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The Motion for a Protective Order Re Dr. Leitzinger
Sunday, October 22 2006 @ 07:45 AM EDT

I'm seeing a lot of interest in SCO's Notice of Conventional Filing of SCO's Motion for a Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and Certificate of Compliance with Rule 37(c), Exhibits Thereto, and Proposed Order [PDF]. I think some are missing some legal pieces in terms of understanding what it means.

First, Dr. Jeffrey Leitzinger is one of SCO's experts. Leitzinger's expert report in SCO v IBM is #259 on the IBM's Greatest Hits list, under seal of course.

If you look on the website of the company he founded and is the President of, Econ One, you'll find a list of clients that includes IBM, AT&T, GE Capital, Mattel, Union Carbide, PepsiCo, and Caldera and many more. But for sure, they have more than one client. And the company does more than one thing. One of the things it does is consulting work. Here's an article from 2002, when some Enron employees joined the company, and the description of Econ One was this:

"Econ One is a privately held consulting firm specializing in economic and business consulting for a variety of industries. The firm's Energy Group focuses on multiple facets of the energy and utility industry both domestically and internationally. Econ One's client base includes government agencies, law firms, and some of the largest energy companies in the United States. At the core of Econ One's work is the guiding principle: to use their industry experience and quantitative talents to provide a clear vision of complex issues."

So they are an economic research and consulting firm. One of the things the company does is provide experts in litigation. Leitzinger's worked for Boies Schiller in the past as well, for example, in the Sotheby case, which resulted in a huge settlement on terms favorable to Boies Schiller and the class it was appointed by the court to be the lead counsel for. Very likely Dr. Leitzinger's estimate of defendants' overcharges had a hand in the favorable outcome. And as I told you earlier, he was an expert for Caldera in the Caldera v. Microsoft litigation. You can see references to slides he prepared as exhibits in Caldera's Consolidated Statement of Facts in Support of its Responses to Motions for Summary Judgment by Microsoft Corporation. He's worked for Novell also. In short, he is recognized in his field and has been effective testifying as an economics expert in the past at other trials. Here's a rundown of his credentials [PDF]. There's no reason, then, to think badly of him or to imagine negative things just because SCO hired him. His testimony has to do with economics, not code. And frankly, it doesn't look to me like his testimony is going to matter, in that SCO has to prove what I would consider some preposterous things before what he has to say means anything.

Second, this is sealed material, so we can only guess. But here are the pieces to at least remain inside the lines, so to speak. We've seen several types of discovery. Some of them we've seen forever, it feels like, but we haven't seen Requests for Admission. We've seen them spoken about, but we haven't seen what each side may have asked the other to admit to. For that matter, they aren't done with that. November 8 is the deadline for the parties to respond to requests for admission.

What's a request for admission? FRCP Rule 36 tells you all about the subject:

Rule 36. Requests for Admission

(a) Request for Admission.

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request....

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing, subject to Rule 29, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it.

The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served....

(b) Effect of Admission.

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission....

So, for example, IBM might ask SCO to admit that the original agreement between AT&T and IBM is in fact the true agreement. SCO admits it. Then IBM doesn't have to prove it at trial, and ask poor Mr. Wilson to show up again to testify that it is in fact his signature, etc. Can you imagine how long trials would last if no one was willing to admit things as basic as that? Naturally, lawyers will sometimes play games, but the rules plan for that. If you refuse to admit something, and later the other side proves it to be true, you can end up paying whatever it cost the party to prove the matter. Rule 37 talks about that, which is why SCO filed a certificate of compliance (I didn't check, but it's likely also a required filing). Nobody wants to pay the other guy's legal costs, if they can avoid it. It's expensive enough to litigate just paying your own. Here's Rule 37(c), referenced by SCO:

Rule 37(c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.

(1) A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure.

(2) If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 36(a), or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (D) there was other good reason for the failure to admit.

So they naturally wish to be seen as compliant. Experts have to tell the other side quite a bit about their qualifications, as Rule 26 explains:

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

(a) Required Disclosures; Methods to Discover Additional Matter. ...

(2) Disclosure of Expert Testimony.
(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years....

In addition to having to provide their qualifications, experts can be deposed too, as the same rule continues:

(b) Discovery Scope and Limits.

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:....

(4) Trial Preparation: Experts.

(A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided....

I would assume some of that has already happened. Just because we don't see something, it doesn't mean it isn't happening. In those depositions, the other side is very likely to ask if the expert has ever testified before and if the answer is yes, the lawyer will likely ask if he was paid to testify and how much he was paid. And the expert will also likely be asked if he testifies at trials for a living or works in a particular field and just occasionally shows up to testify as an expert in that field. There's no law against testifying for a living, and it's normal for an expert to be paid for his expert reports and trial time -- otherwise who could afford to be an expert? -- but juries tend not to trust professional experts as much as they might someone who is an expert in the field and just got asked to testify here and there. I would be inclined to feel that way myself, on a jury. All of us know that expertise has to do with keeping up in one's field. Even playing the piano requires practice. But there is no actual reason to assume that a professional expert, so to speak, isn't honest. I've certainly known some that were, and I've known some that were not. And again, Leitzinger's company does a lot more than testify at trials.

But what about if a party is asked to admit something or you're an expert and at a deposition you are asked to reveal something that would be a tad embarrassing? You perhaps don't wish to refuse outright and might not mind the parties knowing or the judge, but you don't particularly want the world and his brother to know all your private stuff. Remember the Otis Wilson deposition? He was asked some horrible questions about ex-wives and such. So maybe at a deposition you are asked something really inappropriate, but you have to answer. Your lawyer might want to get that sealed off from public viewing. You know that court filings, transcripts and such end up on Pacer for the whole world to read. So imagine you are an expert, and you've been asked at a deposition how much you made last year testifying at trials? You answered honestly, but as much you might love us at Groklaw, that doesn't mean you really want us to know how much you made last year. Maybe you don't want your competition to have that detailed info. Maybe you don't want your ex wife to have that information. Just saying. It could happen. See the point?

The legal system considers your desire for privacy to be an appropriate matter to address, so it makes arrangements so that it is possible to ask the court for a measure of privacy, not to avoid providing info altogether necessarily, although you can ask for that, but usually arranging to provide it on a need-to-know basis with a measure of privacy maintained. If I were an expert, I'd ask for that. Wouldn't you? And would it mean anything other than that we wanted privacy? Obviously not. Here's how the Rule reads:

(c) Protective Orders.

Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the disclosure or discovery not be had;

(2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the court;

(6) that a deposition, after being sealed, be opened only by order of the court;

(7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

As you can see, the relief can be that the discovery not have to be provided at all. Or it can be that it be provided but only in carefully protected ways. We have no idea at this point what precisely SCO is asking for, or even if it is SCO wanting the order or the expert, so for my part, I think until we have more information, the best thing is to just wait and see. Why leap to conclusions? And why leap to negative conclusions, with nothing to point you in any particular direction? It's a basic Groklaw principle that we try to be fair. It's harder to do that when you have a leaning, but to me, a leaning just means you have to try harder.

I also know that it is vital that people be allowed a measure of privacy. If it were not for things like Rule 26, nobody would ever want to testify as an expert, because it would cost them their personal privacy, and they're not even in the game as a party, and so the whole system would break down. We need experts willing to explain to juries things they perhaps don't know, like economics, or tech. Dan Bricklin, as you might have noticed in the News Picks article, just helped to win a patent infringement defense case, by testifying and explaining the tech in terms the jury in Hyperion v. Outlooksoft could understand. Should his reward be that we all get to peruse his private financial information?

If I were an expert in a trial (on what? -- hmm...dealing with trolls and shills, perhaps? heaven only knows I get a lot of practice...joke joke), I would absolutely want my privacy protected. As far as I'm concerned, personally I don't even want to know Dr. Leitzinger's private financial information because it isn't any of my business, if in fact it is private financial information. I add that at the end, because it is SCO defining it. If IBM disagrees with that definition, we'll see them step in, but unless I see something like that happening, I think it's safe to assume this is an ordinary request for protection of a private person's private information and that the court will grant the man his privacy to whatever degree it feels is necessary and appropriate.

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