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Wells' Order From the October 7 Hearing
Tuesday, October 18 2005 @ 04:36 PM EDT

Feast your eyes on this, Judge Brooke Wells' order [PDF] from the October 7th hearing on SCO's motions to compel and compel and recompel and again recompel discovery.

Joke. It felt like that, though, didn't it? It was their "Renewed" Motion to Compel Discovery (366), Renewed Motion to Compel (503), and Expedited Motion and Supporting Memorandum for Leave to Take Additional Depositions (508) that got heard that day.

Our eyewitnesses got the story accurately once again. She issued her order that very day from the bench, so we already know SCO lost the first one totally and most of the rest, but the order is breathtaking nonetheless. Here's a portion, the part where she slaps SCO down for misrepresenting her orders:

With regard to SCO's Renewed Motion to Compel, Docket No. 503, the Court finds as follows:
1. IBM did not agree to produce all documents relating to the development of Linux, as SCO contends;

2. The issue of the discovery from IBM of all documents relating to the development of Linux was not raised before the Court, was not understood by the Court to be a part of SCO's prior motions, and was not contemplated in the Court's March 3, 2004, January 18, 2005, and April 19, 2005 Orders (the "Orders");

3. IBM appropriately interpreted the Orders, and SCO's interpretation of the Orders takes out of context what the Court believes to be the clear meaning of the Orders;

4. The declarations of Todd M. Shaughnessy regarding discovery are sufficiently in compliance with the requirements of the Court to explain those efforts made and those documents not produced; and

5. At the hearing, IBM nevertheless offered to undertake a reasonable search for and produce non-privileged and non-public Linux programmer's notes, design documents, white papers, and interim or draft versions of Linux contributions from the files of 20 of the IBM Linux developers whom SCO identifies as potential deponents and whose files it would like IBM to search.

Accordingly, IT IS HEREBY ORDERED that IBM has complied with the Orders of the Court, and that SCO's Motion to Compel Discovery and request for sanctions therein is denied. In accord with IBM's offer, SCO is ordered to provide IBM, on or before October 12, 2005, with a list of the 20 Linux developers. IBM will endeavor to make its production on a rolling basis, but in any case shall complete the production by December 7, 2005. SCO must complete the deposition of these developers before January 27, 2006.

Now, compare that with any media accounts you read before the hearing. Compare it with Groklaw's coverage of SCO's motions. Did we get it right? Or did we get it right? One thing I see: Judge Wells knows now who she is dealing with. No more football-metaphor calls to fair play. And that is a tremendous relief.

  


Wells' Order From the October 7 Hearing | 286 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: Rasyr on Tuesday, October 18 2005 @ 04:40 PM EDT
please..

[ Reply to This | # ]

Off Topic Here please
Authored by: Rasyr on Tuesday, October 18 2005 @ 04:41 PM EDT
The first two posts? wow!!

:)

[ Reply to This | # ]

Wells' Order From the October 7 Hearing
Authored by: Anonymous on Tuesday, October 18 2005 @ 04:42 PM EDT
From what I observed Judge Wells might have known for a long time with whom she
deals. It is hard for me to imagine, that a US magistrate judge does not check
on the reputation and previous conduct of the counsel in his/her courtroom.

Maybe much what we saw was not giving in to a delay tactics, but in fact the try
to shorten things... in the long run... to avoid any form of moving this
conflict to the next legal instance.

Have a lovely day, all,

JB

[ Reply to This | # ]

Don't mean to rain on your parade...
Authored by: Anonymous on Tuesday, October 18 2005 @ 04:46 PM EDT
...but, I think you really take this out of context here. In your previous
article on the actual hearing you say "Counsel for IBM to prepare the
order" means that since IBM won, they get to draw up the order.

How else would IBM draw up the order than this way? Remember these are not the
judges words, but rather IBM's lawyers.

Please don't get me wrong, I hope SCO goes down in flames, but I want to make
sure we don't fall into the other side of creating our own news here...

[ Reply to This | # ]

Transcript?
Authored by: Steve Martin on Tuesday, October 18 2005 @ 04:48 PM EDT
Any speculation on when the transcript will be available?


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

[ Reply to This | # ]

Wells' Order From the October 7 Hearing
Authored by: Steve Martin on Tuesday, October 18 2005 @ 04:52 PM EDT
Is there any significance to the fact that TSG's lawyers did *not* sign the
"Approved as to form and content" section?



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

[ Reply to This | # ]

No more football-metaphor calls to fair play.
Authored by: stend on Tuesday, October 18 2005 @ 04:54 PM EDT
Remember, this order was written by IBM, with SCO's review, so it seems unlikely to me that there would have been any metaphors in it.

---
Please see bio for disclaimer.

[ Reply to This | # ]

Wells' Order From the October 7 Hearing
Authored by: Anonymous on Tuesday, October 18 2005 @ 05:01 PM EDT
After Judge Jackson sabotaged his own position on Microsoft in the infamous
anti-trust rulings, I think some judges prefer the tactic of giving aggressors
enough rope & when They are sure they have done so, then pulling it tight.

Seems Wells may be doing this now.

DSM

[ Reply to This | # ]

Depositions done by Jan 27, 2006?
Authored by: Anonymous on Tuesday, October 18 2005 @ 05:11 PM EDT
I thought discovery was supposed to end on Dec 22, 2005? Are depositions not
part of discovery?

MSS

[ Reply to This | # ]

Judges' susceptibility to hearsay
Authored by: AllParadox on Tuesday, October 18 2005 @ 05:23 PM EDT
I was always pleased and dismayed by the habit of judges to take every attorney
before them on a lawyer-by-lawyer basis.

Very few judges would listen to descriptions of attorney conduct as performed
before other judges, then follow up in their own courtroom. It could be quite
bothersome to get a new judge on a case, and have to educate him or her about
opposing counsels' predilections.

That tendency also meant that clients of the miscreants received a fair hearing.


This was not a matter of stupidity, or lack of communication. Trial lawyers and
judges make up a close-knit community. That grapevine is short, and thick. The
judges knew, they just didn't care.

However: mess with the judge directly: insult the court with lame and
incompetent arguments, when the court is certain you are capable of better, and
they respond.

I suspect this is what has happened with the Hon. Wells. Her patience with
"The SCO Group" game has expired.

FWIW, that is one of the most wickedly directed Court Orders I have ever read
outside a criminal case.

It would be borderline improper, except for the fact that the attorneys for
"The SCO Group" begged for it.

---
PJ deletes insult posts, not differences of opinion.

AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.

[ Reply to This | # ]

Where's the PR?
Authored by: MplsBrian on Tuesday, October 18 2005 @ 05:39 PM EDT
No SCO press release touting their recent courtroom success?

[ Reply to This | # ]

SCO Discovery motion DENIED
Authored by: DannyB on Tuesday, October 18 2005 @ 06:02 PM EDT
<spin>

See guys?!?

SCO was right all along! Judge Wells ruled that SCO's discovery motion to get
information from IBM is DENIED.

This is what SCO has been saying for over a year and a half now!!!

The judge just confirmed that SCO has been DENIED information needed to prove
SCO's case against the evil communist stalinist Linux zealots.

</spin>

Why haven't one of the faithful True Believer(tm) reporters for SCO reported
this yet?

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Hmmm ... December 7
Authored by: overshoot on Tuesday, October 18 2005 @ 06:22 PM EDT
Something about that date sticks in my mind.

Did Her Honor mean anything by it?
IBM's 60 days would actually be 6 December.

[ Reply to This | # ]

I really miss Darl...
Authored by: The Mad Hatter r on Tuesday, October 18 2005 @ 07:17 PM EDT


It was soooooo much fun listening to his spin. He added a certain spice to the
case, and I'm sure his interpretation of this order would have been
entertaining.



---
Wayne

telnet hatter.twgs.org

[ Reply to This | # ]

28 October - ironically Bill Gates' birthday
Authored by: Anonymous on Tuesday, October 18 2005 @ 09:11 PM EDT
Yup, deeply steeped in irony is the fact that William Henry Gates III was born October 28, 1955.

What a birthday surprise he's in for :)

Vik :v)

[ Reply to This | # ]

Egads! That's not enough time!!
Authored by: cmc on Tuesday, October 18 2005 @ 11:55 PM EDT
What, oh what, will The SCO Group do now? They have to have a list of twenty
people prepared on or before Oct 12 2005, and then they have to complete
depositions of those people by Jan 27 2006? That's only three and a half
months! Only 107 days; only 77 business days! Why, that's one deposition every
3.85 days! How can they ever pull off such a difficult feat?!? :)

Seriously, though, how many depositions have TSG done up to this point? And in
what, about 19 months? Can they really find the time in their oh-so-busy
schedules for this? Or (perhaps more to the point) will Boies even care about
this now that they're not receiving any more cash?

cmc

[ Reply to This | # ]

Wells' Order From the October 7 Hearing
Authored by: Anonymous on Wednesday, October 19 2005 @ 07:42 AM EDT
My favorite part:

"IBM appropriately interpreted the Orders, and SCO's interpretation of the
Orders takes out of context what the Court believes to be the clear meaning of
the Orders;"

I think sco's interpretation of the code is out of context too.

[ Reply to This | # ]

  • "Out of Context" - Authored by: Anonymous on Wednesday, October 19 2005 @ 01:32 PM EDT
Wells' Order From the October 7 Hearing
Authored by: blacklight on Wednesday, October 19 2005 @ 10:22 AM EDT
If I remember correctly, Judge Welles had also ordered SCOG on 7 October to redo
their pleading taking into account her rulings and not what SCOG claims her
rulings were. This is the equivalent of a school teacher flunking her student
and telling him to redo his homework. I am so looking forward to SCOG's piece of
writing - And I hope SCOG feels the pain of every word.

[ Reply to This | # ]

Did SCOX lose ground?
Authored by: Jaywalk on Wednesday, October 19 2005 @ 10:34 AM EDT
2. The issue of the discovery from IBM of all documents relating to the development of Linux was not raised before the Court, was not understood by the Court to be a part of SCO's prior motions, and was not contemplated in the Court's March 3, 2004, January 18, 2005, and April 19, 2005 Orders (the "Orders");
IANAL, but this wording looks like Wells is actually not only refusing to grant this motion, but backing down on what she granted in prior motions. In SCO's original discovery request they only asked for AIX and Dynix code, adding Linux in a later motion to "compel" when AIX and Dynix didn't yield what they sought. In spite of this, Wells granted some discovery in Linux as well.

But this order ignores her response to the "compel" motion and goes back to the original request. It looks like she has effectively forestalled any further requests for Linux information. With all the AIX and Dynix information that exists and further Linux inquiries blocked, it's hard to see where SCO has any wiggle room to ask for more discovery.

Not, of course, that they won't try. But, if reports from the courtroom are correct, it sounds like Wells has had enough. I predict that if they show up in front of her again it's going to be less a hearing than a smackdown.

---
===== Murphy's Law is recursive. =====

[ Reply to This | # ]

Wells' Order - Slow Buildup to end of discovery
Authored by: Anonymous on Thursday, October 20 2005 @ 02:45 AM EDT
IBM council have been extremely patient or very cunning
in their case management. They may have a mandate from
senior IBM management to obtain discovery ammunition
for civil suit's against SCO insiders and related
companies.

My thinking on this has been their polite stance throughout
this buildup. It's possible that this was a Microsoft trick to get back at IBM.
Since their most senior manager
have also been embroiled in this, they may want retribution.

Have SCO tabled in evidence, code analysis reports from real experts in this
field ?

If civil suit's are forthcomming, then the lack of these
reports will have serious ramifications if they try
to manufacture these analysis reports for their own
cases.

IBM will never recover their discovery costs but they
may be able to send a message to Microsoft via
civil suit's against SCO director's.

Who knows, they may get lucky and get an SCO associate
or insider to roll over against Microsoft. I'am sure
another Multi-Billion dollar payout from Microsoft Aka SUN :) , would keep the
IBM shareholders happy.


[ Reply to This | # ]
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