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SCO's Opposition to IBM's Motion for Reconsideration: More, More, More
Wednesday, March 02 2005 @ 02:41 PM EST

As usual with SCO, when the court gives them an inch, they interpret it to mean a mile, and then they criticize IBM for refusing to give them the mile. Here's their Opposition to IBM's Motion for Reconsideration of This Court's January 18, 2005 Order Regarding SCO's Renewed Motion to Compel [PDF]. For reference, here is the IBM Motion for Reconsideration.

Then they schmooze with their few friends in the media, who dutifully write articles about IBM "refusing" to hand over the mile for a year and a half. Now they want firmware and middleware, which they claim the court just ordered. Anybody remember them ever asking for firmware and milddleware before? No? Yet they are upset that IBM won't interpret the court's January 18th discovery order to include both.

Here is what Judge Brooke Wells said SCO had asked her for in their most recently decided Renewed Motion to Compel:

"SCO's renewed motion requests the following:

"1. All versions of AIX and Dynix/ptx, including the names of individuals who contributed to AIX and Dynix. According to IBM, this additional source code is 'roughly two billion lines of code.' IBM's Mem. in Opp. p. 7, docket no. 217.

"2. Access to revision information including access to IBM's storage systems known as Configuration Management Version Control (CMVC) and Revision Controls System (RCS). See SCO's Renewed Mtn. p. 3, docket no 190; Mem. in Supp. p. 5, docket no. 193. These systems allegedly contain information regarding what changes were made to AIX and Dynix and by whom such changes were made. See id. SCO argues such information is responsive to its discovery requests, is necessary to prosecute its case and to defend against IBM's counterclaims. See id.

"SCO also requests all programmer notes, design documents and 'white papers.' SCO's Reply Mem. Re. Discovery, docket no. 205.

"3. Documents from top level management relating to inter alia, IBM's use and strategy behind Linux. See SCO's Mem. in Supp. p. 2.

"4. Further supplementation to Interrogatory Number 5, which seeks the identity of 'IBM or Sequent personnel that work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux, specifying for each person their precise contributions to each.' Id. p. 4 (emphasis in original).

"5. Witness contact information that is to include a 1000 of the most important prospective trial witnesses as agreed upon by SCO and IBM." Order dated March 3, 2004, p. 5, docket no. 109."

See what I mean? See any request for firmware? No matter what they get, they push for more, and with each push for the next pound of flesh, they trash talk IBM, pretending that IBM is "withholding" from them what is their due. It's been an effective strategy so far, assuming you don't care a fig what anyone thinks of you when they carefully check the facts. And please note that the judge says that they are asking for "further supplementation" of their Interrogatory Number 5, not that IBM be forced to turn over something already ordered. See how you have to watch them? By the way, see on SCO's list a request for any 3,000? No? That is because they asked for contact info, etc., for all of the 7,200 names IBM had already given them, and it was the judge who said no to that request and ordered, for the first time, that IBM turn over info on 3,000 of the 7,200 names on January 18, 2005.

They also want all IBM's contributions to Linux, arguing that they can't figure it out from the publicly available records for themselves, because some contributions are by folks using handles or no names at all. They claim that was ordered by Wells too. See it on the list? Right.

I've only just glanced through it, so I may write more in detail later, but what I see so far is quite simple. Both sides are trying to interpret the most recent discovery order their way. IBM gets to answer this and it has asked for a hearing, so more full-blown discovery war, and then the judge will decide. In fairness, IBM is also trying to interpret the discovery order their way. The truth is, the order wasn't altogether clear, so now both sides are providing the judge with an interpretation they hope she will accept, IBM by saying, "How about we do this? Is that what you meant?" And SCO says, "Those evil malingers won't agree to broaden your order to mean what *we* say it should mean." Two different styles of lawyering.

The SCO version of IBM's "refusal" to turn over discovery is so skewed compared to the history I witnessed that I've been thinking about that ethics class we read about recently. I surely wish to repeat at least this much: IBM was not told to turn over the files for the 3,000 witnesses until January 18, 2005.

But SCO presents its view with such ferver, indeed outrage, that it's very effective, if you don't happen to know the truth. Their arguments that IBM has no right to even ask for a reconsideration, flying directly in the face of Judge Kimball granting them the opportunity, indicates to me that both sides are gearing up for an appeal no matter what happens here. Either that, or they just don't know when to quit being nasty. Just to remind everyone, here's just one example of SCO objecting to IBM's discovery requests. But you don't see IBM getting hysterical about SCO "withholding" discovery, do you? Frankly, at this point, I would be glad to see it happen. What SCO has been angling for is so massive, and it never ends, it needs review on appeal before they drag us down another two years of nonsense based on broad claims but no plausible evidence to support them.

I doubt the judge will like, or agree with, SCO's cynical claim that the judge showed he agreed with SCO's position by denying two of IBM's motions before they were even fully briefed in his last order. That is so silly. If the judge had done that, it'd be grounds for appeal on its face. What he did was deny without prejudice to refile or renew, meaning he told IBM to tell him all about it later, when discovery is finished. SCO's pretense that this means he agreed with SCO on the merits must be directed at the media, because the judge will know better. *I* even know better, and I'm just a paralegal.


  


SCO's Opposition to IBM's Motion for Reconsideration: More, More, More | 266 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO's Opposition to IBM's Motion for Reconsideration: More, More, More
Authored by: pfusco on Wednesday, March 02 2005 @ 02:54 PM EST
Seems to me to just be "same ol' same ol'". They are going down, they know they are going down, so why not go down kicking and screaming?

meh, not that it matters much in the grand scheme of things

---
only the soul matters in the end

[ Reply to This | # ]

Corrections Here
Authored by: Minsk on Wednesday, March 02 2005 @ 02:57 PM EST
That is corrections to the article. Tabulating the SCO assertion errors in here
would just be excessive.

[ Reply to This | # ]

Off Topic here please
Authored by: roboteye on Wednesday, March 02 2005 @ 02:59 PM EST
This one might be late - look above for an earlier version

[ Reply to This | # ]

It'd be funny if it weren't so disgusting
Authored by: sef on Wednesday, March 02 2005 @ 03:02 PM EST
IBM primarily contends, without any affidavit or evidentiary support

[ Reply to This | # ]

Gaming the system
Authored by: SpaceLifeForm on Wednesday, March 02 2005 @ 03:03 PM EST

But why? Is the SCO-IBM suit just a distraction? Is the battle for control of Canopy more important?

I can see this mess dragging out for another 20 years.

I hope you have lots of disk space PJ.

[ Reply to This | # ]

SCO's new Middleware Software Lineup..
Authored by: Anonymous on Wednesday, March 02 2005 @ 03:07 PM EST
Revised Sco Business Plan.

1. Get Source code for all IBM AIX middleware products (DB2, Tivoli, Lotus, MQ
or Websphere).

2. Take source code, remove all references to IBM then rename SCODB,
TivSColi, MScoQ and WebScophere.

3. Tell Judge you reverse engineered everything.

4. Profit !!!

[ Reply to This | # ]

SCO's Opposition to IBM's Motion for Reconsideration: More, More, More
Authored by: roadfrisbee on Wednesday, March 02 2005 @ 03:08 PM EST
I'm shocked that SCO isn't also demanding the bank account and PIN numbers of
all I.B.M. executives claiming that this would also help them prove their case.
What is next, the blueprints for all I.B.M. mainframes ever developed? Funny
thing is that for my 50+ years I always thought you had to have some actual
evidence before even making it as far as these bozos have. Guess I was wrong.

[ Reply to This | # ]

Just a bit of nit-picking...
Authored by: Anonymous on Wednesday, March 02 2005 @ 03:10 PM EST
Just a bit of nit-picking:
indicates to me that both sides are gearing up for an appeal no matter what happens here. Either that, or they just don't know when to quit being nasty.
This sound like you criticize both SCO and IBM. Is this your intent? Maybe this should read "Either that, or SCO just doesn't know when to quit being nasty."?

[ Reply to This | # ]

I think SCO are right
Authored by: Anonymous on Wednesday, March 02 2005 @ 03:11 PM EST

I think that IBM is being unfair by trying to hold back on what they give to
SCO.

PJ - I think that your bias towards IBM is showing clearly through.

IBM should give SCO everything. Absolutely everything.

They should arrange to ship several hundred tons of concrete to Utah and bury
SCO and this entire scam. They should build a whole new IBM complex on top of
SCO and their legal team. They should dedicate the loo's to SCO - so we can all
pass comment ( or otherwise ) in their direction.

They should build a mountain of CD's containing the stupid discovery SCO are
seeking and then they should plaster over it with printouts of the linux kernel,
JFS code, NUMA code - and then on top of that they should erect a monument (
along the lines of the hollywood sign ) for Groklaw.

Then they can dust off their hands, and we all can get back to the business of
living.

We should of course mount an eternal vigil to ensure that the evil one never
esacpes, we will need to pass the responsibility down to our children - to let
them know of the evil buried in utah.

A little stand in the corner, with a small bowl of salt available so Linux users
for all eternity can visit and sprinkle a little salt on the soil of SCO.

footnote: Is my bias against SCO showing too :-) ?

[ Reply to This | # ]

SCO's Opposition to IBM's Motion for Reconsideration: More, More, More
Authored by: Anonymous on Wednesday, March 02 2005 @ 03:17 PM EST
Have I not been paying attention closely enough, or does footnote 3 not tell us
something new?

[ Reply to This | # ]

They also want "hardware design changes" !
Authored by: ak on Wednesday, March 02 2005 @ 03:32 PM EST
On pages 9 and 10 they write:
In the computer field, hardware and software designs are closely interwoven.5 Implementation of multiprocessor designs and 64-bit architecture required software engineers to tewrite operating system software to account for shared memories, local caches, registers, and other hrdware improvements. Thus, hardware design changes provide evidence that is directly relevant to explain operating system software design changes and, to the extent that information concerning hardware design changes relate to AIX, that information should be produced pursuant to the Court's Order.
In that context the footnote 5 is - well - interesting:
To illustrate, improved word processing applications demanded improvements in available memory, but improvements in memory design made possible much more advanced word processing application programs.
No comment - from me - now.

[ Reply to This | # ]

If you give a mouse a cookie...
Authored by: Anonymous on Wednesday, March 02 2005 @ 03:41 PM EST
It's clear that SCO's plan is justice delayed is justice denied, for IBM.

[ Reply to This | # ]

A reminder
Authored by: Anonymous on Wednesday, March 02 2005 @ 03:42 PM EST
This memorandum is blatantly misleading, pushes every little concession by the
judge well past any reasonable limit, and in short, is more of the same whiney
begging by SCO for the court to make IBM give them a case, any case.

However, it has worked quite well so far, and it will probably continue to work.
Unless something wipes SCO out prematurely, this will continue to drag on
forever.

[ Reply to This | # ]

Firmware?
Authored by: rweiler on Wednesday, March 02 2005 @ 03:43 PM EST
This seems like a pretty easy one to deny. What firmware could IBM have possibly
contributed to Linux that came from Sys V? Afterall, firmware is tied to the
device, not to the OS, and given the realities of the modern world, if a device
was going to present an interface on the software side that was tailored to a
particular OS, surely that OS would be Windows and not SCO Unix. I have to
believe that the firmware and middleware land grabs were just included to have
something to bargain away.

---
Sometimes the measured use of force is the only thing that keeps the world from
being ruled by force. -- G. W. Bush

[ Reply to This | # ]

This is too bad even to be wrong
Authored by: Chris Lingard on Wednesday, March 02 2005 @ 03:47 PM EST

IBM would exclude five general (and potentially very broad) categories of AIX source code and revision information: hardware system designs, firmware, manufacturing-related components, middle-ware, and other software designed to run on top of the AIX or Dynix operating systems.

Since when have the hardware system designs been any concern of the software engineers; it is a box, you program it. Many years ago, on bespoke systems, you could specify what hardware sub-set went in which interrupt; but it made little difference to how you programmed it.

Once again firmware has little to do with the operating system. If the operating system cannot detect a peripheral, then an upgraded firmware might fix it; but this does not effect operating system or system implementation.

manufacturing-related components. I do not care what colour the cables are. You get a specification as to what a device does, then "program" it, it does not matter what is in the box.

I think that have got middle-ware wrong; they might mean device drivers. The operating system does not use shared libraries, (they are not available on boot up, so anything in the boot process has to be statically linked. But then SCO seem to have a thing about "shared libraries"; but they are only used in user space. My worry would be getting a Utah jury to understand this; (shudder).

"other software designed to run on top of the AIX or Dynix operating systems"
The system. Utilities, compilers, editors, the system itself. Do we have a check list, from SCO, as to what programs they are claiming. But Linux will only compile with gcc, so this is a mystery. And a lot, (most?), of UNIX utilities were provided by the Universities, using an educational licence; and these licences make it clear, that as long as you do not include operating system code, then copyright resides with the author.

Though I wonder if this is a suicide attack; since they must realise that there is no more gain. (the lawyers get all the money). And they might as well bet their last pennies on lucky red 7.

[ Reply to This | # ]

Judge Wells' original intent
Authored by: jbb on Wednesday, March 02 2005 @ 03:51 PM EST
From her Jan 18th discovery order:
By requiring this, the court seeks to circumvent future complaints by SCO alleging that IBM failed to provide all CMVC and RCS information.

It appears that her plan backfired. Giving SCO more than their fair due in discovery only increases their future discovery complaints. It is like using gasoline to put out a fire.

I really think that the judges have done much more harm than good by being so lenient with SCO. By admiting that the ladder theory may be valid and that information owned and created by IBM, that is otherwise immaterial, may provide a link between SysV and Linux, the judges have opened themselves up to a never-ending discovery phase.

IMO, SCO is right in demanding more and more discovery from IBM. Since the judges have agreed to the ladder theory, the only logical conclusion is that any information anywhere on earth that any IBM employee may have touched is open to discovery.

I've said it before, and I may say it again, the discovery phase will never end unless the judges reverse their decision on the ladder theory. The longer they put off that ruling, the more embarassing it will be when they finally have to reverse themselves.

---
SCO cannot violate the covenants that led to and underlie Linux without forfeiting the benefits those covenants confer.

[ Reply to This | # ]

You are right PJ! More, more, more
Authored by: Anonymous on Wednesday, March 02 2005 @ 03:51 PM EST
The paragraph below is from page 14. I can hardly believe my eyes. I hope the
Judge feels as I do.

Firmware is usually software that is embedded in hardware. As with hardware
changes, firmware changes can dictate changes in operating system software. For
example, personal computers ("PCs") all use a basic input/output
system ("BIOS"), which is firmware used to start up and operate the
PC. The PC's operating system software must be designed to interact with the
BIOS, and changes to the BIOS may require changes to the operating system.
Accordingly, firmware information may provide information related to AIX that
would be relevant to supporting SCO's claims and defending against IBM's
counterclaims.

[ Reply to This | # ]

SCO's Opposition to IBM's Motion for Reconsideration: More, More, More
Authored by: inode_buddha on Wednesday, March 02 2005 @ 04:02 PM EST
Yes, I've noticed (and dealt with) plenty of trolling regarding "witholding
evidence" on the Yahoo! stock board.

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

SCOXE will get it.
Authored by: Anonymous on Wednesday, March 02 2005 @ 04:17 PM EST
After several months of delay. Scoxe will get all that scoxe has asked for.
Which will mean several more months delay. Ita happens every time. Wells is
happy to play scoxe's game.

Scoxe didn't hire senator hatch's kid because the kid is such a great lawyer.
Senator Hatch is on the senate judiciary commitee, Wells doesn't get promoted
without the senator's permission. Senator hatch has long been the right-hand man
of the riaa, the mpaa, and of course: msft.

[ Reply to This | # ]

I want my red stapler back...
Authored by: eggplant37 on Wednesday, March 02 2005 @ 04:22 PM EST
Or maybe I'll just have to burn the building down...

That's what I keep hearing when I read SCO's arguments.

[ Reply to This | # ]

Astonishing.
Authored by: Anonymous on Wednesday, March 02 2005 @ 04:42 PM EST
I really fail to imagine what words will judge use this time.

I am at the page 8 of pdf document and I simply can't comprehend how could
anybody write THIS.
(and I am told that the juiciest parts are just coming)

Astonishing
Absloutely shameless
The most balant disregard for truth

Sorry.
English isn't my mother language (as you might have noticed ;-) and I simply
can't find words to explain how much shocked I am by things some lawyers are
wiling to put on paper.

Yours truly ...
(Troll. Not loged in)

[ Reply to This | # ]

IBM Cause for appeal
Authored by: WildCode on Wednesday, March 02 2005 @ 05:00 PM EST
IANAL:

Because IBM complied with original discovery order, and SCO gained more through
motions to compel instead of asking for more discovery the right way, and still
continue to do so, wouldn't this be grounds for IBM to appeal.

This is the way I see it.

SCO asks for discovery, Judge orders it, IBM complies.

SCO says IBM didn't comply and state what they wanted on top of original order.
Judge orders more discovery. IBM asks for clarification. SCO asks for even more
discovery in response to IBM's request for clarification.

Judges have to fair to both sides. but I think its time to ask SCO some serious
questions. If I were the judge in this case, I'd be asking SCO the evidence they
have found that warrants further discovery requests. Then I'd be asking the
evidence they have gained from the original discovery. And lastly, I'd be asking
for the evidence they had to initiate this litigation. Afterall, it was SCO that
originally made the copyright claims, and then tried to aviod them by removing
them from their complaint.


[ Reply to This | # ]

SCO's Opposition to IBM's Motion for Reconsideration: More, More, More
Authored by: Anonymous on Wednesday, March 02 2005 @ 05:13 PM EST
With SCO's extended requests for More, MOre, MORe, MORE, I fear that I am tiring
of the charade. Judge Kimball refused to consider IBM's request until the end
of discovery. Can anyone remember when 'end of discovery' is? JK indicated
that he would not let the schedule slide - is that still true - is it even
possible? My attention span is rapidly approaching it's limits. Can anyone
suggest a 'reasonable' time schedule (I know SCO has enough $ to extend this
action for a year or two).

One final question: Can anyone suggest when Judge Kimball and MJ Wells will
finally tire of the SCOundrels and insist that the either put up or shut up.

[ Reply to This | # ]

Darl Idol?
Authored by: Anonymous on Wednesday, March 02 2005 @ 05:26 PM EST

With a rebel yell, SCO cried "More, more, more!"
In the 11th hour, they said "More, more, more!"

Et cetera, ad nauseum.

[ Reply to This | # ]

SCO clearly, blatantly, forcing delay delay delay
Authored by: Anonymous on Wednesday, March 02 2005 @ 05:31 PM EST

One could conclude that the tactic du jour is dealying the case in its discovery
phase.

Why,

1) SCO or their backers believe they are getting genuine benefit from delays at
this point ?

2) If discovery ends now, so does SCO & their case ?

3) Is this SCO's desperate last ditched attempt to yet again try to get IBM to
buy them out (of the mess they have got themselves into) ?

DSM

[ Reply to This | # ]

New SCAM?
Authored by: Anonymous on Wednesday, March 02 2005 @ 05:32 PM EST
I am thinking that they've so little hope of winning, that they have changed
plans.

I bet they're doing this discovery just to get their hands on all of IBM's
source code, and then go off and sell it to the highest bidder. And if they get
sued for doing that, they can always use "IBM put our Unix in Linux"
as justification.

Question for the peanut gallery:

Is protected material investigated by a third party, or will SCO actually get
their hands on protected code? If I was IBM, I would now become very skeptic to
SCO's intentions for discovery. It's no longer a fishing trip, it is industrial
espionage flying under the cover of discovery.

[ Reply to This | # ]

  • New SCAM? - Authored by: Anonymous on Wednesday, March 02 2005 @ 05:51 PM EST
    • New SCAM? - Authored by: Anonymous on Wednesday, March 02 2005 @ 06:07 PM EST
  • New SCAM? - Authored by: Anonymous on Wednesday, March 02 2005 @ 07:39 PM EST
    • New SCAM? - Authored by: Anonymous on Wednesday, March 02 2005 @ 09:17 PM EST
  • Yes, in theory - Authored by: Anonymous on Wednesday, March 02 2005 @ 08:09 PM EST
    • Yes, in theory - Authored by: Anonymous on Wednesday, March 02 2005 @ 09:10 PM EST
  • Already admitted they got it - Authored by: Anonymous on Wednesday, March 02 2005 @ 10:01 PM EST
Middleware, eh?
Authored by: inode_buddha on Wednesday, March 02 2005 @ 05:33 PM EST
Middleware, eh? Perhaps its time to check up on MTIC's storage offerings
(vis-a-vis EMC), or perhaps DB2/Websphere and how that might compete with
something else.

No, I can't see what that has to do with the cases at hand.

Open Firmware? LinuxBIOS? Dunno. Apple, Sun, et al might have something to say
about that. Last I looked, there are few players that actually *depend* on a
PC-style BIOS.

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

when sco declares bankruptcy,...
Authored by: Anonymous on Wednesday, March 02 2005 @ 05:49 PM EST
they will blame it on the financial hardships incurred as a result of analysing
the excessive discovery granted to them. and further, that it is ibm's fault
because they were forced to ask for such broad discovery when ibm wouldn't
simply give them the proof they are sure is still in there somewhere.

sum.zero

[ Reply to This | # ]

CCarl Sagan Strikes Again?
Authored by: Anonymous on Wednesday, March 02 2005 @ 05:49 PM EST
Footnote 6 is almost impossible to believe: "...other software designed to
run on top of AIX or Dynix operating systems.....IBM should not be permitted
exlude such material from it's compliance with the Court's Order."

I can not help but hear Carl Sagan saying "that would be billions and
billions of lines of code".

SCO can't even comprehend how much code they are going to get, or have gotten,
from AIX and Dynix. How could they possibly think they could even begin to
evaluate any of this other code.

This is clearly a temper tantrum -- "I know I am not going to win, but I
want to inflict as much pain on IBM as I can."

This is very childish behavior. My four year old son throws tantrums like this,
and the best way to deal with them is to ignore them.

[ Reply to This | # ]

IBM Refilings...
Authored by: Anonymous on Wednesday, March 02 2005 @ 05:54 PM EST

``What he did was deny without prejudice to refile or renew, meaning he told IBM to tell him all about it later, when discovery is finished.''

Well, SCO is doing their darndest to ensure that discovery is never finished, aren't they? Perhaps, they think IBM'll lose interest in refiling those motions if they drag discovery out long enough.


[ Reply to This | # ]

This case has already demonstrated why .................
Authored by: Anonymous on Wednesday, March 02 2005 @ 05:57 PM EST

The American legal system has a totally inadequate structure for dealing with high tech cases.

Were a small tech company, or one not backed by behind the scenes money, involved on either side of this case then they would have already been destroyed regardless of the merits of their case.

How can a legal system justify itself when its faults are so obvious?

Brian S.

[ Reply to This | # ]

Maybe the horse will learn to sing!
Authored by: Anonymous on Wednesday, March 02 2005 @ 06:00 PM EST

SCO's endless delays remind me of an old fable, which seems so appropriate....

A horse thief is caught and brought before the king. In pleading for his life,
he promises to teach the king's favorite horse to sing within one year.
"At that time," he tells the monarch, "if the horse isn't singing
you can still kill me anyway, so what have you got to lose?"

The king takes him up on the offer and a few days later some passers by
encounter the thief giving the horse singing lessons, with no obvious success.

The point out the futility of the task to the thief and ask what he was thinking
to make such an outrageous claim. The theif replies... "A year is a long
time, the king could die, I could escape, or who knows, maybe the horse will
learn to sing!"

[ Reply to This | # ]

Delay no longer helps SCO
Authored by: Anonymous on Wednesday, March 02 2005 @ 06:20 PM EST
SCO, in effect, has already lost both the IBM and Novell cases. The judge has
ruled both times that, so far, SCO has no evidence.

However many delays SCO gets, this will remain the current state of these two
cases until the judge rules differently.

So, SCO needs to have the judge change his mind. Until then, it's "no
evidence" and will continue to be "no evidence" for however long
SCO wants to delay.

[ Reply to This | # ]

Boies' exit strategy?
Authored by: Jude on Wednesday, March 02 2005 @ 06:23 PM EST
I believe Boies has collected all he's going to get from SCO in legal fees. Any
further gain would depend on SCO winning big, or IBM deciding to settle. If
Boies doesn't think either is likely, his most profitable move is to bail out
A.S.A.P. to limit his expenditures.

So, what's a nice way to get out without doing something that would get them
disbarred? That's easy: Bury SCO in discovery. SCO can't look at it
themselves, they have to pay someone else to examine it, and I'm pretty sure
that's not covered by the fee cap deal SCO cut with Boies.

Any reasonable examination of billions of lines of source code and thousands of
notebooks full of programmers' notes is going to cost much more than SCO could
possibly afford, but I think they have to concede defeat if they don't do it.
End of case, and Boies walks away with most of his millions in legal fees still
in his pocket.

IANAL, and the above is nothing more than my own idle speculation. I have no
facts that would suggest this is what's really happening.

[ Reply to This | # ]

  • Occam's razor - Authored by: Anonymous on Wednesday, March 02 2005 @ 06:51 PM EST
    • Occam's razor - Authored by: Anonymous on Wednesday, March 02 2005 @ 08:17 PM EST
      • Occam's razor - Authored by: CPD on Wednesday, March 02 2005 @ 08:39 PM EST
        • Occam's razor - Authored by: Anonymous on Thursday, March 03 2005 @ 06:27 AM EST
  • Nah, no way - Authored by: Anonymous on Wednesday, March 02 2005 @ 11:01 PM EST
It begins to resemble a Dicken's Play
Authored by: Anonymous on Wednesday, March 02 2005 @ 06:23 PM EST
Something like Bleak House comes to mind.
What bothers me is that TSG is pushing this without ever having made even a
nudge of showing IBM has actually done anything wrong. It's still merely
accusations without substance and scream like hell.
If the facts support your case argue the facts, if the law supports you, argue
the law, and if neither supports you then just argue, seems to be TSG's
approch.
So far it's gotten them on the NASDAQ watch list for delisting, a reputation
they'll never recover from, and a dwindling pile of cash.
Some management plan that was.

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A question? or two.
Authored by: golding on Wednesday, March 02 2005 @ 06:47 PM EST
Something has been bothering me for quite some time now. Why is it that IBM has
not gone after SCO like a barracuda for its failure to comply with the original
discovery of what code is in question with "specificity" (wrong
spelling?).

Right from the start, SCO has continually failed to give any answers to what it
is that IBM has specifically stolen, changed or aquired, or even given reason
for continued litigation. This has even been noted by the judge, yet SCO still
gets away with asking for more and more discovery.
On the other hand, IBM continues (it seems to me) to ignore the failures from
SCO regarding discovery.

I would have thought that considering IBM had a court order stopping any further
discovery requests from SCO until SCO had complied would mean that SCO cannot
ask, let alone push for, any further discovery.

In other words, has the court completely forgotten about the non-complience of
SCO regarding the original order from Magistrate Judge Wells? Or has that been
over-ridden by later orders? If so, I don't remember anything regarding SCO
being allowed to "forget" complying with that order, and wonder if
anybody could enlighten me as to how this has come about.

I asked a friend (a lawyer in training to be a judge, he does magistrates stuff)
over here (Australia) how it would work, and he advised me that with no specific
complaint with details, it would not have got past the first hearing. i.e.
Present the proofs you think you have, or summary judgement will close the case,
NOW.

It would seem that had SCO tried this legal stunt in Australia, it would have
finished even before it got started. Much the same as what has happened in
Germany I guess.

ps.
Some have noted that the SCO case does not remove the taint of patent litigation
and that not many are too worried about it. I think this would be because most
of the so called delinquent patents would be proven to be without merit. Much
the same as the so called 'dot' patent, or the fellow who patented the wheel
last year.

---
Regards, Robert

..... Some people can tell what time it is by looking at the sun, but I have
never been able to make out the numbers.

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Metaphors
Authored by: m_si_M on Wednesday, March 02 2005 @ 10:27 PM EST

"when the court gives them an inch, they interpret it to mean a mile"

I thought about posting this one for a while, because it seems to be a leitmotiv of SCOXE's discovery requests. Wouldn't it be nice to have metaphores from other languages available to expand the range of expression?

To start with, in Dutch and German, the metaphor would be "you give them a finger, but they take your whole hand."

Other metaphores/pictures/sayings would be appreciated.

[ Reply to This | # ]

Procedure on motions to compel
Authored by: marbux on Thursday, March 03 2005 @ 01:36 AM EST
The issue of what was asked for would be far less of an issue if SCO's lawyers were following proper procedure. Here are some relevant passages from the Utah federal court's local rules:

"DUCivR 26-1 DISCOVERY REQUESTS AND DOCUMENTS

(a) Form of Responses to Discovery Requests. Parties responding to interrogatories under Fed. R. Civ. P. 33, requests for production of documents or things under Fed. R. Civ. P. 34, or requests for admission under Fed. R. Civ. P. 36 must repeat in full each such interrogatory or request to which response is made. The parties also must number sequentially each interrogatory or request to which response is made.

* * * * *

[DUCivR 37-1] (b) Motions to Compel Discovery. Motions to compel discovery under Fed. R. Civ. P. 37(a) must be accompanied by a copy of the discovery request, the response to the request to which objection is made, and a succinct statement, separately for each objection, summarizing why the response received was inadequate.

Utah Federal District Court local rules"

The Utah court is actually very lax on this issue compared to other federal court local rules. In most jurisdictions, the memo for the motion to compel itself must set forth for each request item, the original request, the objection, and the moving party's points and authorities on why the objection is insufficient. Then the response to the motion must set forth all of the above plus the arguments against disclosure. That way the judge only has to refer to one document when deciding the discovery issue.

Unless you want a judge to have to keep flipping back and forth between different documents, it's only a matter of courtesy that leads you to the same practice. You can still attach the original request and response as exhibits.

Normally, the judge is presented with the issue of whether the objection is valid. If not, because of the burden of persuasion and proof, the moving party gets what they are after without further ado. It is supposed to work something like a motion for summary judgment; either show that there is a factual or legal basis for opposing what was in fact requested, or you lose.

But the moving party has the burden of showing that the information was actually requested. That's the first step and the established procedure really can't function without it.

---
Retired lawyer

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This is seriously pissing me off
Authored by: Anonymous on Thursday, March 03 2005 @ 02:34 AM EST

I am usually considered a very happy go lucky guy and people joke with me that
they have never ever seen me mad. But man these SCO people really know how to
push my buttons.

I usually try to read all the court documents in this case, but I am going to
skip this one. It is only going to piss me off even more.

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SCO has some of the smartest people in the world working for them!
Authored by: Anonymous on Thursday, March 03 2005 @ 10:12 AM EST
I have it all figured out!

SCO is going to apply the works of Kurt Goedel to the legal system. They are
going to create an argument that is undecidable under boolean logic, so that no
matter what, it's appealable, and when it goes through all appeals, it is still
unresolved, and they can just start over again.

Microsoft, are you listening? Just make it easy on yourselves, and hand over
all of your code now. They're going to have everyone else's, so you might as
well admit now that they have beaten you at your own game.

Poor Bill and Steve: they tried SO hard, but they were just outclassed.

Geek Unorthodox

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...as in Cricket (the game) Tests
Authored by: clueless on Thursday, March 03 2005 @ 10:24 AM EST
You know, sometimes the side that bats the last in a 5-day cricket test (usually
in the second inning and/or last day) is not in a position to gather a
cumulative score, the other side having batted too well, to win. But if they
try too hard, wickets may fall, leading to a loss. So the batsmen just go on
avoiding strokes, padding the ball (outside the 'crease', where they can't be
called out 'leg before wicket'), taking one run where three were possible, etc.
and try to make it through the day. This can frustrate and tire out the
dominant team's bowlers and fielders. A chance of victory is denied. The match
ends in a DRAW. Nobody wins, but nobody LOSES either.

What's this drivel? I am just trying to stretch an analogy. Nobody knows the
match's outcome going in to play, but somewhere down the way a realization may
dawn.

-clueless

---
Misconceptions lead to miscarriages

('cause clueless is as clueless does)

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A logical consequence? SCO wants all source code to Windows.
Authored by: Anonymous on Thursday, March 03 2005 @ 11:40 AM EST
OK, this is a stretch, but then again isn't everything that SCO does a stretch
too?

Now that we see that SCO wants essentially all source code (and revision
history) for all source code that runs on AIX, what is to stop them at IBM. If
I remember correctly, JFS came from work with OS/2. OS/2 came from work between
Microsoft and IBM. Therefore, would it not be a logical consequence for SCO to
ask for all MS Windows source code as well (specifically NT since that was MS's
OS/2)? And of course we should not interpret this not to mean all code that
runs on top of MS Windows as well.

I seriously think that if they play their cards right, SCO will be able to
obtain the source code to EVERY application ever developed. Now, wouldn't that
take some time to sort through?

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SCO's Opposition to IBM's Motion for Reconsideration: More, More, More
Authored by: ijzer on Friday, March 04 2005 @ 11:11 AM EST
Maureen O'Gora sees this motion a little different...

http://www.linuxbusinessweek.com/story/48473.htm

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