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SCO's Experts Reports
Friday, July 28 2006 @ 03:27 PM EDT

SCO has now filed its experts' reports, or more exactly it has filed a Certificate of Service [PDF], showing that it has served them on IBM on July 17, the very last day. Here's the docket wording:
CERTIFICATE OF SERVICE by SCO Group (1) Report of Dr. Thomas A. Cargill In Response to the Report and Declaration of Dr. Brian W. Kernigham; (2) Response of Dr. Jeffrey Leitzinger to the Report and Declaration of Professor J.R. Kearl; (3) Response to Report and Declaration of Professor J.R. Kearl by Christine A. Botosan, CA, Ph.D; and (4) Rebuttal to the Report and Declaration of Professor J.R. Kearl by Gary Pisano, Ph.D (Hatch, Brent)

Compare that with IBM's list. Really.

If you look at the schedule on our IBM Timeline page, you'll see where we are in the stream of time. These are opposing experts reports, as opposed to the initial ones. So our next deadline is rebuttal expert reports on August 28, assuming no more changes in the schedule. As you can see there have been several changes already.

We are looking at the experts that will or at least can testify at trial. As a general rule, you can't have an expert testify unless he has submitted a written report. The idea is that there should be no surprises at trial. Both sides should know what the other side is going to present. That, of course, is precisely why it's such a big deal that SCO didn't, according to Judge Brooke Wells' most recent Order, reveal its evidence in a timely manner. TV shows notwithstanding, there really aren't supposed to be Perry Mason moments at trial. The reason is simple. You might win by ambush, as opposed to deserving to win, because the other side has no chance to prepare properly. The courts are interested in getting it right.

Here is the Federal rule that applies, Rule 26:

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).

As you can see, you have to provide a whole lot more than just name, rank and serial number. Whoever has the burden of proof on a matter has the obligation to submit the initial expert report, and then the other side submits opposing expert reports. That is what is happening now. So with all those pointers, even though we can't yet read the experts' reports, you at least can figure out in general what is going on in the case in the shadows, so to speak.

Speaking of shadows, you can have experts help you prepare for trial that you don't expect to ever use at trial. Those you don't have to tell the other side about. I guess that's the bucket the "MIT" deep divers fell into.


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