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SCO Wants Some IBM Privileged Docs & to Re-Depose Some Folks
Saturday, May 06 2006 @ 12:09 AM EDT

SCO has filed a motion with gazoodles of exhibits basically asking to look at some documents of IBM's that IBM claims are privileged, and asking the court to declare that the documents are not privileged and then SCO wants to re-depose some people to ask them about the documents:

SCO wants to see some documents again that IBM claims are privileged that came up in some depositions and were withdrawn. When SCO first threatened to file a motion about the documents, IBM threatened them, telling SCO that SCO couldn't file a motion to compel the documents on any basis other than based on the information about such documents provided in a privilege log, and if they did, IBM would charge SCO with unethical conduct. So SCO started asking and asking for a privilege log particularly with regard to a few documents it says it wants its experts to be able to review.

You can read all this in Exhibit G. I'm not positive if we can rely upon SCO's description of events altogether, though, because in an email to IBM's Todd Shaughnessy, Normand says this:

If IBM continues to decline to produce a log on those documents, as it has refused to do for months, then SCO will file a motion and leave it to the Court to resolve whatever ethics issues get raised.

But scroll down. Just below you can see that just the day before, IBM had informed SCO that they should have it by the end of the week:


I believe (though I'm not positive) that the plan is to get you a fully-updated privilege log by the end of the week.

When can we expect SCO's updated log?


Does that match what Normand wrote, that IBM was declining to provide a privilege log? I can't believe SCO thinks this exchange will help them. For that matter, a lot of the exhibits could have been placed in one longer exhibit, because they are duplicative. Maybe they are trying for an effect.

What's really going on? Look at Exhibit H, where IBM tells SCO that they should be exchanging privilege logs on the same day, but that so far, as of the day after Normand's threat to file a motion and let the ethics chips fall where they may, IBM had repeatedly asked when SCO was planning to do its half of the bargain, and at that point, SCO hadn't even said it ever would provide such a log. Shaughnessy:


For at least as long as you have been requesting this information from IBM, I have been clearly, consistently, and repeatedly requesting from you, as part of those discussions, a date by which we can expect to receive SCO's supplemental log. To date, you have not even confirmed that SCO will be providing one, let alone when. We believe these logs should be exchanged on the same date, as previously ordered by the Court. SCO, however, apparently believes that IBM must provide a log, but SCO need not do so.


So there is some jockeying going on. To which SCO says, but we only demanded a limited log, not the larger one we need to each turn over later:

Todd --

I thought I had been clear in our discussions about the plain distinction between SCO's request for the limited log on the documents identified in the mid-January letter versus the much, much larger supplemental log SCO has been preparing for many weeks (like the much, much larger supplemental log IBM has been preparing during that time). I had informed you that, pursuant to IBM's own view of SCO's obligations, SCO wanted the limited log in order to pursue a motion on re-called documents that I had informed you SCO had already concluded were not privileged. In contrast, I did not understand IBM to have concluded that it would move against any SCO documents on the grounds that they were not privileged -- not that IBM had waived any rights to do so, but that IBM had no present intent to do so. In addition, as I thought I had said to you during one of our calls, SCO has long been preparing and will produce its supplemental privilege log next week, and has never suggested that IBM has waived any rights to pursue the documents identified in the privilege log. Regards,


After that comes a silence (at least in email) until March 27, when Normand says he knows IBM was having technical problems with the log, but when would they be producing it? And IBM immediately says that SCO will have it on Wednesday.

If you look in SCO's Memorandum in Support on page 5, you find out that in fact the privilege log was turned over on March 29. But SCO could only find some of the documents it remembered on that list. So, working from the log and from memory, SCO sent IBM a list of documents it wanted that it believes are not privileged, which list you can see in the Memo on pages 6 and 7 and in Exhibit K. Normand asks if IBM is still asserting privilege on those documents and if so why.

Normand sends the email to Amy Sorenson also, saying it needs an "immediate" response, to which she says she doubts that an immediate response is possible. On May 2, according to the Memorandum, SCO tells IBM that it felt it had exhausted its required obligations to meet and confer and would file a motion on May 5. Again, according to SCO, IBM tells SCO they would have it ready shortly and to just wait.

On May 4, Shaughnessy writes to Normand saying that SCO will have the log on the next day, but on Monday, it would like to telephone conference to talk about "outstanding SCO discovery issues." Next, Exhibit N is the email from Gregory Lembrich at Cravath with the list of entries from the privilege log that SCO was asking for. At which point, SCO filed the motion.

What it wants from the Court is an opportunity to look at the documents again in camera, and if the Court agrees with SCO that the documents are not privileged, SCO wants to be able to re-depose the appropriate people. So... they want to see privileged materials (Memorandum, p. 9), whether or not they can ultimately use them? I have a better idea: how about the Court reviews the documents without SCO peeking over its shoulder and decides, and if they are not privileged, *then* SCO gets to see them. No? Too fair? I can't evaluate what is going on, truthfully, because it is about depositions we know nothing about and documents we haven't seen, but I am sure, when IBM files its side of the story, we will get a clearer picture.

Two of the documents SCO wants to see are about "the Journaled File System", and that is a totally losing claim for SCO, from all I know, no matter what it tries and no matter what documents it looks at. Frankly, reading the emails is a little like listening to a divorcing couple fight about something they are both livid about and you can't understand anybody fighting over. That doesn't mean this isn't important. It just means I don't see yet why they are fighting so hard here, but as it plays out, we'll find out, I'm sure.

What I love about SCO's M.O. is that by filing so many motions, we get a lot more information about what is going on than we would in a normal lawsuit. This is the kind of dispute you normally don't ever hear about on the outside. But SCO, being SCO, just had to file another motion, and with it we are given a window into current events.

One thing is for sure. I don't think these lawyers can ever again tell Judge Wells that they have a great working relationship. Not unless they cross their fingers behind their backs, that is. They seem to really despise each other, or at least so it seems to me.

The Motion itself is a bit odd. It only opens with Adobe, or at for me it only will open if I use Adobe. So if you have trouble, I can't fix it. If you can, let me know please. Also, if anyone is able to do the Memorandum as text or HTML, that would be appreciated. Just leave a comment so others know not to duplicate effort and then email it to me. Thank you.

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