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Novell Files Expedited Motion to Compel Production
Thursday, November 09 2006 @ 03:18 AM EST

Guess who apparently isn't turning over discovery the way they said they would?

So Novell is filing a motion to compel. No, better -- an *expedited* motion to compel -- Novell's Expedited Motion to Compel Production of Deposition Transcripts and Exhibits from SCO v. IBM [PDF]. Here's the memorandum in support [PDF]. The exhibits are two cases.

Talk about what goes around, comes around.

I enjoy watching the SCO v. Novell case very much. It tickles my funny bone to see SCO on the receiving end of discovery motions to compel. After watching all their motions to compel in SCO v. IBM, I just can't help but find it funny that now the shoe is on the other foot.

Guess how many depositions there were in the IBM case? There were 82 witnesses deposed, some more than once, so there are 130 transcripts, and of those, SCO has handed over to Novell 10 transcripts of 5 witnesses in a year's time. As you will recall, the parties were supposed to share the IBM discovery materials that are relevant to the Novell case. But Novell says that's all they got and worse:

Moreover, upon reading the exhibit lists for IBM’s recent motions for summary judgment, Novell has determined that, even for the five witnesses from whom SCO has produced testimony, SCO has apparently withheld some deposition transcripts, without explanation.

Naughty, naughty. The list of what SCO has not turned over is a hoot. They didn't turn over Ralph Yarro's deposition or Mike Anderer's or Sam Palmisano's or Blake Stowell's or some of Chris Sontag's or Robert Bench's or Jeff Hunsaker's or "eight of the nine witnesses whose deposition testimony IBM cites in support of its motion for summary judgment on SCO’s breach of contract claims — breaches that SCO claims Novell helped instigate." Sound relevant to you? Me too.

There is also a Declaration of Kenneth Brakebill, with exhibits:

  • Exhibit A - two emails from Ted Normand to Kenneth Brakebill and one going the other way, Oct. 14, 16 and 17, 2005 -- "Ken, we are fine with Novell having attorneys' eyes only access to the documents produced in the SCO-IBM litigation..." "Ted... depositions and underseal briefs...?" "Ken - I meant to include those materials as well."
  • Exhibit B email from David Marriott to Kenneth Brakebill giving IBM permission to share discovery, Feb. 8, 2006
  • Exhibit C - Scheduling Order - "...SCO authorizes Novell to have attorneys' eyes only access to those confidential materials in the SCO v. IBM case, including document productions, depositions, under-seal briefings, and discovery responses, that reasonably relate to a claim or defense in this litigation."
  • Exhibit D - Novell's 1st Set of Requests for Production (the first one on the list asked for production of transcripts of depositions and sealed materials from IBM case)
  • Exhibit E - email from Brakebill to Normand attaching a copy of the material in Exhibits A and B as a reminder
  • Exhibit F - Nov. 2 and 3, 2006 emails between Brakebill and Normand - "Ken - ... We will begin a rolling production...as soon as practicable..." "Ted - SCO's commitment to begin 'rolling' production 'as soon as practicable'... advances the ball no further than where we were a year ago....we can wait no longer and will put a motion on file..."
  • Exhibit G - SCO's Responses and Objections to Novell's 1st Set of Interrogatories and Second Set of Requests for Production and
  • Exhibit H - Novell's Second Set of Requests for Production.

If you were wondering where Ted Normand was, as you see, he's working on the Novell case. All of the above is to support Novell's position, that SCO agreed to do this sharing of IBM discovery and it's too late to object now. They waived by letting so much time go by without objecting to the discovery requests. SCO won't like that concept.

Man, this Novell law firm, Morrison & Foerster, gives no quarter. They are pleasant and calm and friendly and polite, and all the while carefully planning what to do to SCO, should SCO try to get cute. They set up their position, piece by piece, in this case a year ago, and then, when SCO acts like SCO, no, when SCO *starts* to act like SCO, just like Novell thought SCO might, the trap that was set up the year before is suddenly sprung. If SCO had turned over what it said it would, then the trap isn't sprung, and it's just some pleasant emails. There's no obvious foreshadowing. Like a skilled poker player. But afterwards, you look back and you see they were carefully establishing a position that could be clearly shown to the court should SCO not cooperate the way it promised it would and the court ordered it to. It's really fun to watch. I've never seen anything quite like it. There's a subtlety that makes it art, not just skill.

Novell asks the court to compel SCO to turn over all relevant transcripts, naturally, and since there is no way for Novell to know what SCO is withholding that actually is relevant, it requests that "SCO should also be compelled to describe, on a transcript by transcript basis, why any withheld transcripts do not reasonably relate to a claim or defense in this litigation."


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