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SCO v IBM Stipulation Re Discovery & Order
Saturday, March 18 2006 @ 08:06 AM EST

The parties in the SCO v. IBM litigation have stipulated to an adjustment to the schedule in the case regarding discovery, and there is a proposed Order Re Discovery [PDF]. The new deadlines would be:
Initial Expert Reports - May 12, 2006 (it was April 14)
Opposing Expert Reports - June 9, 2006 (it was May 19)
Rebuttal Expert Reports - July 7, 2006 (it was June 16)
Dispositive Motions - August 4, 2006 (it was July 28).

It's not a significant shift, as you can see. The final deadline for expert discovery hasn't changed. It is still July 10.

But what is really interesting is this Stipulation Re Discovery [PDF] between the parties, in which they try to settle all outstanding discovery issues not mentioned in the Order. Essentially, except for the items listed here, fact discovery is over as of yesterday, March 17, and there are no further disputes between the parties over discovery except what is in the stipulation. There are still some permitted depositions, of course, and some documents still to be turned over, and they agree that there could be issues related to those discovery matters down the road. The stipulation includes this agreed term:

The parties agree that relevant documents produced by any party in the SCO v. Novell litigation shall be provided to counsel for the parties in this case.

It is inevitable that this would happen, because of how important some of the issues are in the Novell case -- most fundamentally whether SCO even has ownership of the copyrights to the code they are suing everyone about -- and the overlap between the two cases.

IBM has an interest in knowing about discovery on issues in that case that impact this litigation, so they negotiated, I gather, this term. There is now a process in place in principle whereby IBM will be given anything either party provides the other that is relevant here. Of course, there certainly could be disputes about the definition of "relevant". Actually, the stipulation says "any party", not "either party", so if other parties were to enter the case down the road, discovery materials provided by them would also be covered by this stipulation. I don't know if that is foreshadowing other parties being drawn in, or if it is just one of those times when this word happened to be chosen instead of that one. Lawyers use words purposefully and carefully, however, so they generally do mean something, if only that they are trying to cover all conceivabilities.

The parties have also agreed to limit motions to compel. That's good. SCO was running out of titles to call their new re-re-renewed re-re-refiled motions to compel again. Of course, we'll have a bit less fun. You will recall that SCO was given permission to file a renewed motion to compel by Judge Wells at the February 24, 2006 hearing. She told SCO it had 30 days to file a renewed motion which clearly and narrowly defined areas not addressed by documents already produced by IBM. However, in the meantime, the parties have narrowed what that motion to compel would include, if it ever gets filed. The parties are still negotiating, and it's possible things will be resolved without the need for a motion.

That whole strategy, to try to make IBM look like it was dragging its feet in discovery and not handing over what it should, didn't work out for SCO. Now, there is a stipulation to cut it out. At least, that is how it strikes me. On the other hand, just because SCO says they won't bring a motion to compel doesn't mean it can't invent some workaround way to do more or less the same thing, I suppose.

The stipulation goes essentially like this regarding motions to compel: The parties have agreed that SCO will only ask in a motion to compel for materials in Topic 9 and 10 of SCO's Notice of Deposition dated November 11, 2005 (that would be found in this document [PDF]), and only if the parties can't agree. Topic 9 and 10 read like this:

9. The restrictions that IBM's AIX Licenses have imposed on the licensees' use or distribution of AIX source code, methods, or concepts, or of products that the licensee develops after entering into the AIX License.

10. The restrictions that IBM's Dynix/ptx Licenses have imposed on the licensee's use or distribution of Dynix/ptx source code, methods, or concepts, or of products that the licensee develops after entering into the Dynix/ptx License.

IBM agrees it will only bring a motion to compel regarding certain listed issues found in a Ted Normand letter of March 10, 2006 to Todd Shaughnessy, on Topics 5 and 18 of IBM's March 19, 2005 deposition notice, and Topic 23 of IBM's February 14, 2006 deposition notice. I can't find a March 19, 2005 or a February 14, 2006 deposition notice or the letter, so I have no idea what that is about, but I'll keep looking and will provide a link later if I succeed. The deposition notices should be on Pacer, but I can't match up the dates. It's possible I just can't see them right in front of my nose, but I just spent over an hour hunting for the referenced materials, and I simply don't find them. If you do, sing out, please. Discovery isn't always done in public, and I see several references to letters between the attorneys, and it's certainly possible we'll never see those letters. We'll likely be able to figure out the gist of it in time, as we watch developments, however.

Other than that, the parties agree not to bring motions to compel, unless it is about something in discovery that hasn't happened yet or it's about privilege logs. That may indicate that the privilege log order hasn't yet been fully complied with or that the parties just haven't finished reviewing what was turned over, so they are keeping their foot in the door, just in case they decide the production wasn't complete.

So in general, this is a document to wrap up discovery, but to allow the straggling stuff that still didn't get finished. They have depositions still to do and some document discovery still to go. It also prevents unnecessary motion practice in two ways: it is an agreement listing what can be the topic for a motion to compel, which hopefully will keep SCO from getting too creative; and second, it lays out the groundwork of the agreement so that if either party doesn't keep a promise listed, the other side has a solid basis to take action.

Finally, there is now an Order [PDF], based on the stipulation by the parties, signed by Brooke Wells on March 10th, that the court clerk is to seal "Exhibits 1 and 2 of Attachment A to the subpoena attached as Exhibit A to the Notice of Subpoena Duces Tecum re Houlihan Valuation Advisors, filed on February 22, 2006 (Docket No. 631)." As you can see, lawyers need a good head for detail. Speaking of detail, I think this is the first document filed with this notation: (e-filed with authorization of counsel).

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Nathan E. Wheatley (9454)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

______________________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.

________________________________

STIPULATION RE DISCOVERY

Civil No.: 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

The parties, by and through their counsel of record, hereby stipulate and agree as follows:

1. The Courtís Scheduling Order, dated July 1, 2005, shall remain in force and effect, except that certain deadlines shall be modified as follows:

Initial Expert Reports May 12, 2006
Opposing Expert Reports June 9, 2006
Rebuttal Expert Reports July 7, 2006
Dispositive Motions August 4, 2006

2. All fact discovery is closed as of March 17, 2006, except that the depositions, as noticed, of (a) Messrs. Messman, Wilson, Lemon, Prosser, MacKay, Negris, Young, Spencer, and Bawa; (b) the Rule 30(b)(6) depositions described below, and (c) the depositions of Sun, Microsoft, HP, and Baystar/Goldfarb to the extent of subpoenas already served on those parties, shall not be precluded based on the close of fact discovery.

3. IBM shall produce Mr. Sandve for two additional hours of Rule 30(b)(6) deposition testimony pursuant to Topics 6, 7 and 12 of SCOís Notice of December 23, 2005; subject to the reservation of objections set forth therein, SCO shall produce 30(b)(6) witnesses as described in Ted Normandís email to Todd Shaughnessy dated March 9, 2006; and IBM will make a reasonable effort to produce that discovery set forth in the first paragraph of Ted Normandís email to Todd Shaughnessy dated March 17, 2006, if it can do so without undue burden.

4. The parties have reviewed one anotherís document productions, met and conferred, and agree that, except as stated below, there are no discovery disputes between them, subject to the following representations.

2

a. IBM represents that it has taken reasonable steps to supplement its document production, except that IBM will undertake a reasonable search for additional documents from the files of the individuals identified in Ted Normandís letter of February 23, 2006, to Todd Shaughnessy;

b. SCO represents that it has taken reasonable steps to supplement its document production, except that SCO will undertake a reasonable search, after consultation with IBM concerning some of those requests, for those categories of documents in Ted Normandís March 10, 2006, letter to Todd Shaughnessy as to which SCO has not concluded a reasonable search;

c. The parties agree that relevant documents produced by any party in the SCO v. Novell litigation shall be provided to counsel for the parties in this case.

5. The parties shall not pursue motions to compel against one another, including the motion to compel allowed by the Court at the February 24, 2006, hearing, except as follows:

a. If the parties are unable to resolve their differences, SCO may pursue a motion to compel against IBM regarding Topics 9 and 10 of SCOís Notice of Deposition dated November 11, 2005.

b. If the parties are unable to resolve their differences, IBM may pursue a motion to compel against SCO regarding issues identified in Ted Normandís letter of March 10, 2006, to Todd Shaughnessy as to which SCO has not yet concluded a reasonable search for responsive documents; Topics 5 and 18 of IBMís March 19, 2005, Rule 30(b)(6) deposition notice; and Topic 23 of IBMís February 14, 2006, Rule 30(b)(6) deposition notice.

3

c. If the parties are unable to resolve their differences, either party may pursue a motion to compel with respect to the fact and Rule 30(b)(6) depositions that have not yet occurred identified in paragraphs 2 and 3 above. With respect to the deposition of Bill Sandve referred to in paragraph 3 above, any such motion shall be limited to objections or instructions made at the time of that deposition.

d. The parties reserve the right to bring motions to compel regarding the sufficiency of their respective privilege logs and/or documents claimed as privileged, or other privilege issues.

6. The parties shall exchange responses to one anotherís Requests For Admission on or before May 1, 2006; all existing deadlines to respond to Requests for Admissions shall be extended to May 1, 2006.

DATED this 17th day of March, 2006.

Snell & Wilmer L.L.P.

/s/ Nathan E. Wheatley
Alan L. Sullivan
Todd M. Shaughnessy
Nathan Wheatley

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

4

DATED this 17th day of March, 2006.

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER, LLP
Stuart H. Singer

By___/s/ Stuart H.Singer_____________
Counsel for Plaintiff
(e-filed with authorization of counsel)

5


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