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Hearing Set for SCO's Objections to IBM Order & Novell Atty Planning Report -Updated
Saturday, December 03 2005 @ 01:31 AM EST

Pacer has two new entries, one for SCO v. IBM, showing that they've set a hearing on SCO's Objection to the Magistrate Court's Order of October 12, 2005 for December 13 at 10:30 AM in Room 220, for those of you who wish to attend. Always call first, though, to make sure there is no last-minute change.

The other entry is a document in the SCO v. Novell case, the Attorneys' Planning Meeting Report [PDF]. It's the report on a November 17 telephone meeting with Ted Normand for SCO and Ed Brakebill for Novell, plus some later discussions between the attorneys, letting the court know what they've agreed to, subject to court approval, regarding discovery and case scheduling.

Here's the deal. They can't agree on a trial date, and they ask the court to get involved in that decision. They also tell the court that the potential for resolution of the matter by settlement is "low". They figure the trial will last about 21 days, but when should it begin? SCO wants June 1, 2007 as the date for the trial to begin. Remember that SCO v. IBM is scheduled for trial to begin February 26, 2007. Novell thinks a few months earlier than June should work out better, because they believe that "certain claims and defenses in this case relate to, and could affect, resolution of certain claims and defenses currently being litigated in the SCO v. IBM case."

I'll say.

I gather SCO would like the jury in the IBM case kept in the dark about Novell until after they decide the IBM case first. Yeah. Right. That's a fine plan. Keep the IBM jurors guessing, so they have to decide whether IBM is guilty of copyright infringement before we find out from the Novell case, hopefully, if SCO even holds the copyrights. Obviously Novell isn't going to agree to that. I doubt the court will either. But if SCO wants to delay, have they demonstrated some skill? So, here we go. Sigh. Motion practice looms. I hope you guys are ready to transcribe.

So, how confident would you say SCO is feeling about winning the Novell case, and the question of who holds the copyright rights on UNIX, if they want to do the IBM trial first? If they thought for a minute the Novell case would help them in the IBM litigation, wouldn't they be eager for it to go to trial first?

The report also lets the court know the parties expect oodles of discovery on all facets of the case. It'll get airborne on February 28 with disclosures by each side as per Rule 26(a)(1). What is that? Here you go, thanks to Cornell's Legal Information Institute:

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

(a) Required Disclosures; Methods to Discover Additional Matter.

(1) Initial Disclosures.

Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

(C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and

(D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

There are some exceptions to the above, which you can read on the Cornell page. Impeachment just means the following:

impeachment

n. 1) discrediting a witness by showing that he/she is not telling the truth or does not have the knowledge to testify as he/she did. 2) the trying of a public official for charges of illegal acts committed in the performance of public duty. It is not the conviction for the alleged crime nor the removal from office. It is only the trial itself.

They've agreed to 25 nonexpert depositions per side, calculated on an hourly basis, whereby every 7 hours counts as one deposition. Each side can exceed the time limit for two witnesses and have the victim in the hot seat for two days. Fact discovery is to end, ha ha, on November 1, 2006. They can stipulate to amend the discovery plan, if there are new claims or defenses added.

Expert witness reports from the side having the burden of proof on issues are due by November 17, 2006. What does that mean? If I say you stole my cat, I have the burden of proving it, not you. So if my expert found my cat's DNA on your sweater, his report on it would be by the deadline. If you have an expert that is ready to swear that my expert got it all wrong and the DNA belongs to my dog instead, then that report isn't due on that date. It would be an opposing expert report, and in the Novell case, such opposing expert reports will be due on December 8, 2006. Expert discovery is to end by January 12, 2007.

They've agreed that they can serve the other side's attorney by email or fax, as well as by mail or by hand, but if it's by anything but by hand, the other side gets 3 days more to respond. And they've decided to stay in the 21st century, agreeing that where practicabale, the parties will produce documents electronically or via CD, but on request, originals can be requested for inspection.

Sheesh. If it were me, I'd want to see the originals for everything SCO has. I've never felt so comfortable with the 1996 amendment SCO's paralegal discovered just when it was needed most. I'd want to have the ink tested to see if it dates from 1996 or 2003 or see if the page has those almost invisible little yellow dots from a modern printer. Only kidding. I don't know if they can fine-point dating ink like that. If they can, I hope Novell goes for it. That's how experts have detected forgeries when folks have tried to present supposedly ancient manuscripts of the Bible. I'm not saying the amendment is a forgery, because I can't know that. I'm just saying I'd want to check it to make certain it's not.

[Update:] Groklaw's Teisu wrote the following to me, after reading this part of the article: "Although my contributions to Groklaw are few, I do have some knowledge about the field of questioned documents, from my association with a crime lab. Paper, inks, toner, and even the printer model used to print the document can be identified from the document. The document can usually be dated to within a year of the document being printed and signed, and sometimes the time range can be narrowed to a month."]

The parties agree to keep some things confidential and will offer a proposed protective order to the court for approval. Meanwhile, Novell is going to be allowed to see certain confidential materials in the SCO v. IBM litigation.

The parties agree that if a party claims a document is privileged, and it ends up in the other sides' hands by mistake, the document "will be returned immediately upon the request of the disclosing party without the need to show the production was inadvertent." Like SCO cares about agreements. IBM had such an agreement with SCO, but don't you recall the privileged emails that SCO kept and refused to return and then read aloud in a hearing? So I hope Novell's paralegals are extra zealous not to turn over anything they don't mean to. It can save us all endless motions and hearings and transcribing and SCO's press buddies trying to intervene in the case to unseal things.

The cutoff date for amending pleadings or to join additional parties is March 7, 2006. The deadline for filing dispositive motions is January 26, 2007.

And here's the Report of Attorneys' Planning Meeting as text:

********************************

Brent O. Hatch (5715)
HATCH, JAMES & DODGE, PC
[address, phone, fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff-Counterclaim
Defendant, The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION


THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff-Counterclaim Defendant,

vs.

NOVELL, INC.,
a Delaware corporation,

Defendant-Counterclaim Plaintiff.

ATTORNEYS' PLANNING
MEETING REPORT

Civil No.: 2:04CV00139
Judge: Dale A. Kimball

Plaintiff-Counterclaim Defendant, The SCO Group, Inc. ("SCO"), and Defendant-Counterclaim Plaintiff, Novell, Inc. ("Novell"), hereby jointly submit this Attorneys' Planning Report, pursuant to Federal Rule of Civil Procedure 26(f).

1. ATTORNEYS' MEETING: Pursuant to Federal Rule of Civil Procedure 26(f), a meeting was held by telephone conference on November 17, 2005, between the parties to discuss the schedule in this matter.

a. Counsel for SCO, Edward Normand, and counsel for Novell, Ken W. Brakebill, were in attendance. Counsel also engaged in further discussions, after November 17, 2005, in an effort to agree to a discovery plan and case schedule in this matter.

b. The parties have discussed the nature and basis of their claims and defenses.

2. INITIAL DISCLOSURES: The parties will exchange the information required by Rule 26(a)(1) by February 28, 2005.

3. DISCOVERY PLAN: Based on the claims and defenses currently pled, the parties propose to the Court the following discovery plan:

(a) Discovery is necessary on all of the claims, defenses and counterclaims raised in this suit, both directly or indirectly, and on the damages the parties assert.

(b) The parties expect to utilize interrogatories, requets for production, requests for admission and oral depositions in conducting discovery. The parties agree that the Federal Rules of Civil Procedure should control the timing and scope of discovery except as provided below.

(c) The parties agree to no more than twenty-five (25) non-expert depositions per party. For purposes of calculating the number of depositions a side has taken, Rule 30(b)(6) depositions shall be counted based on the total time of the deposition(s) (where every seven (7) hours of 30(b)(6) testimony constitutes one deposition), not the number of notices or subpoenas,

2

the number of categories within a notice or subpoena, or the number of designees offered in response thereto. The parties shall be allowed to exceed the time limitations for depositions for two witnesses of the opposing party; this enlargement would allow depositions to last up to two days. The parties agree to no more than twenty-five (25) interrogatories per party.

(d) The parties agree that all fact discovery will be completed no later than November 1, 2006.

(e) The parties agree that the parties bearing the burden of proof on issues will designate and submit the reports of its expert witnesses on these issues, if any, by November 17, 2006. The deadline for submitting any opposing expert reports will be December 8, 2006. Any rebuttal expert reports must be served by December 22, 2006. The parties shall make their respective experts available for deposition by January 12, 2007. Expert depositions will be taken where the expert resides unless otherwise agreed. The parties agree that there will be no discovery of drafts of expert reports or other communications with experts.

(f) The parties agree that expert discovery in this matter will be completed no later than January 12, 2007.

(g) The parties may serve papers upon designated counsel for each party, either by hand, by overnight mail, by facsimile, or by e-mail with a PDF attachment. When service is effectuated by any method other than by hand delivery, three additional calendar days shall be added to the response time, if any, pursuant to Rule 6(e).

(h) All deposition exhibits will be numbered sequentially, regardless of the identity of the deponent or the side introducing the exhibit. The same numbers will be used in pretrial motions and at trial.

3

(i) Where practicable, the parties will produce documents electronically or via CD to avoid unnecessary expense and effort. Where possible, originals will be made available for inspection upon request.

(j) The parties anticipate that documents produced in this case may contain confidential information. The parties agree promptly to enter into an appropriate confidentiality agreement and submit a proposed protective order before the exchange of such documents.

(k) The parties recognize that efficient resolution of this case will be aided by permitting Novell access to certain materials in The SCO Group Inc. v. International Business Machines Corp., Case No. 2:03CV294 DAK, D. Utah ("SCO v. IBM case"). Pending the execution of an appropriate protective order, SCO authorizes Novell to have attorneys-eyes only access to those confidential materials in the SCO v. IBM case, including document productions, depositions, under-seal briefings, and discovery responses, that reasonably relate to a claim or defense in this litigation.

(l) Documents that a party claims as privileged, including all copies made, will be returned immediately upon the request of the disclosing party without the need to show the production was inadvertent.

(m) The parties reserve their rights to stipulate (subject to the Court's power to approve such stipulation), to amendments to, and to seek to amend, this discovery plan, in the event that the pleadings are amended to add new claims and/or defenses.

4. OTHER ITEMS:

(a) The parties believe that a conference with the Court is necessary prior to entry of this Attorneys' Planning Report and a Scheduling Order, at least with respect to the issue of the timing of the trial in this case, as discussed in subparagraph (h) below. Counsel for Novell

4

requests that the Court permit telephone appearances by counsel since counsel for Novell would otherwise be traveling a substantial distance (principal counsel for SCO is scheduled to argue a motion in the District of Utah, in the SCO v. IBM case, on the same day as the currently scheduled pretrial conference).

(b) The parties agree and stipulate that the cutoff date for joining additional parties is March 7, 2006.

(c) The parties agree and stipulate that the cutoff date for amending pleadings is March 7, 2006.

(d) The parties agree and stipulate that the cutoff date for filing dispositive motions is January 26, 2007.

(e) The parties believe that the potential for settlement is low.

(f) The potential for resolution of this matter through the Court's alternative dispute resolution program is poor.

(g) Final lists of witnesses, exhibits and objections thereto pursuant to Federal Rule of Civil Procedure 26(a)(3) are due on the dates specified by that rule.

(h) The parties agree that the pretrial conference in this case should be held approximately one month before trial. However, as discussed below, the parties differ with respect to the timing of the trial in this case.

SCO's Position: SCO believes that this case should be scheduled for trial beginning June 1, 2007, in consideration of the currently scheduled, multi-week trial in the SCO v. IBM case that currently is scheduled to begin on February 26, 2007.

Novell's Position: It is Novell's position that this case will be ready for trial a few months before June 1, 2007. In addition, Novell believes that an earlier trial date in this case is

5

appropriate so as to reflect the fact that certain claims and defenses in this case relate to, and could affect, resolution of certain claims and defenses currently being litigated in the SCO v. IBM case.

(i) The estimated length of the trial is twenty-one (21) days. Trial will be to a jury.

Dated this 1st day of December, 2005.

By: _____[signature[______
ANDERSON & KARRENBERG
Thomas R. Karrenberg

MORRISON & FOERSTER
Michael A. Jacobs
Ken W. Brakebill

Attorneys for Defendant-Counterclaim
Plaintiff

Dated this 1st day of December, 2005.

By:____[signature]______
HATCH JAMES & DODGE
Brent O. Hatch

BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Robert Silver
Stuart Singer
Edward Normand

Attorneys for Plaintiff-Counterclaim
Defendant

6

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 1st day of December, 2005, I caused to be mailed a true and correct copy of the foregoing via first class U.S. Mail, postage prepaid, to the following:
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon ANDERSON & KARRENBERG
[address]

Michael A. Jacobs
Ken W. Brakebill
MORRISON & FOERSTER
[address]

7


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