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More Caldera, Inc. v. Microsoft Documents Found
Saturday, January 01 2005 @ 12:20 PM EST

A Groklaw reader, PocketAces, has found a motherlode of Caldera, Inc. v. Microsoft Corporation documents. If you go here and click on the Digital Research logo, you will find a table at the bottom. You can't directly link, but if you click on the last item on the list, Full Story, you will find the list of filings and other articles and press releases about the case.

The first time I wrote about this case, back on May 30, 2003, Groklaw's first month of operation on Radio Userland, in an article titled, "How MS Used 'FUD Drip-Feed' to Make Sure Its Competition Ended Up 'Dead'" -- reporting on the Canopy Group shredding documents from the case and how there were going to be turned into toilet paper -- I had a link to the complete Caldera Statement of Facts, and after the article appeared, that link went dead.

Now, happily, we have found another copy, and just to be on the safe side, we'll give it a permanent home here [PDF]. You can find it as HTML here.

Here are the other PDFs, and you'll find most of them as HTML documents on the motherlode site:

You'll also find other filings as HTML, such as the original and the amended complaint. Also, there are press releases, such as Caldera's announcement of the lawsuit. A real find is the document called "newsrelease_M26.html", which is Caldera, Inc.'s Memorandum in Support of The San Jose Mercury News, the Salt Lake Tribune, and Bloomberg L.P. Motions to Intervene and Unseal Court File. It seems Microsoft had designated hundreds of thousands of documents as "confidential" and "highly confidential", and so the news organizations intervened. Actually, when you read the order, the judge says that the court had already noticed the egregious designations of confidentiality, and had already issued an order to basically cut it out. From that point on, the parties had to ask permission to designate a filing as confidential. The news media's motion begins like this:

The San Jose Mercury News, The Salt Lake Tribune, and Bloomberg L.P. seek relief that is long overdue. Microsoft has abused the Protective Order in this case by designating virtually all its documents as "confidential," despite the fact that few, if any, meet the criteria for confidentiality established under Federal Rule 26.

Ironically, the magnitude of Microsoft's over-designation - literally hundreds of thousands of documents marked "confidential" and "highly confidential" -- has prevented this Court from performing its proper function in limiting a party's self-designation of confidential documents. In its response to the San Jose Mercury News, Microsoft continues to assert that all documents it has designated "confidential" and "highly confidential" contain trade secrets or proprietary business information that is properly protected under Rule 26. There is only one way to test Microsoft's assertion: The Court must review Microsoft's documents, on a document-by-document basis.

The docket number was 2:96CV645B, so those of you with Pacer accounts can go and look for yourself, and you'll see a lot of documents that are not available, but some that still are. The minutes of the hearing over the media's motion to intervene and unseal reads like this:

5/20/99 549 Minute entry: Standing issue discussed. Arguments heard. Court rules GRANTING in part the motion to Intervene applying a 1st amendment right of access. The courts order of 2/12/99 stands regarding future filing of documents under seal.. Proprietary trade secrets and technology are protected. Microsoft agrees to send a list of the sealed documents to the media. The media will ask for those that they wish unsealed and Microsoft will submit a motion as to those that they agree to. All information from this hearing will be memorialized in an order by Mike O'Brien. granting in part, denying in part [417-1] motion to intervene by San Jose Mercury News for limited purpose of seeking an order, granting in part, denying in part [417-2] motion to unseal court file granting in part, denying in part [459-1] motion to intervene by Bloomberg LP, granting in part, denying in part [459-2] motion for Joinder w/movant The San Jose Mercury News motions filed 2/16/99 (note: these motions have not been filed with the court as The San Jose Mercury News has not yet been allowed to intervene, granting in part, denying in part [459-3] motion to unseal the court file granting in part, denying in part [464-1] motion to intervene by SL Tribune, granting in part, denying in part [464-2] motion for Joinder RE: [459-1] motion to intervene by Bloomberg LP, [417-1] motion to intervene by San Jose Mercury News for limited purpose of seeking an order, [405-1] motion for permissive intervention to modify protective order by Bristol Tech, granting in part, denying in part [464-3] motion to unseal court file ; Judge: Ronald N. Boyce Court Reporter: Laura Robinson Tape #: 1718/1719 Log #: 2037-end and 0-1991 Court Deputy: Trisha Little (tl) [Entry date 05/26/99]

So, they were partially successful. What is so interesting to me about this find is that it mentions a First Amendment right of access. The order doesn't use the phrase "First Amendment" but just mentions a general public right to access, but the minutes specifically do. In the earlier article on the public's right to know and the general topic of privacy, I mentioned that I hadn't finished researching. The piece that I didn't then have was whether the 10th circuit recognizes a First Amendment interest. Back in 1999, it didn't, according to the court paper we highlighted in that article. So the research we had to do was to find out if that had changed since 1999, when the paper referenced said the 10th didn't recognize such an interest. This notation is a proof that the judge in this case in the 10th circuit did recognize a First Amendment right of access. This obviously boosts the chances for G2, in that same circuit.

However, as you can also see in the order in this case, that interest isn't absolute. The media in this case, Caldera Inc. v. Microsoft didn't get all they asked for, even where there was a pattern of over-designation. Or, putting it more accurately, their motion for partial intervention was granted in that they could ask that a document or filing be unsealed, and then Microsoft could either hand it over or tell the judge why it didn't want to. Filings in general, the court said, should not be sealed, but there were exceptions, and not just for trade secrets: "Matters relating to trade secrets, proprietary, confidential, engineering, and commercial information are proper for nondisclosure, except as to materials that will be addressed in open court," this order reads.

Of course, the judge in the current case can make his own list and issue his own order, drawing the line where he feels it is best in this case, with these facts. I can't imagine, though, that even while he must honor the First Amendment right of access, he wouldn't also consider SCO's record of trying this case in the media and repeatedly blackening IBM's reputation. Remember the "mountains" of code? And then there is the fact that Maureen O'Gara, who essentially is G2, announced the G2 motion to intervene and unseal with the inaccurate accusation that "IBM is believed to have been particularly free with the seal," which Groklaw immediately proved false by simply adding up all the documents each side had sealed.

You'll notice some names we've seen before on the list of attorneys for Caldera, Inc., Ryan Tibbitts, for one, and Matthew Harris, who I believe was later at Lineo, the company that was spun off from Caldera and given DR-DOS. The motherlode Maxframe site tells the history like this:

"DR-DOS originated in 1987 at Digital Research, Inc.; was then acquired by Novell in the early 90s; in 1996, DR-DOS was acquired by Caldera, Inc., the same company that sued and settled out-of-court with Microsoft Corporation over DOS-related anti-trust allegations; in 1998, it was spun out to Lineo, Inc. (a Canopy company) where it underwent enhancements targeted at the embedded market and, in October 2002, was acquired by DeviceLogics, Inc. DeviceLogics, Inc. was founded by Bryan Sparks, Bryce Burns and Troy Tribe for the advancement of DOS as an embedded solution."

The link that went dead after Groklaw's first article was a link to http://www.drdos.com/fullstory/factstat.html .

These documents we've just found are the documents filed by Caldera, so remember that there were Microsoft filings as well, and if we can ever find them, we'll gladly add them to the list, so you can read their side too. However, the settlement of this case clearly went against Microsoft, and the filings are interesting because they quote from Microsoft's own documents. That is their primary value, to me, as well as being of historic interest.

A couple of years after the case had wound down, Canopy told the court that it was expensive to have to store all the paper documents and they wanted to destroy them. Sun Microsystems immediately intervened, asking to have the documents it needed for its case against Microsoft (and on behalf of Be as well), indicating they would be willing to take on that great financial burden. Caldera opposed, so evidently money wasn't the only issue. In their response to Sun's intervention, they said they had no corporate interest in keeping the documents, and they wished to avoid having to do the work of going through the boxes and deciding which documents were and which were not privileged. They offered to turn it all over to Microsoft, however. Microsoft filed its own response, saying that they had it all already, but whether Sun got the documents from Canopy or from Microsoft, they had to give third parties notice so the third parties could object.

Sun was ultimately given the right to grab some of the documents before they were destroyed, subject to notice first to third parties. But plenty was still destroyed. As a result, historians will have quite a time trying to tell the story accurately. Hopefully, this find will help them. On the issue of destroying the documents in this case, here are the docket entries on Canopy's request to do it, Sun's intervention to try to salvage whatever it could, and the order:

5/30/00 - 671 - Stipulation by Microsoft, Caldera for preservation of docs under the protective order (hom) [Entry date 05/31/00]

5/30/00 - 671 - Order granting [671-1] stipulation motion for preservation of docs under the protective order signed by Chief Judge Dee Benson , 5/30/00 cc:atty (hom) [Entry date 05/31/00]

10/18/02 - 672 - Motion by Caldera to amend/modify [671-1] stipulated motion for preservation of docs under the protective order (ce) [Entry date 10/21/02] [Edit date 10/25/02]

10/18/02 - 673 - Memorandum by Caldera in support of [672-1] motion to amend/modify [671-1] stipulated motion for preservation of docs under the protective order (ce) [Entry date 10/21/02]

10/24/02 - 674 - Order granting [672-1] motion to amend/modify [671-1] stipulated motion for preservation of docs under the protective order to permit Canopy, the successor-in-interest to Caldera to destroy the docs being preserved in accordance with the stip, signed by Chief Judge Dee Benson , 10/24/02. cc:atty (ce) [Entry date 10/25/02]

11/13/02 - 675 - Notice of attorney appearance for Sun Microsystems by John P. Mullen (asp) [Entry date 11/14/02]

11/13/02 - 676 - Motion by Sun Microsystems to intervene by Sun Microsystems, to amend [671-1] order (asp) [Entry date 11/14/02]

11/13/02 - 677 - Memorandum by Sun Microsystems in support of [676-1] motion to intervene by Sun Microsystems, [676-2] motion to amend [671-1] order (asp) [Entry date 11/14/02]

11/13/02 - 678 - Declaration of Paul S. Grewall Re: [676-1] motion to intervene by Sun Microsystems, [676-2] motion to amend [671-1] order. Doc is oversized and placed in Volume W. (asp) [Entry date 11/14/02] [Edit date 01/23/03]

11/14/02 -679 - Motion and Order signed by Chief Judge Dee Benson , 11/14/02 Granting motion/PHV for Attorney Paul S. Grewal on behalf of movant Sun Microsystems cc:attys (asp) [Entry date 11/15/02]

11/14/02 - 680 - Certificate of service [675-1] appear/appearance notice, [676-2] motion to amend [671-1] order, [676-1] motion to intervene by Sun Microsystems, [677-1] support memorandum, [678-1] declaration, [679-1] order by Sun Microsystems (asp) [Entry date 11/15/02]

12/2/02 - 681 - Response by Caldera to [676-1] motion to intervene by Sun Microsystems, [676-2] motion to amend [671-1] order (asp) [Entry date 12/03/02]

12/3/02 - 682 - Response by Microsoft to [676-1] motion to intervene by Sun Microsystems, [676-2] motion to amend [671-1] order (asp) [Entry date 12/03/02]

12/16/02 - 683 - Motion by Sun Microsystems to extend time until 1/6/03 to file a reply in supp of its motion to intervene (asp) [Entry date 12/17/02]

12/16/02 - 684 - Memorandum by Sun Microsystems in support of [683-1] motion to extend time until 1/6/03 to file a reply in supp of its motion to intervene (asp) [Entry date 12/17/02]

12/16/02 - 685 - Declaration of Paul S. Grewal Re: [683-1] motion to extend time until 1/6/03 to file a reply in supp of its motion to intervene (asp) [Entry date 12/17/02]

1/10/03 - 686 - Stipulation by Microsoft, Caldera, Sun Microsystems stip to amend [674-1] order permitting destruction of docs by Canopy Grp (alt) [Entry date 01/10/03]

1/10/03 - 686 - Order granting [686-1] stipulated motion to amend [674-1] order permitting destruction of docs by Canopy Grp (see order for details) signed by Chief Judge Dee Benson, 1/9/03 cc:atty (alt) [Entry date 01/10/03]

1/22/03 -- 10 Transcripts of proceedings placed in expandable folders for the following dates - Volume T: 2/18/99, 5/25/99, 5/27/99, 6/8/99, 6/10/99. Volume U: 6/29/99, 7/6/99, 7/7/99, 12/7/99, 12/22/99 (su) [Entry date 01/22/03] [Edit date 01/22/03]

Putting this together with the fact that the media was partly successful in its intervention, I see that there are entities that may well have more documents in this case still in their possession. So, Sun, Be, Bloomberg, Salt Lake Tribune, and San Jose Mercury News -- would you like to check and see what you have and then share with us? We'd like to put together a complete historical record.

Anyway, I guess this should give us plenty of reading for a lazy day. If, as you go through the documents, you notice proofs of anticompetitive behavior, like Microsoft emails, for example, quoted in the document, it would be a good idea to make a record of the quotation, the document, the nature of the issue, and what page in the document you can find it on. Then leave the information as a comment on the Microsoft Litigation page. There is a link to it now, on the list on the left.

There was another, small Microsoft case in the news.Here's the case, and it's in the 10th Circuit as well. Microsoft had won a case against a company called MBC Enterprises. The lower court had ordered MBC to pay Microsoft $2 million. Microsoft had charged them with buying and then selling counterfeit Win98, Office and MS NT Server software. The evidence against MBC was two counterfeit copies of Windows NT Server software found in the possession of a Michigan-based company that allegedly purchased the software from MBC.

The court of appeals said that wasn't proof sufficient to support a summary judgment motion, and it has remanded the case for further proceedings. Besides, even if someone had sold the counterfeit software to MBC, Microsoft, the court said, hadn't pointed to any specific evidence that MBC "actually resold that software." $2 million in damages for two units of software? That can't be all there was or no wonder the court of appeals decided somebody needed to look a little closer. I decided to take a look on Pacer, and if you do the same, looking for MBC Enterprises, you'll find that Novell won a similar case against MBC, and I'm thinking, after reading the documents in that case, which ended with a settlement, that Microsoft is very likely to appeal.

And finally, if you use MS, and you live in California, you might want to read this, as you might be due some money from a settlement of a case there. It seems very few are asking for their money, and Microsoft is spinning it that this means no one felt overcharged. I think it's that they all switched to GNU/Linux and don't need vouchers for new MS products. Or money, now that I think of it. But if that is what you thought the vouchers were for, think again. You can use them for any hardware or software product, the article says. You only have a week to fill in the form, by the way, so it's now or never.


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