IBM has begun unsealing and filing redacted documents, as per Judge Kimball's latest order. This is IBM's Unsealed Memorandum in Opposition to SCO's Motion to Compel IBM to Produce Samuel J. Palmisano for Deposition [PDF], and I found it a bit chilling. In it, IBM highlights behavior on the part of SCO's attorneys that I found shocking. Our whole legal system depends on good faith by the parties, and when lawyers start to push over the edge, the system breaks down.
Here is what IBM writes, on pages 9 and 10, after making their essential argument that Palmisano has no unique information to provide, a legal requirement, they point out, in order to depose a CEO or other high-level executive. Courts are aware of all the dirty tricks, of course, because they've seen them all before, and so they are aware that a party might just depose a CEO to harass the other side. After arguing that issue, IBM questions SCO's "good faith" by telling the court what has been going on behind the scenes.
Here's what they say on p. 9, including footnotes 7 and 8:
Third, SCO affirmatively asserts that its motion is made in good faith. (SCO Mem. at 9.) SCO's good faith is not, however an adequate basis for ordering Mr. Palmisano's deposition. As discussed, SCO must show that Mr. Palmisano has unique personal knowledge. In any event, the circumstances under which SCO filed this motion at least call into doubt any assertion that it is proceeding in good faith. SCO seeks discovery from IBM's chairman and chief executive on a topic of marginal relevance at best, without making a showing that the information it seeks cannot be had from others within IBM. IBM expressly invited SCO to specify topics which SCO believed Mr. Palmisano was "uniquely able to address", and SCO declined. (SCO Me., Ex. C at 2.) 7 Furthermore, in filing this motion, SCO violated the protective order in this case for at least the third time. 8
7 Contrary to SCO's claim at page 6 of its brief that counsel for SCO "referenced the publicly available information concerning Mr. Palmisano's key role in formulating and promoting IBM's Linux strategy" during a teleconference, counsel for SCO and IBM held a brief phone call during which SCO's counsel was again invited to explain its reasons for taking Mr. Palmisano's deposition. SCO offered none, and simply stated that the parties would have to "agree to disagree" on the issue.
8 On Wednesday, January 12, 2005, SCO filed its motion attaching five IBM confidential documents without filing the motion under seal, serving counsel for IBM by mail. (See Docket No. 374.) As a result, counsel for IBM did not know that the motion existed until two days later, when SCO's counsel called to discuss the fact that the motion had not been filed under seal. Although the certificate of service purports to show that the memorandum was served by mail on Wednesday, January 12, 2005, counsel for IBM did not receive the memorandum by mail until the following week. Accordingly, in filing this motion, counsel for SCO caused what should have been a sealed or redacted memorandum referencing IBM's confidential internal documents to be published on the Internet.
I see several issues being complained about here, 1) that SCO's attorneys have on three occasions violated a protective order, with the clear implication that it was deliberate; 2) that they misrepresented facts in a court filing; and 3) that they served a motion that violated the protective order by snail mail, the slowest choice, and by the time IBM learned about it, from a phone call from SCO, the material was posted to the Internet, and 4) that they then filed an affidavit of service with the court with a dubious date, since it normally does not take a week for mail to arrive at its destination. If these allegations are true, IBM has told the judge a great deal about this law firm. Then, in their conclusion, IBM adds this:
Finally, SCO claims that IBM should be obligated to produce its chairman and CEO for deposition because SCO intends to produce its CEO, Darl McBride. Unlike Mr. Palmisano, however, Mr. McBride has unique knowledge of relevant facts in the case. For example, Mr. McBride is responsible for making public statements about this case and about SCO's alleged evidence in particular. These statements by Mr. McBride -- including that SCO and its experts have found "a mountain of code" in Linux and that "the DNA of Linux is coming from UNIX," among many other things -- form the basis for certain of IBM's counterclaims, which allege that SCO's lawsuit is designed to create fear, uncertainty, and doubt as part of an improper scheme to assert proprietary rights over Linux and to impede the use of that technology by the open-source community. Moreover, whereas there are many people at IBM who should be able to address the issues in which SCO is interested, there are very few, if any, others at SCO (other than Mr. McBride) who can address the issues in which IBM is interested.
"SCO's lawsuit is designed to create fear, uncertainty and doubt as part of an improper scheme to assert proprietary rights over Linux and to impede the use of that technology by the open-source community." I think that says it all. I'll have the other documents up in a moment, but this one was important enough, I felt it needed its own space. Forbes recently wrote this about David Boies' reputation:
David Boies, supreme private-sector litigator, takes on New York Attorney General Eliot Spitzer, consummate prosecutor and politician. They will slug it out over the fate of Maurice (Hank) Greenberg, the ousted chairman of American International Group. It would be tough to find two more ambitious, controversial litigators. Or a couple of opponents more alike in some ways. "We know each other, we like each other, we respect each other," says Boies. "I am a political supporter." Both men tend to try their cases in the press, to push until they overreach and to rely on questionable tactics that sometimes backfire.
"Until they overreach." "Employ questionable tactics." That really isn't the kind of reputation a law firm normally strives for. For one reason, when you get a reputation like that, what kind of clients will you attract?
Well, one thing is for sure. I don't think we'll have to read any more orders in this case about good sportsmanship or about crediting good faith to both sides. Good. Reality is important anywhere, but nowhere as much so as in litigation. That's what litigation is supposed to be, a search for truth.