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Another BS&F Lawyer Bids SCO a Fond Adieu - Scott Gant - Update
Thursday, September 14 2006 @ 10:17 PM EDT

Do you remember at the 2004 Otis Wilson deposition the SCO lawyer who said, "Where is Freud when you need him?" And then IBM's David Marriott answered, "Dead." To remind you and provide the context, here's the interchange:
MARRIOTT: [reading from Mr. Wilson's earlier written Declaration] "I understood that many of our licensees invested substantial amounts of time, effort and creativity in developing products based on UNIX System V. The derivative works provision of the software agreement was not meant to appropriate for IBM" -- "was not meant to appropriate for AT&T," rather, "or USL the technology developed by our licensees." Is that -

MR. GANT: Where is Dr. Freud when we need him?

MR. MARRIOTT: Dead."

I thought they were both quite clever. Well, there is a motion [PDF] to let Gant leave the case now also. SCO is losing attorneys right and left. The motion doesn't say why. I'm guessing maybe Boies Schiller read the latest SCO financials? No, I'm just kidding. I have no idea why.

Gant is the author of an article, by the way, "The Law of Unintended Consequences." I know. My irony meter is exploding too. I'm kidding around, of course as usual. The full title is "The Law of Unintended Consequences: Supreme Court Jurisdiction Over Interlocutory Class Certification Rulings," in case you're looking for something to take to the beach to read before the season is over for the year. Anyway, I thought we should mark his departure, since we've been through so much together.

Here's his bio on Findlaw. He's actually an impressive guy, and I'm really glad he's heading off to other adventures in another galaxy far, far away from the SCO alternate universe. Mr. Gant may be looking forward to it too. Probably Mr. Wilson feels the same way. I doubt Mr. Marriott cares one way or another who comes at him. He just stands his ground, no matter who SCO sends. But everyone enjoys someone with a sense of humor, and so, farewell Mr. Gant. We enjoyed watching you at work.

By the way, the court still can't find Mr. Frei to tell him about the two new SCO lawyers. I guess that proves the court doesn't read Groklaw.

: )

Speaking of lawyers, there is a fascinating discussion by some lawyers going on at the Wall Street Journal's Law Blog, where they are debating the HP story, using the Larry Sonsini-Tom Perkins email exchange as the springboard.

Update: I hear from stats_for_all that Mr. Gant has written a book that we really will want to read, at least I know I will. It's about bloggers and the law. Here's the info:

Were All Journalists Now:
The Transformation of the Press
and Reshaping of the Law in the Internet Age

The Free Press, 2007


  


Another BS&F Lawyer Bids SCO a Fond Adieu - Scott Gant - Update | 138 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: peterhenry on Thursday, September 14 2006 @ 10:25 PM EDT
Here Please......

---
--We have met the enemy and he is us......Pogo

[ Reply to This | # ]

OFF TOPIC
Authored by: peterhenry on Thursday, September 14 2006 @ 10:26 PM EDT
Thread starts here

---
--We have met the enemy and he is us......Pogo

[ Reply to This | # ]

If your local PBS has Charlie Rose: TUNE IN NOW 23:34 EDT
Authored by: jog on Thursday, September 14 2006 @ 11:35 PM EDT
Up coming discussion of HP
jog

[ Reply to This | # ]

The reason Mr. Gant leaves SCO
Authored by: Anonymous on Thursday, September 14 2006 @ 11:52 PM EDT
The ship is sinking. Fast. Very fast!

He barely sees the land from the distance. Jump ship and swim before it's much
too late.

:D

[ Reply to This | # ]

On the HP story
Authored by: MadScientist on Friday, September 15 2006 @ 07:29 AM EDT
Having read the replies on the link PJ provided there are a few points I think
might be of interest here in GL

The story in short:

Perkins mailed the HP outside counsel Sonsini. Baskins is the HP General Counsel
who is married to a partner in Sonsini's firm.

Perkins had discussed the HP matter with another lawyer who was quite adamant
that Dunn's investigation was illegal. Seeking a second opinion here Perkins
mailed Sonsini.

It seems that Sonsini was not part of the investigating team. But the case did
involve outside counsel. The firm employed is not identified but it was probably
the same one. Sonsini did review the investigation before it went to the baord.


Perkins when he mailed Sonsini had resigned from the board.

Sonsini reminded him that he (Perkins) had an ongoing duty of confidentiallity
to HP and promised his he (Sonsini) would look into the matter.

Sonsini mailed him back with the reply posted below.

+++++++++++

Tom,

I looked into the conduct of the investigation and got a report from counsel at
HP who was responsible for the effort. I confirmed his input by talking to Ann
Baskins. Here is what I learned:

1. There was no recording, review or monitoring or director e-mail.
2. There was no electronic surveillance to monitor director communications.
3. There was no phone recording or eavesdropping.
4. The investigating team did not attempt to obtain the phone records of
non-employee directors.
5. The investigating team did obtain information regarding phone calls made
and received by the cell or home phones of directors. This was done through a
third party that made pretext calls to phone service providers. Apparently a
common investigatory method which was confirmed with experts. The legal team
also checked with outside counsel as to the legality of this methodology.
6. There was no “secret spying” i.e. no electronic gear, listening
devices, etc., were used.

It appears, therefore, that the process was well done and within legal limits.
The concerns raised in your e-mail did not occur.

+++++++++

Thoughts on this

A. Sonsini was and still is counsel to HP. Perkins when he wrote this mail was
not a director or an employee of HP. While replying to Perkins may have been
good PR (damage control) is this allowed under the duty of confidentiality
Sonsini owes to his client? Sosnini knew or could reasonably be expected to know
that emails can and have been "leaked" in the past and used in court.


B. Assuming that it was Sonsini's firm that was invovled in the pretexting scam
what if any responsibility does he have as a partner in this firm for engaing in
what appears to be criminal activity?

C. Sonsini reviewed the report before it was presented to the board. The CA code
curiously does not recognise the crime exception to attourney-client privledge
so he may have some protection there.

This may not be recongised under federal law. A poster on the WSJ site has
suggested that these actions fall under wire fraud and has quoted the relevent
part of the statute at lenght. I have to say that looks pretty good to me. Does
anyone here have an opinion on this matter?

D. The reply posted here was attached to the SEC letter.

It seems that there may or may not have been outside counsel involved here. The
effort was certainly driven by Baskin. This is somewhat at variance with what
other sources have suggested. Clearly the situation isnt quite clear on this yet
no matter what Sonsini says.

"1. There was no recording, review or monitoring or director e-mail."

This is incorrect. All e mail is recorded. if a director sent a e mail from HP
the HP servers recorded it. Likewise monitering is normally fairly automatic if
only to control spam flow. Was anything else monitered and reviewed?


"2. There was no electronic surveillance to monitor director
communications."

Whatever electronic surveillance" means here let alone
"communications".

"3. There was no phone recording or eavesdropping."

To do that would have been very stupid as even the present US administration has
found out.

"4. The investigating team did not attempt to obtain the phone records of
non-employee directors."

Reading this I wonder if the investigating team did attempt to obtain the
records of employee directors. Since Dunn is on the record saying she had hers
investigated does this mean that she was an 'employee director'? This seems a
bit odd given that she was the chairman who is normally an non employee
director: maybe they do things differently at HP.

5. Yes - pretexting was involved. This was cleared by both internal legal and
outside counsel. But the CA AG, the US senate and the FBI without the detail
that was available to the HP mob think that it was illegal. Speaks volumes for
the quality of lawyers involved here.

"6. There was no “secret spying” i.e. no electronic gear, listening
devices, etc., were used."

Heaven help us. This chap works for HP and apparently for other high tech firms.
He apparently doesnt know that a ccomputer is 'electronic gear' as commonly
understood.

Now either this mail is complete nonsense (possibly) or he is deliberately being
misleading. If so he is IMHO not doing a very good job of it.

On the WSJ site there is a lot of legal bumft being discussed but there is IMHO
a derth of tech input. Hence this post here.

Your opinion is being sought.

[ Reply to This | # ]

BS&F Lawyers Bid Adieu
Authored by: rsteinmetz70112 on Friday, September 15 2006 @ 08:36 AM EDT
I have heard that BS&F has retention problems. Is that true? Does anyone
have any reliable information on their turnover rate?

I wonder if this is par for the course at BS&F. I have seen companies (but
not law firms) where this kind of thing was normal.

---
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 | # ]

The WSJ Requires Log In
Authored by: Anonymous on Friday, September 15 2006 @ 09:06 AM EDT
<<<
Speaking of lawyers, there is a fascinating discussion by
some lawyers going on at the Wall Street Journal's Law
Blog,,,,
>>>

The WSJ requires log in.

Is it legal to circumvent a website"s log in procedure?

[ Reply to This | # ]

Interesting Article, PreText Order Site
Authored by: shiptar on Friday, September 15 2006 @ 09:26 AM EDT
I haven't seen this mentioned here, but there was some discussion of the Pretexting issue a while back. My apologies if this has been brought up, feel free to take down the post if it has.

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/07/A R2005070701862_pf.html

As well as a plethora of sites that still exist where you can order cell phone records, among other things it seems.

http://cell.reverserecordsonline.or g/

Maybe, just maybe, someone should really try to bring up the real issues. Like perhaps the FTC banning the practice? I understand, think of the children and board members first, but really, the focus needs to change from how victimized these dozen or so people were. They certainly weren't the first victims.

Though I have to admit, it's pretty funny no one listened then, it takes a corporate scandal to bring the issue to light.

[ Reply to This | # ]

At what point does the court say "No"
Authored by: DannyB on Friday, September 15 2006 @ 09:42 AM EDT
At what point will the court not allow lawyers to depart the sinking SCO case?

Can all the lawyers leave?

The court must be aware of the lack of SCO evidence, the record of this
litigation, the gaming of the system done by SCO, etc.


---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Another BS&F Lawyer Bids SCO a Fond Adieu - Scott Gant
Authored by: Anonymous on Friday, September 15 2006 @ 10:46 AM EDT
Wow. Thanks for the pointer to the WSJ discussion thread. It is really
interesting to see the range of reactions. From:

Dunn's and HP's actions were plainly illegal. Any fool can see that on the face
of it. Sonsini is basically lying.

To:

Pretty much anything that has not already been litigated and which represents a
bigger profit than an alternative action is perfectly legal. No issue.

[ Reply to This | # ]

Another interesting thing
Authored by: jmc on Friday, September 15 2006 @ 11:55 AM EDT
Looking at the cast list and the lawyers from BS&F who are still there, I
looked at BS&F's web site and the potted bios.

None of them seem to mention SCO in their list of big cases!

Only Frederick S Frei (from another firm) seems to bother.

I haven't done the whole cast list so I could be wrong here but I do get the
feeling that BS&F aren't that proud of representing SCO.

[ Reply to This | # ]

Gant writes a book on Blogging Journalists
Authored by: stats_for_all on Friday, September 15 2006 @ 05:27 PM EDT
Gant is listed with his literary agent for a upcoming title on Internet Journalists and the law. Its not due until 2007.

[ Reply to This | # ]

Another BS&F Lawyer Bids SCO a Fond Adieu - Scott Gant - Update
Authored by: Anonymous on Saturday, September 16 2006 @ 04:35 PM EDT
Dear readers:

I guess No one wants to be on the losing side of an argument if it is not boding
well for your career.
That is where SCO is losing as well. The brain drain has to be staggering. Mean
while back at the Canopy Group camp I wonder what they are planning to do with
their SCO company has anyone heard?

This could get interesting by the year 2007.

Sincerely;
Draq Wraith

[ Reply to This | # ]

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