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Novell Tells the Court It Still Wants Those Transcripts from SCO v. IBM |
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Monday, December 11 2006 @ 11:10 PM EST
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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
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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)
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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
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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:
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- 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).
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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.
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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]
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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.)
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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 | # ]
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Authored by: Anonymous on Monday, December 11 2006 @ 11:20 PM EST |
Thank you for your participation.
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--Bill P, not a lawyer. Question the answers, especially if I give some.[ Reply to This | # ]
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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?
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SCO is trying to appropriate the "commons"; don't let them [IANAL][ Reply to This | # ]
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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 | # ]
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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 | # ]
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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 $20 million lawyers don't appear to be very smart at all![ Reply to This | # ]
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- Delay, delay, delay... - Authored by: otzenpunk on Tuesday, December 12 2006 @ 12:28 AM EST
- Probably hoping the judge will display some bias and get kicked off - Authored by: Anonymous on Tuesday, December 12 2006 @ 12:32 AM EST
- For PJ: I don't understand! - Authored by: jiri on Tuesday, December 12 2006 @ 12:34 AM EST
- For PJ: I don't understand! - Authored by: jdg on Tuesday, December 12 2006 @ 12:35 AM EST
- For PJ: I don't understand! - Authored by: webster on Tuesday, December 12 2006 @ 01:00 AM EST
- For PJ: I don't understand! - Authored by: Dave23 on Tuesday, December 12 2006 @ 01:01 AM EST
- For PJ: I don't understand! - Authored by: PJ on Tuesday, December 12 2006 @ 04:21 AM EST
- For PJ: I don't understand! - Authored by: DaveJakeman on Tuesday, December 12 2006 @ 04:35 AM EST
- SCO's lawyers are doing their job well - Authored by: Anonymous on Tuesday, December 12 2006 @ 05:10 AM EST
- What can they possibly gain from this tactic? - Authored by: Anonymous on Tuesday, December 12 2006 @ 02:36 PM EST
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Authored by: Anonymous on Tuesday, December 12 2006 @ 12:43 AM EST |
After that deal of Novell with M$, 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 | # ]
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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 | # ]
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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 | # ]
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- 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
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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