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From: Alkaline Petrofsky <alkal...@petrofsky.org>
Newsgroups: alt.os.linux.caldera
Subject: SCO's efforts to depose Pamela Jones
Date: 04 Apr 2007 18:40:47 -0700
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As was reported on groklaw today, on Monday we finally got some
official public documentation of the long-rumored efforts by SCO to
depose Pamela Jones. See SCO's motion to allow Jones's hoped-for
deposition in the Novell case to be usable in the IBM case as well:
http://scofacts.org/IBM-1016.pdf
http://scofacts.org/IBM-1018.pdf
or, directly from the court (for a small fee):
https://ecf.utd.uscourts.gov/cgi-bin/show_case_doc?1016,17917
https://ecf.utd.uscourts.gov/cgi-bin/show_case_doc?1018,17917
The weirdest thing about SCO's memo (if taken at face value) is that,
although it includes a weak argument for why Jones's testimony would
be relevant to the SCO v. IBM case, it completely neglects to even
argue why the use of the deposition in this case should not be
precluded by the fact that the fact-discovery cutoff date in this case
passed more than a year ago (on March 17, 2006). There's no
discussion of why SCO apparently made no effort whatsoever to depose
Jones until the extremely untimely date (for this case) of January 30,
2007.
Today, Jones has written at groklaw that:
http://www.groklaw.net/article.php?mode=print&story=20070403233141649
SCO told you something that isn't true. No one tried to serve me
that I knew about. No one informed me of any deposition date.
I'm guessing that that means that SCO never bothered sending copies of
the subpoena directly to Jones's email address (listed on the groklaw
website), or by certified mail to Groklaw's official correspondence
address in Scottsdale AZ (listed in the WHOIS record for the domain).
I can understand why, if SCO believed:
1. that it knew where Jones was; and
2. that Jones would attempt to hide once she knew that they were
attempting to serve her;
that SCO would therefore start its efforts by sending, without
warning, a process server to the location where they believed that the
person that they believed to be the Groklaw Pamela Jones could be
found. However, once that failed, I don't understand why they didn't
immediately proceed to send a copy of the subpoena and a request for
cooperation directly to Groklaw, so as to ensure that the correct
Jones had actual notice of the subpoena as soon as possible.
In late February, Jones had been gone from Groklaw for a couple weeks,
and the rumors of a subpoena did not specify whether it had allegedly
been issued before or after Jones had disappeared. It thus seemed
that sending something to Groklaw might not be a sufficient method for
reaching Jones. At the time, I suggested in an email to SCO that they
publish the subpoena on their website. I've included that email
below. I did not receive any response, and it appears that SCO may
have stubbornly persisted for two months with a stealth strategy of
conducting a wild goose chase for a Connecticutter who may or may not
be the Groklaw Pamela Jones, while they never sent anything directly
to Groklaw, where it almost certainly would have reached the Groklaw
Pamela Jones.
***
SCO's only argument for the relevance of the deposition to the SCO
v. IBM case -- or, at least, the only such argument that appears in
the "ARGUMENT" section -- is this single sentence on page 6:
The foregoing evidence establishes that Ms. Jones's testimony is
relevant in both the SCO v. IBM and SCO v. Novell litigations.
The only foregoing sentences I can find that appear to be attempting
to establish such relevance are these ones on page 2:
Through the website, Ms. Jones has reported extensively on and
repeatedly disseminated Novell's claims of ownership of the UNIX
copyrights, as well as generally addressed SCO's disputes with
Novell and IBM since the inception of those lawsuits. The content
and commentary of the website (and other evidence) show that
Ms. Jones is not an objective commentator, but rather a vehicle
through which opponents of SCO have conducted their case against
SCO in the court of public opinion, where no gate-keeper monitors
the reliability of content.
The rest of the foregoing matter is generally directed toward
supporting the contention that Jones is an agent of IBM and Novell.
If that's true, then I can see how groklaw's "disseminat[ion] [of]
Novell's claims of ownership of the UNIX copyrights" is relevant to
SCO's claim against Novell for Slander of Title. However, SCO doesn't
identify any particular claim in the IBM case to which a Jones-IBM
association would be relevant. I guess SCO is thinking of its claim
for Interference with Business Relationships, but its weird that they
didn't bother to say so.
***
SCO's evidence (or rather, the non-redacted bits of evidence) for
Jones being an agent of IBM consists of evidence that she was
indirectly funded by IBM and Novell, and evidence that "SCO's
opponents in litigation have been feeding information to Ms. Jones for
publication on Groklaw" (p. 5).
The evidence of funding all appears to be either weak or redacted
(i.e., a second-hand anonymous account of OSDL funding; the
long-standing association of IBM with Ibiblio as a whole; and a couple
redacted paragraphs).
The evidence of IBM "feeding information" to Groklaw on a couple
occasions looks conclusive to me. However, that "fed" information is
simply copies of public court documents. In particular, SCO shows
that Groklaw published IBM's conformed copy of document #232 on August
16, 2004, two days before the filed copy was entered in the case file
and became available to the public from the Clerk of Court. However:
1. That document had already been served on SCO on August 13;
2. It contained nothing that either party had designated
confidential; and
3. It would soon become available from the clerk, anyway.
So what the heck was the harm in IBM providing copies of it to Groklaw
or any other members of the public?
SCO itself provides copies of numerous non-confidential court filings to
the public, through the "scoip" section of its website:
http://sco.com/scoip
It has also directly "fed" some of these public filings to me and some
other people by email on a few occasions. I wrote about one example
of that last year on the Yahoo SCOX stock message board:
http://finance.messages.yahoo.com/bbs?action=m&sid=1600684464&board=1600684464&tid=cald&mid=384505
29-Jun-06 12:10 pm by al_petrofsky
Subject: SCO: 'strongest areas still on table'
I'm a little surprised there don't seem to be any mainstream news
reports yet about yesterday's ruling.
On the other hand, this story has somewhat dropped off the radar at
this point.
As a result of emailing to SCO Investor Relations a couple years
ago (see Messages 175924 and 175926), my email address ended up on
a list of addresses that receive occasional one-paragraph mini-news
releases. "Occassional" meaning about ten over the last two years.
From an email late yesterday, SCO's brave-face response to the
ruling is:
"We continue to believe the strongest areas of our case are still
on the table and look forward to presenting our claims before a
jury in February 2007."
There was no mention (yet) of requesting the order be reviewed by
the District Judge.
I assume a few journalists received this statement last night, and
I imagine we'll see one of them write about the ruling soon.
------
Subject: SCO Court Order and Comments
Date: Wed, 28 Jun 2006 17:34:59 -0600
Attached is the court order that was issued today on IBM's motion
to limit 193 of our 294 areas of infringement. The court has
granted in part, IBM's claim and is eliminating 182 out of the 193
areas they challenged and leaving 11 in place. This leave a total
of 112 areas that still remain in the case. We continue to believe
the strongest areas of our case are still on the table and look
forward to presenting our claims before a jury in February 2007.
Although I don't see anything wrong with Groklaw, or anybody else,
obtaining any public filings directly from any of the parties, I will
note that Jones appears to have lied about it, and I don't know what
to make of that. In March 2005, she wrote that there was "not a
single document" on Groklaw, at the time, that she had not "personally
g[o]t from the courts":
http://groklaw.net/comment.php?mode=display&type=article&sid=20050325210414203&pid=293616#c294189
Authored by: PJ on Sunday, March 27 2005 @ 06:08 PM EST
Not so. I never ever take any documents from SCO's site. It's been
our policy from the earliest days on Groklaw that we only use
documents we personally pick up from the court or get from Pacer,
and there is not a single document here on Groklaw that I didn't
personally get from the courts in one of those two ways.
***
On Groklaw's "official address":
The groklaw.com domain was originally registered in September 2002 to
a Pamela Jones in Hartsdale NY. You can still find that registration
record in the WHOIS archives of dialog.com, where it is Dialog File
Number 225, Accession Number 215670118:
http://openaccess.dialog.com/ip/forms/PTCDomainNames.html
Since 2003, the registrant of groklaw.com and groklaw.net has been
Domains by Proxy, Inc. (DBP), an affiliate of GoDaddy.com, Inc..
Here's the current registration record:
Registrant:
Domains by Proxy, Inc.
DomainsByProxy.com
15111 N. Hayden Rd., Ste 160, PMB 353
Scottsdale, Arizona 85260
United States
Registered through: GoDaddy.com, Inc. (http://www.godaddy.com)
Domain Name: GROKLAW.COM
Created on: 26-Sep-02
Expires on: 26-Sep-09
Last Updated on: 06-Dec-05
Administrative Contact:
Private, Registration GROKLAW....@domainsbyproxy.com
Domains by Proxy, Inc.
DomainsByProxy.com
15111 N. Hayden Rd., Ste 160, PMB 353
Scottsdale, Arizona 85260
United States
(480) 624-2599
Technical Contact:
Private, Registration GROKLAW....@domainsbyproxy.com
Domains by Proxy, Inc.
DomainsByProxy.com
15111 N. Hayden Rd., Ste 160, PMB 353
Scottsdale, Arizona 85260
United States
(480) 624-2599
Domain servers in listed order:
MATHFOX.XS4ALL.NL
NS1.DEWINTER.COM
The current groklaw.net registration record is similar.
As the registrant, DBP is responsible for the use of the domain. Per
the rules of the Internet Corporation for Assigned Names and Numbers
(ICANN), if someone contacts DBP regarding any "actionable harm"
arising from the domain, then DBP must either accept all
responsibility, or else put the person in contact with whichever DBP
customer it is to whom DBP delegates responsibility for the domain.
See section 3.7.7.3 of the ICANN Registrar Accreditation Agreement,
dated May 17, 2001:
http://icann.org/registrars/ra-agreement-17may01.htm#3.3.7
3.7.7.3 Any Registered Name Holder that intends to license use of a
domain name to a third party is nonetheless the Registered Name
Holder of record and is responsible for providing its own full
contact information and for providing and updating accurate
technical and administrative contact information adequate to
facilitate timely resolution of any problems that arise in
connection with the Registered Name. A Registered Name Holder
licensing use of a Registered Name according to this provision
shall accept liability for harm caused by wrongful use of the
Registered Name, unless it promptly discloses the identity of the
licensee to a party providing the Registered Name Holder reasonable
evidence of actionable harm.
If SCO simply sent a subpoena to Jones, through DBP, and Jones refused
to make arrangements for service of the subpoena (or to waive
service), then I imagine DBP would then be willing to provide SCO with
whatever contact information Jones provided to DBP (and, if that
information turned out to be invalid, then DBP would proceed to cancel
the domain registration).
***
Here's my February email, discussed above:
Date: Mon, 26 Feb 2007 13:42:41 -0800
From: Al Petrofsky <a...@petrofsky.org>
To: "Darl McBride CEO, c/o Ryan Stephenson, PR" <....@sco.com>
CC: "Bert Young, CFO" <....@sco.com>,
"Steven J. Vaughan-Nichols" <....@vna1.com>,
"Maureen O'Gara" <....@g2news.com>,
"Bob Mims" <....@sltrib.com>,
"Pamela Jones" <....@groklaw.net>,
"Peter Roozemaal" <....@groklaw.net>,
"Brent Hatch, counsel for SCO Group" <....@hjdlaw.com>,
"Michael Jacobs, counsel for Novell" <....@mofo.com>
Subject: Could you release the Pamela Jones subpoena and deposition notice?
[Ryan -- Could you forward this to Darl for me? The email address I have for
him doesn't work. Thanks. -Al]
Darl,
I've read the news reports about SCO's unsuccessful efforts to
subpoena Pamela Jones of groklaw.net. According to a Steven
J. Vaughan-Nichols article on February 15, you said that you are doing
this because "she has some material of importance to [y]our slander of
title case with Novell".
I think a lot of people would like to know a little more specifically
what information you think Jones has that would be relevant to your
case. I imagine that you'll be asked about that at your upcoming
conference call on March 1 (Thursday), and I imagine that you might
not want to try to give an off-the-cuff answer (and that your lawyers
especially might not want you to try to give an off-the-cuff answer).
I was thinking that it might make sense for you to simply post to
http://sco.com/scoip a copy of the subpoena and any deposition notice
that you are trying to serve on Jones. Then everyone could see what
documents are at issue (if you requested any documents in the
subpoena) and what topics are at issue (if you specified any in a
deposition notice).
Even if there aren't many specifics in the subpoena and deposition
notice, seeing the date on the subpoena would at least resolve some
public uncertainty about whether it was issued before or after Jones
announced her hiatus from Groklaw on February 10.
(It also occurs to me that if you are not able to accomplish personal
service, then you may eventually be asking the court to allow
alternative service by publication. It seems like the earlier you
publish what you are trying to serve on her, then the earlier she will
likely have actual notice of it, and the earlier this whole matter can
reach a resolution.)
Thanks for your consideration.
-Al Petrofsky
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From: Al Petrofsky <a...@petrofsky.org>
Newsgroups: alt.os.linux.caldera
Subject: SCO's efforts to locate a calendar [was Re: SCO's efforts to depose Pamela Jones]
Date: 15 Jun 2007 17:48:44 -0700
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Today SCO filed its reply brief on the motion it filed back on April 2
in the SCO v. IBM case.
The motion had sought to have the court allow the deposition of Pamela
Jones in the SCO v. Novell case, should it ever occur, to be usable in
the IBM case as well.
See my parent usenet message, dated April 4, for evidence of the
feebleness, up to that date, of SCO's purported efforts to depose
Jones:
http://google.com/groups?selm=87tzvvtx7k.fsf%40petrofsky.org
Here is the entire text of SCO's reply today:
SCO respectfully submits that the motion has been mooted given that
the referenced date of April 30, 2007 referred to in the opening
memorandum has passed.
http://scofacts.org/IBM-1069.pdf
Thus, we have the following timeline:
On April 2, SCO filed the motion (#1016), and incorrectly noted on
page one of the supporting brief (#1019, redacted in #1018) that
the deposition deadline was approaching on May 31 (see page 1).
On April 6, SCO filed a corrected brief (#1023, redacted in
#1022), noting that the deposition deadline was actually
approaching on April 30.
On April 27, IBM filed its opposition brief (#1038).
On April 30, the deadline in the Novell case for SCO to take the
deposition passed. The deadline had been extended four times
before (from the original deadline of November 1, 2006), but this
time SCO made no motion to extend it any further.
Because SCO's inept efforts to subpoena and depose Jones had not
succeeded before this deadline, and because SCO did not make any
effort (i.e., file a motion) to extend the deadline, the motion in
the IBM case was now moot.
On May 11, SCO's reply memorandum on the now-moot motion came due.
Rather than withdrawing the motion, SCO asked for two more weeks to
prepare its reply (#1050). This request was granted (#1057).
On May 25, SCO's reply memorandum on the now-even-mooter motion
again came due. Rather than withdrawing the motion, SCO asked for
an additional three weeks to prepare its reply (#1058). This
request was also granted (#1065).
Today, June 15, SCO filed its reply (#1069) on the now-very-moot
motion. After five weeks of intense extra-innings legal research,
Edward "Ted" Normand, SCO's crack lawyer from Boies, Schiller, and
Flexner, had at last determined that the date April 30, 2007, is
indeed in the past.
All of which inevitably leads to this question: just how far up Ted
Normand's ass is Ted Normand's head?
One can only wonder.
-al
======
Misc. links:
http://scofacts.org/IBM-1016.pdf
http://scofacts.org/IBM-1018.pdf
http://scofacts.org/IBM-1022.pdf
http://scofacts.org/IBM-1038.pdf
http://scofacts.org/IBM-1050.pdf
http://scofacts.org/IBM-1057.pdf
http://scofacts.org/IBM-1058.pdf
http://scofacts.org/IBM-1065.pdf
http://scofacts.org/IBM-1069.pdf
More generally, "Colonel Zen"'s page has been good:
http://www.zensden.net/Documents/SCO-v-IBM/
Experimental, highly subject to breakage, but good if you want to know
what time of day something was entered:
http://scofacts.org/nefomatic-test-IBM.html
http://scofacts.org/nefomatic-test-Novell.html
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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
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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