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More SCO Fun in Discoveryland - 2 Filings
Monday, October 24 2005 @ 07:07 PM EDT

Here's SCO's Memorandum in Opposition to IBM's Motion to Compel Production of Documents on SCO's Privilege Log [PDF], in which they assert attorney-client privilege to justify holding back documents from IBM.

Now we get down to the nitty gritty, with both sides telling the history of Unix their way. IBM asserts that the privilege isn't SCO's to assert, that they bought only some assets, with the previous owners still in existence. SCO is saying they bought not just the assets but the business itself, which they say they have continued, so they are properly asserting the privilege. My favorite paragraph is on page 5, SCO's last bit in its version of history:

"In 2003 Caldera changed its name to The SCO Group, Inc. SCO is thus the successor to the UNIX business that was transferred from AT&T to Novell to Santa Cruz to Caldera."

And here us babes in the woods thought Caldera changed its name to SCO just for marketing purposes. As to SCO's privilege theory, it isn't so simple. For one thing, Novell's interests are opposed to SCO's, yet SCO is claiming privilege over documents prepared for Novell. That is a hurdle in SCO's path.

I'll need to read the cases each side cites to know who I think is right on the issue of attorney-client privilege, and I can't do that today, because I have to finish an article for someone under a deadline. But I will as soon as possible, together with IBM's Memorandum in Support of its Motion to Compel Production of Documents on SCO's Privilege Log [PDF]. If someone could find the cases SCO and IBM each cite and send them to me, it would help a lot. I have to tell you, this is one of the most interesting debates yet, to me, and I can't wait to dive in.

Also, here is SCO's New Renewed Motion to Compel Discovery [PDF]. At first I thought they were kidding around, maybe riffing off of my joke titles the other day about their renewed, rerenewed, renewed again, we're-coming-'round-the-mountain-once-again motions to compel discovery. They were supposed to file a motion, as per Judge Well's instructions in her Order. Judge Wells said that a lot of discovery had gone on since SCO originally filed its Renewed Motion to Compel Discovery (#366 on the docket), so because of the possibility that some items had been handed over in the meantime, SCO was to "withdraw the pending motion and file a new motion removing any items from the motion which may have been provided by IBM in the intervening time."

So, she asks them to withdraw the Renewed Motion to Compel Discovery and submit a new motion. So SCO files a motion titled "New Renewed Motion to Compel Discovery". Is that what Judge Wells asked for, a new *renewed* motion? I know. They are such cut-ups, these SCO lawyers. I guess they still want IBM to sound like the bad guys, to give the impression that poor SCO has to keep filing and refiling motions to compel discovery, a double irony on the day they filed a memorandum trying very, very hard not to give IBM what it says *it* is entitled to in discovery. They stubbornly state that with all due respect, they are just resubmitting the motion, since IBM didn't cough up anything new to make them drop a thing from their original renewed motion to compel. Sore losers, I'd say. Didn't you guys enjoy that hearing?

SCO's lawyers remind me of Winston Churchill's famous 1941 never-give-up speech to his old school at Harrow. If you go to Google, mostly you'll find the story told that he gave a speech that consisted in its entirety of this:

"Young men, never give up.
Never give up!
Never give up!
Never, never, never--never--never!"

My mother wrote that speech on a piece of paper and kept it in her important papers the rest of her life, and she lives that way too, now that I think of it. So, that is how I knew that story, enjoyable as it is, probably wasn't true. Here's what my mom wrote down:

Never give in. Never give in. Never, never, never, never -- in nothing, great or small, large or petty -- never give in, except to convictions of honor and good sense.

If you visit this site, you can find confirmation that what my mom wrote down is part of what he actually said that day. Never be satisfied, when doing research, with the first answer you come across, by the way. Nothing is ever as simple as it seems.

However, SCO also reminds me of another Churchill quotation:

"However beautiful the strategy, you should occasionally look at the results."

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