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SCO Fights for Survival in IBM and in Novell
Thursday, December 14 2006 @ 03:36 AM EST

I barely know how to tell you this, but SCO has filed a motion for reconsideration of Judge Dale Kimball's November 29th Order in SCO v. IBM, the one affirming Magistrate Judge Brooke Wells' June 28th Order. I guess they figure things are so bad now, they have nothing to lose by trying.

Here's the Notice of Conventional Filing [PDF]. Yes. Of course. It's under seal. So is the memorandum in support. Perhaps SCO will grace us with a redacted version in a bit. But in the meanwhile, we are left with our mouths open. Whatever are they thinking?

Delay? You think? Or maybe desperation. This is the order whereby Judge Kimball dismissed SCO's objections to Judge Wells' order which had tossed out most of the items on SCO's list of allegedly misused materials. SCO asked Judge Kimball to do a de novo review, and he did. And after he did, he agreed with Judge Wells and affirmed. And now SCO is asking him to reconsider that ruling. Can you imagine Judge Kimball's feelings, seeing this show up? To say that I am fascinated to find out what basis SCO feels it has to ask him to go through all this again is an understatement.

They have to have some legal basis on which to ask for this relief. As longtimers here will remember from early in 2005, when IBM successfully asked Judge Wells to reconsider an order, "a motion for reconsideration may properly be made to correct clear error or to prevent manifest injustice." So, SCO has to justify this request for reconsideration by demonstrating at least one of those two things. Knowing SCO, they'll claim both.

SCO finds itself in a real pickle. It followed a strategy that failed when both judges ruled against SCO the last week of November. You will recall that on November 30, Judge Wells also ruled from the bench, granting the relief in IBM's motion to confine SCO's claims to whatever SCO had put on the table by the end of discovery. As a result of those two orders, SCO's case shrank to almost nothing in two days, so I can't help but wonder if all the evidence they had kept up their sleeve just landed on Judge Kimball's desk.

They won't describe it like that, of course. Perhaps we'll hear some paralegal just found it in a cabinet or something. The great Salt Lake parted, and after they miraculously walked through to the other side, they tripped on a rock and fell on some new evidence. If Microsoft is pulling SCO's strings, one can't help but wonder if perhaps SCO is supposed to make this whole litigation so endlessly horrible an experience that if and when Microsoft sues some Linux vendor or end user over some stupid patent or other Microsoft got out of the USPTO gumball machine, IBM will be so allergic to lawsuits, it won't have the heart to fight. Or perhaps they are hoping Judge Kimball will make some error, anything at all, that will make it possible to ask for leave to appeal or will enhance their appeal at the end of this case.

Yes, Virginia, there is an end to this case someday. Un bel dei.

One thing you have to say about SCO's legal team: they never give up. And they don't care what anyone thinks of them, not even Judge Kimball, evidently.

Then, in the Novell case, which I'm guessing SCO now wishes it never brought, they are filing motions and exhibits like mad. In particular, they've filed a sealed Memorandum in Opposition to Novell's Motion for Partial Summary Judgment or Preliminary Injunction (that's the one where Novell asked for its money from the 2003 Microsoft and Sun license deals) and in support of SCO's new Cross Motion for Summary Judgment or Partial Summary Judgment on Novell's Third, Sixth, Seventh, Eighth and Ninth Counterclaims [PDF].

Here's why SCO says it is entitled to that relief:

SCO is entitled to summary judgment on Novell's Sixth, Seventh, Eighth and Ninth Counterclaims because the evidence of the parties' intent under the APA and Amendments thereto is undisputed in SCO's favor. In the alternative, SCO is entitled to partial summary judgment on Novell's counterclaims for a constructive trust and/or accounting under its Third, Sixth, Seventh, Eighth and Ninth causes of action on the grounds that Novell cannot satisfy the elements for such relief.

We'll see about that. SCO's memo in support is sealed, so again we'll have to wait for a redacted version. It's a 54-page document, so SCO had to ask for permission to file an overlength document [PDF]. It also needed an extra day to file it, and Novell stipulated [PDF]to allow SCO the time. SCO also got permission [PDF] in SCO v. IBM to file an overlength reply memo in support of its spoliation motion.

I don't think it's an exaggeration to say that SCO is fighting for its life. SCO has almost nothing to lose. What it needs to lose is its reputation with this court, and if nothing else SCO probably hopes Judge Kimball will look at all the arguments and exhibits and conclude that SCO's case wasn't completely frivolous when filed. If it was, and by now Judge Kimball probably has an opinion on that subject, SCO and SCO's lawyers could conceivably be sanctioned and IBM would be awarded damages. So they have a strong motivation to try to reach Judge Kimball on that point. In SCO's perfect world, he becomes so impressed, he rules in their favor on something, anything.

Attached to SCO's cross motion in Novell are 46 sealed paper exhibits. The clerk has placed this note in the Pacer record:

Note: Exhibits are oversized and not attached in the pdf image. The Complete document is retained in the sealed room for access by authorized persons only.

I can only guess, but this could mean they would rather the public never see those exhibits, whatever they are, or it's alternatively possible they just ran out of time and didn't get them scanned in. It's still possible, then, that we'll get a list of some redacted exhibits eventually that we will be allowed to pick up from the court. SCO is seriously stretched thin, between the two cases on two tracks simultaneously running them ragged.


  


SCO Fights for Survival in IBM and in Novell | 467 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: cybervegan on Thursday, December 14 2006 @ 03:54 AM EST
If any...

-cybervegan

---
Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...

[ Reply to This | # ]

Off-Topic Here
Authored by: cybervegan on Thursday, December 14 2006 @ 04:00 AM EST
Please make links clickable if you can - just copy and paste the red example
"Clickable links:" under the Post Mode selector and change the
relevant bits. Put a new line in after "href=" - just before the first
quote, if your address line is long.

-cybervegan

---
Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...

[ Reply to This | # ]

In exchange?
Authored by: Anonymous on Thursday, December 14 2006 @ 04:09 AM EST
Novell says that "in exchange for Novell's retention of rights relating
SVRX Licenses, Santa Cruz received the right to develop, license and sell a new
merged UNIX product in the marketplace. (Undisputed Fact ¶ 4, supra.) Santa Cruz
obtained the right to convert "SVRX-based customers" to a UnixWare
derived product. (Id.) Santa Cruz also acquired Novell's UNIX-related customer
list as a platform for future business."

Does that mean that all rights relating to SVRX Licenses went first to SCOG and
then went back to Novell to pay for the right to convert "SVRX-based
customers"?

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: PolR on Thursday, December 14 2006 @ 04:19 AM EST
If Microsoft is pulling SCO's strings, one can't help but wonder if perhaps SCO is supposed to make this whole litigation so endlessly horrible an experience that if and when Microsoft sues some Linux vendor or end user over some stupid patent or other Microsoft got out of the USPTO gumball machine, IBM will be so allergic to lawsuits,
This is why frivolous activities from lawyers must be sanctionned. If the legal team is personally liable for such barratry, they will be deterred from gaming the system on behalf of overly rich clients or disposable strawmen.

This is also why IBM must strive to pierce the corporate veil and expose any man that may hide behind the curtain. Liability must fall where it belongs to prevent recurrence of the experience.

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: Anonymous on Thursday, December 14 2006 @ 04:27 AM EST
Is there some special legal meaning to "undisputed" or those lawyers
simply don't know what the word means? Or maybe it is me?

My simplest definition is: "nobody says otherwise".

I'd like some native speaker with legal background please explain if I'm wrong.

[ Reply to This | # ]

How many errors?
Authored by: DaveJakeman on Thursday, December 14 2006 @ 04:45 AM EST
"a motion for reconsideration may properly be made to correct clear error
or to prevent manifest injustice."

How many "clear errors" did SCO find in Wells' order? So SCO must be
able to find at least that many in Kimball's order, just for starters...

</sarcasm>

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

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: eggplant37 on Thursday, December 14 2006 @ 04:46 AM EST
The brash audacity of this filing! I'm struck agog. It's like the kid who shows
up to class, hasn't done his homework but claims that the dog ate it... Bullies
stole it on the way to school... Yeah... It's in my other jacket pocket... Yeah,
that's the ticket! It's been whisked away by aliens!! Please, give me just *one*
*more* *chance*.

What's to reconsider? SCO, you didn't do your homework! You failed to specify
what materials you claim IBM "stole" and put into Linux. Whatever it
is that IBM squandered, you are unable to reveal its specific locations in
Linux, AIX, and/or System V. What part of YOU FAILED do you miss here?

Put your dunce cap on, go sit in the corner, and try, please try, to absorb the
true, weighty futility of your cause here. Linux users and coders have been wise
to your nonsense since this sham of a case was started four years ago. The
judges caught on two years ago. However, you don't want either of these cases to
be decided now, so let's go for the gambit, eh? More delay. More frippery to
further keep Linux and IBM under a shadow of FUD until MS can get their new
flagship OS out on store shelves.

Words further fail to express my deepest contempt for you, SCO. Time is your
enemy. You are running out of time.

[ Reply to This | # ]

"They have to have some legal basis on which to ask for this relief. "
Authored by: Anonymous on Thursday, December 14 2006 @ 04:48 AM EST
You say "have to" as though that holds any meaning for SCO. That's
what they "have to" have to succeed, but just to file it? Not so
much.

I'm assuming that they're concentrating on the inevitable appeal now, giving
Wells and Kimball every possible opportunity to make a technical error, or to
provoke them into pulling a Judge Jackson (remember him in the Microsoft case?).

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: Anonymous on Thursday, December 14 2006 @ 04:49 AM EST
I bet it's the stuff that was in the suitcase. And it's under seal because -
1. If anyone who knows about code sees it, they'll fall about laughing.
2. If you show some evidence, someone might research it and point out how
utterly bogus it is.
3. It's very demoralising to have people tearing your work to shreds. Especially
if you are a rocket scientist who doesn't want the world to know what you did.

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: BobinAlaska on Thursday, December 14 2006 @ 05:12 AM EST
This just gets weirder and weirder. Has anyone heard anything about SCOX
announcing their conference call yet? I can hardly wait to hear about their
results and how they will try and spin the events of the past couple of weeks.

---
Bob Helm, Juneau, Alaska

[ Reply to This | # ]

I Know What Happened!
Authored by: Anonymous on Thursday, December 14 2006 @ 06:19 AM EST
PJ Said:

"Perhaps we'll hear some paralegal just found it in a cabinet or something.
The great Salt Lake parted, and after they miraculously walked through to the
other side, they tripped on a rock and fell on some new evidence."

In SCO's super secret sealed memo:

“Your Honor, the Dry Cleaners return a luggage ticket they had found in Daryl
McBride’s pants pockets and when we went to the airlines to claim it, it turned
out to be Blepps briefcase! Now we have millions of lines to show.”


Okham's Razor

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: Anonymous on Thursday, December 14 2006 @ 06:21 AM EST
I am beginning to believe that SCO will soon present their evidence. It is
located on stone tablets, which they will place in a hat and dictate to the
court.

[ Reply to This | # ]

SCO hidning exhibits
Authored by: maroberts on Thursday, December 14 2006 @ 07:02 AM EST
All the previous ones have been taken apart by Groklaws hive mind, so they don't
want these dismantled too.

[ Reply to This | # ]

SCO Fights for Survival
Authored by: entre on Thursday, December 14 2006 @ 07:39 AM EST
This motion for reconsideration could be about something much more simple. At
the conference call on or about December 22nd. or 27th. when Darl gets asked
about the loss of two thirds of their case he can now say: "That issue has
not been adjudicated yet completely, We look forward on our appeal to a complete
reversal of the judgement based on the facts of our case being undisputed and
overwhelmingly in SCO's favor."

This sounds so much like Darl it has to happen this way at the CC!

[ Reply to This | # ]

Just whne you thought it was safe to go back in the courtroom...
Authored by: Anonymous on Thursday, December 14 2006 @ 07:47 AM EST
Surprise, surprise. I don't remember anybody predicting this. I suppose we
should have though.

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: Steve Martin on Thursday, December 14 2006 @ 08:11 AM EST

"SCO is entitled to summary judgment on Novell's Sixth, Seventh, Eighth and Ninth Counterclaims because the evidence of the parties' intent under the APA and Amendments thereto is undisputed in SCO's favor."

Pure desperation. Novell has presented substantial evidence with their PSJ/PI filing and associated memorandum and exhibits to at the very least dispute this statement (and at most win their PSJ/PI motion). How BS&F can state that the parties' intent under the APA is "undisputed" in their favor is beyond me (especially when TSG is not and was not a party to the APA when executed, was not involved in the negotiations, and has no first-hand knowledge of the parties' "intent" in any case).

This is not the first time that TSG's attorneys have told the Court that such-and-such facts were "undisputed" in a court filing when they actually were disputed. (And of course we recall that TSG filed a "stipulated" motion that wasn't "stipulated" by the other side.) One wonders if such behavior is normal in a lawsuit, and if not, when such behavior will come back to bite them in the form of sanctions.

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

[ Reply to This | # ]

contempt of court
Authored by: Anonymous on Thursday, December 14 2006 @ 08:12 AM EST
How long can you continue this sco tactic before it is declared contempt of
court?

[ Reply to This | # ]

SCO and sealed documents
Authored by: Anonymous on Thursday, December 14 2006 @ 08:42 AM EST
In SCO v IBM 438, Order denying [380-2] motion to intervene (joined with [340-1]
motion by G2 Computer Intelligence), denying [380-3] motion to unseal court
files (joined with [340-1] motion by G2 Computer Intelligence) 04-28-05, Judge
Dale A. Kimball ordered:

(2) All future dispositive motions and memoranda that are filed under seal shall
be publicly filed with all confidential information redacted. Additionally, all
non-confidential supporting exhibits shall be publicly filed;

The order further states;

(3) After May 27, 2005, the court will award reasonable attorneys' fees to any
party that successfully challenges the opposing party's designation of a
document as confidential after such document has been filed with the court and
after having provided the party seeking confidentiality at least ten days to
remove the confidential designation;

Has anyone kept count of how many times either SCO or IBM have violated this
order?

Wouldn't it be fun to see IBM challenge the SCO non-filing of things in redacted
form ?

The order also states Sanctions will be considered if the court catches either
party, abusing sealing, on it's own.

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: Anonymous on Thursday, December 14 2006 @ 08:47 AM EST
I wonder if the judge can just stay this motion indefinitely. This way he is not
forced to go through SCO's landmines in their overlength memos until after the
trial (they are going to appeal anyways). It is clear they are looking for him
to make a mistake or pull a Judge Brown.

If he rules on this, they are going to file a "renewed" motion for
reconsideration, of course, that one is going to be filed conventionally with
even longer overlength sealed memos.

[ Reply to This | # ]

"I'm Out Of Sleep And Ideas" -- Fitz, 12 Oz. Mouse
Authored by: TheBlueSkyRanger on Thursday, December 14 2006 @ 08:52 AM EST
Hey, everybody!

So, do we have the usual IBM gets a say then SCO gets one more shot before the
judge rules, or can the judge just rule right now?

If IBM gets a response, why do I get the feeling Kimbal won't have to write
much
more in his opinion than "IBM correctly pointed out that...."

"Indisputed." Hey, pay attention here! There's nothing BUT dispute.

The only thing I predict is Kimball's ruling, whenever it happens, is going to
take a while. He'll want to make sure every bolt at the waterline is tight.

Boy, think what a mess things would be right now if Kimball were less
meticulous
than his is. =:-0

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: Anonymous on Thursday, December 14 2006 @ 08:57 AM EST
I have this image of the Blepp briefcase showing up on Judge Kimball's desk,
looking like a steamship trunk of old, with stickers from around the world on
it. SCO's memo in support of the reconsideration "this 'evidence' has been
lost but now is found."

...D

[ Reply to This | # ]

  • Briefcase - Authored by: Wardo on Thursday, December 14 2006 @ 10:07 AM EST
    • Briefcase - Authored by: Anonymous on Thursday, December 14 2006 @ 10:22 AM EST
      • Briefcase - Authored by: TAZ6416 on Thursday, December 14 2006 @ 10:31 AM EST
        • Briefcase - Authored by: Anonymous on Thursday, December 14 2006 @ 10:39 AM EST
      • Briefcase - Authored by: esni on Saturday, December 16 2006 @ 06:14 PM EST
    • Briefcase - Authored by: Wardo on Thursday, December 14 2006 @ 11:42 AM EST
Reconsideration of "SCO v Novell goes first?"
Authored by: gvc on Thursday, December 14 2006 @ 09:09 AM EST
Kimbal's ruling also included, almost as an afterthought, a ruling that the
trial would be deferred pending resolution of SCO v Novell. Perhaps that's what
they are asking to have reconsidered.

I think Kimbal is right, but at least asking him to reconsider is not absurd, as
it is for the ruling on evidence.

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: Anonymous on Thursday, December 14 2006 @ 09:13 AM EST
One of my professors when challenged on exam marks said he would review the
whole exam not just the question that the student thought was incorrect.

Did the claims that were permitted get a review as well?
Perhaps there are more that can be excluded.


[ Reply to This | # ]

Oversized + Redacted = Profit!
Authored by: gumnos on Thursday, December 14 2006 @ 09:56 AM EST
Note: Exhibits are oversized and not attached in the pdf image. The Complete document is retained in the sealed room for access by authorized persons only.

Looks like SCO has found a new legal strategy to keep Groklaw's nose out of their filings...print out their pleadings & arguments on posterboard (or perhaps 11"x17" paper) and then file it under seal.

I wonder if they get to then write-off the cost of a wide-carriage plotter/printer as a business/legal expense  :-)

-gumnos



[ Reply to This | # ]

Watching the batter, missing the game:
Authored by: Rollyk on Thursday, December 14 2006 @ 10:31 AM EST
Sherlock: "the 'game's afoot' my dear Watson !
The real game here lies with Microsoft. How much did MS pay in back fees to SCO
in 2003-4 ? $30Mil+
PJ wrote: "that if and when Microsoft sues some Linux vendor or end user
over some stupid patent or other"....
This will not be the last lawsuit. Any of us that have been sued or initiated,
business lawsuits wondered if there was ever an end in sight.

---
pay now, or pay later, there's no free lunch.

[ Reply to This | # ]

Wasn't completely frivolous when filed?
Authored by: Anonymous on Thursday, December 14 2006 @ 10:49 AM EST

Even if they just "found" something in the Great Salt Lake, that won't
demonstrate that it wasn't completely frivolous when they filed. It will only
prove that discovery was a fishing trip and they found "something",
however small to show that they *currently* have a shred of evidence.

[ Reply to This | # ]

  • Fishing Trip - Authored by: Anonymous on Thursday, December 14 2006 @ 11:25 AM EST
SCO had to do this
Authored by: Jude on Thursday, December 14 2006 @ 11:22 AM EST
SCO's quarterly report is due Real Soon Now, and they don't have *anything* good
to put in it. I'll bet they filed this just so they could hold up one glimmer
of (false) hope to the bagholders.

[ Reply to This | # ]

"But, Judge Kimball..."
Authored by: Michelle Readman on Thursday, December 14 2006 @ 11:22 AM EST
"But, Judge Kimball, we did submit this before the end of discovery! We
cannot be held accountable for the court's own poor filing practices in ancient
egyptian times!"

"So you poured sand over your printed work..."

"Egyptian sand!"
"_Ancient_ Egyptian sand!"

*Kimball blinks*

"Then Ra came and enslaved everyone!"
"(IBM still worship him, y'know)"

[Fearing all may be lost, BS&A decide it's time to use the Stargate
argument...]

[ Reply to This | # ]

SCO pleads not-guilty by reason of insanity
Authored by: jbb on Thursday, December 14 2006 @ 11:56 AM EST
Earth to SCO:
  1. These are civil cases.
  2. There ain't no sanity clause.

---
You just can't win with DRM.

[ Reply to This | # ]

Could BS&A be filing this to protect themselves from SCO
Authored by: Anonymous on Thursday, December 14 2006 @ 12:03 PM EST
What I am thinking is what if SCO did give to BS&A some evidence which has
now been excluded because of the lack of specificity. BS&A could be liable
for legal malpractice if they had the evidence but did not file it with the
court.

Possible?

[ Reply to This | # ]

Not going to financials call
Authored by: Anonymous on Thursday, December 14 2006 @ 12:13 PM EST
Some here and on other message boards have wondered if this filing was just to
say, "it's not decided." on the financials call.
I personally think it will be ruled on LONG before the con-call.
My hope is that it's ruled on prior to the end of next week.

[ Reply to This | # ]

Condolences to the rank-and-file staff of SCO
Authored by: Anonymous on Thursday, December 14 2006 @ 01:11 PM EST
God Speed as you move head long into your exit plan

[ Reply to This | # ]

Hidden Agendas
Authored by: Anonymous on Thursday, December 14 2006 @ 01:32 PM EST
All of the comments so far have missed something obvious in the quest for (over)
analysing the motion.

It has been pointed out here in previous comments that there appears to be
someone interested in keeping the stock price above $1/share. Right now, the
stock price graphs are getting flatter at flatter at the 1.06/1.04 points.

But, the filing was made on 12/13. I submit that the purpose of the filing was
to give SOMETHING to the anonymous benfactor intent on the $1.06 price to hang
onto, to give him some justification to keep it up. If you look at the price
chart for 12/13, you will see that early in the day, and for several hours, the
price dipped below the aparent 1.04 trigger. Today, it dipped below that, but
almost immediately rebounded to $1.06

All this after dropping as low as .88 on Friday, and spending most of the day
Monday in the sub-$1.00 range. Methinks perhaps that somone is playing games
with stock prices.

But this makes me wonder what is so magical about a stock price of $1.06? I
have seen comments hinting that if it trades below $1, they face possiible
delisting, which makes sense, although clearly "just" being below $1
isn't enough, there must be a time threshold as well. ie, it must trade below $1
for five consecutive trading days. But even then, why $1.06? Why not prop it
up at $2? Maybe thos with more insight or financial expertise can comment....

[ Reply to This | # ]

  • Hidden Agendas - Authored by: Jude on Thursday, December 14 2006 @ 01:49 PM EST
  • Stock Indexes - Authored by: Anonymous on Thursday, December 14 2006 @ 02:28 PM EST
    • Stock Indexes - Authored by: Anonymous on Thursday, December 14 2006 @ 03:57 PM EST
Granting SCO Relief
Authored by: BassSinger on Thursday, December 14 2006 @ 01:49 PM EST
Kimball: I find that SCO and BS&F are indeed entitled to relief.

SCO & BS&F: Thank you, your honor. What relief are you granting us?

Kimball: 40 years of free room and board at an appropriate Federal Facility.

---
In A Chord,

Tom

Proud Member of the Kitsap Chordsmen
Registered Linux User # 154358

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: Yossarian on Thursday, December 14 2006 @ 01:53 PM EST
> I can't help but wonder if all the evidence they had
> kept up their sleeve just landed on Judge Kimball's desk.

If yes, so what?

The appeal process exists to deal with errors of the court,
e.g. IBM asking Judge Wells to reconsider an order, or dirty
play by the other side. E.g. if I asked for X in discovery,
and didn't get it, and can show later in appeal that the other
side had X, and X could change the jury opinion, then I have
grounds to appeal. If I, or my lawyers, made a mistake by
not presenting X to the court, even though I had X, then
it is *my* problem.

So if SCO will land a ton of evidence on Judge K. desk then
he will be able to say something like: "Too late. You did
not submit this evidence when the court told you to. You
did a serious error, and it is your problem. The court has
no obligation to correct your error."

[ Reply to This | # ]

Oversized Exhibits
Authored by: anwaya on Thursday, December 14 2006 @ 01:53 PM EST
I say it's System 7 on tape.

On punched tape.

[ Reply to This | # ]

I think Judge Kimball's private reaction to this would probably not be allowed on Groklaw
Authored by: Anonymous on Thursday, December 14 2006 @ 02:08 PM EST
Blimey. :o

[ Reply to This | # ]

SCO Fights for Survival in IBM and in Novell
Authored by: wvhillbilly on Thursday, December 14 2006 @ 02:27 PM EST
SCO is entitled to summary judgment on Novell's Sixth, Seventh, Eighth and Ninth Counterclaims because the evidence of the parties' intent under the APA and Amendments thereto is undisputed in SCO's favor.--My bold.

*?!?*?!?*?!?*?!?*?!?*?!?*?!?*?!?*?!?*?!?*?!?*?!?*?!?*?!?*?!

In SCO's favor? Where did they get that from, the Wishing Well?

Good thing I didn't have anything in my mouth, or I'd be looking for a new keyboard about now.

---
What goes around comes around, and the longer it goes the bigger it grows.

[ Reply to This | # ]

A comment and two questions
Authored by: Anonymous on Thursday, December 14 2006 @ 02:32 PM EST
First, the comment. SCO is obviously trying to prevent termination of this case
by creating an infinite loop. When this motion is thrown out, SCO will file a
motion for reconsideration of that decision, and when that motion is
rejected...

Now the questions. First, was this filed with Kimball? Or are they asking for
permission to do an interlocutory appeal?

Second, does Kimball actually have to wade through all of the sludge that SCO
just filed, or can he merely say "res judicata"?

MSS2

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Preserving the matter for appeal
Authored by: Anonymous on Thursday, December 14 2006 @ 03:03 PM EST

It seems to me like this is just another step in setting up for an appeal.

Think of it this way: If this really were manifest injustice, they can't quietly acquiesce and then appeal later. Better to ask the Judge to reconsider -- it will look better in the appeal.

In fact, assuming this motion is denied, SCO might even plan to ask for leave to file an interlocutory appeal, just for the delay that request will cause.

Finally, if there is any issue on the table that could let SCO get a second trial, and all the accompanying delays, on appeal, this would be it.

In other words, as long as SCO's goal in the chess match is delay, asking for reconsideration was an essential move.

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Im surprised they had'nt filed...........
Authored by: pfusco on Thursday, December 14 2006 @ 03:51 PM EST
A belated expidited motion for a petition in support of permission to file an
overlength memo which is in support of the request to have Judge Wells recused
by Judge Kimballs de novo review of the facts in evidentiary procedings in an
appellant court hearing to be sceualled no later then the end of discovery.

---
only the soul matters in the end

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Real reason for filing may be simple
Authored by: Anonymous on Thursday, December 14 2006 @ 04:30 PM EST
This filing will allow Darl to claim that all SCO's claims are still under
consideration, at the next conference call (which should take place in about a
week).

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SCO Fights for Survival in IBM and in Novell
Authored by: Anonymous on Thursday, December 14 2006 @ 05:09 PM EST
>>>
SCO is seriously stretched thin, between the two cases on
two tracks simultaneously running them ragged.
<<<

LoL... Kinda-like monkey-in-the-middle (for those of us
who were kids once)... Gotta love it.

WizLayer

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What do you think SCO will argue?
Authored by: GLJason on Thursday, December 14 2006 @ 05:31 PM EST

They already gave the arguments in their objection to Judge Wells's order, but Judge Kimball didn't agree. Does anyone think either has any merit?

1) There should be an evidenciary hearing with an item-by-item ruling. In effect they already got this. Judge Wells reviewed each item carefully and ruled that some (I think 4) could remain. SCO and IBM just didn't have to argue each one on the merits. Personally I think such a hearing would take on the order of 26,000 years for SCO to talk through :). The reasons the others were thrown out were described in detail though, and applied to each one the same so I don't think this would be a go.

2) It's impossible for us to know the details requested, so the items should be allowed. I think this is even more ridiculous, but the Judges didn't disagree with them. The Judges just ruled I believe that SCO failed to obey the orders. That is fine and dandy, as SCO never objected or asked for clarification on those orders, even after IBM had told them exactly what they needed and that they would bring it up with the Judge if SCO didn't improve their specificity. I don't think either Judge ruled though on why they shouldn't remain in any case, and why the orders must be construed as the court has. First off, SCO can't even prove that IBM did anything wrong. They don't show where the communicated information was in AIX or Dynix, let alone SVRX. The claims that were thrown out actually lacked any evidenciary basis whatsoever, and I would have like to have seen that said in the ruling.

Neiman Marcus. From SCO's own lawyering at the Oct 24 hearing:

Now, I'd like to note that IBM's showing of prejudice is also inadequate. They have -- it's basically an analogy in the Magistrate's order to a shoplifter from Neiman Marcus being caught outside the store but not being told what he has taken. And that clearly isn't the case here. We have provided tremendous detail, in thousands of pages of exhibits and the types of examples we have shown. It's more akin to that shoplifter being told what he has taken but not being able to, perhaps, cite the catalog number where it appears in the Neiman Marcus catalog. That would be a more are apt analogy, we contend.

I agree, with a little exposition. Not only can they not cite the catalog number, they cannot even show that they ever carried that item, or any items of that type. For example, it's like SCO saying IBM stole a cell phone but SCO doesn't mention the brand of cell phone that was supposedly taken. Not only that, but Neiman Marcus does not and never has sold cell phones. Also they did a full cavity search on IBM and they cannot find a cell phone.

That begs the question "Why is SCO accusing IBM of shoplifting?" Their "evidence" they want admitted at trial is one of their employees overheard IBM's friend ask IBM about their cell phone. From that, they assumed IBM had a cell phone and that they must have stolen it from the store, so they want to be able to accuse IBM of shoplifting in court.

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SCO Fights for Survival in IBM and in Novell
Authored by: MrCharon on Thursday, December 14 2006 @ 05:50 PM EST
Assuming there is nothing new in their argument, does the judge have to go
through the whole briefing processes or can this be rejected on its face as
already being ruled?

---
MrCharon
~~~~

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Kimball can reconsider, and still say no
Authored by: Anonymous on Thursday, December 14 2006 @ 07:39 PM EST
Just like he did with the De Novo review of Judge Wells'
order striking SCO's evidence. If Kimball grants the
motion to reconsider he forstalls an appeal, and if he
rules quickly there is little or no delay.

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Do they seriously expect this to work?
Authored by: thombone on Thursday, December 14 2006 @ 08:37 PM EST
I doubt it, actually. Seems like their only strategy is to try to cause more
legal red tape.

They've got nothing else, that much we are sure of.

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I Don't Think That SCO Regrets Filing Against Novell
Authored by: darkonc on Thursday, December 14 2006 @ 09:27 PM EST
I'm going on the presumption that the main purpose of the Novell case was not to actually prove Novell wrong in their claims, but rather to provide an air of plausible deniability when IBM claims that Novell has forced SCO to drop their claims against IBM.

In that context, what SCO would regret most about Novell is that it's going as quickly as it is, and that it is now going to be resolved prior to the IBM case.

It's now become all but impossible to come up with excuses for how SCO thought it could have had a leg to stand on in either of these cases. About the only explanations that seem to have any sort of sanity left to them are simple stock scam, hoping that IBM would buy them out (version of a stock scam), and desperate rear-guard/diversionary action launched at the behest of someone like Microsoft.

Anybody with another explanation?

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

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Spot the difference between SCO's case.....
Authored by: bigbert on Thursday, December 14 2006 @ 09:32 PM EST
....and this one: (Caution: distasteful for some) Link Especially the verdict!

---
LnxRlz!

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SCO Fights for Survival in IBM and in Novell
Authored by: Dave23 on Thursday, December 14 2006 @ 11:59 PM EST
I think what really scares SCOX/BSF is that Judge Kimball has got it right on the scheduling. The simpler case, SCO v. Novell, has passed its slower, more complex litigative rival, SCO v. IBM, and will now go first. And, as the Judge has noted, there are several decisions in SCO v. Novell that are essential predicates to resolving SCO v. IBM.

If any of a number of decisions "goes the wrong way" for SCOX in Novell, SCOX is effectively out of business in IBM. And if at least one certain motion in Novell is decided against SCOX, they are out of business, period. In which case it is highly likely that the bankruptcy trustee will quickly call off the dogsBSF.

So I think that — beyond the expected complaints already mentioned — not only are SCOX/BSF asking Judge Kimball to reconsider his decision wrt MJ Well's decision (including re-hearings on all this 'new' secret sauce, I betcha!); but also they're asking him to reconsider the fairness in the change in scheduling as well.

"We really need the more complicated case to go first, yer honner!"

Yes, delay. Can SCOX/BSF get the cart (IBM) before the horse (Novell) again? I think they'll try! With reference to the court's new schedule SCOX/BSF's argument is so like Micawber's argument: "I am apprehensive that such an arrangement might not allow sufficient time for the requisite amount of - Something - to turn up." — Chas. Dickens, David Copperfield

---
Nonlawyer Gawker

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SCO is REALLY, REALLY desperate for that item by item evidentiary hearing
Authored by: Anonymous on Friday, December 15 2006 @ 02:24 PM EST
I think they already have logically invalid but persuasive sounding arguments
ready to go. (maybe BIFF is on BSF's team? In that case the arguments are
illogical, un-grammatical and not persuasive.)

It's easy to refute SCOG BS when it's written down and you have the time to find
the logical inconsistencies.

Not so easy when you're faced with contorted logic to refute it in the immediate
moment.

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  • Ghoti-fish - Authored by: darkonc on Friday, December 15 2006 @ 03:12 PM EST
    • Ghoti-fish - Authored by: esni on Saturday, December 16 2006 @ 05:22 PM EST
      • Ghoti-fish - Authored by: Anonymous on Saturday, December 16 2006 @ 09:25 PM EST
      • Ghoti-fish - Authored by: Burger on Sunday, December 24 2006 @ 07:36 AM EST
Sealed filings - a pattern?
Authored by: DMF on Sunday, December 17 2006 @ 11:46 AM EST
I suspect someone on the SCO legal team has concluded that Groklaw is doing IBM
and Novell's research for them, so they are sealing their filings to put a stop
to it.


What, you don't think they were delusional already?


Anyway, what are the chances that they'll have to justify sealing all these
filings?

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Sealed Memo ->? Sealed Reply
Authored by: DMF on Sunday, December 17 2006 @ 12:12 PM EST
One presumes that it wouldn't be good form to quote from a sealed filing or
redacted section. But in a case where an entire memo in support and exhibits
are sealed, is it necessary that an opposing memo also be sealed?

Or is there a chance that IBM will file a redacted reply with enough of a hint
that we could figure out what the basis for the motion is (claimed to be)?

[ Reply to This | # ]

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