decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Novell Tells the Court It Still Wants Those Transcripts from SCO v. IBM
Monday, December 11 2006 @ 11:10 PM EST

Novell has filed its Reply in Support of Novell's Expedited Motion to Compel Production of Deposition Transcripts and Exhibits from SCO v. IBM [PDF].

Novell is very polite about it, as usual, but it tells the court plainly enough that despite SCO's "miraculous" production of some 56 deposition transcripts and some exhibits from the SCO v. IBM litigation two days before SCO's Memorandum in Opposition to Novell's Motion to Compel was due, SCO has still produced only half of the 130 deposition transcripts in existence. "Given the considerable overlap between this litigation and SCO v. IBM, it strains credulity to argue that the remaining half of the depositions have no relevance here," Novell states. If SCO's 11th-hour production doesn't prove the necessity of Novell's motion to compel, what would? SCO claims Novell's motion is now moot, but Novell disagrees. It wants those remaining deposition transcripts. Ideally, all of them.

At a minimum, it should be compelled to produce the depositions Novell lists, including William Broderick's, Chris Sontag's, Blake Stowell's, Erik Hughes's, one of Jeff Hunsaker's, and six experts' depositions. SCO said it would provide these materials over a year ago. The court ordered it to a year ago. SCO stipulated to a scheduling order permitting Novell to have access to such documents. And Judge Dale Kimball just decided that the Novell case should go first, showing the interconnectedness of the two cases. SCO hasn't offered any reason why the transcripts aren't relevant. Rather, Novell says with a curled lip, SCO merely states that there are no further relevant documents, but "SCO's failure to produce any significant amount of testimony until Novell brought this motion casts doubt on SCO's commitment to a full production." That's legal politesse, but the judge will know how to translate it. Novell is answering SCO's sentence, "Novell's Motion is based on the unfounded and incorrect suspicion that SCO would not produce certain documents in discovery." Right. SCO had turned over only 10 transcripts when Novell filed its Motion to Compel. Novell now has in hand 66. You do the math.

How could Chris Sontag's deposition not be relevant? He was in charge of SCOsource. Blake Stowell? This is a case, in part, for slander of title. Stowell was the spokesman making many of the remarks to the press Novell is taking exception to. Novell sums up that it would like to see all the depositions and exhibits from SCO v. IBM, but at least it would like SCO to have to produce the ones listed "and to adduce its justification for withholding any unproduced testimony, transcript by transcript." That means SCO should have to state, one by one, why each transcript isn't relevant, with specificity.

There you go again. That dratted specificity. SCO can't seem to get away from demands for it.

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

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[address, phone, fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]

Attorneys for Novell, Inc.

_____________________________

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

____________________________

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff and Counterclaim-
Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant and Counterclaim-
Plaintiff.

___________________________________

REPLY IN SUPPORT OF NOVELL'S
EXPEDITED MOTION TO COMPEL
PRODUCTION OF DEPOSITION
TRANSCRIPTS AND EXHIBITS FROM
SCO V. IBM

Case No. 2:04CV00139

Judge Dale A. Kimball

INTRODUCTION

SCO's eleventh-hour production of SCO v. IBM deposition transcripts and exhibits stands as an affirmation of the merits of Novell's motion to compel. During the year between the time SCO explicitly agreed to give Novell access to the deposition transcripts generated in the SCO v. IBM litigation and the filing of Novell's motion, SCO produced only 10 transcripts, and typically omitted production of the deposition exhibits. Miraculously, in the two business days before SCO's opposition to this motion was due, SCO produced an additional 56 transcripts and hundreds of deposition exhibits. SCO's untimely production does not, however, moot Novell's motion, as SCO suggests.

SCO does not dispute that, fourteen months ago, it agreed to give Novell access to the depositions from the SCO v. IBM litigation. Nor does SCO dispute that, a year ago, this Court ordered SCO to do so. SCO also makes no mention at all of its obligation to produce SCO v. IBM transcripts in response to Novell Request for Production No. 1. SCO even declines to address the fact that it never served any objections to that request and therefore waived any objections it now raises.

SCO's only defense to this motion appears to be that it is (now) purportedly in compliance with the obligations imposed by its year-old agreement, this Court's order affirming that agreement, and Novell's Requests for Production. On the contrary, SCO has not made a complete production or complied with its obligations. SCO has produced only half of the approximately 130 SCO v. IBM transcripts. Given the considerable overlap between this litigation and SCO v. IBM, it strains credulity to argue that the remaining half of the depositions have no relevance here. With discovery set to close on February 1, 2007, the fairest solution is

2

to give Novell access to all SCO v. IBM deposition transcripts and exhibits -- access that IBM approves.1SCO has offered no serious explanation for failing to do so.

Failing full production of the SCO v. IBM transcripts and exhibits, SCO should be compelled to produce at least transcripts discussed below and should provide an adequate explanation, on a transcript by transcript basis, why any remaining testimony is withheld.

ARGUMENT

I. SCO DOES NOT DISPUTE NOVELL'S ENTITLEMENT TO ALL
RELEVANT SCO v. IBM TRANSCRIPTS AND EXHIBITS.

SCO does not dispute that, on October 14, 2005, its counsel agreed to give Novell "access to the documents produced in the SCO-IBM litigation," including deposition transcripts and exhibits. (Brakebill Decl. Ex. A.) Nor does SCO dispute that, on December 6, 2005, based on the parties' joint submission, this Court entered a scheduling order permitting Novell access to relevant deposition transcripts and exhibits from the SCO v. IBM matter. (Dec. 6, 2005 Scheduling Order at 2.l, PACER No. 138.) There is therefore no dispute as to Novell's entitlement to all relevant SCO v. IBM transcripts and exhibits.

The significant overlap between the SCO v. IBM litigation and this suit is undeniable. Indeed, Judge Kimball recently decided that this matter should proceed in advance of the IBM litigation for precisely that reason. (The SCO Group, Inc. v. IBM Corp., No. 2:03CV294 (D. Utah 2005), hereinafter "SCO v. IBM," PACER No. 884 (Order Affirming Magistrate Judge's Order of June 28, 2006) at 4-5.) Because of this overlap, it is likely that the majority (if not all)

3

of the depositions taken in the IBM litigation have some relevance to this dispute. SCO nevertheless makes no effort to explain why any of the withheld transcripts are not relevant. Nor does SCO claim that this production is in any way burdensome -- production here is as simple as copying the transcripts and exhibits to CD. SCO therefore should be compelled to make a full production of transcripts and exhibits.

II. SCO DOES NOT ADDRESS, AND THEREFORE CONCEDES, THE
WAIVER OF ITS OBJECTIONS TO NOVELL'S REQUEST FOR
PRODUCTION NO. 1.

Over a year ago, Novell properly sought production of transcripts and exhibits from the depositions of all SCO witnesses and all former Novell employees deposed in SCO v. IBM. (Brakebill Decl. Ex. D, Request No. 1(c)-(e).) SCO never served any objections to these Requests, and its Opposition offers no excuse for that omission. (Id 7.)

SCO has therefore waived any objection to Request No. 1, and its failure to even address this argument concedes as much. See, e.g., Lash v. City of Trinidad, No. 05-cv-01429-PSF-BNB, 2006 U.S. Dist. LEXIS 66033, *2 (D. Colo. Sept. 14, 2006) ("The plaintiff has neither objected to nor responded to the discovery. . . . The plaintiff waived any objections he may have to the discovery by failing to assert them within the time required by the Federal Rules of Civil Procedure.").

On this basis alone, SCO should be compelled to respond completely to Request No. 1.

III. SCO STILL HAS NOT PRODUCED ALL RELEVANT SCO v. IBM
DEPOSITION TRANSCRIPTS AND EXHIBITS.

Including SCO's eleventh-hour production, SCO has produced only 66 of the approximately 130 deposition transcripts generated in the SCO v. IBM litigation. SCO's Opposition claims that it has "identified and produced all the deposition transcripts from the IBM

4

Litigation containing testimony reasonably related to the claims and defenses in this case," and that therefore "[t]here is nothing for the Court to compel." (SCO's Memorandum in Opposition to Novell's Expedited Motion to Compel Production of Deposition Transcripts and Exhibits from SCO v. IBM, PACER Docket No. 170 ("Opp."), at 4.)

It is impossible for Novell to gauge the accuracy of such assertions without access to the unproduced transcripts. Certainly SCO's failure to produce any significant amount of testimony until Novell brought this motion casts doubt on SCO's commitment to a full production. Moreover, an examination of the roster of still-unproduced testimony further undercuts SCO's claims of complete compliance with its obligations. The currently withheld transcripts include:

  • One transcript from William Broderick, a SCO Contract Manager and former Novell employee who has testified as to the meaning of the APA (SCO v. IBM, Decl. of Brent O. Hatch, PACER No. 876, Ex. 333 (Decl. of William Broderick), 7-8);

  • One transcript from Chris Sontag, SCO's head of its "SCOSource" program,

    through which Novell contends SCO has improperly diverted licensing revenue belonging to Novell;

  • One transcript from Blake Stowell, SCO's Director of Communications, the corporate source of many of the SCO statements Novell contends slander its title to the UNIX copyrights;

  • Three transcripts from Erik Hughes, Senior Director of Product Management, who offers a declaration concerning the value of UNIX intellectual property purportedly held by SCO (id., Ex. 1 (Decl. of Erik Hughes), 10);

5

  • One transcript from Jeff Hunsaker, a SCO Senior Vice President and world-wide head of marketing, who is responsible in part for rolling out the SCOSource program and who also offers a declaration concerning the value of UNIX intellectual property purportedly held by SCO (id., Ex. 356 (Decl. of Jeff Hunsaker), 13);

  • One transcript from Michael Olson, SCO's Controller, who offers a declaration concerning the purported transfer of UNIX assets between various SCO entities (id., Ex. 215 (Decl. of Michael Olson), 3-4);

  • One transcript from David Prosser, a former Novell employee involved in the post-APA transition efforts;

  • At least six transcripts from experts offering testimony concerning the damages purportedly suffered by SCO, including valuation of the UNIX assets -- Christine Botosan, Timothy Bresnahan, Avner Kalay, James Kearl, Gary Pisano, and Jonathan Putnam;

  • 24 of the 60 transcripts relied on by IBM in support of its Motions for Summary Judgment, including five of the 10 transcripts IBM cites in support of its motion on SCO's breach of contract claims -- breaches that SCO claims Novell helped instigate (PACER Docket No. 96 (SCO Second Amended Complaint) 19, 61).

6

SCO attempts to dismiss a few of these transcripts in a footnote in its Opposition, but there states only, without explanation, that "the transcripts do not contain responsive testimony." (Opp. at 6 n.3.)2 That is insufficient.

SCO should be compelled to produce all SCO v. IBM deposition transcripts and exhibits. Absent a full production, SCO should be compelled to produce at least the transcripts discussed above and to adduce its justification for withholding any unproduced testimony, transcript by transcript.

CONCLUSION

For the reasons stated above, Novell respectfully requests that this Court compel SCO to produce all remaining deposition transcripts and exhibits from the SCO v. IBM litigation.

DATED: December 11, 2006

ANDERSON & KARRENBERG
/s/ Heather M. Sneddon
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon

-and-

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)

Attorneys for Novell, Inc.

7

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 11th day of December, 2006, I caused a true and correct copy of the REPLY IN SUPPORT OF NOVELL'S EXPEDITED MOTION TO COMPEL PRODUCTION OF DEPOSITION TRANSCRIPTS AND EXHIBITS FROM SCO V. IBM to be served to the following:

Via CM/ECF:

Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE, P.C.
[address]

8


1 IBM has no objection to production of all deposition transcripts and exhibits from the SCO v. IBM litigation. (Decl. of Kenneth Brakebill, PACER No. 173 ("Brakebill Decl."), Ex. B.)

2 SCO also suggests, in a footnote, that its failure to comply with its discovery obligations should be excused because Novell has also purportedly withheld relevant material. (Opp. at 6 n.4.) Even were this true, which it is not, SCO cites no case law supporting such a proposition. Regardless, Novell has invited SCO to clarify any issues SCO has with Novell's production and SCO has made no response. (Brakebill Decl. Ex. E.)


  


Novell Tells the Court It Still Wants Those Transcripts from SCO v. IBM | 130 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: Anonymous on Monday, December 11 2006 @ 11:18 PM EST
If any are needed.

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

OT Links and Stuff
Authored by: Anonymous on Monday, December 11 2006 @ 11:20 PM EST
Thank you for your participation.

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Is the motion fully briefed?
Authored by: jdg on Monday, December 11 2006 @ 11:30 PM EST
Is the motion now fully briefed (Novell made the motion, SCO replied and now
Novell has responded)? If so, when will a hearing be held to decide the motion?

---
SCO is trying to appropriate the "commons"; don't let them [IANAL]

[ Reply to This | # ]

It's really becoming a bit tiresome...
Authored by: DaveF on Monday, December 11 2006 @ 11:44 PM EST
At the very least, the major players on the bench are the same. Our hope, I
imagine, is that they will have become as tired of the old SCO shenanigans as
have we.

---
Imbibio, ergo sum

[ Reply to This | # ]

Discovery Dawdle
Authored by: kawabago on Tuesday, December 12 2006 @ 12:14 AM EST
Novell should just ask IBM for everything, they'd probably gift wrap it!

[ Reply to This | # ]

For PJ: I don't understand!
Authored by: Anonymous on Tuesday, December 12 2006 @ 12:15 AM EST
I don't understand SCO's strategy in witholding documents that the court has
ordered to be produced.

Don't they realize that the court is already fed up with their shenanigans?

Don't they realize that the court will again order production of these
documents?

What can they possibly gain from this tactic, except for another reprimand from
the court?

Sheesh! Their $20 million lawyers don't appear to be very smart at all!

[ Reply to This | # ]

Linux rights better in the hand of Novell or SCO ??
Authored by: Anonymous on Tuesday, December 12 2006 @ 12:43 AM EST
After that deal of Novell with M$, I ask me if it would be
better if SCO wins or lose the action. When it wins (at
least the action against Nowell), the bancrupt SCO could
be buyed by IBM ...

werner

[ Reply to This | # ]

Why would SCO not delay?
Authored by: Anonymous on Tuesday, December 12 2006 @ 01:45 AM EST
Given the choice between losing now and losing later,I'm sure they would the
second one.

What's to keep them from delaying more? Is there a downside?

Could the court just hand over the records?

[ Reply to This | # ]

Can the judge show some pique at ...
Authored by: phantom21 on Tuesday, December 12 2006 @ 02:28 AM EST
Can the judge show some anger or pique at SCO's delaying
tactics or at their obvious non-compliance of a court
order? What are the ramifications?

Can the judge, at this point, in some way penalize the
lawyers or SCO for their obviouse non-compliance?

Mark

[ Reply to This | # ]

  • Nope. - Authored by: OmniGeek on Tuesday, December 12 2006 @ 12:32 PM EST
    • Nope. - Authored by: mpellatt on Wednesday, December 13 2006 @ 02:33 AM EST
Where does IBM say they don't object to that production?
Authored by: chrullrich on Tuesday, December 12 2006 @ 03:15 AM EST

The first footnote refers to "Decl. of Kenneth Brakebill, PACER No. 173 ("Brakebill Decl."), Ex. B.".

I can't find anything like that. No. 173 in SCO vs. Novell is a declaration by Brakebill, but it doesn't have an Exhibit B, and its Exhibit 8 (if typo) is something else entirely (a contract between IBM and AT&T from 1995). No. 173 in SCO vs. IBM is an admission pro hac vice.

I suppose I might be blind, or stupid, but I can't figure out what it is that footnote mentions.

[ Reply to This | # ]

Do court orders to compel production ever have real teeth?
Authored by: Anonymous on Tuesday, December 12 2006 @ 09:18 AM EST
Something that's struck me over the past few years of watching SCO/BSF not
produce documents is the way the court orders seem to follow a mall security
"Stop or I'll say 'stop' again" method of enforcement. Sure, courts
have various sanctions at their disposal to punish litigants, but they seem
extremely disinclined to use them, and, even if they do, the punishments at
their disposal don't seem to assure that the documents are in fact produced.

Is there some scenario in which a court order to compel production of documents
results in, e.g., armed marshals coming to a lawyer's office and simply seizing
them? If so, what would be the prerequisites for something like that to happen?

[ Reply to This | # ]

Lack of Objection Surprising
Authored by: Steve Martin on Tuesday, December 12 2006 @ 09:43 AM EST

Over a year ago, Novell properly sought production of transcripts and exhibits from the depositions of all SCO witnesses and all former Novell employees deposed in SCO v. IBM. (Brakebill Decl. Ex. D, Request No. 1(c)-(e).) SCO never served any objections to these Requests, and its Opposition offers no excuse for that omission. (Id 7.)

SCO has therefore waived any objection to Request No. 1, and its failure to even address this argument concedes as much.

I confess I was rather astounded by this, so I went back and looked for this in the Exhibits to Kenneth Brakebill's Declaration. I found something a bit confusing, though... apparently, while Novell's attorneys in fact attached Novell's First Request for Production as an exhibit to their Memorandum in Support, they also attached TSG's Responses and Objections to Novell's 1st Set of Interrogatories and Second Set of Requests for Production and cite it to support their position that TSG did not object to the First Request for Production. (And indeed it seems TSG's lawyers did not provide itemized objections to any requests at all in the attached document, but rather made generalized, perhaps boilerplate objections.) Is this a mistake on the part of Novell's attorneys, or am I missing something?

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

Novell Tells the Court It Still Wants Those Transcripts from SCO v. IBM
Authored by: Anonymous on Tuesday, December 12 2006 @ 04:45 PM EST
"It is impossible for Novell to gauge the accuracy of such assertions
without access to the unproduced transcripts. "

I seem to remember SCO saying something simular to the judge when they requested
all of thet IBM source code. End the end, they got it.



[ Reply to This | # ]

Novell Tells the Court It Still Wants Those Transcripts from SCO v. IBM
Authored by: dmarker on Tuesday, December 12 2006 @ 09:31 PM EST

What this activity seems to say to me is that tSCOg are still busy doing what
they set out to from the start ... delay, obfusticate, spin, twist, confuse ...
all for the purpose of stalling.

Sometimes I wonder if tSCOg management and BSF as well, are all on special
bonuses from an unnamed large PC OS &Office App developer, whereby every
month that tSCOg & BSF can drag out the current cases & not get a
result, earns them bonus dollars and other prizes.

This penchant for delay seems to have been endemic from the start and seems to
undermine the opinion that tSCOg were after a quick dollar settlement from IBM.

D Marker

[ Reply to This | # ]

I finally figured out the foot gun thing
Authored by: Anonymous on Tuesday, December 12 2006 @ 11:20 PM EST
I've been trying to figure out just how TSG and BS(&F) can continue to fire
off the footgun at point-blank range and still continue this nonsense. The
only answer... they're a centipede, but soon they'll be out of feet...

...D

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )