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Microsoft Subpoenas Canopy and Law Firm Hunting for Documents from Caldera v. MS to use in Novell v. MS (antitrust) - 3 updates
Monday, October 06 2008 @ 05:45 PM EDT

Guess what? It turns out that 158 boxes of documents from the Caldera v. Microsoft litigation still exist, and Microsoft is trying to get them. This drama is playing out in the Novell v. Microsoft antitrust lawsuit, and Canopy has been drawn into it too.

So, who has the documents? According to the Affidavit of Stanley J. Preston [PDF], his law firm, Snow, Christensen & Martineau (SCM), still has them, and Microsoft has subpoenaed them. SCM represented Caldera in the Caldera v. Microsoft litigation. Ryan Tibbitts, now SCO's general counsel, at that time was with SCM.

There was a protective order in the case, Preston relates, and based on that, various documents were destroyed at the end of the lawsuit. After that, SCM turned over "a large number of boxes of documents" to Canopy. Later, when Novell sued Canopy, if you remember that money kerfuffle, SCM couldn't represent either side, having by then a conflict of interest, so it has no file on that.

However "SCM has in its possession 158 boxes containing documents related to the Caldera Lawsuit." Preston states that the majority don't appear to be responsive to the subpoena from Microsoft, but I'd be surprised if Microsoft will accept his judgment on that. Meantime, Canopy got a Microsoft subpoena too, and they offered to let Microsoft paw through them, but SCM is not such a marshmallow:

I informed Canopy that SCM was asserting work product immunity and would not voluntarily allow Microsoft to review the documents.
SCM did offer that SCM would look through the boxes for any correspondence between them and Novell if Microsoft would pay for it, but instead Microsoft filed a motion to compel. If you think the estimate for the work is high, take a look at this info on how expensive discovery typically is now.

Not a dull moment in the software vendors' cesspool playing out in Utah. Sometimes when I think about all the messes that would never have happened if there were no Microsoft, it's mind-boggling, and rather sad. If you want to see some of the public Caldera documents, here you go. And more, along with more background on all this here. Old timers at Groklaw will remember that Canopy turned boxes and boxes of documents into toilet paper in May of 2003. And here's the article we did on the Caldera-Microsoft agreement [PDF], settling the lawsuit. Why is Microsoft so eager? Because it is trying to prove that Novell sold all its antitrust claims to Caldera, so it can get rid of the two remaining claims Novell has brought against Microsoft in the antitrust case over WordPerfect.

Update: What has happened is that some documents have been unsealed by the Magistrate Judge in Utah. Here's the current Utah docket showing the Order and all the related documents, including the new ones:

1 - Filed: 09/05/2008
Entered: 09/08/2008
Motion to Compel
Docket Text: MOTION to Compel Production of Documents in Response to Subpoena re: Anderson & Karrenberg, P.C.. Case Assigned to Judge Dee Benson. (Filing fee $ 39, receipt number 4681026372.) filed by Defendant Microsoft Corporation. (blk)

4 - Filed: 09/05/2008
Entered: 09/08/2008
Motion to Compel
Docket Text: MOTION to Compel Production of Documents in Response to Subpoenas re: Snow, Christensen & Martineau filed by Defendant Microsoft Corporation. (blk)

7 - Filed: 09/05/2008
Terminated: 09/22/2008
Motion to Seal Document
Docket Text: MOTION to Seal Specific Documents filed by Defendant Microsoft Corporation. (blk) Modified on 9/22/2008 by changing this from a motion to seal case to a motion to seal documents (blk).

8 - Filed: 09/05/2008
Entered: 09/08/2008
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [7] MOTION to Seal Specific Documents filed by Defendant Microsoft Corporation. (Attachments: # (1) Exhibit A)(blk) Modified on 9/22/2008 by correcting docket text (blk).

9 - Filed: 09/05/2008
Entered: 09/08/2008
Lodged Document
Docket Text: DOCUMENTS LODGED consisting of Case Docket for District of Maryland Case. (blk)

12 - Filed & Entered: 09/22/2008
Order Referring Case to Magistrate Judge
Docket Text: ORDER REFERRING CASE to Magistrate Judge David Nuffer under 28:636 (b)(1)(A), Magistrate to hear and determine all nondispositive pretrial matters. Motions referred to David Nuffer. Signed by Judge Dee Benson on 9/22/2008. (rlr)

13 - Filed & Entered: 09/22/2008
Terminated: 09/23/2008
Motion for Extension of Time to File Response/Reply
Docket Text: MOTION for Extension of Time to File Response/Reply as to [4] MOTION to Compel Production of Documents in Response to Subpoenas re: Snow, Christensen & Martineau filed by Defendant Microsoft Corporation. Motions referred to David Nuffer.(rlr)

14 - Filed & Entered: 09/22/2008
Order on Motion to Seal Document
Docket Text: DOCKET TEXT ORDER granting [7] Motion to Seal Documents. IT IS HEREBY ORDERED that the following documents shall be sealed:
[2] Memorandum in Support of Motion,
[3] Declaration,
[5] Memorandum in Support of Motion,
[6] Declaration.
Signed by Magistrate Judge David Nuffer on 9/22/08. No attached document. (DN)

15 - Filed & Entered: 09/23/2008
Order on Motion for Extension of Time to File Response/Reply
Docket Text: ORDER granting [13] Motion for Extension of Time to File Response/Reply re [1] MOTION to Compel Production of Documents in Response to Subpoena re: Anderson & Karrenberg, P.C.. Case Assigned to Judge Dee Benson. (Filing fee $ 39, receipt number 4681026372.) Replies due by 11/29/2008. Signed by Magistrate Judge David Nuffer on 9/22/2008. (Attachments: # (1) Mailing Certificate) (rlr)

16 - Filed & Entered: 09/23/2008
Certificate of Service
Docket Text: CERTIFICATE OF SERVICE re [14] Order on Motion to Seal Document, (blk)

17 - Filed & Entered: 09/23/2008
Order to Unseal Case
Docket Text: ORDER TO UNSEAL CASE. Documents 2, 3, 5, 6, 10, and 11 remain sealed. No docket entries are sealed. Signed by Magistrate Judge David Nuffer on 9/23/08. (DN)

18 - Filed & Entered: 09/23/2008
Certificate of Service
Docket Text: CERTIFICATE OF SERVICE re [17] Order to Unseal Case (blk)

19 - Filed & Entered: 09/25/2008
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [4] MOTION to Compel Production of Documents in Response to Subpoenas re: Snow, Christensen & Martineau filed by Plaintiff Novell, Inc.. (Attachments: # (1) Objection to Subpoena, # (2) Correspondence dated 8/20/08 to Boyd L. Rogers)(Preston, Stanley)

20 - Filed & Entered: 09/25/2008
Affidavit in Opposition to Motion
Docket Text: AFFIDAVIT of Stanley J. Preston in Opposition re [4] MOTION to Compel Production of Documents in Response to Subpoenas re: Snow, Christensen & Martineau filed by Plaintiff Novell, Inc.. (Preston, Stanley)

23 - Filed & Entered: 10/06/2008
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [4] MOTION to Compel Production of Documents in Response to Subpoenas re: Snow, Christensen & Martineau filed by Defendant Microsoft Corporation. (Bettilyon, Mark)

24 - Filed & Entered: 10/06/2008
Declaration
Docket Text: DECLARATION of Mark M. Bettilyon re [4] MOTION to Compel Production of Documents in Response to Subpoenas re: Snow, Christensen & Martineau filed by Microsoft Corporation. (Attachments: # (1) Exhibit 1)(Bettilyon, Mark)

So, this has been going on. We just didn't know it, because the documents were sealed. Now we get to see more of what has been going on. I will try to get the rest of the documents as I am able. A friend just sent me three of them. So that's a start. Why is this happening in Utah when we thought discovery had moved to Maryland? I have absolutely no idea yet.

Update 2: OK. We have most of the important documents. If you want all of them, I'll have to pass the hat. I see from skimming them quickly that this is a side issue, regarding objections to subpoenas, and that's why it's in Utah. The two firms being subpoenaed are in Salt Lake City, and the case itself began there. Remember when the issue about deposing a witness was a kind of side action for a bit in North Carolina? This is sort of like that.

Exhibit A to docket number 8 is the 2005 Amended Stipulated Protective Order Re Competitor Cases Incorporating the Novell Amendment. This document is from In Re Microsoft Corp. Antitrust Litigation.

Update 3: I have all the documents now, and I've placed them in the list, and I thank you for making it possible! Your contributions were sufficient to also get the latest documents in the IP Innovations v. Red Hat case, and I'll place those on Groklaw next.


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