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To read comments to this article, go here
Novell and SCO Have a Telephone Date with Judge Kimball
Tuesday, December 20 2005 @ 02:21 AM EST

We're starting to see some activity in the SCO v. Novell case again. Some discovery action, for one thing. There are two certificates of service, one for Novell, Inc.'s First Set of Requests for Production to the SCO Group, Inc. [PDF] and one for Novell, Inc.'s Second Set of Requests for Production to the SCO Group, Inc. [PDF]. Nothing from SCO. We don't get to see discovery materials, normally, unless one of the parties attaches it to a motion about some dispute between them. Usually, that means the public never gets to see it, but we're talking SCO here, and they surely don't want this case going to trial quickly, so you can bet your bottom dollar we'll eventually get to hear at least something about the discovery requested.

Meanwhile, we can imagine. If you were Novell, what documents would you want to see? That's exactly what Novell is likely asking to see also.

And do you remember when the Magistrate Judge told the parties in the Scheduling Order [PDF] that they needed to talk to Judge Dale Kimball about when to schedule the trial?

Counsel are directed to contact the district judge to discuss trial scheduling relative to The SCO Group Inc. v. International Business Machines Corp., Case No. 2:03CV294 DAK, D. Utah ("SCO v. IBM case").

They have a date for a teleconference with Kimball on January 25th. Pacer shows this:

12/19/2005 88 NOTICE OF HEARING: (Notice generated by Kim Jones) Telephone Conference set for 1/25/2006 02:30 PM in Room 220 before Judge Dale A. Kimball. (kmj, ) (Entered: 12/19/2005)

Pacer doesn't tell us what the teleconference is about, but that's at least an educated guess. SCO wanted a June, 2007 date, and Novell wanted a date a bit earlier, by a few months. It's currently penciled in for June 25, 2007, but it's up to Kimball to figure out which goes first, the chicken or the egg.

Here's the Scheduling Order, as text:

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

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
Central Division for the District of Utah
_____________________________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

NOVELL, INC.,

Defendant.

___________________________________

SCHEDULING ORDER AND
ORDER VACATING HEARING

Case No. 2:04-CV-139 DAK

District Judge Dale A. Kimball

___________________________________

Pursuant to Fed. R. Civ. P. 16(b), the Magistrate Judge1 received the Attorneys' Planning Report filed by counsel. The following matters are scheduled. The times and deadlines set forth herein may not be modified without the approval of the Court and on a showing of good cause.

IT IS ORDERED that the Initial Pretrial Hearing set for December 20, 2005, at 1:30 p.m. is VACATED.

Counsel are directed to contact the district judge to discuss trial scheduling relative to The SCO Group, Inc. v. International Business Machines Corp., Case No. 2:03CV294 DAK, D. Utah ("SCO v. IBM case").

** ALL TIMES 4:30 PM UNLESS INDICATED **

1. PRELIMINARY MATTERS -- DATE

Nature of claim(s) and any affirmative defenses:

a. Was Rule 26(f)(1) Conference held? -- Yes

b. Has Attorney Planning Meeting Form been submitted? -- Yes

c. Was 26(a)(1) initial disclosure completed? -- 2/28/05

2. DISCOVERY LIMITATIONS -- NUMBER

a. Maximum Number of Depositions by Plaintiff(s) -- 25

b. Maximum Number of Depositions by Defendant(s) -- 25

c. Maximum Number of Hours for Each Depositions -- 7
(except for two depositions per party which may extend to 14 hours and as otherwise extended by agreement of parties)

1

d. Maximum Interrogatories by any Party to any Party -- 25

e. Maximum requests for admissions by any Party to any Party

f. Maximum requests for production by any Party to any Party

g. For purposes of calculating the numgber of depositions a sid 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, the number of categories within a notice or subpoena, or the number of designees offered in response thereto.

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.

i. The parties agree that there will be no discovery of drafts of expert reports or othe communications with experts.

j. 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.

k. 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.

l. The parties recognize that efficient resolution of this case will be aided by permitting Novell access to certain materials in the 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 docoument productions, depositions, under-seal briefings, and discovery responses, that reasonably relate to a claim or defense in this litigation.

m. 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.

2

3. AMENDMENT OF PLEADINGS/ADDING PARTIES 2

a. Last Day to File Motion to Amend Pleadings -- 3/7/06

b. Last Day to File Motion to Add Parties -- 3/07/06

4. RULE 26(a)(2) REPORTS FROM EXPERTS3

a. Party with Burden of Proof -- 11/17/06

b. Opposing Reports -- 12/8/06

c. Rebuttal Reports -- 12/22/06

5. OTHER DEADLINES

a. Discovery to be completed by:

Fact discovery -- 11/1/06

Expert discovery (Expert depositions will be taken where expert resides unless otherwise agreed.) -- 1/12/07

b. (optional) Final date for supplementation of disclosures and discovery under Rule 26(e)

c. Deadline for filing dispositive or potentially dispositive motions -- 1/26/07

6. SETTLEMENT/ALTERNATIVE DISPUTE RESOLUTION

a. Referral to Court-Annexed Mediation -- N

b. Referral to Court-Annexed Arbitration -- N

c. Evaluate case for Settlement/ADR on

d. Settlement probability:

7. TRIAL AND PREPARATION FOR TRIAL:

a. Rule 26(a)(3) Pretrial Disclosures4

Plaintiff -- 4/27/07

Defendants -- 5/11/07

b. Objections to Rule 26(a)(3) Disclosures
(if different than 14 days provided in Rule)

3

c. Special Attorney Conference5 on or before -- 5/25/07

d. Settlement Conference6 on or before -- 5/25/07

e. Final Pretrial Conference -- 2:30 p.m. -- 6/6/07

f. Trial -- Length -- Time -- Date

i. Bench Trial

ii. Jury Trial -- 21 days -- 8:30 a.m. -- 6/25/07

8. OTHER MATTERS:

Counsel should contact chambers staff of the District judge regarding Daubert and Markman motions to determin the desired process for filing and hearing of such motions. All such motions, including Motions in Limine should be filed well in advance of the Final Pre Trial. Unless otherwise directed by the court, any challenge to the qualifications of an expert or the reliability of expert testimony under daubert must be raised by written motion before the final pre-trial conference.

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

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

Dated this 6th day of December, 2005.

BY THE COURT:

___[signature]__
David Nuffer
U.S. Magistrate Judge


1 The Magistrate Judge completed Initial Pretrial Scheduling under DUCivR 16-1(b) and DUCivR 72-2(a)(5). The name of the Magistrate Judge who completed this order should NOT appear on the caption of future pleadings, unless the case is separately referred to that Magistrate Judge. A separate order may refer tis case to a Magistrate Judge under DUCivR 72-1(b) and 28 USC 636(b)(1)(A) or DUCivR 72-2(b) or (c) should appear on the caption as required under DUCivR 10-1(a).

2 Counsel must still comply with the requirements of Fed. R. Civ. P. 15(a).

4

3 The identity of experts and the subject of their testimony shall be disclosed as soon as an expert is retained or, in the case of an employee-expert, as soon as directed to prepare a report.

4 Any demonstrative exhibits or animations must be disclosed and exchanged with the 26(a)(3) disclosures.

5 The Special Attorneys Conference does not involved the Court. Counsel will agree on voir dire questions, jury instructions, a pre-trial order and discuss the presentation of the case. Witnesses will be scheduled to avoid gaps and disruptions. Exhibits will be marked in a way that does not result in duplication of documents. Any special equipment or courtroom arrangement requirements will be included in the pre-trial order.

6 Counsel must ensure that a person or representative with full settlement authority or otherwise authorized to make decisions regarding settlement is available in person or by telephone during the Settlement Conference.

5


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