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Comments: 199 +-   SCO Lawyers Ambush IBM Witness on Tuesday August 22 2006, @04:29PM

Posted by Zonk on Tuesday August 22 2006, @04:29PM
from the what-is-this-case-about-again dept.
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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.'"
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  • Seriously, SCO must be salivating at the prosect of this, its like a one last gasp hope.

    One minor point though, how come IBM only have 1 lawyer, didn't they have a breeding program in the 60s and 70s?

  • It Could've Been Worse... (Score:5, Funny)

    by creimer (824291) on Tuesday August 22 2006, @04:31PM (#15958579) Homepage
    The poor guy's search history might've been released by AOL.

  • He could just refuse to answer those questions... (Score:5, Insightful)

    by Tweekster (949766) on Tuesday August 22 2006, @04:32PM (#15958590)
    Sure he COULD get into trouble, in reality he wont.

    And since when does IBM have one lawyer ?
      • SCO seem to be irritating the judge in Utah. IBM could try playing this card and get the North Carolina court (and judge) found in contempt of the Utah court for trying to alter the proceedings of the original case with this new nonsense of a case

        You can do that, right?

        Alternatively, he could just alternate between "I can't hear you", "I don't understand you", "I don't understand the question", "do you mean this or that?", answering something other than 'yes' or 'no' to a yes/no question, "sorry, pardon? I was distracted by that fly/laybird/pigeon", "I don't remember" and having his own lawyer shout 'objection' a lot.
        Mix that up with a good dose of verbal acrobatics, a unscheduled power cut, dozens of toilet breaks, a quick dose of flu/chicken pox/bubonic plague, myriad bomb/fire alarms, the whole case getting lost due to a mysterious computer error, the electrical frequency in the building being increasing - making the clocks go 50% faster, a convenient paper cut and the SCO lawyers going down with food poisoning. The four hours will fly by!

        IANAL, can you tell?
        • 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.

          • Re:He could just refuse to answer those questions. (Score:4, Interesting)

            by Anonymous Coward on Tuesday August 22 2006, @09:40PM (#15959948)
            IANAL, but I know of a person (an actual friend of an actual relative, someone I know) who knew that while the questions can be wide ranging in scope, so can the answers. They can't limit you to yes or no answers only. You can be as verbose and detailed and wide ranging as you want in your answers, like explaining in great detail how that day in 5th grade math led you, in a very round about way including your college years, to the decision you made on what line of code to write in that program. The person I know "answered" just a handful of questions for over two months before the lawyers finally just gave up.

            This was some time ago, and I can't remember if it was a deposition or an actual trial.

  • He did it to himself... (Score:5, Informative)

    by Kr3m3Puff (413047) * <.me. .at. .kitsonkelly.com.> on Tuesday August 22 2006, @04:34PM (#15958606) Homepage Journal
    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.

    • Re:He did it to himself... (Score:5, Informative)

      by whoever57 (658626) on Tuesday August 22 2006, @05:17PM (#15958872) Journal
      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.
      Your description is not 100% accurate. SCO first went to the NC court. Wilson's (and his lawyer's) mistake was in not asking the the NC judge to pass it back to Utah.

    • Re:He did it to himself... (Score:5, Insightful)

      by LinuxGeek (6139) * <linuxgeek@NOspAM.djand.com> on Tuesday August 22 2006, @05:57PM (#15959109)
      Yes, he (Mr. Watson) went to a NC judge about a flawed subpoena from SCO that ordered him to appear the next day at an unspecified location.

      8. Although counsel for SCO had provided a copy of a subpoena that purported to require Mr. Wilson to appear for a deposition on January 27, 2006 (with no location for the deposition specified), counsel for SCO did not provide me or file with the Utah court a return of service for that subpoena. Mr. Normand did not inform me that Mr. Wilson had been served with that subpoena until the day before the January 26 telephone conference, and less than two days before SCO purportedly intended to depose Mr. Wilson. Because of this, and because IBM objected to SCO taking Mr. Wilson's deposition, we had not made arrangements to appear for the deposition on January 27.


      My understanding from several legal professionals that I know is that you can safely ignore a defective subpoena and Mr. Watson may have been better off if he had ignored it completely instead of going before a NC court. He threw himself into the shark pool with no protection and the SCO attorneys swam in for the kill.

      The SCO gang seem to be very skilled liars and even appear to derive great satisfaction while doing so.

  • IBM's Lawyer? (Score:3, Insightful)

    by Distinguished Hero (618385) on Tuesday August 22 2006, @04:38PM (#15958630) Homepage
    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.
    IBM's lawyer? Why exactly does a company like IBM only have one lawyer, and why is he/she the sort of person who just runs off without telling anyone beforehand?

    • Re:IBM's Lawyer? (Score:5, Informative)

      by MarkusQ (450076) on Tuesday August 22 2006, @04:59PM (#15958779) Journal
      IBM's lawyer? Why exactly does a company like IBM only have one lawyer, and why is he/she the sort of person who just runs off without telling anyone beforehand?

      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

      • Why does everyone assume he was stupid? Maybe he was bought off and "threw the game" so to speak for SCO?

        • Why does everyone assume he was stupid? Maybe he was bought off and "threw the game" so to speak for SCO?

          Because there are lots of easier ways to "throw the game" than submitting yourself to hours of interrogation about your arrest history, prior relationships, etc. He could, for example, have done it just be being a little too rabidly pro-IBM in the deposition as originally outlined (responding with things like "While I wouldn't claim that IBM invented electricity, they were certainly the first to mak

      • Re:IBM's Lawyer? (Score:5, Informative)

        by pallmall1 (882819) on Tuesday August 22 2006, @05:46PM (#15959048)
        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.

      • Re: (Score:3, Insightful)

        by monkeydo (173558)
        Poorly worded is an understatement. I have no idea what this sentence means: "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."

        So, an attorney who represents IBM went on vacation without telling his employer, and now his employer can ask with whatever questions it wishes. Which leads me to wonder why he went on vacation without telling his employer, and why his employer wants to depose him.

        Some days I just wish peo

    • Even if they did only have one lawyer, he deserves a vacation. (And yes I know that there are more lawyers involved and the he was only needed here because of his specific history in the case.)

      However, as with almost 100% of the people in the IT industry, why didn't he have a contact phone number. I have a cell phone that people can contact me at, even on vacation. 99.99% of the time, work respects my vacation and does not call. Those times they do, they are really stuck. It is part of the job, and the

  • Sssllloowww.... (Score:5, Funny)

    by bobwoodard (92257) on Tuesday August 22 2006, @04:47PM (#15958695)
    He'd... better... talk... reeeaaaallll... sssllllloooooowwwwww....

    • Re: (Score:3, Interesting)

      by Kadin2048 (468275)
      Joke all you want, but one of the things that people get coached on when preparing for depositions is how to say a lot of stuff without really saying anything.

      However, four hours can stretch into a pretty long time when it's just a bunch of people sitting there asking you questions; I don't think you can really take up quite that much time by filibustering.

      The real problem with an open deposition like this, as opposed to one where the topics or even questions are set out beforehand, is that it's a lot harde

  • Not 1 lawyer, just sneaky tricks (Score:4, Insightful)

    by larien (5608) on Tuesday August 22 2006, @04:52PM (#15958736) Homepage Journal
    For all those saying that IBM only had one lawyer, read the article:
    The trick, I gather, is to be the only one prepared to speak to the judge. While Mr. Wilson was trying to find his own lawyer, and did, and the lawyer needed time to get up to speed and evaluate how to handle the matter, SCO was telling the judge that IBM's Todd Shaughnessy was kinda sorta if not exactly representing Wilson. And compounding the problem, Shaughnessy, the only lawyer in the teleconference with Wells on January 26, and hence the only one who could rebut SCO's Normand as to what happened, was on vacation and unreachable. And from all I can see, by the time he came back, the North Carolina judge was already persuaded by SCO's whining about unfairness.
    In short SCO said "this is the guy representing the proposed witness" - added to that, it sounds like the IBM lawyer who was on holiday was the only one who could represent otherwise or some other legal shenanigans.

    SCO pulled a fast one and got away with it - this time. Doesn't mean that they'll win, but it sounds like they just might be able to drag it out a bit longer, unfortunately.

  • I Miss SCO-A-Day News (Score:3, Funny)

    by Anonymous Coward on Tuesday August 22 2006, @04:55PM (#15958763)
    They were the good ol' days when we had something to laugh about on a daily basis -- whether Darl issued another encyclical, DiDio and the Yank-and-Grope guys threw more FUD, or when they outed Linux as the secret love child of Santa Claus and the tooth fairy. Good times. Even watching SCO stock tank was fun. Did their earnings go down yet? Did their strange math make it seem like they're getting new money coming in? Has the SEC looked into their supposed pump/dump scheme yet? Hella good times.

    Now we're down to some lawyers having their way with a guy for 4 hours. That doesn't even make reality TV, guys. Really. So la-dee-da...just let me know to whom I write this check for $699 for my copy of Ubuntu, mmmkay?
  • That isn't what the victim did in this case, but look at the nature of the maneuvering: "The problem, according to Judge Wells, is that Mr. Wilson submitted himself to the North Carolina court by submitting a motion to quash there." In other words, you can get yourself in trouble by saying "go away" in the same place that someone said "come here!".

    If you ever get the idea that law is a logic system and you can handle a court case without an experienced and street-smart lawyer, remember that you might be up against dirty tricks from veterans who are on their home turf. Never fight a wizard in his keep. Always remember how bad it can be just to have your lawyer on vacation.

  • Your Honour.. (Score:4, Funny)

    by ackthpt (218170) * on Tuesday August 22 2006, @04:58PM (#15958774) Homepage Journal

    SCO Attorney: "Let the record show that Mr. Wilson likes chocolate ice cream, baseball and buys his underwear at J.C. Penney. Which I think speaks for itself in regards to the nefarious activities of IBM!!!"

    Judge: "I'd say it speaks volumes what a loonie lot you are. I find for IBM"

  • Why can't the poor shmuck... (Score:3, Interesting)

    by bjanz (573487) <{bhjanz} {at} {ccsneinc.com}> on Tuesday August 22 2006, @05:02PM (#15958794) Homepage
    ...just keep repeating "I don't remember" to any question he doesn't want to answer for 4 hours? I mean, ok, so he gives his address, the names of his kids, the type of car he drives... the obvious stuff. The stuff he can't get wrong. But, for things where he could get tripped up on, can't he simply say "I can't remember"?

    • Re: (Score:3, Informative)

      by Dhalka226 (559740)
      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.

  • What does this accomplish? (Score:5, Insightful)

    by ZachPruckowski (918562) <zachary.pruckowski@gmail.com> on Tuesday August 22 2006, @05:04PM (#15958806)
    I mean really, all SCO can do is be an ass to an IBM guy. I mean, they wouldn't need to pull something like this to ask remotely relevant questions, and since IBM isn't gonna settle to save this guy some embarassment, all SCO gets to do is what they always do: be petty, retarded dumbasses.

  • legal procedure or fierce battle? (Score:3, Funny)

    by thanasakis (225405) on Tuesday August 22 2006, @05:06PM (#15958817)
    "Lawyers Ambush Witness", "sneaky legal maneuver", "blindsided IBM", "has thrown poor Mr. Wilson to the wolves", "is fishing for something", "trip up Mr. Wilson", "one line of cold comfort" etc....

    I love it when a boring legal procedure takes such epic proportions. The narrator really knows his job!..

  • Advice for Mr. Wilson (Score:5, Funny)

    by toupsie (88295) on Tuesday August 22 2006, @05:08PM (#15958825) Homepage
    If they have only 4 hours to depose you, talk v-e-r-y s-l-o-w-l-y. Your name is Otis so no one can hold that against you -- plus you are in North Carolina so no one will notice...

  • Wait... (Score:3, Insightful)

    by starseeker (141897) on Tuesday August 22 2006, @05:23PM (#15958909) Homepage
    They haven't asked him anything yet, have they? The article seems to say they COULD ask him about anything. I would hope that ex-wives (if any) would be off the table - trying to personally attack someone for things not related to the issue at hand would strike me as a very poor use of the time SCO has been given. How would that help their case?

    Let's wait for the outcome of this. I rather doubt we need to make too much of the "they can ask ANYTHING" part of this - if we do let's wait for the actual event. Certainly SCO has done enough to anger the geek community without us needing to throw any more fuel on the fire. Only pursue them for the poor behavior they have actually demonstrated - I can't imagine why we would need anything else.

    • Re:Wait... (Score:5, Informative)

      by Pop69 (700500) <(billy) (at) (benarty.co.uk)> on Tuesday August 22 2006, @05:36PM (#15958981) Homepage
      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.

    • Re:Wait... (Score:5, Interesting)

      by rkhalloran (136467) on Tuesday August 22 2006, @06:46PM (#15959342) Homepage
      You didn't see the initial transcript. They asked about his marital history, military service, arrest record, etc. Reason? Otis Wilson was *THE* AT&T UNIX contracts manager, signed off both IBM and Sequent's contracts, and his previous testimony knocks SCOX's "derivative works" argument into the sewer from whence it came. The SCOundrels are attempting to trip him up under grilling to discredit it. If you read the first transcript, though, he kept calm and collected while skewering all of SCOX's arguments, which apparently infuriated the SCOX attorney to no end.

      SCOX DELENDA EST!!

  • It's a Trap! (Score:3, Funny)

    by SeaFox (739806) on Tuesday August 22 2006, @05:31PM (#15958949)
    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.

    I bet they already arranged his flight [snakesonaplane.com] to North Caroilina, too!

  • don't ask daddy ask mommy defense (Score:3, Insightful)

    by mabhatter654 (561290) on Tuesday August 22 2006, @08:34PM (#15959745)
    I don't see how they can get away with this. One federal judge made a ruling, no more depositions, so they went to another court and asked for something they shouldn't have asked for. Because the Courts can't/won't communicate about cases, the judge allowed the deposition "to be fair". This is just like being a little kid running to daddy when mommy says no to a cookie.. I can't believe that a federal judge would allow this.

    • Re:IANAL (Score:5, Funny)

      by Anonymous Coward on Tuesday August 22 2006, @04:58PM (#15958775)
      I would love to read what other /. readers who actually are lawyers think.

      Money money money money money money money money money money money money money...
      Lawsuit, Lawsuit!
      Money money money money money money money money money money money money money...
      Lawsuit, Lawsuit!
      Money money money money money money money money money money money money money...
      Lawsuit, Lawsuit!
      Money money money money money money money money money money money money money...
      A judge! Juuudge! Juuudge! Ooooooh, it's a judge! It's some
      .
      Money money money money money money money money money money money money money...
      Lawsuit, Lawsuit!
      Money money money money money money money money money money money money money...
      Lawsuit, Lawsuit!
      Money money money money money money money money money money money money money...
      Lawsuit, Lawsuit!
      Money money money money money money money money money money money money money...
      A judge! Juuudge! Juuudge! Ooooooh, it's a judge! It's some...

        / to the tune of "Badger badger badger"
    • Don't expect a real lawyer to give you a real opinion without getting hit in the pocket.

    • Re: (Score:3, Interesting)

      by WindBourne (631190)
      If you wish to read what lawyers are thinking, go to the groklaw.net. While she may be a paralegal, she is the one causing a great deal of chaos with this trial. So much so, that SCO has gone to great lengths to stop her. In fact, she has been so on target, that several lawyers that I know are busy following the site for ideas on how to proceed witht their trials.

    • Re: (Score:3, Informative)

      by rkhalloran (136467)
      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.
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