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SCO's Expedited Motion and Memorandum for a Protective Order - as text
Sunday, June 06 2004 @ 01:43 AM EDT

Here is SCO's Expedited Motion and Memorandum for a Protective Order. Guess what they are asking the judge for this time?

How did you know? That is exactly right. A delay.

Another delay. Actually, it's a delay on top of a delay, because they are asking for a delay on some depositions while they wait for a June 8 hearing on their request for a delay on the scheduling order. If they win that scheduling order motion and get their delay, no doubt more foot dragging will ensue. If they lose, they say they'll reschedule the depositions. They filed it on June 3 and they ask the judge to please give a ruling by June 4. Right. Um. Isn't that a de facto delay, if he can't hop to it and get right on their request?

I gather the lawyers for SCO are seeking every possible delay in every possible way. It's the Charles Dickens' Bleak House school of lawyering:

"This is the Court of Chancery; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give –– who does not often give –– the warning - ‘SUFFER ANY WRONG THAT CAN BE DONE YOU, RATHER THAN COME HERE!'"

It is reported that even writing about the law caused Dickens to become overwrought for the first time in his career.

Nuisance lawsuits, if you've heard the expression, are named such because they are specifically designed to make you so overwrought, you'd rather settle than fight on, even though you are sure you are in the right and that the other side's claims are bogus.

SCO asked IBM to postpone four depositions, IBM said they saw no reason to delay three of them at the 11th hour, and so SCO threatened to ask the court to give them what wanted. Now they have filed this motion doing precisely that. This is a last-minute motion about a one-week delay of depositions scheduled for about a month. I gather SCO is in no hurry to get the billions it tells everyone they think they can win from this lawsuit. And they are not pinching pennies. It costs money to bring a motion. Every time your lawyer does anything for you, it costs money. Therefore, we may deduce they want a delay badly enough to pay extra for it.

With 4 law firms and a dozen lawyers, including the two new ones Boies' firm just sent over to help prop up the case, they are telling the judge they can't possibly handle a deposition on the same day they have to go to a court hearing? They need their very best "senior counsel with experience" for both functions, they say, so I guess they must be saying they have quite a few attorneys just learning on the job here, if they don't have two lawyers to cover two events, the deposition and the hearing.

What a coincidence! Just on the eve of this motion, as it happens, SCO asked IBM for more discovery, and since they haven't received it yet, it's a good reason to postpone all the depositions, they say, because otherwise they might find something new to ask about and then they'd have to reopen the deposition.

Not only that, but IBM gave them so much material that SCO asked for in discovery -- but not until March and April, they complain (when they were supposed to hand it over, by the way) -- that SCO "understandably" hasn't had time to review it in the 2 or 3 months since they received it. Maybe that same experienced lawyer is also the only one allowed to look over discovery materials. And you know how busy that guy is. Say, this could be an infinite delay.

IBM says their witnesses have already arranged to get off work for the depositions? Not to worry, says SCO. "[I]t would seem to be a simple matter for them simply to attend work that day rather than attend the deposition." They leap off the train before they reach the Logic station, however. The problem the witnesses will have won't be *that* day. It'll be when they have to again ask their bosses for another day off later to attend the rescheduled deposition, after all kinds of rescheduling of the company's plans, other employees having to cover for them, rearranging meetings, business trips, rescheduling with their own lawyers, who also have a life, changing plane tickets, hotel reservations, etc., not to mention throwing the deposition schedule off the track. This is about delay, so SCO is utterly breezy about how easy it will be for everyone to reschedule at the 11th hour. Delay is good, it seems, from SCO's standpoint.

BayStar

Then you find a nugget, in the first letter attached to the Motion. SCO tells IBM, "As I mentioned on our call today, we have spoken with BayStar's counsel, who has indicated that they may seek to quash the subpoena." BayStar may have been so miserable and unhappy because they were being drawn into the lawsuit. Evidently, they want out. I can't think why, can you?

In the second letter, we find that IBM is moving forward full steam ahead. SCO complains, "Notwithstanding our request for a reasonable adjustment to the Scheduling Order to permit both parties to conduct discovery in an orderly fashion, on May 13, 2004, IBM noticed 23 depositions to take place, two a day, throughout the country every Tuesday and Thursday through June and then one deposition every Tuesday and Thursday through July 15." SCO is desperately trying to slow that mustang down.

The Stay of Discovery Argument

One final thing needs to be said. In their motion, SCO says "there was a four-month stay of discovery". That, not to put too fine a point on it, is misleading. Since Judge Kimball wasn't there, maybe SCO is hoping he won't look too closely at the details. But here is the actual chronology, and keep in mind that the stay of discovery was the result of SCO's foot dragging, singing the same song they are still singing, that they can't possibly comply fully with discovery requests unless they get every version of AIX known to man from the founding of the world.

Here is the sequence, and follow the bouncing ball to the end, please. You will be rewarded with a clear picture of SCOSpeak.

In IBM's First Motion to Compel Discovery, dated October 1st of 2003, they say that on June 13, 2003, IBM served its First Set of Interrogatories and First Request for Production of Documents. This was mostly about trade secrets at issue in the original claim against IBM, claims SCO later dropped. SCO, instead of complying and answering 8 of the 9 interrogatories, instead provided paper printouts of code, hundreds of thousands of pieces of paper, if you recall, and told IBM to find the answers themselves, according to the motion:

"On August 27, 2003, counsel for IBM sent a letter detailing the deficiencies in SCO's discovery responses and demanding that it supplement its answers to interrogatories . . . SCO responded by letter dated September 8, 2003 . . . In this letter, SCO declined to supplement its answers to interrogatories and, most importantly, stood by its invocation of Rule 33(d) as grounds for its refusal to provide detailed narrative responses. . . . Counsel for SCO did not agree to supplement its answers to the interrogatories at issue in this motion. Finally, in an e-mail sent on September 24, 2003, counsel for SCO stated that SCO would identify 'pertinent macros and functions,' but did not commit to supplementing its answers in the manner IBM has requested. . . . Thus, while SCO appears more than willing to share its purported evidence with analysts and journalists under secrecy agreements, and talks about the alleged 'results' of the analysis in general terms in an attempt to influence public opinion, SCO has steadfastly refused to supply IBM with meaningful specifics regarding the core allegations in this case. As a result, IBM was required to make the present motion."

IBM then served their Second Set of Interrogatories and on October 16, SCO asked for more time to answer it, until October 24, and it got the extra time. On November 6, not satisfied with SCO's answers, IBM filed their Second Motion to Compel Discovery, requesting oral argument, which in turn happened on December 5, 2003. On December 5, 2003, there was a hearing on the two motions to compel discovery brought by IBM. IBM won both, which in child's English means that IBM was found to have failed to provide what they were asked to by IBM.

On December 12, 2003, Judge Wells issued her Order, telling IBM to respond fully to IBM's First and Second Sets of Interrogatories and First and Second Requests for the Production of Documents. SCO was to comply within 30 days of the order. So by my reckoning, SCO achieved a delay in the discovery process prior to the judge's order beginning the stay of discovery of approximately 5 months, from July, when they were first served, until December, when the judge ordered them to comply. It was at this hearing in December that the Judge said there was a stay of discovery until SCO complied with the order. IBM was not required to respond to any further discovery requests from SCO until SCO complied. Obviously this was to motivate SCO to get going. So we measure the stay from December 5, or 12, depending on how you wish to count it.

When the parties appeared before the judge again at a hearing on February 6, the judge told SCO's attorney, "This is about your response and compliance with the Court order." In other words, they still had not complied fully with the December 12 order. But they had substantially complied with a lot more than they had at the December hearing. You can see by their Log that around January 12, they began to turn over materials requested. At that February hearing, SCO again argued that there was no way they could identify infringing code unless they had every version of AIX since the founding of the world. They needed it first, before they could possibly comply. The judge denied their request and told them they had 45 days from the date of her order, which was dated March 3rd, to fully comply with the December 12th order. IBM had at the hearing offered 232 versions of AIX, and that is what the judge agreed they should produce. They were not out of compliance with any prior court orders, as SCO was, by the way. But IBM told the judge at the February hearing that they had produced more materials. By the time of the March order, SCO had achieved a delay of June to March, with 45 days more leeway after the Order. The Judge in her Order lifted the stay on discovery. IBM was also given 45 days to hand over the versions of AIX code they had said they would be willing to produce; however, they instead turned over the AIX code on March 9, without waiting for the 45 days to elapse. We learn that from Todd Shaughnessy's Declaration.

So if we date the stay from December 5, 2003 to March 9, 2004, how long is that, class? 4 months? Or do you get precisely 95 days, or 3 months and less than a week?

It's how SCO speaks, their way of telling the truth:

"SCO believes that the amendment is warranted on the principal grounds that IBM has filed 10 counterclaims, including 4 claims for patent infringement, since the Scheduling Order was entered; there was a four-month stay of discovery; and SCO is awaiting additional discovery from IBM. The parties will argue that Motion in an expedited hearing on Tuesday, June 8th."

It's technically sort of true, if you stretch it, to say 4 months, because December, January, February and March makes four months, and the stay technically continued until the 45 days were up, but the amount of time SCO didn't get any discovery materials from IBM only lasted a few days more than 3 months. Tricky, huh? They don't tell whose fault it was that the stay was ordered in the first place or that the delays have been because of their intransigence. There was a four-month stay of discovery. But it happened because of their delay of 5 months prior. It wasn't like a bolt of lightning or some other act of God. They are, in effect, saying to the judge, after they have dragged their feet since June, "Your Honor, there needs to be a delay in the schedule, because a whole lot of foot-dragging has been going on." Neat trick, if you wish the Bleak House effect. That's how SCO tells the truth to Judge Kimball, and because he wasn't there, it may, sadly, sound plausible to him. To those of us in the peanut gallery, who've watched every detail as it played out, it's offensive to the max.

If Kimball grants the delays, maybe next they could get a further delay arguing that they need more time, because the depositions scheduling got off track due to being delayed by their motion for a delay. By my math, they have achieved, by hook or by crook, an 8-month delay in the discovery process. By SCOMath, it's 9.

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

Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP

[address, phone, fax]

Attorneys for Plaintiff

_______________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

________________________________

THE SCO GROUP,

Plaintiff,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.

_______________________________

SCO'S EXPEDITED MOTION
AND MEMORANDUM FOR A
PROTECTIVE ORDER

Case No. 2:03CV0294DAK

Hon. Dale A. Kimball
Magistrate Judge Brooke C. Wells

____________________________

Plaintiff The SCO Group, Inc. ("SCO") submits this Memorandum in Support of its Motion for a Protective Order with respect to three depositions scheduled for the week of June 7, 2004. Given that the depositions SCO seeks to postpone are to occur in a few days, SCO asks the Court to consider and decide this matter on an expedited schedule, if possible by Friday June 4, 2004.

After SCO filed its pending Motion to Amend the Scheduling Order, IBM unilaterally noticed two depositions for Tuesday, June 8th, in Wilson, North Carolina (David Frasure), and San Francisco, California (BayStar), and two more depositions for Thursday, June 10th, in San Jose, California (David Rodgers), and Greensboro, North Carolina (Otis Wilson).

In order to perrmit the Court to consider SCO's pending Motion to Amend the Scheduling Order -- on which expedited argument will be heard this coming Tuesday, June 8th -- before pressing forward with the noticed depositions on IBM's schedule, counsel for SCO has requested that IBM agree to postpone temporarily the depositions noticed for next week. Exh. 1,2. Counsel for IBM has agreed to reschedule the June 8th BayStar deposition only if the deposition can be rescheduled without requiring IBM to serve a new subpoena, but has refused to reschedule the other depositions that week. Exh. 3.

SCO respectfully submits that for the reasons set forth below, the four depositions need not, and should not, proceed next week.

First, before the depositions were noticed, SCO moved to amend the Court's Scheduling Order to extend certain deadlines in this case. (See Memoranda in support of Motion to Amend the Scheduling Order dated April 5, 2004, and May 28, 2004.) SCO believes that the amendment is warranted on the principal grounds that IBM has filed 10 counterclaims, including 4 claims for patent infringement, since the Scheduling Order was entered; there was a four-month stay of discovery; and SCO is awaiting additional discovery from IBM. The parties will argue that Motion in an expedited hearing on Tuesday, June 8th. In declining to reschedule the four depositions, IBM presupposes that the Court will not amend the Scheduling Order. SCO submits that the more reasonable course is to permit the Court to make that imminent decision before proceeding with depositions noticed to comply with the very Scheduling Order at issue.

Second, the depositions scheduled for Tuesday, June 8th, directly conflict with the hearing date for the parties' argument on the Motion to Amend the Scheduling Order. The Court scheduled the hearing after IBM noticed the depositions. SCO submits that this intervening change in scheduling itself warrants the rescheduling of the deposition. It is true that both parties could simultaneously provide counsel to cover the June 8th hearing in Utah and what are likely to be trial depositions in North Carolina and California. However, SCO would be best represented if senior counsel with experience on this matter could attend both the hearing and the depositions. Under the current schedule, that is not possible.

Third, in light of certain of SCO's pending discovery requests, the volume of documents that IBM just recently produced, it would be sensible, efficient, and cost-effective for both sides to reschedule the depositions. As outlined in SCO's Motion to Amend the Scheduling Order, SCO is awaiting additional discovery from IBM. SCO cannot know what additional discovery will be produced, and it would be most convenient for the witnesses and counsel to proceed with the deposition in a single day (rather than to re-open depositions if counsel wish to ask questions about documents that had not previously been produced). Forcing SCO to attend these third-party depositions before IBM's document production obligations have been satisfied poses the significant hazard that these depositions (many of which are likely to be trial depositions) will need to be reopened later.

In addition, of the approximately 820,000 pages of documents that IBM has produced in this litigation, approximately 670,000 (82%) were produced in March and April of this year after the Courth's March 3, 2004, order. Particularly with respect to third-party depositions like the Frasure, Rodgers, and Wilson depositions noticed for next week, SCO understandably has not yet been able to conduct a detailed review of the existing production.

Fourth, rescheduling the depositions would not prejudice either the deponents or counsel. To the contrary, IBM has already agreed to reschedule the other deposition noticed for Tuesday, June 8th, on the condition that the deposition is rescheduled without requiring IBM to re-notice a subpoena. Even if (as counsel for IBM stated in declining to reschedule the other three depositions) the remaining witnesses have already scheduled time away from work for their depositions, it would seem to be a simple matter for them simply to attend work that day rather than attend the deposition. Counsel for IBM has also asserted that rescheduling the depositions could interfere with the parties' ability to complete discovery because multiple depositions per week are already noticed. This argument (again) presupposes that the Court will deny SCO's pending Motion to Amend the Scheduling Order. In any event, there are open days in the existing discovery schedule, and of course counsel for SCO will accommodate the witnesses' and IBM's counsel's schedules in rescheduling the depositions at issue.

Conclusion

For all the reasons set forth above, SCO respectfully requests that the Court order the depositions currently noticed for June 8 and 10, 2004, to be rescheduled by the parties following the Court's ruling on SCO's pending Motion to Amend the Scheduling Order.

Respectfully submitted,

By: _______[signature]________
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch

BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise

Counsel for Plaintiff/Counterclaim defendant


June 2, 2004

Via Telecopier

Mr. Christopher Kao
Cravath, Swaine & Moore
[address]

RE: SCO v. IBM; IBM v. SCO
Case No. 2:03CV-0294 DAK Dear Chris:

As we discussed yesterday, because of the hearing set for June 8, 2004, we need to reschedule the depositions currently set for that date. You indicated that you thought the BayStar deposition could be moved because you had not yet spoken with them. As I mentioned on our call today, we have spoken with BayStar's counsel, who has indicated that they may seek to quash the subpoena. Rather than address to [sic] propriety of proceeding with this deposition, I suggested that you withdraw the subpoena and that we address after the hearing the need, if any, for taking this deposition.

Similarly, in our conversation yesterday, I indicated I would try to find someone to cover the deposition of David Frasure, but I have been unable to do so. You stated today that he was taking the day off work, so you would not agree to change the deposition. As I mentioned, he has not yet taken the day off from work, so I reiterate my request that you agree to voluntarily reschedule the deposition without the need for SCO to file a motion for protective order. Please let me know tomorrow.

Besides these two depositions requiring immediate attention, I also would like to address the two depositions set for June 10 and the deposition schedule generally. The Court has accommodated the parties by providing an expedited hearing on our Motion to Amend the Scheduling Order. One of the points of our motion, of course, was that discovery could not be completed in the limited time available. Certainly this fact explains why you have set two depositions every Tuesday and Thursday in the month of June.

With the hearing set only days away, I would propose that the depositions currently set for June 10 also be postponed pending a ruling from the Court on the Motion to Amend the Scheduling Order. If the Court Grants our Motion, then we could promptly set up a conference call to prepare a reasonable schedule for both parties to complete discovery and conduct depositions in the allotted time. If the Court denies our motion, however, we will work with you to promptly reschedule those two witnesses currently set for June 10 and continue to work with you on finalizing the deposition schedule as recently re-noticed by you.

Please let me know tomorrow whether this proposal is acceptable to you. Thank you for your attention to this matter.

Very truly yours,

________[signature]_______
Mark J. Heise

MJH/vb


June 3, 2004

Via Telecopier
Mr. Christopher Kao
Cravath, Swaine & Moore
[address]

RE: SCO v. IBM; IBM v. SCO
Case No. 2:03CV -- 0294 DAK

Dear Chris:

In response to your letter of this morning, I am writing to provide you with advance notice that in light of your refusal to tempoarily adjourn the depositions that you have noticed for next week to permit the Court to consider SCO's pending motion to amend the scheduling orde, we will be forced to seek a protective order on an expedited basis.

On April 5, 2004, we filed a motion asking the Court to amend the Scheduling Order in this case due to significant changes in circumstances since Magistrate Judge Nuffer entered that Order on June 20, 2003. Specifically, the original Scheduling Order in this case did not anticipate (and could not have anticipated) (1) IBM's subsequent filing of 10 additional counterclaims; (2) the fact that discovery in this case would effectively be stayed for four months; and (3) IBM's delays in providing SCO's requested discovery. Notwithstanding our request for a reasonable adjustment to the Scheduling Order to permit both parties to conduct discovery in an orderly fashion, on May 13, 2004, IBM noticed 23 depositions to take place, two a day, throughout the country every Tuesday and Thursday through June and then one deposition every Tuesday and Thursday through July 15.

In light of our pending motion -- and particularly the fact that the Court has scheduled an expedited argument on that motion for next Tuesday, June 8 -- we have asked that you agree temporarily to adjourn the depositions scheduled for next week. We simply do not believe that pushing forward with these depositions is a sensible way to proceed in these circumstances. The scheduling of these depositions is not only inconvenient for SCO's counsel in light of the hearing next week, but with the vast majority of the documents that IBM has produced to date (approximately 670,000 of the 820,000 pages produced by IBM after the Court's March 3 order), SCO has not adequate time to review the produced material in preparation for third-party depositions, such as Frasure, McDonough, Wilson, and Rodgers, which you elected to schedule for the first three days of depositions.

The brief delay that we have requested -- which will temporarily postpone only one week of depositions -- will not prejudice IBM in any way. Although you have mentioned that witnesses have already scheduled days off from work, rescheduling those days (which of course have not yet been taken) would hardly impose a hardship. Nor would, as you suggested, rescheduling court reporters cause any prejudice to IBM. Moreover, as I have explained, following the Court's ruling on SCO's motion to amend the scheduling order, we would promptly work out a manageable deposition schedule consistent with the Court's ruling.

We hope that you will reconsider your position concerning the depositions that you have noticed for next week. If we do not hear otherwise from you by 6:00 p.m. EST tonight, we will proceed with the filing of a motion for protective order.

Very truly yours,
_____[signature]_________
Mark J. Heise

MJH/vb


June 3, 2004

SCO v. IBM; IBM v. SCO

Dear Mark:

I write in response to your letter of yesterday.

We cannot agree to your proposals.

As I discussed with you yesterday, we are amenable to rescheduling the date of the 30(b)(6) deposition of BayStar, provided that BayStar agrees to provide a witness on a different date without the need for a new subpoena. As we have received no communications from BayStar, despite multiple attempts on our part to contact counsel for BayStar, we assume that BayStar will produce a witness on June 8 pursuant to the subpoena we served on May 10. I understand that your client has apparently spoken with BayStar regarding the deposition. As we were not given notice of or made privy to those discussions, we cannot agree to withdraw our subpoena on the basis of any such discussions.

With respect to the other depositions scheduled for June 8 and June 10, we do not see any reason to postpone them at the present time. We properly noticed the depositions on May 13, and made arrangements for the witnesses and counsel to be present on the noticed dates. The witnesses have already scheduled time away from work to prepare for and attend their depositions, and it would be highly inconvenient for these witnesses to change their plans at this late date. Moreover, since (as you note in your letter) we have noticed multiple dispositions per week for the remainder of the discovery period, postponing these depositions is not a simple matter and will interfere with the parties' ability to timely complete discovery.

Sincerely,
_______[signature]_____
Christopher Kao

Mark J. Heise, Esq.
Boies, Schiller & Flexner LLP
[address]

BY FACSIMILE

Copy to:

Todd M. Shaughnessy, Esq.
Snell & Wilmer LLP
[address]


CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served on Defendant International Business Machines Corporation this 3rd day of June, 2004, by facsimile and U.S. Mail to:

Alan L. Sullivan, Esq.
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]

And U.S. Mail to

Donald J. Rosenberg, Esq.
[address]

_________[signature]_______


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