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To read comments to this article, go here
A Protective Order in Novell & a Tiny Delay in IBM
Friday, August 04 2006 @ 10:29 AM EDT

In Novell, the parties have reached agreement on a Stipulated Protective Order [PDF], and Judge Kimball has signed the Order [PDF].

This document illustrates an important point, because it shows what attorneys are really good for. Abraham Lincoln once said that a really good attorney is the one that keeps you out of court, and as you read this agreement, you'll see how carefully it's crafted to try to foresee every possible issue that could arise, so the agreement can cover what will happen without needing to litigate the matter. It's sort of like I see in coding, if A ...then B, etc. The better the lawyer, the more possibilities will be thought of and handled. This is the kind of document that law schools will likely use as a template to teach contract law, in my opinion.

Companies don't just try something and see if the company gets sued by anybody. They plan to avoid lawsuits, with a lawyer's advice, and that is what programmers should do too. There's no reason not to learn from the SCO saga the importance of talking to a lawyer, not some message board or your best friend, *before* there is a problem, so you can avoid one, hopefully. It's tons cheaper, and you won't lose all your hair that way from stress.

The purpose of the protective order is to establish guidelines to prevent disclosure of "trade secret, proprietary, technical, scientific, business, or financial information regarded as confidential." In other words, they will do discovery, but we won't get to see all of it. Some documents and deposition transcripts will be redacted or sealed, and at trial, if confidential matters come up, they will remove the public from the courtroom first.

There is a protective order in IBM as well, of course. It's typical. But what is a little unusual is that there is a cross pollination here:

When, in this action, SCO produces information that it marked Confidential in The SCO Group Inc. v. International Business Machines Corp., Case No. 2:03CV294 DAK, D. Utah (“SCO v. IBM case”), such information may be used for purposes of this action and disclosed to those persons identified in Paragraph 4 of this Order, provided that such use and disclosure is in compliance with the terms and conditions of the Protective Order entered in the SCO v. IBM case. Confidential information produced by Novell in this action may be used and disclosed in the SCO v. IBM case, provided that such information is used and disclosed in compliance with the terms and conditions of this Order.

I found that interesting, that if anything juicy turns up in the Novell discovery, it can be used in the IBM case, although that seems a bit unlikely to be helpful to SCO at this point. Now, Novell isn't a party to the IBM case, at least not at this point. And IBM isn't a party here. So I asked myself when reading this paragraph, does this agreement, which says that confidential materials from the Novell case "may be used" in the IBM litigation, mean IBM can use it, from a Novell handoff? Or only SCO? It doesn't specifically say, and IBM is not a signatory to this stipulated order, yet the wording does seem to leave that door open.

I wondered for a minute if the Novell team had dropped a stitch, but then I noticed that paragraph 19 says that any party is free to reveal its *own* confidential materials and this order doesn't block that, so presumably if Novell wanted to -- not implying it necessarily does -- but from that paragraph I see that Novell could let IBM see Novell's own confidential materials. The wording isn't 100% clear to me even yet as to what would happen if IBM tried to use it, so we might see some motion practice down the road to clarify, if IBM ever does use any confidential materials. Or maybe I'm missing something obvious because I'm rushing a bit today, due to other necessary tasks of the day, but it reads to me like what lawyers do when they don't want to address something straight up or can't, or no agreement was believed to be possible, so they write as favorably as is possible, so that if that contigency arises, they are in the best strategic position possible. And it does say that confidential materials can be used in IBM; it just doesn't precisely list by whom. I guess the fact that IBM is not a party here to the agreement limits what can be agreed to, now that I think of it. So that may be the simplest explanation.

I note that use in either litigation is dependent on complying with the pertinent protective order, and they are not identical. You will recall that in April, the parties in IBM agreed to amend their protective order [PDF] to add a special designation that some materials could be designated for outside counsel only. I see nothing like that here. Paragraph 4 just lists the folks you'd expect to be able to see confidential materials, like lawyers and support staff and outside experts, and it specifically allows inhouse counsel to see confidential materials. So that is one difference they'll have to keep in mind.

Interestingly, Novell has a way to try to introduce materials into the arbitration:

Novell's execution of this Stipulated Protective Order does not waive its right to seek modification of this Order so that Confidential Information produced by the parties in this action may be used in the matter of SUSE Linux GMBH v. SCO, International Court of Arbitration of the International Chamber of Commerce, Case No. 14320/FM.

I don't see that SCO asked for the same, although it's stated that either party can seek to modify, but here Novell was taking that extra step of clarifying in advance that signing this stipulated protective order does not signify a waiver of its rights to seek modification to allow it to use what it finds in the arbitration. Like I say, lawyers try to think of everything.

Here's the part about you having to leave the courtroom, if a confidential matters comes up at trial, and yes, they have the right to do that, subject to any challenges to the protective order from the media or other interested third parties:

b. Unless otherwise agreed to by the parties in writing or on the record, no individual not qualified hereunder to receive Confidential information shall be in attendance at that portion of a deposition during which Confidential information of another party is being testified to. The designating party shall have the right to exclude from attendance at said deposition, during such time as Confidential information is to be disclosed, any person other than the deponent, Counsel, court reporter, videographer (if any), and other individuals authorized to receive such information as otherwise provided by this order. Persons shall not be excluded from attendance at said deposition from those portions during which information is disclosed to which they are otherwise authorized access under this Order. ...

11. Disclosure During Trial or Hearings in Open Court.

Should the need arise during the trial or any hearing for the parties to disclose Confidential information, such disclosure may only be made after the designating party has had the opportunity to request in camera review or other safeguards from the Court. The party seeking to make such disclosure shall provide reasonable notice of its intent to the designating party, and shall not object to reasonable requests for such safeguards. At trial, no party, witness or attorney shall refer in the presence of the jury to this Protective Order or to any confidentiality designation made pursuant to this Order, unless the Court first provides the jury with a brief explanation of the nature and purpose of the Order. In no event shall any party, witness or attorney argue or suggest in the presence of the jury that a designating party acted wrongfully in designating material as Confidential.

In the SCO v. IBM case, by the way, the parties stipulated [PDF] to a mild scheduling change. According to the Order [PDF], which was signed by Magistrate Judge Brooke Wells, the parties each have until August 18 to respond to the other side's Requests for Admissions. And IBM gets until August 14 to answer SCO's Objections to Order Granting in part IBM’s Motion to Limit SCO’s Claims, and then SCO has until the 28th to reply.

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

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

__________________________________________

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff/Counterclaim-Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant/Counterclaim-Plaintiff.

_______________________________________

STIPULATED PROTECTIVE ORDER

Case No. 2:04CV00139

Judge Dale A. Kimball

______________________________________

IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff/Counterclaim-Defendant The SCO Group, Inc. and Defendant/Counterclaim-Plaintiff Novell, Inc. that, in view of the fact that this action may involve disclosure of trade secret, proprietary, technical, scientific, business, or financial information regarded as confidential, the following Protective Order be entered pursuant to Federal Rule of Civil Procedure 26(c), subject to the approval of the Court.

IT IS HEREBY AGREED AND ORDERED THAT:

1. "Confidential" Information.

a. A party may designate as "Confidential" those materials that it, as the designating party, in good faith believes contain information that is (a) confidential, sensitive, competitive, or potentially invasive of an individual's privacy interests, (b) not generally known,

1

and (c) not normally revealed to the public or third parties or, if disclosed to third parties, would require such third parties to maintain the information in confidence.

b. For purposes of this Stipulated Protective Order, Confidential information may include any writings, drawings, graphs, charts, photographs, phone records, records, exhibits, reports, samples, transcripts, oral testimony, video or audio recordings, affidavits, briefs, summaries, notes, abstracts, drawings, company records and reports, databases, version control systems, communications, letters, electronic and hard-copy correspondence, e-mails and attachments thereto, source code and object code, answers to interrogatories, responses to requests for admissions, or motions, and/or any other document or thing which may be delivered from or on behalf of a designating party to another in connection with the Action including, without limitation, copies, or information stored on any storage device or computer.

2. Effect of Designation.

The designation of information as Confidential shall constitute a representation that an attorney believes that there is a valid basis for such designation. The designation or failure to designate information as Confidential may not be used against the producing party, however, as an admission or concession that the designated information is or is not, in fact, confidential, proprietary, a trade secret, or otherwise sensitive.

3. Scope of Order.

a. Information to be covered by this Stipulated Protective Order shall include Confidential information, as defined above, that is set forth, revealed, or provided: (a) in response to discovery requests made under Federal Rule of Civil Procedure 31, 33, or 36; (b) in any documents, things, or premises made available for inspection or produced to the discovering party pursuant to Federal Rule of Civil Procedure 26, 33, or 34 or in response to a subpoena

2

under Federal Rule of Civil Procedure 45; (c) during depositions upon oral or written examination under Federal Rule of Civil Procedure 30 or 31; (d) in connection with any other discovery taken in this action, whether pursuant to the Federal Rules of Civil Procedure, informally, or by agreement; (e) in or accompanying correspondence to the receiving party; (f) in submissions to or before the Court, including testimony, briefs, exhibits, and declarations; and (g) in response to any Order of the Court.

b. Information to be covered by this Stipulated Protective Order also shall include privileged information, as discussed below.

4. Disclosure and Use of Confidential Information.
Subject to Paragraphs 5, 16, 18-19, 21, and 23 below, Confidential information shall be disclosed only to the following persons:

a. Counsel: In-house counsel and outside counsel of record for the

parties to this Action, together with those attorneys' stenographic,

clerical, secretarial, paralegal and other employees whose duties and

responsibilities are to assist counsel in this Action and who require

access to Confidential information to complete these job duties;

b. In-House Employees: In-house employees of the parties requiring

access to the Confidential information for purposes of maintaining or

defending the Action and specifically assigned to support counsel in

this regard, so long as those employees complete and sign a

Declaration and Acknowledgement in the form attached hereto as

Exhibit A, a copy of which shall be provided to counsel for the parties

prior to any disclosure of any Confidential information, subject to the

3

disclosing party's right to object in writing and in good faith and on

reasonable grounds within five (5) business days of receiving the

Declaration and Acknowledgement and raise and resolve said

objection with the Court;

c. Litigation Support Services: Outside litigation support services

retained by the outside counsel of record, to the extent necessary to

assist such counsel in this litigation, including copy services,

document production services, exhibit-making and legal graphics

services, translation services, coding services, database services,

scanning services, computer animation and video services, jury

consultants and their support, administrative, and clerical staff, and

mock jurors.

d. Court Personnel: Officers of this Court (including the jury) and

their supporting personnel, or officers of any appellate court to which

any appeal may be taken or in which review is sought and their

supporting personnel;

e. Court Reporters: Stenographers and videographers who take, record

or transcribe testimony in this Action, at deposition, a hearing, or trial,

to the extent necessary to carry out their services;

f. Outside Experts or Consultants: Subject to the conditions set forth

in paragraph 7, outside experts or outside consultants, including their

administrative and clerical staff retained by the parties for purposes of

this litigation;

4

g. Drafters or Recipients: Any person having written or received such

document during the course of his or her employment or consultancy, but

disclosure shall be limited only to the specific document(s) which the

person in question wrote or received.

h. Others Specifically Authorized: Other persons to whom the Court

specifically allows disclosure, after application by the party seeking such

disclosure and an opportunity to reply by the designating party; and other

persons whom the designating party specifically and in writing allows

disclosure.

When, in this action, SCO produces information that it marked Confidential in The SCO Group Inc. v. International Business Machines Corp., Case No. 2:03CV294 DAK, D. Utah ("SCO v. IBM case"), such information may be used for purposes of this action and disclosed to those persons identified in Paragraph 4 of this Order, provided that such use and disclosure is in compliance with the terms and conditions of the Protective Order entered in the SCO v. IBM case. Confidential information produced by Novell in this action may be used and disclosed in the SCO v. IBM case, provided that such information is used and disclosed in compliance with the terms and conditions of this Order.

5. Use During Examination or Cross-Examination.

Nothing herein shall limit a party's ability to use Confidential information to examine or cross-examine deposition or trial witnesses (a) who are current officers, employees, experts, or attorneys of a party from which the Confidential information originated or was received, (b) who are former officers, agents, employees, experts, or attorneys of a party from which the Confidential information originated or was received and that originated or was created during or

5

prior to the period or periods of employment or retention for such individuals, and (c) whom the producing party has designated under Federal Rule of Civil Procedure 30(b)(6), if the Confidential information at issue originated or was created during or prior to the designees' employment with the producing party. A party desiring to use Confidential information to examine or cross-examine deposition or trial witnesses other than those persons identified in (a) through (c) of this Paragraph, or other than those persons specifically authorized under Paragraph 4, may only do so provided that these witnesses are advised at the time of questioning that the subject information is Confidential, that this Confidential information is subject to a protective order, and that they are required to keep the information confidential by the terms of this Protective Order.

6. Handling of Confidential Materials.

Any person in possession of Confidential materials shall exercise reasonable and appropriate care with regard to the storage, custody, or use of such materials to ensure that their confidential nature is maintained.

7. Outside Experts or Consultants.

a. A party desiring to disclose Confidential information to an outside expert or consultant under Paragraph 4(f) first shall give written notice to the designating party whose information it desires to disclose, who shall have five (5) business days after such notice is received to object in writing. The notice shall contain the following information about the proposed expert or consultant: (a) business address; (b) business title; (c) business or profession; (d) any and all professional relationship(s) with any of the parties, or any known competitors of the adverse party, or any of their related entities, either currently or in the past; and (e) a curriculum vitae showing employment/consulting history, publications, and prior testimony. The

6

notice also shall include a Declaration and Acknowledgement form attached hereto as Exhibit A, completed and signed by the proposed expert or consultant.

b. Any objection under this paragraph shall be made in good faith and on reasonable grounds. Should the parties be unable to resolve the objection, the objecting party shall raise this matter with the Court and request an Order restricting such individual's access to the objecting party's Confidential information. Failure to object within five (5) business days of receiving notice, or failure to raise this matter with the Court within ten business days after service of the objection, shall be deemed approval, and such person shall thereafter be qualified to have access to the objecting party's Confidential information pursuant to the terms and conditions of this Protective Order;

c. The proposing party shall not disclose any Confidential information of the objecting party to the proposed expert or consultant during the period for objection, nor during the pendency of any request made to the Court in accordance with this paragraph. Consent to the disclosure of information shall not unreasonably be withheld.

d. The administrative and clerical staff of an outside consultant or expert under Paragraph 4(f) shall be deemed to have signed the Declaration and Acknowledgement form of Exhibit A when the outside expert or consultant supervising such individuals has executed the form.

8. Designating Confidential Information.

a. If, in the course of this Action, a party discloses information that it in good faith contends is Confidential information, this party (the "designating party") may designate such information as such by marking each page of each document so designated:

7

"Confidential - Subject to Protective Order, SCO v. Novell,
Civil Case No. 2:04CV00139 DAK"

b. If any Confidential Information cannot be labeled with the aforementioned marking, it shall be placed in a sealed envelope or other container that is in turn marked "Confidential" in a manner agreed upon by the disclosing and requesting parties.

c. When files and records are produced for inspection, no marking need be made in advance of the inspection. For purposes of the initial inspection, all documents in any produced files shall be considered marked as Confidential. Thereafter, upon selection of specified documents for copying by the inspecting party, the producing party shall mark the copies of such documents with the appropriate confidentiality marking at the time that the copies are produced to the inspecting party.

d. If a party believes in good faith that the inspection, measuring, testing, sampling, or photographing of its processes, products, equipment, premises, or other property, pursuant to Federal Rule of Civil Procedure 34, will reveal or disclose Confidential information, then that party shall advise the requesting party that the inspection, measuring, testing, sampling, or photographing will be permitted only on a Confidential information basis. In such an event, the inspection, measuring, testing, sampling, or photographing may only be performed by those permitted to have access to Confidential information, under this Order, and information derived from such activities shall be treated as Confidential information.

e. An exhibit to a deposition shall be treated in accordance with the confidentiality designation already given to it or, if the exhibit has not been previously produced, given to it on the record at the time of the deposition. The designation of a deposition as

8

Confidential information or the de-designation of a deposition as Confidential information shall not affect the confidentiality status of exhibits presented at the deposition.

9. Deposition, Trial, or Other Testimony.

a. If information to be treated in confidence is contained in deposition, trial, or other testimony, the transcript may be designated as containing Confidential information by so notifying the other parties on the record, at the time of the testimony, or by notifying the other parties in writing, within fourteen (14) days of receipt of the transcript of the specific pages and lines of the transcript which contain such Confidential information. After such fourteen (14) day period has expired and in the absence of any written notice concerning the specific portions of the transcript that the producing party believes contain Confidential information, the transcript of testimony shall be treated as designated on the record at the time of testimony, or if no designations were made, then the transcript of testimony shall be treated as a public document.

b. Unless otherwise agreed to by the parties in writing or on the record, no individual not qualified hereunder to receive Confidential information shall be in attendance at that portion of a deposition during which Confidential information of another party is being testified to. The designating party shall have the right to exclude from attendance at said deposition, during such time as Confidential information is to be disclosed, any person other than the deponent, Counsel, court reporter, videographer (if any), and other individuals authorized to receive such information as otherwise provided by this order. Persons shall not be excluded from attendance at said deposition from those portions during which information is disclosed to which they are otherwise authorized access under this Order.

9

10. Sealing Procedures.

Any information designated as Confidential information that is included with, or its contents are in any way disclosed in, any pleading, motion, deposition transcript, or other papers filed with the Clerk of the Court shall be filed in sealed envelopes, or other appropriately sealed containers, prominently marked with the following notations:

(i) The case number (Civil Case No. 2:04CV00139 DAK);

(ii) The name of the filing party;

(iii) An indication of the filing's contents, such as the title of the filing; and

(iv) A statement substantially similar to the following:

FILED UNDER SEAL
CONTAINS CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER

11. Disclosure During Trial or Hearings in Open Court.

Should the need arise during the trial or any hearing for the parties to disclose Confidential information, such disclosure may only be made after the designating party has had the opportunity to request in camera review or other safeguards from the Court. The party seeking to make such disclosure shall provide reasonable notice of its intent to the designating party, and shall not object to reasonable requests for such safeguards. At trial, no party, witness or attorney shall refer in the presence of the jury to this Protective Order or to any confidentiality designation made pursuant to this Order, unless the Court first provides the jury with a brief explanation of the nature and purpose of the Order. In no event shall any party, witness or attorney argue or suggest in the presence of the jury that a designating party acted wrongfully in designating material as Confidential.

10

12. Inadvertent or Unintentional Disclosure of Confidential Information by Producing Party.

a. If a party to this Order inadvertently fails to designate information as Confidential information, such failure shall not constitute a waiver of the producing party's right to so designate such information. In the event that such an inadvertent failure occurs, the producing party shall upon discovery of the failure promptly notify in writing all parties known to have received the information in question, and provide them with appropriately marked substitute copies of the affected information. Until a receiving party receives such notification, any disclosure made by that party of the information to those not permitted by this Order to have access to the information shall not constitute a violation of this Order. Moreover, no person or party shall incur liability with respect to any disclosure by the receiving party of Confidential information that was inadvertently disclosed without proper designation by the producing party, provided the disclosure by the receiving party occurred prior to the receipt by the receiving party of a notice of the inadvertent disclosure without proper designation. However, upon receiving such notification, the receiving party shall request all parties to whom the information was disclosed by the receiving party, but who are not permitted to have access to such information under the terms of this Order, to return the information to the receiving party. The receiving party shall also destroy all copies of the incorrectly labeled information and replace them with the substitute copies provided by the producing party.

b. The inadvertent or unintentional disclosure by the producing party of Confidential information, either by way of document production or deposition testimony, shall not be deemed a waiver in whole or in part of a claim of confidentiality, either as to the specific information disclosed or as to any other information relating thereto on the same or related

11

subject matter so long as such inadvertent or unintentional disclosure was not the result of recklessness or gross negligence on the part of the producing party. Any such inadvertently or unintentionally disclosed Confidential information not designated as such pursuant to Paragraph 8(a) shall be so designated, by giving written notice to all parties, as soon as reasonably possible after the producing party becomes aware of the inadvertent or unintentional disclosure. Within fourteen (14) days of such notice and receipt of substitute copies bearing the appropriate confidentiality marking, the receiving party shall return said documents and things and not retain copies thereof, destroy said documents and things, or raise this matter with the Court and request an Order permitting the receiving party to retain the originally disclosed information. Unless the receiving party is opposing the return or destruction of such information, the receiving party also shall use good faith efforts to arrange for the return or destruction of said documents and things from parties and individuals to whom it may have distributed the documents or things but who were not authorized to receive Confidential documents under this Protective Order. If the receiving party opposes the return or destruction of such information, it shall, after receiving notice from the producing party, nonetheless use good faith efforts to avoid any further distribution of such information to unauthorized parties or individuals, pending resolution of the issue by the Court. The receiving party's disclosures, prior to the receipt of notice from the producing party of a new designation, of Confidential information to unauthorized parties or individuals shall not be deemed a violation of this Protective Order. If the receiving party is unable to arrange for the return or destruction of such documents and things from such unauthorized parties or individuals, the receiving party shall notify the producing party within fourteen (14) days of notice from the producing party of the identity of such unauthorized parties or individuals and the efforts made to secure the return or destruction of such documents and

12

things. Upon the redesignation of information under this paragraph, upon agreement of the parties, or by Court order, said information shall thereafter be treated as Confidential, as designated by the producing party.

13. Inadvertent or Unintentional Disclosure of Confidential Information by Receiving Party.

Should any information already designated Confidential be disclosed inadvertently or unintentionally by the receiving party to any person not authorized under this Stipulated Protective Order, the receiving party shall use its best efforts to bind such person to the terms of this Order; and the receiving party shall: (a) promptly inform such person of all the provisions of this Order; (b) immediately identify such person and the Confidential information disclosed to the party or non-party that designated the document as containing Confidential information; (c) request such person to sign a Declaration and Acknowledgement in the form attached as Exhibit A; and (d) retrieve all copies of documents containing the inadvertently disclosed information. The executed Declaration and Acknowledgement shall be provided promptly to the party or non-party that designated the document or information as Confidential.

14. Inadvertent or Unintentional Disclosure of Privileged Information.

a. In the event that a producing party inadvertently or unintentionally produces materials that otherwise are not discoverable for reasons of the attorney-client privilege, work product immunity, or other privilege, doctrine, or immunity, such party shall upon discovering such inadvertent disclosure promptly give written notice to the receiving party. Immediately upon receiving such notice, outside counsel for the receiving party shall sequester in its offices all identified information, including any and all copies made, and return it to the

13

producing party, which need not demonstrate that the production was inadvertent or unintentional.

b. Nothing herein shall preclude the receiving party from challenging the privilege or immunity claimed by the producing party regarding the inadvertently produced document or information, so long as the receiving party seeks relief from the Court within fourteen (14) days of its receipt of written notice of inadvertent disclosure. The receiving party may use the inadvertently produced document or information that is claimed to be privileged or work product in a submission to the Court when challenging the privilege or immunity claimed by the producing party.

15. Challenges to Designation.

A party shall not be obligated to challenge the propriety of a confidentiality designation at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. A party may apply to the Court for an order that information labeled Confidential is not, in fact, confidential. Prior to so applying, the party seeking to reclassify Confidential information shall seek the producing party's agreement. If the parties cannot agree on the appropriate classification of the information in question, the party seeking reclassification may request the Court for such reclassification. In any request, the producing party shall ultimately have the burden of establishing the need for classification as Confidential. Until the matter is resolved by the parties or the Court, the information in question shall continue to be treated according to its designation under the terms of this Order.

16. Third Party Subpoenas or Demands.

If any receiving party is (a) subpoenaed in another action, (b) served with a demand in another action to which it is a party, or (c) served with any other legal process by one not a party

14

to this action, seeking information which was produced or designated as Confidential by someone other than the receiving party, the receiving party shall transmit a copy of such subpoena, demand, or legal process, by hand or facsimile transmission, within five (5) business days of receipt of such subpoena, demand or legal process, to those who produced or designated the material Confidential and shall reasonably cooperate with the producing party in preparing timely objections to its production. Should the person seeking access to the Confidential information take action against the receiving party or anyone else covered by this Order to enforce such a subpoena, demand or other legal process, the receiving party shall respond by setting forth the existence of this Order. Nothing herein shall be construed as requiring the receiving party or anyone else covered by this Order to challenge or appeal any order requiring production of Confidential information covered by this Order, or to subject itself to any penalties for noncompliance with any legal process or order, or to seek any relief from this Court.

17. Confidentiality Interests of Third Parties.

A party may temporarily withhold production of otherwise discoverable information pursuant to a subpoena, deposition question, or discovery request, if the party is under an obligation to a third party not to disclose such information. In such an event, the objecting party shall:

a. Promptly provide to the person or entity whose confidentiality interests are implicated (1) notice of its intention to disclose the information in question and (2) a copy of this Order; and

b. Within thirty (30) business days of the notice sent pursuant to subparagraph (a) above, produce the requested information in question in compliance with this

15

Order, unless the request is otherwise objectionable, or the person or entity whose confidentiality interests are implicated moves for or obtains a protective order precluding such disclosure from this Court within that time.
18. Use of Independently Obtained, Unrestricted, Public, or Produced Information.

This Stipulated Protective Order shall not impose any restrictions on the use or disclosure by a party of information or material properly obtained by such party independently of discovery in the Action, whether or not such material is also obtained through discovery in this Action, or from disclosing its own Confidential information as it deems appropriate. Further, this Stipulated Protective Order shall not apply to information which (a) was properly known to the receiving party before disclosure hereunder, (b) is or becomes part of public knowledge through no breach of the provisions of this Stipulated Protective Order, (c) is independently developed by the receiving party without access to the Confidential information disclosed hereunder, or (d) is disclosed to the receiving party by a third party without restriction as to disclosure, provided such third party has the right to make the disclosure to the receiving party.

19. Disclosure of a Party's Own Information.

The terms of this Stipulated Protective Order shall in no way restrict a designating party's right to reveal or disclose to anyone any materials designated by that party as Confidential information so long as such disclosure does not violate a designation by another party of information as Confidential.

20. No Waiver of Rights.

This Stipulated Protective Order shall not be deemed a waiver of (a) any party's or producing entity's right to object to any discovery requests on any ground; (b) any party's right

16

to seek an order compelling discovery with respect to any discovery requests; (c) any party's right to object to the admission of evidence on any ground; (d) any party's or producing entity's right to use its own documents, testimony, transcripts, and/or other materials or things within its own discretion; (e) the attorney-client privilege or protection of the work product doctrine; or (f) any party's right to seek additional protection for certain materials or information. In the event that a party seeks such additional protection, that party shall first confer with the opposing party to reach agreement with respect to such additional protection before filing a motion with the Court.

21. Disclosure Beyond the Terms of this Order.

Nothing shall prevent disclosure beyond the terms of this Protective Order if the party designating the information as Confidential information consents to such disclosure in writing or on the record, or if the Court, after notice to all affected parties, orders such disclosure.

22. Designation by Non-Parties.

A non-party to this Action that produces information to a party in connection with this Action, whether or not pursuant to a subpoena, may avail itself of the protections afforded by this Order to the parties, by placing the Confidential marking identified in paragraph 8(a) on such information.

23. No Summaries.

Confidential information shall not be disclosed or summarized, in writing or orally, to anyone other than persons permitted to have access to such information under this Order. Notwithstanding the foregoing, nothing in this Order prohibits counsel for either party from advising their respective clients of the presence or absence of evidence supporting or refuting the claims or defenses in this Action.

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24. Return or Destruction Upon Termination of Action.

Unless counsel agree otherwise in writing, within ninety (90) calendar days of the final disposition of this Action, the attorneys for the parties and experts and consultants shall destroy or return to the designating party all materials, other than attorney work product, that have been designated Confidential information and certify in writing that they have destroyed or deleted the same, including all copies provided by a receiving party to any other person and all copies made thereof. Notwithstanding the foregoing, outside counsel for the parties shall be permitted to retain: (a) attorney work product created during the course of the Action; (b) work product of non-testifying consultants/experts; (c) materials made part of the Court record, or which have been filed under seal with the Clerk of the Court; and (d) file copies of all depositions and Court transcripts, including exhibits. Such file copies must be maintained subject to the terms of this Order.

25. Survival of Litigation.

This Stipulated Protective Order shall survive the termination of this litigation. The Court shall retain jurisdiction, even after termination of this lawsuit, to enforce this Protective Order and to make such amendments and modifications to this Order as may be appropriate.

26. Modifications to Protective Order.

Any party may, on motion or other request to the Court and for good cause shown, seek a modification of this Stipulated Protective Order, and, by its agreement to this Order, no party shall be deemed to have waived the right to modifications later sought by such party. Novell's execution of this Stipulated Protective Order does not waive its right to seek modification of this Order so that Confidential Information produced by the parties in this action may be used in the matter of SUSE Linux GMBH v. SCO, International Court of Arbitration of the International

18

Chamber of Commerce, Case No. 14320/FM. No modification in this Stipulated Protective Order that adversely affects the protection of any document produced or given by a non-party in this case shall be made without giving to that nonparty appropriate notice and opportunity to be heard by the Court.

STIPULATION

Dated: July 31, 2006

HATCH, JAMES & DODGE, P.C.

By: /s/ Brent O. Hatch

(Signed by filing attorney with
permission of Brent O. Hatch)

Attorneys for The SCO Group
[addrress]

ANDERSON & KARRENBERG

By: /s/ Heather M. Sneddon

Attorneys for Novell, Inc.
[address]

ORDER

DATED: _______________

____________________
Hon. Dale A. Kimball
United States District Court Judge

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EXHIBIT A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

________________________________________

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff/Counterclaim-Defendant, vs. NOVELL, INC., a Delaware corporation,

Defendant/Counterclaim-Plaintiff.

_________________________________________

Civil No. 2:04CV-00139 DAK

DECLARATION AND
ACKNOWLEDGMENT OF
___________________________

I, ________________________________________, state that:

1. My address is __________________________________________________ __________________________________________________________________________.

2. My current employer is and the address of my present employment is __________________________________________________________________________.

3. My current occupation or job description is ___________________________ __________________________________________________________________________.

4. I have received a copy of the Stipulated Protective Order in the above-captioned action. I have carefully read and understand the provisions of the Stipulated Protective Order.

5. I will comply with all of the provisions of the Stipulated Protective Order. I will hold in confidence, will not disclose to anyone not qualified under the Stipulated

A-1

20

Protective Order, and will use only for purposes of this action any information marked Confidential that is disclosed to me.

6. Promptly upon termination of this action, I will return or destroy all materials containing information marked Confidential that came into my possession, and all documents and things that I have prepared relating thereto, to the outside attorneys for the party by whom I am employed or retained, or who noticed my deposition.

7. I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the Stipulated Protective Order in this action.

I declare under penalty of perjury, under the laws of the United States of America, that the foregoing is true and correct.

Date:______________________

Place:______________________

A-2

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