IBM provides the court with the documents it asserts are privileged that SCO would like to have, although it says it isn't required to. It is doing so because it wants to speed things along.

You'll recall that SCO in its motion and the memorandum in support [PDF] stated that the materials it wants didn't seem to be "written at the direction of an attorney or in anticipation of litigation". IBM says that they were indeed prepared for attorneys. "The attorney-client privilege protects communications made by corporate employees to counsel for the corporation acting as such, at the direction of corporate superiors in order to secure legal advice from counsel." That's the case here, IBM is stating. It also provides "for in camera review the declarations of Sharon Dobbs, Esq. and Mark Walker, Esq., describing the documents in question and substantiating IBM's claim of privilege."

IBM then concludes:

As demonstrated by the documents themselves and the declarations submitted herewith, each of the three documents (i) was prepared at the request and under the direction of counsel for IBM; (ii) was prepared for counsel's use in giving legal advice to IBM or incorporated counsel's legal advice and opinions; (iii) was not used to render business advice; and (iv) was kept confidential within IBM.

Further, SCO's suggestion that it should be permitted to review the documents at issue at the same time the Court reviews them in camera is meritless. SCO provides no authority for this proposition. The entire purpose of in camera review is to determine whether an opposing party is entitled to review the documents in the first place. Allowing an opposing party to review the documents in question before the Court decides the issue would defeat the entire purpose of in camera review.

It also tells the court in a footnote that to date, although it has repeatedly requested it, SCO has failed to provide IBM with its privilege log, despite whining to the court about IBM allegedly being slow to provide its log. And in footnote 4, IBM cites a case that indicates the court can refuse to even do the in camera review, that it can rely upon the declarations of the attorneys that the materials are protectable by the attorney-client privilege. I'm sure that's a hint as to what it would prefer.

It seems that SCO told the court something that was not true. When it asked to do depositions again, if the review by the court revealed the materials were not privileged, SCO represented to the court that two of the three documents in question, about the Journaled File System, were claimed as privileged by IBM during a Rule 30(b)(6) deposition. IBM refutes that assertion:

Finally, SCO's suggestion that that the Court should grant leave to take further depositions on these documents is meritless as well. The two documents concerning the Journaled File System were not, as SCO claims, withdrawn as privileged during a Rule 30(b)(6) deposition: They were identified as privileged during the deposition of William Baker, a third party witness who was not at the time of his deposition nor currently an IBM employee.

Rule 30(b)(6) says that a party can subpoena a corporation or other entity, and the corporation can pick an executive or board member or whatever, whoever is best able to answer the questions, to show up to testify on behalf of the corporation on whatever matters the subpoena sets out. Obviously, someone who is not an employee of IBM would find it hard to fill those shoes more effectively than an officer or executive of the company. Could it be an honest mistake? I suppose. But the first thing that normally happens at a deposition is the person is asked his name and position. And after a deposition, the attorneys normally get transcripts. The Rule does say it can be "one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf," so maybe SCO thought Mr. Baker was testifying on behalf of IBM. But that's a pretty big gaffe. Why didn't it check that detail more carefully? I have no idea. This whole litigation is a mystery to me. And so are the details.

I also don't know who Mr. Baker is. It's the first time his name comes up, that I recall. Wikipedia lists quite a few William Bakers, I doubt it's any of the ones on that list, actually, so we'll just have to be patient and find out down the road who this Mr. Baker is. Maybe this is he? IBM's wording makes me believe he used to be an employee. But I don't know, because I wasn't at the deposition. That's my excuse. [ Update: A reader suggests this Mr. Baker may be the one.]

I'm thinking if SCO keeps this up, it's going to lose its reputation as a truth-teller. Joke. Joke. I think I may safely state that there is very little danger of that happening.

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

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

1

IBM respectfully submits this memorandum in opposition to SCO's motion for in camera review of privileged documents.¹

Argument

SCO moves to compel IBM to submit in camera three documents that IBM recalled from its production of documents because the documents are protected by the attorney-client privilege.² Although IBM does not believe that a motion for in camera review requires a party to submit the documents sought to the Court for review, in the interest of expediting the resolution of the core issue of whether the documents are in fact privileged, IBM is submitting the documents at issue directly to the Court for in camera review. In addition, IBM is submitting for in camera review the declarations of Sharon Dobbs, Esq. and Mark Walker, Esq., describing the documents in question and substantiating IBM's claim of privilege.³

The attorney-client privilege protects communications made by corporate employees to counsel for the corporation acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Upjohn Co. V. United States, 449 U.S. 383, 394 (1981)

2

(holding that "communications must be protected against compelled disclosure" where the "communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel".) "[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Sprague v. Thorn Americas, Inc., 129 F.3d 1355,1370 (10th Cir. 1997) (quoting Upjohn, 449 U.S. at 390). Documents that are prepared by a non-attorney employee for an in-house attorney's use in giving legal advice to a corporate client are protected by the attorney-client privilege. Motley v. Marathon Oil Co., 71 F.3d 1547, 1550-51 (10th Cir. 1995) (affirming district court's ruling that documents were privileged where in-house attorney declared that they "'were prepared for my use in giving legal advice to the [corporation],' that the memorandum and lists were treated as confidential documents, and that '[he] did not render business advice in the Memorandum and Lists'")(Exhibit A)⁴; see also In re Brand Name Prescription Drugs Antitrust Litigation, No. 94 C 897, 1995 WL 557412 at *1 (N.D. Ill. Sept. 19, 1995) (ruling that document was privileged because it was "prepared at the request of AHP's attorneys for the purpose of enabling counsel to give legal advice")(Exhibit B); Olen Properties Corp. v. Sheldahl, Inc., No. CV 91-6446-WDK, 1994 WL 212135, at *1 (C.D.Cal, April 12, 1994) (holding that documents were privileged where employee "prepared the documents to gather information for BMC's

3

attorneys to assist the attorneys in evaluating compliance with relevant laws and regulations")(Exhibit C).

Based on these settled principles, the documents in question here are protected by the attorney-client privilege. As demonstrated by the documents themselves and the declarations submitted herewith, each of the three documents (i) was prepared at the request and under the direction of counsel for IBM; (ii) was prepared for counsel's use in giving legal advice to IBM or incorporated counsel's legal advice and opinions; (iii) was not used to render business advice; and (iv) was kept confidential within IBM.

Further, SCO's suggestion that it should be permitted to review the documents at issue at the same time the Court reviews them in camera is meritless. SCO provides no authority for this proposition. The entire purpose of in camera review is to determine whether an opposing party is entitled to review the documents in the first place. Kerr v. U. S. Dist. Court for Northern Dist. of California, 426 U.S. 394, 404-05 (1976). Allowing an opposing party to review the documents in question before the Court decides the issue would defeat the entire purpose of in camera review.⁵

4

Conclusion

For all of the foregoing reasons, IBM respectfully requests that the Court find the three documents sought in SCO's motion are privileged, and deny SCO's Motion for In Camera Review.

DATED this 6th day of June, 2006.

SNELL & WILMER L.L.P.
/s/ Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

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

Attorneys for Defendant/Counterclaim-Plaintif
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Jennifer M. Daniels
Alec S. Berman
[address]
[phone]

Attorneys for Defendant/Counterclaim-Plaintif
International Business Machines Corporation

5

CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of June, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system 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

¹ The first seven pages of SCO's memorandum consist of a lengthy recitation of purported facts regarding the privilege logs IBM has provided to SCO in this matter. It is both inaccurate and incomplete, but ultimately irrelevant to any issue before the Court, and we therefore do not undertake to respond here. However, we do note (and the exhibits to SCO's memorandum confirm) that throughout our discussions with counsel for SCO on this issue, we have repeatedly asked SCO when we can expect to receive its privilege log, and we repeatedly have been told it is forthcoming. As of today's date, SCO still has not provided it.

² Paragraph k of the Attorney's Planning Report (Docket Entry # 24) provides that "documents that a party claims as privileged, including all copies made, will be returned immediately without the need to show the production was inadvertent." Consistent with this requirement, SCO does not argue that IBM waived the privilege by inadvertently producing the documents to SCO.

³ Declarations from the authors of the documents can also be obtained if the Court deems them necessary.

⁴ In Motley, the district court did not review the documents in camera, but instead relied on an affidavit of counsel in making its determination that the documents at issue were privileged. Motley, 71 F.3d at 1551. The Tenth Circuit upheld the district court's decision not to review them in camera. Id. at 1551-52.

⁵ Finally, SCO's suggestion that that the Court should grant leave to take further depositions on these documents is meritless as well. The two documents concerning the Journaled File System were not, as SCO claims, withdrawn as privileged during a Rule 30(b)(6) deposition: They were identified as privileged during the deposition of William Baker, a third party witness who was not at the time of his deposition nor currently an IBM employee.