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Attorney Chander Responds to Our Questions on Discovery
Friday, June 27 2003 @ 01:17 AM EDT


I got the following very gracious email about whether SCO can use discovery the way McBride seemed to be indicating -- from Anupam Chander, the attorney whose article on the SCO case appeared in Findlaw Thursday. Keep in mind that he is speaking "off the cuff".

Translation: That means don't sue him, pls; he's speaking informally, conversationally. And don't take it as legal advice to you personally. He hasn't spent hours and hours researching the fine points the way he would if he were actually working on the case. There are also still large gaps in what we know about the facts of this case, and he isn't in Utah, either, where it looks like the case might be heard. It's very kind of him to give a general impression. Now that the disclaimer is behind us, here is what he wrote:

"the claims against IBM are contractual and tort claims that lie, at least in their current form, only against IBM. IBM is accused of violating contracts it signed with SCO's predecessors in interest. to the extent that SCO seeks discovery against third parties, it would only be to support their claims that IBM has violated its obligations under its contracts (or engaged in unfair competition). i don't really see why SCO would need discovery against third parties to prove that Linux has been tainted by IBM's work in violation of its contractual responsibilities. i'm not sure offhand what the rules are governing discovery against third parties. thanks for covering this case--it's an important service that you're doing." [emphasis added by me]

So, thank you, Mr. Chander.

If there are any attorneys in Utah who would care to help us with the last piece about third parties and the rules about that in Utah, can you email me please or post? Anyone know any attorneys in Utah? Or law students? A nearby state might be OK too, like Idaho or Nevada. In places with a low population, sometimes there is a lot of overlap. It'd take us a while to research it, but someone practicing in that state would probably know the answer very readily. The only indication I have seen is the case I cited in my article on discovery, where the party seeking discovery was denied because the judge felt he or she (I forget which now, she, I think) was trying to build a case against the third party.

I just went and looked again at that case, and my memory was accurate. Here is the part of the ruling that indicated to me that Utah does not look kindly on discovery of third parties, particularly if your motive is to build a case against that third party, Major v. Hills, a 1999 case in the Supreme Court of the State of Utah (1999 UT 44). This was an accident case, and one of the parties wanted to do discovery regarding the insurance company, Farmers Insurance. Here's why the judge said the request was improper, with my emphasis added for clarity:

"On appeal, Ms. Hills asserts that the district court erred in ordering her to respond to the Majors' discovery request because (1) the information requested is not relevant to the case at bar and is sought only for the improper purpose of formulating a claim against a non-party to this action; and (2) the information is protected as work product under Rule 26(b)(3) of the Utah Rules of Civil Procedure. The Majors assert that the information is discoverable because of the contractual relationship between Ms. Hills and her insurer. Based on specific revelations made by Ms. Hills' counsel during oral argument before this court, we reverse the district court as to the discovery order, concluding that the information underlying the VVC is irrelevant and therefore not discoverable.(1)

"Before the district court, the Majors supported their discovery request by claiming that they needed the information both to investigate a possible bad faith or fraud claim against Farmers and to rebut Ms. Hills' use of the VVC at trial. Ms. Hills focused primarily on the impropriety of using discovery as a means to investigate potential claims against non-parties. At that time, Ms. Hills did not indicate in any definitive manner that she would not introduce the VVC at trial.

"Although not specifically stating so, the district court's decision to protect the bases of other comparisons completed by Farmers suggests that the court accepted Ms. Hills' contention that the Majors were improperly fishing for information to support possible claims against Farmers. Thus, the only apparent justification for the district court's order compelling discovery was that the information requested could be relevant to impeach the VVC should Ms. Hills decide to introduce it at trial. During oral argument before this court, however, Ms. Hills' counsel stipulated that she would not use the VVC at trial. This stipulation, made in open court, removes any need which the Majors might have for information useful to impeach that document. In this context, then, the information sought is irrelevant under Rule 401 of the Utah Rules of Evidence and therefore undiscoverable under Rule 26 of the Utah Rules of Civil Procedure.(2) See, e.g., Chatterton v. Walker, 938 P.2d 255, 264 (Utah 1997) (holding that irrelevant information is not discoverable under Rule 26 of the Utah Rules of Civil Procedure). We therefore reverse the district court's order insofar as it granted the Majors' motion to compel."

So while the judge here was ruling on something else, his language surely gives a strong hint, at least, that you can't do in Utah what McBride has announced he wants to use discovery for.

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