We certainly have enough to read. The court has agreed to review IBM's allegedly privileged documents, as SCO requested in its Motion for In Camera Review of Allegedly Privileged Documents, as expected (you'll recall IBM didn't oppose that -- in fact, it delivered the documents itself to the court) but Magistrate Judge Brooke Wells strongly denied SCO's laughable request to look over her shoulder in real time while the review is going on (which IBM did oppose), ruling:
In the court's view this would destroy the purpose of an in camera review as is currently envisioned by the Federal Rules.
That's legalese for: Don't be silly. You know you can't do that. Courts follow the Federal Rules. Don't you?
What does she mean, seriously? She means that under the Federal Rules, if a party gets hold of a document and then is told it's privileged, it must return it immediately and not look at it again. Period. If it wants to see the document again and use it, claiming it is not privileged, it must ask the court to review and rule on whether the document is in fact privileged. If it is, the request will be denied. If not, they will be allowed to view and use them. You'll recall SCO wants to redepose some folks, using the documents. To let SCO look at them prior to that decision would make the process of review moot, would it not?
A confirmed cynic might suspect that SCO already secretly made Xerox copies of all those documents despite the rules and is putting everyone through this motion's request to pretend otherwise. Of course, cynicism isn't nice, so I try never to turn into a cynic, myself, so I'm going to assume that this time SCO is following the Federal Rules to the letter, despite a request to the court to go in the opposite direction. The only way we'll be able to tell is if they get to redepose people and things slip out.
Here's the Order [PDF], so you can read it for yourself. There is also a filing by SCO about serving without using the digital method, Notice of Conventional Filing of SCO's Memorandum in Opposition to Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final Disclosures and Supporting Exhibit [PDF], so I hope you're a speed reader, because more is coming our way. It filed the memo conventionally because it's too large to file electronically, larger than 2 MBs.
UPDATE: SCO filed a Reply Memorandum in Further Support of SCO's Motion for In Camera Review of Allegedly Privileged Documents [PDF] today. It appears that unless the judge is a speed reader herself, she ruled prior to reading it. She already knows the Federal rules, and she's allowed to do that. It's happened before. SCO did a lot of research for this memo, and it raises a new issue, because it is mad that IBM submitted two declarations as to their documents' privileged status without providing SCO with a copy or at least a redacted copy. That deprives SCO, according to SCO, of the opportunity to argue as to the privilege, so SCO does so in the Reply Memorandum. Raising a new issue in a Reply Memorandum deprives IBM of the opportunity to speak on the matter, of couse, but SCO only keeps track of "offenses" to itself, according to its unique world view.
There are three exhibits. Exhibit A is sealed; Exhibit B [PDF] and Exhibit C are available, both of which relate to an older case where there was a hearing scheduled regarding allegedly privileged documents, which was then cancelled, and the party claiming privilege was ordered to provide the court with declarations for in camera review, and redacted copies to the other side, along with a list of all exhibits. What SCO doesn't point out is that this was a special order in a particular circumstance where there was already apparently a pitbull fight going on over certain documents, and in that case, it appears the court didn't trust the party claiming privilege. Here we seem to have the opposite. But SCO wants these documents badly. It wants IBM to have to give it redacted declarations so it can argue as to the privilege. It closes like this:
SCO does not believe that the documents in question here were or remotely suggest that they were created for the "primary purpose" of seeking legal advice or services. SCO requests that the Court reject IBM's privilege claim. SCO also requests the opportunity to review the declarations IBM has submitted ex parte to address their content and whether they support IBM's claim of privilege.
I gather SCO doesn't trust the judge to get it right. It certainly doesn't trust IBM. It wants to be able to guide Judge Wells' judgment, so SCO can argue each point. Being SCO, it's possible we haven't heard the end of this, despite Judge Wells' order today.
IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH
THE SCO GROUP INC.
INTERNATIONAL BUSINESS MACHINES CORP.
Case No. 2:03cv00294 DAK
ORDER GRANTING IN PART SCO'S
MOTION FOR IN CAMERA REVIEW
JUDGE DALE A. KIMBALL
MAGISTRATE JUDGE BROOKE C. WELLS
This matter is before the court on Plaintfif/Counterclaim Defendant
The SCO Group's (SCO) Motion For In Camera Review of Allegedly Privileged
International Business Machines Corporation's (IBM)
has submitted the documents at issue for in camera review.
Accordingly, SCO's motion is GRANTED in PART.
The court is reviewing the documents and will inform the parties in due
course whether the court finds the documents at issue privileged.
The court however, DENIES SCO's request for a contemporaneous review of the documents. In the court's view this would destroy the purpose of an in camera review as is currently envisioned by the Federal Rules.
IT IS SO ORDERED.
DATED this 20th day of June, 2006.
BY THE COURT:
BROOKE C. WELLS
United States Magistrate Judge
1 Docket no. 678