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From: Al Petrofsky <a...@petrofsky.org>
Newsgroups: alt.os.linux.caldera
Subject: The Jones subpoena and the Novell case discovery deadlines 
[was Re: SCO's efforts to ...]
Date: 13 Nov 2007 12:56:12 -0800
Organization: The Vegetable Liberation Front
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Pamela Jones wrote in groklaw comment 642498:

   http://groklaw.net/comment.php?mode=display&type=article&sid=
   20071104183911141&pid=642482#c642498

   Authored by: PJ on Monday, November 05 2007 @ 10:34 AM EST

   ... [Al Petrofsky] also took steps to help SCO try to find me. ...

That prompted various discussion on the Investorvillage.com SCOX
message board, including this reaction from Codswallet in message
48676 at 2007-11-06 10:02 -0500:

   http://investorvillage.com/smbd.asp?pt=msg&mb=1911&mn=48676

   ... News to me, and quite in opposition to Al's distaste for
   expedited discovery.  Al and PJ were, after all, codefendants in
   Merkey v. Perens. ...

My opposition to Jeff Merkey's motion for leave to conduct expedited
discovery was certainly *not* based on any general aversion to
expedited discovery and a preference for long, slow discovery.
Rather, my opposition was based on the fact that addresses were
readily available for me, Jones, and the four other non-anonymous
defendants, and thus the amount of time that needed to be devoted to
discovery as to those defendants at that point in the case was
absolutely zero, and Merkey should have already proceeded to using
those addresses to make his best efforts to serve summonses on those
defendants (if he actually desired to serve anyone and expose himself
to a malicious prosecution action).  See Merkey v. Perens et al.,
No. 2:05-cv-521, Docket #10, (D. Utah, filed August 9, 2005):

   http://scofacts.org/Merkey-Perens-10.html

One thing I did not want to see in the SCO v. Novell case (or any
other case) was a long delay while a party made its genuine best
efforts to serve a subpoena on a witness and the witness willfully
evaded service.  That never happened, but if it had, and I saw some
way that I could stop it, I might well have done so.  Of course, that
doesn't mean that I wouldn't support any particular witness who
legitimately countered an improper subpoena by making a motion to
quash, or opposing a motion to compel, or maybe even bringing a suit
for abuse of process.  I just don't think that scurrying around in the
dark avoiding officers of the court is a legitimate way to resolve
things.  I don't believe courts would want to see things resolved that
way either, and thus they would have been liberal in granting
extensions until a judicial resolution could be achieved.

I also didn't want to see a long delay while a party pretended to
attempt to serve a subpoena on a witness, but never made any actual
progress toward doing so.

My only communication with SCO regarding its purported efforts to find
and serve Jones was a single email I addressed to Darl McBride on
February 26, 2007, to which I never received any response.  (That
email can be found at the end of the April 4 grandparent of this
message.)  The email did not contain any information about Jones's
whereabouts.  It merely pointed out that if SCO wanted to maximize the
chances that Jones would have actual notice of the subpoena as soon as
possible, then one of the things SCO should do was to post the
document on its website.

I included Jones in the CC list of that email, as a courtesy.  I also
CC'ed two journalists who had written about the subpoena (Steven
J. Vaughan-Nichols and Maureen O'Gara) and SCO's and Novell's counsel.
What I was hoping to facilitate was, as I put it in the email, "the
earlier this whole matter can reach a resolution", one way or another.
If SCO went on to drag its feet (which it did), and then filed a
motion to further delay the case and be given more time to find Jones,
then I hoped Novell might be able to use my email to help document
that SCO had not made its best efforts and therefore no extension
should be granted.  In the event of delay, I also hoped that the
journalists might followup on the email with questions to McBride that
might have had the effect of pressuring SCO to "shit or get off the
pot".

As it turned out, SCO never made a contested motion to be given more
time to serve Jones.  After my email, Judge Kimball granted two more
extensions of the deposition deadline, from March 2 to March 30 and
then to April 30 (see docket #244 and #257), but Novell stipulated to
those extensions because Novell was still struggling to complete its
deposition of Computer Associates International (see N.Y.E.D. case
1:07-mc-137 regarding Novell's motion to compel).  Once Novell had
completed that deposition and thus was presumably no longer amenable
to any extensions, SCO simply let the deadline pass, rather than
attempt to show that it had been trying its hardest and should be
given more time.  See:

   http://scofacts.org/Novell-244.pdf
   http://scofacts.org/Novell-257.pdf
   http://scofacts.org/nefomatic-test-Novell.html
   http://scofacts.org/CA-subpoena-1.pdf
   http://scofacts.org/CA-subpoena-7.pdf
   http://scofacts.org/nefomatic-test-CA-subpoena.html

As to the academic question of whether any of the "steps" I took
provided SCO with any information that would have materially "help[ed]
SCO try to find" Jones, had it been trying:

As mentioned above, my only communication with SCO about the matter
was the single February 2007 email, which contained no information
about Jones's location.  I also made two public posts to the usenet
newsgroup alt.os.linux.caldera, in April and June 2007, in which I
discussed the conspicuous feebleness of SCO's service efforts.  See
the parent and grandparent of this message, posted on 2007-04-04 and
2007-06-15:

   http://google.com/groups?selm=87tzvvtx7k.fsf%40petrofsky.org
   http://google.com/groups?selm=87ir9ou3kj.fsf%40petrofsky.org

In the April post I mentioned the facts that (1) Groklaw's current
domain registration address, which had not changed for years, was in
Arizona; and (2) Groklaw's original domain registration address, in
2002, was in New York.  I believe fact 1 was quite obvious, and
therefore presumably already known to SCO.  Fact 2 was not so obvious,
but the New York address in question was certainly also known to SCO
because it was one that O'Gara had published in her notorious "Who is
Pamela Jones?" article in May 2005.

Finally, I would like to point out that SCO and Novell found and
deposed dozens of witnesses, and they all lived to tell the tale.  I
don't subscribe to the notion out there that a deposition would have
included waterboarding followed by various crimes against humanity.
O'Gara survived her deposition, and I'm sure that if Jones had ever
been deposed, she would have survived too.

-al

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		       SCO Files Lawsuit Against IBM

March 7, 2003 - The SCO Group filed legal action against IBM in the State 
Court of Utah for trade secrets misappropriation, tortious interference, 
unfair competition and breach of contract. The complaint alleges that IBM 
made concentrated efforts to improperly destroy the economic value of 
UNIX, particularly UNIX on Intel, to benefit IBM's Linux services 
business. See SCO v IBM.

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