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SCO's Reply Memorandum in Support of Expedited Motion for a Protective Order
Thursday, June 10 2004 @ 06:20 AM EDT

Here is SCO's Reply Memorandum in Support of SCO's Expedited Motion for a Protective Order, their final document filed to try to persuade the court to delay certain depositions. It's an argument they lost Wednesday at the telephone hearing. Our thanks to Steve Martin for the text version.

It's rather comical to read the document, knowing that they lost the decision. Reading them argue that IBM is so unfair not to let them postpone the depositions and how sensible it would be to delay and how unfair to SCO if they are unable to get the delay, etc., all expressed with at least pretended indignation, rings hollow in the light of the knowledge that the Honorable Brooke Wells told them their request was denied, because they brought the objection too late and because of the inconvenience to the witnesses being deposed, IBM's arguments exactly. Evidently they are not so unfair after all.

So, the deposition of Mr. O. L. Wilson, then Manager, Software Sales and Marketing at AT&T, who executed the 1985 IBM-AT&T agreement for AT&T, and is thus presumably in a position to testify as to AT&T's intentions with respect to derivative works, and David Rodgers, who was at Sequent, will go forward as scheduled today, something SCO was clearly wishing fervently it could postpone.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone]

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

Attorneys for Plaintiff

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


THE SCO GROUP, INC.

Plaintiff,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.
REPLY MEMORANDUM IN
SUPPORT OF SCO'S EXPEDITED
MOTION FOR A PROTECTIVE
ORDER


Case No. 2:03CV0294DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

Plaintiff The SCO Group, Inc. ("SCO") respectfully submits this brief reply in support of its Expedited Motion for a Protective Order.

Contrary to IBM's assertions, SCO acted diligently in attempting to address the issue of the timing of the depositions at issue. For reasons set forth in SCO's reply memorandum in support of its pending Motion to Amend the Scheduling Order, the compounded impact of discovery problems in this case reached an untenable point requiring SCO to request an expedited hearing on that motion. On June 2, 2004, within just two business days of learning that the Court had scheduled an expedited hearing on SCO's Motion to Amend the Scheduling Order and a full week before the depositions noticed for next week were to begin, SCO contacted IBM about rescheduling next week's depositions. Immediately after IBM's counsel responded that IBM would not agree to postpone the depositions, on June 3, 2003, SCO gave IBM advance notice and then filed its protective order motion.

Significantly, IBM's opposition brief fails to address SCO's argument that it would be inefficient and inconvenient to proceed with the depositions next week in light of the status of discovery as outlined in the pending Motion to Amend the Scheduling Order. As discovery stands, one of two outcomes would ensue from proceeding with the depositions: (1) SCO would not be permitted to ask questions of the witnesses regarding relevant documents that have not yet been produced and/or that SCO has not yet had a fair opportunity to review (because they were among the 670,000 pages of documents that IBM produced in March and April); or (2) the depositions would be subject to being reopened once SCO has had an adequate opportunity to review IBM's relevant documents (including documents not yet produced). The first outcome would be plainly unfair to SCO, while the second outcome would be plainly inefficient.

Moreover, contrary to IBM's suggestion, SCO does not contend that IBM acted unreasonably in scheduling the depositions in the first instance to comply with the scheduling order. Rather, SCO contends that under the circumstances it is not reasonable to proceed with a discovery schedule whose status the District Court has seen fit to address on an expedited basis the very day the depositions are scheduled to begin.

Accordingly, SCO respectfully submits that, as set forth in its opening brief, the sensible course is to suspend the depositions in order to permit the District Court to resolve the pending Motion to Amend the Scheduling Order before rescheduling them.

DATED this 4th day of June, 2004.

Respectfully submitted,
By: _______signature_________
HATCH, JAMES & DODGE
Brent 0. Hatch
Mark F. James

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

Counsel for Plaintiff/Counterclaim Defendant


CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served on Defendant International Business Machines Corporation on this 4th day of June, 2004, by fax copy to:

Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
[phone] Snell & Wilmer L.L.P
[address]

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

and also by U.S. Mail, first class, postage prepaid to:

Donald J. Rosenberg, Esq.
[address]


_________[signature]__________


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