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Now SCO Objects to Judge Wells' November 30th Order too
Friday, December 15 2006 @ 01:48 AM EST

SCO has also now filed an objection to Judge Wells' November 30th order, SCO's Objection to the Magistrate Judge's Decision on IBM's Motion to Confine [PDF] or at least they've filed a kind of notice, saying that they will file the actual papers within ten days of her written order, which isn't filed yet. When she ruled from the bench, she told SCO if they didn't like her order, they could take it up with Judge Kimball, and they are.

We also have SCO's redacted memorandum in support [PDF] of its request for reconsideration of the November 29th order. I think I could sum it up like this: SCO doesn't think Judge Kimball de novo'd enough. They want an evidentiary hearing and they'd like to redepose four IBM programmers.

They don't think he looked at each piece of evidence. And besides there is some new evidence. The Magistrate Judge didn't have all of SCO's expert reports when she made her ruling back in June. So here they are again, trying to sneak in that new evidence in yet another creative way.

Their justification is that with Novell going first, there's no reason not to take the time to do everything they are requesting. I can think of one: lawyer times costs money. SCO may be happy as a clam to slowly bleed its money away, but IBM might not enjoy such a process. SCO has thought of that and it more or less offers to pay.

Here's what it wants to ask the 4 Dynix programmers: Do they know the file, version and line for the technology items they disclosed to Linux, according to SCO? If not, how can SCO know? If they do, then where is the prejudice to IBM if SCO doesn't give them the file, line and version?

Finally, we have a hearing date set for arguments to be heard on the Motion for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and Certificate of Compliance with Rule 37(c). The motion hearing is set for 1/18/2007 09:30 AM in Room 102 before Magistrate Judge Brooke C. Wells.


  


Now SCO Objects to Judge Wells' November 30th Order too | 337 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: entre on Friday, December 15 2006 @ 02:01 AM EST
If Needed

[ Reply to This | # ]

OT Comments here
Authored by: jdg on Friday, December 15 2006 @ 02:06 AM EST
Off-Topic comments here.

---
SCO is trying to appropriate the "commons"; don't let them [IANAL]

[ Reply to This | # ]

What's the point of this motion?
Authored by: Aim Here on Friday, December 15 2006 @ 02:30 AM EST
Why would SCO need to tell us in advance that they're going to appeal the order
in a timely manner before the order has been filed? I could understand if this
was a motion for leave to file a late brief or something, but that doesn't seem
to be the case here.

The only thing I can think of isn't even a legal reason.
SCO's year end financial reports and conference call are due any day now, so
these two orders could be there so that Darl can say his usual pabulum about
"These issues are still outstanding and we look forward to litigating them
in a courtroom" to keep shareholders happy, or more likely make things look
convincing while the stock price gets manipulated steeply upwards on the
afternoon before the call...

[ Reply to This | # ]

Now SCO Objects to Judge Wells' November 30th Order too
Authored by: mashmorgan on Friday, December 15 2006 @ 02:34 AM EST
Am in the UK so some of this stuff is perplexing!

Question: can SCO appeal to a higher court if they don't agree with either the
judge or the magistrate? Eg in the Uk one can appeal to the House of Lords

[ Reply to This | # ]

prejudice to IBM
Authored by: inode_buddha on Friday, December 15 2006 @ 02:47 AM EST
The prejudice to IBM is in the fact that SCO is now asking dynix programmers to
tell them the version, file, and line number, instead of SCO already having this
information. And that in spite of having an entire IBM server full of CMVC.

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

There's a hole in your bucket dear Darl, dear Darl ...
Authored by: jbb on Friday, December 15 2006 @ 03:01 AM EST
SCO wants a reconsideration because they say they have new evidence that is not in the original record. The new evidence is depositions that have yet to take place and will only happen if the court agrees to reconsider it's own order. Perhaps I am being too much of a computer nerd to ask for consistency here but, to me, this makes absolutely no sense. They don't actually have any new evidence, instead, they want yet another bite at the apple by being able to depose four IBM programmers yet again. If the court grants their request then maybe, just maybe they will be able to get some new evidence. If this circular logic succeeds then SCO can rinse and repeat and bring in new evidence anytime it wishes.

But their circular reasoning does not stop there. They also want IBM's motion to be reconsidered based on expert reports SCO filed after IBM filed its motion. SCO claims that if it were allowed to sandbag IBM like this then:

The Court could ascertain ... that concerns of sandbagging are unwarranted.
So SCO is saying, please let us sandbag IBM to show you that IBM does not have to worry about being sandbagged.

Finally, SCO claims that bringing in a ton of new evidence won't be prejudicial because the trial date has been delayed. But the summary judgment motions are looming large. Letting SCO bring in new evidence, about six hours after midnight, would probably be at least a teensy bit prejudicial against IBM don'tcha think?

There is no new information in this memo that SCO did not already know or should have known. It seems to be no more or less than a request to bend the rules once again for SCO to allow them to sandbag IBM's summary judgment motions by bringing in some new evidence over a year late.

SCO does to give any excuse for why it didn't take these depositions during the discovery phase of the trial. The only reason I can see for why they didn't was because either they were stupid or because they really were trying to sandbag IBM. If the court gives even an inch on this motion then I would have to ask: what's the point of having rules and deadlines if only IBM has to following them and SCO can do whatever they want whenever they want?

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

[ Reply to This | # ]

Now SCO Objects to Judge Wells' November 30th Order too
Authored by: david_koontz on Friday, December 15 2006 @ 03:03 AM EST
... "SCO respectfully requests that this court reconsider the Order to
allow for consideration of new evidence not in the original record and to
prevent manifest injustice."

" Each Item or combination of Items comprise a basis on which a jury could
find IBM liable for SCO's losses. By precluding SCO from presenting these claims
to a jury, the effect of the Order is tantamount to partial dismissal.
"Before imposing dismissal as a sanctin, a district court should ordinarily
evaluate the following factors on the record: '(1 the degree of actual prejudice
to the [other party]; (2) the amount of interference with the judicial process;
(3) the culpability of the litigant; (4) whether the court warned the party in
advance that dismissal of the action would be a likely sanction for
noncompliance; and (5) the efficacy of lesser sanctions."

As in, 'Here! We'll hold the nails on our coffin lid, you get the hammer.'

Is it just me, or is there cite not helping them? IBM has made claim that not
knowing what they were being accused of was prejudicial. They've been told they
could bring action separately on matters not in evidence. They've been dunned
repeatedly for not being specific. They've had the rules pointed out to them.
Lastly, none of their claims have been dismissed (yet).

" This Court stated its intent to undertake a de novo review, buit it was
in fact deferential to the Magistrate Judge, noting her "educated
position" to evaluate discovery-related issues."

IIRC. he deferred to the magistrates expertise in his summary, Saying that after
his de novo review, he upheld her finding in its entirety. Maybe we'll get to
see Kimbell to drop his de novo review on them in his response. He may have set
them up for this. I guess they're trying get Kimbell angry calling him a liar.
...
" 1. The Order Should Not Have Been Entered Before All Expert Reports Were
Filed." ...

This doesn't sound like it can fly, the dismissal of the expert testimony was
done in the action on the 30th. I suspect the redacted exhibit A is expert
testimony, and may not be proper here. Should these two objections be dealt
with in the inverse order? Would it go a long way toward review-proofing?

[ Reply to This | # ]

Seems to me SCOG is again hoping to confuse the judge
Authored by: Anonymous on Friday, December 15 2006 @ 03:12 AM EST
as to WHO has to provide evidence in support of claims.

Standard SCOG behavior from the beginning - trying to reverrse the onus.

SCOG brings the allegations without any proof in hand but IBM must provide the
proof to SCOG for SCOG to prove the allegations.

[ Reply to This | # ]

You know what you did wrong, so we don't have to tell you.
Authored by: Tsela on Friday, December 15 2006 @ 03:15 AM EST
Here's what it wants to ask the 4 Dynix programmers: Do they know the file, version and line for the technology items they disclosed to Linux, according to SCO? If not, how can SCO know? If they do, then where is the prejudice to IBM if SCO doesn't give them the file, line and version?

Pardon? What kind of warped logic is that? There's been already two orders (IIRC) telling SCO that they had the burden of the proof, and that the only acceptable proof was file, version and line number. What they're saying now is that they don't have to give any proof because the Dynix programmers know what they did wrong, and if they don't know SCO cannot know either. Well, isn't that like saying that your claim is baseless?!

How this cannot be interpreted as contempt of court and of the most basic rules of justice (like presumption of innocence) is beyond me.

---
Christophe Grandsire

[ Reply to This | # ]

Objection!
Authored by: Anonymous on Friday, December 15 2006 @ 03:24 AM EST
"'I strenuously object?' Is that how it works? Hm? 'Objection.' 'Overruled.' 'Oh, no, no, no. No, I STRENUOUSLY object.' 'Oh. Well, if you strenuously object then I should take some time to reconsider.'" -Lt. Sam Weinberg, A FEW GOOD MEN

[ Reply to This | # ]

What is the point of a court order?
Authored by: Anonymous on Friday, December 15 2006 @ 03:34 AM EST
What is the point of a judge's court order if SCO is allowed to break it?

Judge Kimball already set the deadline for the introduction of evidence. That
deadline has long passed. SCO was supposed to have shown all their
evidence at that time - any other evidence after the deadline will not be
allowed. That is Judge Kimball's order. Period.

Case Closed.

SCO's motions should be denied. Period.

They can squeel all they want. All it will be is squeeling.

The answer is still "denied" by Judge Kimball.

[ Reply to This | # ]

Possible SCO next move
Authored by: Anonymous on Friday, December 15 2006 @ 03:43 AM EST
Ask the judge to extend the discovery, based on the reason that trial date is
delayed / extended.

[ Reply to This | # ]

Amazing Case, how weak the grounds
Authored by: SirHumphrey on Friday, December 15 2006 @ 04:05 AM EST
Amazing Case, how weak the grounds
brought by a wretch like me....
This case is lost and so unsound,
So blind, that, I can't see.

This case has taught me how to spread
fe-ar, uncertainty, doubt
How precious did that FUD appear...
the hour we started out.

De Novo reviews don't bother me...
I think the case Judge has erred.
I need this expedited delay
to be urgently deferred.

Through many frivolous appeals...
we have already come.
This case which brought us nought thus far...
goes on and on and on.

The PIPE fairy has funded me...
Its cash my hope secures.
It will my shield and portion be...
as long as TIME endures.

When we've delayed ten thousand times...
Just like we have from day one.
We've no less days to bring delays...
than when we've first begun.

[ Reply to This | # ]

Suing your lawyers
Authored by: Anonymous on Friday, December 15 2006 @ 04:11 AM EST
Is one reason why this might have come up again could be out of a concern that
SCO might sue their lawyers for incompetent representation? In the UK at least,
if you suffer damages because your lawyers are negligent around some procedural
issue, then it's quite easy to find someone to sue them on a no win/no fee
basis. By their failure to get all of their arguments/evidence in prior to the
closing date, couldn't SCO turn around and say 'the reason that we lost is
because BSF were tardy in getting evidence in before the cutoff date, therefore
BSF owe us X billion dollars'?

[ Reply to This | # ]

IBM's Answer???
Authored by: Anonymous on Friday, December 15 2006 @ 04:18 AM EST
Well, as you know which Dynix methods and concepts we have violated, and you
supposedly (should) have a deep knowledge about SVR5, tell us, by line and file
where in SVR5 are embodied those methods and concepts (as you should have
already done)

[ Reply to This | # ]

This is like one of those bad horror movies
Authored by: jseigh on Friday, December 15 2006 @ 04:47 AM EST
You know, the ones where they think the monster is dead and everything is ok
again, and suddenly the monster jumps up again scaring the wits out of
everybody. What do we have to do here? In the old days, they had techniques
for dealing with things that wouldn't stay dead properly. They'd pound a stake
through its heart, cut off its head, burn it, and bury the ashes at a cross
road.

[ Reply to This | # ]

Why Dynix
Authored by: stomfi on Friday, December 15 2006 @ 04:58 AM EST
In the exhibit "IBM's Greatest Hits - Ex. 231, Declaration of Paul McKenney
-- RCU Follies - Update: Exs. 596, 258 also"
is this quote
"Dynix is based on BSD, not System V, he tells the court."

BSD was developed from a much earlier version of the UNIX sources than version
V, so how can SCO expect to gain anything from this gambit?

[ Reply to This | # ]

  • Why Dynix - Authored by: Arker on Friday, December 15 2006 @ 05:46 AM EST
    • Why Dynix - Authored by: Anonymous on Friday, December 15 2006 @ 10:23 AM EST
      • Why Dynix - Authored by: aha on Friday, December 15 2006 @ 12:25 PM EST
        • Why Dynix - Authored by: Anonymous on Saturday, December 16 2006 @ 06:43 AM EST
  • Why Dynix - Authored by: jbb on Friday, December 15 2006 @ 01:45 PM EST
PJ was right
Authored by: DaveJakeman on Friday, December 15 2006 @ 05:12 AM EST

SCO respectfully requests that this Court reconsider the Order to allow for consideration of new evidence not in the original record and to prevent manifest injustice.
SCO want to slip the cards they had stuffed up their sleeve out onto the table. They doubt they'll get the chance later on, so they're trying now.
The Order Should Not Have Been Entered Before All Expert Reports Were Filed
The Expert Reports have nothing to do with it. SCO didn't provide their "evidence" with sufficient specificity. End of story. SCO seem to think that if a paid expert says it's OK to call a vague, imprecise allegation "evidence", then the Court needn't worry its little head over it.

Oh, and Discovery isn't over yet. SCO says so:

These witnesses,... should be asked whether they know the coordinates in Dynix for the technology items they disclosed to the Linux community. If they do, that is proof IBM is not prejudiced by any omission in the SCO submission. If they do not know these coordinates for disclosures they made from Dynix, perhaps they could explain how SCO knows or should know that information but they do not.
So SCO wins, whatever the witnesses reply. SCO hardly need ask the question then, do they? IBM should just pay SCO their billions right now.

SCO continue to ignore that it's up to SCO to prove SCO's case against IBM; it is not IBM's duty to prove IBM guilty. I'm looking forward to hearing what IBM have to say on this little matter. With the emphasis of a falling piano.

I think SCO's motion might irk more than just IBM. There's two judges that could be getting more than a little tired of SCO's childish bickering and whining.

When will SCO have another off-beat, wacky idea as to how this case should have happened in their dreams, that we'll need to restart the case for?

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

[ Reply to This | # ]

Now SCO Objects to Judge Wells' November 30th Order too
Authored by: Steve Martin on Friday, December 15 2006 @ 06:51 AM EST

Here's what it wants to ask the 4 Dynix programmers: Do they know the file, version and line for the technology items they disclosed to Linux, according to SCO? If not, how can SCO know? If they do, then where is the prejudice to IBM if SCO doesn't give them the file, line and version?

In other words, they are still trying to get IBM to prove TSG's claims for them.

Appalling.

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

[ Reply to This | # ]

Reconsider a limited number of items...
Authored by: MathFox on Friday, December 15 2006 @ 07:10 AM EST
The only cause for reconsideration that makes sense at a first glance is SCO's
point 3. "We provided URLs to patches which, by their nature, contain
filenames and line numbers."
These are the "Linux coordinates", did SCO provide SysV and/or
AIX/Dynix coordinates too? If not, it will be hard for IBM to defend against
those points.

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

[ Reply to This | # ]

A question regarding "disclosed" M&C specifity
Authored by: Anonymous on Friday, December 15 2006 @ 07:27 AM EST
Here's what it wants to ask the 4 Dynix programmers: Do they know the file, version and line for the technology items they disclosed to Linux, according to SCO? If not, how can SCO know? If they do, then where is the prejudice to IBM if SCO doesn't give them the file, line and version?

TSG has been singing this tune a long time. Their argument is basically: how are we supposed to know what the IBM programmers where talking about, so we can't give file, version line information.

Did TSG identify the M&C that supposedly was refered to in the e-mails at all?

The thing that I don't understand is where the supposed disclosures of M&Cs are in the first place. Put in another way: if IBM disclosed some SysV M&C, say ABC, in an e-mail, a web site, through source code or whatever, TSG should be able to identify it as such and it therefore should be able to identify the SysV source code that implements ABC.

Putting my question in yet another way: if TSG doesn't know what these IBM programmers where talking about in their e-mails, how are they able to claim thhat some M&C was disclosed at all?

If some particular M&C was disclosed, it is identifiable. Therefore, if a M&C is not identifiabele it is not disclosed. However, I haven't seen this argument a lot. Have I overlooked someting? Would appreciate it if someone could shed some light on this.

[ Reply to This | # ]

Talk about Reaching
Authored by: Anonymous on Friday, December 15 2006 @ 07:44 AM EST
So let me get this straight. They're appealing on the grounds that: 1. In
their opinion the judge screwed up, 2. If they could re-depose some folks they
"MIGHT" come up with some new evidence, and 3. It wouldn't be fair to
take it all away, why don't you give some of the items back?

[ Reply to This | # ]

Heads I win, Tails you lose
Authored by: Anonymous on Friday, December 15 2006 @ 08:24 AM EST
I rather like their argument about redeposing 4 Dynix programmers.

- If the Dynix programmers can identify the version, file and line of the code,
then it supposedly proves that IBM is not prejudiced.

- If the Dynix programmers, can not identify the version, file and line of the
code, then it supposedly proves that SCO couldn't either.

Seeing as SCO thinks the 4 depositions will prove SCO right,
___no_matter_what_is_said_in_them___, why not just skip the depositions, and
just reverse the order? In fact, why not just the skip the whole thing, the
summary judgement motions, the whole trial, and get on with awarding a few
billion $ to SCO...?


Of course the idiocy of SCO's proposal is that it completely ignores the true
deficiency of SCO's vague allegations. The real deficiency, is not that IBM
programmers may or may not know what they did. Nor is the real deficiency that
SCO does or doesn't know what IBM programmers did. The real deficiency is SCO
hasn't exactly decided what it is accusing them off...


Quatermass
IANAL IMHO etc.

P.S.
I think this motion gives the game away about why they have reversed court and
now want the Novell trial to go first. It's because they wanted to use Novell
as an argument against the 2 recent discovery orders in IBM, and then, if they
can dodge these 2 discovery bullets, use their new sandbagged stuff as arguments
against IBM's summary judgement motions.

[ Reply to This | # ]

Now SCO Objects to Judge Wells' November 30th Order too
Authored by: bobn on Friday, December 15 2006 @ 08:24 AM EST
Their justification is that with Novell going first, there's no reason not to take the time to do everything they are requesting.

I thought the dispositve motions wouild still be IBM first - did that get turned around too? If dispositive motions are still happening on time, then SCO is out of time by any standard.

---
IRC: irc://irc.fdfnet.net/groklaw
the groklaw channels in IRC are not affiliated with, and not endorsed by, either GrokLaw.net or PJ.

[ Reply to This | # ]

Put the Delaware=Nevada freeze on IBM-SCO
Authored by: Anonymous on Friday, December 15 2006 @ 08:46 AM EST

No need to rule on this motion at all. Or on any of the SJ motions, If Novell is
going first.

IBM can join Red Hat and Autozone in the deep freeze.

[ Reply to This | # ]

SCO's been saying this all along
Authored by: Prototrm on Friday, December 15 2006 @ 08:57 AM EST
I believe SCO's main claim isn't that IBM gave SCO's Unix code to Linux, but
that IBM gave IBM's own code to Linux in violation of the license agreement
between the two companies. In that light, SCO is claiming they cannot know the
specifics of the source code that IBM gave away, since it was IBM's all along,
and not SCO's.

Yeah, I know, it sounds screwy to me, too, but SCO seems to think that, by
including their (IBM's) own code into AIX and Dynix, IBM has transfered some of
the rights to that code to SCO, despite a clarification on the intent of the
original license to the contrary from AT&T.

If this is indeed the heart of SCO's case, I just wish it would come out in the
open so the judge could give them all a breathalyzer test and throw out their
claims.

---
"Find out just what any people will quietly submit to and you have found out the
exact measure of injustice and wrong which will be imposed upon them."

[ Reply to This | # ]

When did you stop beating your wife?
Authored by: Anonymous on Friday, December 15 2006 @ 09:05 AM EST
"Do they know the file, version and line for the technology items they
disclosed to Linux,..."

I have to hand it to SCO, they never cease to amaze.

[ Reply to This | # ]

Why Didn't SCO do this in July, 2004?
Authored by: sk43 on Friday, December 15 2006 @ 09:41 AM EST
In [205], SCO's Reply Memorandum RE Discovery, SCO told Judge Wells exactly how it was going to trace Methods and Concepts:

First, what discovery is SCO requesting:

"SCO has properly requested all versions of AIX and Dynix/ptx; the names of all principal contributors to AIX and Dynix; and revision information including access to CVMS, all programmer notes, design documents, and white papers."

What will it be used for:

3. The Requested Discovery is Relevant to and Will Aid SCO in Determining Whether IBM Disclosed Contractually-Protected System V "Methods or Concepts."

...

In its March Order, this Court directed IBM to produce, among other things, the identities and precise contributions of Dynix programmers. See 3/3/04 Order at 5. SCO has now attempted to obtain this information from IBM in several ways: by serving an interrogatory, filing a motion to compel, and filing a renewed Motion to Compel (on July 6, 2004). Up to this point, IBM has resisted these efforts and withheld this essential discovery. Accordingly SCO requests that IBM again be ordered to produce materials that will reveal the identities and precise contributions of Dynix programmers.

In the first instance, this information would allow SCO to take depositions of the principal Dynix contributors. These depositions could result in admissions of IBM's reliance on protected SCO material, clearly relevant to IBM's potential contract liability. Programmers and engineers can be deposed regarding the following issues:

  • the identify of Linux contributors;
  • specifics about their own Linux contributions;
  • assistance given to Linux contributors; and
  • whether any protected "methods or concepts" were ever disclosed.

This type of testimony will also assist SCO in identifying other former IBM employees contributing to Linux, who may be valuable witnesses.

Note that SCO states that it will START with the Dynix code and, through depositions of developers, track it through to contributions of protected "methods or concepts" to Linux. In court filing [620] dated May 3, 2005, Todd Shaughnessy explains in great detail how to match up AIX and Dynix code contributions with each developer (par. 34-40). Further, in a letter dated Dec 5, 2005 from Shaughnessy to Normand, Todd makes abundantly clear that IBM expect version, file, and line number for all items, at a time when SCO was in a position to respond without the need to go beyond court ordered deadlines.

As an aside, note that SCO is search for misuse of only System V Methods or Concepts.

[ Reply to This | # ]

  • Note also... - Authored by: Anonymous on Friday, December 15 2006 @ 03:41 PM EST
CVS knows all. SCO knows naught.
Authored by: Anonymous on Friday, December 15 2006 @ 09:52 AM EST
I work with CVS on code.
At the time I know what file I am working on. Two days and more changes later
probably not.

When I check it in the CVS system knows the file, line numbers and version. As a
coder I never pay attention to the line numbers affected by a change or the
actual version number (1.0.4.22, like that means something, not). Who made the
changes, what they were, the file, line number and version. That information is
all logged in the CVS. That is the purpose of the system.

SCO was given all this information. The CVS record is solid. Peoples memories
are not.

[ Reply to This | # ]

Why does IBM always ask for lines of code regarding "methods"?
Authored by: sk43 on Friday, December 15 2006 @ 10:03 AM EST
In [63], Re ply Memorandum in support of motion to compel, IBM gives its reasons:
"There are, as SCO knows, entire publicly available books addressing certain categories of what SCO appears to mean by Unix "methods". See, e.g., Uresh vahalia, Unix Internals: the New Frontiers (1996). The only way for SCO properly to identify any of the methods at issue is for it to disclose the lines of code that implement the method that SCO contends IBM has misappropriated."

[ Reply to This | # ]

Now SCO Objects to Judge Wells' November 30th Order too
Authored by: Anonymous on Friday, December 15 2006 @ 10:26 AM EST
SCO has thought of that and it more or less offers to pay.
Sure, with money that it will otherwise eventually just have to hand over to Novell--nothing to lose...

[ Reply to This | # ]

They must be joking...
Authored by: Anonymous on Friday, December 15 2006 @ 10:47 AM EST
...right?

They must be trying to tickle the judge's funny bone, pull a prank, slide in
some slapstick, all in good fun.

Get it, Judge? <wink> <wink> <nod> <nod>

[ Reply to This | # ]

Fiddling while Rome Burns
Authored by: Anonymous on Friday, December 15 2006 @ 10:53 AM EST
Is Darl "pulling a Nero" . Let it all crash and burn !!

[ Reply to This | # ]

Maybe They Are Setting Up For The Counterclaims
Authored by: TheBlueSkyRanger on Friday, December 15 2006 @ 10:57 AM EST
Hey there!

Maybe they are hoping that, if this line of baloney works, then when IBM starts
hitting them, they can use the logic against them. "We believed we were
wrong, but IBM didn't tell us enough to defend our claims. As such, IBM can't
prove we did anything wrong because, had they given us what we wanted, we would
have been proven right." Makes as much sense as any of their other pretzel
logic.

Dobre utka,
The Blue Sky Ranger

Circular logic is self-validating. Therefore, it is correct.

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Judge Kimball has an Ace up his sleeve...
Authored by: Anonymous on Friday, December 15 2006 @ 11:33 AM EST
Judge Kimball has an Ace up his sleeve.

He can easily rule quickly on Novell's singular motion that Novell has the right

to waive SCO's claims against IBM because it is clearly written into the APA
contract.

All it is is a simple contract interpretation.
There are no disputed facts.

It is an easy rule to make.

It will KILL SCO's claims against IBM. PERIOD.

Of course, IBM's claims against SCO will still be present.

SCO can wriggle all it wants with those.

I wouldn't even care if discovery is reopened in that case since SCO will
completely be in the defensive.

Ha ha ha SCO.
Merry Christmas! Not!

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Same old trick
Authored by: rsmith on Friday, December 15 2006 @ 11:41 AM EST
After the new, newer & re-renewed motions to compel, we get motions for
re-re-re-re-re-consideration.

This is getting really old.

---
Intellectual Property is an oxymoron.

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what a burden Time delay =money sucked from IBM
Authored by: Anonymous on Friday, December 15 2006 @ 12:34 PM EST
I see this as trying to get IBM to settle. We know from here on out SCO will
object to everything. Of course they will eventually lose, but what a waste of
judicial resources and money. Its amazing that to delay is just to file a
motion and we know the court will take a month at least. Likely 3 months just to
say no to SCO. How can justice be served and at the same time of being timely
and efficient. Seems that if time goes by that time lost is justice denied.
How can the 2 operate together?

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SCO missed an exellent discovery request?
Authored by: Anonymous on Friday, December 15 2006 @ 12:37 PM EST
This filing shows a good idea that SCO missed before but realizes now. During
discovery, they should have asked for "Source and destination coordinates
of all Unix code which was added to or influenced Dynix" and "Source
and destination coordinates of all Dynix code which was added to or influenced
Linux". That's a BIG (and probably impossible) request but arguably more
appropriate than "All versions of Dynix forever".

This request would not have given SCO any actual success, but it would have
given them at least a little more factual ammunition. And it would have really
annoyed IBM.

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Objections to Orders
Authored by: jdg on Friday, December 15 2006 @ 12:44 PM EST
If Novell's request for an order awarding Novell the funds from the Microsoft
license is granted, does SCO have to post bond for the amount of the award
before they can 1) object or 2)appeal?

---
SCO is trying to appropriate the "commons"; don't let them [IANAL]

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Wow, that was the funniest filing by SCO so far
Authored by: sirwired on Friday, December 15 2006 @ 12:48 PM EST
"These witnesses, such as [snip], should be asked whether they know the
coordinates in Dynix for the technology items they disclosed to the Linux
community. If they do, that is proof IBM is not prejudiced by any ommission in
the SCO submission. If they do not know these coordinates for disclosures they
made from Dynix, perhaps they could explain how SCO knows or should know that
information but they do not."

Oh my. This would earn an "F" in an undergrad rhetoric class, much
less an actual law school. Where did these guys pick up their law degree? The
back of a matchbook?

Lets rephrase this line of argument:
1) We won't tell you exactly what you "stole".
2) We want to ask you if YOU know exactly what you "stole".
3) If you do know what you "stole", then we don't have to tell you.
4) If you don't know what you "stole", then tell us why we should
know.

How's THAT for circular logic?

Here's a hint SCO: You should know what IBM "stole" because YOU
INITIATED THE SUIT!

Whoops! I guess they forgot that the burden of proof in any legal proceeding is
ON THE PLAINTIFF. While the plaintiff only has to show a perponderance of the
evidence in their favor, this implies you need some evidence to begin with.
This is not exactly a secret only revealed in a footnote of some obscure law
text; this is something they go over in "Introduction to Law" offered
by just about every college in the country, heck they probably make some passing
mention of this in high-school civics class.

I love it. The entire line of argument assumes that IBM is guilty and IBM is
simply being obstinate about admitting its guilt.

To quote an earlier IBM filing "To state this argument is to refute
it."

If I were in Kimball's place, I wouldn't even wait for IBM's reply on this one
before smacking it down.

I also love the bit where SCO states that since there is no longer any
scheduling pressure, they can have even more rounds of hearings and depositions
with no problem, and can't imagine why this would be a burden.

Here's another hint: Maybe it would be burdensome to IBM (and Linux) because SCO
is continuing to smear its good name?

SirWired

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Hah!
Authored by: Anonymous on Friday, December 15 2006 @ 01:32 PM EST
I love that argument: "if they can't find the infringing code, how can
we!?"

If I were so deposed, however, I would say that I can't find it because *THERE
IS NO INFRINGING CODE TO FIND* :-)

That said, I'm sure they could find where each of those things was implemented,
just not what part of it is alleged to infringe upon SCO's so-called rights.

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  • The more obvious - Authored by: Anonymous on Friday, December 15 2006 @ 03:26 PM EST
Now SCO Objects to Judge Wells' November 30th Order too
Authored by: Anonymous on Friday, December 15 2006 @ 02:15 PM EST
IBM's reply should be fascinating reading.

Hopefully, it will arrive with a motion for sanctions against BSF on its heels.

Impugning the ability of both judges and effectively calling one a liar... Even
I'm not so stupid.

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Almost three years...
Authored by: GLJason on Friday, December 15 2006 @ 04:02 PM EST
SCO now wants to use evidence in expert reports that wasn't submitted by the
cutoff in December 2005. Not only that, but they want to use that new
"evidence" that was submitted late in order to reopen discovery by
deposing four IBM programmers. They had two and a half years of discovery to do
all of that. IBM has a right to have their day in court (even if it's just in
front of the judge for summary judgment motions). SCO's campaign of FUD is
still harming IBM's business. SCO had two and a half years of discovery and
ample time to take depositions. It is now simply too late.

This is merely a lame attempt to stave off the pending summary judgment motions.
If this were granted, SCO would immediately seek relief under rule 56 claiming
they needed the new discovery in order to defend against those summary judgment
motions. SCO is looking through a haystack for a needle that isn't there.
They've had the haystack since before the case started. They should have known
where the needle was before they brought the case. Now they don't even know if
a needle is there, and they want four people to help them look for the phantom
needle.

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Too bad we'll never get to see IBM's response
Authored by: Anonymous on Friday, December 15 2006 @ 04:25 PM EST
Because this is so blatantly bad I suspect IBM will finally release the blast
we've all been waiting for.

In which case Groklaw can't post it because it will violate PJ's language
policy...

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For lawyers/paralegals - is there official guidance on a request like this?
Authored by: Anonymous on Friday, December 15 2006 @ 05:51 PM EST
I got the impression that SCO's original request, for Judge Kimball to conduct a
de novo review of Judge Wells' order, was either an actual right of theirs or
something that would only be refused in exceptional circumstances.

Are there any rules, or established practice, as to whether Judge Kimball should
grant this request to do it again?

Or is it entirely his decision?

Also, I wonder if they're just doing this to see if he'll get irritated enough
to say or do something appealable.

First they tell him his colleague hasn't done her job properly. Then they tell
him he hasn't done his job properly either.

I look forward to seeing the tone of his reply, whether he grants their request
or not!

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i think i know where the evidence is!!
Authored by: LaurenceTux on Friday, December 15 2006 @ 07:13 PM EST
sco has lost the briefcase with the evidence (it was stolen by an alien) and it
is now on 2 -4-10-8-18-20-??-1 (next to the DHD)
problems
1 TSCOG does not have a ZPM
2 they can't find the 7th symbol
3 they can't get to a stargate (the SGC has orders to shoot on sight)

(notes for the SG fans yes 8 symbols are required they need to get to a
different galaxy/reality)

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This makes perfect sense.
Authored by: Anonymous on Friday, December 15 2006 @ 10:37 PM EST
At first I was thinking, "What the heck??? Are they that
desperate?"

But now it's all very clear. If your real objective is to spread FUD about
Linux, and it was obvious you were going to lose because you had no case and
never had one, what do you do? You try to break the rules and introduce
"evidence" that do not meet the court rules. Then when you lose, you
say it was because your "evidence" was rejected, not because Linux was
clean.

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Oy!
Authored by: Anonymous on Friday, December 15 2006 @ 11:34 PM EST
This is worse than a bad TV plot... on TV the writers make things openly stupid
to be sure the viewers hate the bad guys and root for the good guys... the idea
being that we all know the bad guys are stupid.

But here we see: Wells says the evidence is insufficient and tosses it. Gives
very detailed explanation of repeated orders, deadlines, and willful failure to
comply.

SCO screams to Kimball. Wells exceeded her role by making dispositive ruling.
We're submitting the expert reports, they'll explain everything. Couldn't be
willful since we really have no evidence.

Kimball agrees with Wells. Not sufficient, not dispositive, no excuse,
excellent analysis, bye bye evidence. Willful because you knew you had no
evidence.

Meanwhile, Wells says the expert reports try to introduce new evidence too late.
If you had evidence you should have submitted by the deadline. Expert reports
limited to allowed evidence.

Now SCO is back saying that Kimball is wrong because he didn't publish a book
detailing why Wells was right, of course its dispositive because it exposes the
claims as bogus, and besides Wells should have read the expert reports that were
submitted after the deadline first because those would explain why no evidence
is really evidence, but now she's throwing out the expert reports too and
ignoring that we submitted thousands of bogus exhibits too, so someone needs to
slap her down, but in the alternative if you'll just forget about a few pesky
deadlines and give us more discovery we're sure we can get IBM to confess and if
they don't, hey, no biggie, you can just order us to give them what's left of
Novell's money and we'll all be happy...????

Even TV writers couldn't get that weird, but SCO thinks Kimball will? I'm
really surprised I don't see the word "wookie" in there... must be in
the redacted part.

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sco, happy as a clam?
Authored by: Anonymous on Saturday, December 16 2006 @ 05:14 AM EST
SCO is dead.
I believe it is SCO's lawyers who would like to suck the last drop of blood out
of this corpse.

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10 Days?
Authored by: elderlycynic on Saturday, December 16 2006 @ 12:25 PM EST
Well, SCO quote the rules as saying that such a motion must be
filed within 10 days. I can only assume that means 10 working
days, because I can't imagine B,S&F being insane enough to file
a motion like this out of time. December 13th is the 10th working
day after November 29th, but the motion is stamped December 14th.

Can anyone with some kind of a clue about this clarify whether
this is in-time, out-of-time or what?

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  • 10 Days? - Authored by: Anonymous on Saturday, December 16 2006 @ 10:55 PM EST
Now SCO Objects to Judge Wells' November 30th Order too
Authored by: Anonymous on Saturday, December 16 2006 @ 01:26 PM EST
SCO already has the info about what programmers added what lines of code....they
have the entire version control system which documents every single change made
to the code.

I guess they never even looked at the AIX box which IBM supplied to them.

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There is no smoking code
Authored by: Anonymous on Sunday, December 17 2006 @ 12:01 PM EST
This just in from the grassy knoll:
  • I made no such disclosure to Linux.
  • I never saw Dynix code. I wrote test scripts.
  • The alleged disclosure I made was not from Dynix or SVRX.
  • The alleged disclosure was an original idea that was never implemented in Dynix.
  • The alleged disclosure was conceptual and I did not reference any implementation in Dynix or SVRX.
  • The alleged disclosure is my recollection of techniques from my reading of {{insert book}}.

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