SCO-related Courtroom Proceedings

Before Magistrate Judge Brooke C. Wells.

Minutes: "Counsel for both parties present. Discussion held re: status of discovery. Parties to reconvene for a status conference set for 11/21/03 at 10:00 a.m. before Judge Wells. If at that time it is determined that a hearing should be held re: Motion to Compel (docket entry #44), that hearing will be set for 12/5/03 at 10:00 a.m. Court adjourned."

IBM's motion to compel discovery was made on 2003-10-01. Briefs: supporting 2003-10-01, opposing 2003-10-23, reply 2003-11-03.

Also relevant are SCO's 2003-10-17 motion and 2003-10-20 substitute motion to extend time to respond to IBM's motion to compel. Opposed 2003-10-17. Granted 2003-10-28.

Before Magistrate Judge Brooke C. Wells.

Minutes: "Counsel present. After discussion with counsel, the motion to compel hearing will remain set for 12/5/03 at 10:00"

Discussed were IBM's first motion to compel (see above), SCO's motion to compel, filed 2003-11-04, briefs: supporting 2003-11-04, opposing 2003-11-19, reply 2003-12-01, and IBM's second motion to compel, filed 2003-11-06, briefs: supporting 2003-11-06, opposing 2003-11-24, reply 2003-12-03.

Before Magistrate Judge Brooke C. Wells.

Minutes: "Counsel for both parties present. The Court hears arguments re: Motion to Compel (#68). Court GRANTS motion. Plaintiff is to provide responses/affidavits within 30 days of the entry of this order. All other discovery is to be postponed until the order has been complied with. An order reflecting this ruling is to be prepared by counsel for defendant. A motion hearing is scheduled for 1/23/04 at 10:00 a.m. Court is adjourned."

See the above proceedings for the three motions to compel at issue.

Docket caption of Order: "Order granting [68-1] motion to compel discovery, granting [44-1] motion to compel Discovery. The SCO Group is hereby ORDERED:
1) To respond fully and in detail to Interrogatory Nos. 1-9 as stated in IBM's First Set of Interrogatories.
2) To respond fully and in detail to Interrogatory Nos 12 and 13 as stated in IBM's Second Set of Interrogatories.
3) IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Production of Documents and SCO is to produce all requested documents.
4) To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided.
5) To the extent IBM's requests call for the production of documents or are met by documents SCO has already provided, SCO is to identify with specificity the location of responsive answers including identification of the Bates numbered documents previously provided if applicable.
6) If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom thy were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance.
SCO is required to provide such answers and documents within thirty days from the date of this order.
All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order.
The Court will hold a hearing on the forgoing issues January 23, 2004 at 10:00 a.m.
Signed by Judge Brooke C. Wells, 12/12/03"

Before Magistrate Judge Brooke C. Wells.

Minutes: "Counsel for both parties present. The Court hears statements re: compliance with previous order as to discovery and SCO's motion for discovery (d.e.#66). The Court takes the matter under advisement and an order will be forthcoming."

See the above proceedings for the three motions to compel at issue. On 2004-02-05, IBM had filed a status report on SCO's Compliance with the 2003-12-12 order.

Docket caption of 2004-03-03 Order: "Order regarding SCO's Motion to Compel Discovery and IBM's Motion to Compel Discovery; (Please see the order for all information, as this is an extensive order). Ordering both parties to file affidavits re compliance with this order and additional memoranda addressing the impact of the second amended complaint and IBM's subsequent answer on IBM's Motion to Strike the 5th, 15th, and 19th Affirmative Defenses asserted by SCO in its Answers to IBM's Amended Counterclaims..."

(IBM moved on 2003-11-10 to strike three of SCO's affirmative defenses (filed 2003-10-24) on the basis that they alleged fraud and inequitable conduct without any particularity. Briefs: supporting 2003-11-10, opposing 2003-11-25, reply 2003-12-10. SCO entered amended defenses on 2004-03-11, dropping the allegation of fraud, and adding many particulars to the allegations of inequitable conduct. No memoranda were filed regarding striking any of the revised defenses.)

Order also states: "IBM is hereby ORDERED: 1. To provide the releases of AIX and Dynix consisting of 'about 232 products' as was represented by Mr. Marriott at the February 6, 2004 hearing. The releases are to be provided within 45 days of the entry of this order. Following this production, SCO is to provide additional memoranda to the Court indicating if and how these files support its position and how they are relevant. The memorandum is to include with specificity, and to the extent possible, identification of additional files SCO requests and the reasons for such requests. The Court will then consider ordering IBM to produce more code from AIX and Dynix."

SCO filed such memoranda on 2004-05-28 (opposed 2004-06-23, replied 2004-07-13) and on 2004-08-19 (sealed, redacted 2005-07-25) (opposed 2004-09-24 (sealed, redacted 2005-05-04), replied 2004-10-04 (sealed, redacted 2005-07-25)).

Before Magistrate Judge Brooke C. Wells.

Minutes: "Counsel for both parties contact the Court by telephone re: expedited motion for protective order (d.e. #168). Court hears arguments and DENIES the motion due to lateness of the objection and inconvenience to the parties already scheduled for deposition. Counsel for defendant is to prepare an order."

SCO's motion for a protective order was made 2004-06-03 (includes supporting memo). Briefs: opposing 2004-06-04, reply 2004-06-04

Order: "The court, being fully advised, hereby concludes as follows: (i) SCO's attempt to postpone depositions scheduled for the week of June 7, 2004 was undertaken too late; (ii) granting SCO's motion would cause undue inconvenience to the third party witnesses and other participants in the depositions, and (iii) to the extent SCO's motion is premised on its need to have the same attorney appear both at the deposition of David Frasure and at the hearing scheduled for June 8, 2004, before the Honorable Dale A. Kimball, Judge Kimball is willing to reschedule that hearing to accommodate SCO's counsel.
Based on the forgoing, and for good cause shown, IT IS HEREBY ORDERED that SCO's Expedited Motion for Protective Order be and hereby is denied. DATED this 15th day of June, 2004" signed by Judge Brooke C. Wells

Minutes: "Pla's motion to sever or bifurcate and pla's motion to amend the scheduling order were argued to the court. The court took the motions under advisement."

SCO moved on 2004-03-24 for the patent counterclaims to be tried separately from the rest of the case. Briefs: supporting 2004-03-24, opposing 2004-04-12, reply 2004-04-19.
SCO moved to amend the schedule on 2004-04-05. Briefs: supporting 2004-04-05, opposing 2004-05-14, reply 2004-06-02.

Docket caption of Order: "Order granting in part, denying in part [129-1] motion to amend [23-1] Scheduling order. Denying [120-1] motion to bifurcate. Scheduling Order amended as follows:discovery due set for 4/22/05, motion filing deadline set for 5/20/05, Final Pretrial Conference set for 2:30 10/10/05, 5-Week Jury trial set for 8:30 11/1/05 See file/image for further deadlines. Signed by Judge Dale A. Kimball , 6/10/04"

Minutes: "The Court heard the arguments of counsel re: pla's [144] motion to stay or dismiss, pla's [195] Rule 56f motion, dft's [152] motion for partial summary judgment and dft's [212] motion to strike. The motions were taken under advisement."

IBM's tenth counterclaim (filed 2004-03-29) seeks a declaratory judgment that none of IBM's "Linux activities" infringe any SCO copyright.

SCO moved on 2004-04-26 to dismiss this counterclaim or stay it pending the AutoZone case. (This replaced the mistakenly filed 2004-04-23 motion, which requested the dismissal or stay of all three of IBM's declaratory judgment counterclaims.) Briefs: supporting 2004-04-23, opposing 2004-05-18, supplemental opposing 2004-06-28, reply 2004-08-23.

IBM cross-moved for summary judgment on 2004-05-18. Briefs: supporting 2004-05-18, opposing 2004-07-09, reply (redacted) 2004-08-23.

SCO moved on 2004-07-08 that summary judgment be denied or continued pending further discovery, in accordance with Rule 56(f).

IBM moved on 2004-08-23 to strike certain of the materials submitted by SCO in opposition to IBM's cross-motion for summary judgment. Briefs: supporting 2004-08-23, opposing 2004-09-07, reply 2004-09-13.

Docket text of 2005-02-08 Order: "Memorandum Decision denying [144-1] amended motion to Dismiss, denying [144-2] amended motion or to Stay Count Ten of Counterclaim-Pla Ibm's Second Amended Counterclaims Against SCO,, denying without prejudice to renew or refile after discovery is completed [152-1] cross motion for partial summary judgment on claim for declaratory judgment of non-infringement, mooting [195-1] motion in further opposition to IBM's Motion for Partial Summary Jgm, denying [246-1] motion to strike materials submitted by SCO in opposition to IBM's cross-motion for partial summary jgm, denying without prejudice to renew or refile after discovery is complete [225-1] motion for partial summary judgment on Breach of Contract Claims, denying without prejudice to renew or refile after discovery is complete [233-1] motion for partial summary judgment on its counterclaim for copyright infringement (eighth counterclaim) vacating to the extent that it grants permission to file dispositive motions prior to the close of discovery [313-1] order; The court will not entertain any dispositive motions until after discovery is complete, unless both parties stipulate that resolution of the motion is possible prior to the close of discovery, signed by Judge Dale A. Kimball"

Before Magistrate Judge Brooke C. Wells.

Docket caption of 2004-09-10 notice: "Motion hearing reset for 10:00 10/19/04 for [212-1] motion to strike the 7/12/04 Declaration of Christopher Sontag, reset for 10:00 10/19/04 for [190-1] motion to compel discovery".

SCO moved again to compel discovery on 2004-07-06. Briefs: supporting 2004-07-07, opposing 2004-08-04, reply 2004-08-26.

IBM moved on 2004-08-04 to strike the 2004-07-12 Sontag Declaration (which was unsealed on 2005-08-04). Briefs: supporting 2004-08-04 (errata filed on 2004-08-09 ), opposing 2004-08-26, reply 2004-09-07 (unsealed 2005-06-20).

See the 2004-02-06 proceeding for other pertinent filings.

2004-10-20 Order:

... the court hereby ORDERS:
1. Both parties are to prepare and exchange privilege logs within 30 days from the entry of this order.
2. IBM is provide [sic] affidavits from the Board of Directors, Mr. Palmisano and Mr. Wladawsky-Berger regarding production of all non-privileged documents pertaining to IBM's Linux strategy. The affidavits are to be filed wihtin 30 days from the entry of this order.
3. The court takes the remainder of SCO's motion under advisement.
4. The court, sua sponte, hereby seals the transcript of the proceedings held on October 19, 2004. Copies of the transcript are to be provided to the parties in the case and to the court but the transcript shall remain sealed until further order of the court.

2005-01-18 Order:

... the court HEREBY ORDERS IBM to provide in a readily accessible format all versions and changes to AIX and Dynix

... IBM is hereby ORDERED to provide programmer's notes, design documents, white papers, the comments and notes made by those who did the changes, the names and contact information of individuals who made changes and what changes they specifically made ... for the 3000 individuals who made the most contributions and changes to the development of AIX and Dynix.

... the court HEREBY ORDERS both parties to submit privilege logs and any objections to the opposing parties' privilege logs to the court.

... Based on the foregoing, SCO's renewed motion to compel is granted in part and denied in part. The discovery ordered by the court is to be provided no later than March 18, 2005. ..."

Both parties' privilege logs were filed, under seal on 2005-03-10. IBM's objections were filed 2005-04-11. SCO's objections were filed under seal on 2005-04-11, and unsealed on 2005-08-04.

IBM moved on 2005-02-11 for reconsideration of the 2005-01-18 order. Briefs: opposing 2005-02-28, reply 2005-03-14.

2005-04-20 Order:

... the court does not at this time strike its prior requirement that IBM produce the documents from the files "for the 3000 individuals who made the most contributions and changes to the development of AIX and Dynix." Instead, the court finds it appropriate to defer the majority of the required production ...

... the court hereby ORDERS IBM to produce the programmer's notes, design documents, white papers, comments and notes, contact information, specific changes made to code, and all relevant non-privileged documents from the files of the 100 individuals who made the most contributions and changes to the development of AIX and Dynix. ...

SCO can then identity [sic] additional developers "from whose files it would like additional production and IBM can then provide the information . . . ." IBM's Mem. in Supp. p. 5.

SCO moved on 2004-10-14 to amend its complaint a third time. Briefs: supporting 2004-10-14, opposing 2004-11-30 (sealed), reply 2004-12-29 (sealed), sur-reply 2005-02-18 (sealed, but unsealed on 2005-05-04).

SCO moved on 2005-01-12 to compel the production of Samuel J. Palmisano (IBM's CEO) for deposition. Briefs: supporting 2005-01-12, opposing 2005-02-18 (sealed, but unsealed on 2005-05-04), reply 2005-03-11 (sealed).

On 2005-01-18, the court struck the current case scheduling order and ordered the parties to confer and "submit a proposed amended scheduling order" by 2005-03-25. They failed to submit "a" proposal and instead submitted two: SCO's proposed scheduling order and IBM's proposed scheduling order. They also submitted a round of memoranda on the proposals: IBM 2005-03-25, SCO 2005-04-01, IBM 2005-04-11.

IBM moved on 2005-02-18 to enter a proposed order that would limit the scope of IBM's Ninth Counterclaim. That counterclaim (found on page 38 of IBM's 2004-04-23 second amended counterclaims) is for a declaratory judgment that IBM's AIX and Dynix activities do not infringe any SCO copyright. Briefs: opposing 2005-03-23 (sealed), reply 2005-04-01.

Order: "IT IS HEREBY ORDERED that (1) SCO's Motion to Compel IBM to Produce Samuel J. Palmisano for Deposition is GRANTED; (2) SCO's Motion for Leave to File Third Amended Complaint is DENIED, (3) International Business Machines Corp.'s ('IBM') Motion for Entry of Order Limiting Scope of IBM's Ninth Counterclaim is GRANTED. IBM is directed to file a proposed Order that restates its Ninth Counterclaim. An Amended Scheduling Order is set forth above, as is a procedure to follow when unsealing documents that were previously filed under seal."

The revised "Order Limiting Scope of IBM's Ninth Counterclaim" was entered on 2005-08-01.

G2 Computer Intelligence moved on 2004-11-30 to intervene and to unseal court files. CNET Networks and Forbes joined the motion on 2005-01-19. Briefs: supporting 2004-11-30, SCO's response 2005-01-20, IBM's opposition 2005-01-20, reply 2005-01-31.

Order: "The court declines to allow G2, CNET, and/or Forbes to intervene in this case. The court, however, sets forth the following requirements and admonitions to minimize the risk of overdesignating confidential documents, thereby maximizing the public's accessability to the documents filed in this case: ..."

Before Magistrate Judge Brooke C. Wells.

On 2004-12-23, SCO made a second renewed motion [366] to compel discovery. Briefs: supporting 2004-12-23 (sealed, but redacted on 2005-07-05, with all of the exhibits but F unsealed on 2005-07-06), opposing 2005-02-04, reply 2005-02-25 (sealed, but redacted on 2005-07-05).

On 2005-09-06, SCO made a third renewed motion [503] to compel. Briefs: supporting 2005-09-06 (redacted), opposing 2005-09-26 (with Declarations of Frye and Shaughnessy, and one sealed document), reply 2005-10-05.

On 2005-09-20, SCO made an expedited motion [508] for leave to take 25 additional depositions. Briefs: opposing 2005-10-06.

See the 2004-10-19 proceeding for other pertinent filings.

2005-10-13 Order:

SCO's Renewed Motion to Compel Discovery (Docket No. 366): ... SCO shall withdraw the pending motion and file a new motion ...

SCO's Renewed Motion to Compel Discovery (Docket No. 503): ... IBM appropriately interpreted the Orders, and SCO's interpretation of the Orders takes out of context what the Court believes to be the clear meaning of the Orders. ... SCO's motion to Compel Discovery and request for sanctions therein is denied.

SCO's Expedited Motion ... for Leave to Take Additional Depositions (Docket No. 508): ... The Court hereby increases the number of allowable depositions by 10 as to each side. ... The Court will not entertain any motion for an extension of time to complete depositions.

2005-12-02 Notice: "Miscellaneous Hearing re: objections to Magistrate Order set for 12/13/2005 10:30 AM in Room 220."

See the 2004-10-07 proceeding for the background to Magistrate Wells's 2005-10-13 Order.

SCO filed an objection on 2005-10-27. Briefs: opening 2005-10-27, opposing 2005-11-21, reply 2005-12-06 (sealed 2005-12-09).

2005-12-16 Order: "Moreover, SCO has failed to demonstrate that the Magistrate Judge's decision was 'clearly erroneous or contrary to law.' Rather, IBM has persuasively articulated several reasons why Judge Wells properly limited SCO's request for more information regarding the non-public Linux development materials. Accordingly, the Magistrate Judge's Order of October 12, 2005 is affirmed."

Before Magistrate Judge Brooke C. Wells.

On 2005-09-26, IBM moved to compel SCO to "produce all documents listed on its privilege log that were created by or for third parties". Briefs: supporting 2005-09-26 (with Sorenson Declaration), opposing 2005-10-21, reply 2005-12-08 (redacted) (with Shaughnessy Declaration, of which exhibit 4 was sealed).

The 2005-10-13 order had directed that "... With regard to SCO's Renewed Motion to Compel Discovery (Docket No. 366) ... SCO shall withdraw the pending motion and file a new motion". SCO filed its New Renewed Motion on 2005-10-21 (#534). Briefs: opposing 2005-11-08, reply 2005-11-23.

SCO made another motion to compel on 2005-10-27 (#537). This sought the same Linux contribution history discovery that was also sought in the objection that SCO filed the same day (see the 2005-12-13 hearing). Briefs: opening 2005-10-27, opposing 2005-11-21, reply 2005-12-06 (sealed 2005-12-09).

On 2005-12-14, SCO moved "for a protective order with respect to four subpoenas that defendant, IBM, has served on four accounting firms that previously worked for SCO."

See the 2005-10-07 proceeding for other pertinent filings.

Minutes: "Counsel for both parties present. The Court hears oral argument and rules as follows: re [537] MOTION to Compel Discovery filed by SCO Group - GRANTED IN PART, DENIED IN PART - Affidavits to be provided by 1/6/06, re: [514] MOTION to Compel production of documents on SCO's privilege log filed by International Business Machines Corporation - GRANTED - log to be provided by 1/6/06; re: [534] MOTION to Compel Discovery filed by SCO Group - FINDING AS MOOT - based on Judge Kimball's ruling; [582] MOTION for Protective Order filed by SCO Group - FINDING AS MOOT - The parties have reached a resolution and an order is executed and filed in open court. Order to be prepared by defendant; See order for specifics."

Minutes Correction: "Motion 534 is GRANTED IN PART AND DENIED IN PART with affidavits due on 1/6/06; Motion 537 is MOOT per Judge Kimball's ruling."

Order on 2005-12-20: "third party accounting and auditing firms ... shall produce ... all documents reponsive to the respective subpoenas, including those documents that may contain tax information or advice ... SCO may review for privilege the documents to be produced ... provided that SCO does not unduly delay the production ... in the event SCO withholds documents from production, it must promptly provide IBM a privilege log."

Order on 2006-03-13: "IBM's Motion to Compel Production of Documents on SCO's Privilege Log ... is granted. SCO shall produce to IBM the documents at issue ... SCO's New Renewed Motion to Compel ... is granted in part and denied in part ... IT IS HEREBY ORDERED that IBM provide declarations from Paul Horn and Nick Bowen regarding the nature of the search that has been conducted with respect to the documents in their files ... SCO may take the depositions of Messrs. Horn and Bowen on this topic."

Before Magistrate Judge Brooke C. Wells.

Minutes: "Court hears discussion by both parties re: Requests for Admissions (RFAs). Due date of 1/20/06 is set for both parties, for both discovery periods. Parties will agree to any additional RFAs that may be provided after 1/20/06."

Minutes Correction: "After further clarification, the order will be that the RFAs for the INITIAL discovery period will be 1/20/06. The rest of the order stands."

Before Magistrate Judge Brooke C. Wells.

Minutes: "Telephone Conference held on 1/19/2006 re: Interpretation of order 184 as to production of affidavits or delcarations to be used at deposition. Parties to prepare order." (Apparently, no such order was ever prepared)

At the 2004-06-08 hearing before Judge Kimball, SCO mentioned that at the deposition that morning of David Frasure, IBM had used an affidavit that it had not disclosed to SCO beforehand. IBM responded that "Until that declaration was used at his deposition this morning, it was our work product. ... They never asked for that affidavit, and they didn't get it because until it was used it was work product."

Judge Kimball did not address the issue, and it was never addressed in any written motion papers, but it was argued in a telephone conference that same day (for which there were no minutes or transcript), and two weeks later Magistrate Judge Wells issued Order 184: "... Any affidavit or declaration intended to be used at a deposition is to be produced to the opposing party at least forty-eight hours prior to the beginning of the deposition, or such affidavit or declaration shall not be used at the deposition."

Before Magistrate Judge Brooke C. Wells.

Minutes: "The Court hears arguments as to depositions as rules as follows: The depositions of Otis Wilson and Ted Kennedy ONLY may be extended by 30 days (by 2/26/05). Counsel are to agree on the date and time. As to Mr. Wilson - he is not to be subjected to any questions other than reasonable inferences re: new information ONLY. As to the depositions of the three corporations addressed by SCO, the Court will not address this except via motion, which SCO may file."

The following day, SCO filed its motion "for leave to take certain prospective depositions", in which it revealed that "the three corporations" mentioned in the minutes are Oracle, Intel, and Open Group. Also that day (Friday, 2006-01-27), over in the Northern District of California, Oracle filed its motion to quash one of the subpoenas.

As the minutes reflect, no electronic nor stenographic record of the conference was made. For conflicting accounts of what occurred, see the Normand declaration and Shaughnessy declaration that were later filed in conjunction with the 2006-05-30 hearing in North Carolina about the Wilson deposition.

Before Magistrate Judge Brooke C. Wells.

The scheduling provisions of the 2005-07-01 order set 2006-01-27 as the last day for all fact discovery "Except As to Defenses to Claims Relating to Allegedly Misused Material". However, the 2005-12-07 stipulation provided that "If either party has a motion to compel pending" on the deadline, then "the passage of the deadline, by itself, will not render moot the pending motion."

When the deadline passed, SCO had one "motion to compel" pending, and one "motion for leave to take certain prospective depositions" pending.

SCO's motion to compel was filed on 2005-12-29, and seeks a variety of production from IBM. Here are all the motion papers, in order of filing date:

• 2005-12-29 #592 SCO's Motion to compel
• 2005-12-29 #594 SCO's Memorandum in support (sealed)
• 2006-01-03 #595 SCO's James declaration in support (filed unsealed, but sealed on 2006-01-06. During the period that it was not sealed, I obtained this copy of the declaration itself, but I did not obtain copies of the exhibits. See items 618 and 621 below for the redacted versions.)
• 2006-01-19 #600 IBM's Memorandum in opposition
• 2006-01-19 #601 IBM's Shaughnessy Declaration in opposition
• 2006-01-31 #610 SCO's Reply memorandum (sealed)
• 2006-02-01 #611 Redaction of #610, SCO's Reply memorandum
• 2006-02-10 #618 Redaction of #595, SCO's James declaration in support. (includes Exhibits A and B)
• 2006-02-10 #621 Redaction of #594, SCO's memorandum in support. Additional parts:
  • #621-2 Exhibit 1 - Plaintiff's Fifth Request for Production of Documents
  • #621-3 Exhibit 2 - IBM's Responses and Objections to SCO's Fifth Request for the Production of Documents
  • #621-4 Exhibit 3 to 17 Filed Under Seal
  • #621-5 Exhibit 18 - Plaintiff's Seventh Request for Production of Documents
  • #621-6 Exhibit 19 - IBM's Responses and Objections to SCO's Seventh Request for the Production of Documents
  • #621-7 Exhibit 20 to 21 Filed Under Seal
  • #621-8 Exhibit 22 - SCO's Amended Notice of 30(b)(6) Deposition
  • #621-9 Exhibit 23 - Correspondence
  • #621-10 Exhibit 24 to 29 Filed Under Seal
  • #621-11 Exhibit 30 - SCO's Amended Notice of 30(b)(6) Deposition
  • #621-12 Exhibit 31 - Correspondence
  • #621-13 Exhibit 32 to 33 Filed Under Seal
  • #621-14 Exhibit 34 - Correspondence

SCO's motion "for leave to take certain prospective depositions" was filed on the day of the deadline, 2006-01-27, one day after the 2006-01-26 conference at which the possibility of such a motion was discussed. It seeks leave to depose Intel, Oracle, and the Open Group after the deadline. Here are the motion papers:

• 2006-01-27 #607 SCO's Motion "for leave to take certain prospective depositions"
• 2006-02-07 #613 Intel's response
• 2006-02-13 #617 IBM's memorandum in opposition. Additional parts: #617-2 Exhibit 1; #617-3 Exhibit 2; #617-4 Exhibit 3; #617-5 Exhibit 4.
• 2006-02-13 #623 Exhibit 4 to #617 (sealed)
• 2006-02-14 #626 SCO's memorandum in reply (sealed)
• 2006-02-17 #628 Redaction of #626, SCO's memorandum in reply

Minutes: "Court hears arguments and rules as follows: [592] Motion to Compel filed by SCO Group - DENIED without prejudice. A much more detailed and concise motion to compel may be filed within 30 days. [607] MOTION for Leave to Take Certain Prospective Depositions filed by SCO Group - DENIED. Counsel for defenendant to prepare order."

The 2006-03-17 stipulation said "The parties shall not pursue motions to compel against one another, including the motion to compel allowed by the Court at the February 24, 2006, hearing, except as follows", followed by several possibilities for further motions to compel.

The belated order on 2006-04-26: "With regard to SCO's Motion for Leave to Take Certain Prospective Depositions, ... SCO's motion is DENIED. ... With regard to SCO's Motion Compel, Docket No. 592, it is HEREBY ORDERED that SCO's motion is DENIED, WITHOUT PREJUDICE. SCO is granted leave to file a new motion to compel no later than March 26, 2006." (Yes, this order set a deadline that was a month in the past already.)

Before Magistrate Judge Brooke C. Wells.

Minutes: "Telephone Conference held on 3/3/2006 regarding Letters Rogatory and depositions. SCO has no objection to the deposition of the witness taking place after the discovery deadline. Parties updated the Court as to the status of the case. The Court directed that should further telephone status conferences be necessary, counsel are to contact the Court for scheduling."

In the 2006-03-17 stipulation, the parties agreed on several depositions that could take place after the discovery deadline.

Before Magistrate Judge Brooke C. Wells.

In IBM's "MOTION TO LIMIT SCO'S CLAIMS RELATING TO ALLEGEDLY MISUSED MATERIAL", IBM "requests that the Court enter an Order limiting the scope of SCO's claims relating to allegedly misused material to the following Items in SCO's Final Disclosures: Item Nos. 1, 113-142, 150-164, 183-185, 194-203, 205-231, and 272-278."
Pertinent filings:

• 2005-12-22 #589 "SCO'S DISCLOSURE OF MATERIAL MISUSED BY IBM" (actually just a 2-page preface)
• 2005-12-22 #591 The actual disclosures (sealed)
• 2006-02-13 #619 IBM's motion to limit SCO's claims
• 2006-02-13 #620 IBM's memo in support. Additional parts:
  • #620-2 Exhibits A-B
• 2006-03-07 #643 SCO's opposition memo (sealed)
• 2006-03-08 #644 SCO's opposition memo exhibits (sealed)
• 2006-04-04 #657 IBM's memo in reply Additional parts:
  • #657-2 Addendum A
  • #657-3 Addendum B
  • #657-4 Addendum C
• 2006-04-04 #658 IBM's Davis declaration in reply
  Additional parts:
  • #658-2 Addendum A
  • #658-3 Addendum B
• 2006-04-04 #660 IBM's Shaughnessy declaration in reply (sealed)
• 2006-04-14 #668 SCO's Rochkind declaration in sur-reply (sealed)
• 2006-04-14 #669 Redaction of #668, SCO's Rochkind declaration in sur-reply
• 2006-04-28 #672 Redaction of #673, IBM's Davis declaration in sur-sur-reply (the "rebuttal declaration") . See this text version of the declaration for the not-so-redacted bits.
  Additional parts:
  • #672-2 Exhibit A
  • #672-3 Exhibit B
  • #672-4 Exhibit C (sealed)
  • #672-5 Exhibit D
  • #672-6 Exhibit E (sealed)
  • #672-7 Exhibit F (sealed)
• 2006-04-28 #673 IBM's Davis declaration in sur-sur-reply (sealed)

After IBM replied, SCO moved for leave to file an expert declaration:

• 2006-04-10 #661 SCO's Motion for Leave to File Declaration of Marc Rochkind
• 2006-04-12 #664 IBM's memo in opposition
• 2006-04-13 #665 SCO's memo in reply

At the hearing, that motion was granted, and IBM was granted permission to respond to the declaration. See the main document list above for the two filings that resulted. SCO then moved for parts of IBM's last response to be stricken, or for further response from SCO to be allowed:

• 2006-05-04 #676 SCO's "MOTION TO STRIKE PORTIONS OF THE REBUTTAL DECLARATION OF RANDALL DAVIS OR FOR LEAVE TO RESPOND TO THE REBUTTAL DECLARATION"
• 2006-05-04 #677 SCO's memo in support
• 2006-05-10 #680 ORDER DENYING SCO'S MOTION TO STRIKE

Original Minutes: "The Court GRANTS [661] MOTION for Leave to File Declaration of Marc Rochkind filed by SCO Group. IBM is given 10 business from filing to respond. The Court hears arguments re: [619] motion to limit SCO Group's claims. The matter is taken under advisement. Court is adjourned."

Amended Minutes: "... IBM is given 10 business days from the date of the hearing to respond to the Declaration of Marc Rochkind. ..."

Order on 2006-05-10: "... the court foresees that if it were to grant SCO's motion then doubtless, IBM would need an opportunity to respond followed by SCO requesting another opportunity etc. etc. etc. If the court decides it does need further clarification of the current issues concerning IBM's Motion to Limit SCO's claims it will request such clarification from the parties. Accordingly, SCO's motion is DENIED."

Order on 2006-06-28: "The sanction IBM seeks - precluding SCO from using certain alleged misappropriated items because of a lack of specificity - is very serious. As outlined in greater detail below, the court finds that SCO has failed in part to meet the level of specificity required by this court's orders and the order entered by Judge Kimball. It is also apparent that SCO in some instances failed to meet the level of specificity it required of IBM. Further, this failure was willful under case law and prejudicial to IBM. Therefore, the court GRANTS IBM's Motion to Limit SCO's Claims Relating to Allegedly Misused Material in PART."

Before Magistrate Judge P. Trevor Sharp of the Middle District of North Carolina.

SCO served a subpoena on Otis Wilson in Greensboro, North Carolina on 2006-01-19. On 2006-04-12, SCO filed a motion in the Middle District of North Carolina to enforce the subpoena.
Pertinent filings:

• 2006-04-12 #1 SCO's "MOTION TO ENFORCE SUBPOENA AND COMPEL DEPOSITION"
  Additional parts:
  • #1-2 Exhibit A, "AFFIDAVIT OF SERVICE OF SUBPOENA"
• 2006-04-12 #2 SCO's memo in support
  Additional parts:
  • #2-2 Exhibit A
  • #2-3 Exhibit B
  • #2-4 Exhibit C, the subpoena and deposition notice
  • #2-5 Exhibit D, "DECLARATION OF EDWARD NORMAND"
• 2006-04-21 #6 Wilson's memo in opposition (and in support of his motion to quash; see below)
  Additional parts:
  • #6-2 Exhibit Attachment 1.A
  • #6-3 Exhibit Attachment 1.B
  • #6-4 Exhibit Attachment 2 Second Amended Complaint
  • #6-5 Exhibit Attachment 3.A Wilson Deposition Transcript
  • #6-6 Exhibit Attachment 3.B Wilson Deposition Transcript
  • #6-7 Exhibit Attachment 3.C Wilson Deposition Transcript
• 2006-04-25 #8 SCO's reply memo.

Wilson moved to quash the subpoena:

• 2006-04-21 #5 Wilson's "Motion By Third-Party Witness To Quash Subpoena and For Protective Order"
• 2006-04-21 #7 Wilson's supporting memo (just incorporates by reference his opposition memo to the Motion to Enforce; see above)
• 2006-04-25 #9 SCO's opposition memo (just incorporates by reference SCO's two memos on the Motion to Enforce; see above)
• 2006-04-28 #12 Wilson's reply memo
• 2006-05-02 #13 SCO's supplemental opposition memo

Wilson also moved for leave to file a declaration from one of IBM's lawyers:

• 2006-04-28 #10 Wilson's "Motion For Leave to File Declaration"
• 2006-04-28 #11 Wilson's supporting memo
  Additional parts:
  • #11-2 "Declaration of Todd M. Shaughnessy"

Order (#15) on 2006-05-31: "Before the Court is the motion of SCO to enforce its subpoena served upon non-party Otis Wilson. ... For reasons announced in open court, the Court GRANTS the motion and directs that Mr. Wilson appear for deposition in accordance with the subpoena. The only limitation imposed upon the deposition is that SCO may depose Mr. Wilson for no greater length of time than 4 hours. The Court finds that SCO has shown good cause for the re-deposition of Mr. Wilson in that SCO, although it was proceeding diligently with discovery, had inadequate information to proceed in a complete fashion at the time of the first deposition of Mr. Wilson in this action, which was noticed by IBM. ... Mr. Wilson's motion for leave to file a declaration, Pleading No. 10, is GRANTED. ... Mr. Wilson's motion to quash subpoena and for protective order (Pleading No. 5) is hereby DENIED."

On 2006-07-06, SCO and Wilson had not yet been able to agree on a deposition date, and SCO filed a motion to compel Wilson to appear for deposition on July 11. The next day, SCO's attorney informed the court that the dispute had been resolved:

• 2006-07-06 #16 "PLAINTIFF'S MOTION TO COMPEL DEPOSITION OF OTIS WILSON AND REQUEST FOR EXPEDITED RESOLUTION TO DISCOVERY DISPUTE"
• 2006-07-07 Telephone Notice.

2003-07-10 Scheduling Order: "Jury Trial 5 weeks 8:30 a.m. 4/11/05 Jurors: Twelve"

2004-06-10 Order: "5-week jury trial November 1, 2005"

2005-01-18 Order: "the court hereby STRIKES the current amended scheduling order ... The court ORDERS both SCO and IBM ... to submit a proposed amended scheduling order to the court by March 25, 2005."

2005-07-01 Order: "5-week Jury Trial February 26, 2007"
2005-07-01 Notice: "Five Week Jury Trial set for 2/26/2007 08:30 AM in Room 220"