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IBM's Memorandum in Opposition to SCO's Motion to Amend the Scheduling Order
Tuesday, May 18 2004 @ 01:02 PM EDT

IBM has filed its Memorandum in Opposition to SCO's Motion to Amend the Scheduling Order. Here is how the Preliminary Statement begins:

"SCO commenced this litigation in March 2003, more than a year ago. Trial is currently scheduled for April 2005, nearly one year from now. Yet, due entirely to delays occasioned by SCO's own discovery misconduct, SCO now seeks a nine-month extension of the fact discovery deadline to May 2005, and a five-month extension of the trial date, to September 2005. There is no 'good cause' for such an extension, especially in light of SCO's failure to diligently proceed with discovery. Fed. R. Civ. P. 16(b)."

You can read the federal Rules of Civil Procedure, and specifically Rule 16, which governs scheduling here, and you will note that it says "A schedule shall not be modified except upon a showing of good cause and by leave of the district judge . . ." Of course, IBM can only request. In real life, judges seem to have a lot of freedom to modify the schedule for "good cause" according to their lights.

Here is an interesting tidbit, indicating that SCO still has not identified what UNIX System V code we are talking about. Did they deep dive into AIX and come up with nothing but seaweed?

"More than a year after it filed suit, however, despite repeated requests from IBM and in disregard of two Court orders, SCO still refuses to identify the specific code from UNIX System V that IBM is claimed to have misused, either in violation of IBM's licenses for UNIX System V with SCO's alleged predecessor-in-interest, AT&T, or the UNIX System V copyrights SCO claims to have been assigned."

If that is what this means, and it seems to be, that might explain why SCO is so desirous of dragging its heels. I phrased it more delicately than IBM, who state that SCO is conducting a campaign "to create fear, uncertainty and doubt in the marketplace about Linux in general, and IBM's products in particular":

"It is plain from SCO's conduct during discovery that SCO seeks to stall the prosecution of this action for as long as possible, in furtherance of this improper scheme. Indeed, SCO's CEO has claimed he is content to let this lawsuit 'drag on', based on the theory that SCO is entitled to 'nearly one billion dollars [in damages] per week.' SCO already claims it is entitled to up to $50 billion in damages.

Since this suit began in March 2003, SCO has publicly touted its evidence of IBM's alleged miscondut, but has resisted disclosing the supposed evidence to IBM. . . . In contrast to its public assertions, SCO's conduct during discovery reflects a remarkable pattern of delay and obfuscation. For example, when SCO first commenced this case in March 2003, which SCO announced in the media with much fanfare, the centerpiece of its case was a claim for the misappropriation of trade secrets. After IBM pressed SCO to identify exactly which trade secrets IBM was alleged to have misappropriated, SCO consistently refused to identify any such trade secrets, even after being ordered to do so by the Court. At last conceding that it could not identify any trade secrets, SCO finally abandoned the claim, but only in March 2004 after dragging out the claim for a full year."

IBM sees a similar pattern now in the foot-dragging over identifying allegedly infringing code. And our friend Mr. Blepp appears on page 5:

"In a revealing interview, a SCO Vice President recently stated that SCO's strategy in this case is not to 'put everything on the table at the start, but instead [to] bring out arguments and evidence piece by piece.'"

The reference is, of course, to the "Linux Hunter SCO Puts Everything On the Line" article in Spiegel Online, April 13, 2004, which Groklaw published a translation of that same day, thanks to an alert Groklaw reader, who spotted the interview with Mr. Blepp. IBM adds that there is plenty of time to do the depositions, which process has begun, so long as SCO cooperates. The document discovery is about done, they say. And as for SCO's argument that it needs a delay because the Court stayed discovery for three months, IBM points out the stay resulted from SCO's lack of cooperation in the discovery process. It then argues that that hardly constitutes "good cause".

SCO argued that it needs more time because IBM entered counterclaims, but IBM responds by pointing out that they had entered most of those counterclaims in September of 2003, "nearly a year before fact discovery was scheduled to close." Let's get this show on the road, IBM says. IBM says they have provided all discovery items requested, and there is plenty of time to meet the scheduling order's requirements with room to spare. Adding 9 months to the fact discovery schedule has only one purpose, they write:

"The only purpose SCO's proposed schedule serves is SCO's own improper goal of maintaining fear, uncertainty and doubt in the marketplace concerning Linux and IBM's (and many others') products."

If the judge does extend, IBM suggests a two-month extension, which would not require an extension of the trial date. SCO's proposed extension of fact discovery would mean that discovery in this case would last for more than two full years. That is obviously ridiculous in a case where SCO publicly claimed to have in hand all the evidence it needed even before discovery began.

Besides, the new counterclaim for a declaration of noninfringement with respect to IBM's Linux activities was hardly an "expansion" of the case, considering SCO has been accusing IBM of copyright infringement not only in the media but also in a court hearing in December, when it said it would be filing such a claim. In any case, no discovery on this point is needed. IBM's motion can be decided already on "undisputed facts in the current record", they assert. IBM then, in footnote 11, uses SCO's contradictory words in the Red Hat case against it:

"Indeed, when Red Hat, Inc. filed a complaint seeking a declaration of non-infringement of SCO's purported copyrights based on Red Hat's use and distribution of Linux in August 2003, SCO moved to dismiss the claim in part because '[t]he infringement . . . issues Red Hat seeks to adjudicate . . . are currently before U.S. District Judge Dale A. Kimball in the SCO v. IBM Case pending in Utah Federal District Court.'"

They got their stay, IBM points out. They can hardly now argue that copyright infringement is enlarging the scope of the IBM case. IBM requests that the Court deny SCO's motion:

"IBM believes that discovery in this case should be conducted according to the schedule to which the parties agreed almost a year ago. In fact, as we will lay out in forthcoming submissions most (if not all) of the claims in the suit can be resolved on summary judgment without more discovery."

You can see that IBM is salivating to get to trial and accusing SCO, on the other hand, of asking for unnecessary delay.

Your mom was right. It doesn't pay to tell lies.


  


IBM's Memorandum in Opposition to SCO's Motion to Amend the Scheduling Order | 373 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here Please
Authored by: PJ on Tuesday, May 18 2004 @ 02:13 PM EDT
Please put corrections here for me. Thank you.

[ Reply to This | # ]

IBM's Memorandum in Opposition to SCO's Motion to Amend the Scheduling Order
Authored by: SirFozzie on Tuesday, May 18 2004 @ 02:21 PM EDT
I think the gloves have come off. IBM just served notice to SCO that the rest of
the legal fight will be a bloody bare knuckle brawl.

[ Reply to This | # ]

OT and Links here please
Authored by: spambait42c on Tuesday, May 18 2004 @ 02:22 PM EDT
Put off-topic comments and relevent links here.

[ Reply to This | # ]

Summary Judgment
Authored by: Anonymous on Tuesday, May 18 2004 @ 02:26 PM EDT
The part I found most informative was:

In fact, as we will lay out in forthcoming submissions most (if not all) of the claims in suit can be resolved on summary judgment without more discovery

This verifies what we have been assuming - that IBM plans to request summary judgment.

[ Reply to This | # ]

IBM's Memorandum in Opposition to SCO's Motion to Amend the Scheduling Order
Authored by: Anonymous on Tuesday, May 18 2004 @ 02:32 PM EDT
Is SCO waiting for patents to become a bigger issue? Not that they own them, but
could they have more mud to sling after the EU may rule in favor of software
patents?

[ Reply to This | # ]

A Word from the Devil's Advocate
Authored by: Adam B on Tuesday, May 18 2004 @ 02:36 PM EDT

It's not especially convincing in this case, and certainly not worthy in and of itself to stay the case, but it's worth noting why a judge might consider granting such a stay.

If the request is denied and SCO is ruled against (which seems very likely at this point, unless they come up with some evidence), then having such a request on record and denied would give them grounds for appeal. To simplify: "We asked for more time to gather evidence, we were denied, and our suit failed for lack of evidence. Seems pretty clear we got the shaft, we want a new trial."

So, while ridiculous, this request isn't going to be as easy to dismiss as we all might like. The judge might reason that a few months here might save years later.

On the other hand, for a successful appeal, there must be either an error of law on the part of the lower court or a decision which went against the preponderance of the evidence. Even a relatively broad reading of that wouldn't include the SCO case. So I don't know.

Also, in civil cases, an appeal can be pre-defeated by the mutual signing of a document stating that both parties accept the decision of the currently convened court as final. Reading around on Westlaw, I find that this is practically never used. Anyone care to comment on this, and perhaps on the wisdom / possibility of IBM (or SCO for that matter, but I doubt it) seeking such an agreement?

[ Reply to This | # ]

IBM's Memorandum - Darl's mouth and public claims bite him again
Authored by: moogy on Tuesday, May 18 2004 @ 02:37 PM EDT

Darl McBride May 25, 2003
"Now, by going into pre-discovery, we have strong enough claims. We'd be fine to go to court just on what we have before discovery."

This is one of my favorite Darl quotes and I've been usuing it a long time. I was glad to see IBM use it in this filing.     Where is this evidence you've had all along Darl? Why do you need more and more delays to go to court?

---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win. --Gandhi

[ Reply to This | # ]

Don't forget Heise's comments to Maureen O'Gara about not telling IBM anything
Authored by: Anonymous on Tuesday, May 18 2004 @ 02:47 PM EDT
part of the pattern.

that was their plan from (before the) beginning

[ Reply to This | # ]

Beautiful, Crystal clear. Like a rapier.
Authored by: Anonymous on Tuesday, May 18 2004 @ 02:53 PM EDT
So many times I've read legalistic arguments (even decisions from the Supreme
Court of America), which appear to ignore the obvious, but concentrate on
whether a comma was in the right place.

Forget the innocence or guilt of the guy about to be executed, let's see if the
spelling was OK...

But this...This is a pure work of art. No bull, just a 'laser-guided missile'
straight to the target.

I'd love to print this and frame it. Maybe I'll put it with one of those $0.02
SCOX share certificates I'm hoping to buy.
Together, of course, with a SCO licence to use Linux

<snigger>

-Andy

[ Reply to This | # ]

IBM's Memorandum in Opposition to SCO's Motion to Amend the Scheduling Order
Authored by: Anonymous on Tuesday, May 18 2004 @ 03:01 PM EDT
I suppose that SCO gets to try to answer this.
Anyone know the current deadline for SCO's
reply?

[ Reply to This | # ]

No identification of System V
Authored by: Anonymous on Tuesday, May 18 2004 @ 03:05 PM EDT
"More than a year after it filed suit, however, despite repeated requests from IBM and in disregard of two Court orders, SCO still refuses to identify the specific code from UNIX System V that IBM is claimed to have misused, either in violation of IBM's licenses for UNIX System V with SCO's alleged predecessor-in-interest, AT&T, or the UNIX System V copyrights SCO claims to have been assigned."


This should not come as a surprise, as it was telegraphed by Chris Sontag's declaration.


Here is what SCO has identified in sequence:

1. In response to December 2003 court order:

(i) SCO identified lines of Linux which they think match parts of AIX and Dynix.

This is clearly stated in Tibbitt's January 2004 affidavit. Tibbitts even goes on to say that given more time, they think that they can find more lines of this type.

And, of course, it susquently emerged that this is all that they identified.


2. In response to March 2004 court order:

(i) SCO identified lines of Linux which they think match parts of AIX and Dynix.

(ii) SCO identified lines of AIX and Dynix which they think match System V

(iii) SCO do not attempt to make the lines in item (ii) match up to the lines in item (i). Instead they simply say the existence of (ii) implies that items of type (i) are derivative works of theirs (contrary to law of course).

This is made very clear in Chris Sontag's affidavit. He then goes on to say he may be able to identify more lines of types (i) and (ii), if given more time.

No where does Chris Sontag, say that the lines of type (i) match up to anything in System V.

No where does Chris Sontag, say that they ever expect to find lines of type (i) matching up to anything to System V.

By the way

- Of course all Chris Sontag's reasoning is contrary to the legal definitions of "derivative", "collective work" etc.

- It is also contrary to Darl's public statements, that SCO has identified direct copying by IBM and others. SCO have backed off this claim somewhat in public more recently, but there are numerous public statements which imply some degree of direct copying by IBM from System V and/or Unixware, into Linux.

[ Reply to This | # ]

millions of lines of code!
Authored by: ray08 on Tuesday, May 18 2004 @ 03:08 PM EDT
And they need more time in discovery?? I sure hope Judge Kimball blows right
past all this!

[ Reply to This | # ]

Red Hat new filings
Authored by: Anonymous on Tuesday, May 18 2004 @ 03:12 PM EDT
Repeated from last story, anybody in Delaware???

There are new filings in the Red Hat case, regarding Red Hat's motion to
reconsider. At least the SCO reply.

Anybody seen 'em? Any chance we could get em?

[ Reply to This | # ]

All the stalling is for Longhorn to get ready
Authored by: Anonymous on Tuesday, May 18 2004 @ 03:15 PM EDT
They'll drag this on till Longhorn gets ready.

I have always felt that was the real ulterior
motive behind the suit.

[ Reply to This | # ]

Malfeasance?
Authored by: overshoot on Tuesday, May 18 2004 @ 03:44 PM EDT
Did I read that right? Malfeasance?

Cravath, Swaine isn't loose with words. If all they wanted to do was point to SCOX' dilatory responses, they could have chosen lots of other words. Malfeasance goes a lot farther, it seems to me -- are they preparing the Court for inquiries into the conduct of parties acting as Officers of the Court?

[ Reply to This | # ]

IBM's Memorandum in Opposition to SCO's Motion to Amend the Scheduling Order
Authored by: Stoneshop on Tuesday, May 18 2004 @ 03:49 PM EDT
After the "Go ahead, make my day" memorandum, this is clearly the
"We'll call a spade a spade" memorandum.


---
Rik
IANALJLMOY


[ Reply to This | # ]

OT: Software patents!!
Authored by: Anonymous on Tuesday, May 18 2004 @ 03:55 PM EDT
Important!!

According to OSnews, EU approved the Software Patent changes.

http://www.osnews.com/comment.php?news_id=7083

Unbelievable...

[ Reply to This | # ]

Change of heart
Authored by: GLJason on Tuesday, May 18 2004 @ 04:00 PM EDT
Here are some quotes from an interview.
So what are you going to do in the meantime? Are you just going to wait?
Well, not necessarily. We have been pretty assertive and pretty aggressive and we are going to continue that.
...
Now, by going into pre-discovery, we have strong enough claims. We'd be fine to go to court just on what we have before discovery.
Wouldn't you like to get this resolved quickly?
I would love to have this behind us and move on. IBM has put the brakes on to try and slow things down. And to the extent that it wants to do that, I am saying that we are prepared to go the distance on this. But I would prefer to get this resolved and move forward.
So he was saying two things:
  1. We have all the evidence we need for trial now in pre-discovery
  2. We want to get this over with and move forward
And now SCO is saying two different things:
  1. We don't have any evidence because the 850,000 documents IBM gave us in discovery including everything we asked for that the court thought we were entitled to isn't enough
  2. We want this case to drag out another year

[ Reply to This | # ]

SCO can't count
Authored by: Anonymous on Tuesday, May 18 2004 @ 04:12 PM EDT
SCO asserts in its brief (at 4) that the Court stayed discovery for "over four months". The Court's stay lasted from December 5, 2003 until March 3, 2004.


5 December to 5 January = 1 month
5 December to 5 Feburary = 2 month
5 December to 5 March = 3 months

5 December to 3 March = almost 3 months.

Not "over 4 months".

I guess this must be a non-literal "over 4 months"

[ Reply to This | # ]

Big Mouth
Authored by: mobrien_12 on Tuesday, May 18 2004 @ 04:16 PM EDT
It's nice to see all SCO's ridiculous claims being used against them. Even
better is the fact that SCO is now contradicting statements made at the
beginning of its jihad (we need more time vs. we could go to court with
everything we have before discovery).

[ Reply to This | # ]

OT - The Novell case
Authored by: blacklight on Tuesday, May 18 2004 @ 04:24 PM EDT
It just occurred to me:

(1) On one hand, SCOG is asserting in its motion to remand that Novell
repeatedly admitted that SCOG is entitled to receive all copyrights;

(2) On the other hand, SCOG attaches Novell's press release which includes the
infamous qualifier "it appears" as evidence.

If Novell repeatedly admitted that SCOG is entitled to the copyrights, and SCOG
choose to enter just one piece of evidence, then it follows that SCOG would put
its best foot forward and give to the court the best evidence that it's got. My
contention is that the Novell press release, complete with its "it
appears" qualifier is the best evidence that SCOG has. My presumption,
given how weak that evidence is, is that the Novell press release is the only
"evidence" that SCOG has. And if SCOG does not have anything else,
then it follows that SCOG's assertion that Novell repeatedly admitted to
anything is, to put it bluntly, an outright lie.

Ain't I glad that my wonderful late mom taught me how to think.

[ Reply to This | # ]

IBM lawyers are human
Authored by: bruzie on Tuesday, May 18 2004 @ 04:38 PM EDT

There is proof that they are indeed, human.

In footnote 9, they say:

"...expert discovery to end in December 2004, and dispositive motions due no later than January 2004, the parties..."

Of course it should be January 2005 and who can blame them. It's the first time (that I can recall) I've seen a mistake in an IBM filing, maybe I'm just used to seeing all the mistakes in the SCO filings which you even get to see in the IBM motions:

Footnote 7: SCO asserts in its brief (at 4) that the Court stayed discovery for "over four months". The Courts stay lasted from December 5, 2003 until March 3, 2004.

By my rudimentary calculations, that's two days shy of three months, even if you consider that February has less days than a standard month (even if it's a leap year).

[ Reply to This | # ]

SCO will appeal, no matter what
Authored by: Anonymous on Tuesday, May 18 2004 @ 05:55 PM EDT

SCO didn't hesitate to bring a frivolous lawsuit to start with. Surely no one
thinks SCO will hesitate to file an equally frivolous appeal. These people have
no conscience.

[ Reply to This | # ]

Foul !
Authored by: Anonymous on Tuesday, May 18 2004 @ 06:51 PM EDT
IBM's lawyers are using TSCOG's press releases and previous filings against
them. I don't think it has been read to TSCOG that "Anything they say can
be used against them in a court of law", so that it should not be allowed
to use TSCOG's declarations.

IBM's lawyers are using facts. TSCOG is one of the top 100 most influent IT
companies. You do not influence well with facts. You influence better with
allegations, doublespeak, large use of "probably", so that facts
should not be used against TSCOG.

Loïc

[ Reply to This | # ]

  • Spelling - Authored by: Jude on Tuesday, May 18 2004 @ 07:05 PM EDT
    • Spelling - Authored by: Anonymous on Tuesday, May 18 2004 @ 07:22 PM EDT
    • Spelling - Authored by: Stoneshop on Wednesday, May 19 2004 @ 08:20 AM EDT
  • Foul ! - Authored by: Anonymous on Tuesday, May 18 2004 @ 08:13 PM EDT
  • Old TV Shows - Authored by: Weeble on Tuesday, May 18 2004 @ 09:54 PM EDT
Broken into bits
Authored by: darkonc on Tuesday, May 18 2004 @ 06:52 PM EDT
http://groklaw.bcgreen.com/ SCO/IBM/IBM-148 contains the response broken into PNG and pbm pages ... for transcription or just easier viewing without xpdf.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

way OT(humour): Possible Linux terrorist attack?
Authored by: Anonymous on Tuesday, May 18 2004 @ 07:49 PM EDT
hmm... sounds like the work of Linux zealots to me...

[ Reply to This | # ]

OT: We lost the fight in Europe..
Authored by: Anonymous on Tuesday, May 18 2004 @ 08:01 PM EDT
http://osdir.com/modules.php?op=modload&name=News&file=article&sid=7
92

[ Reply to This | # ]

OT Interesting read in Business 2.0 this month
Authored by: BigTex on Tuesday, May 18 2004 @ 08:18 PM EDT
http://www.business2.com/b2/web/articles/0,17863,611822,00.html

[ Reply to This | # ]

How would possibly affected third parties file with the court?
Authored by: scarbrowed on Tuesday, May 18 2004 @ 08:18 PM EDT
Reading about SCO's delaying tactics made me think of something. It seems to me
the longer the case is delayed, the greater the business risk to those parties
who recieved a threatening letter from SCO. Do those people have a stake here?
And what would be the proper way for them to express that to the court? (I've
heard the term amicus brief, but I'm not sure if it applies here.)

And most importantly, if such a filing was legal, would a large number of them
be helpful to IBM's case, or just a distraction? I know if I had recieved a SCO
letter, I would want to help.

[ Reply to This | # ]

OT: FUD or stupidity on a Linux site?
Authored by: m_si_M on Tuesday, May 18 2004 @ 08:23 PM EDT
The reputation of LinuxInsider is questionable, at least in the view of full
hearted Open Source activists. I admit I visit the site from time to time,
because it's, well, interesting. But reading this sentence in an article
headlined "Commercial Linux" made me angry, no matter how much I agree
for the rest:

"In the minds of open source zealots, it's absurd to pay for an operating
system."

Hugh? I *bought* my Linux-Boxes, and I *bought* a copy of current StarOffice. Of
course I could build Linux and applications from scratch if I had the time to do
so, but I haven't. So I pay Mandrake, SuSE or Sun (!) to do so for me. That's
exactly the way to generate profit from FOSS.

Why don't even sites dedicated to Linux understand?

Here's the link (I like plain old text):

http://www.linuxinsider.com/story/developer/33816.html



---
C.S.

[ Reply to This | # ]

SCO's math
Authored by: Anonymous on Tuesday, May 18 2004 @ 10:33 PM EDT
So SCO wants damages of $50 billion = $50,000,000,000,000?

With that kind of money at stake, they should definitely show the code. And if
they don't, I say we should vote them off the island.

[ Reply to This | # ]

OT IF You own
Authored by: bsm2003 on Tuesday, May 18 2004 @ 10:59 PM EDT
a Cisco IOS firmware router then you might want to read this

If only Cisco code had been open source

[ Reply to This | # ]

WTH is The SCO Group Thinking?
Authored by: jkondis on Tuesday, May 18 2004 @ 11:03 PM EDT
The SCO Group *cannot* be that surprised at this memorandum. They must have
been expecting it since they pretty much set up the wires they are now tripping
over (dragging out the legal process in an obvious fashion, blabbering *all*
over the press about their extortionate claims, badmouthing IBM at every
crossing).

OK, so The SCO Group, M$FT, and Boies are *evil*, but they can't be stupid
enough that they didn't see this coming. IMO only one of the following is
possible:

1) They fully expect to lose as badly as it looks like they're going to lose.
In this case they may be risking jail time, fines, civil penalties, etc. This
is consistent with them simply (suicidally) serving their M$FT puppetmasters.
2) They think they have some kind of WMD "secret" evidence. This
might be consistent with their desires for huge discovery delays. (Of course,
the idea that they would want damages is very *inconsistent* with their
delays.)

If it's #1, I'm OK with that. But if it's not, what might they possibly think
they have up their sleeve? Surely not trade secrets. Surely not patents or
purchase agreements or side letters. (Who cares about copyrights - that is
there only because IBM didn't destroy AIX at The SCO Group's whim.) What are
they thinking???

---
Don't steal. Microsoft hates competition.

[ Reply to This | # ]

Disregard of two Court orders - Legal?
Authored by: Marc Nadeau on Tuesday, May 18 2004 @ 11:30 PM EDT
"More than a year after it filed suit, however, despite repeated requests
from IBM and in disregard of two Court orders, SCO still refuses to identify the
specific code from UNIX System V that IBM is claimed to have misused...."

I don't know well the United States system, but here in Canada i'm quite sure
somebody would be penalised (if not jailed) for disregarding Court orders like
sco does. It's just insulting the Court and saying the judge 'I don't care about
what you say.'

You're the lucky one if the judge decides to forgive the first time; but
twice...


What does the word 'order' means if one just decides not to obey without
undergoing a penalty?

[ Reply to This | # ]

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