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SCO Asks to File Another Overlength Memo
Thursday, September 30 2004 @ 12:05 PM EDT

SCO has once again filed for permission to go on and on and on, and they have been granted permission to file an over-length 28-page Reply Memorandum in connection with their Expedited Motion regarding the "enforcement" of the scheduling order and their motion requesting a scheduling conference. So, we get to read more legalese from the SCO team. zzzzzz

First, the Ex Parte Motion. Then I will put up the order. I believe I have discerned their real strategy. Yes, it's "anywhere but here", as IBM attorney Evan Chesler put it at the September 15th hearing. But I detect a water-torture strategy as well. Drip, drip, drip, more memoranda, more motions, more words until we all wave our little white flags from the parapet and beg them to stop at any cost. One thing is for sure. They can't appeal on the grounds that they didn't get to tell the court every last thought they could possibly dream up.

*********************

Brent O. Hatch (5715)
Mark F. James (5295)
Mark R. Clements (7172)
HATCH, JAMES & DODGE
[address, phone, fax]

Robert Silver (admitted pro hac vice)
BOISE, SCHILLER & FLEXNER
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOISE, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

_________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


_________________

THE SCO GROUP, INC.

     Plaintiff/Counterclaim-
     Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

     Defendant/Counterclaim-
     Plaintiff.

_________________

EX PARTE MOTIONFOR LEAVE
TO FILE OVER-LENGTH REPLY MEMORANDUM

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge, Brooke Wells

_________________

Plaintiff/Counterclaim-Defendant The SCO Group ("SCO") hereby moves the Court pursuant to District Court Rule 7-l(e) for leave to file an overlength Consolidated Reply Memorandum in Further Support of SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order and Emergency Motion for a Scheduling Conference. SCO's Reply Memorandum addresses in one memorandum SCO's Reply in support of its two separate motions.

As SCO must address multiple issues and must place complex issues in context for the Court, SCO respectfully requests leave to file an over-length memorandum. SCO's Memorandum now contains approximately a total of 28 pages. SCO has endeavored to be as concise as possible, but respectfully submits that the excess length is necessary to fully address the issues.

DATED this 24th day of September, 2004
     
     ___[signature]___
    HATCh, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER
Robert Silver, Esq. (admitted pro hac vice)
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)

Attorneys for The SCO Group, Inc.


CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, hereby certifies that a true and correct copy of EX PARTE MOTION FOR LEAVE TO FILEOVERLENGTH REPLY MEMORANDUM was served on Defendant International BusinessMachines Corporation on this 24th day of September, 2004, by U.S. mail, postage prepaid to:

     Alan L. Sullivan, Esq.
     Todd M. Shaughnessy, Esq.
     Snell & Wilmer L.L.P.
     [address]

Copy to:
     Evan R. Chesler, Esq.
     Cravath, Swaine & Moore LLP
     [address]

     Donald J. Rosenberg, Esq.
     [address]

     Attorneys for Defendant/Counterclaim Plaintiff IBM Corp.

     ___[signature of Mark F. James]___


  


SCO Asks to File Another Overlength Memo | 60 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: friedlinguini on Thursday, September 30 2004 @ 12:40 PM EDT
You meant wave our white flags, right? Or were we planning on giving the flags up?

[ Reply to This | # ]

Manufacturing concessions
Authored by: Anonymous on Thursday, September 30 2004 @ 12:58 PM EDT
SCOG's strategy in part seems to be the filing of multiple over-length memos
containing many unfounded and misguided assertions for use in later filings. By
placing many more such assertions than IBM can reasonably be expected to answer
without ditching their own professionalism, they create a record of self-serving
statements that they can then later claim have been unrefuted, and thereby
conceded, by IBM.

[ Reply to This | # ]

Off Topic and Trolls here please.
Authored by: Groklaw Lurker on Thursday, September 30 2004 @ 12:59 PM EDT
.

[ Reply to This | # ]

We misread the 31M cap
Authored by: ujay on Thursday, September 30 2004 @ 01:00 PM EDT
It wasn't a 31M dollar fee cap, it was a minimum 31M word legal briefing
target.


---
Windows - How do you want to be exploited today.

[ Reply to This | # ]

Maybe that's why it's being tolerated...
Authored by: Anonymous on Thursday, September 30 2004 @ 01:08 PM EDT
I would think that the reason IBM and the court have been tolerating all of
these motions and over-length docments for so long is precisely so that SCO
won't have any basis for an appeal.

[ Reply to This | # ]

Of course they need an overlength memo...
Authored by: Anonymous on Thursday, September 30 2004 @ 01:45 PM EDT
They need to address the actual case before the judge rules.

What are the odds that they really do address IBM's motions on the basis of
facts and law? (I didn't thinks so either...)

-- Alma

[ Reply to This | # ]

What's in a name...
Authored by: brian on Thursday, September 30 2004 @ 01:49 PM EDT
They get more and more clever with the names of their motions (as IBM also
noted)...This one is:

"overlength Consolidated Reply Memorandum in Further Support of SCO's
Expedited Motion to Enforce the Court's Amended Scheduling Order and Emergency
Motion for a Scheduling Conference"


The problem is, as IBM noted, that the only thing SCO is going to do is harp
more on how they need every iteration of AIX / Sequent known to man and god. I
don't know how much more the judge is going to allow SCO to keep harping this
issue but it is getting old.

PJ, isn't there a cutoff point to replying over and over again to the same
memos? It seems to me they keep rolling all the memos together and resubmitting
them with newer / longer names...

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

SCO Asks to File Another Overlength Memo
Authored by: Anonymous on Thursday, September 30 2004 @ 01:51 PM EDT
Are there any known cases where such a motion to file an overlength document has
been denied? Just curious how far can this all go...

--
Regards - DNiq.

[ Reply to This | # ]

SCO Asks to File Another Denial of Service Attack
Authored by: Anonymous on Thursday, September 30 2004 @ 02:17 PM EDT
<eom>

[ Reply to This | # ]

So considerate of them
Authored by: Anonymous on Thursday, September 30 2004 @ 02:50 PM EDT
"and must place complex issues in context for the Court"

See, TSG is merely trying to place things in context. They are obviously aware
that the court may be in danger of becoming overwhelmed by the sheer volume of
paperwork, and so they are helping the court wade through it. Unlike that nasty
IBM who keep filing "fact-intensive" motions to confuse the issues.

So TSG files an overlength memo, now does IBM get to respond? And will IBM
require more time to do so?

Is this merely an attempt to delay the Oct 19th hearing while placing the blame
on IBM?

[ Reply to This | # ]

Another memorandum or for previous one?
Authored by: Anonymous on Thursday, September 30 2004 @ 03:49 PM EDT
Is this actually permission to file yet another Memorandum in front of Judge
Kimball or is this simply belated filing for the memo they filed on the 24th?

It seems to me Kimball was quite hot on getting the two sides to file their
Memorandums on this so he could rule. The transcript from the hearing was clear
he wanted the documents as quickly as he could get them. So it seems odd to me
that he would allow SCO to file another memorandum much less another overlength
one since their previous one was clearly overlength as well.

I don't know exactly how these things work but it seems at least possible this
is just the paperwork necessary to have their previous memorandum accepted by
Judge Kimball. The request was made on the 24th, the same day SCO was to file
their reply to IBM. So it looks to me like they simply filed the two together
knowing their reply was overlength and they didn't have time to request it
before filing. Judge Kimball gave them only two days after IBM filed.

If my supposition is true than it's not TOO bad. Granted SCO simply repeated the
same-old same-old but hopefully they won't get a second version in front of
Judge Kimball.

[ Reply to This | # ]

Another memorandum or for previous one?
Authored by: Anonymous on Thursday, September 30 2004 @ 03:55 PM EDT
Is this actually permission to file yet another Memorandum in front of Judge
Kimball or is this simply belated filing for the memo they filed on the 24th?

It seems to me Kimball was quite hot on getting the two sides to file their
Memorandums on this so he could rule. The transcript from the hearing was clear
he wanted the documents as quickly as he could get them. So it seems odd to me
that he would allow SCO to file another memorandum much less another overlength
one since their previous one was clearly overlength as well.

I don't know exactly how these things work but it seems at least possible this
is just the paperwork necessary to have their previous memorandum accepted by
Judge Kimball. The request was made on the 24th, the same day SCO was to file
their reply to IBM. So it looks to me like they simply filed the two together
knowing their reply was overlength and they didn't have time to request it
before filing. Judge Kimball gave them only two days after IBM filed.

If my supposition is true than it's not TOO bad. Granted SCO simply repeated the
same-old same-old but hopefully they won't get a second version in front of
Judge Kimball.

[ Reply to This | # ]

Another memorandum or for previous one?
Authored by: Anonymous on Thursday, September 30 2004 @ 04:00 PM EDT
Is this actually permission to file yet another Memorandum in front of Judge
Kimball or is this simply belated filing for the memo they filed on the 24th?

It seems to me Kimball was quite hot on getting the two sides to file their
Memorandums on this so he could rule. The transcript from the hearing was clear
he wanted the documents as quickly as he could get them. So it seems odd to me
that he would allow SCO to file another memorandum much less another overlength
one since their previous one was clearly overlength as well.

I don't know exactly how these things work but it seems at least possible this
is just the paperwork necessary to have their previous memorandum accepted by
Judge Kimball. The request was made on the 24th, the same day SCO was to file
their reply to IBM. So it looks to me like they simply filed the two together
knowing their reply was overlength and they didn't have time to request it
before filing. Judge Kimball gave them only two days after IBM filed.

If my supposition is true than it's not TOO bad. Granted SCO simply repeated the
same-old same-old but hopefully they won't get a second version in front of
Judge Kimball.

[ Reply to This | # ]

Wasting of Judges' Time
Authored by: mobrien_12 on Thursday, September 30 2004 @ 04:26 PM EDT
If the past overlength memo's are an indicator, th"is
"overlength" just wastes the time of Kimball and Wells. They just keep
saying the same stuff over and over... like saying it enough times makes it
true.

If I was one of the judges, I'd start to say "no keep it brief and on
topic" or "you can go overlength, but don't repeat your prior
memos."

In essence, "Don't waste my time."




[ Reply to This | # ]

SCO Asks to File Another Overlength Memo
Authored by: blacklight on Thursday, September 30 2004 @ 04:42 PM EDT
"They can't appeal on the grounds that they didn't get to tell the court
every last thought they could possibly dream up." PJ

Actually, SCOG is plumb out of new thoughts: SCOG has been putting the same
thoughts over and over again on paper for quite a while, as if repeating the
same bad argument makes it more compelling each time. I don't think judge
Kimball really cares about SCOG's overlength memos, because he is probably just
skimming them and doing a spam filter on them for either new argumentation
and/or new facts - Note how he told Silver to sit down at the last hearing.

[ Reply to This | # ]

Is The Judge a very Smart Man?
Authored by: Anonymous on Thursday, September 30 2004 @ 04:49 PM EDT
"They can't appeal on the grounds that they didn't get to tell the court
every last thought they could possibly dream up."
Is that the reason why the judge is allowing to file as many Memo's as they can
dream up, significantly reducing the chance of SCO being able to appeal, for any
reason at all?
Here's the whole rope. Hang yourselves thoroughly. ??
signed Curiously Law Ignorant

[ Reply to This | # ]

SCO Asks to File Another Overlength Memo
Authored by: bpmann on Thursday, September 30 2004 @ 06:03 PM EDT
Pretty soon, they're going to have to ask permission to file overlength just
because the title takes up the whole memo...

[ Reply to This | # ]

SCO Asks to File Another Overlength Memo
Authored by: Anonymous on Thursday, September 30 2004 @ 06:23 PM EDT
SCO has endeavored to be as concise as possible, ...

I got a chuckle out of that for some reason. :-)

[ Reply to This | # ]

Who reckons
Authored by: billyskank on Friday, October 01 2004 @ 05:54 AM EDT
that in SCO's overlength memo, they argue that IBM's PSJ motions should be
denied, or at least stayed until the end of fact discovery. Oh, and that they
need an extension to do more discovery because of IBM's delaying tactics, and
that they need all revisions of every file in AIX and Dynix?

---
It's not the software that's free; it's you.

[ Reply to This | # ]

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