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IBM Still on the Move: Letters Rogatory
Saturday, March 04 2006 @ 02:33 PM EST

More IBM activity on Pacer. It has subpoenaed Michael Sean Wilson -- it wants to depose him -- and it has obtained letters rogatory. Here's what Pacer is showing:
637 - Filed & Entered: 03/03/2006
Order on Motion for Miscellaneous Relief
Docket Text: ORDER granting [629] STIPULATION & JOINT MOTION regarding requests for admission signed by Judge Brooke C. Wells on 3/3/06. (mjw, )

638 - Filed & Entered: 03/03/2006
Remark - Docket Text: Remark: Letters Rogatory issued by the clerk's office and given to counsel Todd M. Shaughnnessy. (jwt, )

635 - Filed & Entered: 03/02/2006
Affidavit of Service - Docket Text: AFFIDAVIT OF SERVICE for Subpoena in a Civil Case served on Michael Sean Wilson on 2-22-2006, filed by Defendant International Business Machines Corporation. (Donaldson, Peter)

What in the world are letters rogatory and who is Mr. Wilson?

Letters Rogatory

Here's what Law.com provides as a definition:

rogatory letters
n. a written request by a judge to a judge in another state asking that a witness in the other state have his/her testimony taken in the other state's court for use in the local court case.

If you are in state courts, that's what you have to use to get a witness in another state to testify. It's horribly time and work-intensive, as you can see in this description of how to get a California witness in a New York case. But IBM is in federal court, so they don't need letters rogatory to get a witness in another state, I don't think. You can also use letters rogatory if you want to get the testimony or documents of a witness who lives out of the US. Might that be it?

You don't ever use letters rogatory if you can help it, because it takes forever and it's cumbersome. Not only that, some countries won't even let you be there to ask the questions yourself. You use letters rogatory also to get papers that you want. This page by the US State Department explains it in depth. If you want to get testimony from a noncooperative someone who is in another country, you need letters rogatory to get the other country to make it happen:

WHAT IS A LETTER ROGATORY: A letter rogatory is a formal request from a court in one country to "the appropriate judicial authorities" in another country requesting compulsion of testimony or documentary or other evidence or effect service of process. . . .

In some countries which do not permit the taking of depositions of willing witnesses, letters rogatory are the only method of obtaining evidence or serve process. . . .This does not obligate the foreign country to execute the request, but simply provides a formal avenue by which the requests may be made....Letters rogatory are a time consuming, cumbersome process and should not be utilized unless there are no other options available.

HOW IS A LETTER ROGATORY EXECUTED: The foreign court will execute a letter rogatory in accordance with the laws and regulations of the foreign country. In obtaining evidence, for example, in most cases an American attorney will not be permitted to participate in such a proceeding. Occasionally a local, foreign attorney may be permitted to attend such a proceeding and even to put forth additional questions to the witness. Not all foreign countries utilize the services of court reporters or routinely provide verbatim transcripts. Sometimes the presiding judge will dictate his recollection of the witness's responses....

Compulsion of Evidence: When a witness is not willing to testify or produce documents or other evidence voluntarily, the assistance of foreign authorities generally must be sought. The customary method of compelling evidence is by letter rogatory. See Rule 28(b), Fed. R. Civ. P....

ADMINISTRATIVE CASES: Except as provided by statute, U.S. Administrative agencies do not have the power to compel persons outside the U.S. who have no contact with the U.S. (and therefore are not under a federal court's personal jurisdiction) to produce evidence for an investigation.

Perhaps somebody in another country doesn't wish to be deposed and/or hand over some documents. Who? I don't know. But we're not just talking about exotic places like Casablanca. Canada, for example, is a country you may need to use letters rogatory to compel someone there to cooperate with a US court process. I personally have been wondering why no one with the Royal Bank of Canada at the time of the deal has been subpoenaed. And here's one last piece:

It must always be kept in mind that letters rogatory cannot normally be used for purposes of discovery. It will be necessary to establish that the evidence being sought is necessary for and anticipated to be used at trial. It may be that there are questions that you may want to ask of witnesses in other depositions that will help to establish the need for the B.C. witnessís evidence. Excerpts of those depositions should be included in the material being considered by the B.C. Court.

On the other hand, there may be occasions where the main function of the deposition will be to obtain documents that are physically located in British Columbia, or another Canadian province. It is still necessary to establish that they will be used for trial.

Now, I'm just speculating here, but if, for example, you couldn't serve RBC in the US, and they refused to cooperate, and you knew your trial was a year off, then a year taken to arrange the letters rogatory and the Canadian requirement that you demonstrate that the evidence will be used at trial wouldn't matter, would it? Meanwhile, you let the other side know that you are serious as a heart attack and that you intend to get that document or that testimony or both. As I say, I don't know this is about RBC, but they are the missing link. Bay Star has been hit, Microsoft, Anderer, now Wilson. It seems only logical to me that someone then with RBC be asked what inspired them to invest in SCO. Was it Microsoft's idea? (A reader suggests that another good guess is maybe Gregory Blepp.)

Michael Sean Wilson

Mr. Wilson was Senior Vice President for Corporate Affairs at SCO in 2003, as you can see from this SEC form showing him acquiring 6,000 shares at .66 and selling the same day, July 15, 2003, 2,000 at $10.8 and 4,000 at $10.66. Here's 6,000 more the day before, something I noted at the time, because it struck me that it happened just before the July 21st teleconference at which SCO announced that they had filed for copyright registrations and were offering the Linux license. It seemed to me that if Mr. Wilson had deep faith in the future of the company, he'd hold on to at least some of his shares. Of course, who knows what his circumstances were, but I remarked it at the time. He's on this MarketWatch list of SCOX Insiders, but again all you get is 2003 information. After that stock sale, Mr. Wilson seems to have disappeared. He's not listed in the most recent annual report or on this list of SCO's executives in a January 8K. It's possible, therefore, depending on when he left the company, that he sold his stock on his way out the door. Unfortunately, IBM didn't file, at least not digitally, the topics for deposition, so this will just have to remain a mystery for now.

UPDATE: A reader provides more information from Caldera's 10K/A for the year ending October 31, 2002, where Mr. Wilson is listed as M. Sean Wilson and referred to as Sean Wilson:

Sean Wilson has served as senior Vice President, Solutions Group since June 2002. Mr. Wilson is responsible for developing growth strategies for the company by building relationships with strategic partners and searching out business development opportunities. Mr. Wilson has over 10 years of technology experience in business development, strategic partnerships, channel development and product marketing. From September 2000 to May 2002 Mr. Wilson served as VP Strategic Alliances for Franklin Covey and from 1996 to September 2000 Mr. Wilson served as Vice President of Strategic Relations at IKON Office Solutions where he was a key executive responsible for building its systems integration division through the acquisition and integration of more than 30 solution providers. Additionally, he held full executive authority for developing and delivering strategic alliance programs with high technology software, hardware and distribution companies such as Compaq, HP, Citrix, Novell, TechData and others. Before his service at IKON, Mr. Wilson was the Senior Manager of Business Development at Novell, Inc. While at Novell, Wilson was responsible for business development, product marketing, and partner relations. Mr. Wilson holds a bachelor's degree in Accounting from Utah State University

VP Solutions Group at that time, responsible for "developing growth strategies." And a background at Franklin Covey, where Darl McBride was CEO from from May 2000 to May 2002, according to the same 10K/A. So they came to SCO the same month, same year, from the same company, where they worked from 2000 to 2002. Wilson also worked at IKON, and so did Darl:

Darl McBride has served as the Company's President and Chief Executive Officer since June 2002 and is responsible for the company's strategic direction and planning. Mr. McBride oversees all aspects of the Company including engineering, support, marketing and sales. A technology industry veteran, Mr. McBride has 18 years of executive management and leadership experience. Before joining the Company, Mr. McBride was the president of Franklin Covey's online planning business from May 2000 to May 2002. During 2000 to 2002, Mr. McBride was also serving as the chairman and CEO of SBI and Company, and from 1999 to 2000 was the CEO of PointServe. While at the helm of these companies, Mr. McBride was responsible for raising more than $100 million in venture capital. Mr. McBride has also been the senior vice president of IKON Office Solutions where he managed 4,000 employees and the buildup of a $500 million systems integration unit through numerous acquisitions, channel programs, and industry partnerships. From 1988 to 1996, Mr. McBride worked at networking leader Novell where he was responsible for growing Novell Japan's growth to more than $100 million in revenue. Mr. McBride concluded his tenure at Novell as vice president and general manager of Novell's Embedded Systems Division (NEST). Mr. McBride holds a Bachelor of Science degree from Brigham Young University and received a Masters degree from the University of Illinois at Urbana-Champaign.

So they seem to be long-time associates. In researching Mr. Wilson, I see SCO has filed an S-1, labeled Pre-Effective Amendment, whatever that is. I haven't read it yet myself, so we can do it together.


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