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Rule 26 - Explaining Discovery in Novell and IBM - What's Next?
Saturday, March 25 2006 @ 11:24 AM EST

If you look at Pacer for SCO v. Novell, what you will see is the beginnings of discovery activity, but until this week it's been all Novell turning over materials to SCO, not the other way around. Now, SCO has turned over some discovery to Novell, their Rule 26 Initial Disclosures [PDF]. What they turned over isn't known by us yet, but the rules dictate what it is supposed to be under Rule 26(a)(1).

What is that? It's discovery you are supposed to turn over without having to be asked at the beginning of the discovery process, because it's required under the Federal Rules of Civil Procedure, Rule 26.

Here are the initial disclosures under that rule1:

(1) Initial Disclosures.

Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

(C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and

(D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(E) The following categories of proceedings are exempt from initial disclosure under Rule 26(a)(1):

(i) an action for review on an administrative record;

(ii) a petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence;

(iii) an action brought without counsel by a person in custody of the United States, a state, or a state subdivision;

(iv) an action to enforce or quash an administrative summons or subpoena;

(v) an action by the United States to recover benefit payments;

(vi) an action by the United States to collect on a student loan guaranteed by the United States;

(vii) a proceeding ancillary to proceedings in other courts; and

(viii) an action to enforce an arbitration award.

These disclosures must be made at or within 14 days after the Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in the circumstances of the action and states the objection in the Rule 26(f) discovery plan. In ruling on the objection, the court must determine what disclosures - if any - are to be made, and set the time for disclosure. Any party first served or otherwise joined after the Rule 26(f) conference must make these disclosures within 30 days after being served or joined unless a different time is set by stipulation or court order. A party must make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.

So the initial discovery disclosures are the opening salvo in the discovery quest. I say quest, because in SCO v. IBM, it's been about as easy and speedy as the quest for the holy grail. SCO didn't actually reveal what their claims were about until the very last possible deadline, so don't get your hopes up as to how thorough their initial disclosure may have been here in Novell.

I don't think they can hold back stuff they've already filed in the SCO v. IBM case. At least they can't pretend they don't know about things already on the table in that case, like that lengthy detour we had to take about Project Monterey and SCO's alleged surprise at discovering that IBM was using AIX on Power, which the judge eventually ruled they knew all about or should have known back when it happened years ago. That was good for a lot of delay, but it isn't usable twice for that purpose. I use that for illustrative purposes only, because that isn't really relevant to the Novell case. I'm just saying the SCO attorneys will have to come up with new "surprise" if they wish to accomplish delay in this new litigation, and when you consider how much is known, thanks to extensive discovery in IBM, it's hard to imagine discovery in Novell taking as long. If any firm can do it, it's Boies Schiller. That is for sure. A dubious distinction. But the judge is the same judge as in IBM, and he's been around the block with them quite a bit already, so there isn't going to be a second educational process needed. That's the time-consuming part, generally.

The rule goes on to detail the other disclosures required later, such as names of experts -- that's under Rule 26(a)(2) -- and a statement from them as to what they will be saying at trial. In SCO v. IBM, that is the next step, as you can see from the schedule on Groklaw's IBM Timeline page. The signed stipulated Order Re Discovery [PDF] calls for initial expert reports to be filed May 12, 2006, then opposing expert reports on June 9, and finally rebuttal expert reports on July 7. The final deadline for expert discovery is still July 10, unchanged.

As you can see, expert discovery follows the same basic style we are familiar with in motion practice, a topic SCO gave us plenty of experience with. First a party files their story, then the other side says, "Not so fast," and then the first party gets to respond to what the other side said to knock holes in their initial submission.

That means the party filing gets two times to speak, of course, but it works out because both sides will be filing their experts' reports, and it's fair to let each respond to any counterarguments. Also, you have to stop somewhere. Litigators will happily argue forever, but the court draws a line, and that is the line.

So expert discovery will really be over on July 10 in SCO v IBM. The next deadline in the schedule is August 4, 2006, the final date for dispositive motions to be filed. So what I expect is that we will see dispositive motions start to fly in the middle of July.

Rule 26 has a third section, Rule 26(a)(3) disclosures, which are witness lists. In the SCO v. IBM case, as you can see on the IBM Timeline list, that date will be January 12, 2007, and here's what the rule says must be turned over then:

In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to other parties and promptly file with the court the following information regarding the evidence that it may present at trial other than solely for impeachment:
(A) the name and, if not previously provided, the address and telephone number of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises;

(B) the designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; and

(C) an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.

Unless otherwise directed by the court, these disclosures must be made at least 30 days before trial. Within 14 days thereafter, unless a different time is specified by the court, a party may serve and promptly file a list disclosing (i) any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(B), and (ii) any objection, together with the grounds therefor, that may be made to the admissibility of materials identified under Rule 26(a)(3)(C). Objections not so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of Evidence, are waived unless excused by the court for good cause.

The purpose of the discovery rules is to let both sides know in advance what will be presented at trial so everyone is prepared. Neither side wants to reveal that by nature, of course, which is why you need a rule. The idea is that the rules will prevent Perry Mason moments at the trial, where a surprise witness shows up with unexpected testimony that suddenly finishes off the litigation because it catches the other side flat-footed. Both sides would simply love to do that to the opponent, of course, and in David Boies' book, "Courting Justice," the first page says growing up he wanted to be a lawyer like Perry Mason, but it ends up causing delay and extra expense to run trials that way, so they set up rules. Of cource, I'm not saying there are *never* Perry Mason moments...

Hopefully, explaining Rule 26 helps you now to understand a bit better what to expect going forward in SCO v IBM, and it will be the same basic framework in SCO v. Novell. And as you saw in SCO v IBM, just because the law says you are to turn everything over by a certain date, that doesn't mean it happens that way precisely. Sometimes one party, or both, wishes to hold out as long as possible. Here's an article by an attorney explaining a bit about discovery strategy, with an emphasis on electronic discovery, "Requesting and Responding to Electronic Discovery," by Michael R. Arkfeld, Esq, if you are curious. Lawyers think in terms of strategy at every step of the process. It's what you pay them for. It's what pro se litigants never know how to do. And it's where game-playing comes in, unfortunately, also.

Finally, in SCO v. IBM, oddly both Judge Kimball [PDF] and Judge Wells [PDF] have signed the same Order Re Briefing on the same day, in response to the parties' stipulation [PDF], giving IBM extra time, until April 4, to respond to SCO's opposition to IBM's motion to weed out SCO's list of allegedly infringing materials. That just means somebody goofed and sent the same proposed order to both judges, but it doesn't mean anything in terms of what happens next. They don't cross each other out. Let's just call it repetition for emphasis.

Getting back to Novell, there is also a Stipulation [PDF] that Novell will get extra time to respond to SCO's Second Amended Complaint. The new deadline is April 10th. Here are the certificates of service showing all the other recent discovery activity in the case, all PDFs:

1 Originally, this sentence said statute instead of rule, and I made the same mistake throughout. It was a mistake because statute means a law a legislature passes. The FRCP are judge-made rules, so it isn't correct to call them statutes. I know that, but I had a brain blank, I guess, so I'm highlighting it here. If you wish to verify, here's an article on doing legal research that highlights the difference. I'm sorry if my mistake confused you.

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