Posted on 12/20/2005 1:14:01 PM PST by Salo
IBM's Motion Granted - 1st Report from the Courthouse -UPDATED Tuesday, December 20 2005 @ 02:49 PM EST
Frank Sorenson made it to the hearing, thank heaven. IBM's Motion to Compel Documents on SCO's Privilege Log was granted. Frank's full report will be arriving soon, but in the meantime, here is the brief message he sent right after the hearing:
Hearing over. IBM's Mot. to Compel Prod of Docs on SCO's Priv Log GRANTED. SCO's Mot. to Compel Docs from Execs GRANTED/DENIED in PART.
As soon as I have more, I'll share it with you.
I hope any readers in the Utah area will give serious thought to attending hearings for us. It's quite a lot on Frank, for one thing, but it's also beneficial to have more than one. If there is a dispute over what happened, it is very good to have multiple eyewitnesses. That has happened, actually, and because we had 5 witnesses, three of them Groklaw's, it was very helpful indeed.
Frank has now filed more, so read on...
UPDATE:
Here's Frank's more detailed report:
Judge Wells heard arguments on two motions, and ruled on both.
IBM's Motion to Compel Production of Documents on SCO's Privilege Log: Wells found that the Novell->Santa Cruz sale did not transfer everything, and neither did the Santa Cruz->Caldera sale. The Broderick Affidavit is insufficient to establish the transfer of privilege. IBM's Motion is GRANTED.
SCO's Motion to Compel Production from IBM's Execs: Wells took a short recess to read up on a few things before making a finding that IBM has acted in good faith with respect to the production of documents from Pamisano & Wladawsky-Berger. In light of wording used in the February 2004 hearing, the March 2004 order was meant to include Paul Horn & Nick Bowen. IBM has stated that they have produced documents from their files, and should provide affidavits stating that IBM has performed a reasonable search of their files and produced responsive, non-privileged documents. If SCO believes the production is insufficient, they should ask the individuals during depositions (which, if taken, won't count against the 50 allowed). SCO's Motion is therefore GRANTED in part, and DENIED in part.
Wells stated that SCO's pending Motion to Compel Discovery was mooted by Kimball's order.
Wells asked about SCO's Motion for the Protective Order, and the parties stated that they had resolved the issue. She then signed an order prepared by the parties regarding it. Details are still unclear.
IBM's affidavits that they have produced responsive documents from Horn and Bowen will be due January 6th. SCO's production of documents from their privilege logs are also due January 6th. Both parties indicated that they would complete their responsibilities much earlier than that date.
So Wells will not be bothering with SCO's redundant request for relief to both judges, since Kimball's order makes the motion filed with her moot.
And IBM gets all the documents they asked for. SCO's protective order motion is resolved too, by agreement. Agreements are easier to achieve when one side starts losing right and left, which is what we are beginning to observe. It's also significant that Wells has ruled that IBM showed good faith in discovery regarding its executives. Think of all the pejorative hints at IBM wrongdoing that we have witnessed, not only in SCO filings but in "reporting" by some of SCO's press buddies. That thread is over now.
But here's the part that I can't wait to here more about: "Wells found that the Novell->Santa Cruz sale did not transfer everything, and neither did the Santa Cruz->Caldera sale."
Pings. Grist, mill. Attack!
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Relax. These court things can take a decade. There are constant rulings and reversals always going to higher courts for clarification. The bottom line is this is how business gets done in the modern world and no matter what the courts ultimately rule it probably won't affect end users in any meaningful way. Frankie says relax. |
I think when this is over, Linus Torvalds should be awarded Darl McBride's skin to use as a throw rug in front of the toilet. But that's just me.
Not a good week for SCO, as they've been losing left and right. All the crap they threw at the wall is slowly starting to fall off.
I wonder how they'll spin this one.
Aaron also attended the hearing. Thank you, Aaron, so much, and he amplifies Frank's account, and then Frank comments in a couple of places:
I attended the hearing. Did not take notes but will give the highlights.Judge Wells started by saying she had read everything and was up to speed, told the attorneys to specifically talk about why Judge Boyce's decision applies/does not apply. (Said that in legal, my translation) [Frank adds: "Yes, one of her specific requests was that they address that decision."]
When SCO replied they argued that Boyce's decision had been superceded by later cases.
Judge Wells ruled from the bench granting IBM's request, they get to write it up. Due Jan 6th or earlier.
The argument on the "renewed renewed renewed" motion to compel started. Judge Wells told the court she believed SCO's interpretation of her orders was correct and that IBM had construed it too narrowly. [Frank adds: "I believe she said IBM _may_have_ construed it too narrowly. I think IBM addressed it in their arguments, and explained how they understood it."] Was not looking good at this point. SCO's attorney was pretty quick in the first round. Just went over some areas he believed IBM was deficient in. [Frank adds: "They believed IBM was deficient because there _must_ be more to produce, and it's "hard to believe" there isn't more. He didn't identify any particular deficiencies, though.]
Mr. Shaughnnesy spoke for IBM. His main point was that in actuality they had complied with the order, and SCO was trying to broaden it. Ended by saying deny this motion or expect the 4th renewed, 5th renewed and 6th renewed motions.
SCO's attorney found this to be quite discouteous, talk of strafing. Judge Wells said she didn't find it so. SCO wants IBM to at least search all email for the words linux and unix and turn them over.
At some point mixed in there, I believe it was the 2nd time Mr. Shaughnnesy spoke he said they should ask the folks in their depositions if they aren't happy with the affidavits; that's the usual course of how discovery works. IBM deposed Mr. McBride and found more than 2 dozen emails that had not been turned over by SCO (emails to and from Microsoft). They sent a letter after the deposition and got the emails. That's normal discovery.
SCO's attorney spoke and said they would rather have the information before deposing them. Judge Wells and left for about 10 minutes.
Denied SCO's motion in part and granted in part. Everything was denied except IBM is to provide affidavits from two more IBM execs that they complied with discovery. They also get free depositions on those two execs. SCO writes this one and also due Jan 6th or earlier.
They jointly presented an order for Judge Wells to sign on the emergency motion on the accountants. She signed it so we should see it shortly.
Do you see how valuable it is to have multiple eyewitnesses? It's the same reason why Groklaw has such a good record for accuracy. When you have more than one person working on something, it works out well, because each person notices different things and knows different things. The detail about Darl McBride-Microsoft emails tells us two things I didn't know: Darl has been deposed. And 2) he sends more email than we thought. hahahaha. Maybe that is why SCO was stuck like a broken record on the idea that IBM executives *must* have more documents and email than were turned over?
Microsoft is going to have to pump in a lot more money to keep this thing going for a decade. At current bleed rates, SCO can't last through 2006.
The rest will be implied, namely, "go pound sand, SCO!!"
Some "affiremed in part" win (sarcasm).
Meanwhile, IBM gets all the docs that SCO was trying to keep out of IBM's hands. And these docs actually exist, and are undoubtedly harmful to SCO's case. And IBM can get them from the accountants as well, just to keep SCO's feet to the fire.
Thank you for boiling that down. Well done.
But here's the part that I can't wait to here more about: "Wells found that the Novell->Santa Cruz sale did not transfer everything, and neither did the Santa Cruz->Caldera sale."
Yeah, that sounds quite intriguing...
Could be some interesting items in those E-Mails....
Go Novell!
The phrase "did not transfer everything, is large enough to fly the shuttle through. I'd be interested in having the judge's opinion on what did actually transfer.
Read in context, she apparently meant that SCO didn't get the whole "business" they claim they did; Novell's continuing 95% royalty stream is evidence of that. Marriot's reading of the Schedule of Excluded Assets from the APA provides more of a list of what didn't come with the package.
It's probably just as simple as that -- I wonder what's got PJ's spidey sense up at this point.
What's important is what did no transfer, namely attorney-client privilege. I admit I was on SCO's side on this one for a while after having read their supporting memo, probably because it was one of the few things from them that made some kind of sense. But reading the IBM reply memo blew it away for me, and obviously for the judge, too.
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