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Magistrate Judge Brooke Wells Grants IBM's Motion to Expedite
Tuesday, June 13 2006 @ 06:26 PM EDT

Yes, Magistrate Judge Brooke Wells has granted IBM's Request for Expedited Briefing and Hearing, and no, of course she didn't follow SCO's ridiculous suggestion to give IBM only three days to respond to whatever SCO files in opposition to IBM's Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final Disclosures. Here's the Order Granting IBM's Motion for Expedited Briefing and Hearing [PDF] with the schedule Wells has set:
  • SCO's opposition to motion due: 6/19/06 by 5:00 p.m.
  • IBM's reply due: 6/26/06 by 5:00 p.m.
  • A hearing will be held after briefing is complete.

The fact that no hearing has been set means, I guess, that she doesn't know until she sees the briefs what to do next, since SCO has raised the new issue of IBM's motion allegedly being a "dispositive" motion. If it is, she has to pass the baton to Judge Dale Kimball, who is the presiding judge and the only one who normally would rule on dispositive motions.

As you'll recall, with a smile, SCO suggested they get until the the 19th and then IBM would have to respond by the 22nd, which would have allowed IBM only 3 days. Instead, SCO will get ten days, and IBM seven. That's fair, and harmonious with the usual pattern.

IBM immediately responded [PDF] to SCO's suggested schedule. Of course they didn't accept the proposed 3 days. IBM didn't object to SCO getting until the 19th; it suggested either SCO getting until the 19th, as SCO wanted, with IBM then getting until June 27 to respond; or alternatively, they asked that SCO's deadline be the 16th, with IBM getting until June 21. So IBM got one day less than it asked for, but essentially it got what it asked for.

I noticed something else. Look at the dates. IBM filed its Reply, with its proposed schedules, on June 13. Judge Wells signed her Order on that same day, so I think it is very likely, since she didn't refer to the IBM document at all, while referencing all the other documents, including SCO's, that she picked a date without having read IBM's input, and they both reached essentially the same concept of what would be fair. Think about what that might mean for SCO to be odd man out on the fairness meter.

Pacer also reveals that SCO's legal team is minus one attorney, Mark Clements, who leaves the firm Hatch, James and Dodge for health reasons, and is no longer practicing law, so it's not about this case, and I'm sure we all genuinely wish him well with his health struggle:

You'll note a footnote in the Order, on page 2:

SCO agreed to expedited briefing and proposed this date for the submission of their opposition memo in response to IBM's motion. See SCO's Mem. in Resp. p. 2.

This isn't, in my view, throwing them a bone. It's an indication that the judge is aware this issue is very likely to be appealed by whichever side loses. She understands the significance of what is playing out. The footnote makes it impossible for SCO to complain about the date.


  


Magistrate Judge Brooke Wells Grants IBM's Motion to Expedite | 378 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: dahnielson on Tuesday, June 13 2006 @ 06:32 PM EDT
If any.

[ Reply to This | # ]

Off Topic
Authored by: pfusco on Tuesday, June 13 2006 @ 06:33 PM EDT
Please make clicks linkable

---
only the soul matters in the end

[ Reply to This | # ]

Magistrate Judge Brooke Wells Grants IBM's Motion to Expedite
Authored by: digger53 on Tuesday, June 13 2006 @ 06:41 PM EDT
This is good, it seems. SCO seems to find itself in the position of a cockroach person with his feet stuck in a rock fissure ... and with a glacier approaching. Slow but inexorable, and very, very sure. Short of a meteorite striking the glacier & freeing up its feet, SCO's fate seems assured: predicted thickness, about 0.1 mm; width 1 cm, length 10,000 meters.

[ Reply to This | # ]

Magistrate Judge Brooke Wells Grants IBM's Motion to Expedite
Authored by: AlanMilnes on Tuesday, June 13 2006 @ 06:44 PM EDT
The footnote makes it impossible for SCO to complain about the date.

PJ - you have been watching SCOX long enough to know a simple thing such as their own words wont stop them complaining.

:-)

[ Reply to This | # ]

What is dispositive?
Authored by: Anonymous on Tuesday, June 13 2006 @ 07:03 PM EDT
SCO wants something to survive PSJ. They bring new allegations which I
understand to be against the rules and what they have already represented to the
court. IBM is asking that the new allegations are rejected. SCO say that is
dispositive. However to claim it is dispositive accepts that there are
allegations, some may be even new, in their expert witness submissions. Does
SCO need to claim there are no new allegations in the expert witness material to
maintain the facade of no belated allegations? Could judge Wells agree that the
allegatins are new an untimly, thereby disagreeing with SCO, without supplying
grounds for appeal?

I suppose judges don't like being appealed. I don't like the idea that I would
be up against Megacorp in court and a judge ruled against me, knowing full well
that I could never afford to win my case on appeal. Not the precedence I would
like to see set.

[ Reply to This | # ]

More Dispositive Mullings
Authored by: webster on Tuesday, June 13 2006 @ 07:29 PM EDT

--*--"she doesn't know until she sees the briefs what to do next, since SCO
has raised the new issue of IBM's motion allegedly being a
"dispositive" motion."--*--


1. I'm glad this finally went up. The delay has been interfering with my
work.

2. If she heard and will rule on the IBM Motion to Strike for lack of
specificity, then she should hear and rule on this one. The loser(s) will ask
Kimball to review. That's why she will knock her self out to write an
authoritative Order.

3. Does she need to rule on one before she can consider the other? There can't
be any overlap or one motion would be enough.

4. This is a discovery matter which she has handled throughout. She will not
deal with the substance of the disputed claim. She would not be disposing of
the claim on its own merits. She would only be deciding whether it was produced
in accord with her discovery orders, i. e. timing and specificity. It appears
to be SCO's blithe attempt to introduce an abstract "codeless" claim,
one of their adopted, orphan "method and concept" claims that floats
like a vapor amidst coders. The code-of-origin and the code-of-destination
remain unknown, but the SCO expert knows it when he smells it.

5. So SCO would like to avoid giving Judge Wells a first shot at this. She
must think they don't consider her very intelligent given their arguments and
insistence of the past. They don't even think she understands her own orders.
They certainly don't think she asks appropriate questions at her hearings. One
could speculate as to the reasons, but lets keep the flames down --we wouldn't
want another cojones or sexist episode here.

6. SCO's best tactic would be to concede that they didn't specify, and ask for
the Court to exercise its supervisory discretion and allow them to use the
material in the interests of fairness and justice. They should than gratiously
offer not to object to any further time that IBM might need. Marriott does this
frequently. SCO should turn over a new leaf in the hopes of getting a new
result.

7. The harder part for SCO will be i) specifying code now and ii) specifying
why they did not specify sooner. Without a good answer to these questions it
would seem that they were sandbagging through repeated interrogatories, two
motions to compel and the two deadlines, or just the last one.

8. Is SCO disorganized? Why didn't they specify the code subject to these
experts conclusions? Did they pay them more money? Where have they been all
these years? Did they just analyze some of the mountains of code disclosed?
Didn't they produce the specified code at the deadline as the result of expert
analysis? How did they miss this stuff?

9. So Beg SCO Beg. Forget the legal twisting and arrogance, Beg. Wear knee
pads under your suit. Tell them Silver slept on the job again and missed it.
Tell the Judge your children need to eat. Ask for a favor. Apologize for this
little oversight. This is massive corporate litigation. The Staff Specificator
had faulty intercourse with the Expert Herder. In no way cross or offend the
Court at the hearing. Answer her questions, no matter what they are. Address
her issues, no matter what they are. Plead with her to use, and not abuse, her
Discretion. Treat her as the Ultimate Decider, not an annoying first step to
Kimball. Put all the legal and factual renderings on paper where it belongs.
Flatter her, grovel, beg her as the Ladyship of Justice to do Equity. At least
if SCO does this, she will believe them.

10. It's hard for civil litigators to be shameless beggars. Criminal lawyers
must do it all the time numerous times a day. You aren't going to get probation
for a fifth-time unless you ask for it. That's what SCO's got to do. As for
forgiveness and a favor. We missed a little code and claim. Just let us put in
in. IBM has broad shoulders. You couldn't prejudice them shoulders much.
C'mon judge, it's all we've got..........{PJ, where does one send SCO a bill?}



---
webster

[ Reply to This | # ]

Mark Clements
Authored by: Inevitable on Tuesday, June 13 2006 @ 07:31 PM EDT
Get well soon. Which side of the fence we are on in legal debates make no
difference when one of us is hurting. May your health be restored and your
family comforted.

Doug Evans
Linux nut
Casper WY

[ Reply to This | # ]

Magistrate Judge Brooke Wells Grants IBM's Motion to Expedite
Authored by: blacklight on Tuesday, June 13 2006 @ 09:06 PM EDT
Apparently, SCOG's antics are reaching a point of diminishing return.
Apparently, judge Wells reads SCOG's argumentation and makes her own
determination as to whether SCOG's arguments meet commonly accepted standards of
practice of law. If SCOG's arguments don't meet the standards, she tosses them
out regardless of how cleverly these arguments are packaged.

One of the great benefits of participating in groklaw is that I have acquired
zero tolerance for grandstanding lawyers. My attitude is "show your
evidence, show your facts, don't confuse me, don't annoy me, and don't distract
me". I will most likely crucify those lawyers who don't follow my rules, if
I am on their jury. I am now pretty impervious to emotional appeals and
speechifying in a court of law: in my opinion, everyone deserves fairness and a
full hearing so that each side gets to all the facts and evidence pertinent to
their case. No more, no less. End of story.

At this point, SCOG's outrage in its pleadings, whether real or feigned, leaves
me cold and sometimes ice cold. Either SCOG has the evidence and the facts, or
SCOG doesn't. If not, then SCOG takes a hike.


---
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 | # ]

"The footnote makes it impossible for SCO to complain about the date."
Authored by: Anonymous on Tuesday, June 13 2006 @ 09:58 PM EDT
That's funny!

[ Reply to This | # ]

Magistrate Judge Brooke Wells Grants IBM's Motion to Expedite
Authored by: ExcludedMiddle on Tuesday, June 13 2006 @ 10:28 PM EDT
Ok, there's something that I really don't understand here. Since it would have
cost SCO nothing to claim everything under the sun, and even including the sun
on their Dec 22 disclosure, why didn't they claim these?

Was it intentional, so that they could do this? Did they have another plan with
these expert reports, or was this incompetence? They've been preparing that
disclosure for years. I just don't get it, and I can't tell from this if there's
a plan behind it or just a scramble to cover for mistakes.

[ Reply to This | # ]

SCO lawyers mock the court -- and clients, too?
Authored by: Anonymous on Tuesday, June 13 2006 @ 10:35 PM EDT

SCO's suggested 3-day response time for IBM could never be taken seriously by
anyone. SCO's lawyers are simply mocking the court. I wonder if they are also
mocking their own clients.



[ Reply to This | # ]

Alternate History : I Think She Read IBM's response.
Authored by: darkonc on Wednesday, June 14 2006 @ 01:33 AM EDT
My guess is that she wrote her response first, then waited for IBM's
response.... Read IBM's letter and said something like "Yep. No surprises
here", and released her decision.
<br>
I get the sense that when judges respond without waiting for
responses/rebuttals, they normally mention the fact. In this case the sane
response was relatively obvious, and waiting for IBM's response was little more
than a formality, but I'd say that it was probably just the polite thing to do
.... and she probably trusted IBM to be prompt in their response (unlike what I,
at least, would have expected from SCO).

---
Powerful, committed communication. Touching the jewel within each person and
bringing it to life..

[ Reply to This | # ]

Health issues
Authored by: Anonymous on Wednesday, June 14 2006 @ 03:50 AM EDT
Well, of course i wish Mr. Clements all the best, but i have to say that i would
not be so sure about his health being (or not) related to this case. I guess
after an hour or so with Darl in one room an honest lawyer (if there are any)
could go home with a fair amount of PTSD...

Linux_Inside

[ Reply to This | # ]

What if ...
Authored by: Wol on Wednesday, June 14 2006 @ 04:11 AM EDT
I know it's not that likely, but what if MJ Wells reviewed the submissions, then
passed IBM's order to J Kimball saying "please sign".

SCOG get want they want - an admission that it's dispositive, and IBM get what
they want - their order.

And should SCOG want to appeal ... well, who do they appeal to?

Yes, I know this isn't court protocol, but it would be nice... :-)

Cheers,
Wol

[ Reply to This | # ]

The footnote
Authored by: Anonymous on Wednesday, June 14 2006 @ 05:41 AM EDT
Okay-- that's pretty funny. It looks like very possibly SCO made a gambit and it
wound up having the exact opposite effect they intended.

Do I have this right?

1. IBM says "we need to speed this next hearing up".
2. SCO, voice full of sugar, says "Okay, since IBM agrees we need to speed
the hearing up. Give us ten days and IBM three".
3. Judge, voice full of sugar, says "Okay, since SCO agrees they can
respond in ten days, I'll give them ten days and IBM seven".

Final result, SCO gets stuck committed to the expedited schedule whether that
was what they wanted or not, and IBM still gets a reasonable amount of time to
respond.

[ Reply to This | # ]

Wednesday, June 19th, 2006 is a Monday (?)
Authored by: DaveJakeman on Wednesday, June 14 2006 @ 06:52 AM EDT
From Wells' order: "SCO to file any opposition to IBM's Motion to Strike by
Wednesday June 19, 2006 [see footnote 4] at 5:00 p.m."

And Footnote 4: "SCO agreed to expedited briefing and proposed this date
for the submission of their opposition memo in response to IBM's motion. See
SCO's Mem. in Resp. p. 2."

But June 19th, 2006 is a Monday, not a Wednesday.

The nice thing about having redundant information is that you can clearly see
when something is wrong: a kind of "parity bit". It doesn't
necessarily tell you exactly what is wrong and what to do to correct it, but it
does tell you something is wrong.

I wonder if the source of the wrongness above is what we perceive to be the
chief source of wrongness in this case: SCO.

Has the Court been SCOed?

---
Shampoo for my real friends, real poo for my sham friends - not Francis Bacon
---
Should one hear an accusation, try it out on the accuser.

[ Reply to This | # ]

I must admit I'm confused
Authored by: sirwired on Wednesday, June 14 2006 @ 08:14 AM EDT
SCO HAD to know that the 3-day response by IBM was simply no way in heck going
to be granted. It wouldn't make the least bit of sense by any stretch of the
imagination. Given that it was an utterly futile request why did SCO even
propose it?

I know that BSF is not particularly concerned with being fair to IBM, but this
isn't unfair, it is just stupid. They might as well have attached a motion for
$1B in sanctions because they don't like Marriott's suit and tie.

I thought it was to a party's advantage to at least give the impression of being
fair to the other party. You should be firm as an advocate for your client, but
not show contempt or blatant unfairness to the other side.

SirWired

[ Reply to This | # ]

SCO maybe winning in thier eyes
Authored by: ThatBobGuy on Wednesday, June 14 2006 @ 09:11 AM EDT
I personally make a concious effort to remember that SCO may not be playing for
the same goals as IBM.
IBM's goal, I believe, is to win this case as quickly as possible. IBM will
most likely win, but the time for *quick* has come and gone.
I still believe that SCO wanted bought out, which of course failed.
Now if SCO's goal is delay, they are winning big time.
As for ideas to why they would be playing for a delay, you would have to ask
someone smarter than me, but I do have some theories.
I liken this to Vegas.. Lost $50 at the tables, Vegas wins. My goal was $50 in
free drinks + entertainment, I win. :)

[ Reply to This | # ]

Magistrate Judge Brooke Wells Grants IBM's Motion to Expedite
Authored by: iabervon on Wednesday, June 14 2006 @ 12:11 PM EDT
She may alternatively have interpreted IBM's original request for it to be
expedited as proposing the standard minimum timetable, and made her ruling
without waiting for IBM to spell out their proposal or necessarily realizing
that IBM intended to do so. I think she made the ruling that she would have made
if SCO had just agreed to the motion being expedited and nobody had proposed
dates, so she could have assumed that IBM would be fine with the result,
considering their original filing.

[ Reply to This | # ]

SCO/BSF/ETC accomplished thier goals?
Authored by: ThatBobGuy on Wednesday, June 14 2006 @ 02:50 PM EDT
I originally posted in OT thread, I apologize. I came to this conclusion today
at lunch, and it really frustrated the snot out of me.
This is a repost from my bardwick account on Yahoo/scox board (altered slightly
for language).
Although I have very little doubt that SCO will lose thier legal battles.
Groklaw pretty much sealed that deal.

I'm trying to look at it from "the other guys" side and it seems
pretty rosy when one accepts the fact that Companies are run by people who work
for money. It comes down to greed.

MSFT: So they pumped 10's of millions of dollars into these fiasco. Say what you
want, but these people are NOT stupid and I guarantee they got EXACTLY what they
paid for. Especially all the "free" FUD they get generated by the
general press (not so much anymore).
BSF: In it for the money, they could give a darn about SCOX, this case, open
source, Daryl, ANYONE. They will sleep just fine on the matress stuffed with
$100 bills. Thier ability to delay this case for so long just recently got them
an extra $5,000,000 in the kitty.. Anyone really think they are
stupid/incompetant?
SCOX: The whole bunch behind this are getting money hand over fist. Again, these
people are also not stupid. I'll take a $0.10 bet against anyone.. These guys
will never see the inside of a cell over this. Doesn't matter if they deserve or
not.
Investment bankers: They lost *NONE* of *thier* money. The people moving this
around are paid HUGE sums of money, not including the almost definate promise of
more money to float in due to back room deals with major corperations. Heck yeah
they will take a 10 million dollar loss for the chance to manage hundreds of
millions of dollars.
SUN: Having some financial problems for awhile. They signed a deal with a major
software company (albiet a monopoly).. This gives them both cash and
credibility. Sun was late to the party, freaked out how much they were losing
to
Linux. The delay/fud this case is costing gives them a chance to breath/catch
up.
The list goes on.
IBM: This litigation is costing them millions and diverting
attention/employees/resources to this rediculous case.
SEC: They are BURIED in huge companies that spend more on sticky notes than SCO
has total assets. SCO has 198 employees and they will be CRUSHED by a monster
of
a company. After the dust settles, do you really think that something as tiny as
SCO will even be on the radar?
In a nutshell: The people playing this game are NOT stupid. Each entity/person
is getting exactly what they want/paid for. The only victims have been Open
Source, IBM, and non-gamers that tried to play.
The "Generals" in this war vs. Open Source can lose EVERY battle, and
still win the war. They accomplished thier objectives and thier bank accounts
reflect those accomplishments.

[ Reply to This | # ]

Tired of "Appeal" talk
Authored by: GLJason on Thursday, June 15 2006 @ 10:25 AM EDT
Why do people keep saying the judges are just being easy on SCO so that they
don't have grounds for appeal? An appeal is only successful if the judge made
an error in the law, right? Aren't the judges just trying to do things right
the first time? That entails giving both sides a fair chance to make their
case. Judges don't (or shouldn't) penalize one side just because they're fed up
with them.

[ Reply to This | # ]

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