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IBM Files Ex Parte Motion For Leave to File Surreply
Tuesday, February 01 2005 @ 04:23 PM EST

Some of you have noticed on Pacer that IBM has filed an Ex Parte Motion for Leave to File a Surreply and have emailed me asking what that is. Here is an explanation from marbux:

A "surreply" is a supplemental reply to a response to a motion. "Sur" translates as on or over in the sense of supplemental. Taking filings in the order they happen, a party files a motion, the other side files a response (sometimes called an "opposition"), then the party that filed the motion replies. With a surreply, the party that originally filed the motion files a supplemental, second reply. In Federal court, surreplies generally are prohibited by local court rules without the court's permission. Permission is most commonly sought to file a surreply when events happening after the filing of the reply brief make a further brief desirable. For example, when lots of motions are flying, it's not uncommon for one party to insert an argument, often in a footnote, in one of the briefs involving a motion it doesn't really relate to. Filing a surreply (or surresponse for the party opposing the original motion) in such a circumstance allows the party opposing that argument to make sure its counter-argument is considered when the court is deciding the appropriate motion.

In this case, it relates to SCO's Motion For Leave to File Third Amended Complaint and IBM is asking to be able to respond to SCO's Reply Memorandum. So some matters that were sealed are now revealed.

The issue is this: SCO, in its motion, "argued that its proposed amendment was timely because it 'did not know and could not reasonably have determined' that IBM's AIX 5L for Power product contains certain UnixWare/SVR4 source code until SCO received various documents from IBM in discovery in April 2004." However, IBM says, rather than providing all or any facts which might support such a contention in its opening memo, "SCO waited until after IBM showed in its opposition memorandum that SCO had -- or should have had -- such knowledge (which has been publicly available for over three-and-a-half years), only then submitting a declaration from a witness formerly employed at The Santa Cruz Operation, Inc. In the declaration, SCO offers new factual arguments regarding notice, arguments to which IBM necessarily has had no opportunity to respond." So, that is the basis for IBM's motion.

Additionally, G2 has filed its Reply Memorandum in Support of Motion to Intervene and Motion to Unseal Court's Files. It seems unnecessary, if the motive is to be able to follow along. As you can see by IBM's motion, even matters which are sealed end up being talked about, and we find ourselves quite well-informed, all in due time.

And here's the Pacer entry:

388-1 - Filed: 01/28/05 - Entered: 01/31/05 - Ex parte motion for leave to file

Docket Text: Ex parte motion by Intl Bus Mach Inc for leave to file sur-reply brief

As for SCO just discovering that UnixWare/SVR4 code is in AIX for Power, Groklaw earlier presented evidence of it being public knowledge for years, as you can review here and here. And we know they read Groklaw.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

  Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

   ________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

______________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.

_______________________

IBM'S EX PARTE MOTION FOR LEAVE TO
FILE SUR-REPLY

Civil No. 2:03 CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

_______________________

Pursuant to DUCivR 7-1(b)(3), International Business Machines Corporation ("IBM") respectfully moves the Court for leave to file a sur-reply memorandum in response to The SCO Group, Inc.'s ("SCO") Reply Memorandum in Support of Motion for Leave to File Third Amended Complaint, filed on December 29, 2004.

Although we have not yet seen a formal order of reference, we understand that SCO's motion to amend will be heard by this Court. Assuming that is the case, IBM respectfully requests that the Court allow IBM to submit a sur-reply memorandum to address issues raised by SCO for the first time in its reply brief that are important to the resolution of that motion.

As the Court is aware, a reply memorandum in support of any motion "must be limited to rebuttal of matters raised in the memorandum opposing the motion." DUCivR 7-1(b)(3) (emphasis added). In its motion, SCO argued that its proposed amendment was timely because it "did not know and could not reasonably have determined" that IBM's AIX 5L for Power product contains certain UnixWare/SVR4 source code until SCO received various documents from IBM in discovery in April 2004. (SCO Mem. at 15.) Rather than providing all (or any) facts which might support such a contention with its opening memorandum, however, SCO waited until after IBM showed in its opposition memorandum that SCO had -- or should have had -- such knowledge (which has been publicly available for over three-and-a-half years), only then submitting a declaration from a witness formerly employed at The Santa Cruz Operation, Inc. In the declaration, SCO offers new factual arguments regarding notice, arguments to which IBM necessarily has had no opportunity to respond. (See Reply Mem., Ex. A, 12/29/04 Decl. of Jay F. Petersen.) Because SCO waited until the filing of its reply memorandum to proffer these new factual and other arguments, IBM respectfully requests that it be given leave to file a brief surreply to fully address these important issues for the Court.

For the foregoing reasons, IBM respectfully requests leave to file a sur-reply memorandum in response to SCO's Reply Memorandum in Support of Motion for Leave to File Third Amended Complaint.

DATED this 28th day of January, 2005.

SNELL & WILMER L.L.P.

___[signature]____
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

  CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

  Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of Counsel:

  INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff International Business Machines Corporation


CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of January, 2005, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

  Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

  Robert Silver
Edward Normand
Sean Eskovitz
BOIES, SCHILLER & FLEXNER LLP
[address]

_____[signature]____
Amy F. Sorenson


  


IBM Files Ex Parte Motion For Leave to File Surreply | 112 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Anonymous on Tuesday, February 01 2005 @ 04:40 PM EST

[ Reply to This | # ]

OT threads start here
Authored by: Anonymous on Tuesday, February 01 2005 @ 04:41 PM EST

[ Reply to This | # ]

Surreply process question
Authored by: manys on Tuesday, February 01 2005 @ 04:43 PM EST
Does a typical surreply enable the "other party" to respond in a
similar cycle as the motion/reply/reply mechanism? Does the surreply only
supplement the final reply? I'm sure it's probably different for each set of
court rules, but I'm just curious about the general process.

[ Reply to This | # ]

IBM's Summary Judgments?
Authored by: SilverWave on Tuesday, February 01 2005 @ 05:24 PM EST
IBM's Summary Judgments?

How long does the Judge get to ponder...


---
"...They put in one hour of work, but because they share the end results they
get nine hours of "other peoples work" for free..."
Interview with Linus Torvalds

[ Reply to This | # ]

AIX and SVR4?
Authored by: tiger99 on Tuesday, February 01 2005 @ 06:03 PM EST
"'did not know and could not reasonably have determined' that IBM's AIX 5L for Power product contains certain UnixWare/SVR4 source code until SCO received various documents from IBM in discovery in April 2004."

Didn't know till they did discovery? Surely the whole world could be fairly certain that AIX for any platform contains some SVR4 code, as does Solaris, HP/UX, and probably every other modern Unix. Surely that is why people need Unix licences! Or did they maybe think that AIX for Power was based on something ancient like Version 7, or copied from the Lions book, or maybe based on one of the BSDs? Or even derived from Minix.....

I find the complete lack of intelligence at SCO quite depressing...... Maybe we have misjudged Daft Darl, he may not be so much a SCOundrel as just plain stupid.

[ Reply to This | # ]

I'll never get it
Authored by: Anonymous on Tuesday, February 01 2005 @ 06:30 PM EST

I'll never understand why ANY of this is being discussed before SCO
proves it has any legal rights to System V, or any other Unix. The only
thing I can think of is that whether SCO really owns any Unix code apparently is
irrelevant.

[ Reply to This | # ]

No SVR4 license needed
Authored by: argee on Tuesday, February 01 2005 @ 07:10 PM EST
IBM does not need a general-purpose SVR4 license; SCO
contributed CERTAIN svr4 code to AIX5L (and Monterrey), so
this specific code is ok in AIX5L. This would be the
printing engine, etc.



---
--
argee

[ Reply to This | # ]

IBM Files Ex Parte Motion For Leave to File Surreply
Authored by: Steve Martin on Tuesday, February 01 2005 @ 07:44 PM EST

Ya know, this kind of sounds familiar to me. Let's see... Oh, yeah. Didn't TSG try this trick before? Didn't it backfire on them?

Sheesh.

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

[ Reply to This | # ]

Didn't Monterey allow IBM to use the code?
Authored by: Pugs on Tuesday, February 01 2005 @ 07:58 PM EST
I seem to remember reading on Groklaw that the Monterey contract allowed IBM to
use the code in other OSs. I just can't find where I read it.

Anyone else remember this?

Pugs

[ Reply to This | # ]

You stole my car!
Authored by: Anonymous on Tuesday, February 01 2005 @ 11:36 PM EST
Well actually it may not be my car.
OK So it belongs to the taxi company
But I drive it and you stole it
... rode in it anyway.
OK so you PAID the taxi company to ride in it
- so what!

YOU STOLE MY CAR!

Just because they say it is OK with them and they own the car doesn't mean you
didn't steal it.

OK OK

I guess that WOULD mean you didn't steal it IF
they owned the car, but
They don't own the car,
I do.

They just SAY they own the car, but
I'm the driver so I own it.
Why would I drive a car that I didn't own.
Yeah so I'm a taxi driver - so what!

YOU STOLE MY CAR!!
AND
YOU COPIED IT!!!!!!

Yeah that's right.
That car you are driving around right now.
uh huh - I've seen you - don't deny it.
It looks SUSPICIOUSLY like the car that you STOLE.

It even has FOUR WHEELS!
That proves it right there.
Noone would EVER put four wheels on a car
UNLESS it was COPIED from MY CAR which YOU STOLE.

I'm gonna tell the judge.
And he's gonna make you explain how you did it.
If you don't tell me how you stole my car he's
going to LOCK YOU UP.


I'm gonna sue you for a million bucks!
I'm gonna sue you for a BILLION bucks.
SEVERAL billion bucks.

And all those other guys driving cars with four wheels?
They all copied from your car which you stole the idea of
four wheels from, from the car which you STOLE FROM ME!!!

I'm gonna sue them too.
And they'll pay me.
They'll all pay me.

They'll pay me
to go away.

I'm sure they will.

Any day now

[ Reply to This | # ]

Jay Petersen links
Authored by: Anonymous on Wednesday, February 02 2005 @ 07:39 AM EST
Of course we don't know whether some, all, or none of these are the same Jay
Petersen

http://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&safe=off&q=
%22Jay+Petersen%22+SCO

According to the linked pages, a Jay Petersen (not sure if the same one)
apparently had something to do with a SCOsource presentation, and is down for
deposition.

Also, look at this page
http://www.geek.com/news/geeknews/2004Mar/gee20040304024112.htm and you'll see
that somebody posted an email (search in the page for Petersen), which they
said they got from a Jay Petersen of SCO. Of course, i don't know if that's the
same Jay Petersen, and can't confirm whether they actually got that email.

[ Reply to This | # ]

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