Well, *now* SCO's really gone and done it. They got used to IBM's restraint, I guess, and told a story to the Utah court, and now they are being called on it. First, we saw Oracle dispute SCO's story about the subpoenas in its motion to quash in California, and now Intel has filed in Utah a Nonparty Intel's Response to SCO's Motion For Leave to Take Certain Prospective Depositions [PDF], and they are hopping mad. Mad enough to tell Judges Kimball and Wells that what SCO said about Intel is "unfair and untrue":
Although Intel takes no position on whether SCO's Discovery Extension Motion should be granted, Intel is compelled to respond to SCO's misrepresentations about Intel's conduct.
Intel won't stand by and let itself be maligned. Why should it? I've been unjustly maligned in public, and I know just how Intel feels. Some of you asked if the court in Utah would find out about the California matters, and it just did.
Here's the essence of Intel's beef:
SCO represents that Intel "was given adequate notice" of the depositions SCO seeks but "did not appear."... That statement is at best a half-truth. It is true that Intel didn't appear, but it is false that Intel's absence came despite "adequate notice." In fact, SCO first properly served Intel with its subpoena at 3:26 p.m. on the day before the discovery cut-off, in which it demanded that Intel produce witnesses to testify on a host of discrete topics and produce documents the very next day. That same day, Intel responded in writing, objecting that it was unreasonable to expect Intel to comply with SCO's requests on a few hours notice, and notifying SCO that Intel would not do so.
SCO didn't tell that part to the court in its motion, did it? Intel also informs the court that both SCO and Intel will wait to pursue motion practice in California regarding SCO's projected motion to compel until the court in Utah decides whether or not SCO gets to do this new discovery at all.
What did SCO want from Intel? Witnesses and documents on six topics, "communications between Intel and IBM, Intel's relationship with SCO, and issues related to the UNIX application program interfaces, developer guide, application binary interface and interface definition."
Again, as in the Oracle matter, there was, Intel says, no meet and confer, which is a California requirement. You can't just unilaterally schedule a deposition there. As for giving them less than 24 hours, you'd give your boss more notice than that for a dinner party invitation. By the way, they gave Open Group 18 hours' notice as well.
Worse, SCO sent a fax to Intel's legal department, even though they knew, Intel tells the court, that Intel had an outside counsel for such matters. SCO knew who to properly serve because it had dealt with that outside Intel counsel 45 days before. This is getting weirder and weirder. Was SCO messing up on purpose?
The fax purported to be a notice of a deposition, even though you can't serve by fax, and there was no subpoena attached in any case, and Intel was demanded to send a witness cross country to New York for the deposition, and you can't make third-party witnesses travel more than 100 miles. So the subpoena was defective. Intel told SCO that. On January 26, SCO sent a subpoena telling Intel to produce documents and appear for a deposition at 9 a.m. the next day. But there was no list of deposition topics, as required, and no notice. So how was Intel supposed to figure out who to send to testify?
Intel told SCO about the new defects, and SCO sent another subpoena, again demanding Intel show up the following day. Here's a little Intel understatement:
Why SCO waited until the eleventh hour to seek this discovery when discovery has been ongoing in the case for the past two years is unclear. More importantly, had SCO planned adequately, the discovery could have been obtained from the parties to the litigation -- including SCO itself, given that SCO seeks evidence "concerning Intel's business relationship with SCO."
And for the killer blow, Intel ends like this:
Intel takes discovery obligations seriously. SCO's attempt to blame Intel for creating SCO's need for more time simply ignores the facts.
Here's the bottom line. It isn't just IBM now telling Judge Kimball and Judge Wells that SCO doesn't always tell the truth, the whole truth and nothing but the truth. That is going to cost them. Remember when your mom told you not to lie? She was absolutely right. And in a courtroom, once you've lost your reputation as a truth-teller, the game is so over.
Here's Intel's Notice of Entry of Appearance of Counsel [PDF] and the application [PDF].