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SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Wednesday, February 01 2006 @ 04:38 AM EST

SCO has become addicted to discovery, I gather. The deadline for the end of discovery is apparently driving SCO crazy, and they are scrambling frantically to keep doing just a little bit more.

Take a look at this 11th-hour motion, SCO's Motion for Leave to Take Certain Prospective Depositions [PDF]. When I read it, I had absolutely no idea what to make of it. All I could see is they wanted more time to do some future depositions of three entities, Intel, Oracle and The Open Group, none of whom showed up after SCO sent them subpoenas and scheduled depositions for the 27th, the very last day of discovery. I don't see in the motion, however, that SCO called or negotiated with any of the three, which is very odd, to bring a motion without having done that. SCO needs the judge to OK an extension of time to make it possible to still do the depositions if motions to compel SCO plans on filing in other states are granted. What in the world? I asked Marbux to explain to me what is going on. Here's his explanation.

In the motion, SCO reveals that it sent Rule 30(b)(6) subpoenas to Oracle, the Open Group, and Intel telling them to show up for depositions on the 27th, but none of them showed up and they didn't file a motion to quash or for a protective order, according to SCO. However, since it all just happened, Marbux tells me he thinks it is possible that SCO just didn't get the papers by the time they filed this with the court. Here's what he told me:

Since this all went down on the 27th, it's possible that the subpoenaed companies moved for a protective order in their respective jurisdictions but SCO's lawyers haven't received the motions yet. (Service by mail is still proper.)

When a non-party files a motion for a discovery protective order, that automatically relieves them from showing up at 30(b)(6) depositions (not so for parties).

Lawyers don't just ignore subpoenas and hope they go away. Marbux also told me it is also possible there was something wrong with the subpoena or something wrong with the service, and that if you get a subpoena that is defective, you generally just ignore it. If that's it, I'm guessing the former, because it makes more sense that SCO made the same mistake three times than three different process servers in two different states all made a mistake.

The deadline for discovery is now past, so SCO is asking the court for help. The 27th was the last day for discovery, "Close of All Fact Discovery Except As to Defenses to Claims Relating to Allegedly Misused Material," as you can verify on our IBM Timeline page. They scheduled three depositions and asked for documents on the very last day, and when no one showed up, it left them in an odd situation. Since they have had since March of 2003 to depose whomever they pleased, one might ask why they waited until the very last day, but whatever.

Now these companies are not in Utah. So SCO first had to get subpoenas issued from the jurisdictions in which the companies are located.

SCO's motion says it will now be filing motions to compel in the other states. It filed in Utah too, to let the judge there know what is going on in the other states. Marbux thinks the other judges will very likely transfer their motions to Utah, to avoid the risk of contradictory decisions.

So what is SCO asking Utah to do? It's asking not to be cut off at the pass. SCO's argument is that the three companies had an obligation to appear, so their "refusal to do so" isn't SCO's fault, and if the other states grant the motions to compel that SCO is going to file, SCO asks the court in Utah to please let them go ahead with the depositions, even though the deadline is past. Marbux:

They are in a spot where they need approval from at least two different courts, one in Utah and one or more where the depositions were scheduled. It's kind of a chicken-and-egg problem. If they didn't move in both courts simultaneously, here's what could happen.

Say they move to compel in San Jose federal court, but didn't simultaneously move in Utah federal court for permission to take depositions after the deposition cut-off date. They could be opposed in San Jose on grounds that they're past the discovery deadline in any event, so their discovery motion is moot. Plus they could get in trouble in Utah for trying to extend the discovery deadline without the Utah court's permission.

Taking it the other way around, say they move in Utah for permission to extend the discovery deadline but don't promptly move to compel in San Jose. Then their motion in Utah can be opposed on grounds that they are asking the court to rule on a hypothetical situation, since there isn't even a discovery motion pending in San Jose.

Roll it all up, and they are preventing both situations by having motions pending in both courts, with both courts fully advised of the situation. They are also practically guaranteeing that the other courts will transfer the discovery motions to Utah, since there is a risk of inconsistent decisions.

Are you with us so far? So "prospective" deposition here means sort of contingent -- if the other courts say yes, SCO asks Utah to say yes too. Now, we haven't heard from the three companies. Their story may be quite different. After SCO tried to pull the "we just found out about AIX on Power" prank, I like to hear the other side speak, instead of taking anything SCO says as gospel. But now you know what SCO's side is.

Some other filings from Pacer:

01/31/2006 605 CERTIFICATE OF SERVICE by International Business Machines Corporation to SCO's Ninth Request for the Production of Documents (Shaughnessy, Todd) Modified on 1/31/2006 - the incorrect PDF was attached to this entry. This certificate of service will be re-efiled by counsel. (ce, ). (Entered: 01/31/2006)

01/31/2006 606 CERTIFICATE OF SERVICE by International Business Machines Corporation to SCO's Sixth Set of Interrogatories (Shaughnessy, Todd) (Entered: 01/31/2006)

01/31/2006 608 CERTIFICATE OF SERVICE by International Business Machines Corporation of IBM's Responses and Objections to SCO's Ninth Request for the Production of Documents (Shaughnessy, Todd) (Entered: 01/31/2006)

01/31/2006 609 Modification of Docket: Error: incorrect PDF was attached to entry no. 605. Correction: the docket text of this entry was modified to reflect that counsel will re-efile the CERTIFICATE OF SERVICE by International Business Machines Corporation of IBM's Responses and Objections to SCO's Ninth Request for the Production of Documents. (ce, ) (Entered: 01/31/2006)

As you can see, IBM is objecting to some of SCO's discovery demands, so what do you bet we see some motion practice there, knowing SCO as we do? In short, SCO is finding it very hard to actually stop doing discovery. Why it waited until the very last minute to do all this is incomprehensible. If you wanted information from The Open Group, you'd logically know it some time ago.

In SCO v. Novell, Novell has stipulated to let SCO amend its complaint:

01/26/2006 92 STIPULATION re: 89 MOTION to Amend Amended Complaint by SCO Group, Novell, Inc (alt) (Entered: 01/31/2006)

01/31/2006 93 ORDER granting 89 Motion to Amend Amended Complaint. Signed by Judge Dale A. Kimball on 1/26/06 (alt) (Entered: 01/31/2006)

As you can see, the court has signed the order, based on the stipulation of the parties. A Motion to Amend Amended Complaint -- that sounds exactly like SCO, and we've only just begun in this case. SCO was almost certainly going to get to do this, so there's no reason to go to the expense and trouble of motion practice. Also, at the beginning of litigation, the two sides try to be nice to each other, generally speaking. Later, it can change, but typically at the start, you find more "After you, Alphonse" politeness.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[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]

Attorneys for The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

SCO'S MOTION FOR LEAVE TO
TAKE CERTAIN PROSPECTIVE
DEPOSITIONS

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

Pursuant to Rule 26 of the Federal Rules of Civil Procedure, Plantiff The SCO Group, Incorporated ("SCO"), requests the Court to grant SCO leave to take certain prospective depositions of Intel Corporation ("Intel"), the Open Group, Incorporated ("The Open Group") and Oracle Corporation ("Oracle").

SCO served Rule 30(b)(6) subpoenas (as well as document requests) on each of these corporations requring them to appear for depositions scheduled for January 27, 2006. The corporations did not appear for their depositions and have not filed motions to quash or motions for protective order.

Considering the corporations' failure to produce a Rule 30(b)(6) witness on January 27, 2006 (today), SCO will file the appropriate motions to compel in the two jurisdictions from which the three subpoenas at issue were issued. In those motions, SCO intends to cite the precedent demonstrating that each of the three companies was given adequate notice and was obligated to produce a Rule 30(b)(6) witness on the noticed topics (and to produce documents in response to the requests therein) -- or else should have filed a motion to quash or for protective order, which none of the three companies did.

Accordingly, SCO respectfully requests that, to the extent the district courts in the foregoing two jurisdictions grant SCO's motions to compel, this Court permit SCO then to take the Rule 30(b)(6) depositions of the foregoing three companies. If those companies were obligated to appear for deposition, but simply and improperly declined to do so, their refusal of course should not work to SCO's detriment with respect to the end of certain fact discovery on January 27, 2006. SCO proposes to inform this Court if the foregoing two jurisdictions issue such an order or orders, and thereby request the Court for leave to take the deposition or depositions at issue.

2

DATED this 27th day of January, 2006.

Respectfully submitted,

By: __[signature of Mark F. James]___
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

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

Counsel for The SCO Group

3

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Motion for Leave To Take Certain Prospective Depositions was served on Defendant IBM on the 27th day of January, 2006:

By Facsimile and U.S. Mail:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

By U.S. Mail:

Donald J. Rosenberg, Esq.
[address]

____[Signature of Mark F. James]____

4


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