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SCO Lawyers Ambush IBM Witness
Mr. E. writes "In a sneaky legal maneuver, SCO's lawyers managed to ambush an IBM witness into having to give a no-holds-barred deposition in front of an unrelated court in another state. After SCO was limited in what they could depose Mr. Otis Wilson about by the Utah court, the company blindsided IBM with last-second subpoenas before a North Carolina court. IBM's lawyer was on vacation at the time, didn't give prior notice to big blue, and now they've won the right to ask him anything they want. They've asked him about whether he has a criminal record, about ex-wives, etc. and they have four hours in which to do so. According to PJ of Groklaw, 'I'd say [Magistrate Judge Brooke Wells] has thrown poor Mr. Wilson to the wolves in North Carolina and told him it's his own fault.' SCO, of course, is fishing for something — anything — they can use to stave off IBM's Motion for Summary Judgement which is fast approaching, and if they can somehow trip up Mr. Wilson, they might be able to do just that. However, there was at least one line of cold comfort in Magistrate Well's order '[T]he court wishes to note that its decision should not be viewed as any type of invitation to reopen the discovery process.'"
The whole point, while I understand, is that he went to a North Carolina judge versus Judge Wells and the North Carolina judge didn't understand the case and opened the witness up to whatever SCO wanted for 4 hours. While this plays well for SCO, it really is the poor guys fault for finding a lawyer and a judge who shouldn't have stuck their nose in the business.
D.O.U.O.S.V.A.V.V.M.
The article summary is poorly worded. Shaughnessy (the lawyer) was the only one that was part of an earlier teleconference and could rebut (from first hand knowledge) SCO's account. And he had no idea what was going on because Wilson (the retired guy who's being disposed) had taken it to an unrelated court in another state (presumably, the state where he lives) without telling the right people. So it was, I gather, just him and SCO's lawyers, and he let them tell the court that Shaughnessy really wasn't representing him anyway, being IBM's lawyer and not his.
Even the best lawyer can't be expected to hear an ex-employee starting to stick their foot in it in an other state, dive into a phone booth, come out in a cape and fly to the other side of the country in time to stop them. Heck, even the NSA would be hard pressed to pull it off.
The moral of the story: if you're involved in a multi-year litigation with known bad apples, don't do random stuff at the bidding of the opponent's lawyers without at least telling your own side's lawyers.
--MarkusQ
IBM is represented by Swaine, Cravath and Moore, LLP. Todd Shaughnessy just happens to be the lead attorney assigned to the SCO v IBM case, and he also was the guy that was representing Otis Wilson in North Carolina.
I think what it probably boiled down to was the Wilson didn't want to go to Utah to file the motion to quash, so Shaughnessy filed in NC, thinking that when the judge in N.C. came across the motion, he'd call Shaughnessy to find out what it was all about. Except Shaughnessy was on vacation when that happened, and well, the rest is history.
My blog
This is a civil suit, not a criminal trial. Fifth amendment doesn't apply here.
You must not have read the transcript of his prior deposition where SCO/Caldera DID in fact ask him about ex-wives, criminal records, if he had ever been fired from a job for misconduct, etc.
Wilson (the retired guy who's being disposed) had taken it to an unrelated court
No, SCO filed first in the unrelated North Carolina state court to force the deposition to take place there, thereby arming the hidden legal trap they had set. When Wilson responded to that court, he walked into the trap. The judge in that court closed the trap by changing the deposition rules set by the original federal court, instead of just ordering the deposition take place in the manner that the federal court directed.
This modification of rules essentially removed the content restrictions from the deposition. This allows SCO to ask Wilson about anything, including new subjects that were not introduced in the original discovery of facts phase in the SCO vs IBM case, which has (or was supposed to have) ended. This means that SCO has a chance to use this deposition as an extension of the discovery phase, thereby allowing SCO to further delay the SCO vs IBM case, and delay even explaining exactly and specifically what their case is about.
The federal judge who set the initial rules for the deposition ruled that the deposition should be allowed to proceed because the state judge substituted a time restriction of 4 hours for the original restriction on content that stated no new subjects were to be introduced in the deposition (Wilson had been deposed previously). The federal judge's ruling went further and seemed to criticize Wilson for actually responding to the state court's order. Imagine that, actually responding to a court order directed AT YOU!
There's more, but the fact is that it was SCO that took it to the state court, not Wilson.
3 things about computers: they're alive, they're self-aware, and they hate your guts.
nor shall be compelled in any criminal case to be a witness against himself
This is a civil case, not criminal. The way depositions work is that you answer all the questions asked and note objections at the time -- the judge will review objections after the fact and decide which portions of the deposition are admissible. But you can't refuse to answer questions wihtout risking contempt of court. Because of this, depositions are a favorite method of attorneys to harrass innocent people.
It seems like a sucky way to do things, but the alternative would be to perform all depositions with a judge there, which would probably require a hundred thousand new judges and every case would take even longer, or depositions would each take years to finish because every objection would have to stop the interview and then you'd wait for a ruling and then schedule another deposition to continue.
Recursive: Adj. See Recursive.
Probably because it's a crime to lie in a deposition. If he suddenly "remembers" all the answers were the case to get to trial, he'd be spending a goodly amount of time in jail--plus his testimony would be tossed.
Well, that depends on how you define "unethical." In my opinion, my lawyer(s) not doing everything they are empowered to do to help me win my case is unethical. This guy, and IBM, have their own lawyers; they can handle their clients, while SCO's lawyers do what they can to help SCO.
It's like when people ask defense attorneys how they could defend people who almost certainly committed the crime. It's easy - we believe in an adversarial justice system, and the other side already has a lawyer who is obligated to prove his case.
It may be technically ethical
No, it's technically legal. It's by no means ethical.
Obviously you didn't look through the initial deposition. They DID ask him about his arrest record, military service, marital history, income sources, etc. Given that this man was the AT&T UNIX contracts manager, signed off on both the IBM & Sequent SysV deals, and said in the first deposition that AT&T had clearly stated in 1985 they had no interest in any licensee's code as long as it didn't incorporate SysV source within , SCOX HAS to discredit him somehow or have their case torpedoed. So they're going to grill him again and hope he trips up somewhere in the four hours. Given his utter composure and clear recollections the first time around, they're probably wishing a stroke on him as we speak.
SCOX DELENDA EST!!
He knows something. He is THE guy who signed off on the original IBM/AT&T/Sequent licenses.
got a source?
Fifth Amendment protections apply wherever and whenever an individual is compelled to testify. The U.S. Supreme Court has ruled that the privilege against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924)).
now fifth probably doesn't apply to him because he is likely being compelled to incriminate IBM, not himself, which should not be protected no matter how much stock he has.
> One federal judge made a ruling, no more depositions
Actually the order for this specific guy was "no re-asking questions already answered." BSF threw a legal hail mary with its jurisdictional games, and whaddya know, it actually worked on this poor guy.
Unfortunately for SCO, "this poor guy" Wilson pretty much demolished SCO at the last deposition, and was as cool and calm as can be about it, even after they tried to intimidate him with personal questions against his character. That's why they're going back, for damage control. But now he knows what sort of shysters are grilling him, and is probably even better prepared for them.
SCO's victory simply gained them a little more rope. This next deposition should be entertaining indeed.