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Order from Feb. 24, 2006 Hearing in SCO v IBM
Thursday, April 27 2006 @ 06:56 AM EDT

The Order [PDF] by Judge Brooke Wells from the February 24, 2006 hearing is available now from Pacer. Of course, we know what happened, because she announced her decision from the bench, and we have the transcript of the hearing. This is the written order that she asked IBM to prepare. As I've mentioned, to the victor go the spoils, so to speak, and if you win a motion, generally you are asked to do the written order. Our thanks to mwexler for doing the plain text for us.

This was the hearing about two motions, SCO's motion for leave to take 30(b)6 depositions of Intel, the Open Group, and Oracle, which SCO lost flat out, and SCO's Motion to Compel -- the order says it's Docket number 592, and I have to tell you that one of the best things about discovery being over is that I don't have to struggle to keep track of all the SCO motions to compel any more, but I believe this was SCO's last motion to compel -- which SCO lost without prejudice to refile within 30 days, after it finished reviewing some IBM materials and pruned out of their motion all the blah blah blah. That's my translation of what the judge told them to do. However, instead the parties later stipulated to some discovery matters, one of them being what topics the parties could bring motions to compel about, and so all the shouting in SCO's discovery motion to compel ended up quietly fading away.

It's kind of fun to compare the transcript of the hearing with the final order. Here's what Judge Wells ordered from the bench regarding the motion to compel discovery, and notice how the two attorneys, thinking on their feet, try to get the details the way they are most beneficial to their respective sides:

THE COURT: I'm going to rule now on the motion to compel. And I'm going to deny SCO's motion to compel at this time. I'm going to deny that without prejudice. And I'm going to allow you 30 days in which to file a renewed motion. Should you file such a renewed motion, however, it must clearly and narrowly define those areas which are not addressed in the documents that you've been presented and which cannot be resolved through some additional meet-and-confer requirements. All right?

MR. SHAUGHNESSY: So then will the motion then be limited to this production in January and the deficiencies --

THE COURT: Yes. Yes. Are there any other questions that need to be posed or should be posed and answers given, or is that clear?

MR. SHAUGHNESSY: I think that's clear. Would you like me to prepare an order on that, as well?

THE COURT: Yes. Yes.

MR. JAMES: I'm sorry, Your Honor. If you don't mind, I want to make sure that I'm absolutely clear because I don't want to have any quarreling, I suppose, with opposing counsel about issues that may come up as far as relating to the January production. And that is, there are a number of issues that we have already identified in our motion but that I wasn't able to clearly articulate whether they're satisfied or not because I haven't been able to -- you know, we haven't completed our review. We'll be able to raise those issues, won't we, if we can narrowly address them?

THE COURT: Yes.

MR. JAMES: Okay. Thank you.

THE COURT: Is that understood?

MR. SHAUGHNESSY: So then it's whatever items that are in the motion, the currently pending motion, if any?

THE COURT: Yes.

MR. SHAUGHNESSY: And then deficiencies in the January production?

MR. JAMES: That's my understanding.

THE COURT: Yes. And that's what I intended.

MR. SHAUGHNESSY: And I expect the Court would require the parties to meet and confer, obviously before that motion is filed.

THE COURT: Yes. I'm going to require that.

As you can see in the written order, those details appear. Would they have, if the lawyers had not spoken up? Probably not. The need to meet and confer before filing a motion is normal, but IBM made sure it was specifically ordered. That tells me that SCO hasn't been doing that, and if you look at the order on the motion regarding deposing third parties, that is one of the things the Court said SCO failed to do. Here's the transcript, so you can compare:

THE COURT: Counsel, I'm prepared to rule in this matter. Looking at this case individually on its particular set of facts, I find that the subpoenas on January 26th gave inadequate notice and also gave inadequate time for the deponents to prepare.

I find that the subpoenas of January 12th were defective both in substance and service and would have constituted, even if not technically defective, would have also likely provided inadequate notice in time to prepare.

I also note and find that the parties failed to comply -- or SCO failed to comply with the meet-and-confer requirement of the Northern District of California.

And finally, I find and will deny the motion of SCO to allow these additional depositions, finding that the requirements of the October 12th order were clear and could not -- or were not the subject of unilateral decisions to violate. It was clear. It said, to the extent that such depositions could not be completed within that period of time, they must be foregone.

And SCO should have noticed them up earlier and at minimum overseen the preparation of those subpoenas such that the argument would be that they were effective on January 12th. Nonetheless, they weren't.

So that would be the ruling. And, Mr. Shaughnessy, if you'll prepare an order as to that decision.

MR. SHAUGHNESSY: I will, Your Honor. Thank you.

If you compare the order with the hearing transcript, you'll notice that one part of her decision from the bench didn't make it into the written order: "...I find that the subpoenas on January 26th gave inadequate notice and also gave inadequate time for the deponents to prepare." I don't know why it isn't in there. I believe it should be. Perhaps there will be a corrected Order in time. Things like that happen. It's not a big deal, really, because the transcript is there, so the record is clear, but it's better to have it in the order, so the Pacer record is clear. Since the written order states that the notice on January 12th wasn't early enough, a subpoena on the 26th obviously wouldn't be more timely. So it's a mistake without consequence, probably. But for folks coming along years from now, who don't have the transcript, since hearing transcripts are not filed on Pacer, it could be confusing if not corrected.

I can't help but smile to myself that it probably reflects the IBM confidence that of all the orders in this litigation, this is the one least likely to be appealed by SCO, ever, ever, ever. It's been embarrassing enough already, and in fact, this order is a rebuke.

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

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.

____________________________

ORDER

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

____________________________

On February 24, 2005, Plaintiff/Counterclaim Defendant The SCO Group, Inc.'s ("SCO) Motion for Leave to Take Certain Prospective Depositions (Docket No. 607) and Motion to Compel (Docket No. 592) came on for hearing before this Court. Brent Hatch and Mark James appeared for SCO. Todd Shaughnessy and Curtis Drake appeared for Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM"). Based upon the memoranda, exhibits, and the arguments of counsel, and good cause appearing, the Court hereby orders as follows:

A. SCO's Motion for Leave to Take Certain Prospective Depositions (Docket No. 607):

With regard to SCO's Motion for Leave to Take Certain Prospective Depositions: the Court finds as follows:

1. The subpoenas that SCO served on Intel, Oracle, and The Open Group on or about January 12, 2006, were defective both in substance and service and even if not technically defective would have also likely provided inadequate notice in time to prepare for those depositions;

2. SCO failed to comply with the meet-and-confer requirement of the local rules of the Federal District Court for the Northern District of California, the court from which two of the subpoenas were issued;

3. The requirements of the Court's October 12, 2005, Order were clear and not subject to unilateral decisions to violate;

4. SCO should have noticed these depositions earlier and, at a minimum, overseen the preparation of those subpoenas such that the argument would be they were effective on January 12, 2006, which they were not.

Accordingly, it is HEREBY ORDERED that SCO's motion is DENIED.

B. SCO's Motion to Compel (Docket No. 592):

With regard to SCO's Motion Compel, Docket No. 592, it is HEREBY ORDERED that SCO's motion is DENIED, WITHOUT PREJUDICE. SCO is granted leave to file a new motion to compel no later than March 26, 2006. Any such motion shall:

1. Be filed only after meeting and conferring with IBM in good faith;

2. Be limited to (a) deficiencies in the documents produced by IBM during the latter half of January 2006, which SCO contends it had not had an adequate opportunity to review, and (b) those items identified in the Motion to Compel (Docket No. 592) which SCO determines remain outstanding after review of IBM's January production; and

2

3. Provide a much more detailed and concise statement of what SCO seeks to compel from IBM.

DATED this 26th day of April, 2006.

BY THE COURT

___[Signature]____
Brooke C. Wells
U.S. Magistrate Judge

APPROVED AS TO FORM:

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

By ____/s/ Mark F. James____
Counsel for Plaintiff/Counterclaim-Defendant

3

CERTIFICATE OF SERVICE

I hereby certify that on the 25th 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/ Todd M. Shaughnessy

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