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SCO's Motion to Depose Denied; Motion to Compel Denied w/o Prejudice - Updated 5
Friday, February 24 2006 @ 07:26 PM EST

First word from the courthouse on today's hearing. Chris Brown was there and is driving home, after which he'll amplify, as will others, I anticipate:
SCO lost on both the motion to compel and to take the depositions. However on the motion to compel it was without prejudice to refile. Judge Wells was VERY emphatic in her denial of SCO's motion on the depositions. I will write more when I get home. The hearing was 2 hours long.

More now from Chris, who made it home safely. And then we have a second witness, Justin Findlay, who also attended and has had time now to type up his notes. And now a third.

Chris reports:

Pamela, Appearing for IBM was Todd Shaughnessy and Gregory Curtis. For SCO was Brent Hatch, Mark James, and sitting at their table, Darl McBride. Intel's Anthony Marks also appeared.

Judge Wells held a sidebar at the beginning to discuss a future order and hearing not associated with today's topics.

Brent Hatch started out talking about the request to take the depositions of Intel, Oracle, and The Open Group. Judge Wells brought up her October 12, 2005 order and said that depositions MUST be completed by the cutoff date. That any that cannot be taken by that date must be forgone. Brent stated that they properly noticed the depositions before the cutoff date and that they were not taken for reasons outside his, or his client's, control. That the problems were caused by third parties. Judge Wells asked if the subpeonas were defective in some manner. Hatch: "Yes, they were". Judge Wells asked when they were corrected and Brent replied the day before. He said that these third parties were aware of Judge Wells' October 12th order and were using a strict interpretation of it to delay the depositions such that they don't have to be done.

Judge Wells asks "How can you interpret my order in any other way than how it was phrased?"

Brent goes on to, essentially, explain how. He described Intel's "complaining" about technical problems with the subpoenas but that they were aware of the deposition subject since January 12th (15 days before the deadline). That they had adequate notice. Judge Wells said that if she were to accept Brent's argument then court orders would have no meaning.

Brent points out that Intel (based on Intel's motion) indicated they were aware of SCO's attempts in this matter since November. Wells asks "Did you say you were aware of your desire to depose Intel since November?". Brent answers "Yes". Judge Wells follows up with something to the effect that if SCO was aware since November they should have had enough time to properly notice them. Brent replied that they did (referring to the Jan. 12th notice).

Todd Shaughnessy for IBM provides a summary of the defects in the subpoenas SCO sent Intel, Oracle, and The Open Group. He says SCO acknowledges they did not serve proper subpoenas until the afternoon of Jan 26th for a 9 am deposition with document production and one, or a series, of 30(b)(6) witnesses. Anyone would hold that to be insufficient notice. He says he cannot speak for Intel, Oracle, or The Open Group. He then goes into details of the subpoena defects.

With no objection from Todd or Brent, Intel's attorney Anthony Marks addresses Judge Wells.

Anthony Marks says that SCO asserts some kind of wrongdoing by Intel. He says that Intel takes its reputation as a good corporate citizen very seriously and felt compelled to appear before Judge Wells. He provides a timeline to Judge Wells and points out that Intel was not noticed of the depositions until the day before they were to be taken. He said Intel estimated 3 to 9 30(b)(6)individuals would be required. He disputed SCO's "45 day" figure they claim Intel had been aware of the subpoena. Mr. Marks personally handled it and said that subpoena in November was for a different subject, for specific documents, which Intel responded to 45 days or more ago. He says that SCO's assertions "were offensive to (him)."

Brent Hatch responds. In discussing the timeline he mostly repeats his earlier assertions about adequate notice. He quotes from Kuperics case where "lawyers messed up big" but eventually served the subpoena 15 minutes *after* depo time. The court found it sufficient because the deponent was fully aware of the depo time. That there had been no change in the date and had time to prepare. In the present case, Intel knew the topics as early as the 12th or 13th of January.

Judge Wells rules from the bench: The subpoena of January 12th provided inadequate notice or time. She finds the January 12th subpoena was defective in both substance and service. That even had it not been defective it provided inadequate notice and time. SCO's motion is denied. Her October 12th orders were clear, not subject to unilateral decisions to violate. Todd Shaughnessy is to prepare the order.

Zounds. Not subject to unilateral decisions to violate. She's caught on, I see. More on the second matter shortly.

2nd Update: This is the headline for today, methinks. I hear from Chris that Judge Wells told Darl to be quiet!! He was there, and he was talking to one of SCO's lawyers. Here's what Chris told me:

Shortly into the second portion of the hearing, while Darl was busy Googling and talking to Mark James, Judge Wells asked him to be quiet, that she knows he wants to talk (presumedly to Mark James), but to just pay attention.

Darl spent most of the hearing, while sitting between Brent Hatch and Mark James, Googling and looking at documents.

: )

I am speechless.

: D hahahahahaha

Oh, my, oh, my. I can't breathe.

I did ask if Chris could see what Darl was Googling about, but he huffily if jokingly told me that he doesn't sit on *that* side of the room, so he couldn't see.

And with that, I'll go finish working on the rest of Chris's report, on the second motion. Like any of us can pay attention now.

3rd Update:

Here's Chris's report on the second motion, the Motion to Compel:

Judge Wells moved onto SCO's Motion to Compel. She asked SCO's Mark James to address IBM's recent document production and how it affects SCO's Motion to Compel. She asked him to address SCO's claim of IBM having pre-1991 AIX source code in North Carolina. Judge Wells also asked SCO if they have found, after all the discovery provided by IBM, any evidence of source-code misappropriation by IBM or do they need more.

Mark James says that IBM's recent production of 340,000 documents are still being reviewed. That it's difficult to say what has been mooted, that a number of issues have beem mooted. More production is forthcoming from IBM as well. SCO has identified some issues, some items not satisfied, and have provided a list of them to IBM. Mark said that "Yes, we *do* have evidence of source code misappropriation" but said essentially that that doesn't mean that no more code production is required.

Regarding Project Monteray, Mark says IBM claims they've given them everything. SCO is still reviewing and after they do they might come back and say some is missing.

With regard to the pre-2001 production, Mark says they addressed it on page 6 of their reply memo. That SCO believes IBM's violations go back to 1998. That if there are responsive Linux documents pre-2001, IBM should produce them.

On AIX versions pre-1999 IBM says thay have produced all, but can't find pre-1990 software. Their position is they've looked everywhere that SCO and IBM have suggested they look.

Judge Wells asks if this hearing should be continued until SCO has had the opportunity to review IBM production. Mark says, Yes. IBM's Todd Shaughnessy respectfully asks that the Motion to Compel be denied, and that he's prepared to address this in detail. Wells tells Mark James to proceed.

Mark says they need IBM to provide someone to explain how they interpret their AIX licenses because they are so similar to SCO's license.

Mark claimed that at a deposition of SCO's, with regard to the "Chicago Seven", IBM's counsel limited the deposition topics and instructed the deponent not to respond on topics outside IBM's list Mark said that this was improper of IBM.

Judge Wells asks IBM's Todd Shaughnessy to address 1) IBM's alleging much of SCO's motion is moot (in what way?); 2) is there any further information IBM has that SCO or IBM would use at trial? She said she doesn't want either opponent to use information at trial that they have withheld. Is IBM prepared to provide an affidavit to that effect? 3) Pertaining to old AIX/Dynix source code, do you have any? Are you prepared to provide an affidavit? 4) Something else I forgot to write down.

Todd responds, discussing the financial information production. He says that they spent four months, over 1,000 hours, collecting and providing to SCO more than 23,000 pages with summaries, overviews, & supporting information. IBM's Mr. Sandy spent over 300 hours preparing and spent a full day with SCO's lawyers at deposition to explain and make sure they understood the production. SCO says IBM provided too much information. SCO asked, "How are they to interpret 23,000 pages?". IBM agreed to allow SCO to depose Mr. Sandy for another day and explained it all again. Todd says that IBM requested much the same information from SCO. However what SCO provided on their deposition was a deponent who had spent less than one hour talking to others (as opposed to Mr. Sandy's several hundred). SCO's deponent's most common answer was "I dont' know, ask 'X'." IBM asked him, "Did you ask 'X'?" to which he would reply "No." SCO's deponent had only spoken with one other person to prepare, as opposed to Mr. Sandy speaking with over 80 people.

Todd has been asking Mr. Normand repeatedly what items SCO is missing. What items are the subject of today's hearing and Motion to Compel? Mr. Normand kept saying, "I don't know." Todd didn't receive notice of what they claim to be missing until this morning when he received an email for four points. He said he was expecing to come to the hearing today and be "sandbagged" with a bunch of items by SCO that they didn't know about.

Judge Wells addressed how she has very little tolerence for poor communications between counsel.

Todd goes on to explain production made in various categories, addressing SCO's list. He told of IBM's efforts to find pre-1991 source code. He explains that during one of SCO's depositions an IBM deponent told of a mainframe computer in Texas that at one time had pre-1991 source code on it. When she was asked further about it she said she doesn't know if any source code is still on it, but she believes the hardware had been shipped to North Carolina. Todd explained how they'd followed up on this, that people had said the source code had been removed before the hardware had been shipped, but that even if the code were left on it's disk, the equipement is so obsolete it couldn't be retrieved.

Mark James responds. He discussed the 340,000 document production of IBM's and how SCO hasn't finished reviewing it. That they don't know how much of the Motion to Compel has been mooted. Wells asks about the four items SCO identified to IBM and how SCO knows they haven't been mooted by the production.

Mark James replies that they might be mooted, but SCO has done a quick cut of the documents and right now don't believe they have been addressed. Judge Wells asks, "How can I order IBM to produce documents that they say they have produced?" I don't recall Mark's reply.

Judge Wells says they will recess while she deciedes how to address the issue.

Judge Wells returns from chambers about five minutes later. She says that she will deny SCO's motion to compel without predjudice. That SCO has 30 days to renew and MUST clearly and narrowly define documents required. There are questions asked and Judge Wells further clarifies that that applies to both the January production and the currently pending motion to compel.

4th Update, Justin Findlay:

Justin was also in attendance, and here's the first part of his report, with more as he finishes typing:

I was unfortunately a train late and had two minutes to run from the train station to the courthouse, so I came panting into the room where Magistrate Wells was presiding right at 2:30. She had a party of lawyers at the sidebar taking care of "housekeeping". It took me a while to figure out how to take good notes on what was being said, so I may have missed some important things and I apologise now to Misters Hatch, Shaughnessy, Marks, and James and Magistrate Wells if I have mischaracterized or misquoted what they have meant or said. I fear I may have, judging from the cryptic and arcane fragments and phrases I find strewn across the several pages of notes before me:
Brent O. Hatch: Mr. Hatch began by arguing that the subpoenas served to Oracle and Intel and the Open Group were properly served before the deadline on January 27th.

Magistrate Wells: In Magistrate Wells' first response she reminded Mr. Hatch of the literal and emphatic reality of the deadline of discovery which the court set on October 12th.

Hatch: Mr. Hatch spoke about the third parties whom they had sent subpoenas for deposition, etc. had ostensibly become unavailable in the matter of SCO's discovery requests until after the deadline.

Wells: Magistrate Wells asked when the subpoenas were served.

Hatch: They were served on January 12th. Mr. Hatch made further argumentation about the rigidity of Magistrate Wells' interpretation of the agreement over the discovery deadline.

Wells: Magistrate Wells responds by reading some of the language of said agreement to the effect that any discovery activity not completed when the deadline falls shall be forgone.

Hatch: Mr. Hatch argued about the third parties avoiding discovery until the deadline had drawn near or passed. SCO had served their subpoena to Intel January 12th, or 15 days before the deadline.

Wells: Magistrate Wells says that 30 days is needed for adequate response to a subpoena.

Hatch: Mr. Hatch argues that in this district (the district of Utah) 10 days is commonly accepted as reasonable. Intel had been working with SCO in their discovery process since November on discovery related to that which SCO is seeking from their present subpoena to Intel, and because of this SCO didn't wait until the last minute on the discovery it wants, but rather suffered the lack of due responsibility from third parties and potentially IBM, supposing IBM might say: "SCO is asking for so many extra depositions". IBM and 3rd parties are using technical defects in SCO's service of subpoenas to thwart discovery.

Wells: Magistrate Wells supposes that the court orders and rules are for no other purpose than to be broken.

Hatch: Mr. Hatch argues that there is always work to be done near the end of discovery. Every lawyer will not have time to fully explore all germane discovery. IBM has turned over a large amount of documents 2 days before the discovery cutoff. Some depositions cannot be done until "late in the game" because during the course of discovery a party may learn information upon which to base more discovery.

Todd M. Shaughnessy: The documents IBM had provided to SCO were delivered before the document request due date. SCO didn't properly serve subpoenas on third parties since no correct subpoena was served until one day before the discovery cutoff. Mr. Shaughnessy does not purport to represent Oracle, Intel, et al. SCO's defects were not "technical defects" but rather the worst kind of defects possible. Indeed, SCO's subpoenas 1) required nonspecific documents; 2) failed to include specific witnesses for deposition; would necessitate witnesses to travel 2000 miles to New York.

SCO chose not to follow rules. Subpoenas cannot be faxed but must be served in person. You can't send a "flurry of faxes" to just anyone within a company's legal department, as corporations have extablished proceedures for such things. SCO did not conform to the rules of the Northern District of California for the serving of subpoenas. SCO has imposed an enormous burden on 3rd parties with their last minute discovery.

Magistrate Wells formally requests both counsels whether Mr. Marks representing Intel may present his arguments. No objections.

Anthony Marks: Mr. Marks says SCO's counsel has insinuated that Intel has supposedly conspired in preventing SCO's sought discovery. Intel endeavors to be a good "citizen corporation" and is a "fair litigant" and therefore takes SCO's attributions and claims seriously. Intel had not recieved an effective subpoena until the afternoon of January 26th. The document served to Intel contained six enumerated topics each with several subsections. Three to nine employees would need to be deposed. To properly address the issues more than ten employees would have to be deposed. Intel had indeed been party to the case earlier in which they provided SCO a "discrete" set of documents.

Wells: Magistrate Wells asks where Mr. Marks is located.

Marks: Arizona. SCO has asked Intel for all documents Intel has related to SCO and all documents related to IBM. The subpoena served (on the 26th) was not valid. There was no personal service (as it was faxed). Intel had no obligation to respond to the subpoena as it was thus invalid. Two weeks was not enough time to produce all that was required of Intel to produce under the breadth of topics nominated and SCO should have known. Nevertheless, Intel responded providing a "forutious roadmap" against what SCO had hitherto erred in requiring. Intel chose to spend money and legal resources on filing a brief to make clear the incredibly onerous nature the production of all SCO asks Intel for in the time appointed by the court.

Hatch: Mr. Hatch again speaks about the matter of SCO's discovery at hand being related to discovery SCO has been seeking since as early as November 2004 and argues that SCO deserves, as IBM also deserves, to get discovery late in the game since not all the discovery a party may desire is known to that party at the beginning. Mr. Hatch then produces a document related to a 1991 Cooperige(?) case where a the court ruled a subpoena served 15 minutes after the time scheduled was valid although the party served took counsel and rejected the subpoena on technical grounds, yet in this (SCO v IBM) case Intel had ten days or since the 12th or 13th of January at least. SCO had dealt with Intel over these "very matters" 45 days earlier. Instead Intel doesn't cooperate in good faith.

Wells: Magistrate Wells rules on the subject of the subpoenas. The subpoenas served on the 26th gave inadequate notice and time. Even were the subpoenas served on the 12th not technically defective they would have been inadequate so near the cutoff. Motion on depositions is denied. October wording is clear that discovery not completed before the cutoff must be forgone.

Mark F. James: IBM has recently served SCO 340,000 documents. SCO is expecting additional documents from IBM. Recently identified information SCO wants to be produced:

1. IBM Global Market View (I think)
2. FIW(-)C database for AIX
3. Service Tracker
4. Linux financial documents

Yes, SCO has found misappropriated source code. Mr. James mentions something about filing something under seal. SCO is dilligently reviewing the documents produced by IBM and has not found all that they may want to know. IBM represents that they have produced all documents on Monterey. Our contention is that IBM has arbitrarily set a 2001 deadline on the production of their documents related to marketing and promoting Linux products and services when that activity extends as far back as the 1998 time period. If IBM declares they have produced everything related to pre 1991 AIX source and North Carolina mainframes, then SCO will accept such declaration. SCO has recieved 340,000 documents "late in the game".

Wells: Magistrate Wells interrupts Mr. James here in order to inquire of the counsels whether the hearing should be adjourned until the matter of SCO's sifting through IBM's large document production is completed so as to not waste anyone's time on conjecture.

Shaughnessy: Mr. Shaughnessy believes that SCO's motion should be denied and supposes SCO's motive in wanting to argue it is to buy more delay, therefore Mr. Shaughnessy does not want the hearing adjourned.

James: Mr. James wants IBM documents and depositions as to the corporation's opinion on the language in AIX and Dynix licenses. Some language is simmilar to SCO's license. How do they interpret the language? Shaughnessy: Mr. Shaughnessy replies that the language in the licenses should be legally clear.

James: The Chicago 7 were seven companies who conferenced in Chicago to discuss Linux/SCO. Karen Smith of IBM unilaterally limited deposition to exclude SCO's choice of deposition topics. SCO believes the Chicago 7 is still an issue.

Wells: How long will it take to complete discovery of documents IBM has recently produced?

James: A couple of weeks.

Wells: Neither IBM nor SCO can use information witheld from the other side in the case. IBM was required to produce all versions and changes to AIX and Dinyx source code. Magistrate Wells says something about the North Carolina mainframe affair and pre-1991 AIX source code.

Shaughnessy: Mr. Shaughnessy begins by giving some background on the production of their financial info which is the heart of the issue. IBM spent months collecting documents. William Sandy (Sandve?), consultants, attorneys, and eighty employees gathered information across multiple divisions and gleaned information from financial databases. Over 1000 hours were spent. IBM produced summaries, overviews, and background information and detailed indicies. IBM produced Mr. Sandy for deposition in order to explain what he had learned. Mr. Sandy who spent 300 hours on this project appeared for deposition to walk SCO counsel through the information. Mr. Sandy spent the whole day with the SCO counsel. SCO counsel didn't seem interested and instead talked with Mr. Sandy about other issues. SCO requests a second day with Mr. Sandy. All of IBM's produced financial documents are in electronic form. IBM has invested an extrordinary amount of time, money, and resources. Mr. Shaughnessy then contrasts this effort to SCO's production of financial information. SCO produces a Mr. Hunsaker who had spent about an hour talking to a couple of people. Mr. Sandy had spoken with eighty. Mr. Hunsaker's prevailing answer was "I don't know".

Mr. Shaughnessy asked SCO counsel via email prior to this hearing why the hearing is needed; what is missing from our production of documents and witnesses? SCO counsel replies: "I don't know". Mr. Shaughnessy is wary of being sandbagged at the hearing with issues he is not aware of. The first time he learns about the four points Mr. James presented was at 7:00 PM last night and again at 10:00 AM this morning.

Wells: Magistrate Wells has no patience for lack of communication between counsels before coming to court.

Shaughnessy: We don't need ambiguity to waste our time. We all have been very busy with this case.

The motion to compel is just a placeholder so SCO can later decide what they want produced. Pre-2001 Linux marketing documents are not relevant. IBM * has* produced pre-2001 financial documents because SCO has used some of that info in their arguments.

Pre-1991 AIX source code - IBM produced CMVC and RCS database for Dynix. 400 employes and 4000 hours of work. The database begins at 1991. IBM has been exceedingly thorough in searching for pre-1991 AIX code. By the time this case was filed in 2003, pre-1991 AIX source code was obsolete and no longer archived by IBM. There were no requirements or regulations for IBM to keep the source of obsolete software. A data recovery center typically holds customer data and is unlikely to store system source code. Miss Tonks (Hanks?) understands that the mainframe computers which at one time held source code for pre-1991 AIX in Austin were shipped to Raleigh, North Carolina and to her best understanding didn't have any AIX code stored on them. Even if they did, the hard disk drives are unusable. Although IBM didn't survey every computer, person, closet, and database in its 160 countries and 320,000 employees they tried very hard to follow up.

Chicago 7 - Mr. Shaughnessy mentions something about 2 30(b)(6). The Chicago 7 convened once and wasn't interested in SCO, just Linux. It's a "dead letter". SCO concluded the deposition of Miss Smith regarding the Chicago 7 and did not indicate they sought further deposition of her. IBM can't produce witnesses for license agreements. It's vague and amorphous and not a proper topic under 30(b)(6). Why does SCO make issues of exteraneous contracts when IBM raised objection to SCO's pursuit of licenses germane to the case and SCO abandoned? IBM doesn't keep a list of customers who move to Linux from UNIX.

James: We are dilligently reviewing the 340,000 documents and anticipate many ares will be mooted. Mr. James wants to be able to address issues that won't be mooted when review of the documents is complete. Mr. James alludes to an aphorism of the Honorable (Ronald N.?) Boyce to the effect that unless the burden of production exceeds the labor of the Augean stables it is reasonable.

Wells: The Honorable Boyce had a penchant for animal analogies.

James: There is no point in saying "We have given you a great multitude of documents, what need have you of more?" IBM needs to file an affidavidt affirming that they have produced all they can.

Wells: Why is this motion not a placeholder?

James: The motion alludes to document requests months and over a year ago.

Wells: We shall recess in order to decide how to address this issue....

The motion is denied without prejudice. SCO has 30 days to file a renewed motion which clearly and narrowly defines areas not addressed by documents already produced.

Our third witness:

SCO vs IBM Hearing 24 FEB 2006
Rm 220 (Judge Kimball's chambers) 2:30 p.m.
Those present:
Judge Wells presiding
IBM: Todd Shaughnessy; Gregory Curtis
SCO: Brent Hatch; Mark James; the darl
Intel: Anthony Marks


[personal observations noted in square brackets]

Hearing began with a sidebar approximately 3-4 minutes and included laughter. Judge Wells explained that the sidebar covered some housekeeping matters and discussed pending motions.

First part of hearing covered Motion regarding SCO's request to depose Intel, Oracle, and the Open Group.

Hatch: Argued that SCO properly subpoenaed each company and he was seeking permission to take depositions.

Wells: October 12 order stated that discovery must be completed by cut off date; if not completed must be foregone.

Hatch: Simple answer is that companies were properly notified. Since the companies knew of cut off date, they only had to delay to avoid giving depositions.

Wells: When were subpoenas served and were they defective?

Hatch: Yes.

Wells: When were proper subpoenas served day prior to cut off?

Hatch: They knew that subpoenas were coming even though they were defective.

Well: "...they must be foregone."

Hatch: Technical objections...Intel (3rd party) picked up on cut off date. Notice was faxed to Intel January 12 (15 days before cut off). 10 days were more than adequate.

Wells: If I accept that argument, orders have no effect.

Hatch: Why did we wait certain depositions must be at the end of discovery period. We recently received 340,000 boxes and have not completed review.

Wells: SCO knew of cut off - not interested in 340,000 boxes (pages)

Hatch: We will be prejudiced if unable to take these depositions request to grant motion.

Shaughnessy: Why are we here? IBM documents were produced timely. SCO's claim that companies were properly served is "not true" - not served until the afternoon before cut off. They were required to produce documents and witnesses. Notices were not remotely close to complying with the rules; they did not identify who, what documents. Each subpoena failed in each case. The North California subpoena (in violation to the 100 mile rule) required the deposition be held in New York (2,000 miles away). Fax service, however must be served personally. These are not technical defects. Service was to legal departments rules required that service be made on registered agent. In California required to meet and confer. SCO made no effort to comply. SCO had 2-1/2 years, and identified these firms more than a year ago. SCO tried to impose burden on 3rd parties.

Marks: Intel tries to be a good corporate citizen and takes charges seriously. Introduced timeline not served until day prior to deposition. Intel responded to SCO's fax. SCO then waited 5 days to serve a still-defective subpoena. SCO's attorney told Intel about the deadline. Between 3 and 9 employees would have to attend. Hatch's claim that 30-45 days notice were given is "simply not true". Marks was from Arizona. These subpoenas looked as though a recent law school grad prepared them.

Hatch: SCO only presented case law (Cooper): not in technical compliance. According to Cooper only the notice date is important, not subpoena date. Consequently notice was adequate, there was no date change, time to prepare, topics were known. Intel's objections are not enough to stop depositions.

Wells: Prepared to rule: Inadequate notice, defective subpoenas, Wells order was clear (...must be foregone) MOTION DENIED

* * *

MOTION TO COMPEL

Wells: Answer the following questions:
1. what specific items are needed?
2. do you have evidence?
3. if granted, how will schedule be affected?
4. pre-1991 information from North Carolina

James: Filed motion 29 December still reviewing information IBM provided, and additional documents are coming. "Number of issues have been mooted" by information provided, but questions still exist or may still exist may want to return to request that information including Project Monterey.

Wells: Should hearing be continued?

James: Yes.

Shaughnessy: No.

Arguments continued --

James: IBM did not produce documents and witnesses; regarding AIX language [something about copyrights in headers similar in language in SCO's headers my question as I listened: how could they not be similar?]; something about 'the Chicago 7" meeting IBM produced a witness, but unilaterally limited scope of questions. Should have complete review (of 340,000 documents) completed in a "couple of weeks".

Wells: [Said something about not being concerned about miscommunication between lawyers or didn't want to hear it it seemed to be directed to SCO].

Shaughnessy: IBM spent months collecting documents re: finances and produced 23,000 pages with summaries and indicies. SCO spent one day in deposing IBM's witness didn't ask much about information provided. SCO requested a second day IBM allowed. SCO complained that there was too much information and wasted a second day-long deposition. In contrast SCO's Mr. Hunsaker (?) spent less than an hour preparing for his deposition and most of his responses were "I don't know", you should really ask Mr. X. When asked if he spoke to Mr. X, replied "No". IBM's witness (in preparation) spent 300 hours and talked to 80 people. Asked Mr. Normand what was required (by this motion) replied that he didn't know. When asked what was missing replied "I don't know". Finally, identified 4 databases in an email at 7:00 p.m. 23 February 2006. The first time that IBM was informed of the these 4 databases.

[As James rose to respond, I left for an appointment.]


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