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IBM Challenging Wells' Order
Wednesday, February 02 2005 @ 04:53 AM EST

If Judge Wells' January 18, 2005 Order seemed odd to you, you are not alone. IBM has some objections too. What do you do when you think a judge has made a mistake? IBM had some choices. One is to go immediately to Judge Kimball and ask for a review, and another is to return to Judge Wells and ask for reconsideration/clarification. They have chosen the latter course, followed by an appeal to Judge Kimball after that, as necessary.

No doubt they are also busy trying to comply with the onerous discovery tasks she placed on them in the meantime, but I am not a a bit surprised that they are unclear exactly how to fulfill her order. How, for example, do you decide who made "the most" contribution to AIX? Where is the ruler for that? And what is IBM to do if most of the ones that would fit such a description, however you define it, are long gone from IBM, maybe 15 years or more ago, and IBM doesn't know where they are? How far are they obliged to go to try to locate people?

And then there is the issue of whether she understands the technology or has swallowed some baloney from SCO without factoring in some things it would be good for her to understand. For example, what was she thinking when she wrote, "IBM's case will be strengthened tenfold if IBM can show that notwithstanding possible contract protections, homegrown code provided no basis for the code that IBM eventually contributed to Linux?" It's reflective of a gross misunderstanding of IBM's position, the code involved, and what IBM needs to prove. It would be a shame for IBM to go on what might prove to be a wild goose chase, with all the effort and expense involved, based on what could be a correctable misunderstanding.

It's worth taking the time to explain to her, although most respectfuly, I'm sure, as the tone of this motion reflects, so that there are no future misunderstandings. It's a way to at least let a judge know that you think he or she made a mistake, and even if you lose the point on this level, it sets you up for future relief from above, shall we say.

So IBM has filed an Ex Parte Motion for Extension of Time to Submit Objections to Discovery Order [PDF] with Judge Kimball, asking for a little more time to seek clarification with Judge Wells first, followed by a schedule to then bring the matter to him. There are rules as to how fast you have to file objections to an order, so that is the reason for this request to seek clarification first.

What IBM makes clear in the wording, though, is that while they would like to discuss and get clarification with Judge Wells, that won't necessarily preclude them from next asking Judge Kimball to review the Order also afterward. In fact, they seem to anticipate it. And he isn't the final link in the chain, should IBM choose to take the matter even higher, if necessary.

Remember I said litigation is like a conversation? Sometimes when you explain something to even a good friend, they don't get it. What do you do? Shrug your shoulders and say, "Que sera, sera?" Of course not. You then try to explain it again, and if there are words whizzing past each other without being properly understood, you each take the time to clarify. Ever try to explain tech stuff to a relative? Did they get everything the first pass through your instructions? Or did you have to break it down a bit, before the light bulb went on? That is basically what is happening here. It's pleasant and respectful conversation, but it is IBM saying to the Court, "Excuse me, Your Honor, but I think a mistake has been made. What did you mean when you said XYZ? And did you remember point ABC when you said XYZ?"

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

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.

_______________________

EX PARTE MOTION FOR EXTENSION
OF TIME TO SUBMIT OBJECTIONS TO
DISCOVERY ORDER

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

_______________________

Defendant and Counterclaim-Plaintiff International Business Machines Corporation ("IBM"), through counsel, respectfully moves the Court for entry of an order extending the time for IBM to file its objections, pursuant to Federal Rule of Civil Procedure 72(a), to the Magistrate Judge's January 18, 2005, discovery order.

On January 18, 2005, Magistrate Judge Wells entered an Order Regarding SCO's Renewed Motion to Compel (the "Discovery Order"). IBM has a number of objections to the Discovery Order, and there are certain provisions in the order that we believe require clarification. IBM believes at least some of its objections could be resolved by raising them in the first instance with the Magistrate Judge, and would prefer to give the Magistrate Judge an opportunity to consider these objections before raising them with Your Honor.

Rule 72 of the Federal Rules of Civil Procedure, however, states that "[w]ithin 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made." Fed. R. Civ. P. 72(a). Thus, while IBM is hopeful that at least some of its objections can be resolved by the Magistrate Judge, and would prefer that they be addressed by her in the first instance, we do not want to waive IBM's right to appeal the Discovery Order, in particular IBM's right to seek Your Honor's review of each of the rulings made by the Magistrate Judge in the January 18, 2005, order.

For the foregoing reasons, we respectfully request that IBM be given an extension of time to lodge its objections to the Discovery Order. Specifically, IBM requests that the Court enter an order that would (1) require IBM to file a Motion for Reconsideration/Clarification of the January 18, 2005, Discovery Order no later than February 11, 2005, and (2) give IBM until 10 days after being served with a copy of the Magistrate Judge's order on that motion to file with the District Court any remainging objections to the Discovery Order.

IBM submits herewith a proposed form of order consistent with the foregoing request for relief.

DATED this 1st day of Febuary, 2005.

SNELL & WILMER L.L.P.
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

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

BY ____[signature]____
Counsel for Defendant International
Business Machines Corporation


CERTIFICATE OF SERVICE

I hereby certify that on the 1st day of Febuary, 2005, a true and correct copy of the foregoing was served by hand delivery to the following:

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

and was sent by U.S. Mail, postage prepaid, to the following:

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

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

_____[signature]____


  


IBM Challenging Wells' Order | 293 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic here please
Authored by: fudisbad on Wednesday, February 02 2005 @ 04:59 AM EST
For current events, legal filings, 10-K's and CC10 rulings. Please make links
clickable.

---
See my bio for copyright details re: this post.
This subliminal message has been brought to you by Microsoft.

[ Reply to This | # ]

Corrections here please
Authored by: fudisbad on Wednesday, February 02 2005 @ 05:01 AM EST


---
See my bio for copyright details re: this post.
This subliminal message has been brought to you by Microsoft.

[ Reply to This | # ]

Judge Kimball may jump in.
Authored by: Anonymous on Wednesday, February 02 2005 @ 05:14 AM EST
I'm afraid Judge Kimball may jump in much sooner then IBM can blink.

[ Reply to This | # ]

Wow! They really did it.
Authored by: Anonymous on Wednesday, February 02 2005 @ 05:24 AM EST
Not that they had a lot of choice, IMO. The order was just so absurd/unfair for
IBM that they had little other choice.

[ Reply to This | # ]

The truly irritating thing
Authored by: inode_buddha on Wednesday, February 02 2005 @ 05:56 AM EST
The truly irritating thing is knowing how this is going to get spun into FUD. I've already seen some of it on various forums:
"Oh Look! IBM wants a delay! No fair delaying! And stuff was sealed! Why was it sealed if they're in the clear!"

Cheerfully trying to shine a light of factual information and truth on FUD all over the net nowdays, but man some things are just relentless. There's a big difference between starting out with having read the contracts and transcripts vs. starting out with an asumption of guilt.

---
inode_buddha
peter.vantassell@gmail.com

[ Reply to This | # ]

A wink and a nod.
Authored by: rsteinmetz70112 on Wednesday, February 02 2005 @ 05:57 AM EST
I wonder if Judge Wells was actually inviting this. She could only rule on
discovery, not on the other issues. Seeing how this was going she seems to have
felt that in the absence of Kimball ruling on the PSJs she had little choice.
With the looming cut off of discovery she had to do something.

It was suggested in another comment on an earlier article that she may actually
be inviting Kimball step in and clear away the underbrush.

She explicitly overrode the scheduling order by allowing discovery to continue
past the cut off date. That would require Kimball to act at least on that issue.

---
Rsteinmetz

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

What's happening here?
Authored by: Anonymous on Wednesday, February 02 2005 @ 06:31 AM EST
I don't want to sound skeptical, but can we be sure that everything is still
going just fine.

[ Reply to This | # ]

IBM Challenging Wells' Order
Authored by: webster on Wednesday, February 02 2005 @ 07:01 AM EST
1. One would have thought she consulted Kimball in issuing her order. If she
did, she still does not understand the various claims. Kimball would have.
2. She is not involved with the PSJ's. If so she would have understood the
posture of the case. It would have affected her order, at least as to timing.
3. IBM is buying lots of time and possibly saving lots of work and time in the
end. Wells will get up to speed or Kimball will take a look at the situation.

4. Kimball has the PSJ's too so he will realize that granting one of them will
obviate all of this discovery.
5. To save time and embarassment he can deny this extension and have the appeal
immediately to him. Or will this cause embarassment?
6. It is often better to just order and not explain. The explanation can
suggest error/disagreement/confusion while the order alone wouldn't.
7. Kimball can decide to work on this and the PSJ or just the PSJ.

---
webster

[ Reply to This | # ]

New code vs. derivative code
Authored by: Anonymous on Wednesday, February 02 2005 @ 08:20 AM EST
IANAL - ok that said... I've been surprised that I've not seen objections to or
questions of Judge Well's order in any of the articles that reported on it. If
Judge Well's view of derivative code prevails then what code is not derivative
of some earlier code? If the new model allows deeming current code as
derivative by tracing back through however many steps no matter how far removed
then when is code not deriative? I'm not trying to be hostile with this
question, I'm looking for a bright line that differentiates derivative from
original. At this point I would have thought other software companies would be
questioning the impact, if it holds, of Judge Well's order as it relates to
their own product.

[ Reply to This | # ]

IBM Challenging Wells' Order
Authored by: odysseus on Wednesday, February 02 2005 @ 08:45 AM EST

Heh, I've got to say " I told you so", as it stood the order was just too broad to be practical to comply with.

And what a classy way to do it, it both puts Wells on notice that she needs to get it right this time around, and gives a Kimbell an excuse to pop down to Well's office to give her some pointers on where she went wrong and what she needs to do to save face.

John.

[ Reply to This | # ]

Changing a Judges mind
Authored by: cruss on Wednesday, February 02 2005 @ 09:24 AM EST
How likely is is for IBM to be able to change the order? Is this a fairly
standard request or do judges not like to be told that they were wrong? If this
is standard then how do the courts keep requests like this from bogging down the
system? I would guess that almost every order would be "revisited"
like this by whomever doesn't like what it said.

---
--
security is directly proportional to inconvenience
cruss at hcity net

[ Reply to This | # ]

IBM Challenging Wells' Order
Authored by: blacklight on Wednesday, February 02 2005 @ 09:33 AM EST
Judge Welles might have saved herself at least some grief, had she scheduled a
hearing before she entered her order.

I somewhat empathize with her, because she is operating in a very fluid
situation with four PSJs plus a couple of minor issues that judge Kimball has
yet to rule on that would directly impact on her. I think it would be very
helpful to everyone if judge Kimball started to do his stuff.

[ Reply to This | # ]

Innocent until Proven Guilty OR Guilty until Proven Innocent
Authored by: dodger on Wednesday, February 02 2005 @ 09:46 AM EST
when she wrote, "IBM's case will be strengthened tenfold if IBM can show
that notwithstanding possible contract protections, homegrown code provided no
basis for the code that IBM eventually contributed to Linux?"

SCO has made the claim that "homegrown code" was contributed to Linux.
It seems to me that SCO must demonstrate this claim instead of IBM having to
demonstrate the claim meritless.

Whatever happened to "Innocent until proven Guilty"?

So far, there have been only accusations without proof.

[ Reply to This | # ]

IBM Challenging Wells' Order
Authored by: clark_kent on Wednesday, February 02 2005 @ 10:21 AM EST
I think judge Kimball wants to get this over with, and I think she is moving
towards a settlement. The problem is, Judge Kimball is not knowledgable enough
about computer code. But can you blame her? I don't.

If a judge could objectively look at the truth, as God does, then I would trust
that judge. But it seems she may be lacking in the knowledge part or even
trying
to conceptualize what is at stake. How do you think Bill Gates snow-balled the
industry and government? Selling software is basically like claiming ownership
of molocules and microscopic particles, something we can't "see." We
as a society are not used to this type of commerce. So we end up trusting the
people that make the business moves, not the people who know what they are
talking about or what they actually see in software. I am a geek. I understand
software. I understand what it is. Most people don't have a clue. What is Bill
Gates saying? "Don't look at the software... look at the money Microsoft
makes!" What is not happening is the government is not listening to the
people or looking to the situation in the trenches, which is the programming
arena and the point of creativity!

And if judges resort to giving up on finding the overall truth in software
matters, then I say, to hello-operator with Software Patents. How can a
government regulate something it doesn't understand? Then just don't regulate
it. There are many things we do understand as humans. Software isn't one of
them. We should retract back to the times of basic copyright protection for
programs. No patents! Not yet!

Government has to do three thing before I give my thumbs up for software
patents.

1) They have to start caring about the people at, and on the consumer level,
and
work their way back through the mess of viruses, trojans, and poorly written
software (including Microsoft OSes).

2) They have to actually understand software from the point of creativity, the
programming.

3) They must have a clear picture of the WHOLE structure - The programming, all
the different technologies involved (Windows, Linux, BSD, Unix, MP3, AAC, MPEG
... etc) and all the differnt companies involved (Microsoft, Red Hat, IBM, SCO,
Apple, AMIGA ... whomever)

Sound too impossible?... probably

In other words, government has to get off their fat lazy bottoms and actually
do
some work! And if they can't or won't do it, then they do not deserve the right
to regulate at that level. No software patents. Uphold copyright law at least
to
10 years ago.

[ Reply to This | # ]

Amazing isappearing agenda
Authored by: codswallop on Wednesday, February 02 2005 @ 12:38 PM EST
From the Sco v. IBM case log:

Magistrate Notice of Hearing (SCO v. IBM) set for 10:00 9/2/04 for [190] motion
to compel discovery to be held before Judge Wells

Magistrate Notice of Hearing (SCO v. IBM) set for 10:00 9/14/04 for [212] motion
to strike the 7/12/04 Declaration of Christopher Sontag, set for 10:00 9/14/04
for [190] motion to compel discovery. To be held before Judge Wells

Amended Magistrate Notice of Hearing (SCO v. IBM) reset for 10:00am 10/19/2004
for [212] IBM's Motion to Strike the 7/12/2004 Declaration of Christopher Sontag
and [190] SCO's Motion to Compel Discovery. To be held before Judge Wells

On October 19, 2004, the court heard argument regarding SCO Group's renewed
Motion to Compel Discovery.

These are the case log descriptions. What happened to the Sontag motion? A
decision on it is critical, since Judge Wells used it as a basis for ruling.
Someone asked this question when the article about the hearing was posted, but
it was never answered. Was it on the agenda for the hearing? Was it ?f no, why
not?



---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.

[ Reply to This | # ]

IBM Challenging Wells' Order
Authored by: Anonymous on Wednesday, February 02 2005 @ 12:39 PM EST
Here's a question about the whole "every line of every version of AIX"
discovery issue. Why haven't one or both of the parties (or the court) suggested
a sensible, rational way to do dicsovery on this issue.

Which is to say that the issues involved don't relate to all the billions of
lines of code that make up all the parts of AIX: the issues only involve certain
modules within AIX, like the RCU code.

So, why haven't either SCOX or IBM proposed to just do discovery on all the
intermediate versions of only the few disputed software modules in AIX, and to
name and/or depose only the folks involved in working on this code. Wouldn't
that serve the interests of justice in expediting this issue? I can guess at the
reasons why SCOX might not want to resolve this issue quickly and get on with
the case. But I'm not so sure why IBM hasn't proposed such a solution.

[ Reply to This | # ]

Can SCO stick their oar in?
Authored by: Kaemaril on Wednesday, February 02 2005 @ 01:01 PM EST

Not being up on the US legal system, I have to ask:

Is this purely between the court and IBM, or can SCO intervene with some ridiculous motion about how unnecessary this appeal is because Judge Wells was right on the money, and IBM are just griping and being big old meanies?

I.E., is this something SCO has to watch from the sidelines as IBM and the court hash it out, or do they get an opportunity for their usual muddying of the waters?

[ Reply to This | # ]

Has IBM already missed the deadline?
Authored by: Anonymous on Wednesday, February 02 2005 @ 01:06 PM EST
They say that Fed. R. Civ. P. 72(a) gives them 10 days from being served with an
order to object. I'm assuming that they were served on Jan. 18. Threfore they
would have to object by the 28th.

I presume they would have to file their motion for extension during that time,
and be prepared to file a full objection on the 28th if their motion was denied
(or even not replied to).

But here we are with a request for an extension on Feb. 1. Usually my teachers
haven't looked very favorably on petitions for extension after the due date of
the assignment in question...

[ Reply to This | # ]

Not that onerous
Authored by: Anonymous on Wednesday, February 02 2005 @ 02:47 PM EST
If I may be so bold as to take a minority position here, I have to say that
delivering a couple billion lines of code is not that hard to do.

In my estimation, IBM can provide an AIX machine with a pre-installed hard disk
containing a copy of their CMVS database and the CMVS application so SCO can
access it. The retail value of the hardware might be around $25K or so, but
it's IBM's own stuff so they can probably just pull some warranty return or old
stock. They've spent more than this on legal fees for the discovery replies
already I'm sure.

The full repository will also include a great number of programmer's names and
the notes they typed in when they submitted changes to the repository. Beyond
that, a single corporate attn-all-managers email to the effect of "hey give
us the names of everyone you remember working on linux, rcu, sequent, dynix,
monterrey" should yield 3000 names within an hour. Send out some
registered letters to them all asking for any notes they kept or certify that
they did not keep any notes.

My point is, IBM still has the option of complying with the discovery order at
what amounts to a tiny cost to them, and all it does is give SCO an even bigger
haystack to sift through than they already have.

[ Reply to This | # ]

Why assume Wells and Kimball consult?
Authored by: grouch on Wednesday, February 02 2005 @ 04:16 PM EST
While I fume and growl about Judge Wells' order, I can still see how she could
make such mistakes. Courts in the U.S. are swamped. Because of the loads, I
don't see any reason to assume that Wells and Kimball have remained in close
consultation about this case. They each have their work cut out for them and
each likely has to assume the other is handling matters before them, just to
keep up.

Can someone point me some authoritative reason to believe they are consulting
with each other on things like this discovery order?

I am glad they are moving things along instead of passing the buck, as I feel
the Delaware court did regarding Red Hat. The fact that SCOG has been able to
keep this snake oil medicine show going for going on 2 years without any real
evidence of wrong-doing just illustrates that there is a breakage in the system,
not in the individuals working in the system.


---
"The power of the Web is in its universality. Access by everyone regardless of
disability is an essential aspect." -- Tim Berners-Lee, inventor of the WWW

[ Reply to This | # ]

A little respect for the judge.
Authored by: Anonymous on Wednesday, February 02 2005 @ 07:42 PM EST
Judge Wells is doing WAY better than almost all of us could do.

[ Reply to This | # ]

Wells's statement about homegrown code
Authored by: Anonymous on Wednesday, February 02 2005 @ 08:47 PM EST
I didn't take that statement to mean that IBM's only way to win was to prove
that no "homegrown" code made it into Linux, only that if no such code
did, there wouldn't be a need for a trial.

The wording was bad, since IBM obviously couldn't put in "non-homegrown
code" (i.e. infringing code), so I think she ought to have written
"homegrown code that was contributed tO both UNIX and Linux."

The side letter means that IBM has the right to put that code in, but Wells
wasn't ruling on that. This is clearly dicta (thanks Eben Moglen!) meant to
suggest that the parties should negotiate.

[ Reply to This | # ]

Order has been granted
Authored by: Anonymous on Wednesday, February 02 2005 @ 08:54 PM EST
See Tuxrocks IBM-393.pdf

[ Reply to This | # ]

IBM Challenging Wells' Order
Authored by: Steve Martin on Wednesday, February 02 2005 @ 09:48 PM EST
Hot off the press...

Docket # 392 -- Judge Wells has granted IBM's Motion for Leave to File
Sur-Reply. IBM's Sur-Reply shall be due on or before February 18th.


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

[ Reply to This | # ]

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