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Declaration of John Wadsworth, as text
Saturday, February 04 2006 @ 11:58 PM EST

Here's the Declaration of John V. Wadsworth in Support of Oracle Corp.'s Motion to Quash Third Party Subpoena Duces Tecum or, in the Alternative, for a Protective Order [PDF], as text. He is Managing Counsel for Oracle and he provides all the details of what happened and everything SCO got wrong.

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

DECLARATION OF JOHN V.
WADSWORTH IN SUPPORT OF ORACLE
CORP.'S MOTION TO QUASH THIRD
PARTY SUBPOENA DUCES TECUM OR,
IN THE ALTERNATIVE, FOR A
PROTECTIVE ORDER

[CASE NO.: MISC., U.S. DISTRICT COURT FOR THE
DISTRICT OF UTAH, CASE NO. 2:03CV-0294]

________________

I, John V. Wadsworth, declare as follows:

1. I am an attorney duly licensed to practice law before this Court. I am Managing Counsel for Non-Party Oracle Corporation ("Oracle"). The following statements are made of my

own personal knowledge, and if called upon as a witness in this action, I could and would competently testify thereto.

2. Attached hereto as Exhibit A is a true and correct copy of the Second Amended Complaint, dated February 27, 2004, filed by Plaintiff The SCO Group, Inc. ("SCO") in this action.

3. Attached hereto as Exhibit B is a true and correct copy of the Second Amended Counterclaim filed by Defendant International Business Machines Corp. ("IBM") in this action.

4. Attached hereto as Exhibit C is a true and correct copy of a Subpoena Duces Tecum to Oracle dated January 10, 2006 ("Subpoena"), which was served on Oracle by SCO on January 11, 2006.

5. Attached hereto as Exhibit D is a true and correct copy of SCO's Notice of 30(b)(6) Deposition ("Deposition Notice"), which was served on Oracle by SCO on January 11, 2006 by U.S. Mail.

6. The corporate headquarters of Oracle are located in Redwood City, California. All of the witnesses who would testify on the subjects listed in the Deposition Notice are located at Oracle's headquarters in Redwood City. I also work at Oracle's headquarters in Redwood City.

7. In addition to the Subpoena and Deposition Notice recently served on Oracle, Oracle has been served with three other Rule 45 subpoenas. The first subpoena was issued by IBM on March 19, 2004 and requested various documents relating to Oracle's business relationships with SCO and another affiliated company called The Canopy Group, Inc. The subpoena also requested documents relating to the Unix or Linux operating systems. I have been

2

informed that IBM served a copy of the subpoena on SCO. Given the broad scope of the requests and the marginal relevancy to the action, Oracle objected to the vast majority of the requests and produced several documents. IBM agreed not to pursue the requests further.

8. Oracle was served with a second subpoena from IBM on or about January 13, 2005. I have been informed that IBM served a copy of the subpoena on SCO. This subpoena requested testimony relating to a series of topics similar to the topics in the previous request. Oracle responded to that subpoena to IBM's satisfaction.

9. Oracle was served with a third subpoena dated October 24, 2005. This subpoena was issued by SCO and sought documents relating to any meetings, conversations, etc. between a group of seven large technology vendors, including Oracle, relating to creation of a so-called Linux Consortium. Oracle searched for any responsive documents and found none (the Oracle employee who had interfaced with this group no longer works for Oracle). However, Oracle worked with the other members of the group, who had also been subpoenaed, and on information and belief, documents were produced to SCO by Dell Inc.

10. The Subpoena was served on Oracle by SCO on January 11, 2006 via Oracle's agent for service of process, Corporation Service Company. No witness fees were tendered at that time, or since. I received the Subpoena from CSC on January 12, 2006. The Deposition Notice was served on Oracle by SCO on January 11, 2006 by U. S. Mail. At no time prior to serving the Subpoena or the Deposition Notice did SCO confer with me or anyone else at Oracle about the date on which it wished to conduct the deposition. Nor did SCO confer with me or anyone else at Oracle after SCO served them.

3

11. On January 19th, I contacted counsel for SCO, Edward Normand, via email and advised him that SCO's Subpoena and Deposition Notice were defective because, among other things, the applicable witness fees were not tendered; the Subpoena was issued out of the "District of California," which does not exist; and because the Deposition Notice specifies that the deposition is to take place in Armonk, New York (even though the Subpoena specifies the deposition site as Oakland, California). I also stated that the topics are overbroad, seek irrelevant testimony, and would require the production of several different witnesses. I requested that SCO confer to discuss the possibility of agreeing to narrow the scope, or else Oracle would be required to file a motion to quash. Finally, I advised Mr. Normand that I was already scheduled to be in Burbank, California on the date specified for the deposition (January 27th) for a long-planned board of directors meeting of the Civil Justice Association of California, on whose board I sit.

12. Mr. Normand responded via email on January 21st. Since that day was a Saturday, I did not receive the response until Monday, January 23rd. Mr. Normand stated that SCO might be willing to agree to modify the scope of the Subpoena. However, Mr. Normand stated that the discovery cutoff in the case was Friday, January 27th, and SCO could not agree to move the date of the deposition. Mr. Normand did not respond as to where SCO expected the deposition to take place, Armonk or Oakland. Nor did Mr. Normand offer to tender the necessary witness fees.Mr. Normand stated that he expected "that Oracle would file a motion for protective order regarding (at least) the timing of the subpoena before January 27."

13. I was recently informed by counsel for another non-party that has been subpoenaed by SCO that SCO has only recently noticed Rule 30(b)(6) depositions of IBM on the same topics on which SCO seeks non-party testimony, including testimony from Oracle.

4

I declare under the penalty of perjury that the foregoing is true and correct. Executed on January 26, 2006 at Redwood Shores, California.

___[signature ]______
John V. Wadsworth

5

PROOF OF SERVICE

THE SCO GROUP, INC. v. INTERNATIONAL BUSINESS MACHINES CORP.,

I, Maya Beech, declare:

I am employed in the County of San Mateo, State of California, in the office of a member of the bar of this court, at whose direction the service was made. I am over the age of eighteen years, and not a party to the within action. My business address is [redacted ] . On the date set forth below I served the following:

DECLARATION OF JOHN V. WADSWORTH IN SUPPORT OF ORACLE CORP.'S MOTION TO QUASH THIRD PARTY SUBPOENA DUCES TECUM OR, IN THE ALTERNATIVE, FOR A PROTECTIVE ORDER

(X) By placing such a copy enclosed in a sealed envelope postage thereon fully prepaid, in the United States Postal Service for collection and mailing this day.

( ) By hand delivery on this date.

( ) By consigning such a copy to an express mail service for guaranteed delivery on this date.

( ) By consigning such a copy to a facsimile operator for transmittal on this date.

I served the above on:

Edward Normand
Boies, Schiller & Flexner LLP
[ address]

Amy F. Sorenson, Esq.
Snell & Wilmer LLP
[address]

I declare under penalty of perjury that the foregoing is true and correct. Executed in Redwood City, California on January 26, 2006.

___[signature]____
Maya Beech
Legal Assistant

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