December hearing audio and Autozone's non-motion for protective order
Al Petrofsky
made available, at <http://scofacts.org/bankruptcy.html>, the court's
audio recording of the December 30, 2009 hearing in In re: SCO Group,
Inc. (f/k/a Caldera International, Inc), No. 07-bk-11337,
Bankr. D. Del.
Below are some emails regarding the publication of the audio
recording, and AutoZone's peculiar statement that it intended to file
a motion for a protective order, apparently to try to prevent people
from learning the Earth-shattering fact that the SCO v. Autozone
settlement involved a "number".
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Date: Fri, 15 Jan 2010 14:07:06 -0800
From: "Alan P. Petrofsky, equity security holder"
To: "David J. Stewart, counsel for Autozone",
"Bonnie G. Fatell, counsel for trustee"
Cc: "Stanley B. Tarr, counsel for trustee",
"Edward Normand, counsel for trustee",
"Joseph McMahon, Jr., counsel for acting U.S. trustee",
"Adam A. Lewis, counsel for creditor Suse",
"Sean T. Greecher, counsel for creditor Suse",
"Michael A. Jacobs, counsel for creditor Suse",
"R. Stephen McNeill, counsel for creditor IBM",
"Richard Levin, counsel for creditor IBM"
Subject: Potential sealing of the December SCO bankruptcy hearing audio
(In re: SCO Group, Inc. et al., No. 07-bk-11337, Bankr. D. Del.,
and SCO Group, Inc. v. Autozone, Inc., No. 2:04-cv-237, D. Nev.)
Dear Mr. Stewart and Ms. Fatell:
For the convenience of the public and the parties, I have long been
making copies of the court's official audio recordings of most of
SCO's bankruptcy hearings freely available through the following web
page: http://scofacts.org/bankruptcy.html
At the December 30, 2009 hearing, for the first time in these cases,
there was some suggestion that confidential information had been
improperly publicly revealed in open court. Specifically, the trustee
objected after Suse Linux's counsel had just stated, "I know what the
number is with Autozone", and had thereby revealed that the
confidential settlement agreement between SCO Group and Autozone is
not numberless.
I don't think this information warrants any protection. However, as a
courtesy to Autozone and the trustee, and out of an abundance of
caution, I have decided not to publicly redistribute my copy of this
portion of the audio recording until Autozone and the trustee have had
an opportunity to move for an order that the recording be placed under
seal and that the clerk of court stop providing copies of it to every
member of the public who requests one and pays the $26 fee. If
Autozone or the trustee, or any other party, gives me written notice,
NO LATER THAN ON FRIDAY, JANUARY 22, 2010, that it intends to file
such a motion, and it goes on to file the motion no later than on
February 5 and notices it to be heard no later than at the March
omnibus hearing, then I will continue to refrain from publishing the
audio until the hearing date.
I am attaching to this email a clip of the relevant portion of the
audio. For your convenience, here is an unofficial transcription of
the clip (I do not have a copy of the official transcript and I do not
know how completely this portion of the recording was transcribed
therein; if anyone who happens to have a copy of the official
transcript would email a copy of it to me, I would much appreciate
it):
(Recording starts at approximately 11:12:55 a.m., December 30, 2009)
11:12:55 ADAM LEWIS, FOR SUSE LINUX: In terms of the costs, your
Honor. First of all, we have no real facts in front of the Court.
We just have counsel's representations about possible costs. Four
hundred thousand dollars, you know, just, four -- and it's only
cost four hundred thousand dollars to get almost there. Um, sure,
we have a hearing -- it's at half price, and -- and the -- the
trial in Utah isn't going to cost anything in lawyers' fees,
because that's on contingency. You know, there are going to be
costs: travel costs, lodging costs, food costs, maybe expert costs
and so on, but we're not having that problem in Utah at all. This
is going to be the only thing that's going to drain the estate.
11:13:37 We don't really know what the estate has or doesn't have.
We know it recently settled, uh, uh, we kn-- I know what the number
is with Autozone, but --
11:13:44 BONNIE FATELL, FOR THE TRUSTEE: Objection, your Honor.
This document was filed under seal. It is not a matter of public
record as to any details.
11:13:50 MR. LEWIS: I'm not going --
11:13:50 MS. FATELL: Confidentia--
11:13:50 MR. LEWIS: -- into details.
11:13:51 MS. FATELL: -- details other than the fact that it was
settled, --
11:13:53 MR. LEWIS: I --
11:13:54 MS. FATELL: -- respectfully.
11:13:55 MR. LEWIS: That's, that --
11:13:55 MS. FATELL: Tha--
11:13:55 MR. LEWIS: If you'll --
11:13:56 MS. FATELL: Settled, period.
11:13:56 MR. LEWIS: Yeah, if you'll let me finish. What was
involved is not clear, but, um, the Court is aware of what the
situation is, and we all, uh, and, and -- but we don't know what's
going on with the estate. We don't know really what's been going
in terms of shutting down operations or saving money or conver--
conserving money.
11:14:17 But again, I want to emphasize, that -- if -- if there's
anything that money is in es-- in the estate for, is to determine
what the estate has to reorganize with. What better purpose, what
more important purpose, if there are limited resources, than that?
None.
(Recording ends at approximately 11:14:34 a.m., December 30, 2009)
Yours truly,
Alan P. Petrofsky
Equity security holder of debtor The SCO Group, Inc.
PO Box 6263
San Rafael CA 94903
Voice: +1 650 520 0626
Fax: +1 415 499 8385
Email: a...@scofacts.org
[For the attachment, see:
<http://scofacts.org/Petrofsky-2010-01-15-email-Autozone-number-clip.mp3>]
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Date: Mon, 25 Jan 2010 15:19:24 -0500
From: "Stewart, David"
To: "Alan P. Petrofsky, equity security holder",
"Bonnie G. Fatell, counsel for trustee"
Cc: "Edward Normand, counsel for trustee",
"Joseph McMahon, Jr., counsel for acting U.S. trustee",
"Adam A. Lewis, counsel for creditor Suse",
"Sean T. Greecher, counsel for creditor Suse",
"Michael A. Jacobs, counsel for creditor Suse",
"R. Stephen McNeill, counsel for creditor IBM",
"Richard Levin, counsel for creditor IBM",
"Stanley B. Tarr, counsel for trustee"
Subject: RE: Potential sealing of the December SCO bankruptcy hearing audio
(In re: SCO Group, Inc. et al., No. 07-bk-11337, Bankr. D. Del.,
and SCO Group, Inc. v. Autozone, Inc., No. 2:04-cv-237, D. Nev.)
Mr. Petrofsky:
I represent AutoZone in connection with the SCO v. AutoZone
litigation. We appreciate your email notice regarding this issue. I
have not had an opportunity before now to respond to your email, but
AutoZone does intend to file a motion for protective order. We
therefore request that you not make the audiotape or a transcription
thereof available on your website.
Regards,
David J. Stewart | Alston & Bird LLP
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Date: Mon, 25 Jan 2010 15:54:07 -0800
From: "Alan P. Petrofsky, equity security holder"
To: "Stewart, David",
"Bonnie G. Fatell, counsel for trustee"
Cc: "Edward Normand, counsel for trustee",
"Joseph McMahon, Jr., counsel for acting U.S. trustee",
"Adam A. Lewis, counsel for creditor Suse",
"Sean T. Greecher, counsel for creditor Suse",
"Michael A. Jacobs, counsel for creditor Suse",
"R. Stephen McNeill, counsel for creditor IBM",
"Richard Levin, counsel for creditor IBM",
"Stanley B. Tarr, counsel for trustee"
Subject: Re: Potential sealing of the December SCO bankruptcy hearing audio
(In re: SCO Group, Inc. et al., No. 07-bk-11337, Bankr. D. Del.,
and SCO Group, Inc. v. Autozone, Inc., No. 2:04-cv-237, D. Nev.)
Dear Mr. Stewart:
Although I had only offered to wait until January 22 for any response,
please be advised that when I received your response today (January
25) it so happens that I had not yet made the December 30 hearing
audio publicly available on the internet. I will continue to refrain
from publishing it until at least Friday, February 5, 2010. If
Autozone files its motion for a protective order by that date, and
notices it to be heard no later than at the March omnibus hearing,
then I will continue to refrain from publishing the audio until the
hearing date.
Does Autozone also intend to seek redaction of the official
transcript? If so, please note that a notice of intent to request
redaction should be filed forthwith (the deadline for filing such a
notice having already passed back on January 15), and a motion to
redact (which should also show cause for forgiving the tardiness of
the notice) should be filed by this Friday, January 29. See the
"Notice of Filing of Transcript and of Deadlines Related to
Restriction and Redaction" dated January 8, 2010 (in Docket No. 1034),
and the court's "Policy on the Electronic Availability of Transcripts
of Court Proceedings", effective October 8, 2008:
http://scofacts.org/SCO-Group-bankruptcy-1034.pdf
http://www.deb.uscourts.gov/CMECF/Transcript%20Policy.htm
I am a bit surprised that Autozone is even considering seeking relief
on this issue. SCO's trustee, in contrast, informed me last week that
he had no objection to the audio's publication. To aid you in
deciding whether or not to follow through on this, here, for your
consideration, are a few points I may raise in opposition:
(1) a mere reference to "the number", without any statement that
that number is less than or greater than any other number, does not
reveal any material information about the settlement;
(2) the fact that Novell's counsel had seen the settlement
agreement and therefore would "know what the number is" had already
been revealed by the trustee's counsel at the November 30, 2009
hearing;
(3) any significant flow of money from AutoZone to SCO, or vice
versa, will be publicly revealed anyway in the estates' operating
reports;
(4) there were several non-parties at the hearing (sitting in the
gallery) who heard everything that was said and have already
publicly commented about it;
(5) the full audio has been publicly available from the court since
December 30 and has already been purchased by at least one
non-party (Pamela Jones, who extensively publicly comments about
these cases at groklaw.net); and
(6) the full transcript has been publicly available from the court
reporter since January 8 and may have also already been purchased
by non-parties.
Yours truly,
Alan P. Petrofsky
Equity security holder of debtor The SCO Group, Inc.
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[errata: "November 30" should have been "November 20"]