Remember I told you that I thought Judge Wells had ruled on SCO's motion prior to reading SCO's Reply Memorandum [PDF]? Now that she has read it, she has issued a second Order [PDF], granting SCO's new request that it be allowed to see at least redacted versions of the two declarations that IBM attached to its Memorandum in Opposition and to be allowed to present arguments. IBM is to file the declarations also under seal with the court. I told you we hadn't heard the end of the matter.
What does it mean? That SCO raised a new issue in a convincing memo it put a lot of effort into, an issue that no judge could ignore without raising other issues, and in her view, there doesn't seem to be much point in not sharing the declarations with SCO, since SCO already saw the underlying documents by mistake. The declarations are from two attorneys, basically saying, I gather, that the underlying documents were indeed privileged. Usually when there is an in camera review request, the party requesting it has not seen the documents. So she is being pragmatic. It also means *we* don't get to see the declarations, let alone the underlying documents, only the judge and the parties. If SCO wishes to present arguments in support of its motion to try to convince the judge that the underlying documents are not privileged after looking over the declarations, it can, with a deadline of July 7. Time will tell if IBM has anything further to add to this mix. Technically, it has had its say, but SCO did raise a new issue, so the door is a bit ajar. I don't know if IBM cares enough to bother.
But that doesn't mean it doesn't matter. I think it does, because it signals that we're in for a bit of a mini-battle over these allegedly privileged documents, and that means delay, and that's SCO's middle name. I can't tell if that's all SCO cares about or if these documents seem truly important to SCO. It's impossible to weigh those nuances when you can't read the documents.
Of course, that was SCO's argument precisely, which is why its request was granted. It's a valid issue to raise, and once raised, it has to be walked through. That's how the system works. Litigation can be won and lost on such small details, although in this case, SCO seems doomed no matter what it does.
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 RE SCOíS MOTION FOR IN
JUDGE DALE A. KIMBALL
MAGISTRATE JUDGE BROOKE C. WELLS
After considering Plaintfiff/Counterclaim Defendant The SCO Groupís (SCO) Reply Memorandum in support of SCOís Motion For In Camera Review of Allegedly Privileged Documents1 and for good cause shown the court hereby orders the following:
Defendant/Counterclaim-Plaintiff International Business Machines Corporation (IBM) is to provide SCO a copy of the declarations from Sharon Dobbs, Esq. and Mark Walker, Esq by June 30, 2006. Additionally, these declarations are to be filed with the court under seal by that
same date. These declarations may be provided in a redacted form although in the courtís view there does not appear to be much material in the declarations that warrants redaction especially given the fact that SCO has reviewed the underlying documents when IBM allegedly disclosed them by mistake.
After reviewing the declarations SCO may file with the court a reply memoranda in support of its motion if it so chooses by July 7, 2006 following which the court will render a decision on SCOís motion.
IT IS SO ORDERED.
DATED this 22nd day of June, 2006.
BY THE COURT
BROOKE C. WELLS
United States Magistrate Judge
1Docket no. 678.