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You Guessed It -- SCO Asks Leave to Respond to Davis' Rebuttal |
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Thursday, May 04 2006 @ 03:17 PM EDT
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Do you remember the scene in the movie where the hero is confronted with a bad guy menacingly flashing a sword around and around like a baton-twirler, and the hero just pulls out a gun and shoots him dead? That was the first thing that came to my mind when I saw SCO had filed a motion to strike [PDF] portions of the Randall Davis Rebuttal Declaration or -- and here we come to the real desire -- for leave to respond!! What else? Many of you predicted they would ask for that, and they have. I think it's a lot of elaborate prancing about for nothing, because IBM ... well, you can finish that sentence for me.
To tell you the truth, I wouldn't mind a bit if they got to respond. The more they have to talk about their empty list, the better I like it, because more details spill out. The grounds? Well, their Memorandum in Support of Motion to Strike Portions of the Rebuttal Declaration of Randall Davis or for Leave to Respond to the Rebuttal Declaration [PDF] tells us that after SCO's expert, Marc Rochkind, seemed to opine about the law in his declaration -- remember him implying that the judge was wrong and despite her order to do so, he didn't have to provide file, line and version? -- they are shocked, shocked that Mr. Davis included "legal arguments" in his: Given leave to file a further declaration of Randall Davis in response to the declaration of Marc Rochkind in support of SCO’s opposition to IBM’s motion, IBM has used Davis’s supplemental declaration as an occasion to make many new (and incorrect) arguments, including legal arguments that Davis, a computer scientist, is in no position to make. As you know, SCO's lawyers are known for scrupulous attention to the rules. What Davis actually said, however, was simply that he was relying on explanations provided to him by IBM's lawyers: 50. I am not a legal expert, and do not pretend to be an authority on the meaning of the term “willfully” for purposes of a court’s deciding whether a party should be limited in submitting evidence in support of its claims. In responding to Mr. Rochkind’s assertion, however, I rely on the definition of the term used in the cases provided by counsel for IBM...
In the Argument section beginning on page 2, SCO claims Davis misinterpreted their contract claims. Um. Hmm.
If so, might it be because SCO keeps making us all guess what their claims are? You think? And the section ends with their worst worry: that they've been accused of willfully refusing to provide line, file and version. Willful is a very strong word in courtrooms. That's what is really worrying them, and they are absolutely right to worry. So they'd like the court to either strike the parts of Mr. Davis' Rebuttal Declaration they don't like or give them an opportunity to answer. They condemn "IBM’s efforts to use its motion to obtain a merits determination on the scope of specificity required for actionable technological disclosures of a method or concept or other know-how..." I think I speak for all of us when I say I believe the entire world would like nothing better than for somebody to finally find some kind of rule that will force SCO to be specific at last.
****************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
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SCO'S MOTION TO STRIKE
PORTIONS OF THE REBUTTAL
DECLARATION OF RANDALL
DAVIS OR FOR LEAVE TO
RESPOND TO THE REBUTTAL
DECLARATION
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
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1
Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves the Court for an order Striking Portions of the Rebuttal Declaration of Randall Davis or for leave to file a response to the Rebuttal Declaration, regarding the motion of Defendant, IBM, to limit SCO’s claims relating to misused material.
On April 14, 2006, this Court allowed IBM to submit a supplemental declaration from Randall Davis in response to the Declaration of Marc Rochkind. The Court stated that the supplemental declaration should respond only to the Rochkind Declaration, and counsel for IBM confirmed. IBM now has submitted a supplemental, 22-page Davis declaration (much longer than the original Davis declaration and Rochkind Declaration combined) and included numerous new points not addressed in the Rochkind Declaration. These inappropriate arguments, which are identified in the accompanying supporting Memorandum, should be struck and disregarded, or else SCO should be permitted to respond to them.
DATED this 4th day of May, 2006.
Respectfully submitted,
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
By__/s/ Brent O. Hatch____
Counsel for The SCO Group, Inc.
2
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc., hereby certifies that on this 4th day of May, 2006, a true and correct copy of the
foregoing memorandum was served
on Defendant, IBM by serving its counsel of record through the CM/ECG system or otherwise by U.S. mail, on the 4th day of May, 2006, to:
of April, 2006, by U.S. Mail to:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Jennifer M. Daniels, Esq.
[address]
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]
___/s/__Brent O. Hatch_________
3
****************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
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SCO'S MEMORANDUM IN SUPPORT OF MOTION TO STRIKE PORTIONS
OF THE REBUTTAL DECLARATION
OF RANDALL DAVIS OR FOR
LEAVE TO
RESPOND TO THE REBUTTAL
DECLARATION
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
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1
Plaintiff, The SCO Group, Inc. (“SCO”), respectfully submits this memorandum in support of SCO’s Motion to Strike Portions of the Rebuttal Declaration of Randall Davis or for leave to file a response to the Rebuttal Declaration, regarding the motion of Defendant, IBM, to limit SCO’s claims relating to misused material.
Background
Given leave to file a further declaration of Randall Davis in response to the declaration of Marc Rochkind in support of SCO’s opposition to IBM’s motion, IBM has used Davis’s supplemental declaration as an occasion to make many new (and incorrect) arguments, including legal arguments that Davis, a computer scientist, is in no position to make.
After IBM submitted a declaration from Davis with its reply, SCO submitted a responsive Declaration of Marc Rochkind. On April 14, 2006, this Court heard argument on IBM’s motion and allowed IBM to submit a responsive declaration from Davis. The Court said the supplemental declaration should respond only to the Rochkind Declaration, and counsel for IBM confirmed. On April 28, IBM submitted a 22-page Davis declaration (much longer than the original Davis declaration and Rochkind Declaration combined) and included numerous new points not addressed in the Rochkind Declaration. These inappropriate arguments should be struck and disregarded, or else SCO should be permitted to respond to them.
Argument
Davis raises new issues that do not respond to any analysis in the Rochkind Declaration: A. Davis now offers legal analysis that misinterprets the nature of SCO’s claims for breach of contract and therefore improperly bases his analysis on that misinterpretation (¶¶ 8-9);
2
B. Davis ventures to interpret SCO’s document requests with respect to the nature of information requested from IBM and offer opinions as to how that relates to the instant motion (¶¶ 19, 34);
C. Davis now opines (inappropriately) on the supposed meaning and significance of testimony from a SCO deponent (¶ 33);
D. Davis now purports to analyze earlier orders of this Court, which neither requires or is assisted by Davis’s field of expertise (¶¶ 15-17);
E. Davis now purports to substantively evaluate certain individual additional Items from SCO’s December Report (¶¶ 27-28, 30, 36, 45-46); and
F. Relying on new legal cases that IBM failed to cite previously, and to which SCO has never had the opportunity to respond, Davis now reaches a legal conclusion based on SCO’s alleged state of mind that SCO “willfully” failed to provide version, file and line information (¶¶ 50-54, 58).
This declaration is a blatant and improper attempt by IBM to present yet further legal arguments on their discovery sanction motion – arguments that, in fact, underscore IBM’s efforts to use its motion to obtain a merits determination on the scope of specificity required for actionable technological disclosures of a method or concept or other know-how and confirm that Davis and IBM are capable of undertaking such a merits analysis (however improper and incorrect) even as to the very disclosure (Item 146) that they previously featured as supposedly insufficient information for them to evaluate (e.g., ¶ 45). SCO submits that the above portions of the motion
3
should be stricken and disregarded, or else SCO should be permitted to respond to the Davis declaration.
Conclusion
SCO respectfully requests, for the reasons set forth above, that the Court strike the foregoing portions of the Rebuttal Declaration of Randall Davis, or else give SCO leave to file a response to Davis’s declaration.
DATED this 4th day of May, 2006.
Respectfully submitted,
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
By__/s/ Brent O. Hatch____
Counsel for The SCO Group, Inc.
1Davis also seeks to obfuscate the issue by citing earlier orders about IBM’s improper source code contributions to Linux rather than the July 2005 Order requiring SCO "to Identify with Specificity All Allegedly Misused Material." IBM thus now seeks to treat the earlier orders as if this Court had identified evidence that SCO ultimately would have to present to support its claims and theory of damages – a decision this Court plainly did not reach (even putting aside the controlling July 2005 Order). The text of the earlier orders show that they did not relate to improperly disclosed methods and concepts, which were identified with specificity in SCO’s December Report by identifying the very "smoking gun" communication that disclosed the method or concept.
4
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing memorandum was served on Defendant IBM by serving its counsel of record through the CM/ECG system or otherwise by U.S. Mail, on the 4th day of May, 2006, to:
of April, 2006, by U.S. Mail to:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Jennifer M. Daniels, Esq.
[address]
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]
___/s/__Brent O. Hatch_________
5
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Authored by: tbogart on Thursday, May 04 2006 @ 04:03 PM EDT |
OK, so I should be working - but I can now claim to be doing public service on
my break ...
8-)[ Reply to This | # ]
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Authored by: drakaan on Thursday, May 04 2006 @ 04:05 PM EDT |
Wanna ramble about something that has nothing to do with the article? Go for
it.
---
'Murphy was an optimist'
-O'Toole's Commentary on Murphy's Law[ Reply to This | # ]
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- Btw the movie was... - Authored by: Anonymous on Thursday, May 04 2006 @ 04:10 PM EDT
- Whenever a company bothers microsoft a stupid lawsuit appears - Authored by: Anonymous on Thursday, May 04 2006 @ 04:12 PM EDT
- Semi-OT: Can someone define "Know-how"? - Authored by: Anonymous on Thursday, May 04 2006 @ 04:39 PM EDT
- A quote from the News Picks - Authored by: Anonymous on Thursday, May 04 2006 @ 05:55 PM EDT
- Something That Has Nothing To Do With The Article - Authored by: Weeble on Thursday, May 04 2006 @ 09:53 PM EDT
- Venue shopping in Marshall Texas - Authored by: Anonymous on Friday, May 05 2006 @ 12:25 AM EDT
- More Vista problems - Authored by: Anonymous on Friday, May 05 2006 @ 07:33 AM EDT
- BS&F been recruiting from the FCC? - Authored by: stend on Friday, May 05 2006 @ 03:16 PM EDT
- SCO short - Authored by: Yossarian on Friday, May 05 2006 @ 06:25 PM EDT
- Rochkind offers $25 for witty caption - Authored by: stats_for_all on Friday, May 05 2006 @ 06:39 PM EDT
- Microsoft invents "Super Cookie" - Authored by: Jude on Friday, May 05 2006 @ 08:16 PM EDT
- Has M$ conceeded defeat in Europe? - FAO Neelie Kroes and other EU politicians. - Authored by: Brian S. on Friday, May 05 2006 @ 08:41 PM EDT
- LOPSA (League Of Professional System Administrators) - Authored by: Anonymous on Saturday, May 06 2006 @ 02:56 AM EDT
- Open Document Format Item in NewsPicks - Authored by: TerryC on Saturday, May 06 2006 @ 04:09 AM EDT
- Newspick: European Digital Library - Authored by: stephen_A on Saturday, May 06 2006 @ 04:25 AM EDT
- quick question - Authored by: Anonymous on Saturday, May 06 2006 @ 05:15 AM EDT
- If you every thought *you* had it bad in college ... - Authored by: Anonymous on Saturday, May 06 2006 @ 08:37 AM EDT
- DiDio FUDs again - Authored by: Anonymous on Saturday, May 06 2006 @ 09:32 AM EDT
- Newspicks - Legal loophole in DUI cases could be tossed. - Authored by: Brian S. on Saturday, May 06 2006 @ 10:20 AM EDT
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Authored by: kurtwall on Thursday, May 04 2006 @ 04:05 PM EDT |
I'm shocked, shocked! that SCO wants to file a response. To paraphrase, or
perhaps mutilate, Hamlet, "Methinks the company doth protest too
loudly."
They'd rather file a response to keep the attention on the peripherals
of the case rather than have to face the central fact that they no case.
[ Reply to This | # ]
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- You Guessed It -- SCO Asks Leave to Respond to Davis' Rebuttal - Authored by: Anonymous on Thursday, May 04 2006 @ 04:34 PM EDT
- You Guessed It -- SCO Asks Leave to Respond to Davis' Rebuttal - Authored by: Anonymous on Thursday, May 04 2006 @ 05:24 PM EDT
- "Methinks the company doth protest too - Authored by: SilverWave on Thursday, May 04 2006 @ 05:32 PM EDT
- OT: Counting from 0 - Authored by: AlanMilnes on Thursday, May 04 2006 @ 07:13 PM EDT
- OT: Counting from 0 - Authored by: TheBlueSkyRanger on Thursday, May 04 2006 @ 07:33 PM EDT
- OT: Counting from 0 - Authored by: Anonymous on Thursday, May 04 2006 @ 08:07 PM EDT
- OT: Counting from 0 - Authored by: Jude on Thursday, May 04 2006 @ 08:30 PM EDT
- OT: Counting from 0 - Authored by: brian on Thursday, May 04 2006 @ 10:28 PM EDT
- A little imaginary dialog to explain why - Authored by: Anonymous on Thursday, May 04 2006 @ 11:15 PM EDT
- OT: Counting from 0 - Authored by: Anonymous on Friday, May 05 2006 @ 04:15 AM EDT
- OT: Counting from 0 - Authored by: Anonymous on Friday, May 05 2006 @ 05:58 AM EDT
- OT: Counting from 0 - Authored by: Anonymous on Friday, May 05 2006 @ 06:03 AM EDT
- It's not "counting" from 0. It is "numbering" from 0. - Authored by: Anonymous on Friday, May 05 2006 @ 07:06 AM EDT
- OT: Counting from 0 - extremely short explanation - Authored by: DannyB on Friday, May 05 2006 @ 09:23 AM EDT
- You all missed the point... - Authored by: jesse on Friday, May 05 2006 @ 10:07 AM EDT
- Counting from 1 is traditional; counting from 0 is elegant - Authored by: DaveJakeman on Friday, May 05 2006 @ 10:34 AM EDT
- Mathematically, it makes sense :) - Authored by: PeteS on Saturday, May 06 2006 @ 10:20 AM EDT
- With respect - Authored by: Anonymous on Saturday, May 06 2006 @ 10:35 AM EDT
- Programmers... - Authored by: Anonymous on Thursday, May 04 2006 @ 07:54 PM EDT
- Rule Zero - Authored by: Yobgod on Thursday, May 04 2006 @ 08:33 PM EDT
- OT: Counting from 0 - Authored by: grundy on Friday, May 05 2006 @ 11:50 PM EDT
- You Guessed It -- SCO Asks Leave to Respond to Davis' Rebuttal - Authored by: wvhillbilly on Thursday, May 04 2006 @ 07:52 PM EDT
- *..actionable disclosure..* - Authored by: inode_buddha on Thursday, May 04 2006 @ 08:03 PM EDT
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Authored by: stats_for_all on Thursday, May 04 2006 @ 04:12 PM EDT |
To help you keep this straight, a listing of the paragraphs and reasons that
SCOX wants to vaporize. Reposted from previous article.
Paragraph to
Strike
.8 Legal Analysis, Breach of Contract
.9 Legal Analysis,
Breach of Contract
15 Interprets earlier orders Dec 2003, 2004, 2005
16 Interprets earlier orders Dec 2003
17 Interprets earlier orders
March 2004
19 invalid comparison to SCO's own discovery request
27
Evaluates certain allegations #'s 17,22,27
28 Evaluates certain
allegations (many including 232-270)
30 Evaluates certain allegations #
146
33 Meaning of Gupta declaration -SCO needs version and files for code
34 invalid comparison to SCO's own discovery request
36 Evaluates
certain allegations #146
45 Evaluates certain allegations #146
46
Evaluates certain allegations #146
50 Reaches legal conclusion on meaning
of Willfully
51 Reaches legal conclusion on meaning of Willfully
52
Reaches legal conclusion on meaning of Willfully
53 Reaches legal
conclusion on meaning of Willfully
54 Reaches legal conclusion on meaning
of Willfully
58 Reaches legal conclusion on meaning of Willfully
[ Reply to This | # ]
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Authored by: rsmith on Thursday, May 04 2006 @ 04:15 PM EDT |
Will the judge allow this re-rebuttal(?)
One would guess and hope not, because the motion is fully briefed. And the judge
seems to be getting the hang of SCOG's tricks.
The SCOG would probably be happy to keep filing replies and rebuttals untill we
all die of old age or boredom.
A somewhat OT question for the lawyers here; What was the longest-running civil
case, and how long did it take? Will this litigation end up in the Guiness book
of Records?
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Intellectual Property is an oxymoron.[ Reply to This | # ]
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Authored by: manys on Thursday, May 04 2006 @ 04:18 PM EDT |
Could it be that SCO is looking at specificity as the merits of the case? I
hesitate to opine that a merits determination would be moot once they are forced
to admit they have no case, but the end result would be the same.[ Reply to This | # ]
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Authored by: skidrash on Thursday, May 04 2006 @ 04:18 PM EDT |
or IBM will file a motion to strike the parts of the Rochkind declaration that
reach legal conclusions or otherwise make invalid arguments.
I honestly can see nothing in the Davis declaration that does not arise
naturally out of responding to Rochkind.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 04:28 PM EDT |
Where does it stop? If SCO gets to respond, then
IBM could ask to respond to that response and then
SCO would... ENOUGH!!!!!! Time for a judge
to start saying "enough already, let's move on". [ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 04:31 PM EDT |
So... question.
SCO clearly snuck legal arguments into the Rochkind declaration.
IBM clearly only mentioned legal matters in their response as a response to that
aspect of the Rochkind declaration-- and since Davis' response only mentions
legal matters to the extent of "these cases provide the standards I used
when evaluating claims", it may or may not (can a lawyer comment on this?)
actually constitute legal argument in the first place.
Is it possible for SCO to get in trouble with the judge, or possibly get their
motion denied, for putting legal arguments into an expert declaration, then
accusing IBM of putting legal arguments into an expert declaration? Because I
don't think the judge could have possibly failed to notice Mr. Rochkind's legal
opinions. They were quite overt.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 04:31 PM EDT |
That the Judge will actually take TheSCOGroup's latest brief seriously?
Marbux, Quatermass, PJ, you guys have called shots before...what do you think?
I have to admire the briefness of both the motion and the memo in
support...possibly the shortest legal documents yet from TheSCOGroup's legal
team.
JRinWV not logged in (I never do anymore...)[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 04:32 PM EDT |
1) Judge will deny motion.
2) Judge will issue verdict as she has been fully briefed.
What I hope:
1) Judge will sharply criticize SCO's lawyers - for wasting her time.
2) Judge will throw out the items IBM wishes.[ Reply to This | # ]
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Authored by: overshoot on Thursday, May 04 2006 @ 04:35 PM EDT |
The perfect reply from the Court would be, "The Court is quite capable of
recognizing inapproprate legal argument disguised as an expert declaration and
discounting it as appropriate without further contribution from the
parties."[ Reply to This | # ]
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- Sweet. And... - Authored by: Anonymous on Thursday, May 04 2006 @ 04:43 PM EDT
- IMHO - Authored by: Anonymous on Thursday, May 04 2006 @ 11:08 PM EDT
- Yes but... - Authored by: Anonymous on Friday, May 05 2006 @ 01:40 PM EDT
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Authored by: mwexler on Thursday, May 04 2006 @ 04:36 PM EDT |
Did anybody else have trouble parsing this sentence?
This
declaration is a blatant and improper attempt by IBM to present yet further
legal arguments
on their discovery sanction motion – arguments that, in fact,
underscore IBM’s efforts to use its
motion to obtain a merits determination on
the scope of specificity required for actionable
technological disclosures of a
method or concept or other know-how and confirm that Davis and
IBM are capable
of undertaking such a merits analysis (however improper and incorrect) even
as
to the very disclosure (Item 146) that they previously featured as supposedly
insufficient
information for them to evaluate (e.g., ¶ 45).
The
first part, "This declaration is a blatant and improper attempt by IBM to
present yet further legal arguments on their discovery sanction motion" is
pretty straightforward. While IBM isn't doing anything that SCO didn't do in the
Rockhind declaration, at least this phrase is pretty clear, concise and
direct.
But this part, "arguments that, in fact, underscore IBM’s efforts
to use its motion to obtain a merits determination on the scope of specificity
required for actionable technological disclosures of a method or concept or
other know-how" is pretty opaque to me. Part of it is the terminology, is there
some specific, legal meaning to the phrase "merits determination?" Part of it is
the length and grammatical complexity.
Then there is, "and confirm that
Davis and IBM are capable of undertaking such a merits analysis (however
improper and incorrect) even as to the very disclosure (Item 146) that they
previously featured as supposedly insufficient information for them to evaluate
(e.g., ¶ 45)." I think there meaning is clear here, they are saying that somehow
by arguing that the claims are not specific, IBM somehow proves they are. I
think my confusion may lie in the definition of "merits determination" and
"merits analysis." Can anybody clarify this?
[ Reply to This | # ]
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- One doozy of a sentence - Authored by: Anonymous on Thursday, May 04 2006 @ 04:43 PM EDT
- Merits - Authored by: vrimj on Thursday, May 04 2006 @ 04:48 PM EDT
- Merits - Authored by: Dave23 on Thursday, May 04 2006 @ 05:19 PM EDT
- One doozy of a sentence - Authored by: Jude on Thursday, May 04 2006 @ 04:50 PM EDT
- Sounds almost like Biff wrote that part (n/t) - Authored by: Anonymous on Thursday, May 04 2006 @ 04:50 PM EDT
- One doozy of a sentence - Authored by: nattt on Thursday, May 04 2006 @ 04:54 PM EDT
- Methods and Concepts - Authored by: GLJason on Thursday, May 04 2006 @ 05:09 PM EDT
- why would it be improper for IBM? - Authored by: kh on Thursday, May 04 2006 @ 05:38 PM EDT
- One doozy of a sentence - Authored by: Anonymous on Thursday, May 04 2006 @ 06:33 PM EDT
- One doozy of a sentence - Authored by: cricketjeff on Thursday, May 04 2006 @ 06:42 PM EDT
- translation - Authored by: Anonymous on Thursday, May 04 2006 @ 07:27 PM EDT
- One doozy of a sentence - Authored by: wvhillbilly on Thursday, May 04 2006 @ 08:20 PM EDT
- Tail that wags the dog - Authored by: hardmath on Thursday, May 04 2006 @ 08:46 PM EDT
- Now we know where BIFF has been... - Authored by: Anonymous on Friday, May 05 2006 @ 05:06 PM EDT
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Authored by: kawabago on Thursday, May 04 2006 @ 05:15 PM EDT |
The following is an exhaustive listing of every individual complaint that SCO
can prove, listed by file, version and line:
1)
----------[ Reply to This | # ]
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Authored by: GLJason on Thursday, May 04 2006 @ 05:24 PM EDT |
A) SCO says paragraphs 8 and 9 offer legal analysis and misinterpret the nature
of SCO's claims. Actually all they say is that he (the expert doing the
analysis) needs the information to even begin to analyze the allegations.
That's not a legal argument, that's his opinion as a technical expert.
B)
SCO says paragraphs 19 and 34 interpret SCO's document requests. Go ahead and
strike them, they are not necessary to the instant motion. Also, the judge will
have already read them and all they really did was serve as a reminder of other
court filings. There's no reason for the judge not to take these into
consideration even if those paragraphs of the declaration are struck.
C)
Paragraph 33 may not belong in an expert declaration either, but like B, it is
merely quoting from existing documents so the judge can take those into account
anyway.
D) SCO claims paragraphs 15-17 "purport[sic] to analyze earlier
orders of this Court, ...". I take these as Dr. Davis explaining what he took
into consideration when analyzing the items. Isn't an expert supposed to
analyze the evidence with regard to orders of the court?
E) SCO claims Dr.
Davis is analyzing additional items that weren't in the previous filings
(paragraphs 27, 28, 30, 36, 45, and 46). #27 rebuts Mr. Rochkind's statements
that those 198 items don't have to do with code. #28 is likewise directly
rebutting statements of Mr. Rochkind. #30, #36, #45, and #46 all deal with item
146, which was discussed both in Dr. Davis's previous declaration and the
untimely declaration of Mr. Rochkind that Dr. Davis should be allowed to rebut
since IBM brought the motion and should get to respond.
F) SCO claims Dr.
Davis is relying on cases that IBM didn't site previously and is reaching a
legal conclusion on the term "Willfully" (#50-54, 58). If Dr. Davis is making
legal determinations, he is only responding to those of Mr. Rochkind. Possibly
#50-52 and parts of #53 could be stricken, but I don't see any reason to strike
#54 and #58:
53. Moreover, the information omitted from SCO’s
disclosures is unquestionably within SCO’s control. (Rochkind Decl. ¶ 14 n.3.)
The Court’s orders, as I understand them, direct SCO (in substantial part) to
make its allegations specific. For example, to the extent SCO claims that IBM
improperly used Dynix code and methods and concepts in contributing to Linux
(and the vast majority of SCO’s allegations are of this type), the orders (on
their face) require SCO to “describe, in detail, . . . with respect to any code
or method plaintiff alleges or contends that IBM misappropriated or misused, the
location of each portion of code or method in any product.” Only SCO knows what
it alleges. No amount of investigation by IBM can connect the dots. Yet SCO
systematically omitted this information from the 198 Items as described in
Addendum B to my initial declaration.
54. In sum, Mr. Rochkind’s claim
that SCO did not willfully withhold information in its possession with respect
to version, file and line of code misses the point. As has been demonstrated, it
is possible to obtain version, file and line information with respect to methods
and concepts if an effort to do so is undertaken. SCO, simply put, has willfully
failed to undertake any such effort.
58. It is for this reason, in
significant part, that I have no difficulty disagreeing with Mr. Rochkind’s
statements regarding willfulness. To my knowledge, SCO has never argued (and
could not credibly argue) that SCO’s failure to provide version, file and line
information was an oversight.
[ Reply to This | # ]
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Authored by: MplsBrian on Thursday, May 04 2006 @ 05:24 PM EDT |
What are the chances of this backfiring on SCO with a finding by Judge Wells
that SCO did willfully disregard the Court's explicit orders about specificity?
Its unclear to me how drawing the Judge's attention again to the arguments that
their case is flawed will benefit SCO.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 05:43 PM EDT |
I cant wait for the next court hearing..
To see what the Judge makes of this... I am absolutely fascinated..
pete[ Reply to This | # ]
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Authored by: SilverWave on Thursday, May 04 2006 @ 05:49 PM EDT |
(n.t.)
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions[ Reply to This | # ]
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Authored by: webster on Thursday, May 04 2006 @ 05:50 PM EDT |
1. The amusement value just doesn't fade! As predicted, here is SCO's bid for
the last word. They hope the judge ignores or denies this on the way to the
trash can, but that she absorbs their legal points and throws them a bone in
lieu of a complete wipeout. (The problem for SCO is that even if they are right
on every argument, it still does not make any of their claims more specific.)
2. IBM will oppose this motion to strike or respond while in the process
rebutting all SCO arguments. They will in the alternative consent to the SCO
response if they are allowed to respond. The original Motion to Strike is IBM's
so they are entitled to the last word.
3. The Judge will say "Enough, already!" She doesn't need any more
law or facts. She knows what specificity is is. Both sides have already given
their best. Nothing more is necessary. She should say that she has considered
it all and just issue her Order on the original Motion to Strike.
4. This is a motion on specifics. She knows what her orders said:
"Version, File, and Line." She knows that there will be an appeal to
Kimball because he has the Last Word. She knows he will be rational so so shall
she. Items that do not specify "Version, File, and Line" will be
stricken. She will give multiple reasons: 1) not specific 2) violation of
first motion to compel; 3) violation of second motion to compel; 4) violation
of intermim deadline and 5) violation of ultimate deadline. Code is code. If
you can't attack it with reference to "Version, File, and Line" then
you must not have anything. Why not say so? There is no beef.
---
webster
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 05:51 PM EDT |
any bets? [ Reply to This | # ]
|
- $10 says yes, - Authored by: Anonymous on Thursday, May 04 2006 @ 05:56 PM EDT
- $10 says yes, - Authored by: Anonymous on Thursday, May 04 2006 @ 08:12 PM EDT
- $10 says yes, - Authored by: Anonymous on Friday, May 05 2006 @ 03:04 PM EDT
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Authored by: stats_for_all on Thursday, May 04 2006 @ 05:59 PM EDT |
SCOX argues that Kimball's July 1, 2005 Order reinterpreted the Specificity
requirement to discard the Version, File, Line standard.
1.
Davis also seeks to obfuscate the issue by citing earlier
orders about IBM’s
improper source
code contributions to Linux rather than the July 2005 Order
requiring SCO “to
Identify with
Specificity All Allegedly Misused Material.”
Kimball's order only refers to discovery definitions in a
summary table of
deadline dates. I think a fair interpretation is that Judge
Kimball was
reincorporating the existing discovery rule by its working title
and not
changing its requirements.
SCOX is arguing that because Kimball
did not restate the March 2004 order in
making up his summary table, the
requirement for Version, File and Line have
been elimnated.
I do not
suppose that bit of sophistry will impress the Judge.
July 2005 Order text
available here:
Groklaw text
Text in Scheduling Table of order reads:
"Final
Deadline for Parties to
Identify with Specificity All
Allegedly Misused
Material"
[ Reply to This | # ]
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Authored by: Christian on Thursday, May 04 2006 @ 05:59 PM EDT |
Footnote 1 contains the argument that I think they wish they had made before.
Watch how they try to wiggle out...
While Wells's intent may be clear, I am
not sure the precise expression used was airtight.
Kimball's order of
July 1, 2005 sets the schedule. It says that the parties are to "Identify with
Specificity All Allegedly Misused Material" with "specificity" undefined.
Wells's
Order of March 3, 2004 tells SCO to do several things. First is "identify
all specific lines of code that IBM is alleged to have contributed to Linux from
either AIX or Dynix." Note that this refers to contributed lines of code, not
contributions in general.
Second, they are to "identify all specific lines of
code from Unix System V from which IBM's contributions from AIX and Dynix are
alleged to be derived." Thus contributions from AIX or Dynix must be matched to
specific lines of SVRX.
Third, SCO must "identify with specificity all
lines of code in Linux that it claims rights to."
It is easy now to see the
holes. If a "secret method" appears in Linux that is not protected by
copyright, it is not clear that SCO "claims rights" to the code that embodies
it, hence the corresponding Linux line numbers are not required. "Methods"
from AIX/Dynix are not contributed code, so line numbers from AIX/Dynix
are not required. If they are not derived from SVRX, then SVRX line numbers are
not required.
There just may be enough wiggle room for SCO to get through,
unless one of the judges puts his or her foot down and tells SCO that they know
darn well what "specificity" means and what they were supposed to produce. [ Reply to This | # ]
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Authored by: Yossarian on Thursday, May 04 2006 @ 06:20 PM EDT |
> for somebody to finally find some kind of rule
>that will force SCO to be specific at last.
That's the job of the judges. Judge W. has the right, and
*duty*, to tell SCO that she will reject any claim that, in
her opinion, is not specific enough.
(And if SCO will ask "what is the base for her opinion?"
then she should answer "there need to be file, version and
line number.")[ Reply to This | # ]
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Authored by: BsAtHome on Thursday, May 04 2006 @ 06:26 PM EDT |
Well, if the facts are against you, attack the rules.
If the rules are against you, attack the semantics.
If the semantics are against you, atack the system.
If the system is against you, appeal the facts.
I'm waiting for SCO to go sue themselves at some stage.
---
SCOop of the day, Groklaw Rulez[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 07:04 PM EDT |
Do I misunderstand this?
A Judgement on the merits - judgment rendered
through analysis and adjudication of the factual issues presented (The Free
Dictionary).
Isn't Davis one of the people (a very small set IMHO) who
is an expert witness for exactly this kind of purpose? That's one of the main
reasons I thought IBM retained him.
That whole sentence and this whole stunt
seems exercise in firing the foot gun and possiby will result in taking of an
entire leg as a result.
It's easy (and already on court record) for IBM and
Davis to demonstrate that he is an (the only?) expert on this
subject.
Also I don't see how SCO are claiming that they didn't request
exactly the same specificity, or how they interpreted the court orders that
appear to require that specificity.
Anyway I'm going to make a list of what
SCO aren't asking to be cut from the declaration, I'd be interested to see what
they are conceding (or at least will allow to stand).
I'm lurking less,
maybe time to get a login... nah, I'm still an AC. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 07:04 PM EDT |
STOP THE INSANITY!!! PLEASE!!!
I would expect IBM to file a reply to this very quickly. I expect that it will
be fairly short and razor sharp.
I predict that SCO will lose. And that they will appeal to Kimball. And that
they will lose there, too, because Wells will have conferred with Kimball
already.
I predict that SCO will then try a... what's it called? Interlocutory appeal?
An appeal before the whole case is decided. And that the appeals court will
smack SCO down in no uncertain terms.
The only question is, how long is all this going to take? Will we ever see the
end of it?
MSS2[ Reply to This | # ]
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Authored by: danb35 on Thursday, May 04 2006 @ 07:07 PM EDT |
It's interesting (though not surprising) that they attempt here to distinguish
between IBM's allegedly improper contributions of source code to Linux, and
IBM's allegedly improper contributions of methods and concepts to Linux. They
would, apparently, like the judge to believe that it's possible to contribute a
method/concept without contributing any source code.
Davis' declaration, as well as the arguments at the last hearing, have touched
on this, and I think IBM needs to continue to hammer this point: any methods or
concepts that exist in Linux, whether good or bad, contributed by IBM or not,
improperly or not, are embodied in source code. Even if the court accepts SCO's
apparent understanding of the contract ("apparent" because they've
been very evasive as to exactly what they're claiming), anything that IBM (or
anybody else) contributed to Linux exists in source code. SCO seems to be
working very hard to obscure this critical point.
[ Reply to This | # ]
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Authored by: ankylosaurus on Thursday, May 04 2006 @ 07:20 PM EDT |
The film would be "Indiana Jones and the Raiders of the Lost Ark", and
it is a very memorable moment in a fun movie.
So, if IBM is Indy, how come SCO hasn't just crumpled yet?
---
The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
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Authored by: lunarship on Thursday, May 04 2006 @ 07:28 PM EDT |
Perhaps a better one would be the black knight in "Monty Python And The
Holy Grail"...
King Arthur: [after Arthur's cut off both of the Black Knight's arms] Look, you
stupid Bastard. You've got no arms left.
Black Knight: Yes I have.
King Arthur: *Look*!
Black Knight: It's just a flesh wound.
...
[the Black Knight continues to threaten Arthur despite getting both his arms and
one of his legs cut off]
Black Knight: Right, I'll do you for that!
King Arthur: You'll what?
Black Knight: Come here!
King Arthur: What are you gonna do, bleed on me?
Black Knight: I'm invincible!
King Arthur: ...You're a loony.
(Ah, the joys of cut and paste... http://www.imdb.com/title/tt0071853/)[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 07:31 PM EDT |
is allowed to put forward new arguments and reach legal conclusions. the court
should make ibm stop. waa...
i think scog has set themselves up here. they have already attempted to use
confusion over the orders to advance their own agenda. in response, they were
asked pointedly by judge wells whether they understood the court orders and were
then warned to ask if they saw any ambiguity. scog responded that they
understood.
any attempt now to cause an issue based on the clarity of the orders is going to
irritate judge wells.
i hope she takes this opportunity to tell scog that they were wrong in their
interpretation, that they should have asked and tha she is sorry to say, but she
really must rule for ibm here.
because really, there is no clear way to make the argument that scog are now
putting forward. just reading through all of the interpretive gymnastics makes
my head spin...
of course, ianal, so ymmv.
sum.zero[ Reply to This | # ]
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Authored by: jerven on Thursday, May 04 2006 @ 07:44 PM EDT |
I was just wondering if this terminology appears in the 2nd amended
complaint from the SCO group. I can't find it in there, methods yes, but no
methods and concepts.
Only once is there methods or concepts when referring to the contract
between AT&T and Sequent.
The question I would like answered is bringing up the complaint of disclosing
methods and concepts outside the scope of the 2nd amended complaint? SCO
was not granted leave under Fed rule 15 or 16 to further amend its claim.
And could IBM argue that the latest declarations raise new complaints in this
litigation and should be struck as a consequence of the order denying a 3rd
amendment to the complaints?
Jerven[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 07:50 PM EDT |
Is it? Are "they are absolutely right to worry"? Really?
I see no indication of any real life consequences to SCO's managers or their
lawyers. Time passes, they continue to make money. Is there any real prospect of
recovering money from them, or any criminal penalties for such an extreme gaming
of the system? I'm a fan of our legal system, and giving everyone a fair shake,
but I suspect this case is not one of its shining moments.[ Reply to This | # ]
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Authored by: overshoot on Thursday, May 04 2006 @ 08:44 PM EDT |
OK, just for grins I'll take a stab at one possible way for Her Honor to settle
this (and quickly, too):
- She grants SCOX' motion in its entirety.
No harm done to IBM, though, because
- She then grants IBM's motion citing the
same issues that Professor Davis pointed out. Goose, gander, all that: if
Professor Davis' "legal arguments" were out of line, so were Mr.
Rochkinds.
- If she were inclined to rub salt in the wound, she could include
wording in her ruling that covers the same ground as Professor Davis did.
Nothing wrong with judges coming to their own conclusions on such matters after
all.
Is it likely to happen? Danged if I know. See AllParadox's
comments regarding predicting judges vs. weather and horse races. [ Reply to This | # ]
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Authored by: blacklight on Thursday, May 04 2006 @ 09:22 PM EDT |
As of now, judge Wells can choose between two courses of action:
(1) SCOG's arguments are specious enough that she can see right through them,
and reject SCOG's motion on the grounds that she is fully briefed
(2) She grants SCOG's motion based on the notion that SCOG might - just might,
have something solid to say. And thereafter, she can rule on SCOG's motion once
she is comfortable that she has been "fully briefed"
The more likely she feels fully briefed, the more likely that her orders will be
more thorough.
As for SCOG's claim that Randall Davis is not qualified to render legal
opinions: Randall Davis is definitely not. Randall Davis is relying on the IBM
legal team to interpret the court orders, so that he can tailor his analysis
within the context of compliance with the court orders. It is or should be a
given that an expert analysis that is not in compliance with legal requirements
- that analysis cannot stand up in a court of law.
Judge Wells has to decide whether the methodology of Randall Davis' analysis is
in compliance with her court orders - and that is the only issue that matters
and that is relevant.
---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 09:32 PM EDT |
. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 09:49 PM EDT |
"IBM’s efforts to use its motion to obtain a merits determination on the
scope of specificity required for actionable technological disclosures of a
method or concept or other know-how..."
So.
First they tell Judge Wells (via Rochkind) that she was wrong to require them to
specify their complaints by version, line, yada. And so, given her mistake, they
were not required to comply with her order.
Now they're suggesting that IBM is trying to obtain a ruling, from Judge Wells,
on the merits of the very court orders that the same Judge Wells issued?
It's been suggested here before that SCO appear to believe, evidenced by their
submissions, that Judge Wells is very very stupid.
I resisted that interpretation as being too obvious.
I now concede the point. And I'll go further. They seem to think everyone on
this planet is stupid!
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 10:10 PM EDT |
The smarter BSF lawyers are now swinging wildly at IBM. The real, common
sense response
is for Magistrate Wells to go to District Judge Kimball for
assistance. BSF is
betting they
can beat Wells before any legal damage gets to
Kimball. IBM lawyers could
attempt
to help Wells out of this bind before their
legal points are gutted and we are
back to square
one, where BSF keeps us. The
key is the too short BSF filing is obviously
incomplete.
First, maybe BSF
are saying that Davis' rebuttal is too good and legally
effective, so it
cannot
stand as written. If you squint just right and wish for some reward,
Davis
usurps the Magistrate's right to set the standards for evidence (e.g.,
version,
file, and line)
because he so effectively proves that the Rothkind
declaration makes no legal
sense,
failing to meet the legal standard for expert
testimony that SCOX has met
ANY
legal standards for evidence. BSF claims that
Davis is usurping the
Magistrate's
authority to poison the well since Rothkind
has done just this.
Second, maybe BSF are saying they have unilaterally
vacated all the
Magistrate's
orders except the one they claim is the only legal
standard for SCOX's claims
(i.e.,
July 2005). Therefore, BSF claims to have
mooted most of Davis's rebuttal.
Any loophole
is what the smarter BSF lawyers
are looking for, and I do not see how either
jurist can avoid BSF's tactics.
Twist, twist, twisty, BSF.
Third, maybe BSF is saying IBM, Davis, Groklaw,
and Magistrate could not
have any
solid information on what BSF claims, and BSF
fully intends to keep things
that
way forever.
Fourth, maybe BSF is saying
there are no legal precedents for the BSF claims,
so
Davis' legal citations are
obviously wrong.
If I were Judge Kimball, I would help Wells out of a legal
trap because BSF has
a long and sordid history of gaming the system. I would
order the BSF lawyers
to
provide legal citations and flesh out their obviously
incomplete filing, in ten
working
days. Otherwise, this motion has been heard
and Wells will adjudicate.
We are just informed and interested observers.
This case has just changed,
and
most of the talk doesn't reflect the new and
evolving situation. Most
everything
that SCOX has said to date has been
disinformation. The footnote feels real. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 04 2006 @ 10:31 PM EDT |
Davis also seeks to obfuscate the issue by citing earlier orders
about IBM’s improper source code contributions to Linux rather than the
July 2005 Order requiring SCO "to Identify with Specificity All Allegedly
Misused Material." IBM thus now seeks to treat the earlier orders as if this
Court had identified evidence that SCO ultimately would have to present to
support its claims and theory of damages – a decision this Court plainly
did not reach (even putting aside the controlling July 2005 Order). The text of
the earlier orders show that they did not relate to improperly disclosed methods
and concepts, which were identified with specificity in SCO’s December
Report by identifying the very "smoking gun" communication that disclosed the
method or concept.
They seem to be saying that while the
court has ordered IBM to produce mountains of source code, it has made no such
order that SCO present it's evidence to support it's claims and
damages.
Isn't that sort of the basis of making claims of damages?
That there is some evidence that justifies making the damages claim? It reads
to me that SCo is claiming that because the court hasn't explicitly ordered them
to produce said evidence, they don't need to.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 05 2006 @ 12:04 AM EDT |
It seems to me that -- as much as anything -- this is a response to Judge Wells'
question 'Is that all there is?'. You might have forced IBM to give up mountains
and mountains of source code, but you acknowledge that none of it helps your
case. Instead, you seem to be relying on some nonsensical 'smoking gun' email
that you believe supports your theory.
And that's all there is?
Davis drives this point home with a piledriver. SCO knows that if this argument
ever gets in front of a jury -- even a bunch of down-home Utah hayseeds -- then
they're finished.
So they're flailing like dervishes, desperately trying to do anything to keep
this stuff out of court.
Good luck with that, SCOX. The game is up. The emperor stands naked and his
assets are very tiny indeed.[ Reply to This | # ]
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Authored by: jacks4u on Friday, May 05 2006 @ 12:24 AM EDT |
More time ticks away in this phase - defense discovery, while the two sides
wrangle over whether SCO provided the necessary specificity for IBM to defend.
Of course, this is all moot if the court rules in favor of IBM re: 192 items.
I would have liked for IBM to petition the court for a definition of the
necessary specificity, so that SCO could not keep IBM blind for several years,
then open IBM's eyes in front of a jurry. But, alas this is what I think SCO's
strategy really is.
And as for 'smoking gun' disclosures - unless you give a direction the gun was
pointed (a vector, if you will), there is absolutely no way of knowing with
certainty what the bullet might have hit. in ballistics that vector would be
azmuth, elevation, velocity, but with software, the vector is version, file,
line.
---
I'm not a Lawyer, this is my opinion only. I may be wrong, but I don't think so![ Reply to This | # ]
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Authored by: Anonymous on Friday, May 05 2006 @ 02:53 AM EDT |
Unix System V Network Programming
Stephen A. Rago
Addison Wesley Professional Computing Series
Copyright 1993. ISBN 0-201-56318-5
---
Networking Unix
Salim Douba
Sams Publishing
Copyright 1995. ISBN 0-672-30584-4[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 05 2006 @ 05:19 AM EDT |
that Judge Wells mighty simply ignore this filing (or reject it) as being
inappropriate?
from my memory, IBM made a motion, SCO responded, IBM rebutted (with expert
testimony). In the ordinary course of things, from reading the various legal
types hre, that would be it, and the Judge makes a decision.
Then SCOx brings in an expert to rebut IBM at the last minute, and so IBM says
'OK, provided we get to respond'.
Now as IBM gets the last word (because it's their motion), is it possible that
Judge Wells might simply say she is fully briefed and there should be no more
motions?
(I know, I know, but one can dream)
PeteS
[not logged in]
[ Reply to This | # ]
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Authored by: Wol on Friday, May 05 2006 @ 05:23 AM EDT |
Judge Wells:
"You are permitted to file a within-length motion detailing the legal
reasons why you should be allowed to reply, or why portions of Davis'
declaration should be struck.
"You may, should you run out of space, include a request for the
opportunity to file further motions. This request will not, however, be granted
on its own if the rest of the motion is struck."
SCOG are now in trouble ... they are constrained to an in-length motion, they
have to restrict their argument to legalities only on which Judge Wells can rule
directly without needing a reply from IBM, and they *have* to get at least one
valid argument in, otherwise they lose the entire shebang.
If they can't correctly cite case law and precedent then they're stuffed, and if
they incorrectly cite case law and precedent they're handing a club to Judge
Wells, all the better to beat them with :-)
Cheers,
Wol[ Reply to This | # ]
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Authored by: DaveJakeman on Friday, May 05 2006 @ 06:00 AM EDT |
Translation of the motion: "Only our expert can be allowed to speak; IBM's
expert must not."
SCO ask for further delay to respond, yet in their memorandum of support, they
respond anyway. So what do they need the further delay to respond for? Just
that: further delay.
"Davis now purports to analyze earlier orders of this Court, which neither
requires or is assisted by Davis's field of expertise."
Indeed, it requires the expertise of a child, yet SCO still can't seem to get
that bit right.
Memorandum Footnote 1: 'Davis also seeks to obfuscate the issue by citing
earlier orders about IBM's improper source code contributions to Linux rather
than the July 2005 Order requiring SCO "to Identify with Specificity All
Allegedly Misused Material." IBM thus now seeks to treat the earlier orders
as if this Court had identified evidence that SCO ultimately would have to
present to support its claims and theory of damages - a decision this Court
plainly did not reach (even putting aside the controlling July 2005 Order). The
text of the earlier orders show that they did not relate to improperly disclosed
methods and concepts, which were identified with specificity in SCO's December
Report by identifying the very "smoking gun" communication that
disclosed the method or concept.'
"seeks to obfuscate" Hmm. What does Footnote 1 seek to do? Or SCO
for that matter?
Memorandum Footnote 1 translation: "Without informing the Court or IBM, we
have suddenly switched our claim to "methods and concepts", therefore,
none of the previous Court orders (that we failed to comply with), apply to us.
We ain't talking no stinkin' code no more; it's Methods and Concepts,
see?"
It shouldn't be too difficult for Judge Wells to deal with this, methinks:
something along the lines of "Motion DENIED".
---
SCO: hunting for snarks in an ocean of sharks
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.[ Reply to This | # ]
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Authored by: Jude on Friday, May 05 2006 @ 07:32 AM EDT |
Doesn't the term specificity imply the stipulation of objective criteria that
can be used to decide which members of the set of possible candidates are the
ones being referred to?
[ Reply to This | # ]
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Authored by: polymath on Friday, May 05 2006 @ 10:08 AM EDT |
A good law firm can make a case out of a sow's ear as long as there is a client
willing and able to pay their fees.
The state of this case lends credence to the hypothesis that SCO wants to drag
this out in the hope that IBM will buy them up just to lay this thing to rest.
Perhaps this is retribution for the way IBM plays hardball; they practically
invented FUD back it the day. I just hope that IBM sees this through to its
conclusion so that the legitimacy of Linux and FOSS is clearly established.
It is still premature to conclude that SCO is dead in the water there are still
some issues besides the 198; we are not privy to all the evidence and there are
miles yet to go.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 05 2006 @ 10:30 AM EDT |
I have not really seen this issue addressed on GL yet, but what really gets me
going is the fact that it has become very apparent that SCOG never looked at a
single line of the source code that IBM provided.
SCOG requested all that source code just to make IBM mad and try to increase
their chance of IBM giving up and settling. The added FUD that is dredged up
was worth it to them too.
Here is the main thrust of my question: Can a judge, on his or her own, ask
SCOG to produce documentation of what time, money, and effort they spent
reviewing the source code that IBM provided? Is that appropriate for a judge to
do? Or is this a sanction that IBM would have to ask for?
[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 05 2006 @ 03:55 PM EDT |
I think most of the comments here are irrelevant speculation. Can
anyone estimate when we are likely to have a result on the current issue (i.e. a
decision on whether or not stuff will be struck, and on whether SCO gets a
chance to "reply" to the reply)? [ Reply to This | # ]
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Authored by: Anonymous on Friday, May 05 2006 @ 04:07 PM EDT |
Can and does the court control motion practice?
IANAL, so ...
As I understand it motion practice is of the form
1) motion to court/other party by one party.
2) response to court/moving party by the other party.
3) reply to court/other party by moving party.
At this point a motion is fully briefed and the court is suppose to decide.
Right?
So, this leads to my question, How many motions can be filed with the court over
the same topic?
Does the court have a role/responsibility to limit motion practice to keep it
from getting out of hand?
BS&F behavior reminds me of a child who won't take no for answer and is
determined to change the outcome.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 05 2006 @ 04:22 PM EDT |
Since many of us guessed that SCO would ask to respond, I think that it's a safe
bet that IBM knew that SCO would do this.
Think about it, there were a few points in the Davis response that many thought
was strange to have in an "expert opinion" about code specificity. I
bet that stuff was bait for SCO.
My guess: IBM wants SCO to respond! IBM has more attack vectors. They are
leading SCO to open up more topics and then they are going to attack under the
guise of responding.
I think that has already happened with the Davis response and IBM will do it
again if SCO responds.
Let's watch a grandmaster at work...
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, May 07 2006 @ 10:16 PM EDT |
SCOG claims Davis introduced new legal issues when it was Rochkind
who introduced M&C (and the SCOG lawyers reinforced M&C at the
hearing). In truth, Davis introduced nothing new while he ripped the
Rochkind statements of supposed fact to shreds.
SCOG also claims IBM is arguing for dismissal of 198 SCOG claims
based on their merit; however, through Davis, IBM is simply and most
clearly arguing for dismissal based on the abject and complete and
(yes) willful failure to comply with several court orders to be specific
in their variable claims.
I hope the court throws it right back at these characters. If SCOG has
a case, then they are obligated to comply with the court orders for
specificity right down to one or more specific versions, files, and lines.
If the court does not enforce their orders, then I do not know what to
expect. There is no other way forward.
Could SCOG be creating a smokescreen for their own bad faith
activities? Could SCOG be creating a false paper trail to save their
sorry case?[ Reply to This | # ]
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