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To read comments to this article, go here
Two of SCO's 90-Day Reports to the Autozone Judge
Friday, April 28 2006 @ 05:54 AM EDT

SCO's most recent progress report [PDF] to the Autozone judge is on Pacer now, covering the time since their January 17th letter [PDF], both of which we now have as text, thanks to Steve Martin. During that time period between the two letters, we had the entertainment about the subpoenas sent to Intel, Oracle and The Open Group in SCO v. IBM, but SCO doesn't even mention their motion asking to depose the three, which means they gloss over their rebuke at the hands of the magistrate judge in her order and at the February 24, 2006 hearing.

You'd think they'd at least have a one liner, like, "We filed a motion and we lost." Gloss over? Did I say gloss over the rebuke? They don't even mention the motion, let alone the rebuke.

And thus, the Intel shenanigans have disappeared from SCO's history. Poof. No bad news for you, Judge Jones. I'm thinking maybe they didn't want to mention it, because if they told about that, they'd have to mention that Intel filed a document with the court, Nonparty Intel's Response to SCO's Motion For Leave to Take Certain Prospective Depositions, that said SCO's motion said things that were "untrue" and "unfair." And that might mean something to the Judge in AutoZone. It certainly ought to. AutoZone has already informed this judge about what it described as "material misrepresentations" by SCO in the AutoZone case. [Cf. AutoZone's Response to SCO's Discovery Report and AutoZone's Exhibit A: Additional Missatements]

Well. Maybe AutoZone's letter when it is filed will fill in the blanks. And there's always Groklaw. Please feel free to click on the links to find out what really happened at that hearing.

SCO's earlier letter to the same judge back in January purports to describe what happened at the December 20th hearing in SCO v IBM:

On December 20, 2005, after the parties had re-briefed SCO's Motion to Compel of December 23, 2004, the Court found that SCO had correctly read past Court orders and directed IBM to produce Linux-related materials from the files of two additional IBM senior executives. On the same date, the Court granted IBM's motion to compel SCO to produce attorney-client privileged documents of SCO's predecessors-in-interest.

Well, not exactly. Here's what she actually said that day at the hearing in her ruling on SCO's motion and here's the Order:

With regard to SCO's New Renewed Motion Compel, Docket No. 537, the Court finds as follows:

1. IBM has acted in good faith in terms of its reasonable search for documents as they relate to Mr. Palmisano and Mr. Wladawsky-Berger; and
2. The Court's March 3, 2004, Order Regarding SCO's Motion to Compel Discovery and IBM's Motion to Compel Discovery should have explicitly indicated that IBM undertake a reasonable search for responsive documents from the files of Paul Horn and Nick Bowen;
3. Accordingly, SCO's motion is granted in part and denied in part, as follows:

IT IS HEREBY ORDERED that IBM provide declarations from Paul Horn and Nick Bowen regarding the nature of the search that has been conducted with respect to the documents in their files, and that such declarations be filed no later than January 6, 2006;

IT IS FURTHER ORDERED that SCO may take the depositions of Messrs. Horn and Bowen on this topic, and such depositions shall not count against the 50 depositions SCO is permitted under the Court's prior orders; and

IT IS FURTHER ORDERED that except as set forth above, SCO's New Renewed Motion to Compel is DENIED

Do you see IBM being ordered to produce further Linux materials from two executives? No, you don't, only declarations. If you read the transcript of the hearing, you'll discover why: IBM had already turned over all the materials they had, so there was nothing for the court to order turned over. Instead she asked for declarations that they had already turned over everything they had. There is quite a difference:

THE COURT: Going back on the record now. I first want to make a finding, and the finding that I want to make is that IBM has acted in good faith in terms of its reasonable search for documents as they relate to Mr. Palmisano and Mr. Wladawsky-Berger. I have looked back over the notation from the February 6, 2004, hearing transcript, wherein SCO's counsel said: We have had specific conversations with Christine Arena at Cravath asking specifically for Mr. Palmisano stuff, for Mr. Wladawsky-Berger, Paul Horn, Nick Bowen, those people's information. That is followed by the March 3rd order in which I say as follows: IBM is to provide documents and materials generated by and in possession of the employees that have been and that are currently involved in the Linux project. IBM is to include materials and documents from executives including, inter alia, Sam Palmisano and Irving Wladawsky-Berger. Such materials and documents are to include any reports, materials or documents from IBM's ambitious Linux strategy. Looking at those two, or the notation from the transcript and the order, I believe that the order should more have explicitly indicated that IBM undertake the search as to Paul Horn and Nick Bowen. And to the extent that those are still requested by SCO, they will be required. Mr. Shaughnessy?

MR. SHAUGHNESSY: Maybe I can help, Your Honor. We produced documents from both of those individuals.

THE COURT: All right. Have affidavits been provided?

MR. SHAUGHNESSY: We have not provided affidavits.

THE COURT: All right. Then if they have been provided, then you will be required to produce affidavits indicating the nature of the reasonable search that has been conducted with regard to those two. With that having been said, I suppose that the conclusion is that SCO's motion is granted in part and denied in part in the respect that there will not be further requirements beyond those individuals that are listed in the February 4th request.

Do you see any wording about SCO interpreting the court's orders correctly in the Order? No, you don't find it in the Order itself, so it really wouldn't be accurate to say that was what the court found. She did say something like that at the hearing in the very beginning:

THE COURT: All right. Let's go on to the second motion, and that relates to SCO's renewed motion to compel discovery. Now, let me indicate something at the beginning that I think may serve or I hope will serve to focus your arguments. SCO's interpretation of my previous order in this matter was correct, and I think that IBM has read perhaps that order too narrowly. And it was my intention that SCO be allowed to withdraw the motion that was pending at the time related to the documents that were requested from IBM's upper management and to refile that motion or renew it based upon what had been delivered to them in the interim. So I don't think we need to argue about the meaning of the order. What we need to talk about now is what it is that is requested and what is allowable. All right?

MR. NORMAND: Thank you, Your Honor. For my own purposes, you were clarifying your October order from this year; is that right?

THE COURT: That's correct.

MR. NORMAND: In which case, Your Honor, I'm going to focus on the March 2004 order.

So it was one order they interpreted correctly, the October one, not "orders." The hearing began with Judge Wells saying that SCO had interpreted the October order correctly, but by the end of the hearing, after taking a break to actually reread it, she ruled that the order itself wasn't clear. At that point, she started to order what SCO says she ordered, but then, after IBM's attorney informed her that the materials on those two individuals had already been turned over, she changed the order and asked for affidavits instead, which isn't at all what SCO wrote in its letter to the AutoZone judge, is it?

You have to watch these guys like a hawk. Letter after letter, article after article, I can do this. Another thing that may have skipped their mind that I believe the judge would want to have clarified. SCO wrote in its January 17th letter, "the Court granted IBM's motion to compel SCO to produce attorney-client privileged documents of SCO's predecessors-in-interest." That isn't accurate either. Here's that part of the order:

A. IBM's Motion to Compel Production of Documents from SCO's Privilege Log (Docket No. 514):

With regard to IBM's Motion to Compel the Production of Documents from SCO's Privilege Log, the Court finds as follows:

1. In the Novell to Santa Cruz transaction, Novell did not transfer to Santa Cruz the entirety of Novell's business;
2. In the Santa Cruz to Caldera transaction, Santa Cruz did not transfer to Caldera the entirety of Santa Cruz's business;
3. The declaration of Mr. Broderick is insufficient, by itself, to establish continuity of the business, and Mr. Broderick's declaration is contrary to statements made by him during his deposition;
4. SCO has not carried its burden of showing a sufficient continuity of the business;

So, they aren't accurately to be described as SCO's predecessors in interest, I wouldn't think, without clarification. I think the AutoZone judge might like to know that detail, since it could have a bearing on any copyright infringement claim.

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

(Curran & Parry letterhead)

April 17, 2006

VIA ELECTRONIC FILING

The Honorable Robert C. Jones
United States District Judge
District of Nevada
[address]

Re: The SCO Group, Inc. v. AutoZone, Inc., CV-S-04-0237-RCJ-LRL

Dear Judge Jones:

Pursuant to this Court's August 6, 2004 Order, The SCO Group, Inc. ("SCO") respectfully submits this 90-day status report to apprise the Court of events that have transpired since our last update (on January 17, 2006) in certain other actions.

1. The SCO Group, Inc. v. International Business Machines Corporation, Case No. 2:03CV0294 DAK (D. Utah)

SCO's Disclosure of Material Misused by IBM

On February 13, 2006, in response to SCO's December 22 Disclosure of Material Misused by IBM (which identified 293 technology disclosures made by IBM in violation of SCO's rights), IBM filed a motion to limit SCO's claims related to misused material to the ninety-three disclosures that IBM believes SCO identified with sufficient specificity.

On April 4, IBM submitted its reply brief, supported by the declaration of an expert. On April 10, SCO moved for leave to file its own expert declaration, and IBM filed an opposition brief on April 12. At the hearing on April 14 on the underlying motion to limit SCO's claims, the Court granted SCO leave to file its declaration, ruled that IBM could supplement its papers with a rebuttal expert declaration within ten days, and took the motion under advisement.

Discovery

On February 24, 2006, the Court denied SCO's December 29 motion to compel certain discovery without prejudice to renew the motion after reviewing documents produced by IBM while the motion was pending.

On March 17, 2006, the parties submitted their Stipulation Regarding Discovery. Among other things, they agreed that, with the exception of certain specified depositions, all fact discovery closed on that date; subject to certain mutual representations, there were no more discovery disputes between them; and with certain possible exceptions, they would not bring motions to compel.

1

2. The SCO Group, Inc. v. Novell, Inc., Case No. 2:04CV00139 (D. Utah)

On January 31, 2006, based on a stipulation by the parties, the Court granted SCO's motion for leave to file its Second Amended Complaint. SCO filed the complaint on February 3, and Novell filed its Answer and Counterclaims on April 10.

On April 10, Novell also filed a Motion to Stay Claims Raising Issues Subject to Arbitration, contending that SCO's claims are subject to arbitration pursuant to provisions in certain 2002 UnitedLinux agreements among SCO, SuSE Linux (a wholly owned subsidiary of Novell since 2004), and other Linux distributors. On the same date, Novell filed a Request for Arbitration with the ICC International Court of Arbitration in Paris.

On April 10, Novell also filed its Motion for a More Definite Statement of SCO's Unfair Competition Cause of Action.

3. Red Hat, Inc. v. The SCO Group, Inc., Case No. 03-772-SLR (D. Del)

As Your Honor knows, the Court in the Red Hat case has stayed that action sua sponte. Since our last letter to this Court, the parties in that case have submitted additional 90-day progress reports to the Court.

Respectfully submitted,
CURRAN & PARRY
(signature)
Stanley W. Parry, Esq.

SWP:lcd

cc: James Pisanelli, Esq. (via hand-delivery)
David S. Stone, Esq. (via facsimile)

2


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

(Curran & Parry letterhead)

January 17, 2006

VIA ELECTRONIC FILING
and HAND-DELIVERY

The Honorable Robert C. Jones
United States District Judge
District of Nevada
[address]

Re: The SCO Group, Inc. v. AutoZone, Inc., CV-S-04-0237-RCJ-LRL

Dear Judge Jones:

Pursuant to this Court's August 6, 2004 Order, The SCO Group, Inc. ("SCO") respectfully submits this 90-day status report to apprise the Court of events that have transpired since our last update (on October 19, 2006) in certain other actions.

1. The SCO Group, Inc. v. International Business Machines Corporation, Case No. 2:03CV0294 DAK (D. Utah)

SCO's Disclosure of Material Misused by IBM

On December 22, 2005, pursuant to the Court's Pre-Trial Management Order of July 1, 2005, SCO submitted its Disclosure of Material Misused by IBM, specifically identifying (from an even larger universe of code and related materials) 293 separate technology disclosures made by IBM in violation of SCO's contractual and other rights). The number and substance of those disclosures reflects the pervasive extent and sustained degree to which IBM disclosed methods, concepts, and literal code from protected UNIX and UNIX-derived technologies.

Discovery Motions

On October 27, 2005, SCO objected to the Magistrate Court's order of October 7 insofar as it denied SCO's Renewed Motion to Compel dated September 6, 2005. On December 16, the District Court affirmed the order.

On December 20, 2005, after the parties had re-briefed SCO's Motion to Compel of December 23, 2004, the Court found that SCO had correctly read past Court orders and directed

IBM to produce Linux-related materials from the files of two additional IBM senior executives. On the same date, the Court granted IBM's motion to compel SCO to produce attorney-client privileged documents of SCO's predecessors-in-interest.

On December 29, 2005, SCO filed its Motion to Compel certain discovery and 30(b)(6) witnesses, including numerous categories of damages-related materials, documents, concerning Project Monterey, documents related to IBM's ongoing Linux activities, and all versions of AIX from 1985 to 1990.

2. The SCO Group, Inc. v. Novell, Inc., Case No. 2:04CV00139 (D. Utah)

On December 30, 2005, SCO moved the Court for leave to file a Second Amended Complaint in which SCO re-asserts the slander-of-title claim in its original Complaint and asserts four additional causes of action covering essentially the same subject matter as Novell's seven counterclaims.

3. Red Hat, Inc. v. The SCO Group, Inc., Case No. 03-772-SLR (D. Del)

As Your Honor knows, the Court in the Red Hat case has stayed that action sua sponte. Since our last letter to this Court, the parties in that case have submitted additional 90-day progress reports to the Court.

Respectfully submitted,
CURRAN & PARRY
(signature)
Stanley W. Parry, Esq.

SWP:lcd

cc: James Pisanelli, Esq. (via hand-delivery)
David S. Stone, Esq. (via facsimile)

2


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