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Novell Sends 3d Party Subpoena Re Santa Cruz and Caldera Deals
Tuesday, April 18 2006 @ 01:54 AM EDT

Novell's has sent Notice of 3rd party subpoena to SCO's legal team, letting them know about a subpoena issued from US District Court of the Northern District of California which will be served tomorrow on "Recall, c/o Jim Wruck". There is a data storage company called Recall with offices all over the place, although I couldn't find one in San Leandro, California, the address on the subpoena, but they have several California offices, so perhaps that is who is being served.

What is more interesting than who is getting the subpoena is what Novell is looking for. Novell would like to inspect and copy some documents Recall/Wruck has, or may have, and Wruck is to bring them to Morrison & Foerster's law offices in San Francisco on May 3, 2006 at 10 AM. There is a list of precisely what they would like him to bring on Exhibit A.

Novell would like to take a look at all the documents he has having to do with the Novell to Santa Cruz deal, Santa Cruz's business restructuring in 2000, the "sale or transfer" of Santa Cruz assets to Caldera Systems, "including all transactional, due diligence, and negotiation documents, and other communications concerning the sale or transfer," and all documents concerning the formation of Caldera International, "including its ownership of assets acquired from Santa Cruz."

At first, I saw the word "recall" and I thought maybe they'd subpoenaed Mr. Wruck before, and that maybe he was a Tarantella employee. But then I saw it says "Recall, c/o Jim Wruck" and so I realized I was off base. But by then I had gone to Pacer to check to see who had received a third party subpoena before, and I see Novell sent a couple of them, in late January and in February. One is blank as to who it was for, and one was to Datasafe, Inc. and I note that Datasafe is also a document storage company that stores business records and it has offices in California, including an office in San Francisco.

As for what the documents listed on Exhibit A mean, we can only imagine, but I did notice the phrase about Caldera being the "purported predecessor-in-interest" of the SCO Group in Novell's Answer to SCO's 2d Amended Complaint and Counterclaims. I wonder if someone has noticed something they'd like to investigate further as to whether all the Caldera Systems/Caldera International/Santa Cruz corporate T's were crossed and I's properly dotted in the elaborate re-arrangement that ended up as SCO Group. In time, we will find out.

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

EXHIBIT A

INSTRUCTIONS & DEFINITIONS

This subpoena requires you to produce all responsive documents in your custody or control. Please produce such documents in their entirety, as they are kept in the ordinary course of business.

As used below, “concerning” means, without limitation: comprising, alluding to, responding to, relating to, connected with, involving, commenting on, in respect of, about, discussing, evidencing, showing, describing, reflecting, analyzing, constituting, identifying, stating, or in any way touching upon.

“Documents” or “documents” shall have the broadest possible meaning permitted by Federal Rules of Civil Procedure 26 and 34 and the relevant case law, and shall include any tangible thing upon which any expression, communication, or representation has been recorded, as well as all “writings,” “recordings,” and “photographs,” as defined by Federal Rule of Evidence 1001. Notwithstanding this definition, these Requests seek only documents from the material abandoned by Brobeck Phleger & Harrison and its former clients. We do not request that Recall search for material beyond those archives. You are instructed to produce the following documents at the time and place specified in the subpoena:

DOCUMENTS TO BE PRODUCED

REQUEST NO. 1:

All documents concerning the Santa Cruz Operation, Inc.’s (“Santa Cruz”) acquisition of any assets from Novell, Inc. (“Novell”).

REQUEST NO. 2:

All documents concerning the restructuring of Santa Cruz’s business during its fiscal year 2000.

REQUEST NO. 3:

All documents concerning the sale or transfer of Santa Cruz assets to Caldera Systems (“Caldera”), including all transactional, due diligence, and negotiation documents, and other communications concerning the sale or transfer.

REQUEST NO. 4:

All documents concerning the formation of Caldera International, including its ownership of assets acquired from Santa Cruz.

REQUEST NO. 5:

All documents concerning Santa Cruz’s Board of Directors meetings regarding Santa Cruz’s acquisition of any assets from Novell, the restructuring of Santa Cruz’s business, or Santa Cruz’s sale or transfer of assets to Caldera.


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