Here is Autozone, Inc.'s First Requests For Production of Documents and Things To Plaintiff The SCO Group, Inc. ( beginning on page 73), as text. The document makes reference to their First Set of Interrogatories. Again, our thanks to Henrik Grouleff.
Some of you will remember that some time ago, I mentioned that really good lawyers are careful to craft good definitions in a legal document. This is a fine example of doing that. But why do you need a definition of "relate to" or "person" or "each"? You know what the words mean, right?
The answer is, yes, you know, but if the lawyer doesn't phrase the question just right, you could say to yourself, "Oh, he said 'each' and in my mind I thought that didn't include 'every', so I don't have to tell him about that key piece I know he needs to prove his case against me." As Supreme Court Justice Anthony Scalia once said, and I'm paraphrasing from memory here, if you could get the truth by just asking someone a question and getting an answer, we wouldn't need lawyers.
So in the adversarial system, and that's what the US has, each side's lawyers try, depending on what side they represent, to frame questions as broadly and as specifically as possible so you have to tell them the piece you'd rather not tell or, on the other side, to interpret all questions as narrowly as possible so as not to have to provide the opposition with all you actually know. It's the other side's job to formulate the question properly so you can't wriggle away. This isn't gaming the system. It is the system.
That alone should tell you that you need a lawyer when any legal conflict arises. Common sense isn't enough. Honesty isn't either. There is a complicated system, and you need help to make it work for you. When you read the definitions in this document, they almost sound silly to a nonlawyer, but then match them up with the list of items AutoZone is asking SCO to provide (for example, their use of "relate" in numbers 6-8 in the list of items to be provided), and I think you'll see what they are doing -- making sure the other side has no excuse to avoid providing all that they want to know.
Items 8 and 9 provide a clear example, too. Notice they request in 9, "All documents that reflect or regard correspondence or communications to or from AutoZone relating to Linux, and all notes and memoranda regarding or relating to the same." Obviously, AutoZone is aware of some correspondence between the parties. It has received some correspondence from SCO regarding Linux use, for example maybe the Dear Linux User letter or perhaps there have been many others, as well as some from AutoZone back to SCO. They know. But what they want isn't the letters. They have those. What they want is everything all the SCOfolk said to one another or to third parties about it, before, during and after.
Why bother to say all notes *and* memoranda when they've already covered everything by asking for all documents? Let's imagine a scenario. Suppose a SCO executive jotted down some notes at a meeting about who to sue, and AutoZone's name came up. Someone mentioned that they read on Groklaw that a Jim Greer had posted that he was in charge of the switch to Linux, and he didn't use the shared libraries. Everyone talks about whether to go forward with the scheme to sue AutoZone anyway. Someone mentions that no one will ever know that they read that, so let's go for it. Our hypothetical executive writes that down in his notes. SCO then sues AutoZone.
AutoZone would like to have those notes (remember, we're just imagining here). If they just ask for all memoranda, the imaginary note-taking executive could withhold his smoking gun notes, because technically, it isn't a memo, at least not in his mind, because there was no MEMO header and the fact that he Xeroxed ten copies of his notes for everyone doesn't, in his mind, morph it into a memo. This is a hypothetical example, just for illustrative purposes. I am not suggesting that happened, just showing why you need to spell out everything and your list of documents needs to include all memoranda, notes, post-its, doodles, etc., the details depending on the situation and what you are after. Contrast the simplicity of item 10, where there is no wriggle room to worry about. Of course, my favorite is number 6.
AutoZone does a masterful job of closing off potential excuses and loopholes. If you notice the Instructions section, they also put it in writing that these are only their requested items within the context of the current limited discovery framework. If it were to broaden later, they don't want their options cut off.
It may sound funny to you when I tell you that I enjoyed reading this document, definitions, instructions, and all, but I did, and it's one I'll save as a template for future use.
James J. Pisanelli
Nevada Bar No. 4027
Nicki L. Wilmer
Nevada Bar No. 6562
Michael P. Kenny. Esq.
James A. Harvey, Esq.
David J. Stewart, Esq.
Christopher A. Riley, Esq.
Douglas L. Bridges, Esq.
ALSTON & BIRD LLP
Attorneys for Defendant AutoZone, Inc.
UNITED STATES DISTRICT COURT
THE DISTRICT OF NEVADA
THE SCO GROUP, INC.,
a Delaware Corporation
a Nevada Corporation
Civil Action File No.
DEFENDANT AUTOZONE, INC.'S FIRST REQUESTS FOR PRODUCTION
OF DOCUMENTS AND THINGS TO PLAINTIFF THE SCO GROUP, INC.
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure (hereinafter "FRCP"), Defendant AutoZone, Inc. ("AutoZone") hereby serves these requests for the production of documents and things upon Plaintiff The SCO Group, Inc. ("SCO") ("Plaintiff" or "SCO"). In accordance with FRCP 34, AutoZone requests that SCO respond to these Requests for Production within thirty (30) days after service hereof and that SCO produce the documents identified below for inspection and copying by AutoZone's attorneys at the offices of Alston & Bird, LLP, [address], or at such other place as may be agreed upon by counsel for the parties.
Each Request for Production set forth below is addressed to the knowledge of SCO, as well as to knowledge, information and documents in the possession, custody or control of SCO and SCO's attorneys, accountants, agents, employees, or officers.
The following definitions apply with respect to each of the following requests for production and each of the terms defined below, when used in any request for production, shall have the meaning given herein:
(1) "You", "your", "SCO", or "Plaintiff" means and includes The SCO Group, Inc., any parent, subsidiary, affiliate, successor or predecessor-in-interest thereof, and each of their present and former officers, directors, agents, employees, attorneys, accountants, investigators, consultants or other persons acting or purporting to act for them or on their behalf.
(2) "AutoZone" or "Defendant" means and includes AutoZone, Inc., any parent, subsidiary, affiliate or related company thereof, and any predecessor-in-interest thereof.
(3) "Document" means and includes all documents and things covered by Rule 34 of the FRCP and shall have the broadest meaning proscribed therein.
(4) "Person" means and includes natural persons, individuals, firms, corporations, partnerships, proprietorships, joint ventures, unincorporated associations, government agencies, and all other organizations and entities of any type.
(5) "Entity" means and includes corporations, companies, businesses, partnerships, proprietorships, or trade names.
(6) The term "identify" has the following meanings in the following contexts:
(a) When used with respect to a person or persons, "identify" means to provide each such person's name, last known residence address, last known business address, home telephone number, work telephone number, employer, and place of employment.
(7) The term "relate to" shall be construed as to include indicating, referring to, mentioning, reflecting, pertaining to, evidencing, involving, describing, discussing, supporting, or contradicting.
(b) When used with respect to a place, "identify" means to provide the address, city or town, county, and state where that place is located.
(c) When used with respect to a document, "identify" means to provide that document's current location, author and date, the identity of each recipient, and the subject of the document.
(8) The term "each" includes the word "every" and "every" includes the word "each." The term "any" includes the word "all" and "all" includes the word "any." The terms "and" as well as "or" shall be construed either disjunctively or conjunctively so as to bring within the scope of the request responses that might otherwise be construed to be outside the scope.
(9) The singular and masculine form of any word shall embrace, and shall be read and applied as embracing, the plural, the feminine and the neuter.
(10) The use of a verb in any tense shall be construed as the use of the verb in all other tenses, wherever necessary to bring within the scope of the interrogatory or request for production all responses that might otherwise be construed to be outside the scope.
(11) "AutoZone's First Interrogatories" means Defendant AutoZone, Inc.'s First Interrogatories to Plaintiff The SCO Group, Inc., served simultaneously herewith.
(12) "SCO's Injunctive Relief Statement" means SCO's Statement of Basis for Claim for Preliminary Injunctive Relief and Nature of Relief served on AutoZone on August 30, 2004.
Discovery on the merits is limited at this time to SCO's claims that AutoZone infringed SCO copyrights when AutoZone migrated from OpenServer to Linux. Accordingly, the scope of documents and information requested in all of AutoZone's discovery requests is limited at this time to SCO's claims of copyright infringement related to AutoZone's migration to Linux.
REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS
1. One copy of each work identified in response to Interrogatory No. 1 of AutoZone's First Interrogatories. For computer code, provide copies of the relevant source and object code.
2. Documents that reflect or relate to SCO's claims that it owns the copyrights in each of the works, or the relevant sections of the works, identified in response to Interrogatory No. 1 of AutoZone's First Interrogatories.
3. All correspondence between SCO and any third party, including but not limited to Novell, Inc., relating to SCO's claims that it owns the copyrights in the works identified in response to Interrogatory No. 1 of AutoZone's First Interrogatories.
4. Copies of the certificates of registration for each registration identified in response to Interrogatory No. 5 of AutoZone's First Interrogatories.
5. Copies of the applications for registration of each work identified in response to Interrogatory No. 1 of AutoZone's First Interrogatories, including supporting deposit materials.
6. All documents, including analyses, that evidence or relate to your claims that the works, or relevant portions thereof, that you identified in response to Interrogatory No. 1 of AutoZone's First Interrogatories are subject to protection under the Copyright Act.
7. All documents that evidence, reflect, or relate to each act or instance of alleged copying or infringement of your works by AutoZone.
8. All documents that refer, reflect, or relate to AutoZone's use of Linux or its migration from OpenServer to Linux.
9. All documents that reflect or regard correspondence or communications to or from AutoZone relating to Linux, and all notes and memoranda regarding or relating to the same.
10. Copies of any license agreements between SCO and AutoZone.
11. Documents reflecting or relating to when SCO first learned of AutoZone's alleged acts of infringement of SCO's copyrights.
12. Documents evidencing or relating to any harm that SCO alleges it will suffer if AutoZone is not preliminarily enjoined from its purported acts of copyright infringement.
13. Statements of any witness who is identified in response to any of AutoZone's First Interrogatories.
14. All documents, including correspondence, sent to or received from any witness you intend to call as an expert in connection with your motion for preliminary injunction.
15. All documents referenced or relied upon by any witness you intend to call as an expert in connection with your motion for preliminary injunction.
This 1st day of September, 2004.
James J. Pisanelli, Esq.
Nicki L. Wilmer, Esq.
Attorneys for Defendant
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the within and foregoing DEFENDANT AUTOZONE, INC.'S FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS TO PLAINTIFF THE SCO GROUP, INC. upon all counsel of record addressed as follows:
Stanley W. Parry, Esq.
Glenn M. Machado, Esq.
CURRAN & PARRY
(Via Hand Delivery)
David S. Stone, Esq.
Robert A. Magnanini, Esq.
BOIES, SCHILLER & FLEXNER LLP
(Via Hand Delivery)
Stephen N. Zack, Esq.
Mark J. Heise, Esq.
BOIES, SCHILLER & FLEXNER LLP
(Via First Class Mail)
This 1st day of September, 2004.
An employee of Schreck Brignone