UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
LAS VEGAS, NEVADA
|
THE SCO GROUP, INC.,
Plaintiffs,
vs.
AUTOZONE, INC.,
Defendants.
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Docket No. 2:04-CV-0237-RCJ-GWF
Las Vegas, Nevada
September 22, 2008
9:19 p.m. |
STATUS CONFERENCE
THE HONORABLE ROBERT C. JONES PRESIDING
JUDGE OF THE UNITED STATES DISTRICT COURT
COURT RECORDER:
ARACELI BARENG
U.S. District Court
Proceedings recorded by electronic sound recording, transcript
produced by transcription service.
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APPEARANCES:
| FOR THE PLAINTIFFS: |
For The SCO Group, Inc.:
RICHARD J. POCKER, Esq.
Boies, Schiller, Flexner
[address]
[email address] |
| FOR THE DEFENDANTS: |
For AutoZone, Inc.:
LAURA E. BIELINSKI, Esq.
Brownstein Hyatt Farber & Schreck
[address]
[email address] |
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| LAS VEGAS, NEVADA |
MONDAY, SEPTEMBER 22, 2008 |
PROCEEDINGS BEGAN AT 9:19:30 A.M.
THE COURT: SCO versus AutoZone. S-C-O. Right.
Good morning.
MR. POCKER: Good morning, Your Honor.
THE COURT: Appearances, please.
MR. POCKER: Richard Pocker of Boies, Schiller and Flexner
on behalf of the plaintiffs in this matter, and with me is Ryan
Tibbits, the general counsel for the client, plaintiff SCO.
MS. BIELINSKI: Good morning, Your Honor. Laura Bielinski,
with Brownstein Hyatt Farber Schreck. We're local counsel for
AutoZone.
THE COURT: Thank you.
We have had some movement in the case, so what can I do then, or
what should I do to close out our proceeding?
MR. POCKER: Well, Your Honor, if the Court is apprized of
the status report we submitted last Thursday, as it is now, we yet
do not have a final judgment in the Novell litigation --
THE COURT: Mm-hmm.
MR. POCKER: -- up in the District of Utah.
THE COURT: Now in summary, of course, we have one back in
New Jersey that's stayed -- still stayed, or no?
MR. POCKER: In Delaware, there's one stayed -- the
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IBM --
THE COURT: Delaware.
MR. POCKER: -- litigation is stayed. And both of those
are now stayed, in addition --
THE COURT: But the main one that was going forward in
Utah, which was Novell?
MR. POCKER: Yes, sir.
THE COURT: In that one, give me the summary on the record
here.
MR. POCKER: Okay. Where that stands right now, Your
Honor, is that the Court had ruled -- made several rulings on
summary judgment back in 2007, then held a trial in April of this
year with respect to some of the remaining claims and the damages
amounts, so --
THE COURT: And basically it was Novell did not transfer,
still held --
MR. POCKER: They -- it --
THE COURT: -- the Linux -- the --
MR. POCKER: -- well, the -- with respect to the copyright
issues, that was decided adversely to SCO.
THE COURT: Mm-hmm.
MR. POCKER: And that will -- that was resolved in a
summary judgment and we'll be appealing that once we get a final
judgment. And then as to the issues regarding the Sun and Microsoft
licenses, there was a claim for $30 million
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dollars in licence fees that --
THE COURT: By SCO?
MR. POCKER: By -- by Novell --
THE COURT: Mm-hmm.
MR. POCKER: -- to retrieve -- to get that back from SCO.
Ultimately the Judge ruled that it was $2 million some hundred
thousand dollars instead --
THE COURT: Mm-hmm.
MR. POCKER: -- and that -- in the course of making those
rulings, the Court also issued additional findings which will be
part of this final judgment once it's entered.
Novell, in that litigation, has raised what they consider to be
bars to the issuance of a final judgment. One of them is based on
the issue of whether there will be a constructive trust imposed
upon SCO's assets to protect the judgment, and we believe that's
been resolved through some tracing and a stipulation, and in all
likelihood the bankruptcy judge will just adopt that, if he hasn't
done so already.
The other issue had to do with some of the claims that SCO made
in the Novell case were stayed, pending arbitration or based upon
an arbitration clause --
THE COURT: Mm-hmm.
MR. POCKER: -- those were main stayed and Novell is
taking the position that because of those stayed claims, final
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judgment can't yet be entered up in Utah. We've taken a contrary
position, have offered to dismiss those. In any event, in a
nutshell, we're close to judgment up there, final judgment, and at
that point in time our client will appeal that judgment.
We think it's important in the sense that the issues resolved
with respect to the copyright ownership for the pre-1996 period are
an issue that impacts this litigation here, and a good number of
the claims. And as a result, rather than to duplicate effort and to
run into massive judicial inefficiencies, it's our position that
perhaps the Court should -- or, the Court definitely should
continue the stay in effect while we labor through that final
judgment and then the appeal.
THE COURT: Why shouldn't I lift it now and let you
proceed? I appreciate that there's still appeals, or there may be
appeals pending, but why shouldn't I lift it now and require you to
proceed here, based upon those rulings?
MR. POCKER: Well, Your Honor, I believe that -- it's an
efficiency argument, essentially. We believe that there are very
strong arguments with respect to the summary judgment rulings
especially, that the Court erred in granting summary judgment on
those copyright issues. If the Tenth Circuit agrees, then this case
down here will be a lot
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larger and more complex than a truncated version of this case,
if the Court were to move forward at this time, with just the main
claims that are not impacted by what happened to Novell.
THE COURT: Mm-hmm.
MR. POCKER: And there are questions of --
THE COURT: Let me ask opposing counsel, do you see any
reason why I shouldn't lift the stay?
MS. BIELINSKI: Your Honor, we would submit that to the
Court's discretion.
THE COURT: Mm-hmm.
MS. BIELINSKI: I don't see any reason why --
THE COURT: Because you're talking about, Mr. Pocker,
several years hence, right?
MR. POCKER: It could be. I --
THE COURT: In the meantime this is an '04 case.
MR. POCKER: It could be 18 months.
THE COURT: Mm-hmm.
MR. POCKER: Maybe two years.
THE COURT: I'm going to lift the stay. I'm going to lift
it effective the end of this year, and require you to proceed in
this litigation here.
So I'll let you -- you know, that's enough time -- maybe not
enough time, but enough time to get yourself on pretty solid
footing, short of the appeals in that other
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proceeding, and then I'm going to require you to go here.
If you'll -- if you claim -- of course, you -- you may assert
additionally that the Court there was in error, but seek a judgment
nevertheless, alternatively, and probably we're going to be able to
resolve most of that, I assume, by way of summary judgment. And
then of course if it turns out that the Court there was wrong,
we'll have to redo, no doubt about it. But I think I've got to get
this case off the dime and move it towards conclusion.
MR. POCKER: Well, Your Honor, there are limited issues as
a compromise that we could proceed with --
THE COURT: Mm-hmm.
MR. POCKER: -- with respect to the open server issues
that don't impact those issues.
THE COURT: Mm-hmm.
MR. POCKER: We could have a -- if the Court were willing
to have, say, a 180 day period in which we could engage in motion
practice with respect to those claims, I believe that would move
this case forward while still allowing for a period of time in
which the results of Novell could be clarified and we'd avoid a lot
of duplication in the litigation down here.
THE COURT: I'm going to lift the stay, end of this year,
entirely on the case, and require then that there be discovery
deadlines and motion deadlines, dispositive motion
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deadlines and ultimately a trial setting as well. I think that
will move the case.
MR. POCKER: So, Your Honor, it's effective January
1st, then --
THE COURT: Right.
MR. POCKER: -- the stay is lifted? And at that point in
time, you wish us to submit the discovery plan, scheduling order,
and --
THE COURT: I do
MR. POCKER: Alright.
THE COURT: And we'll have deadlines for that, and
dispositive motion and of course we'll set a trial date as well. It
will be out there. It doesn't mean you can't continue it, but it
will be out there as a deadline for you.
MR. POCKER: Alright. Thank you, Your Honor.
THE COURT: Okay. Thank you so much
MS. BIELINSKI: Thank you, Your Honor.
PROCEEDINGS CONCLUDED AT 9:26:35 A.M.
* * * * * * *
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CERTIFICATION
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TRANSCRIBER
10/29/08
DATE
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