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IBM's Memo in Opposition to SCO's Motion for Protective Order (Leitzinger)
Wednesday, November 08 2006 @ 10:19 PM EST

Pacer records more activity in SCO v. IBM. IBM has filed its opposition to SCO's Motion for a Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and the time extension flap between the parties has been resolved by stipulation and now signed order.

It turns out to be a much bigger dispute than I expected. IBM is seeking to impeach this expert witness.

From Pacer:

848 - Filed & Entered: 11/07/2006
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of IBM's Memorandum in Opposition to SCO's Motion for a Protective Order filed by Defendant International Business Machines Corporation re [845] MOTION for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and Certificate of Compliance with Rule 37(c) FILED IN REDACTED FORM (Originally Filed Under Seal) (Shaughnessy, Todd)

849 - Filed & Entered: 11/07/2006
Terminated: 11/08/2006
Motion for Extension of Time
Docket Text: Stipulated MOTION for Extension of Time re Deadlines filed by Defendant International Business Machines Corporation. (Attachments: # (1) Text of Proposed Order)(Shaughnessy, Todd)

851 - Filed: 11/07/2006
Entered: 11/08/2006
Sealed Document
Docket Text: **SEALED DOCUMENT** MEMORANDUM IN OPPOSITION to [842]Sealed Motion & to[845] MOTION for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and Certificate of Compliance with Rule 37(c) FILED IN REDACTED FORM (Originally Filed Under Seal) filed by Defendant International Business Machines Corporation. (blk, )

850 - Filed & Entered: 11/08/2006
Mail Returned
Docket Text: Mail Returned as Undeliverable. Mail sent to Frederick S. Frei (djs, )

852 - Filed & Entered: 11/08/2006
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [845] MOTION for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and Certificate of Compliance with Rule 37(c) FILED IN REDACTED FORM (Originally Filed Under Seal) (REDACTED MEMORANDUM) filed by Defendant International Business Machines Corporation. (Attachments: # (1) Exhibit A# (2) Exhibit B# (3) Exhibit C# (4) Exhibit D # (5) Exhibit E# (6) Exhibit F# (7) Exhibit G)(Shaughnessy, Todd)

853 - Filed & Entered: 11/08/2006
Docket Text: ORDER granting [849] Motion for Extension of Time regarding deadlines. Signed by Judge Dale A. Kimball on 11/8/06.(blk, )

Most of the exhibits on 852 are sealed or cases. The stipulated time extensions, as ordered, actually give each side more time than SCO asked for in the Motion IBM fought, so your guess is as good as mine why it ended up like this. Maybe just Christmas and the scheduling conflict mentioned in IBM's opposition or maybe some factor we just don't know about, or maybe IBM just got mad and wanted the court to understand what it's like killing snakes -- for educational purposes. Dealing with SCOfolk, I believe I may say with some authority, can try the patience of a saint.

The Leitzinger issue is turning into a much bigger deal than I anticipated. The IBM memo begins like this:

Dr. Jeffrey Leitzinger is a "professional witness" who for years has made a very good thing, financially, out of his well known willingness to testify with extreme flexibility to suit the convenience of his many litigation clients.

This is a strong statement. If true, it will be highly relevant to a jury's evaluation of Dr. Leitzinger's credibility as someone supposedly bringing the scientific tools of economic analysis to bear on the complex issues the jury is called upon to decide. The law is clear: IBM is entitled to test whether the financial facts fit this picture (as indeed they will), and if so to use them in cross-examination.

Well. I guess I was wrong on this one. I thought it was probably just a man wanting some privacy, such as you typically see. Instead, this is about SCO not wanting IBM to even ask Dr. Leitzinger any questions about his financial situation, and about IBM wanting to get the facts concerning what it calls Dr. Leitzinger's "litigation-related income" in order to raise questions before the jury about his credibility. It says it is established law that the fees of a "chronic expert witness are legitimate material for impeachment." Impeachment just means to challenge his credibility. Footnote 3 explains the why of it all:

3. See, e.g., Trower v. Jones, 520 N.E.2d 297, 300 (Ill. 1988)("We have long recognized that the principal safeguard against errant expert testimony is the opportunity to probe bias, partisanship or financial interest."

IBM's argument is based on the Econ One business. IBM states that Leitzinger and his family together are the majority shareholders, so "a large portion -- even the majority -- of his personal enrichment from any particular engagement results from time spent on the matter by other Econ One staff, and flows to Dr. Leitzinger (or his family) by virtue of his equity ownership, not in fees or salary." And here is the kicker:

As indicated, Dr. Leitzinger and his family are the majority shareholders of a company which he has built up, arguably based on his willingness and ability to provide the testimony that clients desire. If Dr. Leitzinger were to damage that reputation by failing to testify congenially to SCO in the present case, there is little doubt that this would be a "business development" problem not just for him, but for his company.

SCO will, of course, have the opportunity to respond to this. But IBM has raised an issue regarding this expert witness and his credibility. They have the right, they argue, to explore the facts, to see if there is evidence that will be meaningful to a jury that Leitzinger can't be independent, and isn't independent. Hint to IBM: think Alaskan salmon fishing. I hear there's a lot of money in it.

It turns out that SCO has misrepresented Andrew Morton's financial information. Remember when SCO alleged that OSDL pays his salary? That turns out to be inaccurate, and since they asked Morton at his deposition detailed questions about his salary for some years, they had to know it was false, as IBM tells the court. Here are the facts that IBM presents, and you can feel IBM's indignant anger, which I share, behind the words:

  • Mr. Morton became an employee of Rearden Steel (a fanciful name for a technology company) in 2000. He did Linux-related work there. (Id at 79:14-21.) There is no evidence in the record that any other company bore any part of the cost of his salary.

  • Mr. Morton became an employee of Digeo Interactive ("Digeo") when Digeo acquired Rearden Steel in 2001. Digeo paid his salary from that time through August, 2006, and he did not receive income from any other entity. (See id. at 82:18-24; 85:15-87:13; 90:3-20.)

  • In 2003 Digeo entered into a contract with the Open Source Development Laboratory ("OSDL") under which OSDL paid Digeo some sum unknown to Mr. Morton for "kernel services" performed by Mr. Morton upon the Linux kernel... This contractual relationship between Digeo and the OSDL continued until Mr. Morton left Digeo in August, 2006. Mr. Morton never received any income from the OSDL....

  • In August, 2006, Mr. Morton left Digeo and became an employee of Google Inc.... His salary is paid by Google, and SCO cites no evidence (and we are aware of none) that any other entity pays or reimburses Google for any portion of his salary, directly or indirectly.

Doesn't it make your blood boil? SCO wrote that OSDL "pays Mr. Morton's salary" as if that put him on a plane with Dr. Leitzinger, a professional witness:

8. The sole justification IBM gives for seeking such information -- that SCO sought such information from IBM expert Andrew Morton -- has no applicability here. Mr. Morton's income is relevant for reasons that are entirely inapplicable to Dr. Leitzinger: IBM co-founded, funds, and largely manages and controls the OSDL, which pays Mr. Morton's salary. The payment of salary to Mr. Morton under these circumstances, as well as the amount of that salary, is highly pertinent to the partiality of his opinions in this case.

Aside from it being factually not true (and IBM also attaches an Exhibit D [PDF], showing that there are 70 members of OSDL, and that one of them used to be Caldera), even if it had been, there is no comparison. Morton doesn't make a living from testifying as an expert at trials, and I am sure I may state with confidence that he has no such ambition. SCO has that deterrent effect on us all, I suspect. Once one sees just how mean and lowdown it can get, a bit of the dew is off the rose, shall we say.

SCO did the deposition only two days before Dr. Leitzinger's. They asked Morton detailed questions about his financial affairs, including asking what his salary is at Google and they even asked about his stock options. IBM points out the difference between the two experts, and then it sums up: since SCO got to ask, IBM should too -- "the time-honored principle of 'sauce for the goose' should carry the day."

And speaking of geese, here's a hint for SCO, just to be even-handed: I believe that if SCO tries this kind of denigration of an honorable man at trial, should there even be a trial, they will find the jury will not like it one bit and that SCO's goose will end up cooked. There are a lot of decent, down-to-earth people in Utah, and they are very unlikely to respond well to what will look to them like city slicker slippery half-truth-telling sharpy lawyers trying to besmirch a good man's name. Not saying that is what this is, you understand, just saying that is how it will look to a jury of decent folks. Trust me on this one.

Not that they will pay any attention to my advice. If they had, they wouldn't be in this pickle. I surely tried and tried to warn them about the GPL. But would they listen?


  


IBM's Memo in Opposition to SCO's Motion for Protective Order (Leitzinger) | 93 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please.
Authored by: grahamt on Wednesday, November 08 2006 @ 10:30 PM EST
.

[ Reply to This | # ]

IBM's Memo in Opposition to SCO's Motion for Protective Order (Leitzinger)
Authored by: Anonymous on Wednesday, November 08 2006 @ 10:37 PM EST
When this first came up, I posted some links to other cases where professional
witnesses had been questioned about their financial affairs.

I seem to remember that there was even one, where the situation was almost
exactly identical: An allegedly professional expert witness was questioned
about his financial affairs, and the side employing him immediately filed for a
protective order. Anyway, in this other case, the allegedly professional expert
witness was in the habit of immediately withdrawing if his questioned about his
financial affairs.

There were also links to other cases involving Dr J.L.'s testimony, and in some
cases judge's criticism of his testimony. Some of which I posted, and some of
which others posted.

I don't have time now, but if somebody has the time and inclination, maybe they
can go back to the old stories (I think there were 2) where these comments were,
and produce a consolidated list of these links.

Quatermass
IANAL IMHO etc.

[ Reply to This | # ]

Off Topic
Authored by: Woad_Warrior on Wednesday, November 08 2006 @ 10:44 PM EST
Please make links clickable.

[ Reply to This | # ]

Morton at Diego
Authored by: Ed L. on Wednesday, November 08 2006 @ 10:49 PM EST
I'm uncertain as to what PJ is quite so upset with concerning Mr. Morton. Diego paid Mr. Morton, at least in part for his work developing and maintaining the kernel. IBM appears to have paid Diego some sum for "kernel services", presumably as rendered by Mr. Morton. SCO wishes to establish that Mr. Morton therefore is/was not independent from IBM. IBM argues that Morton is independent and that is fine and I may probably agree with them. But I don't see what is wrong with SCO trying to establish otherwise in light of the financial arrangement between IBM and Diego.

Nor do I see what's wrong with IBM trying to establish a similar (if it is in way way similar) relationship between Dr Leitzinger and his, er, "clients."

:-)

---
"They coulda and they shoulda and they knew it but they didn't." ~ The Hon. Brooke Wells in a Nutshell

[ Reply to This | # ]

IBM's Memo in Opposition to SCO's Motion for Protective Order (Leitzinger)
Authored by: Anonymous on Wednesday, November 08 2006 @ 11:45 PM EST
<p>"Rearden Steel (a fanciful name for a technology
company)"</p>

<p>This, I am fairly certain, is an homage to <a
href="http://en.wikipedia.org/wiki/Characters_in_Atlas_Shrugged#Hank_Rearde
n">a character from Ayn Rand's "Atlas
Shrugged."</a></p>

<p>This caught my eye so I thought I'd share.</p>

[ Reply to This | # ]

SCO hires snake oil salesman!
Authored by: kawabago on Thursday, November 09 2006 @ 12:32 AM EST
Dr. Leitzinger - it even sounds phoney!

This is why I never put much stock in the letters Phd after someone's name
because when you pronounce them they sound just like FUD!

[ Reply to This | # ]

Two previous comments document Leitzinger finances as issue in the Bristol Bay Salmon case
Authored by: stats_for_all on Thursday, November 09 2006 @ 12:52 AM EST
Leitzinger's hourly rate and total compensation was an issue in a big Alaskan fish story

Leitzinger mercenary testimony was lead in the defendant's closing argument.

[ Reply to This | # ]

IBM's Memo in Opposition to SCO's Motion for Protective Order (Leitzinger)
Authored by: rsteinmetz70112 on Thursday, November 09 2006 @ 12:56 AM EST
The only possible reason for SCO objecting to this must be that Leitzinger
insisted on it.

No sane lawyer would go to this much trouble trying to hide something which is
clearly relevant. They must know they will lose and that the judge might not
appreciate it and will certainly remember it.

---
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 | # ]

"This is a strong statement"
Authored by: webster on Thursday, November 09 2006 @ 01:41 AM EST
.

1. Wow. What a start! This promises to be dastardly and devastating. It
could destroy this man as a professional witness. Whatever IBM does every other
opposing litigant to this expert will copy. He will try and withdraw again if
it is not too late and try and save his hide. I don't think IBM believes this
is going to trial or they may have pulled some punches to set him up. (Wow
again. Maybe they did pull some punches!)

2. I BM argues that his financial information goes to credibility; that what he
earned in the past is relevant to show his motivation to offer the
"right" testimony. IBM hopes to knock a few zeros off the 5 billions
in damages that SCO lost due to all that code of theirs being in Linux. [They
plan to axe him how many billions did Caldera Linux damage SCO, too.]

3. The Part II Dr. L's relationship with Econ One is a roadmap for cross
examining him in the future. It might even be worse if his answers in the past
were not "candid" and disguised his full compensation. IBM has those
transcripts.

4. SCO has asked for more extensive info than they are asking for IBM's
witness. IBM's bites hurt, "No doubt the scale of Dr. Leitzinger's income
will be rather different, and unlike that of Mr. Morton it will be largely
litigation-derived--but then, that's the point." Mr. Sullivan had fun
writing this one.

5. In the end IBM is merciful asking either a resumption of the deposition or a
statement with all the information they want.

6. He is going to have to provide this information forevermore or his testimony
will be disregarded. He may have to give himself a pay cut to regain
credibility. IBM plans to also axe him how much of the SCO work he did on his
$10,000,000 yacht.

7. Docta L should be happy and probably is. This is getting his name about.
He is skilled and flexible. He helps lawyers with their cases, he substantiates
damages. His services are dear, but obviously cost-effective. With some
well-delivered zeros, he can help you build your case.



---
webster

[ Reply to This | # ]

Why not wait?
Authored by: IMANAL on Thursday, November 09 2006 @ 02:40 AM EST
Couldn't IBM ask for Dr Leitzinger to appear in trial, and
ask all these questions in front of the jury? Or is
it 'better' to deprave him of any reputability beforehand?



---
--------------------------
IM Absolutely Not A Lawyer

[ Reply to This | # ]

Does Andrew Morton live in the US?
Authored by: Anonymous on Thursday, November 09 2006 @ 03:49 AM EST

Just idle curiosity, but I thought I remembered Andrew once claiming a desire to keep well clear of the US, even its air space, after all the hoo-ha over the Russian security expert getting arrested ...


Or was that someone else, I get confused sometimes over who is who in the high end of the Linux community ... actually, I just get confused, but you know what I mean.


[ Reply to This | # ]

Where are the redactions in IBM 852?
Authored by: kinrite on Thursday, November 09 2006 @ 04:31 AM EST
The PDF does not show any sections marked as being redacted. Has there been a
slip up?

---
"Truth is like energy...it can not be created, nor destroyed"

[ Reply to This | # ]

The old term is "Post Knight"
Authored by: Anonymous on Thursday, November 09 2006 @ 06:26 AM EST
It's a 17th century English term for the professional witnesses who hung around
the board or post on which announcement of upcoming legal cases were nailed.
The Post Knights would offer testimony in support of defendants (or litigants),
for an appropriate fee.

Goes to show, nothing much changes.

[ Reply to This | # ]

No Surprises
Authored by: Anonymous on Thursday, November 09 2006 @ 10:41 AM EST
Unlike TV lawyers, real lawyers usual can't spring big surprises on the
opposition at trial. They have to brief anything substantial in advance or
opposing council can object, resulting in the judge having to rule on the
admissibility of the evidence at hand. That usually means the jury is sent from
the room while the lawyers argue about it.

Judges hate that, so the attorney is better served dealing with it in pretrial
briefs. How they actually use the information during the trial can be
surprising to the opposition, but it can then be argued that the evidence has
already been admitted, so objections are inappropriate.

[ Reply to This | # ]

probably not
Authored by: Anonymous on Thursday, November 09 2006 @ 11:57 AM EST
Moist was described as a "criminally perverted genius" or
some-such. SCO seem to have criminally perverted down to a
tee but genius doesn't fit them nearly so well.

They remind me more of the new board of the grand trunk
company now I think about it. most of them probably got
fed to the scorpions, as Vetinari must have run out of
mime artists years ago.

some of the slippery layering might impress him but that
isn't SCOs job, and I doubt that that would be enough to
save many from some sort of retribution.

[ Reply to This | # ]

Why ask Morton about Google?
Authored by: Khym Chanur on Friday, November 10 2006 @ 01:31 AM EST

I'm trying to figure out why SCO would bother asking Morton about his renumeration at Google. This being SCO, it wouldn't be surprised if it was some reason that no sane person could anticipate, but I have a few (probably wrong) guesses:

  • SCO hopes to prove that Morton's expenditures exceed what he gets from Google, so he must be receiving extra, unreproted money from somewhere, probably IBM.
  • Google uses an enormous number of Linux machines. If they had to pay SCO licensing fees, Google's profits would be a lot less, so Morton's salary and benefits would be a lot less. If SCO wins against IBM and gets enough in damages, then they'd have enough money to be able to sue Google for licensing fees, thus Morton would be motivated to make sure that the damages SCO gets are as small as possible.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

There is something strange here
Authored by: AH1 on Sunday, November 12 2006 @ 11:03 AM EST
I find it interesting that IBM is making such a strong argument about Dr.
Leitzinger being an impartial expert witness in this case. If you go to the
Econ One website you will find that IBM is listed on the Econ One client list
along with Caldera International Inc. (Yet not TSG.)
<a href = "http://www.econone.com/our_clients/businesses.html">
Econ One Clients </a>

[ Reply to This | # ]

Re: Fanciful Name for a Technology Company
Authored by: Anonymous on Monday, November 13 2006 @ 05:28 PM EST
From IBM's factum: "Mr. Morton became an employee of Rearden Steel (a
fanciful name for a technology company) in 2000."

Clearly the junior associate who drafted this factum either did not read or does
not remember Atlas Shrugged. For Rearden Steel is the fictional corporation and
the fictional product which 'the Moochers' and 'the Looters' wish to steal from
Hank Rearden in that novel....Interesting actually, as IBM is in the position of
Hank Rearden and SCO is the looter....

So then, who is John Galt in this scenario?

RGN

[ Reply to This | # ]

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