C O P Y 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION THE SCO GROUP, INC., a ) Delaware corporation, ) ) Plaintiff, ) ) vs. ) Civil No. 2:03-CV-294DAK ) INTERNATIONAL BUSINESS ) MACHINES CORPORATION, a ) New York corporation ) ) Defendant. ) ___________________________) Status Conference BEFORE THE HONORABLE BROOKE C. WELLS ------------------------------------ November 21, 2003 Transcript of Magnetically Recorded Hearing Geri Jardine ALPHA COURT REPORTING SERVICE 103103GJ P.O. BOX 510047 SALT LAKE CITY, UTAH Phone: (801) 532-5645 Fax: (801) 495-9333 2 Appearances of Counsel: For the Plaintiff: HATCH, JAMES & DODGE BY: BRENT O. HATCH Attorney at Law 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 For the Defendant: SNELL & WILMER BY: TODD M. SHAUGHNESSY 15 West South Temple Gateway Tower West Salt Lake City, Utah 84101 CRAVATH, SWAINE & MOORE BY: DAVID R. MARRIOTT Attorney at Law Worldwide Plaza 825 Eighth Avenue New York, New York 10019 Also Present: Mr. McBride 3 1 Salt Lake City, Utah, November 21, 2003 2 P R O C E E D I N G S 3 THE COURT: Calling the SCO Group Inc., 4 plaintiff, versus International Business Machines 5 Corporation, defendant. The record should indicate that 6 in this matter, the plaintiffs are represented by Mr. 7 Todd Shaughnessy and Mr. David Marriott. Is that 8 correct, sir? 9 MR. SHAUGHNESSY: We represent IBM. 10 THE COURT: I'm sorry. I screwed that up, 11 didn't I? 12 MR. SHAUGHNESSY: No -- well, they grabbed 13 the wrong seat. 14 THE COURT: Well, that may be. I'm easily 15 confused. Mr. McBride, welcome - 16 MR. MCBRIDE: Good morning, Your Honor. 17 THE COURT: -- and Mr. Hatch. 18 MR. HATCH: Yes. 19 THE COURT: Counsel, the purpose for this 20 hearing, as I understood it, and for which I reviewed 21 the docket entry which then indicated that this was 22 merely a status hearing to determine whether or not we 23 were going to need to hold a more extensive hearing as 24 to the discovery issues that appear to remain. Is that 25 your understanding as well? 4 1 MR. HATCH: That's correct, Your Honor. To 2 bring you up to date on what's happened since our last 3 hearing, as well -- as far as filings. 4 THE COURT: I have received some of them, as 5 well as a filing yesterday. I haven't had an 6 opportunity to review those in depth. If you want to 7 briefly tell me, I would be happy to do that. 8 MR. HATCH: I think the only thing that is 9 probably relevant, since this is just a status 10 conference, is that -- since we met last -- of course we 11 filed a -- they filed a response to what -- we filed a 12 motion to compel, which we told the Court we would do. 13 They have just received it yesterday (inaudible). 14 IBM has also filed a second motion to 15 compel, and based on what I see -- and I don't know if I 16 did the dates wrong -- right or wrong, but I'm sure Mr. 17 Shaughnessy will correct me -- is I believe our 18 opposition to that is due I think the 25th, sometime 19 next week, and I tried to calculate the dates based on 20 that, and it seems like their reply would be due 21 December 9th. And so when we had our last hearing 22 before Your Honor, I was hoping that we were going 23 to -- in my opinion -- to try to do all the motions to 24 compel in one hearing. So this other motion to compel 25 was not anticipated, at least not talked about at the 5 1 last hearing. 2 THE COURT: Although I have no reason to 3 believe we couldn't just incorporate it. 4 MR. HATCH: I agree. I guess what 5 I -- since they're -- I don't know if they intend to 6 (inaudible) coordinate after the hearing date, and then 7 I also wanted to raise with Your Honor as well, based on 8 the pleadings that have happened since the last hearing, 9 it probably would be important, although not -- we can 10 do without it, but we prefer to have one of the counsel 11 from the (inaudible) firm who has been most (inaudible) 12 involved with the discovery to be in attendance. I 13 think I told you at the last hearing that it did not 14 look like he could on the dates we picked. 15 THE COURT: And my recollection is that that 16 date was set primarily as the soonest date because of 17 counsel's request for an expedited hearing. Is that 18 right -- 19 UNIDENTIFIED SPEAKER: That's correct. 20 THE COURT: -- initially, and so, you know, 21 I suppose the question then is posed to you about 22 whether or not -- because you haven't had time to 23 respond to this latest filing, whether you want to 24 attempt to respond so that we could continue to keep the 25 December 5th hearing date or whether we want to move it. 6 1 MR. SHAUGHNESSY: Thank you, Your Honor. 2 MR. HATCH: Well, I think that I'm only 3 talking about really a matter of weeks, and so I don't 4 think that that's going to (inaudible). 5 MR. SHAUGHNESSY: As I understand it, Your 6 Honor, the plaintiff's response to IBM's second motion 7 to compel, which I believe was raised as a possibility 8 at the last hearing, is actually due today. It is not 9 due in a week. And we served that document by hand on 10 Mr. Hatch on the 6th day of November. I believe that 11 amounts to today as the date that (inaudible). 12 If we could respond, Your Honor. I have 13 seen the paper, obviously, Your Honor. But we could 14 respond to that as promptly as possible. (Inaudible.) 15 16 December 5th (inaudible). As you know, we are 17 interested in having a hearing date (inaudible) are of 18 great importance and would not wish to see (inaudible). 19 THE COURT: Mr. Hatch, based upon counsel's 20 representations that they either have sufficiently 21 replied or responded or can't within the appropriate 22 time, I don't know -- I don't see any compelling reason 23 to continue the December 5th hearing date. 24 MR. HATCH: Yeah, I can quibble with the 25 service of last May, but I don't think that's a 7 1 relevant issue. The only reason I'm asking for that 2 extra week is based on the filings that have happened 3 since the last hearing. It would be very useful for us 4 to be able to have the representative from (inaudible), 5 because most of discovery has gone directly to 6 (inaudible) because there are volumes of it. If we have 7 to, we will do without him, we will do whatever Your 8 Honor wants. I prefer if he can be here -- and so I'm 9 not asking for some -- you know, I'm not for 10 months and months delay. I'm only asking for a week. 11 THE COURT: Mr. Hatch, I think that under 12 these particular circumstances where this issue was 13 raised before, that we'll maintain the December 5th 14 hearing date, all right? 15 MR. HATCH: That will be fine, Your Honor. 16 THE COURT: I did receive a copy, just for 17 information's sake, of an order granting pro hac vice 18 status on behalf of a Mr. Mark James in this matter. 19 MR. HATCH: Actually, I think Mark James is 20 the one who filed. He's a member of the firm. 21 THE COURT: He filed it? All right. Oh, 22 then -- he is associate local counsel. I'm still 23 learning, counsel. And I realize what my confusion may 24 be, Mr. Hatch. It seems like earlier this week you were 25 on that side for -- as defense, and so forgive my memory 8 1 loss. 2 Is there anything else that we need to 3 address this morning? 4 MR. HATCH: I think that was the issue, Your 5 Honor. 6 THE COURT: All right. Thank you for 7 accommodating the change in schedule this morning. We 8 found it necessary to double schedule this morning and I 9 thought it would be easier to move this matter. 10 MR. HATCH: It just gave us one less hour to 11 agonize over the hearing. 12 THE COURT: That's right, one less hour to 13 agonize, and I'm sure that this constituted agony for 14 both sides. 15 MR. HATCH: Thank you, Your Honor. 16 THE COURT: Anyway, we'll be in recess. 17 Thank you. 18 (Whereupon, this matter was concluded.) 19 20 21 22 23 24 25 9 C E R T I F I C A T E STATE OF UTAH ) ) ss. COUNTY OF UTAH ) I, Geri Jardine, do hereby certify that the foregoing transcript was taken down by me stenographically from electronically recorded tapes and thereafter transcribed under my direction. That the foregoing pages contain a true and accurate transcript of the electronically recorded proceedings and was transcribed by me to the best of my ability from the tapes furnished to me. s/ Geri Jardine ------------------------ Geri Jardine [$Id: IBM-80-transcript.txt,v 1.3 2004/08/10 11:36:37 al Exp $ This is the ASCII transcription posted at scofacts.org. ]