S2 Objects to Subpoena, Admits It Met With Microsoft

Tuesday, April 20 2004 @ 07:03 PM EDT

Contributed by: PJ

S2 Strategic Consulting has filed Objections to Subpoena Duces Tecum Directed to S2 Strategic Consulting, LLC, and Response. In it they raise a number of reasons they feel they shouldn't have to cough up what IBM has asked them to produce, including claiming the protection of a confidentiality agreement with SCO. They assert that some of the info IBM asked them to produce is confidential and/or proprietary, "which S2 protects from its competitors." But they say they will produce such documents under a protective order. However, what they do acknowledge is dynamite.

Here is the meat from Responses 5 and 6:

5. . . .Without waiver of those objections, S2 responds that it has in its possession, custody and control documents that entail communications between it and Microsoft, that relate to parties in this litigation, that will be produced only in accord with paragraph 10 of the SPO. S2's documents pertaining to its own, unrelated, confidential and proprietary business dealings with Microsoft will not be produced.

6. . . . Without waiver of those objections, S2 responds that it has in its possession, custody and control documents that concern meetings between it and Microsoft, that relate to parties in this litigation, that will be produced only in accord with paragraph 10 of the SPO.

So, once again, IBM is on the ball, and it's all going to come out in the wash.

IBM asked S2 to produce:

S2 does not acknowledge any documents related to Canopy. I can't explain two things: there is a duplicate response to a request for all documents concerning all meetings with BayStar and no question about any communications with BayStar. That could be because IBM goofed, or because S2 goofed when replying. Also, I have no idea yet what "SCO Operating, Inc." is. I went to both Utah and Delaware's corporate name reservations sites, to see if I could reserve the name or if it was already taken, and the name is available in both states. So this could be another mistake, or someone playing games, or it could be a new name that isn't in the databank yet in whatever state it might have been registered in.

For a definition of subpoena duces tecum, click on the law.com link and then on "S" and then scroll down. Or just click on this link. It's the kind of subpoena where they seek documents, looking for useful evidence: "It is the common way to obtain potentially useful evidence, such as documents and business records, in the possession of a third party. . . . Failure to respond to a subpena duces tecum may subject the party served with the subpena to punishment for contempt of court for disobeying a court order."

The Stipulated Protective Order's Number 10 reads like this:

"10. Confidentiality Interests of Third Parties: A party may refuse to produce otherwise discoverable information pursuant to a subpoena, deposition question, or discovery request, if the party is under an obligation to a third party not to disclose such information. In such an event, the objecting party shall:

"A. Promptly provide to the person or entity whose confidentiality interests are implicated (i) notice of its intention to disclose the information in question and (ii) a copy of this Order; and

"B. Within thirty (30) business days of the notice sent pursuant to (A), produce the requested information in question in compliance with this Order, unless the request is otherwise objectionable, or the person or entity whose confidentiality interests are implicated moves for or obtains a protective order precluding such disclosure from this Court within that time."

This indicates, in section B, that SCO has 30 days to object to this material being produced, after which, if it fails to do so, S2 will have to produce it, unless any of its other objections stick. Of course, IBM will have something to say about all this too, I'm sure.

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