SCO Grp v. Novell Inc

Filing 116

NOTICE of Third-Party Subpoena by Novell, Inc. (Brakebill, Kenneth)

SCO Grp v. Novell Inc

Doc. 116

Case 2:04-cv-00139-DAK-BCW

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Filed 04/17/2006

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MORRISON & FOERSTER LLP Michael A. Jacobs (pro hac vice) Kenneth W. Brakebill (pro hac vice) 425 Market Street San Francisco, CA 94105-2482 Telephone: [phone] Facsimile: [phone] ANDERSON & KARRENBERG Thomas R. Karrenberg, #3726 John P. Mullen, #4097 Heather M. Sneddon, #9520 700 Chase Tower 50 West Broadway Salt Lake City, UT 84101 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant & Counterclaim-Plaintiff Novell, Inc.

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION THE SCO GROUP, INC., a Delaware corporation, Plaintiff & CounterclaimDefendant, vs. NOVELL, INC., a Delaware corporation, Defendant & CounterclaimPlaintiff.

NOVELL, INC.'S NOTICE OF THIRD PARTY SUBPOENA Case No. 2:04CV00139 Judge Dale A. Kimball

TO THE SCO GROUP, INC. AND ITS COUNSEL OF RECORD: Please take notice that, in accordance with Rule 45 of the Federal Rules of Civil Procedure, Novell, Inc. intends to serve a document subpoena on Recall. A copy of the subpoena is attached to this notice.
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The subpoena will be served April 19, 2006.

DATED: April 17, 2006 MORRISON & FOERSTER LLP

By:

/s/ Kenneth W. Brakebill Kenneth W. Brakebill

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Case 2:04-cv-00139-DAK-BCW
AO 88 (Rev. 11/94) Subpoena in a Civil Case

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PROOF OF SERVICE
DATE PLACE

SERVED
SERVED ON (PRINT NAME) MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.

Executed on
DATE SIGNATURE OF SERVER

ADDRESS OF SERVER

Rule 45, Federal Rules of Civil Procedure, Parts C & D:
(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS. (1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction which may include, but is not limited to, lost earnings and reasonable attorney's fee. (2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial. (B) Subject to paragraph (d) (2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to comply production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded. (3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance, (ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c) (3) (B) (iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or the demanding party to contest the claim. (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden. (B) If a subpoena (i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or (ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or (iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena, or if the party in who behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions. (d) DUTIES IN RESPONDING TO SUBPOENA. (1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. (2) When information subject to a subpoena is withheld on a claim that is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

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EXHIBIT A INSTRUCTIONS & DEFINITIONS This subpoena requires you to produce all responsive documents in your custody or control. Please produce such documents in their entirety, as they are kept in the ordinary course of business. As used below, "concerning" means, without limitation: comprising, alluding to, responding to, relating to, connected with, involving, commenting on, in respect of, about, discussing, evidencing, showing, describing, reflecting, analyzing, constituting, identifying, stating, or in any way touching upon. "Documents" or "documents" shall have the broadest possible meaning permitted by Federal Rules of Civil Procedure 26 and 34 and the relevant case law, and shall include any tangible thing upon which any expression, communication, or representation has been recorded, as well as all "writings," "recordings," and "photographs," as defined by Federal Rule of Evidence 1001. Notwithstanding this definition, these Requests seek only documents from the material abandoned by Brobeck Phleger & Harrison and its former clients. We do not request that Recall search for material beyond those archives. You are instructed to produce the following documents at the time and place specified in the subpoena: DOCUMENTS TO BE PRODUCED REQUEST NO. 1: All documents concerning the Santa Cruz Operation, Inc.'s ("Santa Cruz") acquisition of any assets from Novell, Inc. ("Novell"). REQUEST NO. 2: All documents concerning the restructuring of Santa Cruz's business during its fiscal year 2000. REQUEST NO. 3: All documents concerning the sale or transfer of Santa Cruz assets to Caldera Systems ("Caldera"), including all transactional, due diligence, and negotiation documents, and other communications concerning the sale or transfer. REQUEST NO. 4: All documents concerning the formation of Caldera International, including its ownership of assets acquired from Santa Cruz.

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REQUEST NO. 5: All documents concerning Santa Cruz's Board of Directors meetings regarding Santa Cruz's acquisition of any assets from Novell, the restructuring of Santa Cruz's business, or Santa Cruz's sale or transfer of assets to Caldera.

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