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
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.
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.
Magistrate Wells asked when the subpoenas were served.
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.
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.
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.
Magistrate Wells says that 30 days is needed for adequate response to a subpoena.
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.
Magistrate Wells supposes that the court orders and rules are for no
other purpose than to be broken.
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
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.
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.
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.
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".
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.
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.
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?
Mr. Shaughnessy replies that the language in the licenses should be
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.
How long will it take to complete discovery of documents IBM has
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
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
Magistrate Wells has no patience for lack of communication between
counsels before coming to court.
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.
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.
The Honorable Boyce had a penchant for animal analogies.
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.
Why is this motion not a placeholder?
The motion alludes to document requests months and over a year ago.
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.