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SCO, After Getting More Time, Says IBM Shouldn't Get Any. Or At Most 2 Weeks |
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Wednesday, March 16 2005 @ 09:00 PM EST
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*Now*, SCO says it's in a hurry.
Or more precisely, they don't want the court to grant IBM the extra time it says it needs to comply with the January 18th discovery order. Last week, it was SCO that asked for and got 15 days more to get their opposition to IBM's Motion Limiting Scope of IBM's Ninth Counterclaim filed. SCO said they were too busy with discovery to meet the deadline, "due to SCO's workload of preparing discovery responses and other matters currently at issue in the litigation." The court gave them the extra time.
This week, it's IBM's turn to say they need time. They are busy collecting massive discovery and can't finish in time, among other significant reasons (see below), so they can't meet this deadline, but now we must all expeditiously move forward at a healthy clip, SCO says, or they'll be prejudiced. Prejudice is a powerful word in courtrooms. It's what you pull out when all else fails. But what is the judge going to say? She'll put IBM's lawyers in a Utah courthouse dungeon and make them collect that discovery in chains, with her personally cracking the whip 24/7 so she can determine whether IBM really could meet the deadline if they just tried harder? Discovery has already taken a lot of time, SCO cynically whines, without pointing out that it has repeatedly sought or caused delays throughout this entire process. Maybe they forgot, or hope we did, but I recall the SCO delays. I remember Judge Kimball granting their request to extend discovery, for heaven's sake, in answer to their Motion to Amend the Scheduling Order. Here is their memorandum in support, where they told the court they needed more time for discovery. And remember the discovery deadline SCO couldn't meet because of shutting down the offices for Christmas? And what about the two Motions to Compel discovery (here and here) IBM had to bring and won? This isn't by any means a comprehensive list. That was then. This is now. Now SCO's in a screaming rush.
Sigh.
So, here is their Memorandum in Opposition to IBM's Motion for 45-Day Extension of Time to Comply with 1/18/05 Order [PDF]. I dare say I could have written it for them. In fact, I wrote a friend this morning what I thought it would say, when we saw it on the Pacer list. I was horsing around, but as it turns out, I nailed it.
Here are the reasons they present to the court:
- The court already listened to IBM's undue burden arguments and gave them the allotted time, so IBM should have to stick to it
- SCO has been seeking this stuff for "more than a year" (note they don't say that the court told IBM to hand it over that long ago -- it was only on January 18th that the court ordered the discovery at issue here) and with probably future disputes to come, discovery is taking time and we need to "move this case toward trial as expeditiously as possible." These guys are an absolute hoot.
- IBM claims it has sought to avoid delay, but this request is asking for delay. (I know. It makes no sense, or more precisely, it's pointless, but I think they just wanted to slip in another slur against IBM.)
- IBM hasn't provided an affidavit to support its claim that it can't timely produce.
- IBM's Motion for Reconsideration said it was making every effort to meet the deadline on all the discovery IBM was not seeking reconsideration on. So what happened? Now they can't? (The obvious answer to that is that when IBM said they'd try to meet the deadline and were hopeful, that was a month ago, and once you are in the middle of a task, things come up that block your best intentions. Like SCO now asking for middleware and hardware, for just one huge example.)
To make a long story short, they'd like the court to deny IBM's request for 45 extra days, but they know that isn't so likely -- neither judge has yet turned down a request for more time that I can recall -- so they ask that IBM be given only two weeks, if they get anything. That would be one day less than SCO got. Could it be just that petty? Like kids arguing in the back seat of the car on a family trip? I believe it could. At this point, they clearly detest each other. It's like that. SCO hasn't addressed the chief reasons IBM asked for more time in their Motion for 45-Day Extension of Time to Comply with 1/18/05 Order: - IBM has asked for reconsideration of one of the order's requirements, and that isn't likely to be ruled on by the 60-day due date;
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SCO has now demanded more than was ordered by Judge Wells, claiming they understand the order to mean that IBM has to produce not only code, but also hardware and middleware information, and that is, IBM says, a new request that the court has to resolve. The parties tried to resolve the issue, but SCO insists the January 18th order includes hardware and middleware information;
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IBM really can't get it done in 60 days. They have, they tell the court, hundreds of employees working on this unprecedented court order, something IBM has never in its long existence ever been asked to do before, and it really is a massive task, just like they told the court during the discovery hearings.
As you can see, SCO ignored the first two points -- what really can they say? -- and addressed only the third. The judge may not grant the entire amount of time requested, but I think IBM is likely to be given more time. It's a reasonable request, given the first two points, neither of which SCO has argued against that I can see. Probably because they can't. Judge Wells gave SCO a big hint in her Order when she wrote that she was asking IBM to produce materials with respect to the 3,000 for a reason, and that reason wasn't to punish IBM: "Once again by requiring this, the court seeks to circumvent the rote objection by SCO alleging that they did not get enough information." "Rote objection." Does that sound like she gets it? It does to me too. Reasonable persons might argue if her order was fair or not or well-crafted to deal with a party like SCO. The problem really is, as she wrote, that the legal system does depend on parties acting in good faith. Obviously IBM thinks it was not a fair order in one respect at least. But does that sentence sound like Wells sees who SCO is and how they are and what they've been doing in discovery? I believe so. I also assume that judges in Utah do not live in caves or dungeons and have therefore heard about the allegations that were lodged against SCO's Chairman of the Board, Ralph Yarro, of fraud, among other serious things. How could that not have an impact? Settled or not, because of those allegations, there is something in the air now that was not there the last time these parties appeared before the court. But I saved the best for last. SCO argues: "In the January 18 Order, the Magistrate
Court ordered IBM to produce, among other information, (1) the source
code reflecting the full available revision history for the AIX and
Dynix operating systems, and (2) IBM's responses to interrogatories
regarding the 3,000 most significant contributions that IBM and Sequent
programmers have made to those operating systems, and to Linux."
However, the Order says:
"Accordingly, IBM is HEREBY ORDERED to provide the above required
information for the 3000 individuals who made the most contributions and
changes to the development of AIX and Dynix."
SCO has added "and to Linux". It's like I said, if they get an inch, they ask for a mile, and then they complain if IBM doesn't hand over the mile. If IBM doesn't point this out to the judge, I will be amazed. And then I will explode from frustration. So I guess you can tell, I really, really hope they point this out.
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Authored by: BitOBear on Wednesday, March 16 2005 @ 09:18 PM EST |
As always links are provided as
<a href="http://place/on/the/net">What you want people to
see</a>
And should be test-clicked on the preview page before submitting.[ Reply to This | # ]
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Authored by: BitOBear on Wednesday, March 16 2005 @ 09:29 PM EST |
From that last, greatest, misstatement: "...the 3,000 most significant
contributions that IBM and Sequent programmers have made to those operating
systems, and to Linux."
Not only is the ",and to linux" an addition, the entire paragraph is
wrong.
The order is to name the 3000 most significant _contributors_ not a list of the
most significant _contributions_. e.g. The actual order is an order to list
people not blocks of code or "methods" or "concepts". SCO's
non-responsive response is again adding a requirement by inference.
One can easily imagine SCO comming back and saying that IBM sent them all this
code but didn't supply a neat list (road map) to the code that isolated the most
important work done "like the judge told them to".
It's wrong, but it's there, probably just like the aleged "hardware and
middleware" nonsense.
Is anybody at SCO even competent to read an order from the judge?[ Reply to This | # ]
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Authored by: fotoguzzi on Wednesday, March 16 2005 @ 09:35 PM EST |
IBM should say, "If it is going to take SCOXE
(25 quadrillion )^2 man-years
for their rocket scientists to sort out the discovery code, what does it
matter if we spend a few more weeks gathering it?" [ Reply to This | # ]
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Authored by: fLameDogg on Wednesday, March 16 2005 @ 09:37 PM EST |
Example to make links clickable:
<a href="http://www.example.com">Clicky</a>
Remember to change Post Mode to HTML (or it will just look like this), and of
course, Preview is your friend.
---
fD[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 16 2005 @ 09:37 PM EST |
At what point does this become sactionable; not against the client, but against
the attorney? This was a patent lie to the court. It had to be intentional.
Any argument that it was accidental is an admission of such towering
incompentence as to disqualify a person from practicing law (or anything else.)
To continue to allow these repeated frauds on the court is destroying the
legitimacy of that district and the Judges involved. So when are we going to
see sanctions? Yea, I know its not your fault, but I have vent to somebody!
JG[ Reply to This | # ]
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Authored by: Jude on Wednesday, March 16 2005 @ 09:39 PM EST |
Their hired gun SCO is showing the world how a plaintiff can, without a shred of
evidence to support their allegations, compel a defendant to produce
unprecedented amounts of discovery to support a fishing expedition.
Microsoft seems to be one of the most popular litigation targets in the
industry. I wonder how long it will be before they find themselves in IBM's
position?
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 16 2005 @ 09:40 PM EST |
Call me cynical (that's MR. Cynical pls!) but one wonders what SCO have planned
(announcements, bankruptcy :) ) planned for 15-45 days that makes them so want
to not allow this delay???[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 16 2005 @ 10:02 PM EST |
If the billable hours money pit has been filled up and used up by SCOxe, and
they are looking at working for SCOxe PRO BONO from this point on..., well if
this is the case, then, the Boies team and other lawyers would be in a hurry and
would wish that the Judge would not make them work any harder as they will not
get paid any more if they do.
Does this make sense?
Could the SCOxe legal team see that now that they agreed to a cap on the legal
fees, that this case, with all that code, and those 3000 folks they are going to
interview, might cost them more than they expected?
What did that legal fee cap arrangement look like before? Does anyone remember
what it said. Any lawyers out there see any sense to this theory of the SCO vs
IBM case actually being paid for by Boies, out of Boies and team's own pockets?
[ Reply to This | # ]
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Authored by: jbb on Wednesday, March 16 2005 @ 10:12 PM EST |
IANAL, but I can not for a minute believe this is true. If the legal
system
depends on parties acting in good faith then IBM in particular,
and the legal
system in general are both in deep trouble because
clearly SCO is not
acting in good faith.
I can't believe that this is the first time our
legal system has
encountered a party not acting in good faith. Is it possible
that no
one in the legal system ever watches tv? The legal system has to
have developed some fault tolerance over the years. If it only worked
if
everyone acted in good faith then it would be pretty much totally
worthless
because then the only cases it would be presented with
would be where there
was an honest misunderstanding between the
parties.
I cannot believe
that Judge Wells' comment about "good faith" was to
remind us all of a glaring
flaw in the legal system that makes it
impossible for people who are sued by
liars to get justice. Isn't it
more likely that she was giving a hint that
she didn't think everyone
was really acting in good faith and that they
had better
watch out?
Am I missing something? Doesn't the legal
system have some way of
dealing with parties who are not acting in good faith?
--- SCO cannot violate the covenants that led to and underlie Linux
without forfeiting the benefits those covenants confer. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 16 2005 @ 10:16 PM EST |
"In the January 18 Order, the Magistrate Court
ordered IBM to
produce, among other information, (1) the
source code reflecting the full
available revision history
for the AIX and Dynix operating systems, and (2)
IBM's
responses to interrogatories regarding the 3,000 most
significant
contributions that IBM and Sequent programmers
have made to those operating
systems, and to
Linux."
However, the Order says:
"Accordingly, IBM is HEREBY ORDERED to provide the above
required information
for the 3000 individuals who made the
most contributions and changes to the
development of AIX
and Dynix."
This is a blatant
misstatement of MJ Wells' order. Surely
there must be some recourse for the
courts to sanction SCO
for deliberately attempting to pervert the course of
justice.
Howard [ Reply to This | # ]
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Authored by: inode_buddha on Wednesday, March 16 2005 @ 10:27 PM EST |
You too?
The main thing that I notice is that the Order specified AIX and Dynix. They are
also asking for the info on Linux, which is laughable -- all they have to do is
go to kernel.org and download it.
---
-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 | # ]
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Authored by: Anonymous on Wednesday, March 16 2005 @ 10:44 PM EST |
but what about all the people who can't afford a lawyer and get stuck in the
horror of our legal system. A plea to IBM -when you get out of this mess how
about working towards some reforms of our legal system (and by this I mean not
just reforms that help you, but reforms that help EVERYONE.)[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 16 2005 @ 10:50 PM EST |
...whether SCO are actually doing any discovery at
all.
AFAICR they were
told that all code released to them for
discovery was not to be touched by
their own staff, so
that implies that they have to contract outside experts to
do the "deep dive".
Which begs the question as to where they are going to
find
any IT expert, who wishes to continue in the industry
post-SCO, who is
prepared to "deep dive" for SCO and risk
being pursued for ever and a day
thereafter by IBM on the
grounds that they have been tainted by what they saw
in
AIX and Dynix.
My money says that SCO are not doing a "deep dive" of
discovery because they can't, and in fact they are not
even in the water.
Just a thought...
Howard. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 16 2005 @ 10:58 PM EST |
My *wild* guess - I predict (IANAL) that SCO's next argument will be
1.
IBM took too long to produce the materials
2. The materials that IBM
produced are inadequate or incomplete, because they don't
include....
They will then argue that certain issues (e.g. IBM breached
the contracts, IBM infringed SCO's copyrights, etc.) ought to be ruled in SCO's
favor, as a rule
37(b)(2) sanction on IBM based on IBM's discovery
malefeasance.
Here is the bit of rule 37 that (I think that) they are
likely to quote, emphasis added:
(b) Failure to Comply
with Order.
...
(2) Sanctions by Court in Which Action is
Pending. If a party or an officer, director, or managing agent of a party or a
person
designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party
fails to obey an order to provide or permit discovery,
including an order made
under subdivision (a) of this rule or rule 35, or if a party fails to obey an
order entered under Rule
26(f), the court in which the action is pending may
make such orders in regard to the failure as are just, and among others
the
following:
(A) An order that the matters regarding which the
order was made or any other designated facts shall be taken to be
established
for the purposes of the action in accordance with the claim of the party
obtaining the order;
(B) An order refusing to allow the
disobedient party to support or oppose designated claims
or defenses, or
prohibiting that party from introducing designated matters in
evidence;
If SCO were to win such a motion on
37(b)(2)(A), the "designated facts" which they would want "shall be taken to be
established for the purposes of the action" would presumably be that Linux
contained SCO code, IBM breached the contracts, or something like
that.
If SCO were to win such a motion on 37(b)(2)(B), they would
presumably want IBM's defenses and code comparisons, drastically
reduced.
Thoughts anybody?
Quatermass
IANAL IMHO etc
[ Reply to This | # ]
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Authored by: Dr.Dubious DDQ on Wednesday, March 16 2005 @ 11:25 PM EST |
AH! So THAT's what "Chutzpah" means.... [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 16 2005 @ 11:46 PM EST |
I guess I'm still surprised (no, shocked really) that SCO was grated the
discovery in the first place. They have no evidence, and massive discovery
isn't even remotely reasonable without at least SOME cause.
I mean, the
judge has even told SCO clearly that they have no admissible evidence, not even
something which could be used as cause to start the trial in the first
place.
Why doesn't the court simply accept that SCO will do ANYTHING to make
the case appealable, and deny at least SOME of their crazy tactics, or better
yet slap them with contempt of court over some of their obvious lies? (ok, maybe
I'm just venting my frustration here)
IBM really should seriously consider
an immediate appeal/mistrial request on grounds that SCO is being
inappropriately pandered to by the court and potentially serious harm is being
caused to IBM due to the extraordinary amount of "bending over backwards" the
court is performing in this case.
There is a miscarriage of justice going on
and it needs to get rectified. Maybe we should consider putting together a
petition and getting huge numbers of us observers to sign it to cause some
public outcry over this?
Erich Boleyn
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Authored by: Anonymous on Wednesday, March 16 2005 @ 11:49 PM EST |
I would like to see IBM file a huge overlength filing drawing the court's
attention to the pattern of SCO's misconduct throughout this litigation and
request sanctions against them. The bulk of the document could be an itemized
list of every false or highly misleading statement that SCO has included in a
court filing since the beginning of the case, along with a short (one or two
sentences) explanation of why the statement was false (and why SCO would have
known it was false).
Such a document would be literally dozens of pages long--SCO has probably made
hundreds of such statements.
Alas, it will never happen. IBM's lawyers have played this one nice and proper
from the beginning, and it might make them look bad if they were to start being
nasty (even though they would have to stoop REALLY far to be even in the same
league of scumsucking as SCO).[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 16 2005 @ 11:56 PM EST |
Fork over a full mainframe with full install disks.
I'd be shocked if SCO has the skill in house to get the hardware running in 45
days.[ Reply to This | # ]
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- Components only. - Authored by: Anonymous on Thursday, March 17 2005 @ 06:50 AM EST
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Authored by: Anonymous on Thursday, March 17 2005 @ 12:10 AM EST |
I seem to remember marbux speculating that Kimball had decided to apply
"active case management" to this case, and would have the parties on a
somewhat tighter leash.
What I wonder is, why did Kimball fail to actively manage this discovery
snowball? Why did he allow SCO to go on a totally unwarranted and unsupportable
fishing trip? He may have actual reasons; regardless, he is not doing his job.
At the start of this lawsuit I had some faith in the U.S. legal system. I
naively believed that it would mete out, if not justice, at least something
vaguely approximating a fair result. So far, IBM has done nothing but play by
the rules, and SCO has done nothing but thumb their nose at them. Why is IBM
being penalized with thousands of man-hours worth of unnecessary labor while SCO
has still not even reviewed any of the hundreds of millions of lines of AIX code
IBM already gave them? Or even shown that they own copyrights to *any* SysV
code whatsoever? (since it's pretty pointless to look for that code in Linux or
elsewhere, if SCO doesn't own it..)[ Reply to This | # ]
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Authored by: reddsman on Thursday, March 17 2005 @ 12:41 AM EST |
What is it with SCO's lawyers. First they tell Novell they won't stipulate an
extension because it will be a 2 month delay and they will be predjudiced. They
force Novell to submit affidavits and create a motion to ask the Court to allow
the extension and now they are complaining about the length of time its taking
IBM to get everything together.
What is SCO trying to do drown everyone in paperwork. Can't they stop acting
like babies and at least work with each other.
I can't wait for SCO to go belly up.[ Reply to This | # ]
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Authored by: jim Reiter on Thursday, March 17 2005 @ 01:08 AM EST |
Judge Wells is "technically" in over her head. She does not appear to
be able to evaluate the TSG requests for discovery.
She and Kimball need to appoint a master to evaluate the TSG discovery strategy,
to monitor TSG's discovery performance and to advise what additional production
of documents is necessary.
TSG is asking for discovery on elements of code (IP) it (TSG) cannot prove that
it (TSG) owns.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 17 2005 @ 04:05 AM EST |
Is it possible that the use of words like "prejudice" and the attempt
to prevent IBM from obtaining a pause are part of a last ditch plan to discredit
the court and strengthen SCO's case for an appeal?
The only chance SCO has (other than finding genuine evidence) is a jury trial,
and that is where BSF would like things to go. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 17 2005 @ 04:44 AM EST |
Judge Wells' Order apparently limits the production by IBM of Linux
contributions to those Linux contributions made by the 3,000 individuals who
made most contributions to AIX and Dynix.
[ Reply to This | # ]
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Authored by: ak on Thursday, March 17 2005 @ 04:58 AM EST |
PJ wrote:
SCO has added "and to Linux". It's like I said, if they
get an inch, they ask for a mile, and then they complain if IBM doesn't hand
over the mile. If IBM doesn't point this out to the judge, I will be
amazed.
IBM already did so and stated:
It would be
difficult to overstate the frivolity of this contention, which is entirely
unsupported by the record. In an Order dated March 3, 2004, the Court ruled,
after extensive briefing and argument by the parties, that would not be
required to detail its Linux contributions insofar as those contributions were
publicly available. (3/3/04 Order at 4.) The Court ordered only that IBM
"provide to SCO any and all non-public contributions it has made to
Linux". The court recognized that Linux is a publicly developed operating system
and that SCO is capable of ascertaining, through the public record, the
contributions made by IBM to Linux. [emphasis in the original]
document 420, "Reply Memorandum In Support Of IBM's Motion For Reconsideration
Of The January 18, 2005 Order Regarding SCO's Renewed Motion To Compel", pages 6
to 7[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 17 2005 @ 07:48 AM EST |
Could the real issue here be to massively increase IBM's legal costs to the
extent that they give up and settle or buy out SCO? Maybe SCO isn't even going
through this massive volume of material they're requesting. IBM claims to have
100's of people working on providing discovery. What if SCO is only going
through the list of provided documents and just asking for more in order to get
IBM to decide the cost of discovery exceeds any benefits of continuing the
litigation?[ Reply to This | # ]
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Authored by: pjcm on Thursday, March 17 2005 @ 08:06 AM EST |
SCO has asked for all notes relating to AIX etc. Was any of this be work
conducted out side the US? If so does IBM have a policy that your notebooks need
to be in English?
I seriously doubt, given the size and duration of AIXs development, that every
meeting was conducted in english and minited in english.
Would I be correct in believing that SCO would have to provide a translation in
order to submit them to a US court as evidence?
What is the current rate for translators with technical authoring experience?
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 17 2005 @ 09:35 AM EST |
Perhaps, at some point, the court will step back and
look at the big picture and see that SCOX has zero
evidence to base their claims even though IBM has
provided mountains of "stuff".
There has been more UFO info gleaned via FOIA from
the US gov than evidence provided by SCOX!
Saner minds must wake up and put SCOX in its place
for using the courts as a harassing agent rather than
a means of obtaining justice.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 17 2005 @ 11:10 AM EST |
at the close of WWII; Hitler, with no possible way of defeating the 'enemy'
chose Germany's destruction because it did not deserve him. While it is true
Germany did not deserve Hitler, it is also true that Yarro (and Darl) seem to be
of the same ego maniacal bent and want SCO's destruction. One can only wonder
why.[ Reply to This | # ]
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Authored by: TonyW on Thursday, March 17 2005 @ 11:09 PM EST |
PJ wrote: Could it be just that petty? Like kids arguing in the
back seat of the car on a family trip? I believe it could. At this point, they
clearly detest each other. It's like that.
I predicted this
back in September in this post . And
in this one too. [ Reply to This | # ]
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