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To read comments to this article, go here
What SCO Asked Oracle to Produce and.. um... Where
Monday, February 06 2006 @ 02:12 AM EST

Here, as text, is, first, SCO's subpoena [PDF] to Oracle, telling them to bring documents demanded with them to a deposition to be held in Boies Schiller's offices in Oakland, CA, on January 27th at 9 AM and at the same time this Notice of Deposition [PDF] tells them to show up for a deposition on January 27th at 9 AM in Boies Schiller's offices in Armonk, New York. The subpoena as Oracle reads it seems to say it issued from the District of California, which according to Oracle's Motion to Quash doesn't exist. To my eyes, it looks more like it could be SCO just left the place on the form blank in haste, which is perhaps why Oracle called the subpoena "slapdash".

It's quite a list of items SCO asked Oracle to produce in Exhibit A, attached to the subpoena. Why they bothered with a list at all is the question, because they end up asking for the kitchen sink. If you're going to be slapdash, why not just write: "Give us everything you've got. We'll paw through it, hoping to find something somewhere." No wonder Oracle told the court SCO's requests were overbroad.

I can't imagine a nonparty being required to produce all that SCO here asks for (Example: "7. Documents concerning the identification of all instances in which Oracle has been asked to certify any version of any Oracle software product for operation on any operating system, but has refused to do so, since January 1, 1995."). For starters, SCO asked for documents such as agreements between Oracle and Caldera Systems, Inc. and Santa Cruz Operation, Inc.

I know. You're thinking what I'm thinking: If they really were SCO's predecessors in interest, as SCO insists in its theory of the case, wouldn't SCO already have those agreements? It'd be like me suing you for crashing into my car and demanding that you produce my medical records regarding the accident. Yes, you'd likely have them, but then, so would I, and it's a lot easier to ask myself to turn them over to me, myself and I. It's an inexplicable request, unless SCO Group really *isn't* Santa Cruz Operation, for example. Now there's a theory with legs.

Actually, that isn't a perfect analogy, because Oracle isn't even a party to this case. So it'd be more like I demanded your insurance agent turn over my medical records to me forthwith and show up for a deposition so I can ask him some hard-hitting questions about the state of my health.

Yes, I'm teasing SCO. I can't help it. It's just so goofy.

For that matter, if we're going back to 1995, and SCO is asking for documents as old as that (despite 1995 predating the first alleged offense in the case, IIRC), what about Caldera International? What about Canopy? Don't they want any agreements with them too? Why only Caldera, Inc. and Santa Cruz? Did they forget those other hops?

Sheesh. Now I've gone and done it. I hope this doesn't prompt them to seek to amend. Unless there is something they know about, some specific agreement between Oracle and Santa Cruz and/or Caldera, Inc.? But if that were the case, why not just ask for it? You normally either try to get everything in a sweep, which this doesn't do, or you go for the exact piece you are looking for, which this also doesn't do.

The subpoena is dated January 10, 2006, and the Notice the 11th, and they are both signed by Edward Normand, who is no doubt being teased mercilessly in Armonk.

Or Oakland.

At least he didn't fall asleep in the middle of a hearing. I'll just delicately mention in passing that Boies Schiller attorneys told one journalist back in October the firm admires my attention to detail. When I read that, I puzzled over why they'd pick that quality, because I wouldn't pick it as my strong suit. I get it now.

Look at the lists, and seriously ask yourself if it would be humanly possible for Oracle to find all the documents, examine them, and decide on privilege and third-party confidentiality issues in such a short time frame. To add to the difficulty, where do you show up?

See what happens when you procrastinate, end up rushing, and don't pay attention to detail? I'm sorry, Ted. But it is funny. Hey, you could always blame the paralegal. That usually works.

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

Issued by the
UNITED STATES DISTRICT COURT

_________ DISTRICT OF ______ California_____________

The SCO Group, Inc.,

V.

International Business Machines Corp.
SUBPOENA IN A CIVIL CASE

Case Number. 2:03CV00294 District of Utah

Judge: Dale A Kimball
TO:
Oracle Corporation
[address]
___ YOU ARE COMMANDED to appear in the United States District Court at the place, date and time specified below to testify in the above case.
PLACE OF DEPOSITION
COURTROOM
DATE AND TIME
X YOU ARE COMMANDED to appear at the place, date and time specified below to testify at the taking of a deposition in the above case.
PLACE OF DEPOSITION
Boies, Shiller & Flexner LLP
[address], Oakland, CA 94612
DATE AND TIME
Jan. 27, 2006 9 a.m.
X YOU ARE COMMANDED to permit inspection and copying of the following documents or objects at the place, date and time specified below(list documents or objects):

See attached Exhibit A.
PLACE
Boies, Schiller & Flexner LLP
[address] Oakland, CA 94612
DATE AND TIME
Jan. 27, 2006 9 a.m.
__ YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below
PREMISES
DATE AND TIME
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officer, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify, Federal Rules of Civil Procedure, 30(b)(6).
ISSUING OFFICER SIGNATURE AND TITLE(INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT
[Signature of Edward Normand]
DATE
1-10-06
ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
Edward Normand, Esq., Boies, Schiller & Flexner LLLP
[address] Armonk, NY [zip, phone]

[Subpoena page 2 is a form, blank]

2

Exhibit A

You are instructed to produce the following documents at the time and place specified in the subpoena:

1. Documents concerning any communications with IBM from and after June 1, 2001, relating to SCO.

2. Documents concerning any communication with IBM from and after January 1, 2003, relating to SCO's current lawsuit against IBM, SCO's current lawsuit against Novell, Inc., and SCO's current lawsuit against AutoZone, Inc. or the possibility of legal action by SCO against any of the identified parties.

3. Documents concerning Oracle's decisions to certify any version of any Oracle software product, or to decline to certify any such version of any Oracle software product, for operation on any version of SCO's UnixWare or OpenServer products at any time since January 1, 2000.

4. Documents concerning Oracle's communications, both internally and with any third party, regarding its decision(s) to certify or decline to certify any version of any Oracle software product for operation on any version of SCO's UnixWare or OpenServer products since January 1, 2000.

5. Documents concerning Oracle's business and contractual relationships with SCO, Caldera Systems, Inc., and The Santa Cruz Operation, Inc., including:

a. All certifications issued by Oracle for any Oracle software product for operation on any version of UnixWare or OpenServer at any time;

b. All software agreements by which Oracle licensed any version of UNIX System V binary or source code from SCO or a predecessor (including any version of OpenServer and Unix Ware);

c. All agreements of any kind by which Oracle obtained access to any version of UNIX System V (including any version of OpenServer and UnixWare) binary or source code; and

d. The purpose, scope, duration and subject matter of all agreements of any kind between Oracle and SCO, Caldera Systems, Inc. and/or The Santa Cruz Operation, Inc. since January 1, 1995.

6. Documents concerning the identification of all versions of all Oracle software products that Oracle certified for operation on any version of any

3

UNIX-based operating system, including but not limited to UnixWare, OpenServer, AIX, HPUX, Irix, Dynix, and Linux, since January 1, 1995.

7. Documents concerning the identification of all instances in which Oracle has been asked to certify any version of any Oracle software product for operation on any operating system, but has refused to do so, since January 1, 1995.

Instructions and Definitions

A. Definitions

1. The term "AIX" shall mean the UNIX-based operating system known by that name distributed and/or developed by IBM, including all prior versions, releases and maintenance modifications. The term "AIX" shall include, but not be limited to, all versions of the "AIX for Power PC" and "AIX for Itanium" operating systems.

2. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing, or constituting.

3. The term "document" shall be synomymous in meaning and usage to the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term "document" shall include without limitation, information stored on computers, disks, tapes (i.e., magnetic or other storage media), World Wide Web pages, and electronic mailing lists. The term "document" specifically includes electronic mail ("e-mail") and any attachments and files created, maintained, or existing in electronic form.

4. The term "Dynix" shall mean the UNIX-based operating system known by that name distributed and/or developed by Sequent Computer Systems, Inc. and/or IBM, including all prior versions, releases, derivative works, methods, and modifications. The term "Dynix" shall include, but not be limited to, all versions of the "Dynix/ptx" operating system.

5. The term "include" or "including" shall mean including without limitation.

6. The term "Linux" shall mean any version of Linux.

7. The term "UNIX" shall mean any and all versions, flavors, or other variants of any UNIX computer operating system, including, without limitations, all operating systems certified as conforming to the UNIX-brand standards.

4

B. Instructions

1. Each paragraph herein should be construed independently and, unless otherwise stated, without reference to any other paragraph for the purpose of limitation.

2. Unless otherwise specified, the documents requested are the responsive documents in your possession, control or custody that were prepared, written, sent, dated, received, applicable or in effect at any time up to the date of your compliance with this demand.

3. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, it shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

4. All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

5. With respect to any document responsive to this request that is withheld from production based upon a claim of privilege, please provide the information required pursuant to the Federal Rules of Civil Procedure.

6. If, for reasons other than a claim of privilege, you refuse to provide any document requested herein, state the grounds upon which the refusal is based with sufficient specificity to permit a determination of the propriety of such refusal.

7. The deposition will be recorded by stenographic and audio-visual means.

5

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

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 NOTICE
OF 30(b)(6) DEPOSITION

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

PLEASE TAKE NOTICE that pursuant to Rules 26 and 30(b)(6) of the Federal Rules of Civil Procedure, counsel for plaintiff, The SCO Group, Inc. ("SCO"), will take the deposition upon oral examination of Oracle Corporation ("Oracle"), on January 27, 2006, beginning at 9:00 a.m.. This deposition will be taken at the offices of SCO's counsel Boies, Schiller & Flexner

LLP, [address], Armonk, New York, and will be taken pursuant to Rules 26 and 30 of the Federal Rules of Civil Procedure.

Oracle is directed, pursuant to Fed. R. Civ. P. 30(b)(6), to designate one or more officers, directors, managing agents or other person(s) who consent to testify on its behalf concerning matters known or reasonably available to Oracle, concerning the topics specified below. The deposition will be taken before a Notary Public authorized by law to administer an oath and will continue from day-to-day until completed. The deposition will be recorded by stenographic and videotape means.

SCO incorporates all instructions, definitions and rules contained in Rules 30 and 34 of the Federal Rules of Civil Procedure and the local rules or individual practices of this Court.

DATED this 11th day of January, 2006.

Respectfully submitted,

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

___[signature of Edward Normand]___

Counsel for The SCO Group, Inc.

2

TOPICS FOR DEPOSITION

1. Any communications with IBM from and after June 1, 2001, relating to SCO.

2. Any communication with IBM from and after January 1, 2003, relating to SCO's current lawsuit against IBM, SCO's current lawsuit against Novell, Inc., and SCO's current lawsuit against AutoZone, Inc. or the possibility of legal action by SCO against any of the identified parties.

3. Oracle's decisions to certify any version of any Oracle software product, or to decline to certify any such version of any Oracle software product, for operation on any version of SCO's UnixWare or OpenServer products at any time since January 1, 2000.

4. Oracle's communications, both internally and with any third party, regarding its decision(s) to certify or decline to certify any version of any Oracle software product for operation on any version of SCO's UnixWare or OpenServer products since January 1, 2000.

5. Oracle's business and contractual relationships with SCO, Caldera Systems, Inc., and The Santa Cruz Operation, Inc., including:

a. All certifications issued by Oracle for any Oracle software product for operation on any version of UnixWare or OpenServer at any time;

b. All software agreements by which Oracle licensed any version of UNIX System V binary or source code from SCO or a predecessor (including any version of OpenServer and UnixWare);

c. All agreements of any kind by which Oracle obtained access to any version of UNIX System V (including any version of OpenServer and UnixWare) binary or source code; and

d. The purpose, scope, duration and subject matter of all agreements of any kind between Oracle and SCO, Caldera Systems, Inc. and/or The Santa Cruz Operation, Inc. since January 1, 1995.

6. Identification of all versions of all Oracle software products that Oracle certified for operation on any version of any UNIX-based operating system, including but not limited to UnixWare, OpenServer, AIX, HPUX, Irix, Dynix, and Linux, since January 1, 1995.

7. Identification of all instances in which Oracle has been asked to certify any version of any Oracle software product for operation on any operating system, but has refused to do so, since January 1, 1995.

3

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing SCO'S NOTICE OF 30(b)(6) DEPOSITION was served by mail on Defendant, IBM, on the 11th day of January, 2006, by facsimile and U.S. Mail to:

Oracle Corporation
[address]

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

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

and by U.S. Mail to:

Donald J. Rosenberg, Esq.
[address]

____[Signature]____

4


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