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CA Gets Outside-Counsel-Only Confidentiality; and Extensions on Expert Discovery in Novell - updated
Thursday, April 19 2007 @ 11:52 PM EDT

Do you remember Computer Associates mentioning needing a protective order to protect CA's confidential materials before it would agree to submit to Novell's subpoena (not that it wanted to at all)? Well, the parties and CA have stipulated to a second addendum [PDF] to the original protective order in SCO v. Novell whereby CA's confidential materials can be viewed by outside counsel only. I guess that means CA will do the deposition and turn over the documents Novell asked for. It only took around four months to achieve.

You can see the details in the Second Stipulated Addendum to Protective Order [PDF]. There was a first addendum to the protective order in March, for the benefit of IBM, you'll recall. The terms for CA's protection are identical to those IBM got, except that they apply to both parties, Novell and SCO. Only outside counsel for the parties can view CA's confidential materials.

No doubt that means we don't get to see any of it, unless someone refers to it at a hearing, attaches it as an exhibit to a filing, leaks it by poor PDF control or whispers it to a friendly journalist or whatever.

Like that would ever happen. Who'd do a thing like that?

Seriously, I think one can comprehend a little paranoia about confidentiality in the SCO litigation, given the history in the IBM case, and I'm not sure even outside counsel can be relied on. But the point is, CA negotiated for its privacy and wouldn't agree to the subpoena without the protection, and it's now entitled to it, so that's the result of the tug of war, and we'll respect it here at Groklaw. I think CA could have gotten it without a struggle, actually. It's quite normal to provide protection of that kind. The tug of war was more about not wanting to do the deposition or turn over documents at all, if possible.

And SCO and Novell have also agreed to give each other two more weeks for all expert discovery deadlines [PDF]. There could be a connection, of course, since Novell wanted to depose CA and get some documents, and likely they want their experts to dig a little into that pile of information. If so, then it would indicate to me that probably the deposition of CA will happen shortly. [Update: To refresh our memories as to topics that might come up, you might want to reread this article on CA's SCOsource license and various connections.]

The change in dates in no way alters the trial date, which is still set for September. Wow. September. That's only a few months away. Can it really be -- a light at the end of the tunnel at last?

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

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
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC., a Delaware corporation,

Plaintiff/Counterclaim-Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant/Counterclaim-Plaintiff.

STIPULATION AND JOINT
MOTION FOR ENTRY OF SECOND
STIPULATED ADDENDUM TO
PROTECTIVE ORDER

Case No. 2:04CV00139

Judge Dale A. Kimball

Plaintiff and Counterclaim-Defendant The SCO Group, Inc. and Defendant and Counterclaim-Plaintiff Novell, Inc., pursuant to Federal Rule of Civil Procedure 26(c), hereby stipulate to and jointly move the Court for entry of the attached Second Stipulated Addendum to Protective Order in this matter, to provide for the production in this litigation of certain confidential information by third-party CA, Inc.

Dated: April 19, 2007

BOIES, SCHILLER & FLEXNER LLP

By: /s/ Edward J. Normand
(Signed copy of document bearing
signature of Edward J. Normand is being
maintained in the office of filing attorney)

Attorneys for The SCO Group, Inc.
[address]

ANDERSON & KARRENBERG

By: /s/ Heather M. Sneddon

Attorneys for Novell, Inc.
[address]

2

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 19th day of April, 2007, I caused a true and correct copy of the foregoing STIPULATION AND JOINT MOTION FOR ENTRY OF SECOND STIPULATED ADDENDUM TO PROTECTIVE ORDER to be served to the following:

Via CM/ECF:

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

Stuart H. Singer
William T. Dzurilla
Sashi Bach Boruchow
BOIES, SCHILLER & FLEXNER LLP
[address]

David Boies
Edward J. Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Devan V. Padmanabhan
John J. Brogan
DORSEY & WHITNEY, LLP
[address]

Via U.S. Mail, postage prepaid:

Stephen Neal Zack
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Heather M. Sneddon

3

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

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
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC., a Delaware corporation,

Plaintiff and Counterclaim-Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant and Counterclaim-Plaintiff.

SECOND STIPULATED ADDENDUM
TO PROTECTIVE ORDER

Case No. 2:04CV00139

Judge Dale A. Kimball

WHEREAS, on August 1, 2006, this Court entered a Stipulated Protective Order ("Protective Order");

WHEREAS, Novell, Inc. has requested that third-party CA, Inc. (formerly Computer Associates International) produce documents in response to a subpoena issued on February 1, 2007;

WHEREAS, CA, Inc. will consent to such production provided the parties execute an addendum to the Protective Order allowing for the designation of CA, Inc.'s confidential and proprietary material as Outside Counsels' Eyes Only;

IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff/CounterclaimDefendant The SCO Group, Inc. and Defendant/Counterclaim-Plaintiff Novell, Inc. that the Protective Order shall be amended as follows, subject to the approval of the Court:

CA, Inc. may designate as Outside Counsels' Eyes Only those documents that could otherwise have been designated as Confidential under the Protective Order. Such material is entitled to the protections afforded by the Protective Order to the parties' Confidential material, with the following modifications:

i. "In-house counsel" is excised from the persons to whom disclosure is permitted under Protective Order paragraph 4(a).

ii. Disclosure is not permitted to the persons described in Protective Order paragraph 4(b).

iii. The Protective Order paragraph 8(a) designation for Outside Counsels' Eyes Only material shall be "Confidential - OUTSIDE COUNSELS' EYES ONLY Subject to Protective Order, SCO v. Novell, Civil Case No. 2:04CV00139 DAK."

2

STIPULATION

Dated: April 19, 2007

BOIES, SCHILLER & FLEXNER LLP

By: /s/ Edward J. Normand
(Signed copy of document bearing
signature of Edward J. Normand is being
maintained in the office of filing attorney)

Attorneys for The SCO Group, Inc.
[address]

ANDERSON & KARRENBERG

By: /s/ Heather M. Sneddon

Attorneys for Novell, Inc.
[address]

ORDER

DATED:_________________

______________________
Hon. Dale A. Kimball
United States District Court Judge

3

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

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
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC., a Delaware corporation,

Plaintiff and Counterclaim-
Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant and Counterclaim-
Plaintiff.

STIPULATION AND JOINT MOTION
TO EXTEND ALL EXPERT
DISCOVERY DEADLINES

Case No. 2:04CV00139

Judge Dale A. Kimball

Plaintiff and Counterclaim-Defendant The SCO Group, Inc., through its undersigned counsel, and Defendant and Counterclaim-Plaintiff Novell, Inc., through its undersigned counsel, hereby stipulate and jointly move the Court to extend all expert discovery deadlines by two weeks as follows:

(a) The deadline for parties bearing the burden of proof on issues to designate and submit the reports of its expert witnesses on those issues, if any, shall be extended to May 14, 2007.

(b) The deadline for submitting any opposing expert reports shall be extended to June 11, 2007.

(c) The deadline for submitting any rebuttal expert reports shall be extended to June 26, 2007.

(d) Expert depositions shall commence no earlier than July 2, 2007, and shall be completed by July 10, 2007. All expert depositions will be taken where the expert resides, unless otherwise agreed.

The September 17, 2007 trial date shall not change.

DATED: April 19, 2007

ANDERSON & KARRENBERG

/s/ Heather M. Sneddon
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
Attorneys for Novell, Inc.

DATED: April 19, 2007

BOIES, SCHILLER & FLEXNER LLP

/s/ Edward J. Normand
(Signed by filing attorney with permission of
Edward J. Normand)

Edward J. Normand
Attorneys for The SCO Group, Inc.

2

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 19th day of April, 2007, I caused a true and correct copy of the foregoing STIPULATION AND JOINT MOTION TO EXTEND ALL EXPERT DISCOVERY DEADLINES to be served to the following:

Via CM/ECF:

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

Stuart H. Singer
William T. Dzurilla
Sashi Bach Boruchow
BOIES, SCHILLER & FLEXNER LLP
[address]

David Boies
Edward J. Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Devan V. Padmanabhan
John J. Brogan
DORSEY & WHITNEY, LLP
[address]

Via U.S. Mail, postage prepaid:

Stephen Neal Zack
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Heather M. Sneddon

3


  


CA Gets Outside-Counsel-Only Confidentiality; and Extensions on Expert Discovery in Novell - updated | 417 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: Anonymous on Friday, April 20 2007 @ 12:13 AM EDT
Should any be needed.

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

[ Reply to This | # ]

Off Topic
Authored by: Anonymous on Friday, April 20 2007 @ 12:15 AM EDT
Preferably with clickies.

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

[ Reply to This | # ]

Can it really be -- a light at the end of the tunnel at last?
Authored by: Anonymous on Friday, April 20 2007 @ 12:36 AM EDT

As Wiley Coyote could testify - it's a train.

Gotta love those Warner Brothers tunes - best animated stuff ever done.

[ Reply to This | # ]

It would be interesting to see the reasoning behind the SCOsource they bought
Authored by: kawabago on Friday, April 20 2007 @ 12:38 AM EDT
Like why did a technology consulting company pay all that money for something
SCO doesn't even own? It doesn't make them look like they could give good
advice and this is the second time CA has made itself look bad in my eyes. I'm
really beginning to wonder how they stay in business at all, they just don't
seem to be very smart.

[ Reply to This | # ]

CA Gets Outside-Counsel-Only Confidentiality; and Extensions on Expert Discovery in Novell
Authored by: Anonymous on Friday, April 20 2007 @ 01:02 AM EDT
It's times like this I wish my favourite IT litigation news source really
[i]was[/i] an
IBM propaganda conspiracy - that way perhaps we could be sure of getting the
juicy bits via a brown envelope.

A trial in September? Maybe. I'm sure SCO's lawyers are presently hard at work
coming up with some reason to delay the inevitable.

[ Reply to This | # ]

Questions of the 'Casual Litigation Observer'
Authored by: Anonymous on Friday, April 20 2007 @ 01:28 AM EDT
IANAL so I have a few questions rattling around in my mind...

1) My understanding of the progression of litigation is that it is usual for
PSJs to be decided well in advance of the trial date such that neither party is
prejudiced as to the preparation for the eventual ajudication in a court of law.
Given this and the fact of the impending deadline (if we accept this to be
immobile)...

How soon is it to be reasonably expected to hear from the judge on PSJs?
Further, is there a deadline at which legal case history has established a
standard where delay on the part of the court is said to be prejudicial to the
prompt exececution to the case or to the preparation of the parties' counsel?

2) In a case like this where there is a For Outside Counsel Eyes Only protective
order, taking the hypothetical of the external counsel locating specific and
relevant evidence, how does this order affect the trial preparation by counsel?
Lets say that the external counsel for SCO finds something of interest in the
submitted materials.

How can that information be communicated to internal counsel for trial
preparation without compromising the security of the information or risking a
contept proceeding by potentially violating court orders?

If there is an accepted mechanism for this, then does this really provide
additional security insofar as located material or is this specifically and
exclusively so that the parties to the case are specifically excluded (in intent
anyway) from perusing the proferred documentation at will for improper business
advantage?

3) Can someone point me at specific documented evidence that would indicate a
strong basis for technical logic or any kind of offered explanation as to CA's
actions in accepting/purchasing/etc a SCOSource license when they did so? PR?
News Clips? (Verified) Blogs from [insert CA bigshot name here]?

---
Clocks
"Ita erat quando hic adveni."

[ Reply to This | # ]

Can it really be -- a light at the end of the tunnel at last?
Authored by: Anonymous on Friday, April 20 2007 @ 02:00 AM EDT
Somehow I doubt it.

[ Reply to This | # ]

Can it really be -- a light at the end of the tunnel at last?
Authored by: larsmjoh on Friday, April 20 2007 @ 02:56 AM EDT

"HeŽd been wrong, there was a light at the end of the tunnel, and it was a flamethrower."

Terry Pratchett - Mort

---
Lars

"Do not try to think outside of the box. That's impossible.
Instead, realise the truth. There is no box."

[ Reply to This | # ]

Light at the end of the tunnel? Not if BSF can help it!
Authored by: mcinsand on Friday, April 20 2007 @ 08:03 AM EDT
After over 17 years of working with various corporate lawyers of various
companies, I have never met any attorney that would even think of permitting the
activities that BSF have conducted. The more I think about it, the more firmly
convinced that BSF are behind the endless delays (although, in this particular
case, the delays may actually be in the interest of firming up a case, rather
than dragging this mess out). Just think about the motives...

Letting this drag out only adds to the publicity of SCOX's incompetence, but
they at least have their counsel to blame for the actions. 'Gee, Mr. Judge, we
only acted under BSF's advice.' However, after following this case for a few
years, I am convinced that an unrealistic best-case scenario for BSF is to be
disbarred. Again, that is an unrealistic best-case scenario.

Should SCOX go bankrupt, I will be shocked (Shocked, I tell you!) if more than a
week passes before the bankruptcy trustees file a malpractice suit against BSF.
Competent, ethical attorneys would have told SCOX to take a hike once the
extortion scam became obvious. Through BSF's actions, complicity, and counsel,
SCOX's chance of any kind of a future have been thoroughly squandered.

So, BSF will take any means necessary to stave off the conclusion of these
cases, inevitable though they may be. No doubt, this also means putting off
SCOX's bankruptcy as long as possible, too.

[ Reply to This | # ]

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