Attached to the Declaration of David E. Melaugh in Support of Novell's Motion to Stay [PDF] (the Novell motion itself is here ) were several exhibits, including as Exhibit 1 [PDF], SCO's Source Log, which doesn't mean code but rather everything SCO has turned over in discovery to Novell so far. Melaugh's Declaration describes it like this:
Exhibit 1 is a true and correct copy of the SCO Source Log listing documents
SCO has produced to Novell in this litigation. This log was provided to me on Monday, June 12,
2006, by Katherine O’Brien, paralegal for counsel for SCO, via electronic mail.
You can find all the other exhibits here, and now the remarkably determined Steve Martin has done this very lengthy Exhibit 1 as text for us. The thing is, it's too big to put in the usual place so I had to make it a static page, and you can access it here. It's 156 pages long, so I am sure you join me in saying a huge thank you to Steve for doing all that work, and this time we need to thank his angelic wife also, because she not only put up with him taking time to do it, she helped him do it. Thank you both.
The point of the filing was to let the judge compare this list with Exhibit 2 [PDF], the list of what SCO turned over to IBM in February of 2004 in discovery (beginning on page five of the PDF), so that he can see how very similar the two source logs are. In the universe we normally are in, that kind of similarity would never happen, because no two cases are identical. Well. Maybe the RIAA can just churn out templates, but even they have to at least change the names and the particularity of what they have that got them to sue. Normally the claims are different, the companies are different, the counterclaims are different, the employees are different, the facts are different, so the discovery has to reflect those differences. Remember, just as one example, that IBM had to turn over names of employees that worked on AIX and Linux? Such a list would have no bearing in the SCO v. Novell case, not that I can see. There is some overlap in the two litigations, but surely not everything.
Now, as it happens, SCO has to turn over everything from discovery in the IBM case, as per the Attorney's Planning Meeting Report both parties agreed to, so that is what this probably is. But that's Novell's point, that SCO hasn't gone to any real trouble in this litigation as far as discovery goes. Novell is rebutting SCO's argument that there should not be a stay because they are so deep into discovery. In SCO's Memorandum in Opposition to Novell's Motion to Stay [PDF], SCO argued:
First, by virtue of its lengthy and substantial participation in this litigation, including its numerous requests for and receipt of substantial discovery, Novell has waived any purported right to its requested stay.
Novell is showing that all SCO seems to have done is scoop up whatever they did for IBM two years ago and hand it to Novell, so while it may be substantial, SCO hardly had to break a sweat to turn it over. It certainly isn't *everything* SCO has handed over in discovery in IBM in that it is identical with the Source Log in that case dated February of 2004, so it's merely a start. There's been a whole lot of shakin' goin' on in discovery since then. Novell noticed a funny detail, as Melaugh's Declaration explains:
6. Documents with the Bates Number Prefix "SCO": A sampling of entries on the Source Logs indicates that each "SCO"-prefix Bates range on the SCO v. Novell Source Log has the identical Geographic Location and Office information as the same "SCO"-prefix Bates range on the SCO v. IBM Source Log. This indicates that SCO has maintained the same Bates number on each document produced to IBM in SCO v. IBM that was subsequently produced to Novell in SCO v. Novell. Therefore, it appears from the two Source Logs that SCO had previously produced to IBM all of the documents it later produced to Novell in SCO v. Novell with Bates number prefix "SCO."
This detail might not make you laugh, but it did me. To understand why, let me explain something about Bates numbers, so you can enjoy it too. Bates numbers are just the sequential numbers assigned or stamped on exhibits in a case. Note I said sequential, as in as one goes along in litigation. You stamp or id each exhibit as you go along. Both sides do. The odds of having the Bates numbers be identical in two litigations is... well, nil to zero is the phrase that comes to mind. And here they surely are not. Here's a page that explains Bates numbers:
What is "Bates" labeling?
Documents used in litigation are assigned unique identifiers (IDs). Historically, the process was done with a "Bates" brand stamper, so these numbers are often called Bates numbers. Today the numbers may be applied as printed labels or assigned during scanning. The numbers are used to access scanned images and to link to a database where they may serve as record identifiers.
So Novell is showing Judge Kimball that SCO didn't even put new numbers on the documents, let alone go through them to distinguish which are appropriate in the new case and which are not. (I note in passing how much I enjoyed the Bates number items beginning with "SCOF," which I indubitably would have chosen as their Nasdaq abbreviation, if I ruled the world. Also, note on the Source Log that number 33 shows there really is someone named Biff. I will wager he gets teased.)
It's another way of saying SCO wasn't altogether straightforward with the court in its representations about how substantial the discovery has been in SCO v. Novell to date. So, once again, we see SCO, caught with its pants down. And yes, the judge would get the joke. And it's deeper than a joke, because it's one of the foundation arguments SCO presented. You may remember from the hearing that SCO used a 10th Circuit case, the same circuit where this case is being tried, Cummings v. FedEx, to argue that there are several elements that would cause a court to not stay claims, conditions that would indicate a party had waived the right to arbitrate, and two of them are substantial discovery and litigation machinery substantially invoked.
So SCO was trying to use all the "substantial" discovery as proof that Novell had waived arbitration. Novell goes on to point out that SCO has yet to ask for any discovery regarding its copyright claims, and in fact it has made no discovery requests at all since it filed its new version of the complaint with all the new claims, and even what SCO has turned over, other than the Source Log, it hasn't given Novell any indication what the items are or to which Novell request they are responsive. That's another subtle lawyer joke. Novell is saying they haven't done what is normally done, because the pile of any-old-stuff probably isn't directly pinpointed at any Novell requests, unless quite by chance.
Lawyers are supposed to be polite, and usually they are, but that doesn't mean they can't tastefully zing the other side if they see an opening, and SCO just got zinged. They won't get in any trouble for it, I wouldn't think. It's more the way I feel when I see my cat duplicitously angling to jump on the table to get my fish. He's not supposed to do that. He knows he isn't supposed to do it, but he just can't help himself, so he tries to do it in a way I either won't notice or can't block. It makes me laugh. I also watch him pretty closely whenever there is fish around, because I certainly know I can't trust him to stay within the boundaries if I turn my back for a second. I guess you'd call it aggressive lawyering, or any trick in the book, but what Novell did is basically say the legal equivalent of Puh-lease.
The feebleness of SCO's argument indicates to me that this Novell request for arbitration came at SCO out of nowhere. If they had expected it, they would have prepared better than this. We'd have seen discovery requests all over the place. Instead, they hand over a log for February of 2004, because it was the best they could do on such short notice.
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
Maame A.F. Ewusi-Mensah (pro hac vice)
[address, phone, fax]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]
Attorneys for Novell, Inc.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
Plaintiff and Counterclaim-
NOVELL, INC., a Delaware corporation,
Defendant and Counterclaim-
DECLARATION OF DAVID E.
MELAUGH IN SUPPORT OF
NOVELL'S MOTION TO STAY
Case No. 2:04-CV-00139
Judge Dale A. Kimball
I, David E. Melaugh, declare as follows:
1. I am an attorney duly licensed to practice law in the State of California and an
associate in the law firm of Morrison & Foerster LLP, counsel of record for Defendant and
Counterclaim-Plaintiff Novell, Inc. ("Novell") in this action. I was admitted to practice before
this Court pro hac vice by this Court's Order of July 29, 2004.
2. I submit this declaration in support of Novell's Motion to Stay. The statements
made herein are based on my personal knowledge.
3. Attached hereto are true and correct copies of the following documents:
(a) Exhibit 1 is a true and correct copy of the SCO Source Log listing documents
SCO has produced to Novell in this litigation. This log was provided to me on Monday, June 12,
2006, by Katherine O'Brien, paralegal for counsel for SCO, via electronic mail.
(b) Exhibit 2 is a true and correct copy of the SCO Source Log listing documents
SCO has produced to IBM in The SCO Group, Inc. v. International Business Machines Corp,
Case No. 2:03-CV-0294, United States District Court for the District of Utah ("SCO v. IBM
case"). This log was attached as Exhibit 1 to the Notice of Filing of Plaintiff's Exhibits, filed on
February 4, 2006, by Plaintiff SCO in the SCO v. IBM case.
(c) Exhibit 3 is a true and correct copy of the Plaintiff's First Request for
Production of Documents and First Set of Interrogatories, served by SCO on Novell in this action
on January 11, 2006. These are the only discovery requests that have been served by SCO in this
(d) Exhibit 4 is a true and correct copy of the Attorneys' Planning Meeting Report,
jointly filed on December 1, 2005, by SCO and Novell in this action (Pacer Docket No. 84.).
4. The Source Logs produced by SCO in this case and in the SCO v. IBM case are both
organized by bates range and contain the following fields of information: "CD No.,"
"Production," "Geographic Location," and "Office." For each range: "CD No." refers to the CD
volume number on which the range may be found; "Production" contains a very general
description of the source of the documents, such as "General Files" or the name of an individual;
"Geographic Location" appears to refer to the city where the documents were located; and
"Office" appears to refer to the SCO office from which the documents were obtained such as
"File Room" or the name of an individual.
5. According to the SCO v. Novell Source Log, SCO has produced to Novell five
categories of documents: (a) approximately 865,000 pages of documents with the Bates number
prefix "SCO"; (b) approximately 11,500 pages of documents with the Bates number prefix
"SCOR"; (c) approximately 25,000 pages of documents with the Bates number prefix "SCON";
(d) approximately 7,500 pages of documents with the Bates number prefix "SCOF"; and (e) one
document with the Bates number prefix "SCOX."
6. Documents with the Bates Number Prefix "SCO": A sampling of entries on the
Source Logs indicates that each "SCO"-prefix Bates range on the SCO v. Novell Source Log has
the identical Geographic Location and Office information as the same "SCO"-prefix Bates range
on the SCO v. IBM Source Log. This indicates that SCO has maintained the same Bates number
on each document produced to IBM in SCO v. IBM that was subsequently produced to Novell in
SCO v. Novell. Therefore, it appears from the two Source Logs that SCO had previously
produced to IBM all of the documents it later produced to Novell in SCO v. Novell with Bates
number prefix "SCO."
7. Documents with the Bates Number Prefix "SCOR": The documents produced to
Novell with the prefix "SCOR" consist of approximatel y 11,500 pages of documents that have
been redacted by SCO. Review suggests that these documents, like the "SCO"-prefix
documents, were previously produced to IBM (many are not responsive to any Novell Request
for Production), though it is not possible to be certain without full review of SCO's production to
8. Documents with the Bates Number Prefix "SCON": The documents produced to
Novell with the prefix "SCON" consist solely of pleadings and deposition transcripts from the
SCO v. IBM litigation.
9. Documents with the Bates Number Prefix "SCOF": The documents produced to
Novell with the prefix "SCOF" consist solely of public SEC filings.
10. Documents with the Bates Number Prefix "SCOX": SCO produced one
document to Novell with the prefix "SCOX." This document comprises a large ledger
11. SCO has not produced any other documents Novell in the SCO v. Novell litigation
besides the five categories of documents described above.
12. Besides the SCO Source Log provided to Novell in this case by SCO, counsel for
SCO has given no other indication of the nature of the documents produced or the requests to
which they are responsive.
13. Novell has not been served with any discovery requests by SCO since the filing of
SCO's Second Amended Complaint. As a review of SCO's Discovery Requests (Ex. 3) reveals,
none of the discovery requests served by SCO prior to the filing of its Second Amended
Complaint were directed to its copyright infringement claim set forth in the Second Amended
14. Novell has not served on SCO any discovery requests directed to the copyright
infringement claim pled by SCO in its Second Amended Complaint.
15. The parties met via telephone to discuss the issues to be discussed at the Attorneys'
Planning Meeting on November 17, 2005. On December 1, 2005, the parties filed the Attorneys'
Planning Meeting Report attached hereto as Exhibit 4.
I declare under penalty of perjury of the laws of the United States that the foregoing is
true and correct.
Executed on this 19th day of June, 2006.
/s/ David E. Melaugh
David E. Melaugh
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 19th day of June, 2006, I caused a true and correct
copy of the foregoing DECLARATION OF DAVID E. MELAUGH IN SUPPORT OF
NOVELL'S MOTION TO STAY to be served via CM/ECF to the following:
Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE, P.C.
BOIES, SCHILLER & FLEXNER, LLP
/s/ Heather M. Sneddon