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IBM's Legal Authority Re Otis Wilson Deposition, as text
Sunday, August 20 2006 @ 04:21 PM EDT

Here's IBM's Legal Authority Re Otis Wilson Deposition [PDF], as text, thanks to the wonderful bot Carlo Graziani wrote for me.

The bot can't do PDFs that are snapshots instead of text, however, which means we need volunteers to do the deposition transcript itself, at least an OCR, as well as the Edward Normand Declaration and Otis Wilson's Brief in Support of Motion to File Declaration [PDF] in the North Carolina ancillary action. To understand what is going on and have all the interested parties' positions represented, we need all of the above, at a minimum. The bot can do the Wilson document.

When you read all three, you find that there is a dispute as to whether what Mr. Normand told the court about the teleconference was accurate. That does not surprise you? It seems IBM's attorney on that same call was out of the country and thus unable to present IBM's memory of what was said in an affidavit.

I finally have all the documents from the North Carolina action uploaded to the article's table, and I've marked the ones we had before in purple, so you will know which ones are new. Most are new. If there are others in the collection you'd like to do as text, just feel free to sing out that you'll work on it and then send to me as either plain text or HTML in a plain text email. We only had three or four of the NC documents to begin with, and there are around 20 documents in all, counting exhibits, so there's a lot more there now. You should be able to piece together the happenings very readily now, so you will be able to follow the arguments presented by all sides in the dispute over what SCO is allowed to ask Mr. Wilson at a second deposition.

I had an opportunity meanwhile to read a bit more of the deposition transcript, and I'm going back to read more now, but what I noticed is that according to what is said at the opening of the 2004 deposition, the two sides agreed to split the time evenly, with each side getting approximately 3 1/2 hours to ask Mr. Wilson what it wished to ask. The discussion at the beginning of the session went like this, beginning on page 7 of the June 2004 Otis Wilson deposition transcript, part 1 [PDF]:

Marriott: Counsel discussed before the deposition the ways in which we might allocate time, and we did not reach, I believe, a firm agreement, but it was at least proposed that we each contemplate taking somewhere in the order of 3.5 hours, and then if a party feels they -- they require more time, that's something they would take up with the appropriate court.

So I think our agreement, and you can tell me if I've got it right, Counsel, is that we'll each endeavor to be finished within -- within, say, our 3.5 hours, and --

Gant: We will each endeavor to roughly take that much time. We will endeavor not to take more of Mr. Wilson's time than necessary. And I don't anticipate that we'll have problems doing that, but that we can address the issue amongst ourselves or with the court, if necessary, if either party thinks they need more time.

Marriott: OK. Thank you. As I think you know, we, at Cravath, represent, not only IBM, but also Mr. Wilson. And I've provided for you as an exhibit a copy of the retention letter that exists between Mr. Wilson and Cravath. That's Exhibit 78. And I point this out, merely to say that Mr. Wilson retained us in or about the 6th of May 2004. So any communications that we had with Mr. Wilson before then, so far as we're concerned, are fair game for inquiry.

Communications after the time in which we began to represent him become a bit more problematic, and we can confront those when we -- when we do.

Mr. Wilson has -- has, as you know, I believe, Counsel, provided two sworn statements for litigation, and I want to just say for the record that those have been provided to you as -- not only this morning before the deposition, but as -- as required, as I understand it, by Magistrate Judge Wells in advance of the deposition.

Gant: And I'll confirm that we received those at approximately 11:00 p.m. this past Tuesday. And, although I don't think anyone has an interest in rearguing any of the issues related to that, I just want to note for the record SCO's objection, which we registered at the time of the deposition, which occurred this past Tuesday, where this issue first surfaced, that we do not believe that we were given an adequate opportunity to review declarations that were executed by third parties, and that it has prejudiced our ability to properly examine the witnesses, and these documents should have been produced earlier, and we will reserve all rights and the opportunity to request appropriate relief from the court on this issue....

So SCO's beef was that it didn't have time to review materials prior to the deposition. That is still their position. You can see why they carefully preserved that beef when you read from page 20:

Wilson: The -- the restrictive covenant of the licensing agreements only pertained to that portion of the software project originally supplied to our licensees.

And so any -- any derivative or modification of work that they produced that contained parts of the software product that they were licensed for had to be protected under the same covenants of the software licensing agreement.

Marriott: Did -- did AT&T, as you understand it, Mr. Wilson, intend its licensing agreements to protect anything other than the software product, as that term is defined in the AT&T, UNIX licensing agreements?

Gant: Objection. Leading, vague, foundation, calls for speculation and legal conclusions.

Wilson: We did not.

Marriott: Did AT&T intend its UNIX licensing agreements to place restrictions on the extent to which its licensees could use, distribute, disclose or transfer modifications and derivative works of the software product independent of any software product included in the modification or derivative work?

Gant: Same objections and also compound.

Wilson: We did not.

So, piece by piece, the picture is getting clearer. I'll write more when I finish reading everything. For now, here's IBM's Legal Authority Re Otis Wilson Deposition [PDF] as text:


Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation











Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells


Pursuant to the request of the Court at the telephone conference held on August 14, 2006, defendant and counterclaim plaintiff International Business Machines ("IBM") hereby submits three cases addressing the issue raised by Magistrate Judge Wells--whether the North Carolina

District Court, in ruling on objections made by a third party, could properly modify or vacate a discovery order previously entered by this Court in ruling on separate objections made by IBM.

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 discovery1); and (2) while other "ancillary" courts may be necessary to issue or enforce subpoenas, those ancillary 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).

1. Fincher v. Keller Industries, Inc., 129 F.R.D. 123 (M.D.N.C. 1990) -- The very federal district court that issued the order upon which SCO relies held that in an "ancillary" proceeding to enforce a subpoena issued to a third party, the North Carolina court cannot allow discovery that has been disallowed by the court before whom the action is pending. In resolving an objection to a deposition subpoena, the North Carolina court stated "[e]ven though this Court is the proper one to rule on plaintiffs' motion [to compel compliance with a deposition subpoena], it nevertheless will look at the status of the proceedings in the district where the action is pending and at relevant rulings issued by that court. . . . The parties discovery rights in this district can rise no higher than their level in the district of trial." Id at 125 (emphasis added).

2. Mycogen Plant Science, Inc. v. Monsanto Co., 164 F.R.D. 623 (E.D. Pa. 1996) -- In reviewing a motion to quash a subpoena issued in connection with an action pending in


another jurisdiction, the court recognized that "[t]he unpleasant task of determining the scope of discovery" falls on the court before whom the action is pending. "A district court whose only connection with a case is supervision of discovery ancillary to an action in another district should be especially hesitant to pass judgment on what constitutes relevant evidence thereunder. The ancillary court should take its law of the case from the non-ancillary court and should avoid influencing that court's view of the legal issues." Id at 627.

3. Dreyer v. GACS, Inc., 204 F.R.D. 120 (N.D. Ind. 2001) -- In an action to enforce a subpoena issued to a third-party in Indiana, the court stated that "[a]s the `ancillary' court, we recognize [the forum court's] discovery deadlines as a matter of comity and accommodation to the trial court. Stated another way, the Defendants' discovery rights here are no greater than they are in the Western District of New York." Id at 122 n. 5 (emphasis added).


IBM respectfully requests that the Court enter an order stating that its prior order dated January 26, 2006 [Docket #604] remains in effect.

DATED this 16th day of August, 2006.

Snell & Wilmer L.L.P.

/s/ Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

Evan R. Chesler
David R. Marriott
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

1 Paramount Film Distributing Corp. v. Civic Center Theatre, Inc., 333 F.2d 358, 362 (10th Cir.1964) ("It is of course the duty of the trial judge to supervise and control discovery; he is the only one who can do it effectively. If this duty is not exercised, the rules of discovery may be perverted to bring about serious injustices.")



I hereby certify that on the 16th day of August, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system to the following:

Brent O. Hatch
Mark F. James

Stephen N. Zack
Mark J. Heise

and by U.S. Mail, postage pre-paid to:

Robert Silver
Edward Normand

/s/ Todd M. Shaughnessy


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