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| SCO Motion to Amend Scheduling Order - as text |
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Thursday, April 08 2004 @ 12:20 AM EDT
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Here is SCO's Motion to Amend the Scheduling Order. Memorandum in Support will follow soon.
******************************************
Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
David K. Markarian (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
______________________________________
The SCO GROUP, INC.,
Plaintiff,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant.
_____________________________________
PLAINTIFF SCO'S MOTION TO
AMEND THE SCHEDULING ORDER
Case No. 2:03CV0294DAK Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells
____________________________________
Plaintiff The SCO Group, Inc. ("SCO"), hereby moves this Court for an order amending the Scheduling Order in this matter. The grounds for this Motion are as follows:
Pursuant to Federal Rule of Civil Procedure 16(b), SCO has moved to amend the Scheduling Order to extend certain deadlines in this case. Good cause exists to grant SCO's Motion because: (1) after the Scheduling Order was entered, IBM filed 10 counterclaims, including several claims for patent infringement; (2) discovery in this case was effectively stayed for four months; and (3) IBM's untimely responses to discovery have hindered orderly prosecution of the case.
This Motion is supported by a Memorandum in Support filed concurrently herewith.
DATED this 5th day of April, 2004.
Respectfully submitted,
____signature__________
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER, L.L.P.
Stephen N. Zack
Mark J. Heise
David K. Markarian
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc. hereby certifies that a true and correct copy of PLAINTIFF'S MOTION TO AMEND THE SCHEDULING ORDER was served on Defendant International Business Machines Corporation on this 5th day of April, 2004, by U.S. Mail, first class, postage prepaid, on their counsel of record as indicated below:
Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
Evan R. Chesler, Esq.
David R. Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
_______________[signature]_______________
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| Authored by: sef on Thursday, April 08 2004 @ 12:39 AM EDT |
Um... discovery wasn't stayed, was it? SCO just chose not to respond
despite the court order, right?
[ Reply to This | # ]
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| Authored by: whoever57 on Thursday, April 08 2004 @ 12:41 AM EDT |
IBM's untimely responses to discovery have hindered orderly
prosecution of the case.
"IBM's"?---
-----
For a few laughs, see "Simon's Comic Online Source" at
http://scosource.com/index.html [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2004 @ 12:48 AM EDT |
I'd grant SCO's motion to bifurcate the patent counter claims. Possibly I'd
delay the main suit a bit, but not significantly...
A lot of what SCO complained about in this filing was already coverred in the
oral hearing. It's annoying they keep whining about it.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2004 @ 12:54 AM EDT |
Shhhh we have good reason for a delay erm because
we need one and we havent quite figured out what
our case is about yet come back to us next week and
we will have not only a whole new lawsuit to push but
also we will need to have discovery because we are not
proving that it is contract law we are not proving that
IBM executives kids may have watched the smurfs!
[ Reply to This | # ]
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| Authored by: bsm2003 on Thursday, April 08 2004 @ 12:55 AM EDT |
| My 2 1/2 yo doesen't whine this much. [ Reply to This | # ]
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| Authored by: kawabago on Thursday, April 08 2004 @ 01:38 AM EDT |
How can they go to court, IBM has refused to prove their case!!!
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| Authored by: chrisbrown on Thursday, April 08 2004 @ 01:40 AM EDT |
You know last year we'd found One Million lines of infringing code. We've lost
them. Your honor, if you'll just give us more time, I'm sure we can find that
Million lines of code. We know they're around here Somewhere. A few more
months should do.
--------------------
Wanted: One Million lines of Linux code. Reward. No questions asked. Call
1(900)Giv-2SCO
[ Reply to This | # ]
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| Authored by: bsm2003 on Thursday, April 08 2004 @ 02:52 AM EDT |
Did scog(not deserving of cap. letters) let the Delaware judge the had already
submitted the request to delay? [ Reply to This | # ]
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| Authored by: inode_buddha on Thursday, April 08 2004 @ 03:24 AM EDT |
Reading the motions here, I would ask to provide SCO with everything they ever
wanted - provided they do not move to reschedule anything. Then I would ask if
they are *really* sure they want *it all*. Then I would simply walk away
slowly...
---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2004 @ 03:34 AM EDT |
It seems to me that SCO are going out of their way to disrespect Judge Wells.
It's like a running theme in their memo and conduct.
Dec 5th - Judge Wells indicates that she will order SCO to produce by Jan 12th
Dec 12th - Judge Wells orders SCO to produce, and stays IBM production
Jan 12th - SCO says they did produce everything, (1) except for some stuff they
were too busy with an Xmas vacation to bother with producing, and (2) SCO says,
by the way even though SCO knew about Xmas and the order, we didn't use any of
the time between Dec 5 and Dec 12 to get started - we threw away a week.
Rest of Jan and early Feb - SCO keeps producing drips and drabs
Feb 6th - At the hearing, SCO says they can produce everything within 2 weeks,
max 4 weeks. SCO also admits to not fully complying with the Dec 12th order in
front of the Judge - but the judge lets thoff anyway.
March - Judge gives SCO another 6 weeks to produce (including the 4 weeks they
already had since Feb 6th order, they surely could have used this for
preparation), i.e. they asked for 2-4 weeks, effectively they got 10.
April - After about 9 weeks (7 more than they asked for), they ask for several
more months (remember they asked for 2 original or 4 to be safe)
...and complain about the judge's Dec 12th order. And when doing this, they
point out that IBM started production of code, as soon as their production stay
was lifted, but SCO is still struggling 9 weeks into it.
...Oh and they also complain about IBM filing counterclaims and amending their
complaint in the schedule --- have they not noticed SCO themselves have also
amended their complaint radically.[ Reply to This | # ]
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| Authored by: yorkshireman on Thursday, April 08 2004 @ 03:37 AM EDT |
| Tuxrocks has the Memorandum in Support as PDF already.
Click Here [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2004 @ 03:56 AM EDT |
| I wrote up a parody of the Hitchiker's Guide to the Galaxy dealing with SCO. You
can read it here. It
follows along to the Deep Thought sequence very well. Have a read for
yourselves. [ Reply to This | # ]
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| Authored by: codswallop on Thursday, April 08 2004 @ 03:59 AM EDT |
I don't think SCO expect to get all the delay they're asking for. They're hoping
to force a choice between bifurcation and a substantial delay.
My guess is they'll get the bifurcation and either a much smaller delay or a
decision that the issue can be revisited later.
"My God, how were we to know they'd file counterclaims!"[ Reply to This | # ]
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| Authored by: inode_buddha on Thursday, April 08 2004 @ 04:09 AM EDT |
Typos are mine; anything else is SCO's. More to follow.
Argument
"Federal Rule of Civil Procedure 16(b) gives district courts wide lattitude
in entering scheduling orders"
Burks v. Oklahoma Publishing Co., 81 F.3d975,978(10th Cir. 1996)
Once entered, district courts may modify scheduling orders upon a showing of
"good cause," Fed. R. Civ.P. 16(b), and their decisions are reviewed
for abuse of discretion.
Id. There is clearly "good cause" to modify the existing Scheduling
Order in this case.
First, after the parties negotiated, and the Court entered the existing
scheduling order, IBM filed ten counterclaims, including several claims of
patent infringement. The impending assertion of counterclaim by IBM was not
known to either SCO or the Court at the time the current schedule was adopted.
As a result, the schedule put in place did not account for their injection into
the case. This problem is compounded by the fact that several of IBM's
counterclaims are for alleged patent infringement - allegations that relate to
facts (and law) entirely distinct from the other issues implicated by SCO's
complaint and the balance of IBM's non-patent counterclaims. The current
schedule simply does afford adequate opportunity for SCO to prosecute its own
claims and defend against the counterclaims asserted by IBM.
Second, discovery in this case was effectively stayed for over four months. In
response to motions to compel filed by SCO and IBM, Magistrate Judge Wells
entered an order on December 12, 2003, which stayed all discovery other than
certain discovery actions of SCO covered by the order. See December 12, 2003 at
3. The Court "lift[ed] th[at] discovery stay it previously imposed" on
March 3, 2004, and provided that both parties had another 45 days to comply with
discovery that otherwise would have been due earlier. See March 3, 2004 Order at
3. The cessation of discovery during that period, combined with the 45 days
allowed for the parties to provide required discovery, has had the effect of
shortening the discovery period in the case, thereby making it impossible for
SCO to prosecute its own claims and defend against IBM's counterclaims within
the limited time remaining under the existing schedule.
Even assuming that IBM provides all documents responsive to SCO's supplemental
requests for production and fully answers SCO's supplemental interrogatories by
that date, only three and one-half months would remain to complete non-expert
discovery - including review and analysis of IBM's documents and discovery
responses, and conducting dozens of depositions per side. Such a schedule would
result in prejudicially and unnecessarily hurried discovery even if all
information is disclosed timely and without objection by IBM - an expectation
that is not warranted in light of IBM's prior conduct in this case. (2)
Third, IBM's conduct during discovery has frustrated SCO's ability to complete
discovery in the time allotted under the Scheduling Order. For example, one of
the most critical discovery items in this case has been the production of IBM's
AIX and Dynix/ptx source code. After first claiming artificial limitations on
such production (such as IBM claiming it would only produce the "base
operating system") IBM asserted that it would provide the requested code,
but it needed to get approval from third parties that also had their source code
in IBM's products. IBM then waited months before sending out notices to the
third parties. Eventually, in October 2003, IBM finally sent out notices to
third parties and represented to SCO's counsel that the requested code would be
provided by Thanksgiving 2003. No code was produced. Then, on the eve of the
hearing on the competing motions to compel, IBM produced two CDs containing
Dynix/ptx code. IBM still did not produce a single line of AIX code at that
time. As noted above, at that hearing, the Court stayed discovery until March 3,
2004. The day after the stay was lifted, IBM sent AIX source code to SCO for the
first time. In other words, one year after the suit was filed, SCO finally
obtained this critical information from IBM. The requested source code of AIX
and Dynix provides information that goes to the core of this case. The wholesale
failure of IBM to produce a single line of AIX code until one year after the
suit was filed has hampered SCO's ability to conduct necessary code conparisons
and delayed the orderly prosecution of this action.
IBM's incomplete answers to interrogatories have also hindered SCO's ability to
prosecute this action and defend against IBM's counterclaims. For example, in
Interrogatory Number 2, SCO asked IBM for the identity of all persons with
knowledge concerning any of the issues in this litigation. IBM, however,
identified only employees and former employees. When SCO moved to compel a more
responsive answer on this interrogatory, IBM responded that it would provide a
complete answer and would not limit its response to current and former IBM
employees. To date, IBM has yet to provide this complete answer - even though
SCO provided a complete response to IBM with this information on October 10,
2003.
These examples are illustrative of persistent problems with IBM's discovery
responses in this case. Given those responses, and given the significantly
changed nature of the case after the original Scheduling Report and Scheduling
Order were entered, as well as the stay of discovery from December 2003 until
March 3, 2004, it is evident there is "good cause" to amend the
Scheduling Order.
As the Advisory Committee notes to Rule 16 make clear, Rule 16(b) adopts the
relatively liberal "good cause" standard in recognition that
scheduling orders are required to be entered early in litigation, and that a
stricter standard would encourage counsel to request the longest time possible
for discovery out of fear an extension would not be granted. See Wright, Miller,
and Kane, Federal Practice and Procedure: Civil 2d ss 1522.1 at 230-31; see also
Adv.Comm. Notes to Rule 16(b). The need for scheduling order modifications is
particularly warranted in large, complex cases (like this one) where
"[d]evelopments in the litigation may call for subsequent modification of a
scheduling order entered early in the litigation." Manual for Complex
Litigation, Fourth, ss 11.212. Although SCO has diligently pursued discovery
since the inception of this case, it is now apparent that discovery cannot be
completed in the time remaining under the existing schedule.
---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2004 @ 05:06 AM EDT |
| News.com has an interview of Microsoft CEO Steve Ballmer.
http://news.c
om.com/2008-1012_3-5186219.html?tag=nefd.lede
He does not disappoint
you! If you are a free software fan, some choice quotes to get you either
laughing or furious:
"There has never been a platform more open than
ours, as evidenced by the fact that there has never been a platform on which
people have written more applications or supported more devices."
"No, no,
nobody can make the argument that open source is actually more open and
sensitive to encourage more third-party innovation. You could say all the things
about open source, but clearly, more people have used more application
programming interfaces and interfaces in Windows by several orders of magnitude
than any other product ever written."
(Interesting definition of "open".
Microsoft thinks it is open when they describe a lot of APIs in expensive
documents. May be it is "open" compared to documenting nothing, but it
insufficient for developers who have got the taste of being able to examine (and
tinker with when needed) with the actual source code.).
"Ten years ago,
there was much more premium on just generating new function, not on responding
to issues in existing functions. I mean, nobody was talking about security
problems in Netscape and IE in the middle of the browser wars. People would just
say, "Give me, give me. I need new features, new features." Well, we are in a
different world."
(Pardon me? I recall a lot of talk about IE vs.
Netscape security problems even back then, not to mention clamour over all the
other security problems in Windows. Oh well, rewriting history is typical of
MS).
"We hope that through the appellate process in Europe, we can come
to a regime that is common, at least on both sides of the Atlantic. I wish the
EU had had more deference for the U.S. regime, as set forth not only in the
consent decree, but also in the pronouncements of the court."
(Damn
those uppity Europeans, who don't defer to U.S. decisions!)
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2004 @ 05:24 AM EDT |
Dear Judge Kimball,
As you have no doubt determined, our entire case was predicated on being given
unfettered access to IBM's entire code base, including all historic versions,
plus their document archive. We hoped to find in there some document or comment
that said "Hahahaha, take THAT, SCO!". We know that smoking gun must
be in there, because... uh... because... if it isn't, we have no case.
As it turns out, Your Honor is unfortunately au fait with the concept of
fishing, and has malicious denied us the opportunity to do so.
In light of this, we beg leave to cry like little girly girls and think up some
new way to persuade IBM to string up a noose and put their necks into it.
Yrs respectfully,
etc.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2004 @ 07:21 AM EDT |
http://www.tinyvital.com/BlogArchives/000008.html
interesting seemingly unbiased read but reaches incorrect conclusions [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2004 @ 08:12 AM EDT |
| Good cause exists to grant SCO's Motion because: (1) after the Scheduling
Order was entered, IBM filed 10 counterclaims, including several claims for
patent infringement; (2) discovery in this case was effectively stayed for four
months; and (3) IBM's untimely responses to discovery have hindered orderly
prosecution of the case.
The response should go something like
this:
The court fully understands the reasons for the current
request.
The plaintif is requesting more time to respond to the defendants
specified charges and notes that there should not be problems in turning over
discovery material that is readily available.Material that is needed to present
their case.
Thus I must rule that the plaintif is ordered to provided to
both this court and the defense the "rock solid" "ready to go to court" evidence
gathered by "rocket scientists" so the defense and this court have any idea what
the plaintifs case is about.
The request for a scheduling delay is
denied.
IMHO :)
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 08 2004 @ 08:24 AM EDT |
I think that this would be fairly funny...
Judge: sco, since you were unable to produce any evidence even after 3 requests,
your charges against IBM are dismissed with prejudice. About the Scheduling
Change, it is accepted. You will be given more time to defend against IBM's
charges, and IBM will be given more time to solidify their case against you.
Have a nice day.[ Reply to This | # ]
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| Authored by: overshoot on Thursday, April 08 2004 @ 08:31 AM EDT |
| Since SCOX has now requested a delay in the case based on the time it will
supposedly take to work through IBM's source code, it looks to me like a golden
opportunity for IBM to file some motions for dispositive rulings.
SCOX'
"derivative works" theory is pure bunk, and the case would be expedited
tremendously if the Court would rule on it. That would serve all sorts of good
ends: it would save the Court time, it would clear the air before SCOX implodes,
and it would obviate the need for even more delay.
Besides, it would also
tighten the noose and dial up the stress level in Lindon. Even Nazgul are
entitled to their private amusements. [ Reply to This | # ]
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| Authored by: Khym Chanur on Thursday, April 08 2004 @ 08:35 AM EDT |
Since SCO's theory of derivative works is insane, why didn't IBM just hand over
everything SCO asked for right away? No matter how much of AIX made it into
Linux, it wouldn't be a violation of their contract. Plus, by giving them the
code right away, it would have given SCO less excuses for delaying.
---
Give a man a match, and he'll be warm for a minute, but set him on fire, and
he'll be worm for the rest of his life.[ Reply to This | # ]
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| Authored by: maximino on Thursday, April 08 2004 @ 08:45 AM EDT |
Correct me if I'm wrong, but isn't SCO complaining that IBM didn't turn
over all the AIX and Dynix code? Let's remember that the judge has
explicitly ruled in IBM's favor on that issue on two different
occasions.
After the first fishing expedition attempt, the judge told
SCO that they'd have to provide evidence of their copyright claims before they
could have all versions of AIX and Dynix that ever existed. At the second
hearing on this issue (the one where they got 45 more days because of their
"good faith efforts"), the judge still didn't buy it.
I don't think that
blaming IBM for following the court's instructions is going to endear them to
the judge. Especially with the motion to bifurcate, it just looks as if they're
doing anything and everything to not have to address any facts, such as what
exactly they're suing IBM for. [ Reply to This | # ]
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| Authored by: wvhillbilly on Thursday, April 08 2004 @ 09:19 AM EDT |
According to SCO:
...Good cause exists to grant SCO's Motion
because: (1) after the Scheduling Order was entered, IBM filed 10 counterclaims,
including several claims for patent infringement; (2) discovery in this case was
effectively stayed for four months; and (3) IBM's untimely responses to
discovery have hindered orderly prosecution of the
case.
Aww. phooey! Excuses, excuses,
excuses!---
What goes around comes around, and it grows as it goes. [ Reply to This | # ]
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