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To read comments to this article, go here
Intel's Response to SCO's Motion to Take Certain Prospective Depositions - as text
Friday, February 10 2006 @ 11:58 PM EST

Here's Nonparty Intel's Response to SCO's Motion for Leave to Take Certain Prospective Dispositions [PDF], as text, thanks to Steve Martin.

Intel attaches the local California rules that SCO didn't follow to the letter, presumably so the judge will know if SCO tells him any stories about what happened without having to look up the rules in another state. Boies Schiller shouldn't have to look up the California rules, since they have an office in Oakland.

Look at the long list of lawyers Intel served with this document. They even served lawyers who were representing parties Judge Kimball refused to allow to intervene in the case, the G2/Forbes/CNET lawyers, Michael P. O'Brien and Andrew Stone of Jones Waldo. I went down the list, comparing it to our list of lawyers involved in the various SCO litigations on our "The Cast" page, and they've served Boies Schiller folks we've never even seen before (Daniel P. Filor? -- he applied for pro hac vice status [PDF] in September of 2005, but have we seen him doing anything in the case since?), so I'm thinking they might be the lawyers who served Intel's outside counsel the earlier subpoenas in the case or perhaps in the current back and forth over the two defective subpoenas Intel waxes indignant about in this document.

Snow Christiansen, a firm also served, were the lawyers for Ralph Yarro III, Darcy G. Mott, and Brent D. Christensen in the Yarro-Canopy-Noorda slugfest, and they're representing Novell in the Novell v. Microsoft antitrust case. They didn't serve the Canopy lawyers, however, at Ballard Spahr. I can't explain the why of any of this. Intel even sent their response to the law firm representing S2 Strategic Consulting, Peters Scofield. Now *that's* making sure you get absolutely everyone. They got Donald J. Rosenberg's name wrong, leaving off the G, but nobody's perfect, and that appears to be just a typo.

So, now, everyone and his uncle knows that Intel was misrepresented. And should anyone wish to annoy Intel further with silly subpoenas, they know precisely who to send the subpoena to correctly. On the first try.

Also, everyone knows now what will happen to them if they get it wrong. Do. Not. Mess. With. Intel. For real.

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

Mark A. Wagner (6353)
VAN COTT BAGLEY CORNWALL & McCARTHY
[address]
[phone]
[fax]

Anthony L. Marks (pro hac vice pending)
Jessica L. Everett-Garcia (pro hac vice pending)
PERKINS COIE BROWN & BAIN, P.A.
[address]
[phone]
[fax]

Attorneys for Nonparty Intel Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
NONPARTY INTEL'S RESPONSE TO
SCO'S MOTION FOR LEAVE TO
TAKE CERTAIN PROSPECTIVE
DEPOSITIONS


CASE NO. 2:03CV0294DAK
Honorable Dale A Kimball
Magistrate Judge Brooke C. Wells

Introduction

On January 27, 2006, The SCO Group ("SCO") filed a motion for leave to extend the discovery cut-off in this case for purposes of taking certain third-party depositions (the "Discovery Extension Motion") including depositions of Intel Corporation ("Intel") personnel

1

under Fed. R. Civ. P. 30(b)(6). SCO's Discovery Extension Motion misinterprets the facts underlying its attempts to take discovery from Intel. 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.1

SCO represents that Intel "was given adequate notice" of the depositions SCO seeks but "did not appear." Discovery Extension Motion at 2. That statement is at best a half-truth. It is true that Intel did not 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's Discovery Extension Motion does not attempt to explain why it waited until the last minute to try to conduct this discovery on topics that SCO cannot possibly claim it only recently discovered, such as "Intel's business relationship with SCO." Intel is well aware that the discovery cut-off can be a hectic time, but SCO's accusations against Intel are unfair and untrue.


1 In its Discovery Extension Motion, SCO indicates that it plans to file a motion to compel against Intel in the Northern District of California, where the subpoena was served. Counsel for Intel and SCO have discussed this issue and concluded that both sides will forgo motion practice on the scope of the subpoena until this Court resolves whether SCO is entitled to any discovery at all. If this Court concludes that SCO's tardy service does not per se deprive it of the right to seek additional discovery, then the parties will meet and confer and determine whether they can resolve their differences. If they cannot, motion practice in the Northern District of California (perhaps transferred here by that Court in accordance with N. D. Cal. L.R. 3-13) will follow.

2

Background

Intel has responded to three previous subpoenas in this action, including two from SCO. Intel produced a number of documents in response to those subpoenas, and has consented to the production of other Intel documents by the parties. Throughout these activities, SCO's counsel has been in contact with outside counsel specifically retained by Intel to handle discovery requests related to this litigation.

On January 26, 2006, the day before the discovery cut-off in this litigation, SCO served a new subpoena. This new subpoena demanded that Intel produce witnesses and documents by the next day (January 27, 2006) on six broad topics, including:

  • 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.

Intel objected to this subpoena within hours. Nonetheless, SCO asserts to the Court that Intel simply "did not appear" for the deposition after receiving "adequate" notice. Discovery Extension Motion at 2. That statement is false. The local rules for the jurisdiction that issued the subpoena, the Northern District of California, require SCO, after serving the subpoena, to meet and confer with Intel regarding deposition scheduling, rather than just unilaterally dictating that the deposition would take place less than twenty-four hours later. SCO's counsel never attempted to conduct such a meet and confer with Intel.

On January 12, 2006, SCO faxed to a general number in Intel's legal department (even though SCO's counsel had dealt with specific Intel outside counsel on these very matters as recently as 45 days earlier) a Rule 30(b)(6) deposition notice, noticing a deposition for January

3

26 in Armonk, New York. This notice was defective for several reasons, including that service of such a notice by fax is improper, and that the notice demanded that Intel's witnesses travel 2,000 miles to New York for the noticed deposition. See Fed. R. Civ. P. 45(b)(1) and 45(b)(2); see also, e.g., Chima v. U.S. Dept. of Defense, No. 99-55209, 23 Fed. Appx. 721, 724 (9th Cir. Nov. 19, 2001) (subpoenas served by mail rather than personal service improper); Firefighters' Inst. for Racial Equality v. City of St. Louis, 220 F.3d 898, 903 (8th Cir. 2000) (Rule 45(b)(1) is "not broad enough to include either fax or regular mail because the court cannot be assured that delivery has occurred"). In addition, the January 12 fax was not accompanied by a subpoena, in contravention of Rules 30(a)(1) and 30(b)(6) of the Federal Rules of Civil Procedure. See, e.g., Pricewaterhouse LLP v. First Am. Corp., 182 F.R.D. 56, 61 (S.D.N.Y. 1998) ("Before deposition testimony may be procured from . . . a nonparty witness [under Rule 30(b)(6)], a subpoena must thus be issued in accordance with Rule 45.").

Despite these defects, Intel did not wait until its response was purportedly "due" under the January 12 fax, but responded to SCO's counsel early and explained the reasons the notice was defective. Notwithstanding Intel's early response, and despite the impending discovery cut-off, however, SCO waited five days to try to correct these defects. On January 25, 2006, SCO sent Intel a subpoena demanding that Intel produce documents and appear for a deposition at 9:00 a.m. on the following day, January 26, in Oakland, California. Although including a subpoena and changing the location of the deposition from Armonk to Oakland, cured two problems, this subpoena lacked any deposition notice or set of deposition topics. Thus, the subpoena provided no basis upon which Intel could produce any witnesses for deposition. That

4

same day, Intel notified SCO of these defects, and objected on several grounds, including that producing documents and appearing for a deposition the very next day was simply impossible.

SCO's response was to serve another subpoena, demanding again that Intel produce testimony and documents the very next day. Intel has determined that it would need to prepare and offer at least three different employees for the six listed deposition topics, and that it would take at least several weeks for it to locate and produce the new documents requested by SCO. These requests are not a minor inconvenience. 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 from SCO itself, given that SCO seeks evidence "concerning Intel's business relationship with SCO." See, e.g., Travelers Indem. Co. v. Metropolitan Life Ins. Co., 228 F.R.D. 111, 114 (D. Conn. 2005) (party required to obtain available documents from other parties to the litigation and public record "rather than placing an undue burden on a non-party"); Moon v. SCP Pool Corp., 2005 WL 3526513, at *5 (C.D. Cal. Dec. 7, 2005) ("plaintiffs can more easily and inexpensively obtain the documents from defendant, rather than from nonparty"). Indeed, even if SCO had served Intel with a proper subpoena on its first attempt in mid-January, it would not have provided sufficient time to allow Intel to identify and prepare witnesses for deposition. See, e.g., N.D. Cal. L.R. 26-2 (parties "should initiate discovery requests and notice depositions sufficiently in advance of the cut-off").

Intel takes discovery obligations seriously. SCO's attempt to blame Intel for creating SCO's need for more time simply ignores the facts.

5

February 7, 2006

Respectfully submitted,
By: (signature of Mark Wagner)
Mark A. Wagner
VAN COTT, BAGLEY, CORNWALL & McCARTHY, P.C.
[address]

Anthony L. Marks (pro hac vice pending)
Jessica L. Everett-Garcia (pro hac vice pending)
PERKINS COIE BROWN & BAIN P.A.
[address]

Attorneys for Nonparty Intel Corporation

6

CERTIFICATE OF MAILING

I hereby certify that on this 7th day of February, 2006, I caused a true and correct copy of the foregoing document to be mailed, postage prepaid, to the following:

Peter H. Donaldson
Snell & Wilmer
[address]

Robert A. Magnanini
Boies Schiller & Flexner
[address]

Michael P. O'Brien
Jones Waldo Holbrook & McDonough
[address]

Stanley J. Preston
Snow Christensen & Martineau
[address]

Maralyn M. Reger
Snow Christensen & Martineau
[address]

Todd Shaughnessy
Snell & Wilmer LLP
[address]

7

Amy F. Sorenson
Snell & Wilmer
[address]

Andrew H. Stone
Jones Waldo Holbrook & McDonough
[address]

Alan L. Sullivan
Snell & Wilmer
[address]

Nathan E. Wheatley
Snell & Wilmer
[address]

Evan R. Chesler
Cravath Swaine & Moore
[address]

Mark R. Clements
Hatch James & Dodge
[address]

Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE
[address]

Mark J. Heise
Boies Schiller & Flexner
[address]

8

David Marriott
Cravath Swaine & Moore LLP
[address]

Kevin P. McBride
[address]

David W. Scofield
Peters Scofield Price
[address]

Stuart H. Singer
BOIES SCHILLER & FLEXNER
[address]

Stephen N. Zack
BOIES SCHILLER & FLEXNER
[address]

Robert Silver
Edward Normand
BOIES SCHILLER & FLEXNER
[address]

J. Matthew Donohue
Daniel P. Filor
Boies Schiller & Flexner
[address]

Frederick S. Frei
Andrews Knurth
[address]

9

Scott E. Gant
Boies Schiller & Flexner
[address]

David S. Stone
Boies Schiller & Flexner
[address]

Donald J. Rosenber
[address]

(signature)

10

N.D. Cal. L.R. 3-13

11

Civil Local Rules

3-13. Notice of Pendency of Other Action or Proceeding.

(a) Notice. Whenever a party knows or learns that an action filed or removed to this district involves all or a material part of the same subject matter and all or substantially all of the same parties as another action which is pending in any other federal or state court, the party must promptly file with the Court in the action pending before this Court and serve all opposing parties in the action pending before this Court with a Notice of Pendency of Other Action or Proceeding.

(b) Content of Notice. A Notice of Pendency of Other Action or Proceeding must contain:

(1) A description of the other action;

(2) The title and location of the court in which the other action or proceeding is pending; and

(3) A brief statement of:

(A) The relationship of the other action to the action or proceeding pending in this district; and

(B)If the other action is pending in another U.S. District Court, whether transfer should be effected pursuant to 28 U.S.C. 1407 (Multi District Litigation Procedures) or whether other coordination might avoid conflicts, conserve resources and promote an efficient determination of the action; or

(C) If the other action is pending before any state court, whether proceedings should be coordinated to avoid conflicts, conserve resources and promote an efficient determination of the action.

(c) Procedure After Filing. No later than 10 days after service of a Notice of Pendency of Other Action, any party may file with the Court a statement supporting or opposing the notice. Such statement will specifically address the issues in Civil L.R. 3-13(b).

(d) Order. After the time for filing support or opposition to the Notice of Pendency of Other Actions or Proceedings has passed, the Judge assigned to the case pending in this district may make appropriate orders.

12

N.D. Cal. L.R. 26-2

13

26. GENERAL PROVISIONS GOVERNING DISCOVERY

26-1. Custodian of Discovery Documents.

The party propounding interrogatories, requests for production of documents, or requests for admission must retain the original of the discovery request and the original response. That party shall be the custodian of these materials. FRCivP 30(f) identifies the custodian of the original transcript or recording of a deposition.



Commentary

Counsel should consider stipulating to sharing diskettes or other computer-readable copies of discovery requests, such as interrogatories and requests for production of documents, as well as responses to such requests, to save costs and to facilitate expeditious pretrial discovery.



26-2. Discovery Cut-Off; Deadline to File Motions to Compel.

Unless otherwise ordered, as used in any order of this Court or in these Local Rules, a "discovery cut-off" is the date by which all responses to written discovery are due and by which all depositions must be concluded.

Where the Court has set a single discovery cut-off for both fact and expert discovery, no motions to compel discovery may be filed more than 7 court days after the discovery cut-off.

Where the Court has set separate deadlines for fact and expert discovery, no motions to compel fact discovery may be filed more than 7 court days after the fact discovery cut-off, and no motions to compel expert discovery may be filed more than 7 court days after the expert discovery cut-off.

Discovery requests that call for responses or depositions after the applicable discovery cut-off are not enforceable, except by order of the Court for good cause shown.

Cross Reference

See Civil L.R. 37 "Compelling Discovery or Disclosure."

Commentary

Counsel should initiate discovery requests and notice depositions sufficiently in advance of the cut-off date to comply with this local rule.

Published December 2005

CIV 71

14

Chima v. U.S. Dept. of Defense

15

[LEXIS HEADER AND CASE NOT TRANSCRIBED, PDF Pages 16-19]


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