decoration decoration
Stories

GROKLAW
When you want to know more... 		decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook

Donate

Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments

Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO's Experts Reports
Friday, July 28 2006 @ 03:27 PM EDT

SCO has now filed its experts' reports, or more exactly it has filed a Certificate of Service [PDF], showing that it has served them on IBM on July 17, the very last day. Here's the docket wording:
CERTIFICATE OF SERVICE by SCO Group (1) Report of Dr. Thomas A. Cargill In Response to the Report and Declaration of Dr. Brian W. Kernigham; (2) Response of Dr. Jeffrey Leitzinger to the Report and Declaration of Professor J.R. Kearl; (3) Response to Report and Declaration of Professor J.R. Kearl by Christine A. Botosan, CA, Ph.D; and (4) Rebuttal to the Report and Declaration of Professor J.R. Kearl by Gary Pisano, Ph.D (Hatch, Brent)

Compare that with IBM's list. Really.

If you look at the schedule on our IBM Timeline page, you'll see where we are in the stream of time. These are opposing experts reports, as opposed to the initial ones. So our next deadline is rebuttal expert reports on August 28, assuming no more changes in the schedule. As you can see there have been several changes already.

We are looking at the experts that will or at least can testify at trial. As a general rule, you can't have an expert testify unless he has submitted a written report. The idea is that there should be no surprises at trial. Both sides should know what the other side is going to present. That, of course, is precisely why it's such a big deal that SCO didn't, according to Judge Brooke Wells' most recent Order, reveal its evidence in a timely manner. TV shows notwithstanding, there really aren't supposed to be Perry Mason moments at trial. The reason is simple. You might win by ambush, as opposed to deserving to win, because the other side has no chance to prepare properly. The courts are interested in getting it right.

Here is the Federal rule that applies, Rule 26:

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).

As you can see, you have to provide a whole lot more than just name, rank and serial number. Whoever has the burden of proof on a matter has the obligation to submit the initial expert report, and then the other side submits opposing expert reports. That is what is happening now. So with all those pointers, even though we can't yet read the experts' reports, you at least can figure out in general what is going on in the case in the shadows, so to speak.

Speaking of shadows, you can have experts help you prepare for trial that you don't expect to ever use at trial. Those you don't have to tell the other side about. I guess that's the bucket the "MIT" deep divers fell into.


  


SCO's Experts Reports | 335 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Typos Here
Authored by: entre on Friday, July 28 2006 @ 03:32 PM EDT
For PJ

[ Reply to This | # ]

Off topic thread
Authored by: ThrPilgrim on Friday, July 28 2006 @ 03:33 PM EDT
Make links clickable

[ Reply to This | # ]

One Response to Kernighan, Three to Kearl
Authored by: Steve on Friday, July 28 2006 @ 04:04 PM EDT

Note that there is one response to Kernighan and three responses to Kearl. One programmer, three economists.

What did Kearl say in his expert report to get SCO to focus three responses on him?

And no responses to any of the other 11 experts on IBM's list. I don't know what it means.

Kearl on the stand is going to be dynamite. Polished, professional, unruffled. Local guy, BYU guy (helps his credibility with the jury and blunts the "local" effect of SCO being based in Utah). That explains why SCO selected Christine A. Botosan, by the way; she's from the University of Utah. Could be problematic, actually--a Salt Lake jury may have some partisan elements, and using a U of U expert to testify against a BYU expert may actually blunt Kearl's effect on the jury. It's the only hope SCO has, I think.

And yes, we really do take our college sports rivalries that seriously in Utah.

---
IAALBIANYL

[ Reply to This | # ]

Mike Anderer and IPIQ
Authored by: stats_for_all on Friday, July 28 2006 @ 04:07 PM EDT
Mike Anderer was a MIT deep diver, and despite the embarrassed suppression of that venture, Mike Anderer remains involved in the wild frontier of "monetization" of IP

Mike Anderer is listed as a director of IPIQ in official filings with the state of Nevada. IPIQ is a Intellectual Property consultancy run out of Chicago, but registered in Reno, NV. IPIQ was apparently founded by members (ie Eric Gillepsie) of the Utah-based SBI consultancy following the buyout and wind down of that enterprise. Darl founded SBI, though he lost control in the IKON lawsuit period.

IPIQ focus is the evaluation of Patent and IP for strategic business purposes. IPIQ is distinct from IPXCO.com-- the marketer's of Anderer's patent pending code comparison program.

A peculiar feature of the IPIQ website is Anderer is not mentioned at all. Neither are Directors - Joachim Gfoeller and David Mock- who are a private fund that have invested in other Anderer ventures (Realm Systems). Anderer uses their NY business address for the Nevada registration. Anderer hosts the funds website at his S2 address.

Nevada Business Entity search for Officer Mike Anderer

[ Reply to This | # ]

the bucket the "MIT" deep divers fell into...
Authored by: Anonymous on Friday, July 28 2006 @ 04:08 PM EDT
Love it! Groklaw is such a joy to read!

Thx.

[ Reply to This | # ]

Ms Botosan demonstrates her expertise ....
Authored by: Anonymous on Friday, July 28 2006 @ 04:09 PM EDT
I visited the homepage of Christine Botosan http://home.business.utah.edu/actcb/
, one of SCO's experts ... just to see how expert she is.

She's a professor of accounting, apparently, at .. and I quote from the headline
of her homepage:

"David Eccles School of Busines"

I leave it to the reader to decide on whether the mis-spelling is indicative of
the level of familiarity with the subject of business, or, simply indicative of
lack of attention to detail.

[ Reply to This | # ]

So where did Rochkind go?
Authored by: Jaywalk on Friday, July 28 2006 @ 04:17 PM EDT
IIRC, they put him up against Kernighan, but it was to argue that they didn't need no steenking code, man. Maybe now that Wells decided they do need the code, SCO decided they don't need no Marc Rochkind.

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

[ Reply to This | # ]

Where are the reports these are opposing?
Authored by: McMartin on Friday, July 28 2006 @ 07:14 PM EDT
It's worth noting that these oppose not the list linked in the article but the initial expert reports by IBM.

SCO's initial expert reports.

It looks like the real fireworks are in the opposing expert reports, then. IBM only filed those two experts to begin with. SCO filed rather more:

  1. Expert Witness Report of Christine A. Botosan, CA, Ph.D. (two reports IBM's AIX Related Revenue and IBM's Accounting for Linus)
  2. Report of Dr. Thomas A. Cargill on the Infringement of the Unix System V Release 4 Operating System by the Linux Operating System;
  3. Expert Report of Dr. Evan Ivie;
  4. Valuation of Lost Asset by Avner Kalay, PhD;
  5. Expert Report of Dr. Jeffrey Leitzinger;
  6. Expert Report of Gary Pisano, Ph.D; and
  7. An Analysis of Certain Technological Issues by Marc J. Rochkind
Given the jump between number of initial and number of opposing, the rebuttal expert reports ought to have lots of fireworks.

[ Reply to This | # ]

    SCO's Experts Reports
    Authored by: Kalak on Friday, July 28 2006 @ 07:50 PM EDT
    It looks like Dr. Cargill, author of Author of C++ Programming Style and object oriented programming consultant, hasn't been doing much other than consulting since 2001.

    And he's to counter Kernighan, so this could be interesting. Like a fly going against a legendary dragon. UNIX is written in C++ after all.

    ---
    Kalak: I am, and always will be, an idiot.

    [ Reply to This | # ]

    Rare Words
    Authored by: hardcode57 on Friday, July 28 2006 @ 08:45 PM EDT
    I liked the last page (rare word comparison).
    I no longer have a copy of the PCMCIA standard to hand (I lent it) but IIRC All
    those 'rare words' are appear as part of the Card Services API defined in the
    standard.

    [ Reply to This | # ]

    • Rare Words - Authored by: hardcode57 on Friday, July 28 2006 @ 08:49 PM EDT
    • PCMCIA stands for... - Authored by: Anonymous on Saturday, July 29 2006 @ 01:04 PM EDT
      • or... - Authored by: Anonymous on Saturday, July 29 2006 @ 07:36 PM EDT
    question about experts vs experts
    Authored by: Anonymous on Friday, July 28 2006 @ 09:44 PM EDT
    I kinda asked this before, I am trying to decide what advantage it is for on
    expert to have tons of qualifications versus an expert who has only a few
    qualifications, but none the less is considered an expert. An expert can pretty
    much say what you want. No doubt IBM experts are better, but does the judge
    consider the qualifications? I mean would the judge be more likely to belive
    someone with tons more qualifications?

    [ Reply to This | # ]

    Some questions
    Authored by: Anonymous on Saturday, July 29 2006 @ 10:05 AM EDT
    Is this correct:
    SCO filed their expert reports.
    IBM filed their response.
    SCO has now answered IBM's experts.

    Is this the end of discovery then ?
    Does it mean we can expect to see some PSJs now ?

    [ Reply to This | # ]

    Filing dates
    Authored by: ankylosaurus on Saturday, July 29 2006 @ 01:00 PM EDT
    Didn't SCO file its opposing expert reports on the same day as IBM - July 17?
    It took a lot longer for the information to appear, but they apparently filed on
    the same day. Is it fair to castigate (or do I mean something gentler, like
    chide) SCO for filing at the last moment when IBM did the same?

    ---
    The Dinosaur with a Club at the End of its Tail

    [ Reply to This | # ]

    • Filing dates - Authored by: PJ on Saturday, July 29 2006 @ 04:05 PM EDT
      • Wrists - Authored by: mikeprotts on Saturday, July 29 2006 @ 06:01 PM EDT
        • Wrists - Authored by: Anonymous on Sunday, July 30 2006 @ 06:07 PM EDT
      • Filing dates - Authored by: wtansill on Saturday, July 29 2006 @ 09:58 PM EDT
      • Wrists, etc. - Authored by: Anonymous on Monday, July 31 2006 @ 01:50 PM EDT
        • Wrists, etc. - Authored by: PJ on Monday, July 31 2006 @ 04:37 PM EDT
    • Filing dates - Authored by: Anonymous on Sunday, July 30 2006 @ 05:32 AM EDT
    Where is the Puppeteer?
    Authored by: dodger on Sunday, July 30 2006 @ 04:45 AM EDT
    "I see the puppet. Where is the puppeteer?" (Hellboy)

    PJ: is it time to focus on the puppeteer?

    Microsoft recently announced a multi-year plan to attack the I-POD market and
    produce their own ZTUNES,

    The new Vista will contain anti-virus software which attacks Semantec's
    anti-virus market share.

    Microsoft states that their main target is Google's market share. (Microsoft
    didn't even include TCP-IP in their beta Winndows 95 in a rash display of
    "Do it our way, or don't do it. However, in the release version, they
    acquiest.)

    The basis of their defense to the anti-trust case was that they were protecting
    innovation. In all of the recent press, they are publicising being a monolithic,
    market grabber, incapible of innovation.

    I believe that this is all "tricks of the magician's trade". Keep them
    busy with the right hand so they don't see the left hand (disctraction and
    misdirection): in fact, they make and continue to make their money with their
    monopoly lock on the office and operating system software. I believe that when
    you rake in billions quarterly, paying off the several hundreds of millions of
    EUROs is a small price for keeping the monopoly in tact.

    This is Microsoft's issue: keeping the monopoly in tact.

    [ Reply to This | # ]
    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )     		Site layout based on Woodlands theme by Bryan Bell.
    Groklaw logo by John Crowley.
    News Picks logo by Ted Thompson.
    Powered By GeekLog
    Created this page in 0.06 seconds