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SCO's Reply Memo Re Discovery Yadda Yadda
Thursday, October 06 2005 @ 09:04 PM EDT

SCO has filed its Reply Memorandum in Further Support of Its Renewed Motion to Compel [PDF]. This gives us a hint as to what SCO will be saying at the hearing tomorrow. They ask the Court to consider sanctions against IBM for something SCO thinks is implied in Daniel Frye's Declaration. *Implied.* Sanctions for an implication, as interpreted by SCO, those ethical giants.

I think UserFriendly characterized SCO's lawyers best. Here's what Illiad hears when SCO's legal team stands up to speak:

Your Honor, on behalf of my client, The SCO Group, I'd like to move that we engfeh the wubbly umple borpy.

I'd rephrase it slightly:

Your Honor, on behalf of my client, The SCO Group, I'd like to move that we engfeh and sanction IBM forthwith due to IBM's shockingly outrageous wubbly umple, and we humbly submit you consider the wisdom of the following course of action: OFF WITH THEIR BORPY HEADS. Yadda yadda.

So, look for that tomorrow, if you are planning to attend.

Why such silliness, aside from the hope that it might just work, discovery rules being as liberal as they are? I expect so that IBM won't get anywhere, SCO hopes, when it inevitably points out that in discovery, you are supposed to tell them what they have done, and in this case, IBM is still waiting to find out what code is allegedly infringed. That makes it a bit hard to know what is and what isn't relevant in discovery, which puts IBM at a disadvantage, as IBM repeatedly points out in the attached Exhibit B, a letter from IBM to SCO, dated September 15, 2003,listing IBM's objections to SCO's Interrogatories. It begins on page 27 of the PDF.

SCO's answer to that objection, if truthful, would be: We want you at a disadvantage. So just go on a fishing expedition. If it's in any way related to Linux, hand it over. We'll tell you later what this is all about, after we figure it all out ourselves. If we can't find anything in this round of discovery, we'll come up with a new cause of action or theory of the case, based on something we are shocked, shocked to find in discovery already obtained. This is Alice in Wonderland discovery rules. You give us everything you have and we don't have to tell you one thing. And since any corporation will make at least one tiny mistake over a period of 30 years, we'll get to pore over everything you give us looking for that little mistake, and if we find it -- Ta Dah! Our case!

In short, gamesmanship. Delay, delay, delay. The same old SCO song, sung in the key of feigned indignation. As UserFriendly says, SCO says "Boo".

Again. Here's a reminder of what motions will be argued tomorrow.

Update: Groklaw's Fogey has some poetry to offer the judge, with apologies to Lewis Carroll:

Beware the Jabber-Wookiees, Judge!
The claims that fly, the pleas that clash!
Beware their Barratry, and shun
Their mendacious Balderdash!




  


SCO's Reply Memo Re Discovery Yadda Yadda | 64 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Correktions Hear
Authored by: Anonymous on Thursday, October 06 2005 @ 09:19 PM EDT
As needed.

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Off topic ... the unofficial thread. :-)
Authored by: Anonymous on Thursday, October 06 2005 @ 09:20 PM EDT
Over on the Yahoo board, I noticed this tidbit.

"On p. 3 of IBM-523.pdf,

"... IBM has agreed to withdraw its patent claims.""

[ Reply to This | # ]

OT Links and Stuff
Authored by: Anonymous on Thursday, October 06 2005 @ 09:21 PM EDT
Use the info right below the box you type your comments into, to make links.
You know, the little notes in red.

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

SCO's Reply Memo Re Discovery Yadda Yadda
Authored by: Anonymous on Thursday, October 06 2005 @ 09:21 PM EDT
All this yammering over no news while ignoring an important IBM announcement.
Time to wake up and smell the coffee girl!

[ Reply to This | # ]

SCO's Reply Memo Re Discovery Yadda Yadda
Authored by: BobinAlaska on Thursday, October 06 2005 @ 09:32 PM EDT
Is there a way for IBM to ask the court to require SCO to post a bond to pay
for their discovery costs when they finally lose this? This type of thing is
sickening!!!!!

---
Bob Helm, Juneau, Alaska

No, it is not always cold and dark.

[ Reply to This | # ]

$10 (US) says they get more discovery.
Authored by: Anonymous on Thursday, October 06 2005 @ 09:46 PM EDT
Any takers....

[ Reply to This | # ]

TSG wants IBM to provide Publicly Available contributions
Authored by: Steve Martin on Thursday, October 06 2005 @ 09:57 PM EDT

"It is against the backdrop of IBM's agreement to produce this central core of documents 'that relate to IBM's open-source contributions to Linux' that SCO's subsequent motion to compel focused on areas where no agreements had been reached, including production of all IBM code contributions to Linux, even if publicly available, ..."
(emphasis added)

"... even if publicly available"? Um, guys, Judge Wells herself explicitly said that you were supposed to go get it yourself if it was publicly available:

"Pursuant to Rule 26(b), SCO should use its best efforts to obtain discovery from the Linux contributions that are known to the public, including those contributions publically known to be made by IBM."

Sounds to me like more TSG revisionism.

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

[ Reply to This | # ]

SCO's Reply Memo Re Discovery Yadda Yadda
Authored by: Bill The Cat on Thursday, October 06 2005 @ 10:16 PM EDT
Is it OK to break out in hysterical laughter and roll on the floor in the court
room after SCO's attorneys speak? Would the judge get the hint? Could I
control myself?

I don't think I'll go. It would be too much.

---
Bill Catz

[ Reply to This | # ]

Can IBM appeal?
Authored by: Anonymous on Thursday, October 06 2005 @ 10:45 PM EDT
I recall that when Wells ordered all of Aix & Dynix there was talk of IBM
filing some kind of interlocutory appeal.

If she grants this extended farce can IBM do so on the basis of her not
enforcing her previous order? She did, way back in April of 2004, say that
there would be no further discovery for SCO until they answered all of IBM's
interrogatories, which they still have not done. At what point does IBM acquire
some rights in this process?

[ Reply to This | # ]

  • Can IBM appeal? - Authored by: Anonymous on Friday, October 07 2005 @ 07:49 AM EDT
Another whuppin' comin' up
Authored by: webster on Thursday, October 06 2005 @ 11:14 PM EDT
The SCO lawyers are preparing to take their licks. They will be leaving the
courtroom with their tails curled tightly between their legs. They are prepared
for Marriott to call them Liars in court tomorrow, maybe using the L word
itself. He will defend IBM by stressing that the Judges order was reasonable
simple and clear and that the court understood the Linux process, which he will
explain. He will explain how the Court realized that IBM contributions were
already publicly available so it would have been foolish for the court to order
it. He will then offer to demonstrate how with 5 clicks and a search he can
extract every file contributed and copyrighted by IBM. He will also offer to
demonstrate how similarly all rejected IBM code submissions are available. They
will also argue that they complied with everything ordered and more. He will
accuse SCO of distorting the order and insulting the Court and hisself. His
outrage will go on to explain how stonewalling is one thing, but to go on to
distort and lie is another. He will have exhibits from SCO to show
contradictions and their own knowledge that they are lying [This should cause
the drama of the day]. The Court will have to agree with him or admit that it
didn't understand what it was doing before.
On the whole a good hand for IBM.

With 3 Motions SCO stands to gain something. But something dramatic always
happens [cf. Silver, Marriott's sandbagging with exhibits]. If the Judge is
convinced of their distortions, it could go very bad for them.

---
webster
>>>>>>> LN 3.0 >>>>>>>>>

[ Reply to This | # ]

SCO's Reply Memo Re Discovery Yadda Yadda
Authored by: blacklight on Thursday, October 06 2005 @ 11:16 PM EDT
Tomorrow, I will definitely look forward to Judge Welles' hearing from SCOG
their interpretation of her court orders.

I personally don't think much of judge Welles, her technical ability or her
ability to see through bull. So far as I am concerned, she is the embodiment of
the Peter Principle, which states that most positions are filled by incompetents
because everyone keeps getting promoted upwards until they reach their level of
incompetence. I don't think she appreciates the close scrutiny she is getting,
but her appreciation is none of my concern.

Those of you who think that I am being relentlessly hostile to judge Welles are
quite right: had she called SCOG on their failure to come up with solid evidence
of their allegations, this expensive, time consuming, tawdry little charade
would have ended long ago.

[ Reply to This | # ]

Rule 37 - I think the eventual point is sanctions (and have they changed their argument?)
Authored by: Anonymous on Thursday, October 06 2005 @ 11:21 PM EDT
My impression from a very brief reading is that their argument in the reply is different from the initial argument.

The initial argument seemed to primarily be that Wells' 2005 order about AIX and Dynix, necessarily encompassed Linux, because AIX and Dynix were allegedly stages in the development of Linux

The new argument seems to be looking primarily for helpful words in previous orders and document requests, as well as responding to Frye's declaration.

In any case, I think THE POINT is that they are looking for sanctions, although they haven't specified what sanctions they seek yet.

Many of us suspect they have no evidence of actual infringement of a SCO copyright or contract, by IBM's Linux activities. Obviously this would present a problem with the deadline for telling what IBM's alleged infringement is, coming up fast.

As I speculated months ago, I think they are building towards arguing that because of IBM's alleged discovery shortcomings, they shouldn't have to present evidence of infringement, but instead have it "established for the purposes of the action" (i.e. taken as read - and by the way, I am quoting from rule 37) that IBM's Linux activities infringe.

Here is rule 37.

Here is the bit of rule 37 that I think they may be building towards - emphasis added:

(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;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

(E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination.
Crazy?

First look at (2): They claim IBM failed to obey prior orders (I haven't check under which rule numbers the prior motions requesting such orders were entered) Then look at sub parts (A) or (C), they could in theory seek a dismissal of some of IBM's counterclaims, default judgement in their favor on their claims or IBM's counterclaims, or even have their version, even without evidence in support, taken as "established for the purposes of the action"

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Have you read what Daniel Frye Said?
Authored by: Anonymous on Friday, October 07 2005 @ 09:31 AM EDT
Team, We have a text transcription of Daniel Frye's testimony. If you're interested, you can find it here.

Compare that with SCO's characterisation, which reads thus :-

Daniel Frye's declaration indicated that IBM has witheld at least hundreds of thousands of relevant documents - all relating to the contributions IBM has made to Linux - in disregard of two Court orders that call for their production, as well as IBM's own agreements to produce those documents.

So if you'll excuse the fact that I'm not very clever, where exactly did Daniel Frye say that?

sproggit - not logged in

[ Reply to This | # ]

Not so much Wonderland, perhaps?
Authored by: Anonymous on Friday, October 07 2005 @ 02:18 PM EDT

"This is Alice in Wonderland discovery rules. You give us everything you have and we don't have to tell you one thing."

It's more Franz Kafka's The Trial to me, but, maybe that's just me.

[ Reply to This | # ]

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