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| Novell moves to strike SCO's late filing - 2 expert reports |
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Thursday, May 31 2007 @ 03:10 PM EDT
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This just in: SCO just filed yesterday a sealed supplemental declaration, long after the deadline, and here comes Novell's response:- 352 - Novell's Motion to Strike Supplemental Declaration of Mark F. James Attaching Expert Reports and Declarations
- 353 - Memorandum in Support
I don't think Novell was pleased that SCO filed something 60 pages long the day before
a hearing. Novell not only hasn't had a chance to read it properly, it has no chance to respond. It says it had no warning. It is asking the court to strike James' supplemental declaration and all that goes with it. I take this as SCO telegraphing that it was worried it would lose at today's hearing and so threw more evidence in, even late, even oddly, because they don't know what else to do. Novell implies something more deliberative.
Here are the grounds Novell is asking the court to strike it:
Despite the fact that SCO’s opposition materials to Novell’s April 20, 2007 summary judgment motions were due on May 18, 2007, SCO submitted the Supplemental Declaration of Mark F. James today, May 30, 2007, in support of its oppositions to Novell’s motions. The declaration, attaching new evidence in the form of two expert reports, is untimely under the Federal Rules of Civil Procedure, the Local Rules of this Court, and the parties’ agreed-upon briefing schedule for Novell’s motions. Accordingly, it should be stricken.
Once more, here they go. It's the same old, same old. You get delay, no matter what you do. So, call before you leave to attend the hearing. It could be delayed. Or, you may get to see the parties duke it out live in the courtroom. The memorandum fleshes it out a bit, and remember this was written yesterday: The court will hear argument on Novell's four motions for summary judgment tomorrow. The motions have been fully briefed. SCO's opposition materials were due on May 18, 2007, and Novell's reply materials were due on May 25, 2007.
Nevertheless, at the close of business today, May 30, 2007 -- and on the eve of the scheduled hearing -- SCO submitted a Supplemental Declaration of Mark F. James (filed under seal on 5/30/07, see PACER NO. 351) (the "James Declaration") in support of its opposition to Novell's motions. The James Declaration attaches over 60 pages of expert reports from Christine Botosan and Gary Pisano to which Novell has not had any opportunity to respond. SCO provided no warning to Novell that it would be submitting this new evidence on the eve of the hearing, and has not provided any excuse for why the expert reports were not filed along with its May 18th opposition papers. Indeed, SCO did submit conclusory declarations from Drs. Pisano and Botosan with its original opposition papers. SCO's new and belated expert reports should now be stricken as untimely under the Federal Rules of Civil Procedure and the Local Rules of this Court. So, it not only was filed yesterday, on the eve of the hearing, it was filed at the *close* of the day, after normal business hours. But if they thought by doing so that they'd catch Novell's lawyers off guard with no ability to respond, they were mistaken. Novell cites case law. I'm just guessing here, but they probably have long ago researched all the dirty tricks that can be imagined, just for a rainy day like this. The federal rule in question is Rule 6(b), which says that you have to ask for permission to file late and present a reasonable excuse. "We wanted to sandbag Novell" isn't going to be sufficient. The local rule is DUCivR. 5-1(c) which requires all filings be made at least 2 days before any scheduled hearing.
Here's the full Pacer entry:
05/30/2007 - 351 - NOTICE OF CONVENTIONAL FILING of Supplemental Declaration
of Mark F. James filed by Counter Defendant SCO Group, Plaintiff SCO
Group re [308] Sealed Document (James, Mark) (Entered: 05/30/2007)
05/30/2007 - 352 - MOTION to Strike Supplemental Declaration of Mark F.
James Attaching Expert Reports and Declarations filed by Defendant
Novell, Inc.. Motions referred to Brooke C. Wells.(Sneddon, Heather)
(Entered: 05/30/2007)
05/30/2007 - 353 - MEMORANDUM in Support re 352 MOTION to Strike
Supplemental Declaration of Mark F. James Attaching Expert Reports and
Declarations filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit
A - Leviton v. Nicor)(Sneddon, Heather) (Entered: 05/30/2007)
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| Authored by: Anonymous on Thursday, May 31 2007 @ 03:36 PM EDT |
broken link on that second PDF
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 31 2007 @ 03:54 PM EDT |
Could/should Novell have requested sanctions be applied to SCO due to its
seemingly un-timely submissions and ambush-type tactics?[ Reply to This | # ]
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| Authored by: AcousticZen on Thursday, May 31 2007 @ 04:00 PM EDT |
You know, it will be satisfying to see SCO lose, and lose big, just because they
are SO wrong about their case. BUT, the arrogance of their attornies ups this
feeling considerably.
It is indefensible for a "professional" to carry out this type of
behaviour. I hope they are sanctioned, and sacntioned harshly.
AZ[ Reply to This | # ]
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| Authored by: ThrPilgrim on Thursday, May 31 2007 @ 04:00 PM EDT |
| Dont forget to yuse HTML and make links clickable [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 31 2007 @ 04:12 PM EDT |
I really wonder if the SCO legal team are losing their grip on reality. I don't
know how they could have thought this was a good idea. It's not like a million
people aren't watching. And with that, I can't imagine how they could possibly
have thought that they would be able to get something like this through. I can
only imagine it's either desperation or trying to set up an appeal. But how
could this help an appeal? Breaking rules is breaking rules, isn't it? It's not
like there could be any valid reason that they didn't ask for permission, or, if
Novell is to be believed, let Novell know about this? Could it be that they are
in so deep that if they lose the case they'll be facing bankruptcy too?
[ Reply to This | # ]
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| Authored by: Wardo on Thursday, May 31 2007 @ 04:52 PM EDT |
... that expert reports can be filed as late as required by their own standards.
Who needs deadlines to put in final reports when you have a preliminary (AKA
placeholder report) in by the so-called deadline?
The belated expert reports in the IBM case laid the groundwork for this
episode.
Er, sacrasm tags for the sarcasm impared.
Wardo
---
caveat lector...
Wardo = new user(lawyer = FALSE,badTypist = TRUE,badSpeller = TRUE);[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 31 2007 @ 04:54 PM EDT |
Surely the judge cannot fail to note that since the cose of discovery SCO has
done nothing but play games with the rules and the deadlines. Their arguments
have nothing even to do with their so-called evidence, they are all aimed at the
rules, trying to find a crack they can slip a little hearsay into.
Its the same thing they have been doing all along, but now that they dont have
discovery to give them an excuse, its just become far more obvious. Although
the last couple weeks have seen an increase in the arrogance, as they spew
blatant satire like "we hired a lawyer/expert witness who opines that plain
language and testimony of active participants of a contract should be ignored in
favor of speculation by un-involved third parties".
They don't care that its obvious they have no case, they just want the judge to
grant them a little longer to try and cost IBM and Novell so much they'll just
give up.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 31 2007 @ 05:04 PM EDT |
I think I saw 14:00 mentioned somewhere, but what's that in GMT/UTC?
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| Authored by: Anonymous on Thursday, May 31 2007 @ 05:06 PM EDT |
I'm kinda surprised: how did Novell even manage to reply to this? Wouldn't
they have only had a few hours this morning before the hearing?
And on that note, what are the standards for sanctions here? That seems pretty
blatantly bad to do that RIGHT before a hearing. Were I the judge, I'd probably
toss them in jail for contempt of court, then grant a default judgment against
them because their lawyers were all in jail :-) Or as a sanction or whatever; I
don't claim to know what is or isn't allowed, not being a lawyer or anything
like that.
I mean, hey, there's only money at stake here, so if that's unfair to SCO, they
can just sue their lawyers to get it back :-) Now that is a lawsuit I wouldn't
mind seeing drag on for years, with both sides trying to make the case that they
knew even less than the other party. Would be *really* entertaining, especially
if SCO were represented by the McBride who is a lawyer (it's not Darl, but I
don't remember his name) ...[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 31 2007 @ 05:19 PM EDT |
service by US Mail to the B.S.F office in Miami
... hmm they should get that sometime early next week.
[ Reply to This | # ]
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- CM/ECF - Authored by: Anonymous on Thursday, May 31 2007 @ 05:23 PM EDT
- best line - Authored by: tredman on Thursday, May 31 2007 @ 05:39 PM EDT
- best line - Authored by: Anonymous on Thursday, May 31 2007 @ 05:46 PM EDT
- best line - Authored by: darkonc on Sunday, June 03 2007 @ 01:31 AM EDT
- Too small - Authored by: Anonymous on Monday, June 04 2007 @ 12:58 PM EDT
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| Authored by: Anonymous on Thursday, May 31 2007 @ 05:20 PM EDT |
Well, if the hearing is going on, we should be 1 hour and 20 minutes into it.
If it were postponed, we should hear soon. Hopefully someone could make it to
tell us.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 31 2007 @ 05:37 PM EDT |
| What more can they do with SCO's tactics? [ Reply to This | # ]
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| Authored by: sumzero on Thursday, May 31 2007 @ 06:57 PM EDT |
i am betting that judge k struck scog's latest filing to start the proceedings,
followed by scog requesting a delay because their prepared testimony makes
reference to the now-stricken evidence.
sum.zero
---
48. The best book on programming for the layman is "alice in wonderland"; but
that's because it's the best book on anything for the layman.
alan j perlis[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 31 2007 @ 08:31 PM EDT |
After the magistrate judge strikes the SCO filing, SCO requests a de novo review
of the magistrate's order. Followed, of course, by a de novo review of the de
novo review.
On second thought, this is really more Monty Python territory.
rhb[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, May 31 2007 @ 08:56 PM EDT |
| Ha!
Perhaps tSCOg will argue that based on past performance, Novell should
have anticipated tSCOg to file a late filing. Indeed did anticipate
tSCOg's late filing. Hence Novell implicitly agreed to allow tSCOg to file
late.
Moreover, Novell should be sanctioned for asking the court to
strike tSCOg's filing after implicitly agreeing to allow tSCOg's
filing.
I think I hurt myself.
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| Authored by: SilverWave on Friday, June 01 2007 @ 01:13 AM EDT |
No I didn't think so....
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Linus
The bulk of all patents are [bad]...
Spending time reading them is stupid...
Moglen
I can change the rules...
The coupons have no expiration date..[ Reply to This | # ]
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| Authored by: anesq on Friday, June 01 2007 @ 11:46 AM EDT |
| Nah. 12 hours is plenty of time to research and draft a two page reply
memorandum, even with case cites. Some poor associate(s) didn't get much sleep
last night. [ Reply to This | # ]
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