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SCO's Redacted Memo re Protective Order of Dr. Leitzinger's Personal Financial Info - updated, as text
Thursday, October 26 2006 @ 09:09 PM EDT

Now we find out a bit more of what the dispute over Dr. Jeffrey Leitzinger's personal financial information is about. Here's SCO's Motion for a Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and Certificate of Compliance with Rule 37(c) [PDF].

In it we find out that at his September 15th deposition, IBM asked Dr. Leitzinger a question about his income last year from his company, Econ One, including direct compensation from Econ One and his status as a shareholder, as well as how much Econ One has billed SCO in connection with this litigation. SCO's lawyer told him not to answer the question and now seeks a protective order. I guess IBM would like to know if the entirety or the preponderance of his income last year was from SCO alone, which could be used at trial to give the jurors a clue as to independence.

IBM feels it's entitled to the information, and at the deposition it pointed out that SCO had asked the "same question" of IBM experts "who are not professional witnesses and they've answered," stating that the information was relevant to "potential cross-examination material as to his impartiality." So, there's our clue that they do intend to let the jury know that Dr. Leitzinger, in their view, is a "professional witness," which is what I mentioned earlier this might be about. If you are curious, here's Hiero Gamos' Legal Directory of Expert Witnesses. SCO asked Andrew Morton, for example, that same question, and their justification for asking him about his income is the following:

8. The sole justification IBM gives for seeking such information -- that SCO sought such information from IBM expert Andrew Morton -- has no applicability here. Mr. Morton's income is relevant for reasons that are entirely inapplicable to Dr. Leitzinger: IBM co-founded, funds, and largely manages and controls the OSDL, which pays Mr. Morton's salary. The payment of salary to Mr. Morton under these circumstances, as well as the amount of that salary, is highly pertinent to the partiality of his opinions in this case.

Isn't that a hoot? Doesn't SCO have *any* competent paralegals to do research for them? Here's the membership of OSDL. Yes. Approximately 70 member companies, including HP, Intel, Google, Red Hat, Novell, Hitachi, Xandros, Fujitsu, Motorola, Monta Vista, Nokia, TurboLinux, Wind River, Linspire, Siemens, Scalix, Red Flag, Levanta, Lynuxworks, AMD, Black Duck, and Mitsubishi Elelctric. Update: I forgot to mention the part that is so funny. A reader reminded me. When OSDL was founded, Caldera was there and joined up itself, as you can see in the OSDL press release announcing OSDL's formation in 2000:

Hewlett-Packard, Intel Corporation, IBM and NEC Corporation today announced the Open Source Development Lab, the industry's first independent, non-profit lab for developers who are adding enterprise capabilities to Linux*. The four companies plan to provide significant equipment and funding to the lab over the next several years. Additional contributors and sponsors of the lab include Caldera, Dell, Linuxcare, LynuxWorks, Red Hat, SGI, SuSE, Turbolinux and VA Linux....

Caldera: "The effort of these companies - especially Intel - validates the Open Source development model," said Darren Davis, vice president of development for Caldera Systems, Inc. "We're behind any efforts like these that advance Open Source."

Linus went to work at OSDL precisely because it is independent of any one company. Here's what he said in 2003, in connection with his decision:

"It feels a bit strange to finally officially work on what I've been doing for the last twelve years, but with the upcoming 2.6.x release it makes sense to be able to concentrate fully on Linux," Torvalds said. "OSDL is the perfect setting for vendor-independent and neutral Linux development."

Linus wasn't supporting any company. OSDL was supporting Linux development, so all companies can benefit, whoever wishes. In fact, SCO could have too, if they hadn't been so silly as to choose to push Unix instead of Linux.

Morton is also an OSDL Fellow, but he works for Google, before that for Digeo. OSDL arranges for him to be able to work full time on Linux. Here's the press release from 2003:

OSDL, a global consortium of leading technology companies dedicated to accelerating the adoption of Linux, today announced that Linux kernel maintainer Andrew Morton has joined forces with the lab and will be focused exclusively on the 2.6 kernel during its maintenance cycle.

Under terms of the agreement between Digeo and OSDL, OSDL will support Morton's Linux kernel development work while he continues in his official role as principal engineer at Digeo, Inc. Digeo is a leading provider of media center products and interactive television services. The sponsorship frees Morton to dedicate himself to his new role as the lead maintainer of the Linux production kernel while Linus Torvalds, the creator of Linux, maintains the development kernel.

"It's great that both Andrew and I can work full-time on Linux through OSDL. Now the maintainers of both the development kernel and the stable kernel have the support of a vendor-neutral organization committed to advancing Linux", said Torvalds, the creator of Linux.

Sounds a lot different than SCO's ugly spin, doesn't it? The whole point of joining OSDL was because it's vendor neutral. The other plus is it gives them both access to state of the art computing resources. That's not at all the way SCO is making it sound. Maybe they just don't understand ethics. Don't they realize how much money both Linus and Morton could rake in, if they were willing to work for a vendor? OSDL is a nonprofit, for heaven's sake. Here's why Morton wanted to go to Google from Digeo:

The OSDL offered to directly employ Morton while he worked from home, but Morton indicated that he preferred to work in an office with other engineers. Thus a search for a new home was underway.

So why Google? Other than the well-known perks for working in Google's Silicon Valley campus, Morton had a strong ethical attraction to working for the company.

"In my position as kernel maintainer I feel that I should not be employed by a company which has a direct interest in the kernel.org kernel because this would put me in a position of making decisions which are commercially significant to my employer's competitors," Morton explained. "As Google maintains their own kernel variant for internal use, their interests are largely decoupled from what happens in the kernel.org kernel."

Google's active use of Linux and participation in open source development was another big draw. "It is beneficial to me (and to Linux) that I be in day-to-day contact with people who use Linux for real things. Hence Google is a good all-round fit," Morton added.

In SCO's eyes, everyone is an IBM shill. They've accused Eric Raymond of it. Me too, and now Andrew Morton. It's truly laughable. But it's also ugly. What an ugly place their minds must be to dwell in all the time. I always feel like a shower when I so much as peek inside their brain processes. But the thing is, this information is freely available on the Internet. It took me less than five minutes to collect it. So is it that SCO doesn't know any better? Or is it that they hope the judge, and the jury eventually, don't? Meanwhile, Morton's good name has been smeared. SCOfolk just don't care, of course, but I do, and that's why I wanted to clarify.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]

Stuart H. Singer (admitted pro hac vice)
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]

Attorneys for The SCO Group, Inc.

___________________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

____________________________________

THE SCO GROUP,

Plaintiff/Counterclaim-Defendant

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff

___________________________________

SCO'S MOTION FOR A
PROTECTIVE ORDER REGARDING
DR. JEFFREY LEITZINGER'S
PERSONAL FINANCIAL
INFORMATION AND CERTIFICATE
OF COMPLIANCE WITH RULE 37(c)

FILED IN REDACTED FORM
[ORIGINALLY FILED UNDER SEAL]

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

Plaintiff/Counterclaim Defendant, The SCO Group, Inc. ("SCO"), through its undersigned Counsel, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and Local Rules, files this Motion for a Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and in support thereof states:

1. At his September 15, 2006 deposition, Dr. Jeffrey Leitzinger testified fully about his hourly billing rate for work on this case, and also estimated the total amount that the firm EconOne has billed in connection with this litigation. (Leitzinger Dep. 10:7-11:1, Sep. 15, 2006, Attached as Ex. A)

2. At the deposition, counsel for IBM also asked Dr. Leitzinger the following question: "And within - well, let me take taxable year 2005. How much income have you derived either from direct compensation from Econ One or as a result of your status as shareholder of Econ One?" (Id. 7:13-16) Counsel for IBM then confirmed he was seeking Dr. Leitzinger's total income from those two sources, and not just what Dr. Leitzinger receives from what he bills in this litigation. (Id. at 7:17-20)

3. EconOne is an economics firm that provides services to many different clients. 4. This question poses an unwarranted intrusion into Dr. Leitzinger's personal affairs, is wholly collateral to this litigation, and causes undue annoyance and embarrassment. Accordingly, counsel for SCO instructed Dr. Leitzinger not to answer the question, and agreed to seek a protective order. (Id. at 8:15-10:3)

5. On September 28, counsel for SCO wrote to counsel for IBM in order to try to resolve the issue before seeking a protective order. (Ex. B) On October 16,

2

counsel for IBM informed SCO that he still believed IBM was entitled to the information. (Ex. C) Accordingly, SCO has brought this motion for a protective order.

6. At the deposition, counsel for IBM stated that SCO had asked the "same question" of IBM experts "who are not professional witnesses and they've answered," and the information was relevant to "potential cross-examination material as to his impartiality." (Leitzinger Dep. 8:7-9, 8:13-14, Ex. A) Neither explanation justifies such an intrusion into Dr. Leitzinger's personal affairs.

7. It is well established an expert witness is not obligated to disclose his personal financial affairs. Courts have been diligent in protecting the privacy interests of expert witnesses from undue intrusion in the discovery process, particularly when the information sought is unrelated to the case in which the expert is testifying. See, e.g., Elam v Alcolac, Inc., 765 S.W.2d 42 (Mo. App. 1988) (holding that trial court properly refused cross-examination as to fees expert witness received for services in other cases); State By and Through State Highway Commission v. Superbilt Mfg. Co., 204 Or. 393, 406, 281 P.2d 707, 713 (Or. 1955) (holding that "the question as to how much money [witness] had received as an appraiser and witness in prior unrelated cases was improper" because "[s]uch an inquiry opened the doors to purely collateral matters"); In re Wier, 166 S.W.3d 861, 865 (Tex. App. 2005) (reversing trial court decision to allow discovery of financial information of an expert witness unrelated to that case, court held: "The intrusion on the witness's privacy interest, the burden in obtaining the information, and the impact on the willingness of reputable experts to provide testimony when needed in litigation outweigh any possible benefit from the additional discovery ordered.")

3

8. The sole justification IBM gives for seeking such information - that SCO sought such information from IBM expert Andrew Morton has no applicability here. Mr. Morton's income is relevant for reasons that are entirely inapplicable to Dr. Leitzinger: IBM co-founded, funds, and largely manages and controls the OSDL, which pays Mr. Morton's salary.1 The payment of salary to Mr. Morton under these circumstances, as well as the amount of that salary, is highly pertinent to the partiality of his opinions in this case.

9. In contrast, the majority of Dr. Leitzinger's income from EconOne is wholly unrelated to SCO. While Dr. Leitzinger did testify about the approximate amounts EconOne has billed SCO for work on this case, the remainder of his income from EconOne has no relation to SCO, no bearing on the opinions he has rendered in this case, and would be collateral to any effort by IBM to impeach him. Thus, the intrusiveness of this request into Dr. Leitzinger's private matters far outweighs its probative value.

For the foregoing reasons, SCO respectfully requests that this Court enter a protective order precluding IBM from asking Dr. Jeffrey Leitzinger how much income he derived from direct compensation from EconOne or as a result of his status as a shareholder of EconOne.

REDACTED

4

CERTIFICATE OF COMPLIANCE WITH RULE 37(c)

Counsel for SCO has endeavored, in good faith, to reach agreement with IBM before filing this Motion. As described herein, counsel for SCO wrote to counsel for IBM in order to try to resolve the issue before seeking a protective order. (Ex. B) On October 16, 2006, counsel for IBM nevertheless informed SCO that he still believed IBM was entitled to the information. (Ex. C) Accordingly, SCO believes the parties are at an impasse, and has brought this Motion for a protective order.

5

DATED this 20th day of October, 2006.

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
Sean Eskovitz

By__[signature]___
Counsel for The SCO Group, Inc.

6

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing SCO'S Motion for a Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information was served by email (by agreement of the parties) or U.S. Mail, first class postage prepaid, on Defendant International Business Machines Corporation on the 20th day of October, 2006, to the following:

VIA EMAIL:

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

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

VIA U.S. MAIL:

Donald J. Rosenberg, Esq.
[address]

By___[signature]___

7

EXHIBITS FILED UNDER SEAL

8


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