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Kimball & Wells Quickly Grant Both IBM Motions - SurReply and Time to Object to Order
Thursday, February 03 2005 @ 02:34 AM EST

Judge Kimball and Judge Brooke C. Wells have granted both of IBM's motions, for leave to file sur-reply and for more time to file objections to Judge Wells' Order:

  • 392 - Order Granting Defendant/Counterclaim Plaintiff IBM's Ex Parte Motion for Leave to File Sur-Reply
  • 393 - Order Granting IBM's Ex Parte Motion For Extension of Time to Submit Objections to Discovery Order

Judge Wells is the one who signed the order giving IBM time to submit objections to her order. So, now we're cooking.

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

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.

_______________________

PROPOSED
ORDER GRANTING IBM'S EX PARTE
MOTION FOR EXTENSION OF TIME
TO SUBMIT OBJECTIONS TO
DISCOVERY ORDER

Civil No. 2:03 CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

_______________________

Based upon Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") Ex Parte Motion for Extension of Time to Submit Objections to Discovery Order, and for good cause appearing,

IT IS HEREBY ORDERED as follows:

1. IBM shall have until February 11, 2005, to file with the Magistrate Judge its Motion for Reconsideration/Clarification of the January 18, 2005, Discovery Order; and

2. IBM's objections to the discovery order under Federal Rule of Civil Procedure 72(a), if any, shall be due no later than 10 days after being served with a copy of the Magistrate Judge's order on that motion.

DATED this 1st day of Febuary, 2005.

BY THE COURT

___[signature]____
Dale A.Kimball
United States District Court

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 deliver 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]____

United States District Court

for the

District of Utah

Febuary 2, 2005


* * 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]
EMAIL

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

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

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

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

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

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


EMAIL

Mr. Kevin P McBride, Esq.
[address]
EMAIL

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

Stuart H. Singer, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL

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

Mr. Michael P O'Brien, Esq.
JONES WALDO HOLBROOK & MCDONOUGH
[address]

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

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.

_______________________

PROPOSED ORDER GRANTING
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

_______________________

Based upon Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") Ex Parte Motion for Leave to File Sur-reply to SCO's Reply Memorandum in Support of Motion for Leave to File Third Amended Complaint, and for good cause appearing thereon,

IT IS HEREBY ORDERED that IBM may file a Sur-reply Memorandum in Response to SCO's Reply Memorandum in Support of Motion for Leave to File Third Amended Complaint, which shall be filed and served on or before February 18, 2005.

DATED this 1st day of Febuary, 2005.

BY THE COURT

___[signature]____
Brooke C. Wells
U.S. Magistrate Judge

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 deliver 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]____

United States District Court

for the

District of Utah

Febuary 2, 2005


* * 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]
EMAIL

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

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

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

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

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

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


EMAIL

Mr. Kevin P McBride, Esq.
[address]
EMAIL

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

Stuart H. Singer, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL

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

Mr. Michael P O'Brien, Esq.
JONES WALDO HOLBROOK & MCDONOUGH
[address]

  


Kimball & Wells Quickly Grant Both IBM Motions - SurReply and Time to Object to Order | 244 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Re: So now we're cooking.
Authored by: Anonymous on Thursday, February 03 2005 @ 02:55 AM EST
Darl: You want fries with that?

[ Reply to This | # ]

Kimball Quickly Grants Both IBM Motions - SurReply and Time to Object to Order
Authored by: jmc on Thursday, February 03 2005 @ 03:01 AM EST
Don't want to be picky but I notice it's Judge Wells who granted the surreply
motion and Judge Kimball who granted the extension for objections motion.

Don't know whether that's significant?

[ Reply to This | # ]

Kimball Quickly Grants Both IBM Motions - SurReply and Time to Object to Order
Authored by: jim Reiter on Thursday, February 03 2005 @ 03:03 AM EST


Is this a victory for IBM, or maybe two (2) victories?

Poor TSG, one step forward, two steps back. The good news,
BS (Boise, Schiller) is a dream team, the bad news, its
IBM's dream team.

[ Reply to This | # ]

corrections?
Authored by: Anonymous on Thursday, February 03 2005 @ 03:08 AM EST
death to spelling/grammar nazis

[ Reply to This | # ]

Kimball Quickly Grants ...
Authored by: Anonymous on Thursday, February 03 2005 @ 03:15 AM EST
Gee - Didn't your heart jump a bit when you read those three words. I know mine
did. Anyway, three cheers for Judge Kimball, and may this help him get over that
nasty case of writer's block he seems to be suffering from. That is the advice
they give you, you know. Just write something - anything. Dash off a page here,
a quick surreply approval there, and before you know it ....

Here's to hoping anyway.

[ Reply to This | # ]

OT
Authored by: Anonymous on Thursday, February 03 2005 @ 03:17 AM EST
<A HREF="http://www.example.com">Clickable link</A>

[ Reply to This | # ]

Confusion over "homegrown" -- a simple misreading?
Authored by: pmichaud on Thursday, February 03 2005 @ 09:49 AM EST

Humbly offered, with apologies if this has already been observed/mentioned/discussed somewhere else (if so, just point me to the correct thread).

After reading this article I happened to look back at this article ('The Wells Discovery Ruling - Grants in Part, Denies in Part') and noticed something about Wells' ruling. Wells quotes as follows:

In short, IBM cites two primary reasons as a basis for granting summary judgment. First, "the AT&T agreements upon which SCO's claims are based do not preclude IBM from using and disclosing source code that is written by IBM and does not include UNIX System V code [i.e. homegrown code]." Id. [docket no. 225]

Any chance that Judge Wells has simply misread/misunderstood the term "homegrown code" to refer to just "Unix System V code" and not the full "source code that is written by IBM and does not include ..."? While it's clear to us what IBM meant, that doesn't mean there's not an alternate interpretation. Suddenly a lot of things about the order make a little more sense (perhaps even including why the order took so long to arrive).

IBM 225 itself isn't helpful here -- the original text reads:

First, the AT&T agreements upon which SCO’s claims are based do not preclude IBM from using and disclosing source code that is written by IBM and does not include UNIX System V code (referred to herein as “homegrown” code)

It seems easy to misread this such that the term "homegrown code" is referring to UNIX System V code and not IBM's code. Indeed, nothing else that comes later in IBM 225 would appear to make it obvious that this (mis)reading of the term is incorrect. If someone misreads "homegrown code" to mean "Unix System V", then suddenly IBM 225 looks as though IBM is taking the position that IBM had contractual rights to publish Unix System V code (which, of course, is not IBM's position as we on Groklaw understand it).

I haven't yet re-reviewed the other case documents to see if anything was written or argued that would make the discrepancy apparent to someone who was working from the alternate "homegrown"=="Unix System V" interpretation, but I can see how this ambiguity in IBM 225 could've led to all sorts of confusion and misunderstanding.

Pm

[ Reply to This | # ]

Suggestion for Darl and Blake:
Authored by: Anonymous on Thursday, February 03 2005 @ 09:54 AM EST
You might want to move a couple of comfy chairs down to the loading dock. You
may be waiting a while before the semi trailers full of IBM's source code
arrive.

[ Reply to This | # ]

394-1: Memorandum by SCO Grp in opposition to [391-1]
Authored by: belzecue on Thursday, February 03 2005 @ 12:11 PM EST
Let's not forget the hastily lodged 394-1: Memorandum by SCO Grp in opposition
to [391-1] ex parte motion to extend time to submit objections to discovery
order.

My goodness, IBM asks on 1 Feb and SCO shrieks a response on 2 Feb. A one-day
turnaround. Those boys sure can put the pedal to the metal when they try. Can
we have a one-day turnaround for all motions from now on? Then we'll be done in
time for Easter.

-----

394-1 Filed: 02/02/05
Entered: 02/02/05 Memorandum in opposition mem opp -/-/- - - blk 1592825
Docket Text: Memorandum by SCO Grp in opposition to [391-1] ex parte motion to
extend time to submit objections to discovery order

[ Reply to This | # ]

Confusion might be what SCO was shooting for.
Authored by: Anonymous on Thursday, February 03 2005 @ 12:43 PM EST
This may be the early setup for their position towards a jury. Their position
makes no sense, therefore there must be something there or something going over
your head to explain it. So if you are a judge or jury thinking you are
confused/stupid, you give them the benefit that they can't be that absurd and
give them what they want.

It is the Chewbacca complaint. A new spin on something old and ridiculous that
actually works sometimes.

[ Reply to This | # ]

Confidentiality Clauses
Authored by: jim Reiter on Thursday, February 03 2005 @ 03:09 PM EST


IBM is ONLY required to keep confidential SVRX code that
has not been made public by others.

example: Any SVRX code in Caldera's OpenLinux eDesktop
and/or eServer released under the GPL in 2000 would no
longer be covered by the confidentiality provisions of the
software agreement. Sam could have it tattooed on his
forehead.

More likely Caldera's OpenLinux eDesktop and/or eServer
contain derivative works based on SVRX code. If TSG
contends that derivative works are part of the "Software
Product" as they seem to interpret these contracts and
licenses to mean, then there is a huge amount of SVRX code
in the public domain much of it put there by Caldera,
now d/b/a the SCO Group.

There is a limit on intelligence, there is no limit on
stupidity.

[ Reply to This | # ]
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