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SCO and IBM stipulate to another change in the schedule
Thursday, July 26 2007 @ 11:06 PM EDT

Well, this is different. Remember when IBM asked for a 30-day extension in the pretrial schedule deadlines, or alternatively stipulated that after the Novell trial would be fine? They couldn't get SCO to agree to dates, remember? And then SCO opposed and still didn't offer any firm dates? And then the judge approved IBM's motion, giving them the 30 days, which would plunk SCO smack dab in the middle of the trial in Novell? Well, SCO must have really begged IBM to give them more time, and I gather IBM said OK but you have to write and file the stipulation. And so, here we have it, a stipulation [PDF] written by SCO's side, changing the schedule that was just ordered by the judge. Instead of deadlines in August and September, the first one now will be in October and judging from this schedule, the trial in IBM can't happen until 2008 now.

They are a sketch, these SCO folk. IBM did not have to say yes, but knowing SCO, they probably figured if they refused, SCO would file a motion to reconsider the previous motion's order and simultaneously file an appeal and heaven only knows what else, and we're all sick of that. Mostly IBM is, and it's probably easier to just say fine, we stipulate. They didn't care anyway, as long as it was at least 30 days.

Someday we'll find out what this was all about. It wasn't just about being ornery, I don't think. It smells more like some strategy playing out, but we don't have enough information yet to figure out what they were each looking for. In any case, IBM won, that's for sure, despite SCO's spinning opening line, which kind of comes across to me like SCO is thumbing its nose at the judge.

My thanks to the wonderful Steve Martin for already providing the text for us.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address]
[phone]
[fax]

David Boies (admitted pro hac vice)
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Devan V. Padmanabhan (admitted pro hac vice)
DORSEY & WHITNEY LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stuart Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for Plaintiff, The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.		 STIPULATION RE EXTENSION
OF DEADLINES

Case No. 2:03CV0294DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

(1)

As indicated in the memoranda regarding IBM's recent Motion for Extension of Deadlines (dated July 18, 2007), considering SCO's request to avoid a conflict between the trial in SCO v. Novell and the pretrial schedule in this case, the parties hereby stipulate to the following pretrial schedule in this case:

Rule 26(a)(3) Disclosures shall be due on October 22, 2007;

Motions in Limine regarding expert testimony shall be due on November 5, 2007;

Objections and counter-designations to Rule 26(a)(3) Disclosures shall be due on November 13, 2007;

All remaining Motions in Limine shall be due on November 20, 2007;

The deadline for exchanging jury instructions shall be December 4, 2007;

The Final Pretrial Order shall be due 45 days before trial;

The Special Attorney Conference and Settlement Conference shall be held 60 days before trial; and

The Court will send to the parties a Trial Order setting further deadlines for the case approximately six weeks prior to trial.

The parties submit herewith a proposed order confirming these deadlines.

(2)

DATED this 26th day of July, 2007.

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

DORSEY & WHITNEY LLP
Devan V. Padmanabhan

Counsel for Plaintiff, The SCO Group, Inc.

By: /s/ Edward Normand

DATED this 26th day of July, 2007.

SNELL & WILMER LLP
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Counsel for Defendant, International Business
Machines Corporation.

By: /s/ Todd M. Shaughnessy
(e-filed with authorization from counsel)

2 (3)

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing was served on Defendant/Counterclaim-Plaintiff, International Business Machines Corporation, on this 26th day of July, 2007, via CM/ECF to the following:

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

/s/ Edward Normand

3 (4)

  


SCO and IBM stipulate to another change in the schedule | 246 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off-topic, anyone?
Authored by: perpetualLurker on Thursday, July 26 2007 @ 11:22 PM EDT

And please remember clickies....


................pL.....................


---
"Oooh, a touch! The cut is not as deep as a well or wide as a church door but it
is enough, it will serve. Ask for me tomorrow and you shall find me a grave man

[ Reply to This | # ]

Corrections Here, please....
Authored by: perpetualLurker on Thursday, July 26 2007 @ 11:24 PM EDT


Describe it in the title, please, although I saw nothing obvious.......


...............pL.................

---
"Oooh, a touch! The cut is not as deep as a well or wide as a church door but it
is enough, it will serve. Ask for me tomorrow and you shall find me a grave man

[ Reply to This | # ]

SCO and IBM stipulate to another change in the schedule
Authored by: Anonymous on Thursday, July 26 2007 @ 11:36 PM EDT
So, does Judge Kimball have to accept the stipulation and new schedule? Seems
to me like it's his court, but then I'm no legal eagle.

...D

[ Reply to This | # ]

Negotiation
Authored by: pogson on Thursday, July 26 2007 @ 11:36 PM EDT
PJ wrote:
It smells more like some strategy playing out, but we don't have enough information yet to figure out what they were each looking for.

Could it be that IBM figure that Novell will win in a big way and negotiation will suddenly become easier? SCO simply want a delay. Both get a little respite with this.

---
http://pogson.6k.ca/homepage/, my homepage, an eclectic survey of topics: berries, mushrooms, teaching in N. Canada, Linux, firearms and hunting...

[ Reply to This | # ]

I just had a nightmare
Authored by: Anonymous on Friday, July 27 2007 @ 04:11 AM EDT
Microsoft buys Novell in September. SCO and Novell settle out of court on terms
satisfactory to Microsoft. Microsoft ends up owning Unix. The IBM case just
got a lot more complicated. In that regard it would have been better if IBM
hadn't given SCO any extra time.

[ Reply to This | # ]

Strategy
Authored by: Anonymous on Friday, July 27 2007 @ 07:04 AM EDT
Here's one thing: Because SCO wrote it, they are no longer in a position to
whine about schedule, and if they fail to meet any of the dates, even if Novell
takes much longer than they planned, they can't possibly have an excuse that
could carry any weight at all.

[ Reply to This | # ]

  • Strategy - Authored by: Anonymous on Friday, July 27 2007 @ 07:27 AM EDT
    • Strategy - Authored by: PJ on Friday, July 27 2007 @ 04:45 PM EDT
      • Strategy - Authored by: Anonymous on Friday, July 27 2007 @ 08:00 PM EDT
Strategy playing out?
Authored by: rsteinmetz70112 on Friday, July 27 2007 @ 08:40 AM EDT
To me it looks more like BSF is an organization under tremendous stress. They
seem struggling to meet their obligations in this case. That indicates, to me,
that they are unable or unwilling to provide adequate resources to keep up with
the intensity of this case.

As you say we'll probably know someday.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Dumb Question
Authored by: Anonymous on Friday, July 27 2007 @ 10:52 AM EDT
How much money is this trial costing the taxpayer, if any?

[ Reply to This | # ]

stupid question - SCO and IBM stipulate to another change in the schedule
Authored by: Anonymous on Friday, July 27 2007 @ 10:58 AM EDT
What if IBM didn't agree to this stipulation, but SCO wrote and submitted it as
if IBM had?

[ Reply to This | # ]

Daubert Hearing
Authored by: SpaceLifeForm on Friday, July 27 2007 @ 02:02 PM EDT
Hmmm.


---

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

[ Reply to This | # ]

Thumbing nose at judge
Authored by: Anonymous on Friday, July 27 2007 @ 03:31 PM EDT
My theory about the strategy is that SCO is trying to trick Judge Kimball into
reacting in some stupid way that can be appealed. There is a precedent, of
course: Judge Thomas Penfield Jackson convicted Microsoft and then gave an
interview to the NY Times. Microsoft appealed based on some of those things.
The conviction was upheld but the sentence (to break Microsoft into two
companies) was overturned. Microsoft is still in one piece today and doing the
dirty things it did before, but is being a bit sneakier about it. To my eyes,
SCO is looking for the same.

[ Reply to This | # ]

Two More Strategy Theories for the Discussion
Authored by: sproggit on Friday, July 27 2007 @ 04:53 PM EDT
I'd certainly agree with PJ and lots of other folk posting when they say that
there is a strategy playing out with this delay.

From a SCO perspective I'd offer two possible pieces to this puzzle.

The first is that the BSF and SCO deal capped fees through to a certain point in
legal proceedings (I believe it might have been appeal). Obviously BSF will be
keeping a close tab on the costs they are running up against payments received,
but those funds are not limitless. Adding more legal counsel and more paralegals
and other helpers to this case is just going to burn through the cash more
quickly. If this spins out a little longer, there is always the hope that SCO
may file for bankruptcy, in which case BSF are off the hook. So, if this wacky
little notion of mine has any credence, it's actually in BSFs favour to keep
this moving relatively slowly, providing the speed does not burn through all
that cash reserve before trial. A difficult juggling act, perhaps.

Secondly, and we have no way of knowing how likely this is, would be the Conrad
Black appeal. We haven't really discussed the Black case in depth here on
Groklaw, but we do know that he was being defended by Boies against multiple
cases of financial wrong-doing when he was at the helm of (I think it was)
Hollinger International. Obviously that jury recently returned their verdict and
found Black guilty, not on all charges, but on sufficient to result in a prison
term of something like 35 years. Now Black is also a wealthy man - a very
wealthy man with a lot of influence. I am sure that he would be keen for BSF to
have their very best people overturn this verdict on appeal.

So it's possible - I have no way of knowing if this is likely or not - for BSF
to be splitting some of their top people across two very high level cases. We do
know that they are a large law firm with multiple offices across the US, but we
may not have such a clear picture of their current case load and how those cases
are distributed across their top lawyers. We do know that Boies is famous -
infamous even - for being unable to say know when asked to take on a case
(particularly if it is a challenging one). One might say that he has eyes larger
than his legal stomach.

So another possibility is that BSF as a law firm are at workload capacity. Given
the fact that this case has now been running for 3 years, any new lawyer
admitted would have to come up to speed pretty quickly at a time when things are
getting quite critical for SCO. Yes, we've seen Stuart Singer come in and argue
very convincingly and he's a recent addition to the public-facing team, but has
PJ has pointed out, he has been undermined by the facts which have run against
him.


I suspect we'll never fully understand the reasons for this delay, unless
someone who knows writes their memoirs. After all, here I am speculating that
the delay was suggest entirely by SCO. They wrote it up I believe, which kinda
hints it was their idea, but do we know that for sure?

Ah well, it's almost fun to speculate.

[ Reply to This | # ]

KISS
Authored by: Anonymous on Friday, July 27 2007 @ 07:13 PM EDT
Keep It Simple Stupid - why do all the prep work for the IBM case when The
Novell case will radically change the landscape. BS&F aren't going to get
much more money out of SCO so why work for free. The IBM folks are busy enough
to not need the aditional billing. IBM will keep them working taking SCO apart
bit by tiny bit.

;-)

[ Reply to This | # ]

Special Attorney and Settlement Conferences?
Authored by: Anonymous on Friday, July 27 2007 @ 09:10 PM EDT
What are these?

[ Reply to This | # ]

Newspick Comments
Authored by: Anonymous on Friday, July 27 2007 @ 09:30 PM EDT
;-)

[ Reply to This | # ]

what is the position with judgements taken under advisement?
Authored by: Anonymous on Saturday, July 28 2007 @ 06:25 AM EDT
That may be an incorrect way of phrasing it, but it seems to me that there are
several important issues which have already come before a judge, and for which
judgment has not yet been handed down. In particular there were the various SJ
motions.

I've been waiting for news on that front, but everything seems to have gone
quiet. What is happening? Can the judge simply keep his own counsel and *not*
hand down a judgment, allowing events to overtake it instead?

It would be very useful if Groklaw had a link to 'judgments due and overdue' or
some such.

[ Reply to This | # ]

Can a Judge request help from other Judges?
Authored by: Anonymous on Saturday, July 28 2007 @ 04:55 PM EDT
I am sure that there is no real need for help here, but with all the SCO
requests for review, I am wondering if a Judge can ask other Judges to review
something. And if so, can they state it in their response.

What I am thinking is that if the Judge Kimball finds that SCO should pay Novell
now, and decides another judgment or 2 against SCO, then this case is over, and
SCO is over. But an appeal is inevitable. Also he would be destroying a
company, something I am sure he does not take lightly. Hence the thought of
trying to talk this over with other Judges.

I am thinking about talking it over in public, that is including the thoughts of
other Judges in his responses.

Bill

[ Reply to This | # ]

Is the Red Hat judge asleep?
Authored by: cerebus on Saturday, July 28 2007 @ 08:52 PM EDT
When are updates to the Red Hat judge due? I seem to recall that even if there
was a one week delay, that case would be taken off the stay and proceeded with.

It will be interesting to watch spin on this.

[ Reply to This | # ]
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