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.'"

IANAL

[A. Bosch]

And neither is the writer on Groklaw who wrote the article: " IANAL. I am a journalist with a paralegal background"

I would love to read what other /. readers who actually are lawyers think.

Re:Theres motherf*ckin snakes in the Court!!!

[Meshach]

Salivating? I would say more like grabbing at straws in desperation

Pulling some underhanded almost unethical manuver like this really shows that SCO is coming undone at the seams.

Why can't the poor shmuck...

[bjanz]

...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:IBM's Lawyer?

[theshowmecanuck]

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 higher up the tree you get (or the closer to the root depending on how you like to look at it ;-), the more so. Now I am not saying lawyers suffer the same kind job 'realities' (for want of a better word) as IT folk, but when a guy who is one of the active lawyers defending against a multi-billion dollar law suit goes missing, even while on vacation... I would be thinking about whether his long term career plans at IBM are being revisited right now.

Re:Sssllloowww....

[Kadin2048]

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 harder to prepare the witness for one; SCO's lawyers' goal is probably just to get him to slip up and say something that they can use to further delay proceedings. If the guy's not careful, it could definitely happen.

Throwing the game vs. Embarrassing yourself

[MarkusQ]

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 make good use of it!").

Besides, no one is saying that he's stupid (by all accounts, he's not), just that he was perhaps a little too trusting. It is, after all, a little difficult to get your mind around just how underhanded SCO really is. He can be forgiven for assuming that they really aren't as underhanded as laywers in the movies, when (as it turns out) they're worse.

--MarkusQ

Re:Wait...

[rkhalloran]

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!!

Re:He did it to himself...

[Alchemar]

Post is also missing a few facts. As I understand it SCO filed the supeona with a deposition in two different cities to show up at the day after the supeona was servered in an effort to make the guy "jump" and do the quickest thing possible because he only had one day to get it before a judge. Even though the rest of the people that were served just skipped the deposition and then filled a complaint with the Utah Judge, he got in touch with a lawyer that was not the primary lawyer for the case and not fully aware of the tatics being played.

If this guy made any mistakes, he was lead into them by SCO's lawyers.

Re:He could just refuse to answer those questions.

[Anonymous Coward]

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.

Re:IANAL

[WindBourne]

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:Interesting.

[Anonymous Coward]

The system is seriously broken.

Amen to that!

Btw, Fed. R. Civ. P. 45(c)(3)(A) provides: "On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it ... [reasons for quashing enumerated]." So, Mr. Wilson was following the Federal Rules of Civil Procedure by filing his motion to quash in the North Carolina (Middle District) Federal District Court and now he is being penalized for doing so.

Re:Theres motherf*ckin snakes in the Court!!!

[darkmeridian]

This is hardly as bad as you would think it is. Federal rules of discovery allow only seven hours of deposition per witness before the deposing party requires leave of court. (That assumes the opponent does not consent to the extension.) It is not unprecedented to see witnesses stall during depositions. Mr. Wilson has four hours of questioning left, and that'll go really quickly. Witnesses are instructed before depositions to ask the questioner to clarify each question so as to remove all ambiguity. Then they take sips of water, they get water, they get Coke. Then they have to look for a bathroom. Sometimes, they ... speak ... really ... slowly. Or they suddenly go deaf and require even the most well-phrased question to be repeated in the exact same way because otherwise they'll get "confused" over the two phrasings. It's annoying when a witness stalls but damn, does SCO have it coming here.

Re:Theres motherf*ckin snakes in the Court!!!

[mkoenecke]

Reminds me of a wonderful quote from a book I have somewhere: "Our adversarial system is founded upon the curious premise that, from the clash of lies, truth will emerge."

By the way, your opinion is not shared by the ABA's Model Code of Professional Responsibility or my own state (Texas) code. Springing something on opposing counsel when you have been notified of his vacation is not only unethical, but sanctionable.