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IBM Opposes SCO's Motion re Expert Declaration & New Proposed Protective Order
Wednesday, April 12 2006 @ 10:01 PM EDT

Still more on Pacer in SCO v. IBM. Two more documents, or three, depending on how you count: first, IBM strongly opposes SCO's Motion for Leave to to File Declaration of Marc Rochkind [PDF] and second, the parties have stipulated to an Addendum to Protective Order [PDF], so as to protect nonparties' confidential documents from the eyes of all but outside counsel and independent experts. The proposed order is attached to the stipulation and joint motion.

Here's the Pacer docket information:
663 [PDF]
Filed & Entered: 04/12/2006
Motion to Amend/Correct
Docket Text: Stipulated MOTION to Amend/Correct [38] Protective Order filed by Defendant International Business Machines Corporation. (Attachments: # (1) Text of Proposed Order Addendum to Protective Order [PDF])(Sorenson, Amy)

664 [PDF]
Filed & Entered: 04/12/2006
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [661] MOTION for Leave to File Declaration of Marc Rochkind filed by Defendant International Business Machines Corporation. (Sorenson, Amy)

IBM's position is that SCO's just looking for another opportunity to make its arguments, that the declaration is essentially a sur-reply."SCO’s attempt to file a declaration just days before the scheduled hearing is not only belated and unjustified, but it is also plainly just an effort to make additional legal arguments."

SCO failed to file its allegedly misused materials with sufficient specificity by the deadline. That's IBM's position in the motion, and it's the only issue. SCO filed its list and the boxes of "evidence" with the court. If it wishes to prove IBM wrong about specificity, all it needs to do is pull out something specific from the boxes of evidence or point to it on the list. Trying to fix their failure to file with sufficient specificity by the court's deadline can't be fixed now by bringing up new materials. That's the point of the motion, after all.

If it is allowed, IBM says, they'd need a delay. There is no way the court or its expert, Randall Davis, can sufficiently evaluate the expert declaration before Friday's hearing, which is another good reason not to allow it, IBM says.

They don't even know if Davis is available. Here's why. SCO told the court it had served its proposed declaration on IBM on Monday, but as of IBM's time of filing its opposition on Wednesday, it had not received anything from SCO about it. The first IBM learned of it was today, Wednesday, when the court notified IBM. That means IBM wrote this opposition the very same day and filed it lickety split. You're supposed to have more time than that to respond to a motion.

Lawyers can serve each other once they have all appeared several ways, depending on the court rules. We've seen email and snail mail and fax and personal service in this litigation. If SCO had chosen to send the declaration by either email, fax, or personal service, it would have arrived long before Wednesday, obviously, in the normal course of events. In other words, IBM is letting the court know that SCO appears to have deliberately chosen the slowest method possible, to give IBM the least amount of time to evaluate the materials or respond to the motion. Sad to say, but I've seen this happen in other litigation. It's one of the more common tricks of the trade, you might say. But it can cost you if you get called on it, court rules assuming gentlemanly behavior and all, and here IBM is calling SCO on it and letting the court know exactly what's been going on.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[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.

----------------------------

IBM’S MEMORANDUM IN
OPPOSITION TO SCO’S MOTION FOR
LEAVE TO FILE DECLARATION OF
MARC ROCHKIND

Civil No.: 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

----------------------------

Argument

IBM respectfully submits this memorandum in opposition to SCO’s motion for leave to file the Declaration of Marc Rochkind in connection with IBM’s motion to limit the scope of SCO’s claims. SCO seeks to file a sur-reply declaration in opposition to IBM’s preclusion motion purportedly on the grounds that it did not know IBM would submit a declaration from Professor Davis with IBM’s reply papers. However, the only reason IBM submitted a declaration from Professor Davis was to rebut SCO’s assertions (in its opposition papers) that SCO provided the specificity required by the Court. If SCO had wanted to substantiate its assertions of compliance, the time for doing so was when it submitted its opposition brief. There is absolutely no reason it could not have submitted a declaration then. Indeed, it should have known IBM would submit a declaration to rebut any false assertions of compliance.

SCO’s attempt to file a declaration just days before the scheduled hearing is not only belated and unjustified, but it is also plainly just an effort to make additional legal arguments. If SCO believes Professor Davis erred in his analysis, it can point the Court to the information which IBM contends is missing at the hearing. After all, the primary purpose of Professor Davis’ declaration was simply to confirm that SCO did not provide the specific information it was required to provide. Moreover, SCO provided the Court with a copy of its Final Disclosures. It does not need a declaration to show the Court what they say. It can show them to the Court at Friday’s hearing. SCO should not be allowed to use an untimely declaration to seek to justify its non-compliance with the Court’s orders.

Allowing SCO to submit a belated, sur-reply declaration likely would necessitate further delay, which would itself be unjustified. Neither the Court nor IBM should be required to evaluate an expert submission in less than 48 hours. Although SCO claims to have served IBM

2

with its motion on Monday, as of this filing IBM has received nothing from SCO on this score.

SCO’s filing came to IBM’s attention for the first time today when its counsel received a notice from the Court. Moreover, if a SCO declaration were allowed (and, respectfully, it should not be), IBM and Professor Davis would need a fair opportunity to respond. That would obviously require more than a few days, assuming Professor Davis is even available. For these reasons, we respectfully submit that SCO’s motion to file a sur-reply declaration be denied.

DATED this 12th day of April, 2006.

Snell & Wilmer L.L.P.

/s/Amy F. Sorenson
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

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

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

3

CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of April, 2006, a true and correct copy of the foregoing was sent to the following by U.S. Mail:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/Amy F. Sorenson

4

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[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 AND JOINT MOTION
FOR AN ADDENDUM TO THE
PROTECTIVE ORDER

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 jointly move the Court as follows:

1. On September 15, 2003, The SCO Group, Inc. (“SCO”) and International Business Machines Corporation (“IBM”) agreed to the terms of a stipulated protective order (the “Protective Order”).

2. In the course of fact discovery in this action, certain non-parties have objected to the production of documents on the ground that the Protective Order contains no mechanism to limit access to certain documents which they describe as highly confidential to the parties’ outside counsel and independent experts only.

3. In order to resolve this objection, and to allow for the timely production of such documents by non-parties, counsel for SCO and IBM have agreed that the Protective Order should be amended to provide for the designation and production by non-parties, where appropriate, of such documents as “HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY”.

4. Accordingly, the parties hereby stipulate and agree that the Protective Order should be amended as follows: If, in the course of this action, a disclosing non-party discloses information that, in accordance with Federal Rule of Civil Procedure 26(c)(7), the disclosing non-party in good faith contends should not be disclosed to in-house counsel, in-house representatives or in-house experts otherwise entitled to view confidential information pursuant to this Protective Order, such disclosing non-party may designate such information as “HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY”. Information so designated by a non-party may not be disclosed to a party’s in-house counsel, in-house experts, or any of its officers, directors, or employees. HIGHLY CONFIDENTIAL information shall be governed by the Protective Order and used only for the purposes of this action and not for any other purpose or

2

function, including without limitation any business, patent prosecution, competitive or governmental purpose or function. No person who prosecutes patents relating to the technology claimed in any patents in suit shall have access to HIGHLY CONFIDENTIAL information.

5. Filing under seal; notice of challenge to designation. If any information produced by a non-party and designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL is filed with the Clerk of the Court in this litigation, information so designated shall be filed under seal in accordance with the provisions of Paragraph 6 of the Protective Order. If any party or non-party files a motion challenging the CONFIDENTIAL or HIGHLY CONFIDENTIAL designation of information produced by a non-party and filed with the Court, the party responsible for filing the information designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL with the Court shall provide notice to the producing non-party of such challenge.

6. Notice of use of non-party materials in open court. In order to provide a producing non-party with an opportunity to seek protection against public disclosure, if a party wishes to introduce into evidence on direct examination any document produced by a non-party and designated CONFIDENTIAL or HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, the party shall provide five days prior notice of that intent to the producing non-party by email, telephone or facsimile. If a party intends to use such a document produced by a non-party for purposes of cross-examination, it shall provide five days prior notice of that intent to the extent practicable, and if such notice is not practicable, shall provide as much prior notice of such intent as is practicable, also by email, telephone, or facsimile.

7. All other provisions of the Protective Order shall remain in full force and effect. The parties respectfully request that the Court enter an Addendum to the Protective Order reflecting the foregoing in the form submitted herewith.

3

DATED this 12th day of April, 2006.
Snell & Wilmer L.L.P.
/s/Amy F. Sorenson
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

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

DATED this 12th day of April, 2006.

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

By: /s/Brent O. Hatch
Counsel for Plaintiff
(signed copy of document bearing signature of Brent O.
Hatch is being maintained in the office of Snell &
Wilmer)

4

CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of April, 2006, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/Amy F. Sorenson

5

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[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.

----------------------------

[PROPOSED]
ADDENDUM TO PROTECTIVE ORDER

Civil No.: 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

----------------------------

On September 15, 2003, The SCO Group, Inc. (“SCO”) and International Business Machines Corporation (“IBM”) agreed to the terms of a stipulated protective order (the “Protective Order”).

In the course of fact discovery in this action, certain non-parties have objected to the production of documents on the ground that the Protective Order contains no mechanism to limit access to certain documents which they describe as highly confidential to the parties’ outside counsel and independent experts only. In order to resolve this objection, and to allow for the timely production of such documents by non-parties, counsel for SCO and IBM have agreed that the Protective Order should be amended to provide for the designation and production by nonparties, where appropriate, of such documents as “HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY”.

Based upon the stipulation of the parties, and good cause appearing therefore, IT IS HEREBY ORDERED that the Protective Order is amended only as follows:

1. If, in the course of this action, a disclosing non-party discloses information that, in accordance with Federal Rule of Civil Procedure 26(c)(7), the disclosing non-party in good faith contends should not be disclosed to in-house counsel, in-house representatives or in-house experts otherwise entitled to view confidential information pursuant to this Protective Order, such disclosing non-party may designate such information as “HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY”. Information so designated by a non-party may not be disclosed to a party’s in-house counsel, in-house experts, or any of its officers, directors, or employees. HIGHLY CONFIDENTIAL information shall be governed by the Protective Order and used only for the purposes of this action and not for any other purpose or function, including without limitation any business, patent prosecution, competitive or governmental purpose or function.

2

No person who prosecutes patents relating to the technology claimed in any patents in suit shall have access to HIGHLY CONFIDENTIAL information.

2. If any information produced by a non-party and designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL is filed with the Clerk of the Court in this litigation, information so designated shall be filed under seal in accordance with the provisions of Paragraph 6 of the Protective Order. If any party or non-party files a motion challenging the CONFIDENTIAL or HIGHLY CONFIDENTIAL designation of information produced by a non-party and filed with the Court, the party responsible for filing the information designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL with the Court shall provide notice to the producing non-party of such challenge.

3. In order to provide a producing non-party with an opportunity to seek protection against public disclosure, if a party wishes to introduce into evidence on direct examination any document produced by a non-party and designated CONFIDENTIAL or HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, the party shall provide five days prior notice of that intent to the producing non-party by telephone, email, or facsimile. If a party intends to use such a document produced by a non-party for purposes of cross-examination, it shall provide five days prior notice of that intent to the extent practicable, and if such notice is not practicable, shall provide as much prior notice of such intent as is practicable, also by telephone, email, or facsimile.

DATED this ____ day of April, 2006.

BY THE COURT

____________________________
United States District Court

3

APPROVED AS TO FORM AND CONTENT:

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

By /s/Brent O. Hatch
Counsel for Plaintiff/Counterclaim-Defendant

4

CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of April, 2006, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/Amy F. Sorenson

5


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