We (actually JeR) figured out a way to present the SCO subpoena issued against the FSF as text here on Groklaw. Geeklog choked on the original HTML. So, here it is in its totality.
This was a joint project of Gerrard de Jonge (transcription), darkonc and JeR (initial HTML and final HTML editing, respectively).
BOIES, SCHILLER & FLEXNER LLP
NEW YORK WASHINGTON DC FLORIDA CALIFORNIA NEW HAMPSHIRE
November 5, 2003
Richard M. Stallman
Free Software Foundation. Inc.
Re: The SCO Group v. International Business Machines
To Whom it May Concern:
Please find enclosed a subpoena for the production of documents to Free
Software Foundation, Inc. If you have any questions about the scope of the
subpoena or have any concerns about my other mater, please let me know. You
need not appear at the place and time specified in the subpoena if you
provide copies of the requested documents before that date.
Also enclosed is a witness fee check in the amount of $30.00 that can be
applied toward copying costs if you choose to produce the documents in lieu
of a deposition. Boise Schiller & Flexner will reimburse you for all
reasonable duplication costs. Thank you for your assistance in this
Very truly yours
David K. Markarian
Issued by the
UNITED STATES DISTRICT COURT
District of Massachusetts
The SCO Group
International Business Machines Corporation
SUBPOENA IN A CIVIL CASE
Case Number:1 District of Utah
Free Software Foundation, Inc.
YOU ARE COMMANDED to appear in the United States District court at the
place, date, and time specified below to testify in the above case.
|PLACE OF TESTIMONY
YOU ARE COMMANDED to appear at the place, date, and time specified below
to testify at the taking of a deposition in the above case.
|PLACE OF DEPOSITION
||DATE AND TIME
[X mark] YOU ARE COMMANDED to produce and permit
inspection and copying of the following documents or objects at the place,
date, and time specified below (list documents or objects): See Attached
||DATE AND TIME
|Boston & Waltham - Eyal Court Reporting
|9:00 AM on November 21, 2003
OR you may also comply by mailing the aforesaid documents
Boies, Schiller & Flexner L.L.P.
||DATE AND TIME
Any organization not a party to this suit that is subpoenaed for the
taking of a deposition shall designate one or more officers, directors, or
managing agents, or other persons who consent to testify on its behalf, and
may set forth, for each person designated, the matters on which the person
will testify. Federal Rules of Civil Procedure, 30(b)(6).
|ISSUING OFFICER'S SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR
PLAINTIFF OR DEFENDANT)
Attorney for Plaintiff
The SCO Group, Inc.
|November 5 ,2003
|ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
MARK J. HEISE, ESQ., Boies, Schiller & Flexner L.L.P
(See Rule 45, Federal Rules of Civil Procedure, Parts C & D on next
1 If action is pending in
district other than district of issuance, state district under case
PROOF OF SERVICE
|SERVED ON (PRINT NAME)
||MANNER OF SERVICE
|SERVED BY (PRINT NAME)
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of
America that foregoing information contained in the Proof of Service is true
Executed on [blank]
SIGNATURE OF SERVER
ADDRESS OF SERVER
Rule 45, Federal Rules of Civil Procedure, Parts C & D
(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
(1) A party or an attorney responsible for the issuance and service of a
subpoena shall take reasonable steps to avoid imposing undue burden or
expense on a person subject to that subpoena. The court on behalf of which
the subpoena was issued shall enforce this duty and impose upon the party or
attorney in breach of this duty an appropriate sanction which may include,
but is not limited to, lost earnings and reasonable attorney's fee.
(2) (A) A person commanded to produce and permit inspection and copying of
designated books, papers, documents or tangible things, or inspection of
premises need not appear in person at the place of production or inspection
unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to
produce and permit inspection and copying may, within 14 days after service
of subpoena or before the time specified for compliance if such time is less
than 14 days after service, serve upon the party or attorney designated in
the subpoena written objection to inspection or copying of any or all of the
designated materials or of the premises. If objection is made, the party
serving the subpoena shall not be entitled to inspect and copy materials or
inspect the premises except pursuant to an order of the court by which the
subpoena was issued. If objection has been made, the party serving the
subpoena may, upon notice to the person commanded to produce, move at any
time for an order to compel the production. Such an order to comply
production shall protect any person who is not a party or an officer to a
party from significant expense resulting from the inspection and copying
(3) (A) On timely motion, the court by which a subpoena was issued shall
squash or modify the subpoena if it
(i) fails to allow reasonable time for compliance,
(ii) requires a person who is not party or an officer of a party to travel to
a place more than 100 miles from the place where that person resides, is
employed or regularly transacts business in person except that, subject to
the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in
order to attend trial be commanded to travel from any such place within the
state in which the trial is held, or
(iii) requires disclosure of privileged or other protected matter and no
exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research,
development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or information
not describing specific events or occurrences in dispute and resulting from
the expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur
substantial expense to travel more than 100 miles to attend trial, the court
may, to protect a person subject to or affected by the subpoena, quash or
modify the subpoena, or, if the party in who behalf the subpoena is issued
shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship and assures that the person to whom the
subpoena is addressed will be reasonably compensated, the court may order
appearance or production only upon specified conditions.
(d) DUTIES IN RESPONDING TO SUBPOENA
(1) A person responding to a subpoena to produce documents shall produce
them as they are kept in usual course of business or shall organize and label
them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it
is privileged or subject to protection as trial preparation materials, the
claim shall be made expressly and shall be supported by a description of the
nature of the documents, communications, or things not produced that is
sufficient to enable the demanding party to contest the claim.
ATTACHMENT A TO SUBPOENA TO THE FREE SOFTWARE FOUNDATION
You are instructed to produce the following documents at the time and
place specified in the subpoena:
Documents to be produced
1) All documents concerning any communication between the Free Software
Foundation and IBM relating to UNIX, AIX, DYNIX, LINUX, or any other UNIX
based operating system.
2) All documents concerning any communication between the Free Software
Foundation and IBM relating to The SCO Group.
3) All documents and communication concerning alleged, potential or actual
violations of the GPL asserted or known by The Free Software Foundation
against any entity or person since January 1, l999.
4) All guidelines, policies, procedures, documents, memoranda, notes
and/or manuals relating to the enforcement and enforceability of the GPL.
5) All documents sufficient to identify all assignments of software to the
Free Software Foundation, the assignor of all the software assignments to The
Free Software Foundation and the date and the terms of all such assignments
of software to the Free Software Foundation.
6) All guidelines, policies, procedures, and/or manuals concerning the
process of reviewing or vetting source code for copyright, patent an/or trade
secret violations in open source/free software development processes.
7) All documents and/or communications between and amongst The Free Trade
Software Foundation, Richard Stallman, Eben Moglen an/or Linus Torvalds
concerning: a. enforcement of the GPL b. procedures or methods for avoiding
infringement or infringement claims in open source software development.
8) All contracts or agreements with:
b. Open Software Development Labs
c. Red Hat
e. Any other Linux distributor or company
f. Linus Torvalds
g. Richard Stallman
h. Eben Moglen
i. Alan Cox
j. Andrew Morton
Instructions and Definitions
1) The term "Free Software Foundation" shall mean and include,
collectively and/or individually "Free Software Foundation" all of
its directors, officers, authorized agents, employees, consultants,
attorneys, sales representatives, distributors, dealers, direct and indirect
contractors, entities, that were acquired by or merged with Free Software
Foundation, subsidiaries of Free Software Foundation and/or all other persons
acting on behalf of Free Software Foundation.
2) The term "communication" shall mean any transmittal of
information, whether oral or written, including correspondence, electronic
mail and other internet transmissions, web pages, Internet Relay Chat logs,
facsimile transmissions, telecopies, recordings in any medium of oral
communications, telephone and message logs, and notes or memoranda relating
to written or oral communications.
3) The term "concerning" shall mean relating to, referring to,
reflecting, describing, evidencing, referencing, discussing or
4) The term "document" shall be synonymous in meaning and usage
to the broadest scope of the term used in Rule 34(a) of the Federal Rules of
Civil Procedure. The term "document" shall include without
limitation all written, phonic, graphic or recorded matter, including without
limitation. information stored on computers, disks, tapes (i.e., magnetic or
other storage media), World Wide Web pages, and electronic mailing lists.
The term "document" specifically includes electronic mail
("e-mail") and any attachments and files created, maintained, or
existing in electronic form.
5) The term "IBM" shall mean and include, collectively and/or
individually, International Business Machines Corporation and all its
directors. officers, authorized agents, employees, consultants, attorneys,
sales representatives, distributors, dealers, direct and indirect
contractors, entities that were acquired or merged with International
Business Machines Corporation, subsidiaries of International Business
Machines Corporation and/or all other persons acting on behalf of
International Business Machines Corporation including Sequent Computer
6) The term "Include" or "including" shall mean
including without limitation.
7) The term "GPL" means all versions of the GNU General Public
8) The term "person" includes natural persons and all private
and public entities.
9) The term "you" means the Free Software Foundation and any of
its directors, officers, employees, and/or trustees.
10) The term "vetting" means screening or checking.
11) The term "Red Hat" shall mean and include, collectively
and/or individually "Red Hat" and all of its directors, officers,
authorized agents, employees, consultants, attorneys, sales representatives,
distributors, dealers, direct and indirect contractors, entities, that were
acquired by or merged with Red Hat, subsidiaries of Red Hat and/or all other
persons acting on behalf of Red Hat.
12) The term "SuSE" shall mean and include, collectively and/or
individually "SuSE" and all of its directors, officers, authorized
agents, employees, consultants, attorneys, sales representatives,
distributors, dealers, direct and indirect contractors, entities, that were
acquired by or merged with SuSE, subsidiaries of SuSE and/or all other
persons acting on behalf of SuSE.
1) Each paragraph herein should be construed independently and, unless
otherwise stated, without reference to any other paragraph for the purpose of
2) Unless otherwise specified, the documents requested are the responsive
documents in your possession, control or custody that were prepared, written,
sent dated, received, applicable or in effect at any time up to the date of
your compliance with this demand.
3) Each requested document shall be produced in its entirety, If a
document responsive to any request cannot be produced in full, it shall be
produced to the extent possible with an explanation stating why production of
the remainder is not possible.
4) Unless otherwise indicated, all requests are for January 1, 1999 to the
5) All documents produced in response to this subpoena shall be produced
in the same order as they are kept or maintained in the ordinary course of
business and, where attached, shall not separated or disassembled.
6) With respect to any document responsive to this request that is
withheld from production based upon a claim of privilege, please provide the
information required pursuant to the Federal Rules of Civil Procedure.
7) If for reasons other than a claim of privilege, you refuse to provide
any document requested herein, state the grounds upon which the refusal is
based with sufficient specificity to permit a determination of the propriety
of such refusal.
8) If there are no documents responsive to any paragraph set forth in the
request, please provide a written response so stating.