SCO Grp v. Novell Inc

Filing 560

TRANSCRIPT of Proceedings held on January 25, 2007-Motion Hearing(Held telephonically) before Judge Dale A. Kimball. Court Reporter/Transcriber Kelly Brown, Hicken CSR, RPR, RMR, Telephone number 801-521-7238. NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/30/2008. Redacted Transcript Deadline set for 11/10/2008. Release of Transcript Restriction set for 1/7/2009. (jmr) Modified on 1/22/2009 - removed restricted text (rak).

SCO Grp v. Novell Inc

Doc. 560

1 2 3 4 5 6 7 8 ____________________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Reported by: KELLY BROWN, HICKEN CSR, RPR, RMR 1 BEFORE THE HONORABLE DALE A. KIMBALL JANUARY 25, 2007 REPORTER'S TRANSCRIPT OF PROCEEDINGS MOTION HEARING (Held telephonically) ) ) ) ) ) Plaintiff, ) ) vs. ) ) ) NOVELL, INC., a Delaware corporation,) ) Defendant. ) ) _____________________________________) SCO GROUP, a Delaware corporation, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

Case 2:04-CV-139

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 FOR THE DEFENDANT: MORRISON & FOERSTER BY: KENNETH W. BRAKEBILL Attorney at Law 425 Market Street San Francisco, CA 94105 BOIES, SCHILLER & FLEXNER BY: EDWARD J. NORMAND Attorney at Law 333 Main Street Armonk, New York 10504 FOR THE PLAINTIFFS: APPEARANCES HATCH, JAMES & DODGE BY: MARK F. JAMES Attorney at Law 10 West Broadway, Suite 400 Salt Lake City, Utah 84101

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SALT LAKE CITY, UTAH, THURSDAY, JANUARY 25, 2007 * * * * *

(The following proceedings were held telephonically in chambers.) THE COURT: MR. JAMES: Mark James. THE COURT: MR. NORMAND: MR. BRAKEBILL: THE COURT: All right. Mark James and Mr. Normand. All right. Can you hear me? This is

Loud and clear for me.

Yes, Your Honor. This is Ken Brakebill.

Ken who? Ken Brakebill.

MR. BRAKEBILL: THE COURT:

How do you spell that? It's B-R-A-K-E-B-I-L-L.

MR. BRAKEBILL: THE COURT:

B-R-A-K-E-B-I-L-L? Right.

MR. BRAKEBILL: THE COURT:

Who do you represent? Novell.

MR. BRAKEBILL: THE COURT:

Is anyone else on for Novell? No. I'm having a little difficulty

MR. BRAKEBILL: hearing. THE COURT: must be yours.

Well, my phone has been working.

It

Can you hear me better now? Yeah, I can. Thanks.

MR. BRAKEBILL: THE COURT:

Brakebill? 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for it.

MR. BRAKEBILL: THE COURT:

Yeah.

Like a car brake.

A car brake and then you send a bill

MR. BRAKEBILL: THE COURT:

Right. We're here on the phone on For

All right.

the record in the matter of SCO v. Novell, 2:04-cv-139. SCO, Mark James, and is it Edwin? MR. NORMAND: THE COURT: It's Edward. Edward Normand. And for Novell,

Mr. Ken Brakebill; is that correct? MR. BRAKEBILL: THE COURT: That's correct. Now, when you talk, say

All right.

your name before you start. MR. NORMAND:

Who's talking first? We

Your Honor, it's Ted Normand.

asked for the call, Your Honor, to address an issue that we hope won't take too much of Your Honor's time. I'll give you

a minute of background, if I could, and then quickly make our argument. THE COURT: MR. NORMAND: Yeah, go ahead. Your Honor may recall on

October 24th, 2006, you set a revised scheduling order in this case, and that scheduling order had a date of February 1st for the end of fact discovery. In the beginning of January,

Mr. Brakebill and I had a series of discussions in which we agreed that we needed to extend the period in which to take 4

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depositions. THE COURT: MR. NORMAND: March 2nd. To March 1st; right? It may be March 1st or

We have not entered a stipulation, but we do have I think it is March 2nd. Yeah. Okay. All

an agreement.

MR. BRAKEBILL: THE COURT: right. MR. NORMAND:

March 2nd is a Friday.

And the area of dispute between the Although we've agreed

parties now, Your Honor, is as follows.

to extend that period to take depositions until March 2nd, we have a disagreement on whether the March 2nd date should be the date by which to measure the timeliness of any new depositions that might be noticed. So that I think Novell's

position would be if we were to notice now a deposition for the middle of February, it would be an untimely notice. And

SCO's position is it should be a timely notice because the date that we've agreed to move the depositions back for is March 2nd. And there are several reasons we think it makes sense to have the March 2nd date operate as the date to measure timeliness rather than the February 1st date. THE COURT: Timeliness of what? MR. NORMAND: I think, Your Honor, Novell's 5 By timeliness, what do you mean?

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position would be that a notice of deposition is untimely under the February 1st date if we were to, although notice it now, if we were to notice it to be taken after February 1st. Because if the February 1st date were, in fact, the end of discovery and you wanted to notice a deposition, you would have to notice it in time to be completed by the February 1st date. THE COURT: then? MR. NORMAND: That is part of the reason I've asked I think it makes sense to Why did you extend it to March 2nd,

for the conference, Your Honor.

extend it to March 2nd, because the reason we agreed to extend the time to take the depositions in the first place was because the parties recognized that we couldn't get the depositions done in January as partially a result of the work both parties were doing throughout December, partially a result comes from an extended holiday season. So my first point, the first reasons that compelled us to pick the March 2nd date are the same reason that both sides were not finished deciding who we think it would be relevant to depose including as disclosed in depositions that are being taken. We have not finished reviewing documents.

We have not furnished reviewing Novell's responses to the discovery. That's one. Two, I can tell you we're not contemplating 6

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noticing what I would call a very significant number of new depositions. We're not talking about noticing a dozen or I think part of

probably even a half-dozen more depositions.

Novell's concern is they don't want us to notice 10 depositions and start double and triple tracking through February. I can't promise there won't be some double tracking

if we do notice three or four new depositions, but it won't be overwhelming. Third, we're not seeking to make the March 2nd date the new deadline for all the fact discovery. to send out any more document requests. We're not going

We're not going to

send out any more interrogatories, so that kind of discovery would not get in the way of the depositions that are currently scheduled. And then last, Your Honor, I understand, and I don't want to mischaracterize Mr. Brakebill's position, I understand him to have said that Novell would be willing to have discussions on a sort of one off basis, if someone's name came up in a deposition or if someone just found a new name in a document and decided we needed a deposition at that point, and we could have a discussion. My concern about that approach is, one, if we can't reach agreement, it presents the threat of having to go to Your Honor with a series of sort of one off arguments as to the merits of deposing one person or another. 7

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THE COURT: MR. NORMAND:

Or to Judge Wells. Or to Judge Wells. I should have

said at the beginning, I appreciate you hearing this, Your Honor. I took it because it was your scheduling order you

were the first in line, so to speak. But the second point in connection with that last issue is I think as a technical matter if we were to approach Novell in the first or second week of February and say, we'd like to depose X person, at that point we're out of time. if they disagree with us and don't allow us to go forward, when we go to your court Novell simply has to say, the February 1st date has passed. So as a technical matter, we would like to have the issue resolved now up front. THE COURT: What date do you think ought to be the And

last date upon which you can say, hey, we want to depose X and Y? MR. NORMAND: Well, what I proposed to Novell, Your

Honor, was all depositions at least according to our agreement now would be taken by March 2nd. And the issue of whether

there's any flexibility between the parties on that date is not one before Your Honor. But as of now, we would say, let's And the periods

aim to finish all depositions by March 2nd.

for notice needs to be an appropriate notice period under the federal rules given the March 2nd date. In other words, as 8

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Your Honor knows, with respect to some third parties, there are no hard and fast rules. the standard period of time. So as a practical matter, we would notice any new deposition by mid February. And as an aside to that, we don't 10 days, two weeks, seems to be

have any more interest than Novell does in stacking depositions at the end of the February. We have three

arguments coming up in the IBM case essentially the first week of March, and both sides are planning to do their 30(b)6 depositions in the last week in February at this point. THE COURT: I thought double and triple stacking

depositions is a lawyer's dream. MR. NORMAND: Well, we certainly grew accustomed to

it in the IBM case, but I don't think it's anyone's dream, and I do appreciate Novell's interest in trying to avoid that scenario. And I think to some extent it's inevitable. And

that part as a result that we weren't able to get as many depositions that we wanted to get done even in the first half of January. But we are where we are now. And in short, you

know, we think those are all reasons why we should move the March 2nd date as sort of the operative date. THE COURT: Thank you, Mr. Normand.

Mr. Brakebill? MR. BRAKEBILL: Thank you, Your Honor. 9

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THE COURT:

Speak up a little, will you? Yes. Prior to this call, I thought

MR. BRAKEBILL:

there were two issues on the table, and I think Mr. Normand has taken one of the issues off this table that was on the table. Novell's primary position was that what we did not

want is we did not want to have discovery on fact issues extended as a general matter through March 2nd. I take it

from Mr. Normand's opening that that is no longer an issue, that that issue has gone away. THE COURT: MR. NORMAND: THE COURT: Is that right, Mr. Normand? That's right, Your Honor. All right. What we wanted to avoid primarily

MR. BRAKEBILL:

was is what he says that SCO does not plan to do is serve out new document requests, new interrogatories. gone away. But the second issue on the table which is one that Mr. Normand has addressed is the extent to which any specific discovery might be conducted after February 1st. THE COURT: February 1st. MR. BRAKEBILL: THE COURT: February 1st. MR. BRAKEBILL: Right. I believe the narrow issue 10 Sorry? Or might be noticed and conducted after That issue has

Or might be noticed and conducted after

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for Your Honor, at least correct me if I'm wrong, Mr. Normand, I believe the narrow issue now is whether or not a party will have the ability to notice new depositions after February 1st with a reasonable deadline that would be tied to March 2nd. MR. NORMAND: That's right, Mr. Brakebill. I'm

sorry to speak directly to counsel, Your Honor. THE COURT: MR. NORMAND: That's all right. But to clarify, I thought Novell's

position was if we even want to send out notices tomorrow but we noticed them, these depositions, for a date after February 1st, that that would be untimely. We can send out

notices tomorrow or Monday, but they will be notices for depositions to occur in February. THE COURT: Mr. Brakebill? MR. BRAKEBILL: I think Novell's position would be What's your position on that,

that it may be possible that there would could be, you know, a handful of deponents that the party could notice tied to February 1st. I realize that's still a week way, that in all

likelihood that that deposition will probably not take place by February 1st with the understanding that we're talking about a limited number of depositions. problem with that, per se. But what Novell is opposed to is once we get into February of a party noticing new depositions of witnesses 11 Novell wouldn't have a

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whose identities were known long ago on topics they knew about long ago. And so we would be left in a situation where we are

trying to accomplish a fair number of depositions now between the end of January and March 2nd. And all that would be doing

is we believe unfairly compounding the schedule with depositions set for whatever reason the parties decided not to notice back in December and earlier in January. THE COURT: So your view is that the last time a

deposition ought to be able to be noticed would be what date? The 31st? The 1st? Tomorrow? What assumption we're operating on And I don't know whether Your But if a party is

MR. BRAKEBILL:

is again a reasonable standard.

Honor -- how Your Honor comes out on this.

to notice a deposition now for a deposition -- a deponent for deposition on February 1st, is that reasonable? If I say in

response to your question that Novell believes that tomorrow would be the appropriate month, appropriate deadline, I realize what's going to happen is that tomorrow we're going to get a deposition notice for X-number of people. Novell's position -THE COURT: But wasn't that somewhat contemplated And so

by extending the discovery to March 2nd? MR. BRAKEBILL: What was contemplated by extending

the period to conduct depositions to March 2nd we believe was a realization by both Mr. Normand and myself and SCO and 12

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Novell that the parties had already noticed more than enough depositions that could feasibly be accomplished by February 1st. So with respect to trying to actually schedule

them in an efficient and appropriate manner considering counsel availability, witness availability, that we would extend the period of those depositions to March 2nd. And so

we are now working together on this trying to diligently come up with a schedule for depositions that had been noticed. So what is forming Novell's concern with respect to noticing up new depositions tied to a March 2nd date is the notion that again, we're going to be receiving -- and this cuts both ways, Your Honor -- - but either side can be receiving deposition notices of witnesses who identities were known long ago, and not really new information that had surfaced. Depositions in many cases occur all the way up But the fact of a deposition

until the close of discovery.

preceding the final days of discovery doesn't necessarily mean that you're going (inaudibles) should new information surface (inaudibles) deposition. MR. NORMAND: Your Honor, this is Mr. Normand. If

I could speak a little bit more specifically, maybe that would be helpful, Your Honor, and maybe help Mr. Brakebill. If we were permitted to do so, we would do the following on Monday. We would send out a notice with probably

two or three additional 30(b)6 topics for Novell, and we would 13

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send out probably three or four notices for new fact depositions. And in addition to that, just out of reluctance

and obligation to my client, I probably would want to reserve the right to be able to send out two more notices sometime in February. So that would be a maximum of six new fact

depositions. THE COURT: reaction to that? MR. BRAKEBILL: My response to the specific Okay. Mr. Brakebill, what's your

proposal to add new 30(b)6 topics as opposed to the issues in the lawsuit have been around for many, many months and a realization a week before the close of fact discovery that they want to take 30(b)6 topic to me is not good cause and not (inaudibles) for additional 30(b)6 topics. THE COURT: All right. Mr. Normand, you said how

many more would you send out, four by when? MR. NORMAND: I guess I missed the beginning part

of your question, Your Honor, I'm sorry. THE COURT: How many deposition notices do you

contemplate if I let you do it sending out in the next couple of days to be taken in February? MR. NORMAND: Well, if it would help, Your

Honor -- well, the answer to Your Honor's question is three or four, and we could do that by Monday. And with respect to the

30(b)6 position, my response would be it's true that those 14

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30(b)6s would -- well, they would be a limited new number of topics, and they would concern issues that have been in the litigation. But the reason we agreed to the March 2nd date

was because we had trouble finishing discovery pursuant to Your Honor's schedule. So the same reasons that in my view

precluded us from finishing that discovery are the same reason there are some issues floating around that we would like to address with these additional notices. THE COURT: And then with the three or four, you

maybe want two more possibilities in case you learn something. And with those two, you would want the right to notice them sometime in February, to be taken in February. MR. NORMAND: THE COURT: Yes, Your Honor. Anything else, Mr. Brakebill? Again, on the 30(b)6 points, I was

MR. BRAKEBILL:

already served two 30(b)6 depositions, an original one in December and a revised one in January again without any specifics. I believe Mr. Normand -THE COURT: Without specific what? -- good cause necessary. It would

MR. BRAKEBILL:

permit (inaudible) 30(b)6 notice. to 30 topics.

We've already had 30, close

He acknowledges that they are not topics and That will depose -We are having a very hard time hearing I don't know if it's your speaker phone 15

issues floating around. THE COURT: you, Mr. Brakebill.

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or your phone. MR. BRAKEBILL: THE COURT: Can you hear me better now? Some of you were

I little better.

breathing into your phones. MR. BRAKEBILL: THE COURT:

It sounds like Darth Vader. Can you hear me okay now?

Better. Okay.

MR. BRAKEBILL: THE COURT:

Say again what you just said. Certainly.

MR. BRAKEBILL:

To the extent that SCO was seeking to add two or three or multiple 30(b)6 deposition topics, we would note that SCO has already served one 30(b)6 in December and sent us a revised 30(b)6 this month. And Mr. Normand has conceded that

there is no good cause for an additional two or three or four topics in that they relate to issues that have been in the litigation dating way back. To the extent that Your Honor is inclined to permit SCO, however, to add two, three, four topics to their 30(b)6, we would also ask that the Court permit Novell the same opportunity. THE COURT: Thank you.

Anything else, Mr. Normand? MR. NORMAND: No, Your Honor. It would be okay I

with us if Novell wanted to add a similar number of topics. think as Your Honor is aware, 30(b)6s are often used as a way

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it avoid fact discovery in the way of document requests and as a way to avoid depositions of third parties. And as a

practical matter, they often are burdensome of the companies. I think they already are. burdens on both companies. THE COURT: All right. Here's my ruling. You get I think they would be incremental

what you want, Mr. Normand. four by Monday.

You get to designate three or

Mr. Brakebill, you can, too, if you want to.

And I'll give each until February 9th to designate one other one if you happen upon some other person that you just can't get by without deposing before March 2nd, okay? MR. JAMES: Judge, how about the 30(b)6? I didn't hear that completely.

MR. BRAKEBILL: THE COURT:

I said he gets what he wants and you

do, too, three or four designated by Monday to be taken whenever before March 2nd. And you each get one more if you

need it to be designated by the end of the day on February the 9th. MR. JAMES: THE COURT: MR. JAMES: And, Your Honor, how about the 30(b)6? Remind me. What about the 30(b)6?

Well, the question was whether the

parties could add three or four additional -- amend their 30(b)(6) notices to add additional topics. THE COURT: MR. JAMES: Yeah, you can both do that. Okay. 17

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THE COURT: MR. JAMES: MR. NORMAND:

All right.

Thank you.

Thank you, Your Honor. Thank you, Your Honor. Thank you, Your Honor.

MR. BRAKEBILL:

(Whereupon, the court proceedings were concluded.) * * * * *

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STATE OF UTAH

) ) ss.

COUNTY OF SALT LAKE

)

I, KELLY BROWN HICKEN, do hereby certify that I am a certified court reporter for the State of Utah; That as such reporter, I attended the hearing of the foregoing matter on January 25, 2007, and thereat reported in Stenotype all of the testimony and proceedings had by telephone, and caused said notes to be transcribed into typewriting; and the foregoing pages number from 3 through 18 constitute a full, true and correct report of the same. That I am not of kin to any of the parties and have no interest in the outcome of the matter; And hereby set my hand and seal, this ____ day of _________ 2007.

______________________________________ KELLY BROWN HICKEN, CSR, RPR, RMR

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