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Two Cases, Two Telephone Conferences
Thursday, January 26 2006 @ 03:58 PM EST

First, in the Novell case, the telephone conference scheduled for the 25th with Judge Kimball, over when to schedule the trial, was cancelled by stipulation of the parties. This is the terse wording:
Filed & Entered:   01/18/2006 - Terminate Deadlines/Hearings - Docket Text: Deadlines/Hearings terminated: telephone conference re: scheduling trial date is stricken by stipulation of counsel. (kmj, )

So, evidently, they have come to some kind of agreement, but that doesn't mean there is no issue left necessarily. It could just mean they've agreed to fight about it later. Or maybe Novell decided it wasn't worth fighting over, since the difference between them was just a matter of a few months. We will learn more, I'm sure, in due time.

And in the IBM case, take a look at this Pacer notation. It looks like somebody is worried the other side will step over the line in their questioning in some depositions that are being scheduled. This is the notation regarding a telephone conference held today -- say, the court has caught up on any backlog, huh? -- in SCO v. IBM:

01/26/2006 - 604 - Minute Entry for proceedings held before Judge Brooke C. Wells : Telephone Conference held on 1/26/2006. The Court hears arguments as to depositions and rules as follows: The depositions of Otis Wilson and Ted Kennedy ONLY may be extended by 30 days (by 2/26/05). Counsel are to agree on the date and time. As to Mr. Wilson - he is not to be subjected to any questions other than reasonable inferences re: new information ONLY. As to the depositions of the three corporations addressed by SCO, the Court will not address this except via motion, which SCO may file. Attorney for Plaintiff: Ted Normand, Attorney for Defendant Todd Shaughnessey. (alp, ) (Entered: 01/26/2006)

The parties are scheduling depositions, and of course they can't agree on such simple things as whether the sun rises in the east, so they had to have a conference about the rules of the road on depositions. One of the parties is very worried about what questions the other side will be asking Otis Wilson, I gather, and asked the judge to limit the scope of questions that may be asked.

This is puzzling to me, because it implies that this is perhaps a second deposition by the same party, or a deposition that got interrupted and someone sought to continue it later. It was IBM that earlier deposed Mr. Wilson, at least that's the one we know about, so logic would tell me that it would be SCO trying to limit IBM's line of questioning in a second deposition by IBM, if IBM got permission to do that. You can't just redepose people over and over without court permission, and to get that, you need a good reason. So if it's IBM that will be deposing Wilson again, somehow they got the chance to do that. Unless Wilson is testifying as a Rule 30(b)(6) witness for AT&T? Then it might be that IBM already started to depose him, and wanted to continue it later to go over some point they wanted time to prepare for.

On the other hand, it could be SCO seeking to depose him now or SCO that is in the middle and wanted to ask things IBM objected to. The fact that the judge allowed two depositions to be extended a month later, well, forgive me, but that sounds more like SCO. Tomorrow is supposed to be the cutoff for fact discovery, "except as to defenses to claims relating to allegedly misused material." So IBM gets more time on that point, but the rest is supposed to be over. Two depositions can be extended (I think the clerk meant 2006, by the way), according to this notation, so maybe SCO asked for time for some more depositions, got only two extended, and were told precisely what it could ask Mr. Wilson. No, I have no idea who Ted Kennedy is in this context.

Otis Wilson is a witness whose earlier testimony at the prior deposition was simply devastating to SCO's contracts claims, and he was in charge at AT&T on licensing for years, so he should know. He clearly stated that his understanding of the contract between IBM and AT&T was that "we did not intend to exercise any control or restriction on those products that did not contain portions of the software products," and with respect to methods and concepts he said that this phrase was removed from IBM's contract, and that AT&T did not seek to enforce rights to methods and concepts of UNIX. So why would IBM wish to depose him again? And how would they get permission?

The only thing I can imagine would be to try undermine the testimony of SCO's witnesses, Mitzi Bond, for example, and other underlings who said AT&T did too try to control methods and concepts. I can see why SCO might not want IBM to be able to ask detailed questions about that. So perhaps they are trying to whittle down what IBM can ask about. But I'm just guessing here. The notation is not sufficiently verbose to really know what is going on. But if that guess is accurate, it would indicate that SCO won that part of the argument. At any rate, whoever was worried about the scope of questioning was successful in limiting what may appropriately be asked.

The reason this is all a guess is that I don't know if SCO has deposed Wilson too at some earlier point. You only learn about depositions if there is some kind of a dispute that the judge gets into or if the transcript or portions of it are attached to a document filed with the court. So I want to stress that this is only to illustrate what it *could* be about. I don't know and can't tell from the Pacer wording. Then too we've seen in the past that the clerk's notations haven't always been accurate, so reserve judgment on this one. We'll find out at some point. We always do.

What you can tell is that SCO wanted to depose three corporations, and the court told them they have to petition by motion, not by verbal request in a telephone conference, duh, which means we'll get to find out who they are in time when we read the motion papers. I can't even make an educated guess on this one, not even about who the corporations might be, except that it indicates to me that SCO wanted to depose some entities that seemed a bit far afield, or wished to add new corporations to their list without IBM being able to respond, except off the cuff in the conference, or are trying to extend discovery, but Wells ordered that they have to go the regular motion route, and presumably persuade the judge that it is relevant to anything at issue in this litigation in motion papers. She wouldn't entertain their request at the conference, and she told them to tell it to her in motion papers, which IBM will have the opportunity to oppose.

So is fact discovery really over tomorrow? Nope. Not completely. But almost. Can you believe it? Finally, really over? Well. Almost.

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