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To read comments to this article, go here
A Decision on the Wilson Deposition from Judge Wells and Some Context
Tuesday, August 22 2006 @ 01:29 AM EDT

There is a decision on the matter of the deposition of Otis Wilson. Magistrate Judge Brooke Wells has issued her Order and Memorandum Decision [PDF]. If I had to describe it in one sentence, I'd say she has thrown poor Mr. Wilson to the wolves in North Carolina and told him it's his own fault.

The problem, according to Judge Wells, is that Mr. Wilson submitted himself to the North Carolina court by submitting a motion to quash there. He should have come to her court, she says, in effect, if he wanted relief from her. You will recall that Intel did exactly that when it got a subpoena at the same time as Mr. Wilson. However, Mr. Wilson was probably relying on Judge Wells' previous order limiting SCO to new matters and blocking them from asking personal questions.

The North Carolina judge, however, quite reasonably pointed out in the hearing transcript that he doesn't know what is new and what isn't, so it's not an enforceable line in his court, so he chose the time limit of 4 hours as a surrogate. And because the matter of the deposition is now in North Carolina, I gather Judge Wells can't see what she can do about it.

They have, she says, the authority to modify subpoenas (that leaves for appeal, if anyone bothers, whether they have the authority to alter her orders, because they just did). So she threw up her hands and he's SCO's now for four hours.

As I read this order, they can ask him about his ex-wives for four hours, if they wish to. They can ask him again everything they asked in 2004 and see if they can get him to contradict himself. They can ask him about new matters and old.

Judge Wells states that SCO is not to view this as an opportunity to reopen discovery, but that is a bit meaningless, because it is another deposition, and if there are no restrictions other than time, why isn't it reopening discovery? If SCO asks about new matters, it does reopen discovery. And if they don't ask about new matters because they can't reopen discovery, then what can they ask him about? Rehash the old and hope he slips up? It's a meaningless sentence in the context of the Order, to my reading. For one thing, if her orders can be overthrown by North Carolina, what does her restriction matter?

SCO is salivating, I'm sure. This is, indubitably, a victory for SCO.

Why might it matter? I can see it mattering in a motion for summary judgment by IBM, if SCO can rattle or confuse this retired gentleman so that he says things that appear contradictory. That should be just enough to survive summary judgment, I'd think, if SCO can raise a slim doubt about what the contract meant. That's really all you need to survive a summary judgment motion. I don't think it matters to the litigation in the end, though, no matter what happens in North Carolina.

The moral of the story is lawyers should not go on vacation. Todd Shaughnessy was unreachable during this drama in North Carolina, unfortunately, while he was on vacation (and did SCO lawyers know that and use it? -- I would guess so). I'm kidding. They need a break like all other humans, but that is what happened. And in retrospect, it might have been better if Mr. Wilson had kept David Marriott as his lawyer. So now he will just have to endure SCOfolk a bit longer. I doubt it will make a huge difference to the case, but it will make a difference to Mr. Wilson.

So you can understand how SCO pulled this trick off, here are four documents in the North Carolina matter, first the Declaration of Edward Normand [PDF], then the Brief in Support of Motion for Leave to File Declaration [PDF] and the Declaration by Todd Shaughnessy [PDF], and finally SCO's Plaintiff's Supplemental Opposition Memorandum in Response to Otis Wilson's Motion to Quash Deposition [PDF], as text. My thanks to Chris Lingard for helping.

This isn't the complete record, but I picked the ones that expressed each parties' position best, just to give you a clear picture of what has been going on in North Carolina.

I think it's self-explanatory, especially if you've been reading Groklaw a while. Remember when all those weird subpoenas went out to Intel and the others, and we were all laughing at how incomplete they were and so very odd to have sent them out the night before, telling people to show up in two different states, etc.? It turns out SCO did the same thing to Otis Wilson, sending him a subpoena, without telling him where to appear. So he and IBM pretty much treated it as not effective. But as I read what happened next, I see now why SCO did the subpoenas that way, because when the trick works, it works. And in North Carolina, it worked.

The trick, I gather, is to be the only one prepared to speak to the judge. While Mr. Wilson was trying to find his own lawyer, and did, and the lawyer needed time to get up to speed and evaluate how to handle the matter, SCO was telling the judge that IBM's Todd Shaughnessy was kinda sorta if not exactly representing Wilson. And compounding the problem, Shaughnessy, the only lawyer in the teleconference with Wells on January 26, and hence the only one who could rebut SCO's Normand as to what happened, was on vacation and unreachable. And from all I can see, by the time he came back, the North Carolina judge was already persuaded by SCO's whining about unfairness. Old timers here will remember that the same technique worked pretty well in Utah at first too.

SCO, I gather, would like to talk to Mr. Wilson about the BSDi case. And they told the judge in NC that they only had a week to prepare for the first deposition of Mr. Wilson and they didn't notice his deposition from that case in time to ask him about it. Shaughnessy tells the court, when he finally tries to explain, first that he never represented Mr. Wilson and that since SCO purports to be Novell's successor-in-interest, how could it not have that old, old testimony? In any case, it wasn't IBM holding out documents; it turned over to SCO materials it got from Novell when it got them. But judging from the ruling in NC, the judge there wasn't buying it or just didn't care, so he ordered the deposition to go forward. Judge Wells had earlier allowed it, and the only difference is that there are now no limits other than time.

I'll place the texts of the North Carolina matter after the Order, separated by rows of stars, so you will understand the context. As I say, ultimately it probably doesn't much matter, because there are so many other witnesses who confirm what Mr. Wilson has said about the contract's interpretation. But I feel very bad for poor Mr. Wilson.

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

_____________________________________________

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

_____________________________________________

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_________________________________

ORDER AND MEMORANDUM
DECISION

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

___________________________________

On August 14, 2006, the court held a conference call at the request of the parties with Mr. Edward Normand representing The SCO Group Inc. (SCO), and Mr. Todd Shaughnessy representing International Business Machines Corporation (IBM). The crux of the instant dispute revolves around the deposition of Mr. Otis Wilson that is to occur in North Carolina. Mr. Wilson was deposed previously and is to undergo a second four hour deposition as ordered by Magistrate Judge Sharp from the Middle District of North Carolina. The parties are in disagreement about the scope of the deposition. IBM argues that it should be confined to only "new matters" as previously ordered by this court. 1

Conversely, SCO argues that the scope of the deposition is not limited. At the end of the call, the court asked both parties to provide what they perceived to be the three strongest cases in support of their positions. On August 16 both

parties provided the court with their respective cases. 2

After considering the relevant law, the parties' arguments, the transcript of the proceedings before Magistrate Judge Sharp and the written order that followed those proceedings, the court enters the following:

The court finds that pursuant to Rule 45(c) the North Carolina court had jurisdiction to "quash or modify the subpoena." 3

"The Court for the district wherein the deposition is being taken decides controversies with respect to depositions." 4

By petitioning the court in North Carolina to quash his deposition, Mr. Wilson submitted to the jurisdiction of that court in matters pertaining to his deposition. Moreover, if Mr. Wilson was concerned about how the court in North Carolina would rule because it was not as familiar with this case, Mr. Wilson could have sought a stay in North Carolina and asked that court to remit the matter to this court where the action is pending. Mr. Wilson, however, did not seek this type of procedure.

IBM argues that a "parties' discovery rights . . . can rise no higher than their level in the district of trial." 5

Thus, SCO is bound by this court's previous order limiting the deposition to new matters. The court does not disagree with IBM's contention that a party is bound by the discovery rights in the district where a case is being tried. The court finds, however, that this case is markedly different than the primary case relied upon by IBM. The court further finds that

2

Magistrate Judge Sharp considered this court's prior ruling and in essence enacted it through the time limitation requirement.

In Fincher, 6

discovery had ended and the plaintiffs sought discovery in another district without first obtaining permission to conduct additional discovery from the court where the underlying action was proceeding. 7

Here, this court gave SCO permission to redepose Mr. Wilson prior to the proceedings in North Carolina. Thus, SCO had the underlying right to depose Mr. Wilson.

Next, at the conclusion of the hearing the following exchange took place between counsel for Mr. Wilson and Magistrate Judge Sharp.

Your Honor, I think you did indicate you were not placing any limits on the subject matter. I'm assuming that to the extent that the Utah court had limited it to new matters . . . that would still be enforce.

The time limitation -- the new matters is an impossible defining line. It just -- it couldn't be enforced in the deposition room. It couldn't be meaningfully enforced here in this courtroom. So the time limitation is the surrogate for that. 8

Based on the foregoing, the court orders that the deposition of Mr. Wilson should go forward in the time and manner as ordered by the North Carolina court. But, the court wishes to note that its decision should not be viewed as any type of invitation to reopen the discovery process.

3

IT IS SO ORDERED.

DATED this 21st day of August, 2006.

Brooke C. Wells United States Magistrate Judge

1 See docket no. 604 entered on January 26, 2006.

2 SCO provided their documents by hand delivery and IBM e-filed their document. See docket no. 740. SCO's respective cases include, In re Sealed Case, 141 F.3d 377 (D.C. Cir. 1998); Lieberman v. American Dietetic Assoc., 1995 WL 250414 (N.D. Ill. 1995); High Tech Communications v. Panasonic Co., 1995 WL 58701 (E.D. La. 1995). And, although not in SCO's "top three," SCO also cites to Peterson v. Douglas County Bank & Trust Co., 940 F.2d 1389 (10th Cir. 1991), as potentially controlling of the issue before this court. IBM's cases include Fincher v. Keller Industries, Inc., 129 F.R.D. 123 (M.D.N.C. 1990), a case arising from the same federal district court that issued the subpoena to Mr. Wilson in this case; Mycogen Plant Science, Inc. v. Monsanto Co., 164 F.R.D. 623 (E.D. Pa. 1996); and Dreyer v. GACS, Inc., 204 F.R.D. 120 (N.D. Ind. 2001).

3 Fed. R. Civ. P. 45(c)(3)(A).

4 Fincher, 129 F.R.D. at 125.

5 Fincher, 129 F.R.D. at 125.

6 129 F.R.D. 123.

7 See id.. at 125.

8 Trans. from hearing before Magistrate Judge Sharp p. 30-31 (emphasis added).

4

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

UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
Misc. No.

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_________________________

DECLARATION OF
EDWARD NORMAND

_________________________

1. I am a member of the law firm Boies, Schiller & Flexner LLP ("BSF"), which represents The SCO Group, Inc. ("SCO") in the action styled The SCO Group, Inc. v. International Business Machines, Inc., Case No. 2:03CV0294DAK (D. Utah) (the "Utah litigation"). I submit this Declaration in connection with SCO's Motion to Enforce Subpoena and Compel Deposition filed on April 12, 2006.

2. I describe below the relevant events leading up to the parties' teleconference with Magistrate Judge Brook T. Wells of the United States District Court for the District of Utah on January 26, 2006, the substance of the January 26 teleconference as it relates to SCO's Motion, and my unsuccessful efforts to enforce the Order issued by Magistrate Judge Wells.

3. In the Utah litigation, International Business Machines, Inc. ("IBM") is represented by two law firms: Cravath, Swaine & Moore, in New York, New York ("Cravath"); and Snell & Wilmer LLP, in Salt Lake City, Utah ("Snell & Wilmer"). Cravath has also represented non-party Otis Wilson since May 2004.

4. On January 16, 2006, SCO sent a subpoena and notice of deposition for Mr. Wilson to Peter Ligh of Cravath. SCO did so in consideration of the fact that Cravath had previously accepted notices of deposition for third parties that Cravath represented. Mr. Ligh subsequently informed BSF, however, that Cravath would not accept service for Mr. Wilson. Accordingly, on January 19, a process server retained by BSF served a deposition subpoena on Mr. Wilson in Greensboro, North Carolina. The deposition was noticed for January 27 in Greensboro.

5. On January 25, I took a deposition, defended by Mr. Ligh, of another non-party. In response to my question during a break in the deposition, Mr. Ligh told me that it was his belief that Mr. Wilson had not been served with a subpoena and that as far as he knew there would be no deposition of Mr. Wilson on January 27. He suggested that I contact David Marriott of Cravath or Todd Shaughnessy of Snell & Wilmer.

6. I subsequently left a message for Mr. Marriott (after I was unable to reach him) and spoke with Mr. Shaughnessy informing him that Mr. Wilson had been properly served with a subpoena for deposition on January 27, that in SCO's view Mr. Wilson was obligated to appear for deposition on January 27, and that if Cravath or IBM believed otherwise it should raise the issue during the previously scheduled teleconference with Magistrate Judge Wells on January 26.

7. Mr. Shaughnessy appeared for IBM during the January 26 teleconference with the Court and stated that although Cravath (not Snell & Wilmer) represented Mr. Wilson, Mr. Marriott would not be able to participate in the call. With respect to Mr. Wilson's deposition, Mr. Shaughnessy argued that Mr. Wilson had already been deposed

2

and therefore should not be deposed again. He also argued that in cross-examining Mr. Wilson in that deposition, counsel for SCO had asked too many personal questions.

8. In addition, Mr. Shaughnessy said that he was not sure whether Mr. Wilson had been properly served with a deposition subpoena, but that even if Mr. Wilson had been properly served, it was Mr. Shaughnessy's understanding that no attorney from Cravath was prepared to defend to deposition. Mr. Shaughnessy therefore asked that the deposition be moved back a few weeks.

9. I informed the Court that Mr. Wilson had been properly served and that he was obligated to appear for deposition the next day. I explained to the Court that it was IBM who had noticed the deposition of Mr. Wilson in June 2004, not SCO. I explained that although SCO did cross-examine Mr. Wilson after IBM's examination, several new matters had arisen in the case since the time of that deposition, including that SCO had found in a large document production (made only a week before Mr. Wilson's deposition) the transcript of testimony Mr. Wilson had given in another matter involving the same issues as his June 2004 declaration and deposition testimony, and that in response to questions from counsel for IBM, several subsequent deponents had testified to their agreement to Mr. Wilson's June 2004 testimony.

10. I further expressed my surprise that no attorney from Cravath was prepared to defend the deposition, and I noted that although Mr. Shaughnessy said he did not represent Mr. Wilson, I understood him to be asking to postpone Mr. Wilson's deposition on behalf of IBM. I said that as a courtesy to counsel I would agree to take Mr. Wilson's deposition at a later date, in February, with the understanding that Mr. Wilson remained under subpoena. (I have since reached similar agreements with Mr.

3

Shaughnessy with regard to other third parties.) Mr. Shaughnessy agreed to those conditions of the postponement.

11. The Court orally ruled that Mr. Wilson's deposition was postponed for a date to be determined by the parties in February, that his deposition was to be limited to "new matters," including Mr. Wilson's previous deposition testimony, and that Mr. Wilson not be asked about "personal matters" during the deposition. The Court subsequently entered the following on the docket:

Minute Entry for proceedings held before Judge Brooke C. Wells: Telephone Conference held on 1/26/2006. The Court hears arguments as to depositions as rules as follows: The depositions of Otis Wilson and Ted Kennedy ONLY may be extended by 30 days (by 2/26/05). 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. (alp, ) (Entered: 01/26/2006)

12. On February 10, as had been our practice for many months, I spoke with Mr. Shaughnessy regarding the numerous pending discovery-related issues. Considering his involvement in the January 26 teleconference, I included Mr. Wilson's deposition among the issues discussed with Mr. Shaughnessy by asking that IBM provide a date for the deposition. Mr. Shaughnessy acknowledged my request in a February 11 e-mail to me, in which he listed the issues we had discussed and his response. Confirming the Court's order that Mr. Wilson appear for deposition, Mr. Shaughnessy wrote:

4

3. SCO has requested proposed deposition dates for Otis Wilson and Edward Kennedy.

We are working on dates. Please let me know whether you have an objection to one/both of these depositions occurring in late March.

13. I responded to Mr. Shaughnessy's February 11 e-mail on February 12 writing: "SCO would strongly prefer to depose both Mr. Wilson and Mr. Kennedy in the next few weeks."

14. I subsequently requested a date for Mr. Wilson's deposition during phone calls with Mr. Shaughnessy. Mr. Shaughnessy said at least once during those calls that counsel for IBM had not been able to "get a date" from Mr. WIlson. On February 27, alluding to the scheduled end of discovery on March 17, I sent Mr. Shaughnessy the following e-mail:

Todd --

This is to confirm that I have now repeatedly asked you to provide a deposition date for Otis Wilson, that IBM regards the Court as having ordered their counsel to produce Mr. Wilson for deposition (I recall that she asked you to provide a date for him in February), that counsel for IBM has attempted to obtain a deposition date from Mr. Wilson, that counsel has not been able to obtain a deposition date from Mr. Wilson, that counsel is continuing to attempt to get a deposition date from Mr. Wilson, and that SCO is entitled to depose Mr. Wilson after March 17 if Mr. Wilson does not make himself available for deposition before that time. Please let me know. Regards,

Ted

15. In response, Mr. Shaughnessy raised the issue of what "new matters" SCOC proposed to raise with Mr. Wilson during the deposition. He also said that it was now his understanding that an attorney in North Carolina might be representing Mr. Wilson but

5

that he did not know the name of the attorney. On March 2, I sent Mr. Shaughnessy the following e-mail:
Todd --

We do need to resolve the Otis Wilson deposition issues. If IBM continues to disagree with my view of the appropriate scope of the deposition (or if IBM and/or Mr. Wilson's attorney does not agree to a flat time limitation, like 4 hours), or if Mr. Wilson and/or his attorney simply decline to provide a date to IBM, then I need to call the Magistrate Judge. I would propose to do so today or tomorrow. Thanks,

Ted

16. In response, Mr. Shaughnessy said that he would get the name of Mr. Wilson's North Carolina attorney. On March 6, I asked Mr. Shaughnessy by e-mail to send me the name of the North Carolina attorney. On March 6, Mr. Shaughnessy sent me the following e-mail:

Ted,

Otis Wilson's North Carolina counsel is Mike Medford, who can be reached at [redacted]. Snell has never represented Mr. Wilson. Cravath is not handling Mr. Wilson's motion to quash and/or for a protective order, though I don't believe Cravath has been fired.

Todd

17. I subsequently spoke with Mr. Medford on several occasions to try to arrange a date for Mr. Wilson's deposition within a scope acceptable to Mr. Medford and his client, but we were unable to reach agreement. It is my understanding from those discussions that Mr. Medford has had some trouble getting in touch with Mr. Wilson.

6

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

This the 12th day of April, 2006.

[signature]
Edward Normand

7

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

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 01: 06-mc-00046 PTS

The SCO Group, Inc.,

Plaintiff,

v.

International Business Machines Corp.,

Defendant.

______________________________

BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO FILE DECLARATION

______________________________

Otis L. Wilson, through undersigned counsel and pursuant to L. R. 7.3 (M.D.N.C.), submits this memorandum in support of his Motion for Leave to File the Declaration of Todd Shaughnessy.

Plaintiff SCO Group, Inc. filed its Motion to Compel Deposition and Enforce Subpoena on April 12, 2006. That Motion contained an Affidavit of Edward Normand, purporting to recite what happened in a conference call with the Magistrate judge in the Utah Action to which the proposed deposition in this district relates. At SCO Group's request, the Court entered an order on April 19, 2006, giving Mr. Wilson until Friday, April 21, to respond to SCO Group's Motion.

In accordance with the Court's expedited briefing order, Mr. Wilson filed his response and a corresponding Motion to Quash April 21. As noted in those papers, counsel for IBM had a different understanding of events in the conference call than the description set forth in Mr. Normand's Affidavit. Unfortunately, that counsel was out of the country during the period covered by the expedited briefing schedule, so that an affidavit or declaration could not be

obtained from him in time for inclusion with the papers filed on the expedited deadline. Mr. Wilson's papers informed the Court of this problem.

SCO Group's most recent filings continue to rely on the interpretation of the conference call with the Magistrate judge in Utah that differs from that of the IBM attorney who participated in the same conference call. That IBM attorney has now returned to the country and counsel for Mr. Wilson has obtained a declaration executed by him to document his recollection of the disputed conference call with the Magistrate judge and certain other matters addressed in SCO Group's affidavit and papers. Mr. Wilson now seeks leave of court to file that declaration, and this brief is submitted in support of that motion.

ARGUMENT

It is in the interest of the fair and efficient administration of justice that Mr. Wilson be granted leave to file the Shaughnessy declaration to the extent that leave of court is required. That declaration was not included with Mr. Wilson's original papers solely because Mr. Shaughnessy's absence from the country until after expiration of the expedited deadline precluded Mr. Wilson from obtaining the declaration at that time. It would be unfair to Mr. Wilson if he were precluded from providing the Court with the opposing affidavit of Mr. Shaughnessy solely because of the interaction of the expedited briefing schedule with Mr. Shaughnessy's trip out of the country.

CONCLUSION

For the reasons stated, the Motion for Leave to File the Shaughnessy declaration should be granted.

-2-

This the 28 day of April, 2006.

/s/Michael T. Medford
Michael T. Medford
N.C. State Bar # 7227
Of MANNING, FULTON & SKINNER, P.A.
Attorneys for Otis L. Wilson
[address, phone, fax, email]

3

CERTIFICATE OF SERVICE

This is to certify that a copy of the Brief in Support of Motion For Leave to File Declaration was duly served this date on counsel for all parties by electronic means if available or otherwise by forwarding a copy thereof enclosed in a postage-paid envelope, deposited in the United States Mail, addressed as follows:

Robert R. Marcus
SMITH MOORE, L.L.P.
[address, phone, fax]

Heather Howell Wright
SMITH MOORE, L.L.P.
[address, phone, fax]

Brent O. Hatch

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER, LLP
[address, phone, fax]

David Marriott
Cravath, Swaine & Moore LLP
[address, phone, fax]

Todd Shaughnessy
Snell & Wilmer
[address, phone, fax]

4

This the 28 day of April, 2006.

/s/Michael T. Medford
Michael T. Medford
N.C. State Bar # 7227
Of MANNING, FULTON & SKINNER, P.A.
Attorneys for Otis L. Wilson
[address, phone, fax]

5

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

UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
Misc. No.

THE SCO GROUP, INC.,

Plaintiff,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.

_________________________

DECLARATION OF TODD M. SHAUGHNESSY

_________________________

1. I am more than eighteen years of age and all statements in this declaration are based on my personal knowledge, except as otherwise expressly indicated.

2. I am duly licensed by the Utah State Bar as an attorney at law, and I am admitted to practice before the United States District Court for the District of Utah. I am a partner with the law firm of Snell& Wilmer, LLP.

3. I am counsel of record for International Business Machines ["IBM"] in a case pending before the United States District Court for the District of Utah bearing the caption The SCO Group, Inc. v. International Business Machies Corp., and designated as Civil Action No. 2:03CV-0294DAK.

4. Neither myself nor Snell & Wilmer have ever represented Mr. Otis L. Wilson. Indeed, I have never met or spoken to Mr. Wilson.

5. I have reviewed the attached Declaration of Edward Normand that I understand to have been submitted in connection with motions relating to the proposed depositon of Mr.

Wilson. I have been personally involved in various proceedings before the Utah court with respect to the proposed deposition of Mr. Wilson, and submit this declaration to clarify what has occurred during these proceedings.1

6. On July 1, 2005, the Court in the Utah action set a deadline of January 27, 2006, for the completion of certain fact discovery, including the discovery for which The SCO Group, Inc. ["SCO"] seeks to take Mr. Wilson's deposition.

7. On January 26, 2006, the day prior to the expiration of that deadline, the parties held a telephone conference with Magistrate Judge Brooke Wells, the Magistrate Judge assigned to handle discovery matters in the Utah case. I participated in that conference call on behalf of IBM. Mr. Normand participated on behalf of SCO. At issue was a request by SCO to take five depositions. Mr. Wilson's deposition was among them.

8. Although counsel for SCO had provided a copy of a subpoena that purported to require Mr. Wilson to appear for a deposition on January 27, 2006 (with no location for the deposition specified), counsel for SCO did not provide me or file with the Utah court a return of service for that subpoena. Mr. Normand did not inform me that Mr. Wilson had been served with that subpoena until the day before the January 26 telephone conference, and less than two days before SCO purportedly intended to depose Mr. Wilson. Because of this, and because IBM objected to SCO taking Mr. Wilson's deposition, we had not made arrangements to appear for the deposition on January 27.

9. At the outset of the January 26 hearing, I informed Judge Wells that I was appearing for IBM, that I did not represent Mr. Wilson, and that I did not represent any of the

2

other third parties whose depositions were the subject of the hearing. Three of the depositions at issue, for example, were of corporations that I knew were represented by their own counsel. I was sensitive to the fact that these corporations may have had their own reasons for filing motions for protective orders or to quash the subpoenas purportedly served on them (which I understand at least two subsequently did) and I did not believe it was appropriate for me to address whatever objections they may have had to the subpoenas. I therefore communicated very clearly to Judge Wells that I did not represent any of the third parties (including Mr. Wilson), that these third parties may have their own, independent reasons for challenging the subpoenas which I could not properly address, and that I was arguing againsst the depositions only on behalf of my client, IBM.

10. I informed the Court that IBM objected to these depositions for a variety of reasons. The principal reason was because the Court previously had ordered that these depositions must be completed by January 27, that SCO could and should have sought leave to take these depositions earlier in the case, and that SCO effectively was seeking to take these depositions during a time that the Court had ordered discovery be limited to other matters. I also advised the Court that IBM objected to a second deposition of Mr. Wilson, and informed the Court that while I did not attend Mr. Wilson's deposition, and do not represent him, it was my understanding that counsel for SCO had asked him a number of questions about his personal life that were unrelated to any issue in the case and which I believe were inappropriate.

11. Judge Wells orally ruled that two of the depositions at issue, Mr. Wilson's deposition and the deposition of Mr. Ted Kennedy, could be taken after the January 27, 2006 discovery cutoff. With respect to Mr. Wilson's deposition, Judge Wells further order that

3

counsel for SCO was not to inquire into personal matters and that his deposition would be limited to "new information."

12. Contrary to the statements in Mr. Normand's declaration, I did not agree, during the telephone conference or thereafter, to make Mr. Wilson available for a deposition. As mentioned above, I do not represent Mr. Wilson, I have never spoken to him, and I have never had the authority to agree on his behalf to his deposition being taken a second time. During the hearing, I was asked by Judge Wells when his deposition could be taken. I informed the Court that we did not learn until the day before that SCO had purported to serve Mr. Wilson, that I was not certain whether he actually had been served, and we therefore could not appear for a deposition in North Carolina the next morning. I informed Judge Wells that counsel would cooperate in setting an appropriate date.

13. During February and early March 2006, I corresponded with Mr. Normand about a variety of discovery matters, including Mr. Wilson's deposition. In response to Mr. Normand's question, I informed him that we did not have a date for Mr. Wilson's deposition. I also attempted to get an understanding from Mr. Normand about what "new" information SCO intended to inquire duing Mr. Wilson's deposition. Mr. Normand was unwilling to commit to any meaningful limitation in this regard.

14. I was advised that Mr. Wilson had counsel in North Carolina representing him and communicated this fact to Mr. Normand. I also communnicated to him my belief that while Judge Wells had granted SCO leave to take this deposition after the discovery cutoff, I did not understand her to have ruled on whatever objections Mr. Wilson may have to his deposition being taken a second time.

4

15. Importantly, Mr. Normand's declaration omits any reference to our subsequent conference call with Judge Wells on the issue of Mr. Wilson's deposition. On March 3, 2006, Mr. Normand and I participated in a conference call with Judge Wells on various matters. During that call, I raised with Judge Wells the issue of Mr. Wilson's deposition and her January 26 ruling with respect to the taking of his deposition. I raised this issue with her for at least two reasons. First, I wanted to make sure she was aware of the status of this matter. Second, I hoped to get further guidance from her about whether she had indeed considerred and rejected Mr. Wilson's objections to having his deposition taken a second time, as I understand SCO argues in the papers it has filed with the Court.

16. I advised Judge Wells that Mr. Wilson's deposition had not been taken, that he was represented by counsel in North Carolina, and that Mr. Wilson's North Carolina counsel was evaluating Mr. Wilson's objections to having his deposition taken a second time and was considering filing a motion with the Federal District Court in North Carolina, the Court from which the subpoena was issued. I reminded Judge Wells that Mr. Wilson was not represented at the January 26 hearing and that I understood her January 26 ruling to have resolved only the issue of whether SCO could take the deposition after the January 27, 2006 discovery cutoff.

17. In response, Mr. Normand argued to Judge Wells that her January 26 ruling was not so limited. Mr. Normand argued that Judge Wells had considered and rejected Mr. Wilson's various objections to having his deposition taken a second time and urged Judge Wells to limit the authority of the North Carolina Court to consider Mr. Wilson's objections. Judge Wells declined to do so. She informed Mr. Normand and me that matters relating to any objections or motion to quash by Mr. Wilson were matters that would need to be raised with the Court in North Carolina.

5

I understand that counsel for SCO has raised with this Court the issue of documents that were produced prior to Mr. Wilson's last deposition, including a transcript of his deposition in another matter. I was not personally involved in the production of these documents, but I am reliably informed and understand the following to be true:
(a) The documents to which SCO refers were not produced by IBM. The documents were produced by Novell, Inc. ["Novell"] in response to a subpoena. The documents were produced by Novell to Cravath, Swaine & Moore, LLP ["Cravath"], co-counsel for IBM in the Utah action.

(b) After receipt of the documents, Cravath copied the production in its entirety and as a courtesy provided it to counsel for SCO. The documents were provided in advance of Mr. Wilson's prior deposition. The manner and timing of the production was consistent with the way in which we have provided to SCO documents produced by other third parties.

(c) Additionally, the documents at issue were available to SCO long before being provided by Cravath. SCO has asserted from the beginning of the Utah case that it is Novell's successor-in-interest with respect to the assets at issue, and SCO has produced thousands of pages of documents that it received from Novell in connection with the acquisition of the assets at issue.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on the 28th day of April, 2006.

[signature](SEAL)
TODD M. SHAUGHNESSY


I was out of the country on a family vacation from April 13, 2006 to April 23, 2006, during which time I understand some of the briefing on these motions was filed. Counsel for Mr. Wilson attempted to reach me during that time for the purpose of responding to Mr. Normand's declaration, but I was unable to respond.

6

CERTIFICATE OF SERVICE

This is to certify that a copy of the Declaration of Todd M. Shaughnessy was duly served this date on counsel for all parties by electronic means if available or otherwise by forwarding a copy thereof enclosedf in a postage-paid envelpe, deposited in the United States Mail, addressed as follows:

BRENT O. HATCH
Mark F. James
HATCH JAMES & DODGE
[address, phone, fax]

Stuart H. Singer
BOIES, SCHILLER & FLEXNER, LLP
[address, phone, fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER, LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER, LLP
[address, phone, fax]

David Marriott
Cravath, Swaine & Moore, LLP
[address]

7

Todd M. Shaughnessy
Snell & Wilmer. LLP
[address]

Donald J. Rosenberg
[address]

This the ____day of April, 2006

/s/Michael T. Medford
Michael T. Medford
N.C. State Bar #7227
Of MANNING, FULTON & SKINNER, P.A.
Attorneys for Otis L. Wilson
[address, phone, fax, email]

8

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

UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 01: 06-MC-00046 PTS

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_________________________

Case No. 2:03CV0294DAK (pending in the District Court of Utah before Judge Dale A. Kimball)

ORAL ARGUMENT REQUESTED

_________________________

PLAINTIFF'S SUPPLEMENTAL OPPOSITION MEMORANDUM IN
RESPONSE TO OTIS WILSON'S MOTION TO QUASH DEPOSITION

Pursuant to Rules 30 and 45 of the Federal Rules of Civil Procedure and Local Rule 7.3 of the United States District Court for the Middle District of North Carolina, Plaintiff, The SCO Group, Inc. ("SCO"), submits the following supplemental opposition memorandum in response to the new matter raised in Otis Wilson's Reply Brief in Support of Motion to Quash.

ARGUMENT

In his Reply Memorandum, Otis Wilson relies on the declaration of Todd M. Shaughnessy, whose declaration Mr. Wilson did not present in his opening memorandum, both to raise new matters therein and to make other arguments that Mr. Wilson could have made but did not make in his opening memorandum. To address the new matters and new arguments raised in Mr. Shaughnessy's declaration, SCO files this supplemental response memorandum and shows below why each of the new points that Mr. Wilson and IBM jointly present is incorrect and unavailing.

First, Mr. Wilson now argues that this new deposition could not be limited to "new" matters because this deposition would focus on his 1992 deposition testimony, the transcript of

which was produced among 50,000 pages of documents at most one week before his IBM deposition. Neither Mr. Wilson nor his joint IBM counsel Mr. Shaughnessy disputes that the Magistrate Judge rejected that argument because it is not reasonable to conclude that in five business days, at most, SCO could have reviewed 50,000 pages of documents relating to hundreds of issues and determined which fraction of those documents would be relevant to Mr. Wilson's deposition. Indeed, it takes more than one week to load 50,000 pages of documents into the searchable document database that SCO uses. By way of example, SCO produced to IBM one of the world's largest computer companies twelve days ago approximately 30,000 pages of documents that might or might not be relevant to the deposition of a former SCO engineer, and IBM claims that it cannot depose that engineer this week because it has not been able to review the documents.

Second, Mr. Wilson now argues that SCO could have and should have obtained Mr. Wilson's deposition testimony directly from the party that produced it to IBM (Novell, Inc.), because Novell is SCO's predecessor-in-interest. Mr. Wilson either carefully avoids or is simply ignorant of the facts. In fact, SCO sued Novell in January 2004 in United States District Court for the District of Utah. The suggestion that SCO could have simply contacted its predecessor- in-interest and quickly obtained all documents that might relate to Otis Wilson is incorrect. And Mr. Wilson has no response to the fact that both prior to and at the time of producing the 50,000 pages of documents, IBM declined to inform SCO that any documents produced from Novell were even in the production.

Third, Mr. Wilson now argues that if his previous deposition were all that SCO was concerned with, SCO should have sought his deposition shortly after SCO discovered the previous deposition testimony. This argument does not relate in any way to the substance of

2

both SCO's and Mr. Wilson's motions at issue. It obviously makes no difference to the relevance of his previous testimony or to the minimal burden Mr. Wilson faces. To the extent that Mr. Wilson intimates that SCO must not have regarded his previous testimony as relevant, the argument is specious. Both SCO and IBM faced a limit on the number of depositions that could be taken. Unsure whether Magistrate Judge Wells would regard SCO's request as a "deposition" to be counted against it, SCO more than reasonably waited to complete a substantial number of its depositions before determining that it could afford to subpoena and notice Mr. Wilson. In addition, a party prefers to have in hand as many relevant documents as possible before deposing any key fact witness. If anything, the amount of time SCO took between June 2004 and January 2006 was proportional to and a function of how relevant SCO regards Mr. Wilson's testimony to be. Mr. Wilson simply ignores, moreover, the increasing weight that IBM sought to place on his testimony during the depositions of fact witnesses deposed subsequent to his deposition in June 2004.

Fourth, Mr. Wilson now tries to suggest through Mr. Shaughnessy's carefully worded declaration that Magistrate Judge Wells somehow disagrees with SCO's description of her January 2006 ruling. But Mr. Shaughnessy uses the careful language he does for a reason. During the call on March 3, 2006, Magistrate Judge Wells made the unremarkable point that to the extent Mr. Wilson had acquired North Carolina counsel and was intent on opposing the subpoena in this jurisdiction, there was nothing she could do to interfere with that process. She made no comment on the merits of SCO's argument that is, she did not revise in any way her resolution of the merits of the issue during the previous teleconference on January 26, 2006. It is correct to say that Magistrate Judge Wells could not preclude Mr. Wilson's motion to quash, just as it is correct to say that Mr. Wilson and IBM are in privity for purposes of his motion a point

3

that Mr. Wilson makes no effort to oppose in his reply memorandum, and that Mr. Wilson's reliance on Mr. Shaughnessy's declaration supports. The Magistrate Judge's January 2006 Order, which SCO has never argued operates to preclude this Court from hearing Mr. Wilson's motions, does bind both Mr. Wilson and IBM.

Fifth, Mr. Wilson's latest round of arguments further underscore the patently unfair outcome that he and IBM have sought to achieve over the last several months. It should be clear that if, contrary to fact, Mr. Shaughnessy had prevailed in his arguments to Magistrate Judge Wells on January 26, 2004, then IBM would have argued thereafter that SCO could not take a deposition of Mr. Wilson whether or not SCO filed a motion in North Carolina. Yet Mr. Wilson and Mr. Shaughnessy in support of his motion argue now that Magistrate Judge Wells's ruling is of no significance whatsoever, and they now cite as supposed evidence of the irrelevance of that ruling the fact that Mr. Wilson's counsel at the time simply declined to appear at the January 2006 teleconference regarding their client's rights. This procedural gamesmanship stands in stark opposition to the courtesy extended to Mr. Wilson, his counsel, and IBM's counsel at the time.

Finally, Mr. Wilson now says nothing about the two main factors regarding the propriety of a third-party deposition namely, the relevance of the testimony and the burden imposed on the proposed deponent. SCO's previous submissions establish that Mr. Wilson's testimony in the multi-billion dollar case in Utah is central, his prospective deposition testimony will be crucial, and the deposition would impose a small burden on him. Mr. Wilson's failure to say anything about those points is telling.

4

CONCLUSION

SCO respectfully requests that the Court order Mr. Wilson to appear for deposition pursuant to Rules 30 and 45 of the Federal Rules of Civil Procedure. SCO also respectfully requests that the Court hear oral argument on these motions.

This the 2nd day of May, 2006.

/s/ Robert R. Marcus
Robert R. Marcus
N.C. State Bar No. 20041
Heather H. Wright
N.C. State Bar No. 28874

OF COUNSEL:

SMITH MOORE LLP
[address, phone, fax]

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Edward Normand
[address, phone, fax]

Attorneys for The SCO Group, Inc.

5

CERTIFICATE OF SERVICE

The SCO Group, Inc. hereby certifies that a true and correct copy of the foregoing was served by facsimile and first-class mail on International Business Machines Corporation and counsel for Otis Wilson on:

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address, fax]

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address, fax]

Michael T. Medford, Esq.
Manning, Fulton & Skinner, P.A.
[address, fax]

This the 2nd day of May, 2006.

/s/ Robert R. Marcus
Robert R. Marcus


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