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Deposing Mr. Wilson in SCO v IBM - A NC End Run
Thursday, August 17 2006 @ 11:00 AM EDT

An IBM filing today on Pacer clues us in at last, just as I told you would eventually happen, on the dispute over redeposing Otis Wilson. You may recall that the day before fact discovery was due to close, there was a conference with Magistrate Judge Brooke Wells on January 26, and the outcome was posted on Pacer like this:
[604] Minute Entry for Telephone Conference held on January 26, 2006 before Judge Brooke C. Wells. The Court Rules The depositions of Otis Wilson and Ted Kennedy ONLY may be extended by 30 days (by 2/26/06). Counsel are to agree on the date and time. As to Mr. Wilson - he is not to be subjected to any questions other than reasonable inferences re: new information ONLY. As to the depositions of the three corporations addressed by SCO, the Court will not address this except via motion, which SCO may file. Attorney for Plaintiff: Ted Normand, Attorney for Defendant Todd Shaughnessey

At the time, I wrote that I had no idea what it meant or even what was happening, but that I was sure that in time, we'd find out. Now we do. What happened after Judge Wells limited SCO to asking Mr. Wilson only about new matters is SCO went to North Carolina in April and persuaded an unrelated judge there (IBM was not in attendance - Wilson is represented by another firm) that it could depose Mr. Wilson about anything at all.

See why this case is never boring? Boies Schiller does unusual things.

Normally, if you don't like a judge's decision, you ask the judge to reconsider or you appeal. SCO did neither. They didn't like Judge Wells' decision, so they have been trying to do an end run around her. That tells me that they don't respect the court system the way I do, and yes, I'm shocked. And it also tells me they have given up on any hope of Judge Wells forgetting all that they have done and said in her courtroom, and they figured they'd have better results from a judge who doesn't know them that well yet.

So off they went, and it worked. So now we have a conflict: two different judges, and conflicting orders. Exactly what the legal system hates to have happen. There was a telephone conference, and Judge Wells requested IBM to provide her with cases supporting IBM's argument that her word should prevail. The result is this document, IBM's Legal Authority Re Otis Wilson Deposition [PDF]. This was all happening around the time that SCO was trying, and failed, to properly depose Intel and the others. Here's the heart of IBM's current position:

The following cases recognize: (1) the judge before whom an action is pending has full authority over discovery proceedings in that case (indeed that judge has an obligation to supervise discovery); and (2) while other "ancillary" courts may be necessary to issue or enforce subpoenas, those anciallary courts must respect prior discovery rulings made by the court before whom the action is pending (particularly where that prior ruling involves the objections of a party (IBM) who was not before the court in the "ancillary" proceeding).

It's hard to comprehend an actual discussion about which judge's decision should prevail. It is so obvious that a prior order by the judge actually handling a case should be respected, but with SCO, everything, every pukey little thing, is a struggle.

We also find the answer to the puzzlement I wrote about in January about who originally deposed Otis Wilson. I knew only about an IBM deposition, so I couldn't understand who was asking to do it a second time. The answer is found in the Ted Normand Declaration [PDF], where he tells the North Carolina judge that it was, in fact, IBM that deposed Wilson, but SCO did some cross examination at that deposition. So that mystery is finally solved.

Otis Wilson is a witness whose earlier testimony at the prior deposition was so devastating to SCO. Wilson was in charge of the licensing department at AT&T for years, and he clearly testified that his understanding of the contract between IBM and AT&T was that "we did not intend to exercise any control or restriction on those products that did not contain portions of the software products;" As for methods and concepts, he said that this phrase was removed from IBM's contract and that AT&T did not seek to enforce rights to methods and concepts of UNIX.

So why would SCO wish to depose him again and particularly wish to ask him about the same matters again? I hate to think this, but what I feel may be happening is that because he is elderly, they think maybe he'll testify slightly differently if they ask him things just right. Like I say, I'm just guessing, but it would certainly help SCO to undermine that testimony. It is sometimes possible to rattle elderly persons with rapid questions. I really hope that's not the plan, particularly because this appears to be a lost cause for SCO no matter what they do.

I have collected some documents from the North Carolina court, as well as the docket, and here they are. I wish to thank Steve Martin for helping me so much with this material. I will add to them as I get them uploaded:

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

1:06-mc-00046-PTS

THE SCO GROUP, INC. v. INTERNATIONAL BUSINESS MACHINES CORPORATION
P. TREVOR SHARP, referral

History

Doc.
No.
Dates Description
--
Filed: 04/12/2006
Entered: 04/13/2006
Filing Fee Received
Docket Text: Filing fee: $39, receipt number 091210 (McClain, Abby)
--
Filed: 04/12/2006
Entered: 04/13/2006
Case Assigned/Reassigned
Docket Text: Case Assigned to Magistrate Judge P. TREVOR SHARP as referral Judge. (Powell, Gloria)
1
Filed: 04/12/2006
Entered: 04/13/2006
Terminated: 05/31/2006
Motion to Enforce
Docket Text: MOTION to Enforce Subpoena and Compel Deposition by THE SCO GROUP, INC. (Attachments: # (1) Exhibit A) (McClain, Abby)
2
Filed: 04/12/2006
Entered: 04/13/2006
Memorandum
Docket Text: MEMORANDUM filed by Plaintiff THE SCO GROUP, INC. in support of re [1] MOTION to Enforce Subpoena and Compel Deposition filed by THE SCO GROUP, INC. (Attachments: # (1) Exhibit A:Normand Declaration(2) Exhibit B# (3) Exhibit C# (4) Exhibit D)(McClain, Abby)
3
Filed: 04/12/2006
Entered: 04/13/2006
Terminated: 04/19/2006
Motion to Expedite
Docket Text: MOTION to Expedite Briefing Schedule by THE SCO GROUP, INC. (Attachments: # (1) Exhibit A: Proposed Order)(McClain, Abby)
--
Filed & Entered: 04/17/2006
Motions Referred
Docket Text: ***Motions Referred: [3] MOTION to Expedite Briefing Schedule to Magistrate Judge P. TREVOR SHARP - (Powell, Gloria)
4
Filed & Entered: 04/19/2006
Order on Motion to Expedite
Docket Text: ORDER signed by Judge P. TREVOR SHARP on 4/19/06 that Plaintiff's motion to expedite briefing schedule (Pleading No. 3) is GRANTED and that Otis Wilson and/or IBM be required to file a Response Brief to SCO's Motion to Enforce Subpoena and Compel Deposition, if any, by 21 April 2006 and that SCO berequired to file a Reply Brief, if any, by 25 April 2006. (Wilson, JoAnne)
5
Filed & Entered: 04/21/2006
Terminated: 05/31/2006
Motion to Quash
Docket Text: Third Party MOTION to Quash Subpoena and for Protective Order by Otis L. Wilson. Responses due by 5/15/2006 (MEDFORD, MICHAEL)
6
Filed & Entered: 04/21/2006
Response to Motion
Docket Text: RESPONSE Memorandum in Support of Motion to Quash Subpoena and for Protective Order and in Response to Plaintiff's Motion to Enforce Subpoena and Compel Deposition filed by Deponent Otis L. Wilson re [1] MOTION to Enforce filed by THE SCO GROUP, INC., filed by Otis L. Wilson. Replies due by 5/2/2006. (Attachments: # (1) Exhibit Attachment 1.A Docket# (2) Exhibit Attachment 1.B Docket# (3) Exhibit Attachment 2 Second Amended Complaint# (4) Exhibit Attachment 3.A Wilson Deposition Transcript# (5) Exhibit Attachment 3.B Wilson Deposition Transcript# (6) Exhibit Attachment 3.C Wilson Deposition Transcript)(MEDFORD, MICHAEL)
7
Filed & Entered: 04/21/2006
Brief
Docket Text: Memorandum in Support of Otis Wilson's Motion to Quash Subpoena and for Protective Order BRIEF re [5] Third Party MOTION to Quash Subpoena and for Protective Order by Deponent Otis L. Wilson filed by Otis L. Wilson. (MEDFORD, MICHAEL)
8
Filed & Entered: 04/25/2006
Reply to Response to Motion
Docket Text: REPLY, filed by Plaintiff THE SCO GROUP, INC., to Response to [1] MOTION to Enforce Subpoena filed by THE SCO GROUP, INC.. (MARCUS, ROBERT)
9
Filed & Entered: 04/25/2006
Response in Opposition to Motion
Docket Text: RESPONSE in Opposition re [5] Third Party MOTION to Quash Subpoena and for Protective Order filed by THE SCO GROUP, INC.. Replies due by 5/8/2006. (MARCUS, ROBERT)
--
Filed & Entered: 04/26/2006
Motions Referred
Docket Text: ***Motions Referred: [1] MOTION to Enforce, [5] Third Party MOTION to Quash Subpoena and for Protective Order to Judge P. TREVOR SHARP - (Williamson, Wanda)
10
Filed & Entered: 04/28/2006
Terminated: 05/31/2006
Motion for Leave to File
Docket Text: MOTION for Leave to File Declaration by Otis L. Wilson. Responses due by 5/22/2006 (MEDFORD, MICHAEL)
11
Filed & Entered: 04/28/2006
Brief
Docket Text: Brief in Support of Motion for Leave to File Declaration BRIEF re [10] MOTION for Leave to File Declaration by Deponent Otis L. Wilson filed by Otis L. Wilson. (Attachments: # (1) Declaration of Todd M. Shaughnessy)(MEDFORD, MICHAEL)
12
Filed & Entered: 04/28/2006
Reply to Response to Motion
Docket Text: REPLY, filed by Deponent Otis L. Wilson, to Response to [5] Third Party MOTION to Quash Subpoena and for Protective Order Otis Wilson's Reply Brief in Support of Motion to Quash filed by Otis L. Wilson. (MEDFORD, MICHAEL)
13
Filed & Entered: 05/02/2006
Response in Opposition to Motion
Docket Text: RESPONSE in Opposition re [5] Third Party MOTION to Quash Subpoena and for Protective Order (Supplemental Response) filed by THE SCO GROUP, INC.. Replies due by 5/15/2006. (MARCUS, ROBERT)
14
Filed & Entered: 05/09/2006
Notice of Hearing on Motion
Docket Text: NOTICE of Hearing on Pending Motions. Motion Hearing set for 5/30/2006 09:30 AM in Greensboro Courtroom #1A before MAG/JUDGE P. TREVOR SHARP. (Williamson, Wanda) Attached document with correct case number on 5/9/2006 (Williamson, Wanda).
--
Filed & Entered: 05/30/2006
Motion Hearing
Docket Text: Minute Entry for proceedings held before Judge P. TREVOR SHARP : Motion Hearing held on 5/30/2006 re [3] MOTION to Expedite filed by THE SCO GROUP, INC.,, [10] MOTION for Leave to File Declaration filed by Otis L. Wilson,, [1] MOTION to Enforce filed by THE SCO GROUP, INC.,, [5] Third Party MOTION to Quash Subpoena and for Protective Order filed by Otis L. Wilson. Court to enter written order. Proceedings recorded 06S-6civ. (Tape #06S-6civ.) (McCarty, Dianne)
15
Filed & Entered: 05/31/2006
Order on Motion to Enforce
Docket Text: ORDER ENFORCING SUBPOENA signed by Judge P. TREVOR SHARP on 5/31/06. For reasons announced in open court, SCO's motion to enforce its subpoena served upon non-party Otis Wilson, (Pleading No. 1) is GRANTED and that Mr. Wilson appear for the deposition in accordance with the subpoena. The only limitation imposed upon the deposition is that SCO may depose Mr. Wilson for no greater length of time than 4 hours. Mr. Wilson's motion for leave to file a declaration, Pleading No. 10, is GRANTED. Mr. Wilson's motion to quash subpoena and for protective order (Pleading No. 5) is hereby DENIED. (Welch, Kelly)
16
Filed & Entered: 07/06/2006
Terminated: 07/07/2006
Motion to Compel
Docket Text: MOTION to Compel DEPOSITION OF OTIS WILSON AND REQUEST FOR EXPEDITED RESOLUTION TO DISCOVERY DISPUTE by THE SCO GROUP, INC.. Responses due by 7/31/2006 (MARCUS, ROBERT)
--
Filed & Entered: 07/07/2006
Motions Referred
Docket Text: ***Motions Referred: [16] MOTION to Compel DEPOSITION OF OTIS WILSON AND REQUEST FOR EXPEDITED RESOLUTION TO DISCOVERY DISPUTE to Judge P. TREVOR SHARP - (Powell, Gloria)
--
Filed & Entered: 07/07/2006
Telephonic Notice
Docket Text: Telephone Notice from Attorney Heather Wright held on 7/7/2006: MOTION [16] filed 7/6/06 to Compel DEPOSITION OF OTIS WILSON AND REQUEST FOR EXPEDITED RESOLUTION TO DISCOVERY DISPUTE by THE SCO GROUP, INC. has been RESOLVED. (Powell, Gloria)


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