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SCO and IBM Argue Over Deposition Dates
Saturday, June 05 2004 @ 05:22 AM EDT

Lots of activity in Pacer-land. First, there is a SCO Reply Memorandum in Support of its Motion to Amend the Scheduling Order, then there is SCO's Expedited Motion and Memorandum For a Protective Order, which is their request to delay the BayStar and three other depositions, and then there are two orders granting applications by two more Boies Schiller attorneys David S. Stone and Michael Macmanus so they can be added to the SCO legal team, and then there is IBM's memorandum in opposition to SCO's attempt to get the court to change the deposition dates, Defendant/Counterclaim-Plaintiff IBM's Memorandum in Opposition to SCO's Expedited Motion For Protective Order. I have only glanced at them to see what they are, so we can read them together.


  


SCO and IBM Argue Over Deposition Dates | 228 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: Anonymous on Saturday, June 05 2004 @ 06:23 AM EDT
For easy access to the corrections needed for such a long article.

Loïc

[ Reply to This | # ]

Links and offtopic discussions here.
Authored by: Anonymous on Saturday, June 05 2004 @ 06:25 AM EDT
With possibly clickable links for those without middle button.

Loïc

[ Reply to This | # ]

They are burnt
Authored by: Anonymous on Saturday, June 05 2004 @ 06:45 AM EDT
I think nobody had any doubt. Anyway, p 9-10 of "SCO Reply Memorandum in Support of its Motion to Amend the Scheduling Order"
According to IBM (...) "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...." (See IBM Br. at 2-3, 11). IBM's invective is inaccurate. SCO has in fact provided voluminous materials to IBM showing the precise restricted code that IBM took from AIX and Dynix and contributed to Linux in violation of its contractual promises. (more follows in the footnote)
They should have noticed by now that there was a request for SysV code, not for AIX or Dynix code...

I suspect that this will boil down to what code is restricted.

Loïc

[ Reply to This | # ]

Opposition Depositions ??
Authored by: jog on Saturday, June 05 2004 @ 07:05 AM EDT
Is the council for one party due (legally) anything more
than a transcript of a deposition taken by opposing council?
jog

[ Reply to This | # ]

SCO and IBM Argue Over Deposition Dates
Authored by: jmc on Saturday, June 05 2004 @ 07:11 AM EDT
I bet Judge Wells wishes she hadn't made the "good faith" comment
which SCO quotes so much in their reply on the rescheduling question.

[ Reply to This | # ]

SCO and IBM Argue Over Deposition Dates
Authored by: Anonymous on Saturday, June 05 2004 @ 07:44 AM EDT
SCO also make the "we must have bought something" argument in a brnad
new way: "IBM bought a license from us, it must give us more rights than
mere copyright law."

[ Reply to This | # ]

Redhat will LOVE this!
Authored by: Cal on Saturday, June 05 2004 @ 07:55 AM EDT

I refer to footnote 20 of the REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO AMEND THE SCHEDULING ORDER, where TSCOG states

"It (TSCOG) has sued IBM because of facts specific to IBM, not because of facts IBM shares in common with countless other entities."

I'm sure that this will make Redhat's day, as this is talking about counterclaim 10 which TSCOG gives as a good reason to stay the Redhat case.

[ Reply to This | # ]

SCO and IBM Argue Over Deposition Dates
Authored by: Anonymous on Saturday, June 05 2004 @ 07:59 AM EDT
The Reply Memorandum in Support of its Motion to Amend the Scheduling Order
must have been written by someone who hopes no one was paying attention to
reality for about the last year.If it wasnt a Motion I would have belived it to
be written as high comedy, a spoof on reality.

[ Reply to This | # ]

Who is presupposing - SCO or IBM?
Authored by: Anonymous on Saturday, June 05 2004 @ 08:18 AM EDT
In the Expedited Motion and Memorandum for a Protective Order, SCO states as reason 1 of their 4 reasons that ...
In declining to reschedule the four depositions, IBM presupposes that the court will not amend the scheduling order.
Pardon me for being slow or something, but isn't that EXACTLY what you are supposed to do? Unless and until the court actually does amend the scheduling order, the current scheduling order remains in force and IBM surely has every right - and in fact is obliged - to proceed on that basis.

In fact it looks to me like it is SCO who are doing all the serious presupposing here. They are presupposing that the court is going to grant their rather hopeful motion to reschedule everything to a much later date. They seem to be suggesting that the mere existence of a motion to reschedule is sufficient reason to reschedule.

[ Reply to This | # ]

Delay,Delay,Delay, SCO.... I dont see any diffrence Do You?
Authored by: Anonymous on Saturday, June 05 2004 @ 08:21 AM EDT
There seems to be a theme here :) Even a blind man could see it.

[ Reply to This | # ]

Reply Memorandum in Support of its Motion to Amend the Scheduling Order - Text
Authored by: fjaffe on Saturday, June 05 2004 @ 08:23 AM EDT
I've converted this document to text. I could use some help with proof reading
and HTML formatting. Reply to this is you will help, and let me know how to
contact you.

Thanks!

[ Reply to This | # ]

SCO and IBM Argue Over Deposition Dates
Authored by: Steve Martin on Saturday, June 05 2004 @ 08:52 AM EDT

"One of SCO's core claims is that IBM breached its license agreements when it contributed restricted AIX and Dynix source code to Linux. Without access to this source code, SCO would have to rely on nothing more than IBM's public pronouncements that it had contributed AIX and Dynix source code to Linux -- statements that SCO had access to before filing this case and which supplied a basis for institution of this action."

Waitaminnit... do my eyes deceive me?? Is this an explicit admission by TSG in a Court filing that they had no evidence in hand of any infringing code when they filed this case?? It's all based on IBM's press releases?? That's what started TSG down this path?? And they admit it??

"IBM, of course, would certainly contend that such statements, without more, were insufficient as proof of its breach of agreement. Production of this source code will enable SCO to identify the specific files and lines of AIX and Dynix that IBM contributed to Linux and to continue the complex and technically demanding analysis necessary to identify all of the instances of IBM's irrefutable copying from AIX and Dynix into Linux."

In other words, I'm right... they are admitting that they don't have any evidence, never had any evidence, and need all of IBM's source code in order to go on a fishing trip for something, anything to substantiate their claims!

Pardon me while I go stick my head in a bucket of water to clear it; my mind refuses to wrap around this.

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

Messrs. Frasure and Wilson, are former employees of AT&T
Authored by: Anonymous on Saturday, June 05 2004 @ 09:29 AM EDT
Two of the witnesses were scheduled next week, Messrs. Frasure and Wilson, are former employees of AT&T

I suspect that Messrs Fraser and Wilson of AT&T will be confirming that AT&T never intended to claim that they owned the rights to IBM's code, and that IBM are free to do as they will with their own code.

Of course this testimony will kill the SCO "IBM breached its license agreements when it contributed restricted AIX and Dynix source code to Linux." claim and the strange derivative works theory. I look forward to the transcript of their testimony.

Perhaps IBM will move to dismiss the breach of contract claim once former AT&T employees have clarified the position of AT&T with respect to section 2.01 of the contract as amended by agreement X, the side letter, and the $echo clarification.

[ Reply to This | # ]

So how did they terminate IBM's irrevocable license?
Authored by: Anonymous on Saturday, June 05 2004 @ 09:52 AM EDT
SCO purports to have terminated IBM's irrevocable AT&T license
(notwithstanding it's expressly irrevocable, Novell's waiver, etc.)

It now seems their entire case (IBM-167 see comments above as well) is built on
some public statements by IBM that they didn't like...

So on what basis did SCO purport to terminate IBM's license?

Can somebody please point me to the term in the AT&T agreements which says
"if you say something we don't like, we can terminate your irrevocable
license" (joke, I know there isn't one)

[ Reply to This | # ]

A Couple of trivial points.
Authored by: tintak on Saturday, June 05 2004 @ 10:02 AM EDT
Re: Bleep. I think we need to find a rock solid source of what Bleep said, and
to whom he said it.

Footnote 20: SCOG told the court that IBM's statements "implicate every
single user of Linux" Implicate them in what... IBM's alleged breach of
AT&T's contract? How does that work?

---
Darl's folly.
"Somebody said it couldn't be done, and he knew it. So he tackled this thing
that couldn't be done,... and he found that he couldn't do it!"

[ Reply to This | # ]

Two things, Baystar question and this well written reply.
Authored by: BlueSmurf on Saturday, June 05 2004 @ 10:12 AM EDT
From IBM's reply to SCO's third argument:
The final deponent, BayStar, is an investor in SCO, wholly unrelated to IBM, and that deposition apparently will not go forward.

Does this mean that Baystar will NEVER be depositioned, because of SCO's buy back, or is IBM stating that that deposition has been postponed indefinately?

--------------------------------------------------

Fr om IBM's reply to SCO's first argument:
Indeed, we would expect that if these depositions are continued, SCO will argue next week that there are now even more depositions that need to be completed within the time remaining. As SCO concedes in its memorandum, IBM noticed the depositions "to comply with the...Scheduling Order." (SCO Mem. at 2.)
ZING! IBM sees that if they allow SCO to postpone these depositions, then SCO's next claim will be that there are now even more depositions to be done in the alloted time, and therefore their request for scheduling delays SHOULD be granted, as they obviously have sooooooooo much more work to do. IBM is now pointing out SCO's next delay tactic to the judge. Thanks IBM.

[ Reply to This | # ]

Depositions fatal to SCO
Authored by: Anonymous on Saturday, June 05 2004 @ 10:25 AM EDT
Two of these depositions appear to be fatal to SCO, so it is only to be
expected, despicable as it is, that they will resist or try to delay them at
every turn.

IBM indicates in their summary judgement motion on 10th counterclaim (non
infringement of copyrights with respect to Linux), that they intend to move to
summary judgement on contract issues and possibly other issues at an
"appropriate time"

We know very well what Otis Wilson will say. He was the director of licensing
at AT&T and his deposition to the BSD case is available online.

In short he will say "what's mine is mine, what's yours is yours" (I
believe he used almost this exact phrase in 199X), and that AT&T made no
claim to licensee's own code.

Once they have this on the record for this case, IBM can use in a future partial
summary judgement motion on SCO's contract claims. This future motion will be
most likely IMHO be predicated on

(1) IBM haven't disposed of SCO/AT&T code (from result summary judgement on
IBM's 10th counterclaim)

(2) AT&T and SCO (even if SCO is AT&T's successor), do not have any
legitimate claims on IBM's own code (from the plain text of the agreements, plus
Otis Wilson's new deposition).

Even if IBM do not move for summary judgement on SCO's contract claim
imminently, Otis Wilson's deposition will blow SCO's discovery theories out of
the water.


Next we get to BayStar

Once IBM have established that AIX and Linux are fine, BayStar's deposition will
presumably be used to bring SCO's false accusations about tese to the court,
perhaps in summary judgement on IBM's Lanham Act counterclaim.

[ Reply to This | # ]

SCO and IBM Argue Over Deposition Dates
Authored by: RK on Saturday, June 05 2004 @ 11:00 AM EDT
This bit from SCO's memorandum in support of its motion to amend the scheduling
order:

"As a result, as of March 3, 2004, when Magistrate Wells granted SCO’s
motion to compel…"

Did Magistrate Wells actually grent their motion to compel or did they just make
that up?

As far as I remember all she did was to lift the stay on discovery and confirm
that IBM were to provide the code that they'd already stated they'd be willing
to, not the stuff SCO was asking they be compelled to provide.

Did she (perhaps in some technical sense) grant their motion or are SCO's
lawyers actually lying about that?

[ Reply to This | # ]

SCO's new delaying tactic
Authored by: Anonymous on Saturday, June 05 2004 @ 11:42 AM EDT

I don't know why, but this smacks of


printf("please delay
these depositions until you determine the new scheduling order");

if
(delayed)
{   printf("since the schedule was delayed, the depositions can be
delayed more");
};

else
{   printf("Oh no, since the depositions were delayed,
there is not enough time to get them done under the current schedule; please
reconsider the schedule delay");
};

[ Reply to This | # ]

MischaracterizationS
Authored by: coffee17 on Saturday, June 05 2004 @ 11:42 AM EDT
The SCO Group (TSG) claimed to need to fix Mischaracterizations that IBM made about TSG's execs. However, when I read the motion while they addressed Blepp's statement, they didn't address the many Darl and Sontag's statement's about having enough proof even before trial. And even more bizarrely, Blepp was brought up in the cross motion for PSJ; why address this in the scheduling order? Oh, because this was one paragraph buys them an extra 10 pages.

[ Reply to This | # ]

Two other SCOflaws
Authored by: Anonymous on Saturday, June 05 2004 @ 12:06 PM EDT
Two other SCOflaws (pronounced similarly to Guffaws)

1. SCO asserts that IBM's request for SCO to give the history of 240,000 lines
at 10 minutes per line would take 20 person years, and therefore should delay
the case, shouldn't happen or something

Which 240,000 would those be?

I think it's clearly Exhibit 28-G from 157. This is 240,000 lines, and it's the
only thing which is 240,000

This is the code in Linux (Lis2.15, LinuxABI, etc.) that SCO claims rights to.

Well I guess, if you accept the SCO theory, the court will just have to accept
that the lines belong to SCO, simply because SCO says they do

Please remember (see comments on LiS in discussion relating to Todd S.M
affidiavit), this includes such obvious intellectual property violations as

(i) Blank lines
(ii) Files containing no code
(iii) Files which consist entirely of comment (including comments about Red
Hat)
(iv) Copies of the GPL in comments
(v) Obvious violations such as "(C)1991, 1992 Linus Torvalds"


2. SCO asserts (in IBM-167) because IBM has license SCO must have broader rights
than under copyright, including to IBM code. They say if there was no license,
then their claim would be limited to literal copying under copyright theories.

Hello!

This seems (a) a concession that they have no evidence of copyright violations
by IBM - can we please have the summary judgement on IBM's 10th counterclaim now
please

This ignores (b) if IBM did not have a license, IBM would not able to use
AT&T code in AIX or Dynix. IBM needed a license for this. The question of
whether IBM's licensees somehow gives rights to SCO over non-AT&T IBM-only
code is entirely separate.


Summary: What a bunch of loons

[ Reply to This | # ]

SCO's 20 page paper was for what?
Authored by: Anonymous on Saturday, June 05 2004 @ 12:41 PM EDT
As I recall SCO needed to write a 20 page paper largely because IBM mischarized
SCO. In the entire 20 page document I found only one public statement that was
answered. I think the that the 20 page request was nothing more than to put in
the judges mind that IBM misharacterized SCO. It was a pretty smart trick. The
judge gets the message of the document without even reading it.

[ Reply to This | # ]

SCO and IBM Argue Over Deposition Dates
Authored by: archivist on Saturday, June 05 2004 @ 02:15 PM EDT
On the second page of the Reply Memorandum in Support of its Motion to Amend the Scheduling Order, in the foot note, they state that IBM licensed from SCOG's predecessor.
This is not true as it was from ATT&T.
Such falsehoods are a damning expose of SCOG and its lawyers.

[ Reply to This | # ]

Mousetrapped
Authored by: codswallop on Saturday, June 05 2004 @ 02:27 PM EDT
It looks like IBM's strategy is working. They've gotten SCO to explicitly state
their theories again and to make the scheduling depend on them. Gradually their
entire case is hanging by this one thread.

I expect that IBM will ask for declarative and summary judgement on the issue
and argue that the scheduling motion be dismissed without prejudice, since it
would depend on the contract interpretation.

Otherwise, even with SCO's requested extension, there's no way they could
complete the discovery they say they require.

What would be nice, would be some case law about the extent to which a party's
case theories have to be honored in discovery and what the remedies are to
prevent using weird theories to extend discovery in unreasonable ways. There
have to be ways to limit the process, or plaintiffs will start using this
technique for fishing expeditions.

[ Reply to This | # ]

SCO's Case Goes *Poof*
Authored by: Anonymous on Saturday, June 05 2004 @ 03:17 PM EDT
Doh! After everything Darl and the Gang have said now they tell us this:
"IBM has substantially delayed production of its AIX and Dynix code, which
is the heart of this case. One of SCO's core claims is that IBM breached its
license agreements when it contributed restricted AIX and Dynix code to Linux.
Without access to the source code, SCO would have to rely on nothing more than
IBM's public pronouncements that it had contributed AIX and Dynix source code to
Linux - statements that SCO had access to before filing this case and which
supplied a basis for this action."

Also a real a good one:
"IBM entered into a contract, i.e., a license"

Thanks for clearing all this up SCO. Despite having said that you had all those
lines of code as evidence now you say it was all because of some statement that
was supposedly made (but not quoted by you) and you're trying to completely blur
the difference between contract law and copyright law.

[ Reply to This | # ]

SCO and IBM Argue Over Deposition Dates
Authored by: sleadley on Saturday, June 05 2004 @ 03:49 PM EDT
Wow. I just read the SCOundrels "Reply Memorandum in Support of its Motion
to Amend the Scheduling Order." They finally figured out that they're
trapped in a corner and like a rabid animal have gone into full Exorcist mode,
complete with spinning heads and projectile vomit.

---
Scott Leadley

[ Reply to This | # ]

SCO and IBM Argue Over Deposition Dates
Authored by: bobn on Saturday, June 05 2004 @ 03:59 PM EDT
glad to see IBM pushing ahead with the depositions of the folks regarding the meaning of the license re: "wht's ours is ours and what's yours is yours". Can they post these depositions as soon as they are taken?

---
IRC: irc://irc.fdfnet.net/groklaw
the groklaw channels in IRC are not affiliated with, and not endorsed by, either GrokLaw.net or PJ.

[ Reply to This | # ]

The Motion to Amend Scheduling Order [Delay] - Recasting History
Authored by: webster on Saturday, June 05 2004 @ 04:57 PM EDT
There are pitfalls in the whole hog exercise of the adversary process. It is
proper to claim that reality is on your side, but in recounting it you run the
risk of trying to change it.

This stuff is written as if it presumes the judges, Wells and Kimball, weren't
there taking part in what has gone on so far. They have been working together
managing this case. Together they have been calling the shots. SCO lost the
'who goes first' argument before these judges. To turn around and twist this
into IBM delay just doesn't fit the facts and legal arguments explored so far.
They have probably given up on these judges and are not so worried about
insulting their intelligence.

They are also going for "truckload persuasion.' If they can pile up every
bit of derivative code from every version of AIX and Dynix ever altered, they
can point to all this repetitive, redundant, cumulative pile and say how naughty
IBM is for stealing so much. It will amount to more code than exists in Sys V.
This despite the same "derivations" surviving through various
versions. To the sympathetic ear, the sheer volume will help overcome the
feeble derivative premise.

But we are only talking about more time here. And ultimately the only thing
that matters here is money. If the parties can't work it out, the earth won't
move until the court let's it. They might have been able to get a delay with
just their last argument, "It's more work that we thought and we need more
time." Throwing in their revisionist histories may have offended the court
and jeopardized their request.

---
webster

[ Reply to This | # ]

IBM's interrogatories 15 and 16
Authored by: Anonymous on Saturday, June 05 2004 @ 06:09 PM EDT
There is a nice footnote (no 17) on page 13 of SCO's memorandum:

IBM's multipart interrogatory nos. 15 & 16 would require SCO to provide the genealogy - over a 20 year period - for each of over 240000 lines of source-code on a line-by-line basis. At 10 minutes per line, it would take someone over 20 years to respond to these two interrogatories

I can't find these interrogatories yet on groklaw, but I assume that IBM wants SCO to prove the derivation of the lines put into Linux from the lines in System V (via AIX or Dynix).

Under that assumption, SCO is probably right that this is an herculean task, but if they are not prepared to do it, why have they filed their lawsuit in the first place? Did they hope that IBM would do that work and prove that they are guilty? Or maybe the judge? Or the tooth fairy?

Or do they hust propose to extend the schedule for some 20 years?

If you cannot prove your case (in a reasonable time), you have no case (nothing new here, but it's strange seeing them admit it).

TToni

[ Reply to This | # ]

Brown deposits
Authored by: geoff lane on Saturday, June 05 2004 @ 06:21 PM EDT
If you go over to http://www.adti.net/samizdat/brown.reply.june.04.html
the page now has a further link to another page when you can answer the question
"Have you identified any mis-statements of fact in Kenneth Brown's research
paper, "Samizdat"?"

Now I haven't seen the final copy of the "book" so cannot enter any
mis-statements, but others may have. But then again many may not wish to act as
unpaid researchers for a bunch of fudsters.

(Please don't linkify the URL above - we don't want to bother their exhausted
web server too much.)

[ Reply to This | # ]

SCO and IBM Argue Over Deposition Dates
Authored by: SoundChaser on Saturday, June 05 2004 @ 08:30 PM EDT
I noticed that SCO's Expedited Motion and Memorandum for a Protective Order requested Judge Welles to rule by Friday. By the fact that we haven't seen a ruling leads me to think that Welles does have a sense of humor and was laughing too hard.

[ Reply to This | # ]

Bad News on the cse law front
Authored by: codswallop on Saturday, June 05 2004 @ 08:58 PM EDT
There doesn't seem to be any direct way to limit SCO's discovery, if it's based on an even vaguely plausible theory. This is from HICKMAN v. TAYLOR, 329 U.S. 495 (1947), which appears to still be the controlling case, and you could argue that the relevant section is dicta.
We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case. 8 Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise. But discovery, like all matters of procedure, has ultimate and necessary boundaries. As indicated by Rules 30(b) and (d) and 31(d), limitations inevitably arise when it can be shown [329 U.S. 495, 508] that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person subject to the inquiry. And as Rule 26(b) provides, further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.
Irrelevant and bad faith seem to be a hard standards to meet.

So where does this leave IBM? The one surefire way to block a line of discovery, is to have the underlying clain stricken. If the court rules against SCO's theory of the contract, there's no need for AIX discovery. Since this could be protracted, killing it off is very desirable. SCO are talking about reviewing billions of lines of code. If they're allowed this discovery, they're entitled to the delay. Denying it would probably be reversed on appeal, as would arbitrarily blocking this line of discovery. SCO can't ask for anything unreasonably burdensome, but this is also a high standard. They'd probably just be asked to pay what it cost.

This makes it very likely that IBM will challenge the contract theory at the earliest opportunity. This would be the first point at which there are no longer any issues of fact and the theory is clear enough to attack the claims. The claims are what have to restricted or stricken to block discovery. First IBM would procede as with claim 10, and then use the ruling to move for claims to be stricken or modified and finally for discovery to be denied for the stricken claims. This process seems to be the best and quickest way!

Probably to keep the case going, SCO would be allowed discovery until the motion was decided. If they lost, they'd have to hold to the original schedule.

Since IBM pretty much said this was what they planned in their memorandum in opposition, I think it's just a question of making sure the issue is ripe for summary judgement.

I think one of the reasons SCO are finally advancing their theory clearly, is to block the charge of it being irrelevant. If it's incomprehensible, it can't be relevant.

[ Reply to This | # ]

SCO and IBM Argue Over Deposition Dates
Authored by: odysseus on Saturday, June 05 2004 @ 10:51 PM EDT
Seems to me the 2 new SCO counsel have brought a higher
level of lawyering to their submissions. Reading them
without knowing the past history, they would seem to be
perfectly reasonable, lucid descriptions of nasty nasty
IBM's trickery against poor little SCO. We, of course,
know better, and in it's short reply to the deposition
motion, IBM rips their request to shreds with the truth
and clear simple logic (the 12 lawyers, 4 firms, and they
can't find someone to attend a deposition argument is a
beauty!).

John.

[ Reply to This | # ]

Timestamps
Authored by: bmcmahon on Sunday, June 06 2004 @ 03:05 AM EDT
I notice that, at the top of SCO's Expidited Motion and Memorandum for a Protective Order, the "filed on" stamp reads 3 Jun 04 at 4:49 pm.

IBM's memorandum in opposition is stamped as filed on 4 Jun 04 at 10:57 am.

Now, as a layman I simply assume that the date stamps bear at least some relationship to the times that the documents were actually filed. I welcome corrections.

But what we see is that SCOundrels file a document (advocating more dithering, and whining about having to keep track of more than one event per day), pretty darn near close of business (Utah time) on Thursday, and there is a blistering reply from IBM's team by late morning the following day.

Moreover, most of the reply memorandum is specifically related to SCO's original, so it's not as if the could have already had this pre-written and waiting to go (possibly in the same desk drawer with some of the yet-to- come motions for summary judgement), correct?

Is it just me, or does this small detail starkly illustrate the mismatch in legal firepower between the two sides?

[ Reply to This | # ]

  • Timestamps - Authored by: Anonymous on Sunday, June 06 2004 @ 04:43 AM EDT
  • Timestamps - Authored by: Anonymous on Sunday, June 06 2004 @ 09:27 AM EDT
SCO and IBM Argue Over Deposition Dates
Authored by: NastyGuns on Sunday, June 06 2004 @ 07:00 PM EDT

Starting at the bottom of page 5 of the Reply Memorandum In Support of its Motion to Amend the Scheduling Order it states:

SCO requested IBM to produce "all version or iterations of AIX and Dynix source code, modifications, methods and/or derivative works thereof" from 1999 to the present. [Footnote omitted. Emphasis mine.]

That would agree with their comments made in SCO's Memorandum in Opposition to IBM's 2nd Motion to Compel Discovery.

Yet on the top of page 12 of the Reply Memorandum In Support of its Motion to Amend the Scheduling Order they state the following:

Many of the discovery disputes in this case have arisen from this fundamental disagreement. SCO needs to inspect the versions of AIX and Dynix, (including logs) that have existed in any form during the period commencing in 1985 and continuing to the present to support the preparation of its jury case, to support alternative theories of liability, to rebut IBM's argument, and - in the first instance - to respond to IBM's discovery requests." [Footnote omitted. Emphasis mine.]

I'd like to know how it is possible in one instance to argue that they only need from 1999 forward to prove that there is some sorta infringement or wrong doing on IBM's part, yet later state they require from 1985 forward to support it's case.

Besides this being a screw up, the only thing I can even possibly think of why they would want all of this is because they want to try and find the earliest examples of IBM's work that was created and show how it "evolved" from their supposed IP. Barring the fact that it was most likely a clean-room implementation.

I understand in one instance they are referring to presenting their case, and in the other defending themselves from IBM's counterclaims. But the question I ask myself is, what would stop them from using documents produced in one instance for the other. There seems no reasonable way to keep that from happening when things are this joined together. Shouldn't IBM object to this? Which date is it? IANAL by any stretch of the meaning, but that just doesn't make sense. So maybe I'm just missing some critical link in logic. Whatever. To me, it's just another instance where one hand isn't talking to the other.

P.S. PJ, unless I am blind and have totally missed it somehow, do you intend to put the Reply up as searchable text? Or maybe I'm just ahead of myself.

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

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