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All 3 Motions to Compel Set for Oral Arguments on Dec. 5
Sunday, November 23 2003 @ 06:40 PM EST

The US District Court, District of Utah court docket now reflects that all three Motions to Compel, two by IBM and one by SCO, will be heard by Judge Wells on December 5, 2003 at 10:00 AM. I will show you how I finally figured it out.

Look on the page and scroll to the bottom. You will see a notation, 80-1, saying "Magistrate Notice of Hearing Motion hearing set for 10:00 12/5/03 for [68-1] motion to compel discovery, set for 10:00 12/5/03 for [66-1] motion to Compel Discovery, set for 10:00 12/5/03 for [44-1] motion to compel Discovery. To be held before Judge Wells cc:atty ( Ntc generated by: JD)"

Notice the numbers in the brackets: 44-1, 66-1, and 68-1. If you go up the line on the left until you find what these numbers correspond with, you will find that 44-1 is IBM's first Motion to Compel, which it filed on October 1st. Then next in order, 66-1 is SCO's Motion to Compel Discovery, which it filed on November 4. Then 68-1 is IBM's Second Motion to Compel Discovery, which it filed on November 6. By noting all three, the clerk is indicating that the judge at Friday's conference found that discovery issues have not been resolved by the parties and therefore the December 5th hearing that was more or less already set for that date is evidently now confirmed and will happen at 10:00 AM, also before Judge Wells, with oral arguments. By the way, Groklaw has its own timeline for the IBM case, called IBM Timeline, with a link on the left of the page, so you can follow chronologically what has happened so far and what is expected in the future.

Keep in mind that sometimes clerks goof, just like the rest of us, so this is subject to correction, but that is what the clerk has recorded. So it looks like we're set to go for the 5th, as we hoped. It isn't unusual for a party who has been hit with a Motion to Compel to file one too. That way, they can say, in effect, "They're as bad as we are." It's a psychological thing, kind of like a parent who sees one child hit the other. Now he's mad at that child who hit his sibling. But if the one that got hit strikes back, now the parent is mad at both children, not just the one who started it.

An example of a clerk error: Did you notice the notation about David Markarian being added as an attorney for IBM? I consider that impossible, even though I saw it with my own eyes on the docket. Why impossible? Well, for starters, he's an associate with Boies, Schiller. Second, he's close friends with Mark J. Heise. They started a law firm together, prior to joining up with Boies in 2002. So if he joined IBM's team, it would be Greek tragedy, instead of French farce, which is what we have been enjoying so far.

Here is an an example of their work, from January of 2002, a case where they challenged the City of Miami's parking tax as being ... drum roll . . . unconstitutional. Hmm. Is he a one-trick pony, or what? It must have been fun to do, though, because it's so bold a concept, and it looks like they did well, up to a point. Here is the argument the city's attorneys made. The case survived one appeal and here's the notice of settlement of the class action from November last year, for $14 million for the class. But here's where it gets a bit interesting. It seems in April, Boies, Schiller was accused of a conflict of interest in the case, and their fees were challenged. Well, I'll let NY Lawyer tell the tale:

"Months after the city of Miami reached a $14 million settlement in a class-action lawsuit challenging its parking surcharge tax, a local attorney has filed objections to the agreement.

"Peter Homer, a partner at Homer Bonner & Delgado in Miami, alleges one of the attorneys representing the plaintiff class has a conflict of interest, that the settlement terms aren’t fair to some members of the class, and that the agreement would award excessive fees to the plaintiff lawyers.

"Homer contends that class attorney Mark Heise, a partner at Boies Schiller & Flexner, cannot serve as plaintiff counsel in the case because his law firm is a member of the class. The settlement, Homer says, improperly favors parking customers who paid the surcharge in county-owned facilities. Also, Homer says, the settlement is too generous to Heise and his co-counsel, Thomas Korge, a partner at Korge & Korge in Coral Gables.

"The two plaintiff lawyers are asking the court for $3.6 million in attorney's fees. Their fees would be paid first out of the $14 million fund established under the proposed settlement."

So, let's get this straight. The firm was a member of the class and the lawyer for the class. Say, wouldn't that mean you'd get paid twice from the lawsuit's settlement? Why, yes. I believe it would. Apparently some old-fashioned stick-in-the-muds in FL think that's not appropriate, and they have ideas that you might favor your own best interests at the expense of others in the class, if you're the lawyer. There's always a nudge, isn't there? I don't know what happened after April, but not enough to make Boies, Schiller take the case down from its web site, where they list it as an example of Heise's work.

If you'd like to know a bit about these two friends, you can go to the Boies, Schiller web site, if you can bear flash and tables and other bells and whistles. You will have to click on the pretty picture, then when you see a menu appear, choose Lawyer Profiles, then pick the letter M for Markarian, then his name, or H for Heise. Markarian's specialty is trial work, particularly jury trials, and he does appellate work as well, which means he's a good man to have on your side during a trial, to make sure you don't miss your chances to make sure you can appeal if you lose on the first rung.

Here's what the site says about his pal Heise:

"His main practice areas are complex commercial litigation and class actions.

"Since joining Boies, Schiller & Flexner LLP, Mr. Heise has represented The SCO Group in its significant intellectual property claims involving the licensing of the UNIX source code. Mr. Heise is also involved in numerous class actions, including as lead counsel in a case against the City of Miami on behalf of persons who paid an unconstitutional parking tax."

Here's what it says about Markarian:

"Mr. Markarian . . .has developed an enviable record of courtroom and appellate success. He has tried, and won, scores of jury trials involving virtually all types of complex civil litigation, from corporate disputes to product liability and personal injury claims and has written and argued over 20 appeals in the appellate courts of Florida. In 1999 he founded Heise Markarian Foreman, a boutique litigation firm which merged with Boies, Schiller and Flexner in 2002. . . .

"Mr. Markarian is a graduate of the National Institute of Trial Advocacy (1993), lectures on topics ranging from trial tactics and techniques to ethics, and has been an annual lecturer at the Florida Bar sponsored Bridge the Gap Seminar given to newly admitted lawyers. REPORTED CASES: Adamo v. Manatee Condominium, Inc., 548 So.2d 287 (Fla. 3d DCA 1989); Aetna Casualty & Surety Co. v. Old Republic Ins. Co., 521 So.2d 388 (Fla. 3d DCA 1988); Ballard v. American Land Cruisers, Inc., 537 So.2d 1018 (Fla. 3d DCA 1988); Carroll v. Kencher, 491 So.2d 1311 (Fla. 4th DCA 1986); Feliciano v. Sherouse, 626 So.2d 1126 (Fla. 3d DCA 1993); Ferguson v. V.S.L. Corp., 528 So.2d 32 (Fla. 3d DCA 1988); Indemnity Insurance Company of North America v. Boone, 546 So.2d 130 (Fla. 3d DCA 1989); McEvoy v. Union Oil Co., 552 So.2d 1169 (Fla. 3d DCA 1989); Metropolitan Dade County v. Zapata, 601 So.2d 239 (Fla. 3d DCA 1992); Moghari v. Anthony Abraham Chevrolet Ltd., 699 So.2d 278 (Fla. 3d DCA 1997); Nuñez v. Capital Insurance Co., Inc., 545 So.2d 297 (Fla. 3d DCA 1989); Sierra v. Brizuela, 680 So.2d 636 (Fla. 4th DCA 1996); Taylor v. M.C.F. Aviation Corp., 635 So.2d 26 (Fla. 3d DCA 1994); Wade v. Caterpillar Tractor Co., 508 So.2d 1294 (Fla. 3d DCA 1997); Wilson v. Gill Hotel Co., 684 So.2d 1373 (Fla. 4th DCA 1996); Lightborne v. Stop & Shop, Inc., 796 So.2d 627 (Fla. 3d DCA 2001); McGrath v. City of Miami, 824 So. 2d 143 (Fla. 2002); Browd v. Highland Underwriters Insurance Co.,560 So. 2d 237 (Fla. 3d DCA 1990); Ospina v. Indian Creek Club & Marina Condo Assoc., 561 So. 2d 463 (Fla. 3d DCA 1990).

He lectures on "trial tactics, techniques, and ethics." Woah. Ethics? Now, that sounds refreshing. The financial deal between SCO and Boies is getting some notice. Here is what Corp Law Blog ("Issues encountered by corporate lawyers") had to say:

"SCO's willingness to essentially give Boies 20% of SCO -- whether through license fees, equity financings or a sale of the company -- suggests that SCO is little more than a publicly traded lawsuit.

"If and when SCO and Boies finalize the engagement terms, I expect SCO will need to file the engagement agreement as a material contract in its next 1934 Act report. That should be a very interesting agreement."

Would this be our first publicly traded lawsuit? Here is the regulation about reporting a material contract. So maybe we'll get to see all the details. There has been quite a bit of concern about lawyer ethics of late, and if you are interested in the debate specifically about lawyers who help corporations file their documents with the SEC, here is one view:

"The spotlight is now focused on lawyers. In the post-Enron, post-Sarbanes-Oxley debate over the United State's seemingly dysfunctional system of corporate governance, Congress, the SEC, and the public at large all suspect that, when sophisticated financial chicanery occurs, lawyers are typically present 'at the scene of the crime."

What does he isolate as the prolem, or one problem?:

"[A]ttorneys are becoming too economically intertwined with their clients, as a result, in part, of the increasing practice of law firms taking (and even demanding) equity stakes in the client in return for professional services. If some level of independence is necessary for an attorney to function as a gatekeeper . . . SEC rules of professional conduct could define those limits."

Corp Law Blog takes a different view. And finally, a word from a congressman:

"His statement was quickly followed by that of co-sponsor Senator Jon Corzine (D-N.J.), the former chief executive of Goldman Sachs, who said: 'In fact, in our corporate world today -- and I can verify this by my own experiences -- executives and accountants work day to day with lawyers. They give them advice on almost each and every transaction. That means when executives and accountants have been engaged in wrongdoing, there have been some other folks at the scene of the crime -- and generally they are lawyers.' (148 Cong. Rec. S6554 [daily ed. July 10, 2002]"

It's in the Congressiona Record, folks. I guess it must be true.


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