Here is IBM's Subpoena In a Civil Case which it served on Intel. It's a subpoena for documents, that were supposed to be delivered for inspection on January 27, and also to do a deposition on whomever Intel wishes to send, set for February 2.
You'll note that it isn't identical to the one on PointServe. For one thing, we have done the preliminary boilerplate language as text as well this time, so it's a complete document. That way any who are visually impaired will be able to access all the information, including the instructions, which tell you what reasons there can be to ask the court to quash a subpoena. The only parts on the form that apply are where there is an X.
Second, it is a subpoena issued by a California court, because that is where Intel is located and that is where the deposition is scheduled to take place. It isn't asking about code or code analysis. It is asking about all communications between Intel and SCO or Canopy about IBM, Unix or Linux, all meetings with either concerning IBM, Unix or Linux, and all contracts or other business relations, past, present, or future, between Intel and SCO.
They also want to know the names of the right people to answer questions about all that, and they want Intel to turn over all documents concerning all of the above and concerning this lawsuit, including SCO's "alleged evidence" supporting its claims and any statements or declarations, analysis, or opinons concerning this lawsuit or SCO's claims, as well as any documents about any business relations, past present or prospective between Intel and SCO.
Don't ask me what it means, because all it means to me so far is that IBM suspects or knows something we don't yet know but we will, I'm sure, eventually find out. You don't usually have to depose your best friends, though. They tell you whatever you need to know volitionally, because they want you to win, and they'll do a declaration for you. You subpoena folks who are not eager to tell you what you wish to learn, or who wish to appear so. IBM has scheduled the deposition for February 2. The docket entry says, "(Note: Filing not considered a return of service executed as there was no proof of service/declaration of server included with these documents.)" but I'm assuming the service itself was correctly done and the deposition will go forward, and IBM just has to file the appropriate proof of service with the court.
Issued by the
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
THE SCO GROUP, INC., a Delaware
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation,
SUBPOENA IN A CIVIL CASE
Case No. 2:03CV-0294 DAK
Pending in District of Utah, Central Division
Judge: Dale A. Kimball
____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 - COURTROOM -
DATE AND TIME
__X__ 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.
SEE Attachment A.
PLACE OF DEPOSITION
Santa Clara Marriott
DATE AND TIME
February 2, 2005, 9:00 a.m.
__X__ YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below (list document or objects):
DATE AND TIME
January 27, 2005, 9:00 a.m.
____ You are commanded to permit inspection of the following premises at the date and time specified below.
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 SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT
Attorney for Defendant
DATE - January 13, 2005
ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
Amy F. Sorenson, Snell & Wilmer, [address, phone]
(See Rule 45, Federal Rules of Civil Procedure, Parts C & D on Reverse)
PROOF OF SERVICE
SERVED, DATE, PLACE
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 the foregoing information contained in the Proof of Service is true and correct.
Executed on _____
Address of Server
Rule 45, Fed.R.Civ.P., 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 a 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 the 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 the 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 compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a 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 whose 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 the 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 INTEL CORPORATION
TESTIMONY SUBJECT MATTER
Pursuant to Federal Rule of Civil Procedure 30(b)(6), you are directed to designate one or more officers, directors, managing agents, or other persons who consent to testify on your behalf concerning the following:
1. All communications with SCO and/or Canopy concerning IBM, Unix or Linux.
2. All meetings with SCO and/or Canopy concerning IBM, Unix or Linux.
3. All contracts, agreements, or understandings of any kind, written or oral, with or relating to SCO.
4. All business relations (past, present, or prospective) between Intel and SCO.
5. The identity of Intel personnel knowledgeable concerning the subject matter of items 1-4, above.
6. Documents produced in response to this subpoena and concerning the subject matter set forth in items 1-5, above.
DOCUMENTS TO BE PRODUCED
You are instructed to produce the following documents at the time and place specified in the subpoena.
1. All documents concerning this Lawsuit (including SCO's claims and IBM's defenses and counterclaims), including but not limited to all documents concerning: (a) SCO's alleged evidence in support of its claims; and (b) any statement, affidavit, declaration, analysis, assessment or opinion concerning this Lawsuit or SCO's alleged rights or evidence.
2. All documents concerning any and all communications with SCO and/or Canopy, including any and all communications with SCO and/or Canopy concerning IBM, Unix or Linux.
3. All documents concerning any and all meetings with SCO and/or Canopy, including any and all meetings with SCO and/or Canopy concerning IBM, Unix or Linux.
4. All documents concerning any and all contracts, agreements or understandings of any kind, written or oral, with or relating to SCO.
5. All documents concerning any and all business relations (past, present, or prospective) between Intel and SCO.
INSTRUCTIONS AND DEFINITIONS
1. 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, instant messages, telexes, facsimile transmissions, telecopies, recordings in any medium of oral communication, telephone or message logs, or notes or memoranda concerning written or oral communications.
2. The term "Canopy" shall mean and include, collectively and/or individually, The Canopy Group, Inc. and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of The Canopy Group, Inc.
3. The term "Linux" shall mean any and all versions, or other variants of any Linux computer operating system, including but not limited to any Linux kernel and/or GNU tools suite.
4. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing or constituting.
5. The term "document" shall be synonymous in meaning and usage with 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, electronic mailing lists or automated fax support systems. The term "document" specifically includes electronic mail, electronic correspondence, or electronic peer-to-peer messages ("e-mail') and any attachments and files created and maintained in electronic form in the normal course of business.
7. The term "including" shall mean including without limitation.
8. The term "Lawsuit" shall mean the action entitled The SCO Group, Inc. v. International Business Machines, Civil No. 2:03cv-0294, pending in the United States District Court for the District of Utah.
9. The term "Intel" shall mean and include, collectively and/or individually, Intel Corporation, and all its directors, officers, authorized agents, employees, consultants, attorneys, representatives, direct and indirect contractors, and/or all other persons acting on behalf of Intel Corporation.
10. The term "person" shall mean any natural person or any private or public entity.
11. The term "SCO" shall mean and include, collectively and/or individually, plaintiff Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., and all its directors, officers, authorized agents, employees, consultants, attorneys, sales representatives, direct and indirect contractors, entities that were in part or in whole acquired by or merged with Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc., and/or all other persons acting on behalf of Caldera Systems, Inc., Caldera International, Inc., or The SCO Group, Inc. This includes the Server Software and Professional Services divisions acquired in 2001 by Caldera International, Inc. from Tarantella, Inc., f/k/a The Santa Cruz Operation, Inc.
12. The term "Unix" shall mean any and all versions, flavors, or other variants of any Unix computer operating system, including but not limited to all operating systems certified as
conforming to the Unix-brand standards set by The Open Group, the owner of the Unix trademark.
1. Each paragraph should herein be construed independently and, unless otherwise directed, without reference to any other paragraph for the purpose of limitation.
2. The use of any definition for the purposes of this request shall not be deemed to constitute an agreement or acknowledgment on the part of IBM that such definition is accurate, meaningful or appropriate for any other purpose in this action.
3. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, is shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.
4. Each page or sheet produced is to be marked with a consecutive document control number.
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 be separated or disassembled.
6. All documents produced in response to this subpoena shall be produced, where available, in electronic or machine-readable form.