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Novell Tells the Court It Still Wants Those Transcripts from SCO v. IBM
Monday, December 11 2006 @ 11:10 PM EST

Novell has filed its Reply in Support of Novell's Expedited Motion to Compel Production of Deposition Transcripts and Exhibits from SCO v. IBM [PDF].

Novell is very polite about it, as usual, but it tells the court plainly enough that despite SCO's "miraculous" production of some 56 deposition transcripts and some exhibits from the SCO v. IBM litigation two days before SCO's Memorandum in Opposition to Novell's Motion to Compel was due, SCO has still produced only half of the 130 deposition transcripts in existence. "Given the considerable overlap between this litigation and SCO v. IBM, it strains credulity to argue that the remaining half of the depositions have no relevance here," Novell states. If SCO's 11th-hour production doesn't prove the necessity of Novell's motion to compel, what would? SCO claims Novell's motion is now moot, but Novell disagrees. It wants those remaining deposition transcripts. Ideally, all of them.

At a minimum, it should be compelled to produce the depositions Novell lists, including William Broderick's, Chris Sontag's, Blake Stowell's, Erik Hughes's, one of Jeff Hunsaker's, and six experts' depositions. SCO said it would provide these materials over a year ago. The court ordered it to a year ago. SCO stipulated to a scheduling order permitting Novell to have access to such documents. And Judge Dale Kimball just decided that the Novell case should go first, showing the interconnectedness of the two cases. SCO hasn't offered any reason why the transcripts aren't relevant. Rather, Novell says with a curled lip, SCO merely states that there are no further relevant documents, but "SCO's failure to produce any significant amount of testimony until Novell brought this motion casts doubt on SCO's commitment to a full production." That's legal politesse, but the judge will know how to translate it. Novell is answering SCO's sentence, "Novell's Motion is based on the unfounded and incorrect suspicion that SCO would not produce certain documents in discovery." Right. SCO had turned over only 10 transcripts when Novell filed its Motion to Compel. Novell now has in hand 66. You do the math.

How could Chris Sontag's deposition not be relevant? He was in charge of SCOsource. Blake Stowell? This is a case, in part, for slander of title. Stowell was the spokesman making many of the remarks to the press Novell is taking exception to. Novell sums up that it would like to see all the depositions and exhibits from SCO v. IBM, but at least it would like SCO to have to produce the ones listed "and to adduce its justification for withholding any unproduced testimony, transcript by transcript." That means SCO should have to state, one by one, why each transcript isn't relevant, with specificity.

There you go again. That dratted specificity. SCO can't seem to get away from demands for it.

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

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[address, phone, fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]

Attorneys for Novell, Inc.

_____________________________

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

____________________________

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff and Counterclaim-
Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant and Counterclaim-
Plaintiff.

___________________________________

REPLY IN SUPPORT OF NOVELL'S
EXPEDITED MOTION TO COMPEL
PRODUCTION OF DEPOSITION
TRANSCRIPTS AND EXHIBITS FROM
SCO V. IBM

Case No. 2:04CV00139

Judge Dale A. Kimball

INTRODUCTION

SCO's eleventh-hour production of SCO v. IBM deposition transcripts and exhibits stands as an affirmation of the merits of Novell's motion to compel. During the year between the time SCO explicitly agreed to give Novell access to the deposition transcripts generated in the SCO v. IBM litigation and the filing of Novell's motion, SCO produced only 10 transcripts, and typically omitted production of the deposition exhibits. Miraculously, in the two business days before SCO's opposition to this motion was due, SCO produced an additional 56 transcripts and hundreds of deposition exhibits. SCO's untimely production does not, however, moot Novell's motion, as SCO suggests.

SCO does not dispute that, fourteen months ago, it agreed to give Novell access to the depositions from the SCO v. IBM litigation. Nor does SCO dispute that, a year ago, this Court ordered SCO to do so. SCO also makes no mention at all of its obligation to produce SCO v. IBM transcripts in response to Novell Request for Production No. 1. SCO even declines to address the fact that it never served any objections to that request and therefore waived any objections it now raises.

SCO's only defense to this motion appears to be that it is (now) purportedly in compliance with the obligations imposed by its year-old agreement, this Court's order affirming that agreement, and Novell's Requests for Production. On the contrary, SCO has not made a complete production or complied with its obligations. SCO has produced only half of the approximately 130 SCO v. IBM transcripts. Given the considerable overlap between this litigation and SCO v. IBM, it strains credulity to argue that the remaining half of the depositions have no relevance here. With discovery set to close on February 1, 2007, the fairest solution is

2

to give Novell access to all SCO v. IBM deposition transcripts and exhibits -- access that IBM approves.1SCO has offered no serious explanation for failing to do so.

Failing full production of the SCO v. IBM transcripts and exhibits, SCO should be compelled to produce at least transcripts discussed below and should provide an adequate explanation, on a transcript by transcript basis, why any remaining testimony is withheld.

ARGUMENT

I. SCO DOES NOT DISPUTE NOVELL'S ENTITLEMENT TO ALL
RELEVANT SCO v. IBM TRANSCRIPTS AND EXHIBITS.

SCO does not dispute that, on October 14, 2005, its counsel agreed to give Novell "access to the documents produced in the SCO-IBM litigation," including deposition transcripts and exhibits. (Brakebill Decl. Ex. A.) Nor does SCO dispute that, on December 6, 2005, based on the parties' joint submission, this Court entered a scheduling order permitting Novell access to relevant deposition transcripts and exhibits from the SCO v. IBM matter. (Dec. 6, 2005 Scheduling Order at 2.l, PACER No. 138.) There is therefore no dispute as to Novell's entitlement to all relevant SCO v. IBM transcripts and exhibits.

The significant overlap between the SCO v. IBM litigation and this suit is undeniable. Indeed, Judge Kimball recently decided that this matter should proceed in advance of the IBM litigation for precisely that reason. (The SCO Group, Inc. v. IBM Corp., No. 2:03CV294 (D. Utah 2005), hereinafter "SCO v. IBM," PACER No. 884 (Order Affirming Magistrate Judge's Order of June 28, 2006) at 4-5.) Because of this overlap, it is likely that the majority (if not all)

3

of the depositions taken in the IBM litigation have some relevance to this dispute. SCO nevertheless makes no effort to explain why any of the withheld transcripts are not relevant. Nor does SCO claim that this production is in any way burdensome -- production here is as simple as copying the transcripts and exhibits to CD. SCO therefore should be compelled to make a full production of transcripts and exhibits.

II. SCO DOES NOT ADDRESS, AND THEREFORE CONCEDES, THE
WAIVER OF ITS OBJECTIONS TO NOVELL'S REQUEST FOR
PRODUCTION NO. 1.

Over a year ago, Novell properly sought production of transcripts and exhibits from the depositions of all SCO witnesses and all former Novell employees deposed in SCO v. IBM. (Brakebill Decl. Ex. D, Request No. 1(c)-(e).) SCO never served any objections to these Requests, and its Opposition offers no excuse for that omission. (Id 7.)

SCO has therefore waived any objection to Request No. 1, and its failure to even address this argument concedes as much. See, e.g., Lash v. City of Trinidad, No. 05-cv-01429-PSF-BNB, 2006 U.S. Dist. LEXIS 66033, *2 (D. Colo. Sept. 14, 2006) ("The plaintiff has neither objected to nor responded to the discovery. . . . The plaintiff waived any objections he may have to the discovery by failing to assert them within the time required by the Federal Rules of Civil Procedure.").

On this basis alone, SCO should be compelled to respond completely to Request No. 1.

III. SCO STILL HAS NOT PRODUCED ALL RELEVANT SCO v. IBM
DEPOSITION TRANSCRIPTS AND EXHIBITS.

Including SCO's eleventh-hour production, SCO has produced only 66 of the approximately 130 deposition transcripts generated in the SCO v. IBM litigation. SCO's Opposition claims that it has "identified and produced all the deposition transcripts from the IBM

4

Litigation containing testimony reasonably related to the claims and defenses in this case," and that therefore "[t]here is nothing for the Court to compel." (SCO's Memorandum in Opposition to Novell's Expedited Motion to Compel Production of Deposition Transcripts and Exhibits from SCO v. IBM, PACER Docket No. 170 ("Opp."), at 4.)

It is impossible for Novell to gauge the accuracy of such assertions without access to the unproduced transcripts. Certainly SCO's failure to produce any significant amount of testimony until Novell brought this motion casts doubt on SCO's commitment to a full production. Moreover, an examination of the roster of still-unproduced testimony further undercuts SCO's claims of complete compliance with its obligations. The currently withheld transcripts include:

  • One transcript from William Broderick, a SCO Contract Manager and former Novell employee who has testified as to the meaning of the APA (SCO v. IBM, Decl. of Brent O. Hatch, PACER No. 876, Ex. 333 (Decl. of William Broderick), 7-8);

  • One transcript from Chris Sontag, SCO's head of its "SCOSource" program,

    through which Novell contends SCO has improperly diverted licensing revenue belonging to Novell;

  • One transcript from Blake Stowell, SCO's Director of Communications, the corporate source of many of the SCO statements Novell contends slander its title to the UNIX copyrights;

  • Three transcripts from Erik Hughes, Senior Director of Product Management, who offers a declaration concerning the value of UNIX intellectual property purportedly held by SCO (id., Ex. 1 (Decl. of Erik Hughes), 10);

5

  • One transcript from Jeff Hunsaker, a SCO Senior Vice President and world-wide head of marketing, who is responsible in part for rolling out the SCOSource program and who also offers a declaration concerning the value of UNIX intellectual property purportedly held by SCO (id., Ex. 356 (Decl. of Jeff Hunsaker), 13);

  • One transcript from Michael Olson, SCO's Controller, who offers a declaration concerning the purported transfer of UNIX assets between various SCO entities (id., Ex. 215 (Decl. of Michael Olson), 3-4);

  • One transcript from David Prosser, a former Novell employee involved in the post-APA transition efforts;

  • At least six transcripts from experts offering testimony concerning the damages purportedly suffered by SCO, including valuation of the UNIX assets -- Christine Botosan, Timothy Bresnahan, Avner Kalay, James Kearl, Gary Pisano, and Jonathan Putnam;

  • 24 of the 60 transcripts relied on by IBM in support of its Motions for Summary Judgment, including five of the 10 transcripts IBM cites in support of its motion on SCO's breach of contract claims -- breaches that SCO claims Novell helped instigate (PACER Docket No. 96 (SCO Second Amended Complaint) 19, 61).

6

SCO attempts to dismiss a few of these transcripts in a footnote in its Opposition, but there states only, without explanation, that "the transcripts do not contain responsive testimony." (Opp. at 6 n.3.)2 That is insufficient.

SCO should be compelled to produce all SCO v. IBM deposition transcripts and exhibits. Absent a full production, SCO should be compelled to produce at least the transcripts discussed above and to adduce its justification for withholding any unproduced testimony, transcript by transcript.

CONCLUSION

For the reasons stated above, Novell respectfully requests that this Court compel SCO to produce all remaining deposition transcripts and exhibits from the SCO v. IBM litigation.

DATED: December 11, 2006

ANDERSON & KARRENBERG
/s/ Heather M. Sneddon
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon

-and-

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)

Attorneys for Novell, Inc.

7

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 11th day of December, 2006, I caused a true and correct copy of the REPLY IN SUPPORT OF NOVELL'S EXPEDITED MOTION TO COMPEL PRODUCTION OF DEPOSITION TRANSCRIPTS AND EXHIBITS FROM SCO V. IBM to be served to the following:

Via CM/ECF:

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

8


1 IBM has no objection to production of all deposition transcripts and exhibits from the SCO v. IBM litigation. (Decl. of Kenneth Brakebill, PACER No. 173 ("Brakebill Decl."), Ex. B.)

2 SCO also suggests, in a footnote, that its failure to comply with its discovery obligations should be excused because Novell has also purportedly withheld relevant material. (Opp. at 6 n.4.) Even were this true, which it is not, SCO cites no case law supporting such a proposition. Regardless, Novell has invited SCO to clarify any issues SCO has with Novell's production and SCO has made no response. (Brakebill Decl. Ex. E.)


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