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| Want to see a *real* spoliation motion? |
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Thursday, September 28 2006 @ 01:04 PM EDT
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We've now read SCO's spoliation motion and memo in support, the redacted parts anyway. As you probably observed, if IBM did anything at all, it has to fit into the small redacted portion on page three, along with any and all evidence, because nothing that we can read points to any event or any evidence of it.
Further, there is no effort that I can see to tie the "offense" to any cases or legal argument. Instead, SCO seems to cite cases saying that a finding of bad faith is required in order to impose an adverse inference jury instruction. Then they launch into a discussion of cases they characterize as not requiring a finding of bad faith "for other sanctions," which seems pretty irrelevant.
Maybe they just hope the judge will decide to sanction IBM for not doing anything wrong.
Snort. If they have proof problems so serious on the central part of their case that they want a spoliation of evidence ruling and an adverse inference instruction, one would think that the factual part of the brief would be much, much longer and the briefing of the law far more detailed. It is a bit bewildering, unless it's just trying to answer Judge Brooke Wells' order tossing out their proposed evidence for lack of specificity. I guess this is SCO saying, well, it's not our fault. They threw the evidence out, and that's why we can't point to specific version, line and file. But whatever IBM allegedly threw out, if they actually did, it can't have been much, if you can fit it in a couple of paragraphs. Or is this just for FUD purposes, to convince investors they're still in the game? It's puzzling otherwise. In short, this doesn't seem to be a typical spoliation motion.
To show you what I mean, I got the Burst v. Microsoft spoliation motion [PDF] for you. Now *that* is a spoliation motion. Note the careful detailing of fact after fact, filling 60 pages, and the link drawn between the evidence they present and the cases they cite. Then read SCO's handiwork again. Contrast the two, and you'll be snorting too.
It's certainly in character for SCO to ask the court to let them win a point without having to prove anything, but the odds of this gambit being successful seem low.
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| Authored by: Nivuahc on Thursday, September 28 2006 @ 01:31 PM EDT |
Off-Topic! Post your Off-Topic stuff here!
---
My Doctor says I have A.D.D... He just doesn't understand. It's not like... Hey!
Look at that chicken![ Reply to This | # ]
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| Authored by: Nivuahc on Thursday, September 28 2006 @ 01:32 PM EDT |
Should any be needed
---
My Doctor says I have A.D.D... He just doesn't understand. It's not like... Hey!
Look at that chicken![ Reply to This | # ]
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| Authored by: Stumbles on Thursday, September 28 2006 @ 01:35 PM EDT |
| ....SCO to ask the court to let them win a point without having to
prove
anything,....
And that's what SCO has been trying to do from day
one. ---
You can tuna piano but you can't tune a fish. [ Reply to This | # ]
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| Authored by: rc on Thursday, September 28 2006 @ 01:43 PM EDT |
| Maybe tSCOg's purpose here is to try to get IBM's lawyers busy doing busywork so
they miss something important?
Or maybe they hope IBM cannot really say much
against it since there's nothing there, then they can snow the Judge...
On
second thought: no, it doesn't look good for tSCOg, now does it?
rc
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 01:49 PM EDT |
"We can't specify file, version and line, because the Magistrate Judge
threw out our evidence, uh, because we didn't specify file, version and
line."
ROFL![ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Thursday, September 28 2006 @ 01:53 PM EDT |
Is that IBM has not proven SCOG's case for them. Since IBM obviously did
something wrong, IBM is obviously hiding it.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
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| Authored by: Anonymous on Thursday, September 28 2006 @ 01:58 PM EDT |
The tactic reminds me of many divorce proceedings. One or the other of the
parties just makes up stuff to throw at the other. Doesn't matter if its true
or factual or .... It is an opportunity to smear the other and make it look
like their side has more "justice" on their side. From what I've
read, courts don't try to ascertain the truth of such accusations. They mostly
look for an acceptable compromise.
To the extent that false accusations can move a compromise point in the
direction favorable to the accuser, it would seem to be a viable strategy.
Ethically it sucks, but pragmatically it works.
Comments?
[ Reply to This | # ]
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| Authored by: cr on Thursday, September 28 2006 @ 02:10 PM EDT |
I don't think "the Nazgul ate my homework" is gonna work.
---
GROKLAW: "And I would have gotten away with it, too, if not for you meddling
kids!"[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 02:37 PM EDT |
It is not really an apples-to-apples comparison between a motion detailing a
company wide, systematic document retention policy that is designed to hide
incriminating evidence with a motion assumedly detailing a single incident of
spoliation.
I think I recall that the Burst case was in essence settled before the judge
could rule on the spoliation issue because MS was in real danger of adverse
inferences being levied.
I do not think that SCO is raising such a substantial, widespread spoliation
charge and thus I do not see how the two motions should be compared.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 02:54 PM EDT |
Everyone, including IBM, knows that true geeks often explain technical methods
by scribbling notes on paper napkins over lunch.
Despite this, IBM every day deliberately discarded thousands of napkins, each a
potential piece of evidence that would clearly show UNIX methods and concepts
being illegally contributed to Linux.
This clear evidence of the illegal transfer of SCO's intellectual property is
now quite spoiled.[ Reply to This | # ]
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- Sorry, but no - Authored by: NetArch on Thursday, September 28 2006 @ 03:02 PM EDT
- Sorry, but no - Authored by: TB on Thursday, September 28 2006 @ 03:32 PM EDT
- and... - Authored by: snorpus on Thursday, September 28 2006 @ 04:22 PM EDT
- Sorry, but no - Authored by: Anonymous on Thursday, September 28 2006 @ 04:26 PM EDT
- What IBM did - Authored by: Anonymous on Thursday, September 28 2006 @ 03:07 PM EDT
- Whiteboards anybody? - Authored by: Anonymous on Thursday, September 28 2006 @ 03:31 PM EDT
- Sorry.... - Authored by: Anonymous on Thursday, September 28 2006 @ 04:27 PM EDT
- Sorry.... - Authored by: Anonymous on Friday, September 29 2006 @ 03:22 AM EDT
- Sorry.... - Authored by: DL on Friday, September 29 2006 @ 09:56 AM EDT
- Sorry.... - Authored by: Anonymous on Thursday, September 28 2006 @ 04:35 PM EDT
- Whiteboards anybody? - Authored by: Anonymous on Friday, September 29 2006 @ 12:15 AM EDT
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| Authored by: tangomike on Thursday, September 28 2006 @ 04:08 PM EDT |
Don't put your money down yet. Remember the subpoena fiaSCO from 9 months ago.
I'm wondering (once again) when the court will indicate that it's been
insulted.
What a waste of taxpayer and shareholder resources.
---
Deja moo - I've heard that bull before.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 05:14 PM EDT |
I recall SCOG bitching about the fact that IBM had deleted all the command
histories of the engineers before handing over a copy of their software revision
system suring discovery. Maybe this is what they're now claiming is spoilation.
Not that IBM were asked to hand over command histories of course.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 05:50 PM EDT |
These motions all boil down to SCO saying:*
The difference between the millions of lines in the public statements and the
evidence in court is irrelevant because we never claimed we had evidence.
We don't need to provide specific proof because we never specified anything in
our claims to start with.
The fact that we sued means those public comments are privileged because we were
only giving out factual information about the suit.
We don't need to prove they spoliated evidence, the fact that only IBM knows
what they did means they should have protected the evidence regardless.
The magistrate judge inappropriately considered her own several previous orders
in ruling on the June 05 order.
The magistrate judge erred because she used actual evidence against us without
warning us first.
She already said we acted in good faith so why is IBM bringing all this up now.
Wookies sometimes wear plaid, so all trains passing through Linden prove
obsfucated literal methods and concepts have been copied into Linux.
Therefore we should win.
*one more overlength steaming pile of nonsense[ Reply to This | # ]
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| Authored by: seanlynch on Thursday, September 28 2006 @ 05:50 PM EDT |
Remember those memos that SCO had, but had to give back because IBM showed that
they were protected material. Remeber how the Court agreed.
Maybe SCO is arguing to get those back, and IBM is 'spoiling' everything by
acting all legal and stuff.
:)
OK, I'm joking. I can't figure out what IBM is supposed to have spoiled either.
I guess SCO will just argue to the Court: "IBM knows exaxtly what they
spoiled, we don't have to prove anything!"[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 28 2006 @ 06:56 PM EDT |
We, of course, can't read the redacted sections of the motion. But from what
I could make out, the argument goes a bit like this:
IBM destroyed
evidence showing that they used AIX and Dynix/pts in Linux. Therefore they
should be prevented from relying on the argument that they used AIX and
Dynix/pts in Linux.
What they are effectively saying is that IBM's
spoliation of evidence was prejudicial to IBM, so IBM should be
sanctioned... [ Reply to This | # ]
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| Authored by: gfim on Thursday, September 28 2006 @ 08:58 PM EDT |
That's not a spoliation motion. This is a spoliation motion.
---
Graham [ Reply to This | # ]
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| Authored by: browncs on Friday, September 29 2006 @ 06:52 PM EDT |
Maybe this is a dumb question, but how can you be sure that the redacted white
space is all the space that the redacted text actually took up? Could it not be
that they shrunk the white space down? [ Reply to This | # ]
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