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Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Wednesday, November 29 2006 @ 04:51 PM EST

Feast your eyes on this: Judge Dale Kimball has affirmed [PDF] Judge Brooke Wells' June 28, 2006 Order. Here's the heart of it:
Having thoroughly reviewed and considered the briefing related to IBM’s Motion to Limit SCO’s Claims, the briefing related to SCO’s objections, the underlying previous discovery orders, and the arguments made at the October 24 hearing, the court finds that, even under a de novo standard of review, the Magistrate Judge’s June 28, 2006 Order is correct. The court finds that SCO failed to comply with the court’s previous discovery-related Orders and Rule 26(e), that SCO acted willfully, that SCO’s conduct has resulted in prejudice to IBM, and that this result–the inability of SCO to use the evidence at issue to prove its claims– should come as no surprise to SCO. In addition, the court finds that neither particularized findings on an item-by- item basis nor an evidentiary hearing is required to make these determinations. The court, therefore, affirms and adopts the Magistrate Judge’s June 28, 2006 Order in its entirety.

What does it mean? It means SCO is toast. Wells' order threw out most of SCO's evidence. They were too tricky by half (as Wells put it: "In the view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put 'all evidence . . . on the table'”), they got caught, and now they have been punished. And so, what they face at trial is awful to contemplate, if you are a friend of SCO's. Which I'm not.

What's worse for SCO is, Kimball did a de novo review, out of an "abundance of caution," so they can't even appeal that issue.

And may I please point out that everything Groklaw told you about this case and about SCO and about what would happen eventually is now coming true? [takes a bow] As you can now discern, if you so desire, Groklaw was never biased, as SCO has repeatedly claimed. Groklaw was right. We had no inside track but, as a group, we had the technical and legal knowledge required to call this one accurately, even though at the beginning, we had to stand alone.

Some have worried that there would never be justice from the court, as they watched the discovery process drag on and on. I told you it would all work out in the end, didn't I? Now it is, and doesn't it feel good to see some fairness at last?

Kimball has also decided that Novell's case should go first:

It appears that judicial economy and the interests of all the parties will be best served by trying the Novell case–set to begin on September 17, 2007–prior to the instant action. After deciding the pending dispositive motions in this case, and after deciding the dispositive motions in Novell, which should be fully briefed in May 2007, the court will set a trial date for any remaining claims in this action. The pending dispositive motions will be heard on the following dates: Thursday, March 1, 2007 (3:00pm-5:00pm); Monday, March 5, 2007 (2:30pm-5:00pm); and Wednesday, March 7, 2007 (2:30pm-5:00pm). The parties are directed to submit a proposal by no later than January 12, 2007, setting forth the most efficient sequence for hearing the motions, with both parties having equal time on each motion.

I hope some of you can attend. Don't forget, there's a hearing on November 30 at 3:30, as footnote 2 reminds us. Kimball has asked Wells to handle it as well as the spoliation matter. If anyone wishes to appeal, he'll do it as a de novo review, out of the same abundance of caution. But judging from this affirmation, and footnote 1, where Kimball points out that Wells is in "a significantly more educated position to fairly evaluate such discovery-related issues," he's letting the parties know that he will back her up when she's right, and she is likely to be right. She's been dealing with discovery in this case for three plus years. Who'd know the facts and the situation, shall we say, better than she?

********************************

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

________________________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-
Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-
Plaintiff.

________________________________

ORDER AFFIRMING MAGISTRATE
JUDGE'S ORDER OF
JUNE 28, 2006

Case No. 2:03CV294 DAK

________________________________________

This matter is before the court on The SCO Group, Inc.'s ("SCO") Objections to Order Granting in Part IBM's Motion to Limit SCO's Claims. A hearing on SCO's Objections was held on October 24, 2006. At the hearing, SCO was represented by Stuart H. Singer, and International Business Machines Corporation ("IBM") was represented by David R. Marriott. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking SCO's Objections under advisement, the court has further considered the law and facts relating to the Objections. Now being fully advised, the court renders the following Order.

I. STANDARD OF REVIEW

This action was previously referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A), which permits the Magistrate Judge to decide certain non-dispositive matters,

subject to being set aside by the district judge if the determination is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). To overturn the Magistrate Judge's decision as clearly erroneous under Rule 72(a), the court must have "a definite and firm conviction that a mistake has been committed." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (internal quotations omitted).

SCO argues, however, that the Magistrate Judge's June 28, 2006 Order should be reviewed de novo because IBM's Motion to Limit SCO's Claims had a dispositive effect. IBM, on the other hand, contends that the motion was non-dispositive because it did not dispose of any of SCO's claims or defenses. Rather, IBM argues, the Order merely limits SCO's ability, pursuant to Rules 26 and 37, to support certain of its allegations of misuse and to introduce certain matters into evidence. Therefore, IBM argues, the June 28, 2006 Order is subject to the more deferential "clearly erroneous or contrary to law" standard of review.

The June 28, 2006 Order was based "solely on whether or not SCO met the requisite disclosure threshold as required by the court's orders." See Order at 38 n.128. The court finds that IBM's motion to limit the evidence that SCO could use to prove its claims, was a non-dispositive motion. Thus, the proper standard of review to apply to the June 28, 2006 Order is the deferential "clearly erroneous or contrary to law" standard of review.1 See, e.g., Boucher v. Cont'l Prod. Co., Inc., 365 F. Supp. 2d 1, 1 n.1 (D. Me. 2005) (treating magistrate judge's

2

exclusion of late-arriving expert testimony from evidence as "non-dispositive action" entitled to deferential review);Lithuanian Commerce Corp. v. Sara Lee Hosiery, 179 F.R.D. 450 (D.N.J. 1998) (treating magistrate judge's ruling on a motion in limine as non-dispositive); Exxon Corp. v. Halcon Shipping Co., Ltd., 156 F.R.D. 589, 591 (D.N.J. 1994) (applying a "clearly erroneous or contrary to law" standard of review to magistrate judge's Order precluding expert witness testimony); Jesselson v. Outlet Assocs. of Williamsburg, 784 F. Supp. 1223, 1228 (E.D. Va. 1991) (holding that a magistrate's ruling precluding the use of evidence at trial was not dispositive and therefore reviewable under a clearly erroneous or contrary to law standard); Umbenhower v. Copart, Inc., No. 03-2476 2004 WL 2660649, at *4 (D. Kan. Nov. 19, 2004) (rejecting argument that magistrate judge ruling on motion to exclude evidence in civil case is dispositive).

Notwithstanding this determination, however, the court recognizes that the case law is far from uniform regarding the classification of the type of motion at issue here. See generally Kent Sinclair, Jr., Practice Before Federal Magistrates, §§ 16-17 (Matthew Bender 1993) (discussing difference between dispositive and non-dispositive motions and also explaining that sanction motions are generally treated as non-dispositive motions except "where the situation appears to require imposition of one of the drastic sanctions of Rule 37(b), such as dismissal or default . . . [or] contempt," in which case the disposition by a magistrate takes "the form of a recommendation to be reviewed de novo by the district judge."). Therefore, out of an abundance of caution, the court has treated the June 28, 2006 Order as a recommendation and has applied a

3

de novo standard of review.2

II. DISCUSSION

Having thoroughly reviewed and considered the briefing related to IBM's Motion to Limit SCO's Claims, the briefing related to SCO's objections, the underlying previous discovery orders, and the arguments made at the October 24 hearing, the court finds that, even under a de novo standard of review, the Magistrate Judge's June 28, 2006 Order is correct. The court finds that SCO failed to comply with the court's previous discovery-related Orders and Rule 26(e), that SCO acted willfully, that SCO's conduct has resulted in prejudice to IBM, and that this resultthe inability of SCO to use the evidence at issue to prove its claims should come as no surprise to SCO. In addition, the court finds that neither particularized findings on an item-by- item basis nor an evidentiary hearing is required to make these determinations. The court, therefore, affirms and adopts the Magistrate Judge's June 28, 2006 Order in its entirety.

III. SCHEDULING ISSUES

During the hearing on October 14, 2006, the court inquired about the timing of the trial of this case. Because of the many pending dispositive motions which will not be fully briefed until December 2006, and likely will not be decided until spring 2007 and also because it makes little sense at this point to proceed with the instant trial prior to the trial of the related SCO v.

4

Novell case, the court vacated the then-pending February 26, 2007 trial setting. The court, however, declines at this time to set a trial date for this action. It appears that judicial economy and the interests of all the parties will be best served by trying the Novell case set to begin on September 17, 2007 prior to the instant action. After deciding the pending dispositive motions in this case, and after deciding the dispositive motions in Novell, which should be fully briefed in May 2007, the court will set a trial date for any remaining claims in this action.

The pending dispositive motions will be heard on the following dates: Thursday, March 1, 2007 (3:00pm-5:00pm); Monday, March 5, 2007 (2:30pm-5:00pm); and Wednesday, March 7, 2007 (2:30pm-5:00pm). The parties are directed to submit a proposal by no later than January 12, 2007, setting forth the most efficient sequence for hearing the motions, with both parties having equal time on each motion.

IV. CONCLUSION

Accordingly, IT IS HEREBY ORDERED that, having conducted a de novo review, SCO's Objections to the Magistrate Judge's Order of June 28, 2006 are OVERRULED, and the Magistrate Judge's Order is hereby AFFIRMED and ADOPTED in its entirety. The previously scheduled February 26, 2007 trial date is VACATED. The court will reset the trial at a later date. The pending motions for summary judgment have been set for oral argument in March 2007, as set forth above.

DATED this 29th day of November, 2006.

BY THE COURT:

___[signature]___
DALE A. KIMBALL
United States District Judge

5

1 While not relevant to the court's determination of the proper standard of review, it bears noting that the Magistrate Judge, having supervised and addressed the plethora of discovery issues in this case for over three years, sits in a significantly more educated position to fairly evaluate such discovery-related issues.

2 A similarly situated motion -- IBM's Motion to Strike Allegations in Excess of the Final Disclosures -- is currently pending, and is set for oral argument on November 30, 2006. As stated at the October 24, 2006 hearing, the court has requested that the Magistrate Judge decide this motion. The court also requests that the Magistrate Judge decide SCO's pending Motion for Relief for IBM's Spoliation of Evidence. If the Orders on these two motions are appealed, the court will again treat the Magistrate's Orders as recommendations and, out of an abundance of caution, will apply a de novo standard of review. See 28 USC § 636(b)(1)(B); see also Fed. R. Civ. P. 72(b).


  


Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st. | 739 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed.
Authored by: Anonymous on Wednesday, November 29 2006 @ 05:02 PM EST
What a ruling!!

Long live the court system!!!

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed.
Authored by: Rocketman56 on Wednesday, November 29 2006 @ 05:06 PM EST
Wow!! What else is there to say?

Steve

[ Reply to This | # ]

Corrections here
Authored by: MathFox on Wednesday, November 29 2006 @ 05:06 PM EST
If any...

---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed.
Authored by: Anonymous on Wednesday, November 29 2006 @ 05:08 PM EST
Finally!! The End is Near!

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed.
Authored by: mrcreosote on Wednesday, November 29 2006 @ 05:08 PM EST
As Miss Frizzle would say: 'WAHOO!!!'

---
----------
mrcreosote

[ Reply to This | # ]

Off topic
Authored by: MathFox on Wednesday, November 29 2006 @ 05:09 PM EST
Other Open Source and Legal news...
If you know how to make a link, don't forget to select HTML mode when posting
your comment ;-)

---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.

[ Reply to This | # ]

1-7th march for dispositive motions. And Novel goes first.
Authored by: Anonymous on Wednesday, November 29 2006 @ 05:09 PM EST
.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed.
Authored by: rsi on Wednesday, November 29 2006 @ 05:10 PM EST
Groklaw was never biased, as SCO has repeatedly claimed. Groklaw was right. We had, as a group, the technical and legal knowledge required to call this one accurately.

Congratulations PJ! There was NEVER any doubt, at least from most of us! ;^)

I hope that most of the remainder of the so-called "claims" by SCO, are also thrown out before the trial, and all that is left, is what IBM WANTS to be in the trial!

Can't wait to see the Red Dress in person!!! ;^)

[ Reply to This | # ]

Kimball Rules: SCO Trial Delayed until after Novell
Authored by: rsteinmetz70112 on Wednesday, November 29 2006 @ 05:12 PM EST
We knew this was going to happen.

It now looks like it might be 2008 before this case is heard. Kimball seems
unwilling to set a trial date until after Novell is heard.

---
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

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed.
Authored by: Anonymous on Wednesday, November 29 2006 @ 05:16 PM EST
PJ,

After this case is closed, will the redacted/sealed documents be released by the
court to the general public?

Tom Harney

[ Reply to This | # ]

really wow
Authored by: Anonymous on Wednesday, November 29 2006 @ 05:17 PM EST
First i thought Kimball will simply reject SCO's motion because 'the court, in
this case the magistrate, is always right'.

But no, he reviewed the stuff 'de novo'. So i'm satisfied, even if i don't
understant most of the stuff :)

[ Reply to This | # ]

For every silver lining, a cloud
Authored by: Anonymous on Wednesday, November 29 2006 @ 05:17 PM EST
Argh. No hearings on dispositive motions before March, which means probably no
rulings on them before May or June.

[ Reply to This | # ]

The undesputed fact of Groklaw (amongst others)
Authored by: Anonymous on Wednesday, November 29 2006 @ 05:25 PM EST
IBM seems to be forcing the Good Faith (Hah!) question lately (c.f. IBM's response to SCO posted earlier). Since SCO now has to argue that they had no way of knowing that Linux was clean, can the fact that so many of us here (and in other forums) have been crying out "Your Lying!" for the last three years (and from day one) be used as evidence?

I mean, if all of us, with access only to publicly availabe information, correctly read the situation how can SCO, who also have access to information we don't (you know, before they got access to every check-in made into AIX in the last decade) claim that honestly thought they had a case?

[ Reply to This | # ]

"... the inability of SCO to use the evidence at issue to prove its claims"
Authored by: Nice Kitty on Wednesday, November 29 2006 @ 05:26 PM EST
Let's have the victory party right now {RBG} ;->

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Steve Martin on Wednesday, November 29 2006 @ 05:27 PM EST

Okay, let me get this out of the way...

WAAA-HOOO!!!!!!

(Ahem... [re-instates Cloak of Dignity™])

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

This post has been redacted to comply with the Groklaw decency rules
Authored by: billyskank on Wednesday, November 29 2006 @ 05:28 PM EST
:D

---
It's not the software that's free; it's you.

[ Reply to This | # ]

In the section on the end about scheduling
Authored by: Anonymous on Wednesday, November 29 2006 @ 05:38 PM EST
Did anyone else catch the " . . . any remaining claims . . . ".

Heh heh heh.

[ Reply to This | # ]

SCOX stock goes up...?
Authored by: billyskank on Wednesday, November 29 2006 @ 05:38 PM EST
Just wondering. ;)

---
It's not the software that's free; it's you.

[ Reply to This | # ]

Unfortunately...
Authored by: Nick_UK on Wednesday, November 29 2006 @ 05:41 PM EST
... the messenger has been shot. Which we all knew would
happen (or hoped) if law == justice.

BUT we still have the dark shadow of the 'you know who'
funding more and more malarky like this.

Nick

[ Reply to This | # ]

I hereby apologize to Judge Kimball...
Authored by: pscottdv on Wednesday, November 29 2006 @ 05:42 PM EST

for my posts here, here and here.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: wharris on Wednesday, November 29 2006 @ 05:44 PM EST
I am sorry, but I am going to have to cast a dissenting vote. OK, I am glad
that on this motion, SCO lost. However, I will not acccept that Justice has
been served.

How is it just that SCO, despite having absolutely no evidence whatsoever,
was able to stetch this court case for years?

How is it just that IBM was forced at great expense to open their version
control system to SCO depsite SCO having no plasuble explanation of why
they would be able to find something there that wasn't in the released
versions of System V, AIX, Dynx, and Linux that they already had?

How is it just that despite everything that has happened, the summary
judgement motions will not be granted until March 2007 at the very earliest?

What penalty will Darl, Yarrow, or Boise suffer for launching with no evidence
whatsover a multi-year lawsuit which cost IBM ten$ of million$ to defend
against? And before you list SCO going bankrupt as a penalty, please
remember that SCO was in poor financial state before starting the suit.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Wednesday, November 29 2006 @ 05:45 PM EST

The court system is broken if a company can survive
so long in court on hot air, with claims that have no merit.
So I would not say that this shows the court system works.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: browncs on Wednesday, November 29 2006 @ 05:57 PM EST
After deciding the pending dispositive motions in this case, and after deciding the dispositive motions in Novell, which should be fully briefed in May 2007, the court will set a trial date for any remaining claims in this action.

which is followed by the judge muttering under his breath: not that I expect any to emerge from the smoking crater that is SCO by next May.

[ Reply to This | # ]

willfully - Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Wednesday, November 29 2006 @ 06:03 PM EST
The judge decided that SCO's acted willfully.

Aside from tossing this "evidence" what else does this mean for SCO?

[ Reply to This | # ]

No Detailed Reasons Given
Authored by: Anonymous on Wednesday, November 29 2006 @ 06:05 PM EST
How come Judge Kimball doesn't give any detailed reasoning? He just says he did
a de novo review and found no mistake. I guess I'm used to thorough
walk-throughs.

In other words, if SCO wants to appeal, what would they be arguing against?
Where would they be able to point to a mistake that Judge Kimball made? He seems
to be withholding the arguments.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Fruny on Wednesday, November 29 2006 @ 06:07 PM EST
PJ said:
he's letting the parties know that he will back her up when she's right, and she is likely to be right.
The confirmation that her decision was 'non-dispositive' also helps reinforce her authority, showing that she isn't as constrained as SCO would like to think.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: thombone on Wednesday, November 29 2006 @ 06:10 PM EST
GREAT NEWS!

(A bit bummed that the IBM trial has now been delayed though, I want this OVER
WITH).

[ Reply to This | # ]

Can I be the first to offer...
Authored by: Anonymous on Wednesday, November 29 2006 @ 06:18 PM EST
a round of applause and congratulations to IBM's legal team? After what seems
like many long years of being gamed by a bunch of lying, conniving toads, the
mountain of effort that they've put in to preparing and presenting this case has
finally started to come good.

Well done to all those guys at Cravath, Swaine and Moore, Snell and Willmer and
the in-house team at IBM, and particularly so to David Marriott, Todd Shaugnessy
and Amy Sorenson.

Lets hope this one is the first of many more to come.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Wednesday, November 29 2006 @ 06:18 PM EST
So wait ... If Novell gets to go first, that means IBM is delayed, right?

Is this delay going to be enough to trigger a re-start in Delaware, like Judge
Robinson said it would?

[ Reply to This | # ]

Timing question
Authored by: Anonymous on Wednesday, November 29 2006 @ 06:42 PM EST
OK, assume that things go the way that they should, namely:
- SCO's expert issues in excess of fact disclosure are tossed,
- IBM prevails on most or all of their PSJs, and
- SCO loses their PSJs.

That leaves little or no of SCO's case, and most or all of IBM's counterclaims.
Now, tbe question is, if all (not just most) of SCO's case is gone, and just
IBM's counterclaims remain, does it still have to wait for Novell?

MSS2

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: ChefBork on Wednesday, November 29 2006 @ 06:45 PM EST

Here's what got me chuckling from the beginning:

    See generally Kent Sinclair, Jr., Practice Before Federal Magistrates, §§ 16-17 (Matthew Bender 1993) (discussing difference between dispositive and non-dispositive motions and also explaining that sanction motions are generally treated as non-dispositive motions except "where the situation appears to require imposition of one of the drastic sanctions of Rule 37(b), such as dismissal or default . . . [or] contempt," in which case the disposition by a magistrate takes "the form of a recommendation to be reviewed de novo by the district judge.").

Did anyone else envision His Honor muttering "Hint: you better go back and learn how to address the court, chuckleheads" as he wrote this paragraph?

;^)

---
If two heads are better than one, then why are liars two-faced and being of two minds indecisive?

[ Reply to This | # ]

Who's On First? What's On Second?
Authored by: Anonymous on Wednesday, November 29 2006 @ 06:45 PM EST
Hey, everybody!

Allow me to be the real pragmatist of the situation here. Don't get me wrong,
this is a great ruling, but there's something else that worries me a little
here.

As I mentioned in a previous posting, I was far more interested in what comes
from the IBM case than Novell. Novell is over who owns Unix. IBM is over
whether Linux is tainted or not. I wanted a judgement in IBM first.

So now, I'm looking at a chessboard that's just been kneed from under the table,
and I'm still trying to figure out the positions and advantages now.

1) Are the PSJ's IBM and SCO have filed still being considered, or is it just
the actual jury trial that has been pushed back?

2) Suppose Novell goes first, gets its judgement, and SCO becomes a wholly
owned subsidary of Novell. Considering my preferences, will this still obsolve
Linux of guilt?

3) Anyone else a little nervous about Novell, now a MicroSoft
"partner", and what they'll do with the rights to Unix now that
they've turned a corner?

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

I am so Excited!!!
Authored by: Anonymous on Wednesday, November 29 2006 @ 06:53 PM EST
Thank you justice!!!!!!!!! Truly I hated the wait, but justice is served!

[ Reply to This | # ]

Kimball Rules: the meaning in a phrase?
Authored by: Liquor A. on Wednesday, November 29 2006 @ 06:54 PM EST
At several places, Judge Kimball has stated "out of an abundance of
caution, ... apply a de novo standard of review"

Am I reading too much into this, or is the Honourable Judge actually saying
"Don't even bother trying to go over my head and appeal this item!"

---
Liquor A.

[ Reply to This | # ]

Do I understand it right?
Authored by: Anonymous on Wednesday, November 29 2006 @ 06:55 PM EST
IBM trial has been suspended indefinitely, but PSJs will still go forward? If
so, this is probably the worst possible outcome for SCOX.

The only thing that I don't understand is that the dispositive motions will be
heard in *march*. Why the delay? I was expecting to see some ruling by then.
AFAIK PSJs are supposed to be fully briefed by the end of december. What is
going to happen between december and march?

[ Reply to This | # ]

I was wrong
Authored by: Anonymous on Wednesday, November 29 2006 @ 06:57 PM EST
Ok. I will sit down and shut up. People who had more experience and knowledge
than I (as in you, PJ) repeatedly told me these things go slow and deliberate,
that judges at this level have seen it all and generally know what the heck they
are doing.

My early new year's resolution is to try harder to listen to those who have been
there and done that, and to stop criticizing and otherwise making comments about
judges and other things of which I have no real knowledge.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: eggplant37 on Wednesday, November 29 2006 @ 06:57 PM EST
Well, this is good news indeed. Even better news, in my eyes, is that the PSJs
and a final disposition of SCO v Novell will end up disposing of much of the IBM
case, and sooner rather than later. When we get past September, there won't be
anything in SCO v IBM to decide but IBM's counterclaims, all of which will most
likely be decided in IBM's favor. Every argument IBM makes in their PSJ motions
and rebuttals to SCO's PSJs is rock solid. There's no way SCO can wiggle out.

I imagine a giant toilet bowl in which SCO is the Tidy Bowl Man in a little
boat, swirling in circles around the drain.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Wednesday, November 29 2006 @ 06:59 PM EST
WOOT! This just made my day! :-)
Somehow I thought Judge Kimball would do a de novo, then uphold. In this case,
I'm glad my thoughts were right. There's no way around that one, except an all
out appeal, which would have to wait until after the trial. I doubt Judge
Kimball would grant a request for ... what is it called? ... an interlocutory
(sp?) appeal?

...D

[ Reply to This | # ]

Kimball Rules, Wells is the bomb
Authored by: webster on Wednesday, November 29 2006 @ 07:02 PM EST
.

1. Years of Discovery battles come down to this. After this next hearing,
Order, and appeal, we'll have to scrutinize what is left. There are some
excellent tables that have been referenced and posted here. It is unlikely that
they will be able to add to it because....

2. Look at this pile early in the order! Most of these cites predict the next
hearing (Thursday, November 30, 2006). They are right on issue:



-----------"See, e.g., Boucher v. Cont'l Prod. Co., Inc., 365 F. Supp. 2d
1, 1 n.1 (D. Me. 2005) (treating magistrate judge's
Page - 2
exclusion of late-arriving expert testimony from evidence as
"non-dispositive action" entitled to deferential review);Lithuanian
Commerce Corp. v. Sara Lee Hosiery, 179 F.R.D. 450 (D.N.J. 1998) (treating
magistrate judge's ruling on a motion in limine as non-dispositive); Exxon Corp.
v. Halcon Shipping Co., Ltd., 156 F.R.D. 589, 591 (D.N.J. 1994) (applying a
"clearly erroneous or contrary to law" standard of review to
magistrate judge's Order precluding expert witness testimony); Jesselson v.
Outlet Assocs. of Williamsburg, 784 F. Supp. 1223, 1228 (E.D. Va. 1991) (holding
that a magistrate's ruling precluding the use of evidence at trial was not
dispositive and therefore reviewable under a clearly erroneous or contrary to
law standard); Umbenhower v. Copart, Inc., No. 03-2476 2004 WL 2660649, at *4
(D. Kan. Nov. 19, 2004) (rejecting argument that magistrate judge ruling on
motion to exclude evidence in civil case is
dispositive)."----------------------------



This is Kimball before the expert stuff is even appealed to him! It continues
to be an uphill battle for SCO on Thursday.


3. Then look what Kimball does. He finds on both standards--deferential and de
novo. Plus he assigns more to MJ Wells. So SCO will have to "go through
the motions" --that is appeal and object once more, knowing that they are
really up against the "stinking fish" standard. He leaves them little
ground or issues to appeal. p. 4 and footnote 2. [I'll bet they are really
sorry they shoved her "Good Faith" quote back at her, and snookered
her into all that AIX, Dynix versions discovery. But that is not even the bad
part. Twisting her words and orders and persisting in their
"misapprehension skills" are really what did it. What is worse than
having no evidence is having no credibility. At this point, IBM does not need
to show up. If they do, they can just read the subtitles of their briefs.]

4. Kimball affirmed and adopted her order in its entirety. Believe me, he
scrutinized it for an item he could differentiate, just so he could prove he did
a de novo review. He didn't find any.

5. As expected it is Novell first, but lots of action in IBM nevertheless. Can
one ski in Utah in March?


---
webster

[ Reply to This | # ]

Is it just me
Authored by: The Mad Hatter r on Wednesday, November 29 2006 @ 07:09 PM EST


Or did I detect traces of a dry and active sense of humor in Judge Kimball's
ruling?



---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

  • I did, also - Authored by: ChefBork on Wednesday, November 29 2006 @ 07:19 PM EST
    • I did, also - Authored by: PJ on Wednesday, November 29 2006 @ 11:19 PM EST
      • I did, also - Authored by: DMF on Thursday, November 30 2006 @ 05:08 PM EST
  • not just you... - Authored by: Anonymous on Wednesday, November 29 2006 @ 07:22 PM EST
  • Is it just me - Authored by: Jude on Wednesday, November 29 2006 @ 08:11 PM EST
Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Wednesday, November 29 2006 @ 07:23 PM EST
Does this mean the SCO saga will end in 2007??

[ Reply to This | # ]

wilfully -- Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Wednesday, November 29 2006 @ 07:29 PM EST
The judge decided SCO acted wilfully. What impact, other than the rejection of
the "evidence" will this have on the case?

[ Reply to This | # ]

WOOT !!!
Authored by: Anonymous on Wednesday, November 29 2006 @ 07:33 PM EST
NEVER ask for a de novo review unless you are prepared for an answer like this.
Like offering to sharpen the headsmans axe and laying your neck on the block.

Tufty

[ Reply to This | # ]

SCO wilfulness is a GOOD nail for Novell to hang its discovery demand on -
Authored by: Anonymous on Wednesday, November 29 2006 @ 07:37 PM EST
When Novell replies to SCOG's objection, can Novell point out to Wells that she
and Kimball have BOTH independently found that SCO acted wilfully, and SCOG was
pursuing the same discovery strategy (9th inning) with Novell as with IBM?

[ Reply to This | # ]

"will set a trial date for any remaining claims"
Authored by: DMF on Wednesday, November 29 2006 @ 07:50 PM EST
BROAD hint?? :D

[ Reply to This | # ]

Just Say "No"
Authored by: mexaly on Wednesday, November 29 2006 @ 07:53 PM EST
If you say "No, because ..." you provide a subject for debate.

If you just say "No," you provide a much smaller target.

---
My thanks go out to PJ and the legal experts that make Groklaw great.

[ Reply to This | # ]

Interlocutory Appeal?
Authored by: SpaceLifeForm on Wednesday, November 29 2006 @ 07:56 PM EST
Just for a bit more delay.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

SCOX
Authored by: Anonymous on Wednesday, November 29 2006 @ 07:59 PM EST
It's weird that SCOX goes up (0.03) on bad news like this.

[ Reply to This | # ]

This is all great and everything, but...
Authored by: thombone on Wednesday, November 29 2006 @ 08:26 PM EST
...it's also another delay.

For that, I cannot celebrate.

This gives SCO even more time to FUD. Now watch them focus on delaying the
Novell case any way they can.

End result? Now both cases drag on and on and on.

I hope I'm wrong!

Yes, yes, I know this is a great order, and really hits SCO where it hurts, but
I can't help feeling that in the long run, this is going to backfire on the good
guys, simply because nothing is actually resolved.

The case is delayed, again.

That's painful for me to think about, and really takes a lot of the joy out of
this ruling.

[ Reply to This | # ]

And reading between the lines....
Authored by: blang on Wednesday, November 29 2006 @ 08:33 PM EST
This is the court speaking.

I am wearing ultra-caveated pants, with both belts and suspenders. While this
case was a total no-brainer, I still went to the extra effort of going many
extra miles before ruling. The answer is NO, NO, and [redacted] NO. And to
bring home the point, let me go up in a one handed hand stand, spin plates with
both my feet, while playing the flight of the bumblebee on my blues harp. The
lyric is NO, No, No.

Oh, and about that jury trial you wanted? Well, let's just say it's now a
"potential jury trial". And sirs, watch while I do this double
summersault, landing on one finger. In yer eye!

[ Reply to This | # ]

PSJ Timeline
Authored by: Anonymous on Wednesday, November 29 2006 @ 08:42 PM EST
Does this ruling clear the way to rule on IBM's motions for PSJ, or does the
Novell goes first mean there won't be a ruling on the PSJ motions from either
side until after next September?

[ Reply to This | # ]

Kimball Rules: (hee hee...)
Authored by: josmith42 on Wednesday, November 29 2006 @ 09:06 PM EST

When I read the first part of the title, at first I read it as the colloquial expression (as in "Kimball Rules! She's awesome! She kicks [censored]!")

Then I read the rest of the title. "Oh", said my brain. "PJ meant it literally: Kimball issued a ruling." But I suppose in this case it has a double meaning. :-)

---
This comment was typed using the Dvorak keyboard layout. :-)

[ Reply to This | # ]

Groklaw not biased, ...was right
Authored by: funkyj on Wednesday, November 29 2006 @ 09:07 PM EST
PJ PJ PJ, Groklaw is biased! Groklaw relies on facts and, as St. Colbert tells us, "facts have a well known liberal bias". It follows, by simple deductive reasoning that Groklaw has a liberal (i.e. anti-business and therefore anti-SCO) bias.

Q.E.D.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: blacklight on Wednesday, November 29 2006 @ 09:29 PM EST
"Some have worried that there would never be justice from the court, as
they watched the discovery process drag on and on. I told you it would all work
out in the end, didn't I? Now it is, and doesn't it feel good to see some
fairness at last?" PJ

Dear PJ, had I died yesterday, I would have died without never seen this
fairness at all so let's not get overly teary eyed at some form of juustice
taking shape. Time and anyone of my ex-girlfriends and my contingent of enemies
(aka former friends whom I sold down the river and came back to tell about it)
and who are working toward my final oblivion with dedicated, even anal
determination - these may get at me yet before I get to see the end of the IBM
trial :)


---
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 | # ]

So the good judge gets to answer his own question ...
Authored by: Anonymous on Wednesday, November 29 2006 @ 09:56 PM EST
... "Is that all you've got?".

Of what a sorry sight a naked SCO is. (Ooops, hope that doesn't violate the site
decency rules!)

Graham.

[ Reply to This | # ]

In future rulings how is denovo "abundant caution"
Authored by: LouS on Wednesday, November 29 2006 @ 10:14 PM EST
I see how the ruling "Wells is upheld even if the propoer standard is
denovo" can
be described as an "abundance of caution" - even if denovo is not the
proper
standard, the same ruling results a fortiori. But suppose Wells makes a ruling
in
the future that stands up under the "dead fish" standard of review but
not the
denovo standard. How can Kimball say "the dead fish standard is the proper
one
and under it Wells should be upheld but I'm going to use a differrent standard
and overrule her"??

[ Reply to This | # ]

Re: [takes a bow]
Authored by: PSaltyDS on Wednesday, November 29 2006 @ 10:25 PM EST
Please PJ, take two! Well done!

:-)



---
"Any technology distinguishable from magic is insufficiently advanced." - Geek's
Corollary to Clarke's Law

[ Reply to This | # ]

...in its entirety!!
Authored by: CraigV on Wednesday, November 29 2006 @ 10:48 PM EST
I'd like to read into Judge Kimball's sentence that
goes "The court, therefore, affirms and adopts the
Magistrate Judge’s June 28, 2006 Order in its entirety."
that he endorses every blunt criticism Judge Wells
directed at SCO. Reading over Judge Wells' Order with
this endorsement in mind is very satisfying.

[ Reply to This | # ]

SCO discusses their next Press Release
Authored by: SirHumphrey on Wednesday, November 29 2006 @ 11:04 PM EST
Keyboard alert!!!

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Wednesday, November 29 2006 @ 11:38 PM EST
Could someone explain me, in clear terms what does this means? Is this a
victory? If so, how? What are the odds that SCO is going to win against Novell?
etc.

The reason why I'm asking is that:

1) the case is super interesting
2) english is not my native language so I'm missing some of this.
3) I'm not a lawyer and I'm not familar with the US court system, but
sincerely, I'd like an explanation in terms easy to understand, even a few
sentences would help me this way, thank you.

[ Reply to This | # ]

What PSJ motions in March?
Authored by: GLJason on Wednesday, November 29 2006 @ 11:40 PM EST
The pending dispositive motions will be heard on the following dates: Thursday, March 1, 2007 (3:00pm-5:00pm); Monday, March 5, 2007 (2:30pm-5:00pm); and Wednesday, March 7, 2007 (2:30pm-5:00pm).
They should be fully briefed in December. Is Judge Kimball contemplating unannounced dispositive motions, or are these the current pending motions? If the latter, is the two and a half months after they are fully briefed so that he and his assistants can go over them and review all the legal citations? I don't blame him with 400 pages of legal pleadings and 40,000 pages of exhibits. If that is the case though, why is he allocating only 7.5 hours for argument for all TEN motions?

THE COURT: Ten motions. I thought you said one day for SCO's motions.

MR. SINGER: I was thinking one day for both sets of motions.

THE COURT: Well, if Mr. Marriott is right with his estimate, that would be 15 hours of argument, and people might want to eat and go to the bathroom.

So they aren't taking one day, but they are taking 1/2 the time Mr. Marriott thought they could possibly take. Actually he said:
MR. MARRIOTT: [...]My motion -- some of these motions are much more involved than others. I think, at the end of the day, there will be truly very few facts that are in dispute as to these motions, and I would like to believe that the issues the Court would actually hear are relatively straightforward. I would think any one of these motions, Your Honor, could be and should be argued in no more than an hour and a half.

That may be, but it seems like under 45 minutes per motion, when there is an average of 40 pages of legal pleadings and 4,000 pages of exhibits for each, is a little short. I grant that very few facts may be in dispute, but that just means SCO will want to take more time trying to wiggle out of their situation...

I do see a point though. After reading the first dozen declarations as IBM exhibits that declared basically the same thing from everyone connected with negotiating, signing, and administering the contracts at both AT&T and IBM, I got a little tired of hearing the same thing over and over. The court has already heard arguments on most of the motions back in 2004 before it decided to postpone them until after discovery.

[ Reply to This | # ]

SCO/BSF should take note
Authored by: mrcreosote on Wednesday, November 29 2006 @ 11:49 PM EST
From
http://www.utahbar.org/sections/litigation/html/kimball_judicial_profile_2002.ht
ml

"Practice Pointers

Judge Kimball reports that most lawyering before him is very good. Much better
than he expected when he took the bench. He finds that lawyers generally are
well prepared and don’t waste the Court’s time.

* Tips for practitioners appearing before Judge Kimball include:
* At oral argument, know the cases that you cited in your briefs.
* Behave responsibly and civilly to witnesses, the court, and opposing
counsel.
* Don’t try to stretch your position. If you have weakness, admit to the
weakness, and try to persuade the Judge that you should win anyway.
* Brevity is appreciated and highly effective as a tool of advocacy. This
applies both in briefs and oral arguments.
* If you have a bad argument, leave it out of your brief and your oral
argument. Making bad arguments hurts your credibility with the Court."

---
----------
mrcreosote

[ Reply to This | # ]

Is Judge Kimbel's review of cases involving sanctions a hint?
Authored by: Anonymous on Thursday, November 30 2006 @ 12:59 AM EST
In his ruling, Just Kimbel mentions reviewing cases involving "dismissal or

default . . . [or] contempt". Is this one of those subtle lawyer to laywer
hints?

[ Reply to This | # ]

A Visual Aid (please excluse my self-indulgence...)
Authored by: Anonymous on Thursday, November 30 2006 @ 01:52 AM EST
Not all that conversant with legal stuff, I have to resort to visualization to
help me process what just happened... I am super-conversant with action
movies,kung-fu, and fine entertainment such as Clash of the Titans. So for a
guy like me, the synopsis of this ruling is:

SCO is in a WWF match in Madison Square Garden. IBM (played by a cross-
pollination of Bruce Lee and Conan the Barbarian) executes series of
increasingly complex and perfect wrestling holds on SCO and, as that
becomes boring, slings them by the ear into the ropes.

IBM tags out to Judge Wells (played by Patrick Stewart, but with the arms and
fists of Mike Tyson). SCO bounces off the ropes and pokes Judge Well in the
eye while insulting her mom. Amply pissed off, Judge Wells throws a
thunderous right cross to the jaw, knocking out almost all of SCO's fake gold
teeth (played by their claims), and bouncing SCO back off the ropes.

Tagging in just as SCO flies back into the center of the ring, Judge Kimball
(played by a young, buffed-out and seriously vexed Chuck Norris) delivers a
roundkick upside SCO's head so freakin hard that they're kicked straight
into the fifth dimension...

...which (for those unfamiliar with with 15 U.S.C. 1125(a)) is where the ten-
legged, razor-fanged Lanham-Balrog lives (best envisioned as the imposing
body of Novell's lawyers with ten fire-breathing heads from IBM's attorneys).

I imagine the Lanham-Balrog will dismember SCO with extreme prejudice, but
who really knows?

Only open question is who plays SCO.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: bberrign on Thursday, November 30 2006 @ 02:05 AM EST
Congrats PJ!, not just for your expertise on this maze of a
(non)-case, and your willingness to ferret out the REAL facts,
but most of all for your integrity, your patience to stay
the course, your humility and lack of personal ambition.

I agree that this whole Groklaw group, under your steady
guidance, is the best thing i have ever encountered on the
Internet. It is so well documented and organized as to defy
belief. For sure you all deserve our heartfelt admiration.

---
PJ and Groklaw are a brilliant ray of light in the dark!

[ Reply to This | # ]

Huge win for SCO - trial delayed to 2008
Authored by: Anonymous on Thursday, November 30 2006 @ 02:53 AM EST
This is a huge win for SCO. Yes, they're less likely to win at trial. But they just got another whole year of delay. Novell won't go to trial before September 2007, and that might well be delayed.

The big winner here is Microsoft. Another whole year of FUD.

[ Reply to This | # ]

Questions ... Questions so many more questions!
Authored by: phantomjinx on Thursday, November 30 2006 @ 04:07 AM EST
I have a couple if someone wouldnt mind answering:

1) SCO was found to have been wilful in avoiding publishing their
"evidence" and as I understood from IBM's memos that being wilful is a
pretty big thing. What sanctions (other than losing this objection) are likely
to come of this if any?

2) Grabbing one's crystal ball for 2 secs, all of IBM's PSJs are approved while
SCO's are rejected (unlikely as I understand it but possible). That leaves the
only thing in the case to be IBM's counterclaims. Does this turn the case around
with SCO as the defendant?

3) I understand the Lanham Act is the thing that pierces the corporate shield.
If IBM goes after people in the case, does that become separate new cases? What
sort of timescales would be required for this?

Thanks and appreciate any response.

Regards

phantomjinx

[ Reply to This | # ]

What is the criteria for PJ to put on the red dress?
Authored by: Anonymous on Thursday, November 30 2006 @ 05:29 AM EST
First of all. Thanks for the good work and secondly...

I would like to know what it takes for you (PJ) to put on the red dress. What
steps in this trial have to be completed first and with what result?




//Crippled Canary

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: belzecue on Thursday, November 30 2006 @ 05:45 AM EST
Also, I think it's important to point out for any Groklaw newbies, when reading the following sentence by PJ, imagine her making the 'air quote' gesture at the highlighted part:

"Wells' order threw out most of SCO's evidence"

... lest any SCO novices assume that SCO did in fact provide any.

[ Reply to This | # ]

Subtle Sarcasm
Authored by: Steve Martin on Thursday, November 30 2006 @ 05:54 AM EST

I am seeing this Order after a night's sleep and some morning coffee now, and there's something here I missed last night; Judge Kimball seems (to me) to have issued some subtle but destructive sarcasm aimed at TSG.

In reading this order, I thought back to Judge Wells' Order, in which she took great pains over her thirty-nine pages to lay out, piece by piece, her reasoning, in what one could take as her attempt to nail the issue down firmly. Her ruling was (IMHO) quite complete, and left little room for argument.

The SCO Group, of course, couldn't let her ruling stand, so they appealed it to Judge Kimball, based (in part) on the theory that Judge Wells didn't give a careful enough review to the issue, even though she took twenty-seven paragraphs spread over eleven pages (and thirty-nine footnotes) just for the "DISCUSSION" section of her ruling.

Now comes Kimball: "Okay. Please note that, even though I find this motion non-dispositive, "out of an abundance of caution" I'll go over it de novo. Let's see... TSG, you say Wells didn't look it over carefully enough? Try this on for size — One paragraph of discussion. BAM! Objection overruled, Order upheld."

Seems to me like Kimball claiming that the one paragraph shows "an abundance of caution" constitutes a subtle (but effective) slap full in the face delivered to the SCO Group legal staff.

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

Signal to Noise Ratio
Authored by: DaveJakeman on Thursday, November 30 2006 @ 08:02 AM EST
To date, and especially in the beginning, SCO have made an awful lot of noise.

When Wells ruled in June, we thought she would reduce that noise, but SCO just
found a new way of making new noise. This ruling, thankfully, cuts out SCO's
new noise and silences a good chunk of their initial noise. Like a bandpass
filter.

There are more filters due to be switched in, which should give a further
reduction. There might be some sharp transients during cut-in, but there's
little reason to doubt these new filters' potential. Before long, we'll be able
to resolve the signal, as distinct from the noise.

I'm looking forward to hearing that underlying signal after the final filter is
applied. It would be nice to have it confirmed as a straight, flat line of
amplitude zero.

It's already getting rather quiet.

---
I would rather stand corrected than sit confused.
---
Should one hear an accusation, try it on the accuser.

[ Reply to This | # ]

So am I the only one who thinks IBM is going to get screwed by this ruling?
Authored by: Cyrock on Thursday, November 30 2006 @ 09:04 AM EST
So am I the only one who thinks IBM is going to get screwed by this ruling? I
understand the Summary Judgments can not be ruled upon until UNIX ownership has
been established and that Judge Kimball did the right thing by postponing the
IBM trial.

But Novell wants more than just UNIX ownership, they want their money. The money
paid to SCO by Microsoft and SUN. Let’s face it, that money really should have
gone to Novell in the first place. When Novell wins, SCO will be so broke there
will be nothing left to compensate IBM for trouble SCO caused.

The real question in my mind is why did Judge Kimball wait so long to come to
this decision?

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: jsusanka on Thursday, November 30 2006 @ 09:06 AM EST
"Hey, everybody!

Allow me to be the real pragmatist of the situation here. Don't get me wrong,
this is a great ruling, but there's something else that worries me a little
here.

As I mentioned in a previous posting, I was far more interested in what comes
from the IBM case than Novell. Novell is over who owns Unix. IBM is over
whether Linux is tainted or not. I wanted a judgement in IBM first.

So now, I'm looking at a chessboard that's just been kneed from under the
table,
and I'm still trying to figure out the positions and advantages now.

1) Are the PSJ's IBM and SCO have filed still being considered, or is it just
the actual jury trial that has been pushed back?

2) Suppose Novell goes first, gets its judgement, and SCO becomes a wholly
owned subsidary of Novell. Considering my preferences, will this still obsolve
Linux of guilt?

3) Anyone else a little nervous about Novell, now a MicroSoft
"partner", and what they'll do with the rights to Unix now that
they've turned a corner?

Dobre utka,
The Blue Sky Ranger"


yes well said - I am very nervous about novell right now.
all was right with the world until this deal with microsoft.

I am afraid they are starting to see dollar signs in their eyes and watch out
when that happens to a company.

[ Reply to This | # ]

I'm bummed out about the ruling!
Authored by: Anonymous on Thursday, November 30 2006 @ 09:11 AM EST
I'm bummed out about the ruling! I was hoping to see SCOXee get skewered with
the IBM case. Instead we'll have to wait for Novell. In this sense SCO got a
"victory" (i.e. another delay).

<grumble, grumble>

[ Reply to This | # ]

Slap, slap, slap, slap, slap SCO in the face.
Authored by: Anonymous on Thursday, November 30 2006 @ 09:35 AM EST
This is a HUGE slap in the face to SCO.

Particularly, because he endorses Judge Well's stinging comments about
SCO's dishonesty and attempts to cheat.

Both judges did their homework to prevent any successful appeal by SCO.

Both judges "GET IT" in regard to the case and SCO's deranged point of
view.
They are playing it "by the book" and with "no stone
unturned" to manage the
case to expedite the case to its conclusion - IBM wins.

The IBM-SCO trial may follow Novell-SCO's trial. However, after summary
judgments are done, all there will be in the case are IBM's counterclaims
against SCO. SCO's own interests in the case are then eliminated. SCO will
be totally on the defensive at trial - if it still exists by then. Thus the
date of
the trial essentially is meaningless.

For good measure, Judge Kimball could decide on IBM's motions for partial
summary judgment before Novell's own motions. This would help answer
questions in the name of the public interest, before SCO is put into
bankruptcy by Novell's motions.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Thursday, November 30 2006 @ 09:43 AM EST
On a diatonic harmonica, you're right. But on a chromatic harmonica, one could
play Flight of the Bumblebee if one were so inclined.

It's not pretty

[ Reply to This | # ]

Kimball Order rattles market
Authored by: webster on Thursday, November 30 2006 @ 10:07 AM EST
.
down 20, very high volume in half an hour.

---
webster

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: 34CFR20USC on Thursday, November 30 2006 @ 10:15 AM EST
MORTAL KOMBAT!

SCO vs. IBM

FIGHT!

*bam* *pow* Aggggh! *slap* *slap* *slap* *BOOM* Toasty! *CRUNCH*

IBM wins... Flawless... Fatality!

[ Reply to This | # ]

A bit of caution please
Authored by: Anonymous on Thursday, November 30 2006 @ 12:33 PM EST
The SCO attorneys are quite clever, to keep this case going this long.
Therefore, it is reasonable to assume that those attorneys predicted this
outcome. So, what is the next rabbit they are going to pull out of the hat? :-o

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Thursday, November 30 2006 @ 01:30 PM EST
Novell is working for Microsoft now. I gaurantee they screw this up.

[ Reply to This | # ]

Prediction for (eventual ruling after) today's hearing
Authored by: Anonymous on Thursday, November 30 2006 @ 01:59 PM EST
I'm guessing from a position of ignorance here, but it's fun to bet on
sports...

The judges want to be seen to give SCO every opportunity to prove their case, so
that the final ruling is unappealable.

Now, on the matter of SCO's expanding the case in expert reports, note that
IBM's main objection was that allowing them would cause delay, which would
itself be prejudicial to IBM. But Kimball has ruled that there's going to be a
delay - and further, a delay quite close to the one year IBM said it would take
to prepare additional defenses.

So I'm thinking it's quite possible that Wells will allow some of the additional
evidence, and grant additional discovery on them.

More work for IBM, but just to be sure that SCO has no grounds to claim that
they were treated unfairly by having multiple devastating orders against it.

What do others think?

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Thursday, November 30 2006 @ 02:45 PM EST
Here's a dark question: What if Novell/M$oft roll over on the ownership claim,
and muddies the water horribly for IBM? Now that M$oft and Novell are all
hugs'n'kisses, is it possible that the ownership claims may not be performed as
strongly as if Novell did it alone? It seems anytime M$oft gets involved, it's
for a nefarious "kill Linux" reason, and this seems to be a good time
to step it and hurt IBM and Linux by proxy.

[ Reply to This | # ]

Never biased?
Authored by: Anonymous on Thursday, November 30 2006 @ 02:50 PM EST
Your logic is flawed. Just because you seem to have arrived at the correct
outcome hardly means you arrived at that outcome without bias...

[ Reply to This | # ]

More reviews?
Authored by: GLJason on Thursday, November 30 2006 @ 03:21 PM EST
I would like some other people's opinions on this. Judge Kimball decided to review the ruling of Judge Wells de novo out of an abundance of caution even though he didn't have to. Then he notes that the SCO motion for relief from spoliation of evidence and the IBM motion to limit SCO's claims are also to be heard by Judge Wells, and that if SCO wishes to appeal, he will hear those appeals de novo as well. There are two things I see as possibilities here:
  1. By basically letting SCO know that he will re-review any decisions, they will appeal for sure to get another crack at them (since I figure IBM is almost sure to win on both counts).
  2. After four paragraphs on standard of review to get to the point where he says he is reviewing it de novo, he spends a single paragraph basically reiterating Judge Wells's findings and affirming her order in its entirety (the rest of the order is on scheduling issues). By saying he will review other appeals de novo is he basically saying he has faith in Judge Wells and that SCO can appeal her rulings, but that it almost certainly won't do them any good?

[ Reply to This | # ]

I think you are missing the point
Authored by: Anonymous on Thursday, November 30 2006 @ 04:13 PM EST


PJ has repeatedly called the shots on the law actions, as she has seen them from
her professional perspective and has repeately got it right. That is not bias
that is educated interpretation.

That Groklaw has a flavour or tone, is as obvious as the nose on your face.
This 'tone' comes from the interpretations of the legal actions as commented on
by others and at times by PJ herself.

My point is you are confusing the commentary on the actual legal events vs
commentary that isn't. This confusion reflects a lack of understanding of what
is said about what.

Perhaps you need to spell out your point by being more specific.

DSM

[ Reply to This | # ]

  • Absolutely right - Authored by: Anonymous on Thursday, November 30 2006 @ 04:43 PM EST
SCOX closed at $2.00...
Authored by: rsi on Thursday, November 30 2006 @ 04:47 PM EST
down 40 cents from yesterday. Going down? ;^)

[ Reply to This | # ]

Disgrace of "Justice."
Authored by: Anonymous on Thursday, November 30 2006 @ 04:54 PM EST
Sorry guys, while it is better news, the problems are thus:

SCO with no evidence was able to hold up a Linux vendor (IBM). Sure IBM defended
itself, because it could, but make no mistake, this is a utter disaster. There
needs to be a way to bitch slap people like this.

There is no negative feedback here. So what, SCO dies and the investors lose
money. Darl, and company are walking away richer men.

They will lose no sleep from this ruling and probably expected it. They don't
care, they did what they set out to do.

Its disgusting that it was able to happen in the first place.

[ Reply to This | # ]

Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
Authored by: Anonymous on Thursday, November 30 2006 @ 05:54 PM EST
At the start of this insanity, there was much speculation that SCO was seeking a

very large buyout offer from IBM.

It seems that pretty soon IBM will probably receive the keys to the office and
the
resignations of the board in settlement, given that SCO won't be able to pay the

sorts of money IBM will want once it gets tossed out of court.

[ Reply to This | # ]

Wells was being kind.
Authored by: mobrien_12 on Thursday, November 30 2006 @ 09:28 PM EST
"In the view of the court it is almost like SCO sought to hide its case
until the ninth inning in hopes of gaining an unfair advantage despite being
repeatedly told to put 'all evidence . . . on the table'”),


To me, and I am not a lawyer, just someone who has been following this sorry
saga since SCO was Caldera and changed their name, it was "almost
like" SCO went on a fishing expedition, at the ninth inning had nothing to
show, realized they were in too deep, couldn't drop the claims, made up a lot of
stuff, and then said "this is enough for our claims."

Then the judge said "so this is all you've got?"

I am very happy, because now we know for sure SCO has to argue based on FACTS,
and the world can now see what kind of case they really had.

[ Reply to This | # ]

Earnings Restatement please?
Authored by: Sunny Penguin on Friday, December 01 2006 @ 05:58 AM EST
Should this cause an earnings restatement by The SCO Group soon?

---
This message sent from a laptop running Fedora core 6 with Intel wireless
networking.
Everything works....

[ Reply to This | # ]

    For PJ --- Forbes.com thinks you're "anonymous" LOL
    Authored by: Anonymous on Friday, December 01 2006 @ 01:04 PM EST
    http://www.forbes.com/technology/2006/11/30/copyright-software-computers-tech_cz
    _dl_1130ibm.html

    Quote from there:
    ========================
    What does it mean? It means SCO is toast," wrote "PJ," the
    anonymous author of the Groklaw blog, which has argued since the beginning that
    SCO's claims lack merit.
    ========================

    please remark the phrase "anonymous author"

    LOL ... Forbes is on crack or what ? I thought they knew you by now, at least by
    name.


    Adrian.

    [ Reply to This | # ]

    Kimball Rules: SCO's Objections Denied! Wells's Order Affirmed - Novell Goes 1st.
    Authored by: Anonymous on Saturday, December 02 2006 @ 11:50 AM EST
    Regardless of what a court says or does not say in this case from now on, I feel
    that a new record in the length of a reinscenation of Kafka's 'Trial' has been
    established, and that this should appear in the 'Guniness Book of Records'.

    [ Reply to This | # ]

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