem to be able to go judge shopping. Would it be possible for the
SCO chaps to shop for a judge that would place a stay on all proceedings
including the start of the trial until some 'condition' has been met, and if it
were done would the start date of the trial be set back anyway as the fighting
over who has precedence works it's way through various levels of courts?

[ Reply to This | # ]

Interlude over. Action at last. North Carolina?
Authored by: webster on Thursday, August 17 2006 @ 02:24 PM EDT

1. SCO is most desperate to muck up what Otis Wilson has to say about the IBM
Unix contract. They are desperate because what he has to say puts them in
Summary Judgment territory. If they can question him more, they may be able to
make it appear like there is some factual issue. They need a disputed factual
issue to avoid losing a Summary Judgment. They must have been caught off guard,
asleep at the switch at the original deposition. Or more politely, the
"crucialities" weren't in focus at the time. They really don't want
to be limited to "something new" since it is the old contract that is
the problem. IBM won't give them an inch.

2. The matter started on April 12, 2006 and was resolved on July 7, 2006. What
was the resolution? Probably an agreed upon deposition date that has already
occurred. No doubt it was heated as IBM stymied SCO with Judge Wells Order on
the table. Neither the subpoena affidavit of service or the declaration by
Normand indicate any service to IBM. Judges usually scrupulously observe basic
fairness in that the opposing parties are present, notified, or waived their
participation. Interesting try by SCO. Seems to be a lax episode by a judge.

3. SCO antics are going to cost them. If they have to pay for any, they will
pay for all. The Court won't forget and they have IBM to remind them. They
have thrown caution (and reasonability) to the winds. They feel and indeed may
be fighting for their professional lives. If they had any friends on the bench,
they have lost at least 1 and a half with this stunt.

4. Apparently they are realy going after Wilson personally. It tempts one to
google around and see what turns up. Wilson must be thrilled at the scrutiny.
It is doubtful they would have developed anything admissible without IBM's
participation. IBM's short memo citing a case from the very same North Carolina
Court is a powerful touch we have come to expect from them.

---
webster

[ Reply to This | # ]

What is the Problem?
Authored by: RFD on Thursday, August 17 2006 @ 02:26 PM EDT
The link to the Norman Declaration is now working, and after reading it I don't understand what the problem is. Obviously something has irked MJ Wells, though. Mr. Norman seems to have fully informed the NC court of MJ Wells' order. She had allowed the deposition, and Mr. Wilson was refusing to comply. The NC Court Order did not repeat MJ Wells' limitations, and perhaps BS&F took that as permission to violate her order.

---
Eschew obfuscation assiduously.

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM -- Where was Wilson's Lawyer?
Authored by: Anonymous on Thursday, August 17 2006 @ 02:27 PM EDT
Where was Wilson's lawyer in all this?
I mean even if SCOG went to an NC judge, is that judge going to grant an order
after only hearing one side? Cant Wilson get his lawyer to tell the NC judge the
true state of affairs?
IANAL - pgmer6809

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: joef on Thursday, August 17 2006 @ 02:48 PM EDT
According to Yahoo People Search there is an Otis Wilson at an address in
Greensboro, NC, the location of the court in question. At one time, AT&T
managed software licensing activities from a facility on the East side of
Greensboro. Assuming that this is indeed the same Otis L. Wilson, if they were
going to another court anywhere, it seems that Greensboro would be a bit more
defensible than most any other location.

That said, it seems disingenious to con the local magistrate into granting the
order. It would be interesting to see what they said in the petetion requesting
the order.

[ Reply to This | # ]

But what actually happened?
Authored by: Anonymous on Thursday, August 17 2006 @ 05:01 PM EDT
I understand that SCO got another judge to issue an order that they liked better
than Wells', but then what?

Did they already do the deposition? Or did Wilson alert IBM and they stepped in
to block?

From reading this I still am not sure (other than the order) what has actually
taken place. Obviously, SCO is up to their usual tricks, but did they slip one
by or were they stopped on goal?

[ Reply to This | # ]

Jurisdiction, anyone?
Authored by: blang on Thursday, August 17 2006 @ 05:06 PM EDT
I am loath to state that judges do mistakes, but this one seems a bit odd.

1. I guess If Wilson lives in NC, that it might eb OK to use a local court fro
the subpoena.

2. However, it does not seem appropriate that SCO could ask the judge to change
what subjects would eb allowed for teh deposition. Should not the local court
here, simply have asked for documentation, and then found that it was a question
the court could not address? And then said it was not their business? Not even
needing to wait for IBM's counter-argument?

3. Are there any sanctions fro "court-shopping?". When someone goes
"doctor-shopping" fro prescription drugs, they can go to jail.
"Court-shopping" is just as serious a crime, especially if it is done
in what might be a fraudulent/frivolous lawsuit. At the very least it is used
in an attempt to circumvent a court-order and should be considered contempt of
court.

4. Will Boies get to join his CFO, for some quality family time in the big
house?

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: Anonymous on Thursday, August 17 2006 @ 06:01 PM EDT
Please don't think that I'm a Troll.

After reading the Deposition, it looks to me like SCO did NOT got shopping for a
Judge.

It looks more like they were in contact with the attorneys for IBM and Mr.
Wilson. They just had problems getting the Deposition done in a timely manner.

(I know, SCO is hard to belive. But I have to believe SCO's Declaration until I
see something else to change my mind.)

[ Reply to This | # ]

*Very* nicely written article, PJ.
Authored by: Anonymous on Thursday, August 17 2006 @ 06:39 PM EDT

Not that that is particularly unusual.

[ Reply to This | # ]

and this gained them, what?
Authored by: Latesigner on Thursday, August 17 2006 @ 06:44 PM EDT
Read the IBM document.
Looks like SCO just annoyed Judge Wells for nothing.
I don't think the Judge in North Carolina is going to appreciate being duped
either.

---
The only way to have an "ownership" society is to make slaves of the rest of us.

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: jacks4u on Thursday, August 17 2006 @ 06:53 PM EDT
I find IBM's conclusion in it's legal authority brief to be oddly demure. IBM is
not pounding the table in outrage (atleast as far as their writing goes) The
cases cited are, however quite explicit and directly relavant.

I suppose this sort of tactic has been used before, as a matter of fact, more
than once.

I do, however, see a deeper motive by SCO: could it be that they are trying to
get Mr. Wilson's testimony completely removed from the case? like this: if the
Magistrate Judge admonishes SCO, and bars them from using any testimony from Mr.
Wilson's second deposition, nothing has really changed with this case. IF (a BIG
if) IBM calls Mr. Wilson to the stand, SCO will still have oportunity to cross
examine. That is the point at which testimony in the second deposition will
enter the case. IBM's only recourse at trial would be to NOT call Mr. Wilson to
the stand. and SCO would have effectively removed Mr. Otis Wilson's dammaging
testimony from the proceedings.


---
I'm not a Lawyer, this is my opinion only. I may be wrong, but I don't think so!

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: Anonymous on Thursday, August 17 2006 @ 07:26 PM EDT
So everyone needs to search ALL court cases in ALL 50 states for actions
involving SCO, Caldera, etc.? Perhaps they are "shopping around" for
other "bargains" -- in a judicial sort of way...

[ Reply to This | # ]

Question on Poison Tree/Invisible evidence
Authored by: LaurenceTux on Thursday, August 17 2006 @ 08:16 PM EDT
So if this diposition gets gutted by IBM (the "meat" gets OB: MPA
stamped on it) how much damage does this do to the case?
From watching CSI if evidence gets thrown out it can become a Poisoned tree
(since it showed cause for the other bits warrant and that showed cause for
....)
also is there some sort of map of SCO claims V reality?
(something in the form of TSCOG claims ...... Novell/IBM has this evidence
against ....... judge has/ has not thrown out claim)

How much of these cases is on the coroner's table?

[ Reply to This | # ]

more details
Authored by: Anonymous on Thursday, August 17 2006 @ 09:11 PM EDT
So *what happened* with the Wilson deposition? Did the second deposition take
place? If so, will the matter covered by the first deposition be stricken out?

[ Reply to This | # ]

Deposing Mr. Wilson in SCO v IBM - A NC End Run
Authored by: Anonymous on Friday, August 18 2006 @ 08:15 AM EDT
I think SCO is assembling a file of "material"
that they will claim absolutely makes their
case but which they cannot use in court because
of IBM's technical trickery and misuse of the
legal system.

This will allow the FUD to continue even after
they lose the case (as it is now 100% clear that
they will).

In this situation, they will hint at the revelations
of Wilson's second deposition *if* it is not allowed
as evidence in the case. If it is allowed, they will
not mention it again (because there will be nothing
of substance in it except what harms SCO).

[ Reply to This | # ]

Proof the legal system is pathetic
Authored by: Anonymous on Friday, August 18 2006 @ 09:51 PM EDT
If this ridiculous case hasn't already made you realise how pathetic the legal
system is then this latest episode proves it.

One judge directly contradicts another. What more evidence do you need?

I have no faith in the legal system to be fair. Its all about who has the most
money to spend. Imagine if IBM was a small company that didn't have millions to
spend on its defense. Law is all about the money, a very sad state of affairs.


[ Reply to This | # ]

Boies Schiller does unusual things.
Authored by: Anonymous on Monday, August 21 2006 @ 07:32 AM EDT
Actually i was thinking "Boies Schiller does slimey things."

They come across to me as a really slimey law firm...

[ Reply to This | # ]

ambigious request?
Authored by: Anonymous on Tuesday, August 22 2006 @ 01:36 AM EDT
"IBM respectfully requests that the Court enter an order stating that its
prior order dated
January 26, 2006 [Docket #604] remains in effect."

Isn't this too ambigious. If the court entered such order, wouldn't SCO then
have been in contempt of court for asking questions clearly contary to a valid
clear court order?

[ Reply to This | # ]

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