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| IBM and SCO Stipulate to Extensions of Time to Respond |
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Friday, October 20 2006 @ 06:37 PM EDT
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The parties in SCO v. IBM have agreed to a moderate extension of time to file certain documents. Here's the Stipulation [PDF] and the proposed order. SCO has been telling the court in SCO v. Novell that it would like a stay in regard to Novell's motion for preliminary injunction, or in the alternative significantly more time, and one reason it offered is that it is very busy in the IBM case: Fourth, in furtherance of its admitted cooperation and joint-defense agreement with IBM in litigating against SCO (which is itself a subject of SCO's claims against IBM), Novell has evidently timed its Motion to interfere with SCO's response to the six (6) motions for summary judgment that IBM filed against SCO on September 25, 2006. The IBM summary judgment motions comprise more than 400 pages of briefs and more than 600 exhibits, totaling over 50,000 pages of documents. SCO's response is due on October 25, 2006. Novell's motion, which concerns agreements entered in 2003, and which Novell asserted in counterclaims in July 2005 and again in April 2006, is seemingly timed to interfere with SCO's ability to respond to these IBM motions, and to prepare for trial in the IBM action. The stay SCO seeks would permit SCO properly to respond to IBM's multiple, voluminous and document-intensive motions for summary judgment. The additional time would not remotely prejudice Novell, which waited years to file its instant Motion, and therefore should not be heard to argue that its Motion warrants immediate resolution. Well, now it doesn't have that worry any more. October 25 is no longer the deadline. SCO likely has been telling IBM's lawyers the same thing, that the dual track is too much and IBM hit it with an avalanche. Which is true. It did. In any case, there is now a stipulation which principally benefits SCO, as I doubt IBM desperately needs extensions of time to the degree SCO does, simply because IBM has filed more summary judgment motions that SCO must answer than the other way around. Then there are the 597 IBM exhibits attached, all of which SCO must read and try to rebut in some fashion. Yes. 597. Good luck with that. So now the parties have more time to respond to the summary judgment motions and everything else, but it isn't a huge extension.
What it looks like to me is that IBM agreed to extensions in return for this stipulated sentence: "The parties stipulate that they will not seek any further extensions of the deadline for memoranda in opposition to the pending summary judgment motions." In case that was worrying you, too, now you know. This is it. No major delays are going to happen because of the IBM summary judgment motions. Also, SCO has filed conventionally a motion for a protective order with exhibits to keep some personal information about one of its experts, Dr. Jeffrey Leitzinger, private. His report is #259 on the Greatest Hits list, under seal of course. However, if you look at that new chart, you'll see that it is listed as referenced in IBM's Memorandum in Support of its Motion for Summary Judgment on SCO's Unfair Competition Claim [PDF], (UC. Br. ΒΆΒΆ12, 17, 29), and if you read those paragraphs, you get an idea of what his testimony is. Here's paragraph 12, for example: SCO alleges that "[b]ecause IBM has been developing its plan to replace UnixWare support with Linux support, and because it knew SCO had dedicated its entire enterprise resources to the IBM/UnixWare joint relationship, IBM had a fiduciary obligation to inform SCO of its Linux-related planse long before its Linux public announcement in December 1999." (Ex. 33 at Interrogatory Response No. 7.) In fact, IBM made a public announcement of its intention to support Linux at LinuxWorld in March 1999. (Ex. 21 at 4; Ex. 259 at 38.) It seems SCO's expert noticed the March 1999 event. You see, just because you hire an expert, there is no guarantee the expert will say only what helps you, and of course, that is how it should be. *******************************
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
___________________________________
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.
________________________________
STIPULATION AND JOINT MOTION
FOR EXTENSION OF TIME
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
The parties, through their counsel of record, hereby stipulate and jointly move the Court
for an Order enlarging deadlines as follows:
Both parties' memoranda in opposition to the pending motions for summary judgment,
currently due October 25, 2006, shall be due no later than November 1, 2006;
IBM's memorandum in opposition to SCO's motion for relief re spoliation, currently due
October 25, 2006, shall be due no later than November 1, 2006;
Both parties' reply memoranda in support of the pending motions for summary judgment,
currently due November 24, 2006, shall be due no later than December 8, 2006;
SCO's reply memorandum in support of its motion for relief re spoliation shall be due no
later than November 24, 2006; and
Both parties' response to all outstanding requests for admission shall be due no later than
November 8, 2006.
The parties stipulate that they will not seek any further extensions of the deadline for
memoranda in opposition to the pending summary judgment motions. The parties submit
concurrently herewith a proposed Order confirming these deadlines.
DATED this 18th day of October, 2006.
SNELL & WILMER L.L.P.
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott
By___/s/ Todd M. Shaughnessy
Counsel for Defendant International
Business Machines Corporation
2
DATED this 18th day of October, 2006.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Edward Normand
By___/s/ Edward Normand
Counsel for Plaintiff
(e-filed with authorization from counsel)
3
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of October, 2006, a true and correct copy of the
foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system
to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
/s/ Todd M. Shaughnessy
4
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| Authored by: Anonymous on Friday, October 20 2006 @ 06:48 PM EDT |
Nice... give a little then lock 'em in... while defusing SCO's request for an
"expedited stay" with Novell.
I like it. :-)
...D[ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 20 2006 @ 06:50 PM EDT |
as if they would be needed...
---
--Bill P, not a lawyer. Question the answers, especially if I give some.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 20 2006 @ 06:51 PM EDT |
And try to make proper clickies, please...
---
--Bill P, not a lawyer. Question the answers, especially if I give some.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 20 2006 @ 07:13 PM EDT |
> This is it. No major delays are going to happen because of the IBM summary
judgment motions.
Yeah right. You forget that one of the parties to the agreement is SCO and they
have an such a good track record for interpreting agreements the way they were
intended.[ Reply to This | # ]
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| Authored by: Jaywalk on Friday, October 20 2006 @ 07:49 PM EDT |
What it looks like to me is that IBM agreed to extensions in
return for this stipulated sentence: "The parties stipulate that they will not
seek any further extensions of the deadline for memoranda in opposition to the
pending summary judgment motions." SCO is learning the problem
with opening up a two-front war. Any time it looks like you make progress on
one front, the other side starts to push and you lose more than you gained. SCO
was being crushed by their schedule, so they surrender further extensions to get
themselves a little time. But that means that the argument they just made to
the judge on the Novell case loses traction. And if they lose their bid to
protect their ill-gotten gains in the Novell case, they could lose the money
they need to pursue the IBM case.---
===== Murphy's Law is recursive.
===== [ Reply to This | # ]
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- Whipsawed. - Authored by: kawabago on Friday, October 20 2006 @ 08:50 PM EDT
- Not so - Authored by: Anonymous on Friday, October 20 2006 @ 10:46 PM EDT
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| Authored by: thombone on Friday, October 20 2006 @ 07:57 PM EDT |
Hmmm... now I guess SCO can't whine about being too busy to put some money into
escrow ;)[ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 20 2006 @ 08:02 PM EDT |
| The matter is as good as settled then. I mean, if you can't trust SCO's
word,
what can you trust?
Just ask Robert Marsh. [ Reply to This | # ]
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| Authored by: dmarker on Friday, October 20 2006 @ 09:33 PM EDT |
When I look at IBM & Novells moves, certain words come to mind
"Sandwich, meat in, Hungry Giant, rock & hard place"
Novell is the top slice & IBM the lower. No need to explain who the meat
is.
DSM
(IBM makes what looks like a very generous offer, yes an offer for tSCOg to be
flattened by Novell :) )[ Reply to This | # ]
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| Authored by: belzecue on Friday, October 20 2006 @ 10:46 PM EDT |
"... you get an idea of what his *testimoney* is." (my emph.)
Yes, a *very* good idea. PJ, thanks -- that put a smile on my dial and it's
gonna stay there all day.[ Reply to This | # ]
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- A tad sneaky... - Authored by: Anonymous on Saturday, October 21 2006 @ 12:36 AM EDT
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| Authored by: SpaceLifeForm on Saturday, October 21 2006 @ 12:49 AM EDT |
What is SCOX trying to hide?
Why would his personal financial information
be truly of any concern to SCOX?
Did SCOX file something that they should not have?
Are they worried that Dr. Leitzinger may sue them?
Did Dr. Leitzinger require SCOX to do this?
Has Dr. Leitzinger been used?
---
You are being MICROattacked, from various angles, in a SOFT manner.[ Reply to This | # ]
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| Authored by: AH1 on Saturday, October 21 2006 @ 01:07 AM EDT |
Somehow I don't think that the extra five days is going to help much. If my
math is correct IBM delivered 1000 motions/ documents to SCO. Even with the
five day extension, and assuming somebody is working every day of the week the
SCO legal team will need to review a little less than 28 documents a day. Now
if you assume that people are working overtime (lets say 10 hour days) this
means reviewing 139 pages an hour. If we also assume that each page contains an
average of 50 lines this gives SCO 2500000 lines to review. (Hey IBM finally
delivered SCO millions of lines of potentially damaging material.) Now this
means that the SCO legal team will need to review average 115 lines of
documentation every minute just to read all the information provided by IBM.
For some reason I'm taking a peverse pleasure in thinking about the workload
that IBM just dumped on the SCO lawyers. I think that the SCO legal team is
regretting all those delays that they requested earlier.[ Reply to This | # ]
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| Authored by: webster on Saturday, October 21 2006 @ 01:22 AM EDT |
.
The SCO Team:
1. ...is greatly relieved to get more time. They were hoping for more, but
they are surprised to get any. IBM could have kept the heat on but IBM is
polishing and have so much material to work with. So IBM is glad too. Fewer
typos for them. Circumstances can change. If someone files something big in
another suit or the arbitration or a decision, SCO can always ask for an
emergency extension for something unforeseen.
2. It is very hard to write these oppositions and motions without ammunition.
Look at all the point-and-click exhibits that have been thrown out by IBM. It
is easy when you have witnesses, documents and experts. It is quite another
when most of one's evidence has been excluded. One has to be creative and
resourceful. SCO will have to stress document interpretation and the finer
points of caselaw. This is extremely tedious and frustrating work. It is a
challenge to make it persuasive when one is hardly persuaded by the state of
discovery.
3. Worst of all SCO faces the Judge "presumed guilty." He is aware
of the state of SCO copyrights in Novell and he has Judge Wells' decision
striking most of the evidence. It is hard not to sound vacuous to the Judge
when one does not have evidence and copyrights. What can SCO do to capture the
Judge or at least make him receptive to neutrality? SCO must stress their
positives such as fleshing out what IBM terms the "one-clause"
derivative theory. SCO must also blame IBM at every opportunity. Blame them
for delay, discovery games, and distracting motions. Keep them on the defensive
no matter what. Take up time on discovery and spoliation and spend little on
the rights and code issues. Stay out of the realm of experts. Stress business
witnesses. Remind the Court who is the victim and who the villian. Eat up the
clock and don't let them score.
4. On the other hand SCO just feels like this is extending the inevitable. It
is prolonging the struggle and embarassment. The only suspense is how bad the
ending will be for SCO. Will they drag anyone down with them? The lawyers if
not SCO would like to get on with their lives and careers. It would be a
pleasure to experience both again without a SCO thought.
5. What will bring it on? A predetermined deadline or contingency? Will it be
a PSJ, a constructive trust, a bankrukptcy? Will SCO throw in the towell or go
through the motions of an appeal? It's hard to concentrate on memos without
evidence and authority.
---
webster
[ Reply to This | # ]
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| Authored by: stats_for_all on Saturday, October 21 2006 @ 11:10 AM EDT |
Leitzinger's Google record indicates he is used to produce staggering
damages
experts in many high profile Boies cases. Furthermore, his
relationship
appears virtually exclusive, google does not find litigation
records that are
not Boies specific.
Leitzinger produced damage estimates in the Sotheby
and Christie anti-trust
litigation. He estimated price fixing costs at
$286
million.
http://www.artnet.com/magazine/news/artnetnews/artnetnews11-16
-00.
asp
Leitzinger was the Boies-DOJ damage estimator in the Microsoft trial.
He was
attacked as a non-expert by a competing group, paid by
MSFT.
www.analysisgroup.com/AnalysisGroup/careers.aspx
Leitzinger
speciality in Natural Gas (pre-existing?) allowed Boies to secure a
anti-trust
lawsuit against Alaska gas producers in late 2005.
http://blog.kir.com/archives/002740.asp
http://www.akdemocrats.org/elton/061606_elton_otr.htm
Leitzinger
was a key expert in the 2004 Nascar anti-trust dust up featuring
Boies.
http://www.courtexpress.com/temp/2040.cfm?
search_id=5521612&ID=
3436 [ Reply to This | # ]
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| Authored by: Carla Schroder on Saturday, October 21 2006 @ 04:31 PM EDT |
" Novell has evidently timed its Motion to interfere with
SCO's response to the six (6) motions for summary judgment
that IBM filed against SCO on September 25, 2006. "
Still the crybabies- remind them again who started all
this?[ Reply to This | # ]
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| Authored by: tanner andrews on Sunday, October 22 2006 @ 06:51 AM EDT |
You see, just because you hire an expert, there is no guarantee the
expert will say only what helps you, and of course, that is how it should
be.
Quite so. Sometimes you hire an expert whose testimony
would hurt you, in fact.
The thing to remember is that, if the
expert's testimony would hurt you, you don't present it. If there are few
experts in the field, all with differing opinions, and you hire them all, then
you get to choose which one you will call at trial. You call the one that will
help.
The experts whom you have hired would have a conflict problem if
the other side wanted to hire them.
---
I am not your lawyer;
please ignore above message.
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, October 22 2006 @ 08:58 PM EDT |
Why should SCO get an extension? Tough luck as far as I'm concerned. They
bought the cases to air, they sued both IBM and Novell (and Redhat, and
Autozone...). It's their own fault. I have no pity for them, and I believe
that the court shouldn't either. I can't believe the Nazgul did this!!! If
you're going to pick a fight, you better make sure you can handle yourself, or
else don't pick the fight. SCO wants to not only pick the fight, but dictate
the terms of the fight by having 3rd party outsiders tie the hands, arms, feet
and legs of the person that they're attacking [wrongfully I might add],
blindfold the eyes, cover the ears with soundproof earmuffs and put nose pegs on
the nose so that their opponent doesn't stand a chance. I'm sorry, but the
world doesn't work that way. You pick a fight, you better be able to deal with
it, otherwise you lose, and the less apt you are at handling it, the worse [and
quicker] you lose. This whole debacle has been a direct result of the courts
inability and inactions to see the case for what it is!
Dave[ Reply to This | # ]
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