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SCO Loses Motion to Bifurcate - SCO Motion to Delay Partly Denied, Partly Granted
Thursday, June 10 2004 @ 11:16 PM EDT

There is no moss growing on the Honorable Dale Kimball. Now comes word that SCO's Motion to Bifurcate the patent claims has also been denied without prejudice to renew after all dispositive motions have been decided. That is what IBM said made sense to do, wait until it is clear what is actually going to trial. Personally, I am guessing that would be nothing. What a waste of time it was to even bring this motion now. Perhaps that was the purpose.

On SCO's Motion to Amend the Scheduling Order, in which SCO asked for delays (not IBM, despite McBride's comments during the teleconference Thursday that it was IBM delaying), the judge said that because IBM's 14 counterclaims were added after the original scheduling order was set, and because he is denying SCO's motion to separate the patent claims, he is giving them a bit more time. He denies their motion in part, he says, and he grants it in part. And they got the judge's attention. He isn't going to grant any further delays, he says, noting that IBM has accused SCO of seeking delays in order to do FUD. This is the schedule and it's firm. No more horsing around.

Here is the judge's conclusion:

"Accordingly, IT IS HEREBY ORDERED that (1) SCO's Motion to Bifurcate is DENIED without prejudice to renew after all dispositive motions have been decided; and (2) SCO's Motion to Amend Schedling order is GRANTED in part and DENIED in part. As set forth above, the court has amended the Scheduling Order, although not to the extent requested by SCO."

The bottom line is that the trial has been pushed back from April of 2005 to September 30 of 2005, for the jury stuff, and the actual trial set to begin November 1, 2005.

Here is what SCO asked for in terms of delays:

  • fact discovery deadline changed to May 18, 2005
  • expert discovery deadline changed to July 15, 2005
  • deadline for filing dispositive motions changed to July 27, 2005
  • disclosure of 26(a)(3) materials changed to August 3, 2005
  • deadline for the special attorney conference and for the settlement conference changed to August 15, 2005
  • final pre-trial conference changed to approximately August 30, 2005
  • trial period should be changed to approximately September 15, 2005

Here is what the Judge is giving them instead:

  • fact discovery - Feb. 11, 2005
  • expert discovery - April 22, 2005
  • dispositive motions - May 20, 2005
  • Rule 26(a)(3) disclosures - Sept. 30, 2005
  • Sp. Atty conference & settlement conference - October 3, 2005
  • final pretrial conference - Oct. 10, 2005
  • exchange of proposed jury instructions - Sept. 30, 2005
  • filing of proposed jury instructions - Oct. 10, 2005
  • 5-week jury trial - Nov. 1, 2005

And here, and on Pacer, is the original schedule:

  • 08/04/04 - Fact Discovery cutoff
  • 10/22/04 - Expert Discovery cutoff
  • Deadline for filing of all motions 11/10/04 ;
  • Attorney Conference by 3/11/05 ;
  • Final Pretrial Conference 3/28/05 ;
  • 5 Week Jury Trial 4/11/05

IBM prevailed on the motion that mattered, the bifurcation. As for a few months' delay, who cares? I seriously doubt that this case is ever going to reach a jury anyway at the rate things are now progressing. The delay potential was crucial in the area of discovery, because you don't do certain things until that is complete, and SCO did not achieve the delay it sought in that area.

All in all, a very pleasant and satisfying day. I hope this is all clear, and not filled with typos, because I am exhausted and putting my off-duty sign on this exact minute.


  


SCO Loses Motion to Bifurcate - SCO Motion to Delay Partly Denied, Partly Granted | 168 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here...please
Authored by: MikeA on Friday, June 11 2004 @ 12:54 AM EDT
..if there are any...

---
Change is merely the opportunity for improvement.

[ Reply to This | # ]

SCO Loses Motion to Bifurcate - SCO Motion to Delay Partly Denied, Partly Granted
Authored by: hbo on Friday, June 11 2004 @ 12:56 AM EDT
A well-earned rest, for sure.

The discovery delay means motions for summary judgement have to wait too, no?
What other end-game scenario is possible in SCO v. IBM? If Red Hat wins the
lifting of the stay in their suit, we could get resolution of the important
issue - that SCO as no enforcable IP in Linux - there. But otherwise, this seems
to mean that SCO can keep peddling their filth that much longer.

---
"Even if you are on the right track, you'll get run over if you just sit there"
- Will Rogers

[ Reply to This | # ]

If this is what it's like when we win....
Authored by: bobn on Friday, June 11 2004 @ 12:58 AM EDT
If this is what it's like when we win I do NOT want to even think what it's like when we lose. The trial is postponed *more* than SCO requested. an additional 4 to 6 months is added to discovery. How in the world is this a victory? I'd much rather have seen the patent issues broken off and the rest of the issues handled on the original schedule.

Just so you'll know where I'm coming from, this is months longer for TSG to make our lives miserable by FUDing the PHBs - of whom there are lots. I actually hear tell of lawyers where I work advocating no use of Open Source software.

This is really bad. This judge gave SCO more than it had any right to hope for.

---
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 | # ]

Other topics and links here please
Authored by: Anonymous on Friday, June 11 2004 @ 12:58 AM EDT

[ Reply to This | # ]

Off-duty
Authored by: mobrien_12 on Friday, June 11 2004 @ 01:26 AM EDT
"I hope this is all clear, and not filled with typos, because I am
exhausted and putting my off-duty sign on this exact minute."

I'm reminded of Lucy from Peanuts when she'd put up her little "doctor is
_out_" sign.

Anyway PJ, thanks very much. And don't worry, 'cause I think most of us are
pretty happy when you say you are going to sleep. :)

[ Reply to This | # ]

INAL, but... ....
Authored by: deported1 on Friday, June 11 2004 @ 01:30 AM EDT

Even with the added time, SCO has no chance in hell of winning.

All this means is that SCO will have more time to suffer and prepare it's chapter 11 case, which will eventually end with SCO being liquidated to pay the damages awarded to IBM in it's counter claims, plus the legal fees to all it's lawyers.

But we should also consider the following:

  • SCO's pain and suffering, is greater than the pain and suffering we sustain reading their FUD.
  • SCO will never see the a jury trial for their claims
  • Even if hell freezes over, pigs fly, and SCO wins it's case by the grace of God, the likely solution and judgement that I see being tossed around is a rewrite of the infinging code (of which SCO is failing to show us, or the court).
  • Finally, SCO stock prices will be below $3 a share by the year's end.

Thanks for hearing me out,

Francis Sager

PS I would like to thank PJ and those on the frontlines for their hard work to get us the news on this case in an expedited manner.

[ Reply to This | # ]

SCO Loses Motion to Bifurcate - SCO Motion to Delay Partly Denied, Partly Granted
Authored by: Anonymous on Friday, June 11 2004 @ 01:32 AM EDT
mmm a year added to discovery? This isn't a victory it's a joke. The case
should have been rolled out of court six months ago, and now we have 12 months
added on? The case should have been dismissed as SCO had NOT proven ownership
of Unix code. Pure and simple - that's to be decided in the SCO vs IBM case.
At the time that SCO took initial action against IBM they did not have total
proof that they owned this code, and therefore you can't sue someone for
something that you don't own. Only in America...

This coupled with torried efforts from the UPTO makes me worried - most
countries go along with whatever the US decides purely because of trade (or fear
of losing trade). As an example, Australia now has to behave to the DMCA filth.
What next?

Dave

[ Reply to This | # ]

Uh-oh, I just had a bad thought...
Authored by: Anonymous on Friday, June 11 2004 @ 01:49 AM EDT
SCO has got to be aware from this that they stand a good chance of getting a
ruling that the APA+amendments are NOT a valid 204(a) writing. Granted, the
trial is a long ways off, but they might even lose a motion for summary judgment
on the matter. If so, then there is legal notice that they DON'T own Unix, and
all their house of cards comes tumbling down.

Given that, might they intentionally do a poor job of re-pleading special
damages, in hopes that Judge Kimball will toss the slander-of-title claim on
that basis, leaving the question of whether copyright actually transferred
undecided?

They could achieve the same effect simply by withdrawing the suit, of course,
but they wouldn't get as much delay out of it. And if Novell -- intending to get
the copyright ownership question decided -- declined to move for dismissal, SCO
could always withdraw later.

Or maybe Judge Kimball will get so sick of the case that he'll dismiss the case
"sua sponte" on his own finding that the re-pled damages don't hack
it. (Can he do that?) (No, don't wake PJ to ask. Let her get some rest!)

It seems that Linux is important enough to Novell that it would be worth their
pursuing the question even with legal costs. Is there some point in a case where
the judge won't LET the plaintiff withdraw?

(I wouldn't mention any of this if I weren't certain the SCO Naz-nots were
already thinking about it....)

[ Reply to This | # ]

Extended Schedule
Authored by: Anonymous on Friday, June 11 2004 @ 02:25 AM EDT
Maybe this extended schedule is a way to get these other cases to go first. If
there can be a decision in Novell or Red Hat then that could affect the
complexity of the IBM trial considerably.

[ Reply to This | # ]

Fund for SCO to stay alive...
Authored by: tizan on Friday, June 11 2004 @ 02:34 AM EDT
Do we need to start a fund to keep SCO alive till jury trial ?

Joke apart don't you think that it would be good that SCO stay alive till we get
a
jury trial and it is made clear that they did wrong vis a vis the GPL and that
the GPL is affirmed as a legal and enforceable license.

But then wouldn't somebody else come along and try again to get GPL made
unlawful or equivalently?

---
tizan: What's the point of knowledge if you don't pass it on. Its like storing
all your data on a 1-bit write only memory !

[ Reply to This | # ]

SCO Loses Motion to Bifurcate - SCO Motion to Delay Partly Denied, Partly Granted
Authored by: Anonymous on Friday, June 11 2004 @ 03:25 AM EDT
The bottom line is that the trial has been pushed back from April of 2005 to September 30 of 2005, for the jury stuff, and the actual trial set to begin November 1, 2005.

It's irrelevant whether the trial is set for September 2005 or November 2005. SCO runs out of money not later than June 2005, unless Microsoft finds a way to transfer tens of millions of dollars to it. People have said a lot of things about Darl McBride, some of which may be true and some false, but there's one sure fact about Darl: he will not spend time on an activity unless he gets paid for it. Nor will the boatload of lawyers.

Look at their accounts, just divide their net assets by the rate at which they're losing money.

[ Reply to This | # ]

Time for disclosure of 26(a)(3) materials : 1 week -> 4 months!?
Authored by: futureweaver on Friday, June 11 2004 @ 04:09 AM EDT
The discrepancy in the time from "deadline for filing dispositive motions" to "disclosure of 26(a)(3) materials" is striking. The 26(a)(3) disclosures are the lists of witnesses, depositions, and exhibits that will be produced at trial. SCO asked for a week. The new Order gives over 4 months. This is why the discovery dates are earlier than SCO wanted, but the trial dates later. The original schedule had, doing a bit of interpolation, about 3 months.

Does anyone know why this is so? Was the compression of this part of the schedule some sort of tactic by SCO, in order to make their request look more reasonable, knowing the judge would have to put 3 or 4 months back in?

[ Reply to This | # ]

Opera or Konqueror
Authored by: Anonymous on Friday, June 11 2004 @ 06:29 AM EDT
Try Opera (for Windows _and_ Linux). Fast, elegant, reliable.

Konqueror also works very well, especially after the Safari code got integrated
in the 3.2 release. Kudos to Apple :)

Internet Explorer has had no significant development for 3 years. Soon any other
modern browser will be better than that resource hog.

[ Reply to This | # ]

SCO Loses Motion to Bifurcate - SCO Motion to Delay Partly Denied, Partly Granted
Authored by: Anonymous on Friday, June 11 2004 @ 09:50 AM EDT
It's always interesting when the party with the claim doesn't want to move
expeditiously forward, after all, it's their payday that's being delayed.

While on the surface this doesn't sound good, having the trial delayed another 6
months, it will now be harder for SCO to appeal on grounds that they were denied
fair opportunity for discovery. There's no way any judge is going to buy that
argument with this going on.

And I still don't think Kimball is going to force IBM to turn over any more than
they already have, no matyter what SCO says. The bottom line is there has to be
a valid justification *other* than SCO *thinks* IBM did something wrong to bring
a lawsuit, and so far we haven't gone beyond this.

Anywho, does anyone else think SCO's not going to last until trial date? $15
million this quarter out of their ~$38 million war chest. Two more quarters like
this last one and it's over. And who else is going to give them more money
(besides Microsoft)? They have just justified BayStar's complaints about how the
company is being run. Will Microsoft be so ballsy as to actually, directly,
publicly, give them money? Hmmmm.....

[ Reply to This | # ]

Granted time to SCO
Authored by: Anonymous on Friday, June 11 2004 @ 12:24 PM EDT
Granted time to SCO is rope to hang with. SCO has played the time game before
and produced nothing too. Judge seems to want to see where SCO will go this
time. Time is running out, SCO will have to provide evidence to keep this in
court.

[ Reply to This | # ]

SCO Loses Motion to Bifurcate - SCO Motion to Delay Partly Denied, Partly Granted
Authored by: Anonymous on Friday, June 11 2004 @ 01:31 PM EDT
We all have conspiracy theories...

Mine is this: Surely we should be able to read in all these delays the precise date of launch of MS Longhorn?

[ Reply to This | # ]
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