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Judge Kimball Denies SCO's 2 Motions, to Enforce Scheduling Order and for Scheduling Conference
Saturday, October 02 2004 @ 12:12 AM EDT

We have an order on SCO's Motion to Enforce the Scheduling Order and its Ex Parte Emergency Motion for a Scheduling Conference. It's no and no. He says he'll give them 30 extra days if they put in a proper motion.

Significantly, all SCO's aspersions against IBM and Magistrate Judge Brooke Wells have fallen on deaf ears. The judge writes:

"Although SCO blames IBM for the delay regarding the September 14, 2004 hearing before the Magistrate Judge, the delay was caused by SCO's filing of a supplemental reply memorandum just prior to the hearing. See docket # 254. Obviously, as the Magistrate Judge ruled, IBM was entitled to respond to SCO's supplemental brief, thus necessitating the delay."

I love Judge Kimball.

Here is SCO's Emergency Motion asking for a scheduling conference. And here is the other motion, to "enforce" the scheduling order. And here is IBM's Opposition to the two motions. Here's SCO's Consolidated Reply Memorandum in support of both motions, which have just been denied, and I have it done as text will put it up shortly, so you can see all the nasty things they said that did them no good at all.

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

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

____________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

______________________

ORDER

Case No. 2:03CV294 DAK

_______________________

This matter is before the court on Plaintiff/Counterclaim-Defendant The SCO Group, Inc.'s ("SCO") "Expedited Motion to Enforce the Court 's Amended Scheduling Order Dated June 10, 2004," and SCO's Ex Parte Emergency Motion for a Scheduling Conference. The court has carefully considered the memoranda and other materials submitted by the parties. Now being fully advised, the court renders the following Order.

In its "Expedited Motion to Enforce the Court 's Amended Scheduling Order Dated June 10, 2004, SCO essentially requests that the court relieve SCO from its obligation to respond to IBM's motions for summary judgment until the close of fact discovery in February 2005. However, there is nothing in the Amended Scheduling Order that precludes IBM from filing motions for summary judgment, and there is nothing in the Scheduling Order that relieves SCO from responding to such motions. Thus, it is puzzling that SCO seeks to "enforce" the Amended Scheduling Order when there is nothing in that Order to justify SCO's request for a significant delay in filing its responses. Rule 56(a) of the Federal Rules of Civil Procedure ("FRCP") plainly permits the filing of motions for summary judgment "at any time after the expiration of 20 days from the commencement of the action," and "litigants routinely file summary judgment motions prior to the close of discovery. If SCO believes that it has not obtained discovery from IBM that is necessary to oppose the motions, the remedy is to comply with FRCP 56(f). This court has never dictated to litigants that the filing of summary judgment motions -- or the responses to such motions -- must be delayed until after discovery, and it declines to do so now.

The court has already granted a thirty-day extension to SCO to respond to the pending motions, and the court will permit up to thirty additional days, if requested by SCO. Such a delay in responding would necessitate a change in the December 9, 2004 hearing date.

Additionally, the court declines to hold a scheduling conference, as requested by SCO. Although SCO blames IBM for the delay regarding the September 14, 2004 hearing before the Magistrate Judge, the delay was caused by SCO's filing of a supplemental reply memorandum just prior to the hearing. See docket # 254. Obviously, as the Magistrate Judge ruled, IBM was entitled to respond to SCO's supplemental brief, thus necessitating the delay. The magistrate has set a new hearing date for the pending discovery motions on October 19, 2004. The court declines to hold a scheduling conference before that hearing.

Accordingly, IT IS HEREBY ORDERED that (1) SCO's "Expedited Motion to Enforce the Court 's Amended Scheduling Order Dated June 10, 2004" is DENIED, and (2) SCO's Ex Parte Emergency Motion for a Scheduling Conference is DENIED.

DATED this 30th day of September, 2004.

BY THE COURT:

____[signature]_____
DALE A. KIMBALL
United States District Judge

United States District Court
for the
District of Utah
October 1, 2004

* * CERTIFICATE OF SERVICE OF CLERK * *

Re: 2:03-cv-00294

True and correct copies of the attached were either mailed, faxed or e-mailed by the clerk to the following:

Brent O. Hatch, Esq
HATCH, JAMES & DODGE
[address]

Scott E. Gant, Esq.
BOIES, SCHILLER & FLEXNER
[address]

Frederick S. Frei, Esq.
ANDREWS KURTH
[address]

Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]

Mr. Allan L Sullivan, Esq. SNELL & WILMER LLP
[address]

Todd M. Shaughnessy, Esq.
SNELL & WILMER LLLP
[address]

Mark J. Heise, Esq.
BOIES, SCHILLER & FLEXNER LLP
[address]

EMAIL

Mr. Kevin P McBride, Esq.
[address]

Robert Silver, Esq.
BOIES SCHILLER & FLEXNER
[address]

Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]

  


Judge Kimball Denies SCO's 2 Motions, to Enforce Scheduling Order and for Scheduling Conference | 378 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Judge Kimball Denies SCO's 2 Motions, to Enforce Scheduling Order and for Scheduling Conference
Authored by: jam on Saturday, October 02 2004 @ 12:21 AM EDT
Its about time somebody put SCO in their place. We all knew it would happen
eventually, but its nice to have a decision that was firmly "no."

[ Reply to This | # ]

Oh yeah, the judge gets it all right
Authored by: Anonymous on Saturday, October 02 2004 @ 12:21 AM EDT
Short, sweet, to the point and pretty much unambiguous.

I'm not sure how TSG gets to spin this as a win, but I can't wait to see how.

[ Reply to This | # ]

Corrections here, please.....
Authored by: Anonymous on Saturday, October 02 2004 @ 12:23 AM EDT
You know how it works...

[ Reply to This | # ]

Trolls, Obscure Puns and Weird Movie Quotes go here....
Authored by: Anonymous on Saturday, October 02 2004 @ 12:25 AM EDT
Help, help, I'm bein' repressed! Come and see the violence inherent in the
system!

[ Reply to This | # ]

OT...news and other goodies
Authored by: Anonymous on Saturday, October 02 2004 @ 12:26 AM EDT
...go here

[ Reply to This | # ]

No Gloating?!?!?!
Authored by: stevem on Saturday, October 02 2004 @ 12:27 AM EDT
PJ,

I'm impressed! You didn't even gloat just a little.
What amazing self control. ;-)


- SteveM

[ Reply to This | # ]

Why does December 9th hearing need to change?
Authored by: Anonymous on Saturday, October 02 2004 @ 12:28 AM EDT
SCO's current dates (after their first 30 day extension) to respond are October
13th and October 15th

IIf SCO were to ask for (and Kimball has indicated) they would get, another 30
days, then the dates would be November 12th and November 14th.

IIRC The local rules allow IBM 10 days to reply in further support, which puts
us up to November 22nd and November 24th.

Even if IBM also get a small extension, it seems *possible* (although not
definite) it would be possible to have the motions fully brief by December 9th

Unless of course, Kimball is expecting that SCO's opposition memos would trigger
further IBM motions to strike.

So that's my question, why make a ruling now, that the December 9th hearing date
would change if SCO ask for a 2nd extension of an additional 30 days?

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Did Kimball make a typo?
Authored by: Anonymous on Saturday, October 02 2004 @ 12:36 AM EDT
I think he meant Docket #284, not #254

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Judge Kimball Denies SCO's 2 Motions, to Enforce Scheduling Order and for Scheduling Conference
Authored by: AG on Saturday, October 02 2004 @ 12:40 AM EDT
Ask yourself: Does Kimball sound to you like a judge who is about to deny IBM's
Summary Judgement for CC10? Or is it more likely that he about had it with SCO's
crap?

[ Reply to This | # ]

Thank you, Judge Kimball
Authored by: MikeA on Saturday, October 02 2004 @ 12:42 AM EDT
Ah, finally. The waiting was killing me. I suspected he might do this, but
didn't want to get my hopes up. It's even better that he called SCO on their
game. Bravo.

---
"You need some facts to win in a court of law, thou doofus."

[ Reply to This | # ]

So just what does it mean
Authored by: Anonymous on Saturday, October 02 2004 @ 12:42 AM EDT
when the judge calls your motion "puzzling?"

[ Reply to This | # ]

I like the capital letters...
Authored by: Anonymous on Saturday, October 02 2004 @ 01:06 AM EDT

... as in "DENIED".

Doggone this was a nice end to the day.

Of course, the judge gave SCO the option to take another thirty days. Heh, like that would be an option for SCO.

[ Reply to This | # ]

Quick summary
Authored by: Anonymous on Saturday, October 02 2004 @ 01:06 AM EDT
Without going thru everything, here is a quick summary of the main motions

(1) IBM Counterclaim 10 - IBM's Linux activities do not infringe a SCO
copyright

a.
- SCO moved to dismiss or stay this in favor of AutoZone (on the theory that
AutoZone is about the same issue).
- IBM opposed.
- SCO replied (but dropped their argument in favor of stay in a *footnote* their
reply because the AutoZone case was, according to SCO, now about completely
different issues to IBM)
- Status: oral arguments heard September 15th, we're waiting for a ruling


b.
- IBM cross moved for partial summary judgement.
- SCO opposed, with affidavits from Harrop/Sontag/Gupta, and various hearsay
news articles. SCO said their opposition supported a rule 56e (facts in dispute)
or rule 56f ruling (more discovery needed), and filed a rule 56f motion
- IBM replied in support
- IBM moved to strike the SCO opposition exhibits of Harrop/Sontag/Gupta and
various hearsay news articles
- SCO opposed iBM's motion to strike, and argued that Harrop/Sontag/Gupta and
various hearsay news articles, were admissable for rule 56f, if not 56e (and
dropped their claim of rule 56e facts in dispute)
- IBM replied in support of motion to strike. and said SCO's Harrop/Sontag/Gupta
and various hearsay news articles, were not admissable for rule 56f nor 56e. [at
this point I think SCO know they lost the argument, see last paragraph of point
(4)]
- Status: oral arguments heard September 15th, we're waiting for a ruling


(2) IBM Counterclaim 8 - SCO's copyright infringement by continued distribution
of IBM's Linux contributions

- IBM filed for partial summary judgement
- SCO reply is currently due October 13th (one extension of 30 days already
given), but Kimball has indicated they can ask for and get another 30 day
extension
- Status: not fully briefed yet, hearing is currently set for December 9th but
may move


(3) SCO's contract claims 1-4 - SCO's contract claims against IBM

- IBM filed for partial summary judgement
- SCO reply is currently due October 15th (one extension of 30 days already
given), but Kimball has indicated they can ask for and get another 30 day
extension
- Status: not fully briefed yet, hearing is currently set for December 9th but
may move


(4) SCO's scheduling motions

- SCO filed 2 motions in quick succession, to "enforce" the scheduling
order, and for a scheduling conference
- IBM opposed both motions in a consolidated reply
- SCO replied in support of both motions
- Status: Kimball denied both motions

Among the arguments made by SCO in these 2 motions, is that SCO should not have
to respond to IBM's partial summary judgement motions on (2) and (3), until the
close of discovery (currently set for February 2005)

Also among the arguments made by SCO in these 2 motions, is that the court
should deny IBM's summary judgement motions in (1), (2), and (3) - not because
of rule 56e or rule 56f - but as a matter of discretion. With regarding to item
(1) - this links back to the "at this point I think SCO know they lost the
argument" in point (1).


(5) Discovery matter

There is 1 motion, and also the procedure Wells identified in her March 3rd
order about how SCO can ask for more discovery

a. - SCO filed a memo regarding discovery
- IBM opposed
- SCO filed a reply memo in support

b.
- SCO filed a "renewed" motion to compel discovery, the timeline with
this overlaps the end of a (SCO initiated this track before filing their reply
in track (a)).
- IBM opposed
- SCO filed a reply memo in support

c.
- IBM also filed a motion to strike the Sontag affidavit which was attached to
SCO's reply in (a) or (b) [I'm not sure which]
- SCO opposed this motion to strike
- IBM filed a reply in support of this motion to strike

d.
- SCO filed a supplemental memo on discovery September 3rd (after seeking
permission which IBM had opposed them being given, beginning August 19th)
- IBM opposed this supplemental memo
- SCO filed a reply in support of this supplemental memo


Status: all this part is due for the hearing in front of Wells on October 19th



Quatermass
IANAL IMHO etc

[ Reply to This | # ]

This whole thing is becoming really absurd
Authored by: Anonymous on Saturday, October 02 2004 @ 01:11 AM EDT

I'm with you. This is getting more and more confusing. I honestly think I could make sense out of:

``"Wouldn't the sentence: I want to put a hyphen between the words Fish and And and And and Chips in my Fish-And-Chips sign have been clearer if quotation marks had been placed before Fish, and between Fish and and, and and and And, and And and and, and and and And, and And and and, and and and Chips, as well as after Chips?"''

before I'll be able to keep all the motions, side motions, replies to motions, and backfields in motion straight in my mind.

Part of Boies's plan, perhaps?

[ Reply to This | # ]

Oh Happy Day .... NT
Authored by: Anonymous on Saturday, October 02 2004 @ 01:13 AM EDT
This is great news!

[ Reply to This | # ]

Boies: Hoisted By Own Petard
Authored by: dmscvc123 on Saturday, October 02 2004 @ 01:24 AM EDT
Great legal counsel, SCO! Just you don't need to spend $30 million dollars to
get 3rd rate lawyers. You can get bad legal representation for pennies on the
dollar compared to what you're paying now.

I remember that last conference call where SCO was asked if they got a second
opinion on Boies and the Gang. With all these motions - that probably cost a
fortune in billable hours - that ended up hurting their goal of getting a ruling
from Wells first, it should be pretty obvious that Boies is just a vulture
feasting off SCO, not representing what's in SCO's shareholders best interest.

[ Reply to This | # ]

Judge Kimball Denies SCO's 2 Motions, to Enforce Scheduling Order and for Scheduling Conference
Authored by: Anonymous on Saturday, October 02 2004 @ 03:39 AM EDT
Anyone else get the feeling that Boies & Co are paid by the word?

[ Reply to This | # ]

Don't be too happy too soon
Authored by: proto on Saturday, October 02 2004 @ 04:08 AM EDT
It sure is a great thing that SCO got denied, but don't rule out courtroom
tactics. First of all SCO hasn't lost much with these two lost motions. Sure
their credibility has taken yet another hit, but hey there wasn't much left to
start with anyway since the last hearing.

On the flipside, they got an angle on another 30 days of delaying summary
judgement. By the way SCO is going I am sure they are counting the delays by the
days now if not the hours before their game is over.

Even more sinister, it is not a bad ploy to have a judge deny one or more
motions of you, just before he is about to render a big loss to you. Now judge
Kimball has to decide whether he is going to give SCO a third loss in a row.
While I am quiet sure that this judge wouldn't be swayed with such notions too
much, it undeniably raises the bar for judge Kimball to grant the CC10 summary
judgement, because it will make him look just a little partial towards IBM
opening up appeal possibilities.

So in my view, even as SCO has lost this round, they actually gained a little
bit woth regard to CC10, as unfair as it is. Just good courtroom tactics.

Given the hopelessness of the case of SCO (No evidence, no breach of contract) I
think that the SCO lawyers are doing a superb job of keeping afloat.

When lawyers know that they can't win a case no matter what, and their clients
knows this too, they change tactics and let the business guide their lawyering
and not the law. In this case: delay, delay, delay and pray for a take over.

[ Reply to This | # ]

What sort of thing could SCO offer?
Authored by: Anonymous on Saturday, October 02 2004 @ 04:29 AM EDT
As I read this, I see that Kimball may be offering SCO a potential way out by
suggesting that the only recourse they have would be to file a motion under Rule
56f FRCP.

This states:

"When Affidavits are Unavailable. Should it appear from the affidavits of a
party opposing the motion that the party cannot for reasons stated present by
affidavit facts essential to justify the party's opposition, the court may
refuse the application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to be had or
may make such other order as is just."

Clearly, SCO will seek to continue to argue that they need further discovery,
but I'm wondering exactly what kind of affidavits could suffice to meet this
need (presuming that the Gupta et. al. stuff already filed doesn't meet this
standard.)

[ Reply to This | # ]

Judge Kimball also called them on their motion titles!
Authored by: Dark on Saturday, October 02 2004 @ 04:57 AM EDT
This part of the order is particularly bad news for SCO, because it shows how this judge deals with off-topic argumentation:

In its "Expedited Motion to Enforce the Court 's Amended Scheduling Order Dated June 10, 2004, SCO essentially requests that the court relieve SCO from its obligation to respond to IBM's motions for summary judgment until the close of fact discovery in February 2005. However, there is nothing in the Amended Scheduling Order that precludes IBM from filing motions for summary judgment, and there is nothing in the Scheduling Order that relieves SCO from responding to such motions.

His reasoning here is simple: it's a motion to enforce the scheduling order, so he addresses the scheduling order, their arguments regarding it, and their request. There's not a word about the ramblings in the other 79 pages!

This shows that SCO won't get far with its creatively-titled motions, and that IBM's policy of only addressing the arguments that are on-topic will work.

[ Reply to This | # ]

Judge Kimball Denies SCO's 2 Motions
Authored by: Rann on Saturday, October 02 2004 @ 06:03 AM EDT
What I see is a judge on top of his game:
- a short, sweet, to the point decision with reasoning why.

The problem for SCOG as I see it is they have been given a few warnings:
- I read all your trype.... you should have saved yourself time, trouble,
money,...... you were told I rule by quality of argument not the pondage of the
paperwork!
- Stop trying to put words into the court's mouth, it won't work!
- Stop trying to re-write the rules, it won't work!
- Go ahead... I'll let you re-submit! I don't mind you wasting more time money
to ensure you jam both feet and a fair bit of both legs down your own throat....
and by the way, it won't slow down everything else either.

[ Reply to This | # ]

wondering about CC10
Authored by: Anonymous on Saturday, October 02 2004 @ 06:19 AM EDT
I think I read most of the briefings, and oral arguments of CC10. One thing that
stuck out was that as per previous cases, courts routinely deny summary
judgement claims based on the flimsiest of evidence. Now SCO did provide some
flimsy bit they called 'evidence' in Gupta declarations, which IBM countered by
motions to strike and Declaration by Dr Davis.

The question is, does what SCO provided counts as proper evidence. Even though
it is shredded by Dr Davis, does this not constitute a matter for a jury, and
thus cannot be covered in a PSJ?

[ Reply to This | # ]

The ownership issue
Authored by: codswallop on Saturday, October 02 2004 @ 06:59 AM EDT
I'm wondering what effect the Novell decision has on the psj motion. SCO have to
demonstrate ownership of any copyrights they claim are violated. Given that
Judge Kimball ruled the issue was in doubt, shouldn't SCO lose if they can't
either demonstrate that 56f discovery would allow them to find additional
evidence of ownership or file such evidence in support of dismissal?

To what extent is his ruling res judicata, and what constraints does it put on
SCO regarding the psj?

---
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.

[ Reply to This | # ]

Ah, but SCO did win ...
Authored by: AntiFUD on Saturday, October 02 2004 @ 08:13 AM EDT
SCO has won, but not in the way that most people would consider 'winning':

By filing this flurry of motions, mostly regurgitating amorphous factually
deficient 'argument' concerning IBM's malfeasance with respect to SCO's
discovery wish-list, SCO has avoided any rulings by the Utah court PRIOR to
Semptember 30, 2004.

Until the substantial uptick (at least in percentage terms - approximately 20%)
in the last few minutes of trading on 9/30 SCOX had been on a steady decline
since the September 15th SCO-IBM hearing. And this decline was exacerbated by
the Baystar unloading. Whatever one may think about the morals and ethical
behaviour of entities such as Baystar, they are not stupid. My take is that a
lot of the dithering that went on with respect to the RBC to Baystar transfer,
the "management must concentrate on SCOsource licencing, and not UNIX
development" statement, and the 'ratification' of the cash and partial
conversion of the Series A-1 Preferred to SCO common stock agreement, were all
designed to take our eyes off the ball. Perhaps without Groklaw, the Yahoo!scox
board et al, and the SEC investigation into PIPE deals, Baystar might have been
able to short their potential long position in SCOX common a la RBC hedged
strategy. Nevertheless, since it appears that Baystar's PIPE deal for SCO was
done with 'client's money' even a complete loss does not affect Baystar's
personal funds. But the shenanigans did benefit SCO by delaying the ultimate
resolution (and required SEC reporting filings) by at least one fiscal quarter.

I had been wondering why SCO has been persistent in their 'need' for further
extensions (currently conveniently beyond September 30th) on the filing date of
their response to Novell's Motion to Dismiss (also before Judge Kimball in
Utah).

Now it all makes much more sense - this is how you get value for money from a
'dream team' legal firm - it involves a clever strategy of 'anywhere but here'
and 'any lawyer but me' combined with a calculated 'too busy with other suits to
be able to file a timely response here' - all designed and carefully timed and
orchestrated to extend the resolution of ANY lawsuit (or part thereof) until
after the next fiscal reporting period of your client.

Likewise in SCO-IBM, anything goes, file overlength memos because that delays,
because of the requirement that the Court order such filing, and possibly adds a
benefit that your opponent may need to file an overlength response/reply and
need more time to do so.

In the event that a Magistrate Judge might rule against you (prior to a fiscal
quarter-end) file a brief (make it as long as you like) a couple of days before
such hearing. This will ensure that your opponent has no opportunity to respond
before the hearing. Then blame your opponent for insisting that they should be
allowed to reply and for the fact that the Magistrate Judge will postpone the
hearing until your opponent's response and your reply thereto have been filed.
Next, at the earliest opportunity, declare that you will withdraw your most
recently filed 'emergency' motion if the hearing is not postponed. Make a song
and dance about how much you were looking forward to finalizing matters
concerning discovery, and how confident you and your client are that your good
faith 'reading' of the Magistrate Judge's previous Order on the matter will
allow your unfettered access to all your opponents trade secrets and internal
databases and Board of Directors minutes.

The following 'Side Notes' are an 'aide memoire' to be used when analyzing this
and other cases involving 'dream team' lawyers - any resemblence to the 'Wookie
Defence' concept is purely coincidental and IMHO holds no water:

Side Note No 1: In order to extend resolution of any and all matters beyond the
next fiscal quarter-end, ensure that all communications between opposing
counsels are attached to your motions (or preferrably your reply memos - this
avoids your opponent from addressing their content) and make a further song and
dance (pony show - gymkhana - multi-city road show etc) about how you valiantly
tried to reach agreement with opposing counsel --- and then file an ex-parte
motion for an order granting permission for you to complain how unreasonable
your opponent's counsel is being.

Side Note No. 2: It is best for your client if you never directly respond to
any filings by your opponent. The simplest way is to avoid reading any of their
filings, or as an alternative get a bus-boy at the local McD's to read them and
get him to tell you what it said.

Side Note No. 3: No outright lies - however it is permissable to tell 'white
lies' the best example is to avoid finishing your sentences ... Brent Hatch is
giving training in this 'art' every week ... So for example "we are looking
forward to getting in front of a jury ..." Do not finish the sentence by
concluding "when we have had time to analyze all the code that we are
requesting", because this might lead the Judge to believe that you are
being silly, if he remembers that you already declared that each iteration takes
25,000 man-years and according to your opponents could total 14,000,000
man-years. Also, if asked by a Judge a specific question remember the 'any
lawyer but me' rule - just tell the Judge that you will get to that after every
other lawyer has had a go - remember the Judge's memory doesn't have a 25,000
year future time-span, so you can probably expect that he/she won't remember
that it was you that he asked.

Side Note No. 4: The old adage "the best defence is offence" does not
apply. When you really want your client to be happy, and you want to help
him/them avoid having to report ANY detrimental rulings, either to another Court
or in your SEC filings, you must be neither offensive or defensive - just sit on
the fence. The best, and proven, way is to avoid, at all costs, submitting or
admitting any facts. Remember Judges don't like facts (they are for a jury to
believe or not), Judges would prefer that there are no facts so that decisions
come down as a matter of law.

Side Note No. 5: In order to extend all proceedings as much as possible, if
this is what you convince your client is what he wants, be prepared for a moving
playing field. For example start out with a 'trade secrets' complaint, but be
prepared to drop that for a 'contract' case, because of a breach of contract for
copyright infringement, but be prepared to drop the 'copyright' issue before you
have to prove that you actually own any. Remember - keep moving the goal posts
- make as many self-contradictory statements as you like - noboby will remember
everything everybody stated (especially if you keep everything overlength) and
you can always fall back on the old 'scrivenor's error'.

Side Note No. 6: Legal precedent shouldn't cloud your reasoning - no two cases
are exactly alike, and if you are really clever, and if you have remembered to
keep moving the goal posts, even if your case on day one was somehow similar to
another case, by day two there is no way that the same case would apply. This
can be achieved in a number of ways, but one of the most effective is to keep
changing your definitions. As an example start out by using completely
undefined concepts: two simple letters 'I" and 'P' when combined thusly
'IP' mean nothing, but are perceived as frightening. If anyone gets perilously
close to making you define exactly what you mean by IP, say for example they
have called you on trade secrets, copyrights and challenged you with proving you
have any 'patents' immediately reverse your claims to PI (proprietary
information) and then throw in the word 'technology' and possibly 'methods and
concepts' - these are all meaningless and do a perfect job of confusing
everyone. Don't worry if you too are confused, just using these initials, words
and phrases will make them feel more comfortable and after a while they will
become second nature.

---
IANAL - But IAAAMotFSF - Free to Fight FUD

[ Reply to This | # ]

So What - if any - Discovery is being done by SCO in the Autozone Case?
Authored by: Anonymous on Saturday, October 02 2004 @ 09:40 AM EDT
Given how SCO's numerous lawyers are being distracted by IBM's CC10 and
other partial summary judgment motions, is SCO doing any work in the
Autozone case? The judge there did give SCO a limited time to do limited
discovery. Is this time already up? It's already October.

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Judge Kimball Denies SCO's 2 Motions, to Enforce Scheduling Order and for Scheduling Conference
Authored by: kberrien on Saturday, October 02 2004 @ 10:05 AM EDT
Dunno if PJ reads this far down the threads, but a summary at this point as a story would be a good thing for all of us.

We're very much at the point where its getting confusing. Inclusion of RH, Autozone, DC would be a good idea too.

Until reading this summary, I'd forgotten about some of the other IBM Dec. Jud. such as SCO copyright violations, and contract charges.

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  • Oops! - Authored by: kberrien on Saturday, October 02 2004 @ 10:13 AM EDT
Emergency Motion for a Scheduling Conference
Authored by: oldgreybeard on Saturday, October 02 2004 @ 10:19 AM EDT
Looks like the good judge doesn't think it's an emergency at all. Aw, too bad.

The only problem is that he didn't also deliver a big yes ruling on the IBM CC10
at the same time.

That would have spiked the mouthpieces a bit.

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Judge Kimball Denies SCO's 2 Motions, to Enforce Scheduling Order and for Scheduling Conference
Authored by: Anonymous on Saturday, October 02 2004 @ 10:40 AM EDT
This looks like a signal from the court that SCO's game is over. The judge will
give them an extra 30 days, then head straight for summary judgement. Given the
depositions filed in IBM's favor, I doubt that the remainder of this case, after
summary judgement, would withstand trial by jury.

If denied on appeal, this looks to be the case that ends all Linux vs UNIX
arguements.

SCO might have survived better if it had tried one or two arguements against
Linux, and saved the others for later cases. By changing course so many times,
they are going to get one ruling against, pretty much, all possible arguements
in the Linux vs UNIX debate. It will mean permanent defeat, not only for them,
but for anyone else seeking to file such claims, since all of the
counter-arguements will now be a matter of public record.

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IBM's Opposition reads as "Wild Kingdom"
Authored by: Anonymous on Saturday, October 02 2004 @ 10:41 AM EDT
As I read through IBM's beautiful opposition brief on SCO's motions, it occurred
to me that it reads like a third person narrative of the behavior of bizarre
animals. For kicks, in your best Marty Stouffer voice, go back and re-read the
IBM opposition brief as if it were one segment in a show called "The
Enigmatic Behavior of the American Weasel". It's fun, I promise.

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Judge Kimball Denies SCO's 2 Motions, to Enforce Scheduling Order and for Scheduling Conference
Authored by: afunke on Saturday, October 02 2004 @ 01:19 PM EDT
I have to say this: Judge Kimball IS brilliant!

While IBM's opposition to both SCO's motions "Re Scheduling" has
already provided many strong reasons for those motions to be denied by the
Court, IBM might have overlooked the most obvious flaw present in those motions.
But Judge Kimball didn't miss it, and I'm quoting here his words stating very
clearly what that flaw is:

"In its "Expedited Motion to Enforce the Court 's Amended Scheduling
Order Dated June 10, 2004, SCO essentially requests that the court relieve SCO
from its obligation to respond to IBM's motions for summary judgment until the
close of fact discovery in February 2005. However, there is nothing in the
Amended Scheduling Order that precludes IBM from filing motions for summary
judgment, and there is nothing in the Scheduling Order that relieves SCO from
responding to such motions."

I'd like to say: "Thank you PJ!", and "Thank you everyone else
who contributes their time for free to mantain this website!". I can't help
visiting Groklaw several times a day, just hoping to find such precious gems
every now and again...

Andreas

(IANAL ASF, ASO, ...).

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A horrible thought on CC10
Authored by: arch_dude on Saturday, October 02 2004 @ 04:14 PM EDT
IBM has asked for a PSJ on CC10. CC10 asks for a declaratory judgement that none
of IBM's Linux activities infringe any of SCOG's copyrights.

but SCOG may not in fact have any infringed copyrights. Yet.

Consider the following hypothetical timeline:
--Kimball grants the PSJ on CC10 in SCO v IBM
--in SCO V Novell, Kimball finds that the copyrights did not transfer from
Novell to SCOG.
--SCOG sues Novell to enforce a transfer of the copyrights, (under ammendment
2 to the APA) and wins.
--SCOG sues IBM (or anyone, for that matter) to enforce these copyrights. They
argue that Res justicata (SP?) does not apply: they could not defend against
CC10 in the extant action because they did not own the copyrights at the time of
the PSJ. Now that they do own the copyrights, a new suit is appropriate to
enforce ther newly-acquired copyrights.

This is the wildest sort of insanity, but so is almost everything SCOG has done
in the last 18 months.

In addition to the long litany of counters (starting with the lack of evidence
of any protected UNIX code in Linux) the defendant could argue a new defence, I
think: SCOG should have been attempting to defend the copyrights during CC10
even if they did not own them, because they have a responsibility to persue such
a defense as agent for Novell under the APA.

Of course, Novell's response to an order to assign all Unix copyrights to SCOG
might very well be: "Your honor, we never had any such copyrights. That is
why we did not identify any such copyrights in the APA in the first
place."

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The up and the down side of bad counsel
Authored by: eugen on Monday, October 04 2004 @ 08:37 AM EDT
Bright is the day - but I have to note a cloud:

Ofcourse I love to see SCO lose their case (and get the threats off the OS I mostly recommend to my customers), but I would have liked to see them lose on the merits, not on their bad counsel!

If the suit turns out to seem "winnable" for any SCO-Clone (another Proxy? MordorSoft itself?) we are sure to see exactly that: The next attempt, this time fitted with the best counsel the richest man in the world can buy ...

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Question about service
Authored by: Anonymous on Monday, October 04 2004 @ 12:45 PM EDT
How come the service section at the bottom doesn't list David Marriott,
just Evan Chesler? Not that he wouldn't find out fast enough (Cravath
is efficient and competent) but it would seem more logical to send the
papers to the the lawyer who appears to be the lead counsel.

[ Reply to This | # ]
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