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Addendum to Novell Protective Order & Change in Filing Sealed Docs
Tuesday, March 27 2007 @ 02:36 PM EDT

There is a stipulated motion [PDF] to amend the protective order in SCO v. Novell that has been filed that reads like this:
Plaintiff and Counterclaim-Defendant The SCO Group, Inc. and Defendant and Counterclaim-Plaintiff Novell, Inc., pursuant to Federal Rule of Civil Procedure 26(c), hereby stipulate to and jointly move the Court for entry of the attached Stipulated Addendum to Protective Order in this matter, to provide for the production in this litigation of certain confidential financial information produced by IBM in SCO v. IBM, Case No. 03-0294 DAKBCW.

The details are to be found in the Proposed Order [PDF]. I'll put the text of that at the end, but the change proposed is to allow SCO to hand over to Novell certain confidential IBM financial materials produced in SCO v. IBM discovery. According to the new wording, the materials can be turned over but IBM requires they be placed in a new category, materials so confidential, no one at Novell gets to see the materials but the *outside* Novell attorneys. The addendum does not affect SCO.

If you read the original stipulated protective order in SCO v. Novell, confidential materials could be viewed by inhouse counsel also, as well as certain employees of Novell, court personnel, outside experts or consultants, and "outside litigation support services". That last would be things like copy services, the guys who video the depositions, jury consultants, and that sort of thing. I note that IBM is thus specifically disallowing Novell employees, listed in category 4(b) of the original protective order, from access. And the stipulation reads, "These additional protections shall apply only to Novell. The protections applicable to SCO are those set forth in the September 16, 2003 Stipulated Protective Order entered in SCO v. IBM."

I pondered that a while. IBM apparently didn't think it needed that level of confidentiality from a party who was, after all, under all the limiting terms of the protective order, but there isn't any such protective order to which Novell and IBM are parties, since they aren't suing each other, and I gather IBM prefers to take all precautions. It was presumably inhouse counsel that worked on the Novell-Microsoft deal. Just saying. So, there you are.

I noticed when we first read the Novell protective order that there was no such designation but that the IBM protective order had been amended [PDF] in April of 2006 to add such a special designation. So the two orders weren't totally in sync and yet the parties in Novell were supposed to obey both. The reason for that amendment in the SCO v. IBM protective order was to protect third parties:

In the course of fact discovery in this action, certain non-parties have objected to the production of documents on the ground that the Protective Order contains no mechanism to limit access to certain documents which they describe as highly confidential to the parties’ outside counsel and independent experts only. In order to resolve this objection, and to allow for the timely production of such documents by non-parties, counsel for SCO and IBM have agreed that the Protective Order should be amended to provide for the designation and production by nonparties, where appropriate, of such documents as “HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY”.

This change to the Novell protective order does the same thing for IBM, and here IBM is a nonparty. The two orders are still not 100% identical, in that this is a special category for IBM's benefit in this particular situation, not all third parties, who still just get a notice that their private stuff will be turned over unless they object and they get a protective order within a certain time frame, as per clause 17, or work out a stipulated solution, as happened here. 17 reads like this:

17. Confidentiality Interests of Third Parties.

A party may temporarily withhold production of otherwise discoverable information pursuant to a subpoena, deposition question, or discovery request, if the party is under an obligation to a third party not to disclose such information. In such an event, the objecting party shall:

a. Promptly provide to the person or entity whose confidentiality interests are implicated (1) notice of its intention to disclose the information in question and (2) a copy of this Order; and

b. Within thirty (30) business days of the notice sent pursuant to subparagraph (a) above, produce the requested information in question in compliance with this Order, unless the request is otherwise objectionable, or the person or entity whose confidentiality interests are implicated moves for or obtains a protective order precluding such disclosure from this Court within that time.

Evidently SCO complied with this, and let IBM know. And they all got together and worked out a solution. IBM's financial materials are now super protected. If I were IBM, I'd want to be careful too in that situation, but especially so now that Novell is partnering so closely with Microsoft and they signed that controversial patent deal which altered the state of the Linux world. The purpose of the protective order, after all, is to establish guidelines to prevent disclosure of "trade secret, proprietary, technical, scientific, business, or financial information regarded as confidential." That may not at all be the reason for the change in the protective order, of course, but it is something I had thought of as being a new issue, a change since the litigation began. The protective order already allowed for cross pollination:

When, in this action, SCO produces information that it marked Confidential in The SCO Group Inc. v. International Business Machines Corp., Case No. 2:03CV294 DAK, D. Utah (“SCO v. IBM case”), such information may be used for purposes of this action and disclosed to those persons identified in Paragraph 4 of this Order, provided that such use and disclosure is in compliance with the terms and conditions of the Protective Order entered in the SCO v. IBM case. Confidential information produced by Novell in this action may be used and disclosed in the SCO v. IBM case, provided that such information is used and disclosed in compliance with the terms and conditions of this Order.

As you can see, it deals with SCO and Novell's interests regarding confidentiality, but not IBM's, except for the wording about also obeying the IBM protective order. IBM is just making sure its own interests are clearly protected.

Of course, you want to know all the details. So do I. But it's confidential financial information. That brings us to another notice on the Pacer dockets of both IBM and Novell. It seems there was a glich, and sealed materials were inadvertently made available on Pacer in the SCO v. IBM case. I don't know what documents they are referring to. But please note that sealed means sealed, even when someone goofs, and nothing sealed should be posted on Groklaw. Groklaw has been consistent on that policy from day one. If you see anything like that posted, let me know immediately so I can remove it. Thank you.

Here's what is on Pacer, and you'll notice that the court has decided not to digitize sealed documents any longer, not even for internal court use:

03/23/2007 - 1011 - NOTICE: It has come to the attention of the Clerk's Office that certain attachments to a SEALED DOCUMENT filed in this case were inadvertently left unprotected during the Court's docketing process. Therefore, these sealed, confidential attachments were accessible for a short period of time to anyone who attempted to electronically access the contents of this docket entry, which clearly stated that it contained a SEALED DOCUMENT. This notice serves as a reminder that, regardless of whether SEALED DOCUMENTS are actually electronically protected from being accessed, all documents marked CONFIDENTIAL are subject to the Protective Order entered by the Court on September 16, 2003. (kmj) (Entered: 03/23/2007)

03/23/2007 - 1012 - NOTICE FROM THE CLERK'S OFFICE: From this day forward, sealed submission in this case will not be scanned for internal court use but will be maintained in the court's sealed room not to be accessed except by court personnel. (ce) (Entered: 03/23/2007)

So, it's back to paper. The same notice about sealed documents is in the Pacer entries for SCO v. Novell as is the info about the stipulated motion regarding the protective order:

03/23/2007 - 253 - NOTICE FROM THE CLERK'S OFFICE: From this day forward, sealed submission in this case will not be scanned for internal court use but will be maintained in the court's sealed room not to be accessed except by court personnel. (ce) (Entered: 03/23/2007)

03/26/2007 - 254 - Stipulated MOTION for Protective Order (Entry of Stipulated Addendum) filed by Defendant Novell, Inc.. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Sneddon, Heather) (Entered: 03/26/2007)

Here's the text of the proposed order:

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

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 Defendant/Counterclaim-Plaintiff Novell, Inc.

_______________________________

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

______________________________

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff/Counterclaim-Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant/Counterclaim-Plaintiff.

_____________________________

STIPULATED ADDENDUM TO
PROTECTIVE ORDER

Case No. 2:04CV00139

Judge Dale A. Kimball

WHEREAS, on August 1, 2006, this Court entered a Stipulated Protective Order (“Protective Order”);

WHEREAS, Novell has requested that SCO produce in this litigation certain confidential financial information produced by IBM in SCO v. IBM, Case No. 03-0294 DAK-BCW;

WHEREAS, SCO has agreed to produce this material if IBM consents;

WHEREAS, IBM will consent to such production provided the parties execute an addendum to the Protective Order allowing for the designation of IBM’s confidential financial material as Outside Counsels’ Eyes Only;

IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff/CounterclaimDefendant The SCO Group, Inc. and Defendant/Counterclaim-Plaintiff Novell, Inc. that the Protective Order shall be amended as follows, subject to the approval of the Court:

IBM may designate material as Outside Counsels’ Eyes Only. Such material is entitled to the protections afforded by the Protective Order to the parties’ Confidential material, with the following modifications:

i. “In-house counsel” is excised from the persons to whom disclosure is permitted under Protective Order paragraph 4(a).

ii. Disclosure is not permitted to the persons described in Protective Order paragraph 4(b).

iii. The Protective Order paragraph 8(a) designation for Outside Counsels’ Eyes Only material shall be “Confidential - OUTSIDE COUNSELS’ EYES ONLY Subject to Protective Order, SCO v. Novell, Civil Case No. 2:04CV00139 DAK.”

1

iv. These additional protections shall apply only to Novell. The protections applicable to SCO are those set forth in the September 16, 2003 Stipulated Protective Order entered in SCO v. IBM.

STIPULATION

Dated: March 26, 2007

HATCH, JAMES & DODGE, P.C.

By: /s/ Brent O. Hatch
Signed by filing attorney with
permission from Brent O. Hatch

Attorneys for The SCO Group, Inc.
[address]

ANDERSON & KARRENBERG

By: /s/ Heather M. Sneddon

Attorneys for Novell, Inc.
[address]

ORDER

DATED:______________________

___________________________
Hon. Dale A. Kimball
United States District Court Judge

2


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