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Hilarious Novell/Computer Associates Tug-of-War Over Subpoena Ends with a Stip - Oh, and Novell Has Subpoenaed HP
Wednesday, April 18 2007 @ 12:54 AM EDT

It seems there has been a little bit of drama associated with the SCO v. Novell case, with Novell sending a subpoena to Computer Associates, who really, really didn't want to do the deposition or turn over any documents.

The dustup is funny to follow, beginning with CA objecting to the subpoena on the grounds that Novell issued the subpoena noticed for the offices of Morrison & Foerster in the *Southern* District of New York, not the *Eastern*, the jurisdiction CA is located in. CA refused to stipulate to an alternative location (can you blame them? -- no one wants to be dragged into this mess), so Novell then reissued a subpoena early in February from the Eastern District with the place for the deposition listed as a hotel in Hauppauge, NY, directly across the street from CA.

However, CA then told Novell that it had noticed that the deadline for deposing folks, February 1, had come and gone, so it was too late, since the reissued subpoena was dated February 2nd. And so began the tug of war.

CA also told Novell that all of the employees who might have personal knowledge of the matters were no longer with CA, so they thought it'd be a waste of time and resources. The court, CA pointed out, had said each side was allowed one additional deposition after the deadline, and CA asked, are we your one additional, or what?

Novell, by then fully clueful, then sent a crisp letter to CA, pointing out that the second subpoena was identical to the first, other than the location and date, which was a courtesy to CA only, and that CA had no standing to object to the subpoena based on discovery deadlines, not being a party to the case. Further, SCO wasn't objecting. Accordingly, Novell wrote that it "demands that Computer Associates comply with the subpoena or Novell will file a motion to compel."

CA responded, in essence, go ahead. Just send us a copy. By the way, we think your original subpoena was "entirely deficient" and you have no longer "any standing, power or grounds to compel documentary discovery".

Funny stuff, no? Next, Edward Normand, one of SCO's attorneys, sent a letter to Novell's Ken Brakebill saying that "we understand that Computer Associates has objected" and saying that now SCO did object to the reissued subpoena "to the extent it would permit Novell to exceed the number of additional depositions permitted by the Court's minute order of January 25, 2007." That, Novell tells the court later, should be rejected, because SCO has no standing to object to a subpoena on behalf of a nonparty absent a claim of privilege.

So, that is why, we now learn, Novell sought and got an extension of time from the Utah court, after discussions with SCO, I gather, since the order was on stipulation. After obtaining the extension, Novell sent a letter to CA, letting them know the happy news that CA were now properly impaled and would have to submit to the deposition, either voluntarily or Novell would file a motion to compel.

CA sent a letter back, now saying it objected to the subpoena on the grounds that it wasn't noticed in time, something it felt the new scheduling order had not affected. Is this not hilarious? CA added that "CA has not categoricaly refused to provide a deponent." They just wanted to know, they wrote, whether CA was the only deposition noticed between January 29 and February 9, hence the one remaining. However, as Novell later pointed out to the court, CA waited "tellingly" until after the February 9th deadline specified in the order to assert the objection, "thus precluding Novell from easily re-designating CA for deposition by February 9th (assuming Novell was required to do so -- which it was not)." So, Novell by then believed the original objection was just to achieve delay, so it could raise the next objection. However, Novell noted that CA missed a deadline itself. You have 14 days to object to documents subpoenaed, and CA waited 27.

CA's new list of specific objections to the subpoena's documents requests included things like the documents being confidential, CA wanting to make sure the Protective Order would protect them, and the usual "too broad", "unduly burdensome" type of objections. Novell's point of view on that was that it was incredible, given that CA had waived substantive objections, having raised only the issue of the location, in its initial response to the first subpoena. Nevertheless, and you'll like this part, CA offered this objection:

CA objects to the definition of "SCO" in that CA has no way of knowing, for example, who are "its present and former directors, officers, employees, agents, representatives, accountants, investigators, consultants, attorneys, and predecessors and successors in interest", which other "person or entity" may be "acting on its behalf," "subject to its control" or "under common control" with it, or what persons or entities may be "otherwise in the corporate family of The SCO Group, Inc."

Tell me about it. We all have that problem.

CA also objected that it doesn't know anything about the APA. Ask someone who does. Oh, and if you file a motion to compel, send them a copy. That's lawyer talk for "I don't wanna. Go ahead and make me." The substantive objections, however, indicate that by then CA was more concerned that it had better do something substantive. But Novell quotes, in its eventual motion to compel, some cases to the effect that you are supposed to list all your objections at once "so that discovery does not become a 'game'".

Ahem. Heaven forbid.

So, Novell filed a motion to compel at the end of March in the US District Court for the Eastern District of New York (that's Brooklyn, by the way, which may explain some things about the New York style on CA's part -- it's actually headquartered in Islandia, but New York is New York), before the Honorable Eric N. Vitaliano, Novell telling the court that CA was gaming the sytem and obstinately refusing to comply with a valid subpoena. You can find all the documents in this funny saga here [PDF] and the motion to compel here [PDF]. Hey, New Yorkers are New Yorkers, and CA put up a New York fight. But Morrison & Foerster have offices all around the world, including New York. In the end, according to Pacer, there was court ordered to be a telephone conference with all the players, but at that point, the parties let the court know there had been a stipulation, and other than letting the court know how they worked it all out by April 25th, so ended the tug of war. This little dustup played out beginning in January and got resolved in April, but we are only learning of it now. If you were wondering about all the extensions in the schedule, now you know what it was all about.

There is more. If you take a look at the first subpoena, you'll see that Novell also sent subpoenas to CDM Development Corporation, CA, Cymphonix, DTR Business Systems, Inc., Everyone's Internet, Ltd., Furniture Brands International, Inc., Hewlett-Packard Company, Kellogg Company, Leggett & Platt, Inc., Questar Corporation, and Seneca Data Distributors, Inc. HP?

The question is, why would Novell be so interested in doing a deposition of Computer Associates? Because CA is an acknowledged SCOsource licensee, that's why. All the documents Novell asked to be produced are on that topic, specifically asking for all documents from the files of Sam Greenblatt, as well as "all documents relating to any due diligence regarding SCO's and/or Novell's rights in UNIX and UnixWare performed by" CA and any communications with any third party or documents related to SCO's and/or Novell's rights under the APA specifically any patent or copyrights in UNIX, and all information on any payments or other consideration CA made to SCO related to SCOsource. And in the end, the parties worked out some kind of stipulation, and I'm sure after all that, Novell got what it fought for in the main. In time all the other details will come out, I imagine, including what the HP subpoena was about.


1:07-mc-00137-ENV Sco Group, Inc. v. Novell, Inc.
Eric N. Vitaliano, presiding
Date filed: 03/30/2007 Date of last filing: 04/11/2007

History

Doc.
No.
Dates Description
--
Filed: 03/30/2007
Entered: 04/03/2007
Filing Fee Received
Docket Text: FILING FEE: $ 39, receipt number 337433 (Bowens, Priscilla)
1
Filed: 03/30/2007
Entered: 04/03/2007
Motion to Compel
Docket Text: MOTION to Compel Computer Associates International's Compliance with Subpoena by Novell, Inc.. (Attachments: # (1) declara) (Bowens, Priscilla)
2
Filed: 03/30/2007
Entered: 04/03/2007
Disclosure of Interested Parties
Docket Text: DISCLOSURE of Interested Parties by Novell, Inc.. (Bowens, Priscilla)
--
Filed & Entered: 04/03/2007
Order
Docket Text: ORDER The Court is in receipt of defendant Novell, Inc.s motion to compel. Counsel for plaintiff, defendant, and non-party proposed witness Computer Associates International are directed to appear before this Court for a conference on Monday, April 9, 2007 at 3:00 p.m. in Courtroom 6. Counsel for defendant is directed to inform all other counsel of the conference by the close of business on April 4, 2007. (Sent via email from Chambers to Heather M. Sneddon, Esq. at [email redacted], Adam T. Bernstein, Esq. at [email redacted] and Edward J. Normand, Esq. at [email redacted].) Ordered by Judge Eric N. Vitaliano on 4/3/2007. (Wolfe, Karin)
3
Filed & Entered: 04/03/2007
Certificate of Service
Docket Text: CERTIFICATE OF SERVICE by Novell, Inc. re [1] MOTION to Compel Computer Associates International's Compliance with Subpoena, [2] Disclosure of Interested Parties (Whitney, Craig)
4
Filed & Entered: 04/04/2007
Notice(Other)
Docket Text: NOTICE by Novell, Inc. of Court Conference (Whitney, Craig)
5
Filed & Entered: 04/05/2007
Terminated: 04/06/2007
Motion to Adjourn Conference
Docket Text: First MOTION to Adjourn Conference by CA, Inc.. (Attachments: # (1) Supplement Stipulated Adjournment) (Bernstein, Adam)
--
Filed & Entered: 04/06/2007
Order on Motion to Adjourn Conference
Docket Text: ORDER granting [5] Motion to Adjourn Conference. Ordered by JudgeEric N. Vitaliano on 4/6/07. The telephone conference scheduled before this Court for Monday, April 9, 2007 at 3:00 p.m. is hereby adjourned to Wednesday, April 11, 2007 at 2:30 p.m. Defendants counsel is directed to inform all other counsel of the conference and to initiate the call. (Sent via email from Chambers to Craig Whitney, Esq. at cwhitney@mofo.com, Heather M. Sneddon, Esq. at [email redacted], Adam T. Bernstein, Esq. at [email redacted] and Edward J. Normand, Esq. at [email redacted].) (Wolfe, Karin)
--
Filed & Entered: 04/11/2007
Telephone Conference
Docket Text: Minute Entry for proceedings held before Eric N. Vitaliano : Telephone Conference held on 4/11/2007 Counsel appeared for Novell, Inc., Computer Associates, and SCO Group, Inc. via telephone and have jointly advised the Court that this matter will be resolved through stipulation, which may be submitted to the Court to be so ordered. Movant shall apprise the Court of the status of this matter via ECF on April 25, 2007, or before if resolved earlier. (Sent via email from Chambers to Craig Whitney, Esq.at [email redacted], Heather M. Sneddon, Esq. at [email redacted], Adam T. Bernstein, Esq. at [email redacted] and Edward J. Normand, Esq. at [email redacted].) (Wolfe, Karin)

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