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Rule 37(a)(2)(A) and IBM's 1st Motion to Compel - as Text
Thursday, November 27 2003 @ 07:04 AM EST

In order to comprehend what SCO is complaining about in its Memorandum in Opposition to IBM's 2nd Motion to Compel Discovery with regard to compliance with Rule 37(a)(2)(A) of the Federal Rules of Civil Procedure, I thought it would be good to show you one, such as IBM's previously filed Certificate of Compliance attached to its First Motion to Compel Discovery. At that very moment, in my inbox, I got a pleasant email from Niels Leenheer who has already done the work for us by transcribing IBM's first Motion to Compel Discovery and Certificate of Compliance with Rule 37(a)(2)(A) of the Federal Rules of Civil Procedure, which he noticed we had not yet transcribed as text, although it dates back to the beginning of October. Thank you, Niels. This will give you an idea of what one looks like.

You can brush up on Rule 37(a)(2)(A) here. The exact wording is:

"(A) If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action."

Mandatory disclosure rules under Rule 26(a), referenced in Rule 37, can be read here. Papers expounding and explaining discovery are here and here. Really, though, the Rule itself is quite clear on its face. There is another explanation here if you don't mind downloading a Word doc, or here's the temporary cache.

You will note that the point of the Rule is that you have to confer first with the other side, or try to, and provide documentation to the judge about what you tried to do. Rule 37 also authorizes various sanctions, including dismissal and default judgments, sanctions and expenses paid by the recalcitrant party:

"(4) Expenses and Sanctions.

"(A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.

"(B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

"(C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner."

You'll likely have noticed, without my pointing it out, that if the opposing party (here SCO) wins the motion and can show that the movant (IBM) didn't follow the Rule 37 requirements, as SCO has alleged they failed to do, then the judge can make the movant pay the expenses of the motion, including legal fees, in addition to denying the motion. Very possibly that is why SCO threw that in there. Remember I said it's legal poker? Here again is SCO's argument on this point:

'IBM's motion to compel fails to comply with this Court's strict procedural requirement of conferring in good faith to attempt to resolve the discovery dispute without court intervention. Rule 37-1(a) of this Court's local rules specifically requires reasonable efforts to reach agreement with the opposing party on the matters set forth in the motion, and to set forth a specific recitation of time, date and place of, and the identity of all counsel involved in such efforts. Without that, 'the court will not entertain any discovery motion.' IBM has ignored this procedural requirement.

"IBM, according to its 'Certificate of Compliance with Rule 37(a)(a)(A)', attached hereto as Appendix 'A, admits that it has never discussed Interrogatories 12 and 13 with SCO's counsel. Specifically, IBM states that '[c]ounsel for the parties did not specifically discuss Interrogatory nos. 12 and 13 because, at that time, SCO had not yet answered these interrogatories.' Id. at pp.2-3. Having never discussed the two interrogatories, it is clear that no effort to resolve the issue occurred before IBM filed its second motion to compel. Based on the lack of compliance, IBM's motion should not be entertained by this court. See Rule 37-1(a).

"IBM seeks to excuse its lack of compliance with the Rule by claiming that consultation occurred long ago with regard to three interrogatory answers from a prior set of discovery (Defendant's First Set of Interrogatories) that were incorporated in the latest answers. IBM's attempt to bootstrap failed efforts to resolve an earlier discovery dispute as purported good faith efforts to resolve this subsequent discovery issue should be rejected."

As you can see, they cite not just the Federal Rule 37 but the Utah court's local rule. Is that, perhaps, where they get the list requiring, they say, "a specific recitation of time, date and place of, and the identity of all counsel involved" ? The Federal Rule 37 doesn't have that list. Here are the Utah court rules. I don't see a Rule 37-1-A. I see 37(a)(1). There is a 37 (2)(A) that seems closer to what they seem to mean. I've read and reread this page, and I can't figure it out. One of us made a mistake.

UPDATE:

Here is the Rule they are referring to:

'DUCivR 37-1 DISCOVERY: MOTIONS AND DISPUTES; REFERRAL TO MAGISTRATE JUDGE

"(a) Informal Conference to Settle Discovery Disputes .Unless otherwise ordered, the court will not entertain any discovery motion, except those motions brought by a person appearing pro se and those brought under Fed. R. Civ. P. 26(c) by a person who is not a party, unless counsel for the moving party files with the court, at the time of filing the motion, a statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Such statement must recite, in addition, the date, time, and place of such consultation and the names of all participating parties or attorneys."

Thanks to Michael Hoffman for sending me that link and clearing up the mystery. Here is IBM's 1st Motion to Compel Discovery as text, with its Certificate, so you can get a feel for it.

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

Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Snell & Wilmer L.L.P.
[address, phone, etc.]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
Thomas G. Rafferty (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, etc.]

Attorneys for Defendant and Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP,

Plaintiff and Counterclaim
Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant and Counterclaim
Plaintiff.

DEFENDANT INTERNATIONAL
BUSINESS MACHINES
CORPORATION'S MOTION TO COMPEL
DISCOVERY AND CERTIFICATE OF
COMPLIANCE WITH RULE 37(a)(2)(A)
OF THE FEDERAL RULES OF CIVIL
PROCEDURE

(ORAL ARGUMENT REQUESTED)

Civil No. 2:03cv0294

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

Pursuant to Rule 37 of the Federal Rules of Civil Procedure, Defendant International Business Machines Corporation ("IBM"), through counsel, hereby moves this Court for an Order compelling plaintiff Caldera Systems, Inc d/b/a The SCO Group ("SCO") to respond fully to IBM's First Set of Interrogatories and First Request for the Production of Documents, served June 13, 2003.

As set forth in detail in the memorandum accompanying this motion, SCO's response to IBM's interrogatories is inadequate and incomplete. IBM's discovery seeks, among other things, the "identif[ication], with specificity, [of] all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges . . . IBM misappropriated" as well as detailed and specific information concering those alleged trade secrets or confidential information. Rather than provide meaningful narrative answers to these interrogatories, SCO simply states that it will make documents available to IBM pursuant to Rule 33(d) of the Federal Rules of Civil Procedure. This is inadequate. Moreover, to the extent SCO has provided answers to the interrogatories, those answers are deficient for the reasons explained in the accompanying memorandum. SCO should be compelled to provide detailed, narrative answers to these interrogatories, and should be required to disclose specifically the trade secrets or confidential information that IBM allegedly misappropriated.

 

CERTIFICATION OF COMPLIANCE WITH RULE 37(a)(2)(A)

Counsel for IBM has made good faith efforts to obtain complete responses to the interrogatories without Court action, but has been unable to do so. On August 27, 2003, counsel for IBM sent a letter outlining the deficiencies in SCO's responses to discovery (See IBM Supp. Mem., Ex. G). SCO responded by letter dated September 8, 2003. (IBM Mem., Ex. H). In a series of emails exchanged between September 9, 2003, and September 12, 2003, counsel for IBM again explained what information it was seeking in these interrogatories, and asked SCO to supplement accordingly. SCO did not commit to do so. On September 18, 2003, and again on September 22, 2003, counsel for the parties participated in lengthy phone conferences concerning each parties discovery responses. Counsel for IBM again explained what information IBM was seeking and why SCO's responses to the interrogatories were deficient. Although the parties preliminarily resolved a number of issues, counsel for SCO did not agree to supplement its answers to the interrogatories at issue in this motion. Finally, in an email sent on September 24, 2003, counsel for SCO stated that SCO would indentify "pertinent macros and functions," but did not commit to supplementing its answers in the manner IBM has requested. Accordingly, IBM has filed this motion to compel complete answers to Interrogatory Nos. 1-9.

 

REQUEST FOR ORAL ARGUMENT

IBM also requests oral argument on this motion persuant to DUCivR 7-1(f). Good cause for oral argument exists because of the nature of the discovery issued upon SCO and the significance of its refusal to respond. SCO has the burden to prove the existence of a trade secret or misappropriation by IBM of confidential or proprietary information, and there is no presumption in SCO's favor in this regard. See e.g. Microbiological Res. Corp. v. Muna, 625 P.2d 690, 697 (Utah 1981). As a result, SCO's apparent inability to respond to IBM's interrogatories as required under the Federal Rules of Civil Procedure has potentially outcome determinative consequences. God cause for hearing further exists because complete responses to IBM's interrogatories will define which alleged trade secrets or alleged confidential information is acutually at issue in this case, and thereby establish the scope of discovery going forward.

DATED this 1st day of October, 2003.

 

SNELL & WILMER LLP
[signature]
Alan L. Sullivan
Todd M. Shaughnessy

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
Thomas G. Rafferty
David R. Marriott
Counsel for Defendant International Business
Machines Corporation

Of cousel:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant International Business Machines Corporation


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