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| July 21st Letter to the Bankruptcy Judge From IBM |
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Monday, August 10 2009 @ 01:18 PM EDT
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A July 21st letter to the judge from IBM has just shown up in the docket:
08/07/2009 - 894 - Letter dated July 21, 2009 from Richard Levin, Esq. to the Honorable Kevin Gross Filed by Cravath, Swaine & Moore LLP. (TAS) (Entered: 08/10/2009)
08/09/2009 893 BNC Certificate of Mailing. (related document(s) 892 ) Service Date 08/09/2009. (Admin.) (Entered: 08/10/2009)
This is the famous letter referenced by the judge in his responsive order, where IBM tells the judge all the difficulties it was having with SCO and discovery. In it IBM tells the judge that SCO agreed that there should be no mini-trial of the external SCO litigations in bankruptcy hearing. But you know how well they stuck to that. Not so much. And interestingly, there is a list of witnesses. And when you read the list, ask yourself, was it factually true what SCO's lawyer said at the hearing that their witnesses cut and ran off when they were subpoenaed? I see only one name that didn't show up, when I compare the two lists, William Broderick.
At the hearing, Spector said this:
SPECTOR: ... We had other witnesses. They didn't show up. I won't even go into the side story about that. I got subpoenas and they disappeared. And so things had to change. He is the master of whine. But was that true?
Witnesses? The list of witnesses in the IBM letter, as of the July 21st letter are the following six: Darl McBride, Ryan Tibbitts, Willaim Broderick, John Hunsaker, Ken Neilson, and Rene Beltran. Perhaps Mr. Spector means these folks who were subpoenaed by IBM?
Rene Beltran is on the list, but he didn't run. IBM had also subpoenaed the following: Space and Naval Warfare Systems Center Norfolk and Chad Kemp. But I don't think they were SCO witnesses, but rather rebuttal witnesses if SCO called David Dickerson, the CACI contractor who had said how the military can't live without OpenServer. He was not subpoenaed, but SCO didn't list him as a witness either. The only other subpoena we know about is the one to unXis, and the newly surfaced letter indicates that it was IBM that called Norris to the hearing.
So where are all the witnesses that ran away after getting a subpoena? Yoo hoo. Mr. Broderick. Judge Kevin Gross ordered that both Ryan Tibbitts and William Broderick had to submit to depositions. And I see no mention of him at the hearing. So, by my simple calculation, he seems to be the missing link, if there actually is any truth in what Mr. Spector told the judge. Anyone see it differently?
Mr. Broderick is not unknown to us, of course. In SCO's Reponse to the three motions to convert, SCO lists him in a long narrative about how the appeal is so sure to go their righteous way because of the "strength" of SCO's claims:
Messrs. Frankenberg, Chatlos, Thompson, Mattingly, Mohan, Wilt, Michels, and Sabbath, and Ms. Madsen all testified that Article 4.16(b) was not intended to apply to Software and Sublicensing Agreements.80 William Broderick and John Maciaszek, executives in Novell's UNIX licensing group, specifically testified that Novell used the term "SVRX Licenses" to refer to other agreements that Novell and AT&T used in licensing individual SVRX products under the terms of the Software and Sublicensing Agreements.
Interesting that he didn't show up at the hearing, but couldn't it just be that he had nothing to say after the judge accepted IBM's suggestion, which IBM said SCO agreed to, that there should be no testimony about the alleged "strength" of SCO's claims in bankruptcy court?
Logical. In which case, now how much truth is left?
We can't know for sure, as there could be other witnesses that SCO had in mind that never reached paper, but it looks very odd on its face to me, I must say. Well, in the heat of a hearing, especially one as long and significant as this one, people can misspeak. So let's be charitable. Then an alternative understanding of his words might be that Mr. Broderick, after his deposition, decided he'd prefer not to show up after all, all things considered. Personally, I doubt that. He wasn't afraid to testify at the Novell trial, after all. So perhaps another interpretation might be that Mr. Spector wanted to paint IBM as a bully, and he saw an opportunity, even though it wasn't precisely true. Did IBM know it wasn't so? Of course.
Ryan Tibbitts showed up, despite being deposed. Here's a sample of the quality of his testimony, from the audio purchased from the court. IBM's David Marriott asked him about his declaration, and asks him if it's correct that Tibbitts describes SCO's claims against IBM, but not the counterclaims, and Tibbitts says it is correct. That is what he did. But, he is asked, doesn't IBM have a number of counterclaims? Tibbitts' answer:
Well, I know at one point they had a number of counterclaims and they dropped many of those. And I don't know if they have many claims left, or one or two, sorry.
Sorry, indeed. Marriott of course pointed out that when describing the case to the court, presumably in an effort to demonstrate the alleged potency of SCO's claims, Tibbitts neglected to mention the counterclaims at all, which number six. Friends, believe it or not, SCOfolk at the hearing tried to tell the judge that IBM's counterclaims would result in no damages at all, or maybe just attorneys' fees. Here's what Spector tried to say:
IBM has a claim they say that you've heard testimony and it's been valued by their own people at zero. They don't have -- all it is is an attorney's fees claim is all it is. Can you believe it? Of course, Mr. Marriott leaped to his feet: MARRIOTT: Your Honor, I would object to that characterization of the value of the claim by their own people. That's absolutely untrue, and it indicates there's no evidence in the record, but have their own people, whatever that means value the plan. JUDGE GROSS: Yes, I -- SPECTOR: I thought there was evidence about an expert report saying there were no damages except for the attorney's fees.
MARRIOTT: And expert report in which Mr. Tibbitts said he didn't really have a great recollection about what it said. That's not the same thing as testimony as to what it says. And I'm happy to make a proffer as to what it says if and when the Court wishes to hear that. SPECTOR: Well that's why I was ... I thought there was something in the record about it. I'm trying not to go out of the record. JUDGE GROSS: I don't think there was anything. I know there's nothing in the record on that issue.
So first Tibbitts gives his interpretation, and you just saw his "interpretation" of the number of IBM's counterclaims, and then Spector tries to use it in summation as if it were something IBM's own side had acknowledged. Marriott, as you see, was not afraid to call a spade a spade. "That's absolutely untrue." And he makes an offer to introduce a proffer, showing the court what the expert report really says, as opposed to the Tibbitts version of what he recollects, or says he recollects, and offer which is not, I notice, accepted. Because it's "absolutely untrue" that there are no damages. The Lanham Act damages alone plus the GPL violations... well, it's potentially massive, I'd say.
This gives you a taste of the day's testimony from those who did show up.
Here's a general question I'll throw out there. Is it actually winning, if the only way to win in a court of law is to say things that are absolutely untrue?
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| Authored by: jesse on Monday, August 10 2009 @ 01:29 PM EDT |
| Thank you [ Reply to This | # ]
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| Authored by: jesse on Monday, August 10 2009 @ 01:30 PM EDT |
| Thank you [ Reply to This | # ]
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| Authored by: jesse on Monday, August 10 2009 @ 01:31 PM EDT |
| Thank you, and please indicate the news pick in the subject [ Reply to This | # ]
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| Authored by: Lazarus on Monday, August 10 2009 @ 01:54 PM EDT |
Unpossible!
---
Any incoherancies on my part should be blamed on my use of Vicodin.
Unfortunately, it's for my back, so I'm not quite a House clone.[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Monday, August 10 2009 @ 02:54 PM EDT |
It seems odd that SCO wouldn't send a letter to the Judge protesting IBM's
failure to provide discovery, which is what they said in the hearing.
Another possibility is that it came up on the teleconference July 22, and was
never written down. Maybe SCO wanted to depose the Sam Palmisano again perhaps
and got shot down.
I'd love a transcript of that call.
---
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 | # ]
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| Authored by: tknarr on Monday, August 10 2009 @ 03:52 PM EDT |
PJ asked: Here's a general question I'll throw out there. Is it actually
winning, if the only way to win in a court of law is to say things that are
absolutely untrue?
Let me quote "Red" Sanders: "Men, I'll be honest.
Winning isn't everything. (Long pause.) Men, it's the only thing!". If lying,
cheating and swindling gets you a judgement in your favor in court, then yes
it's actually winning. It isn't winning fairly. It isn't winning honestly. It
isn't winning ethically. But then if SCO and Darl and BSF cared one whit for
fairness and honesty and ethics we wouldn't be here today.
Part of the
problem is that the courts are reluctant to actually punish this behavior
because the punishment would prejudice the dishonest party. But, if the only
penalty for lying to the court is being told not to do that again, why shouldn't
you lie? Your lie may slip through unchallenged, in which case you win, and if
it doesn't the worst that happens is you get a do-over. The only way to
discourage the behavior is to insure that lying to the court, misrepresenting
the state of things, generally being dishonest and/or unethical, does
prejudice the liar's case. That it makes him lose points that he could have won
had he not lied. Even when it causes him to lose unfairly. After all, he's the
one who decided to play unfairly in the first place. [ Reply to This | # ]
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| Authored by: DaveJakeman on Monday, August 10 2009 @ 04:12 PM EDT |
| Well, suffice to say, the letter did the trick. [ Reply to This | # ]
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| Authored by: ChrisP on Monday, August 10 2009 @ 05:06 PM EDT |
The more I follow this bankruptcy case the more I appreciate Mr. Spector's
ability to flannel the judge and get something out of nothing. Perhaps the judge
saw a ghost amongst all those words...
I find it completely unbelievable that Mr. Tibbitts as corporate lawyer doesn't
seem to remember even in outline what litigation his company is involved in.
Early onset Alzheimer's disease?
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SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, August 10 2009 @ 05:19 PM EDT |
Here's P.J.'s question. Is it actually winning, if the only way to win in a
court of law is to say things that are absolutely untrue?
Well I don't see the RedSox or other teams giving back the championships they
won on the backs of steroids users.
I don't see steroids users giving $ back.
I don't see the top 5% income bracket in the US giving back their tax breaks
because the promise of them having more would make us all better off (income
stagnated for other income groups).
You are right though PJ. Unfortunately I don't wonder if people like you are
too few to make a meaningful difference.
How would you feel about cloning? Personally I doubt a cloned PJ would be the
same at all.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, August 10 2009 @ 05:30 PM EDT |
They are merely "incorrect"!
[ Reply to This | # ]
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| Authored by: billyskank on Monday, August 10 2009 @ 05:59 PM EDT |
I guess so long as the judge rules in a way they're happy with, they don't care.
---
It's not the software that's free; it's you.[ Reply to This | # ]
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| Authored by: kawabago on Monday, August 10 2009 @ 06:18 PM EDT |
They've said lots that's untrue but it's only slowed down the blade of the
guillotine. The blade continues to fall and will cut their heads off, if only
figuratively.
[ Reply to This | # ]
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| Authored by: SirHumphrey on Monday, August 10 2009 @ 06:20 PM EDT |
-simply manifest fabrications of optimistic and alternatively interpretable
factum, freed from the constraints of restrictive definition.
Always remember SCOXQ.BK's motto:
Nil permissum factum impedum vestri via
Don't let the facts get in your way
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, August 10 2009 @ 06:25 PM EDT |
Perhaps not, but it is very effective. The end verdicts may all run counter to
SCO, but they have been able to keep the lawsuits alive very effectively with
their tactics. Even the appointment of a trustee for Chapter 11 operations may
be a win for SCO, depending on who is appointed. They still have delayed any
verdict for years.
If the goal was to exhaust the estate and leave the creditors with less than the
Grinch left, the SCO folk are very effective.
The correct question is: Is it right that they should be able to do that,
jumping across courts and shading the truth so heavily? Is it justice?
-- Alma[ Reply to This | # ]
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| Authored by: Anonymous on Monday, August 10 2009 @ 07:10 PM EDT |
If they lie to the court and prevail, then they got what they wanted and if they
are an "ends justify the means" kind of sort, then they would say that
they won.
If they have a thing we refer to as a 'conscience' then they may feel some
remorse. If they have religion, most of those believe that lying is bad and may
have consequences later on.[ Reply to This | # ]
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| Authored by: Bill The Cat on Tuesday, August 11 2009 @ 01:29 AM EDT |
SCO has lied to every judge they have been in front of and they have gotten away
with it repeatedly. So, I would say they are winning only because every court
they've been in has refused to punish them for their lies in a manner that
really hurts. If the lies had been stopped years ago, we wouldn't even be in
this court today.
If I ever have to go to court, I have absolutely no confidence in any justice
after this fiaSCO.
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Bill The Cat[ Reply to This | # ]
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| Authored by: IMANAL_TOO on Tuesday, August 11 2009 @ 02:39 AM EDT |
At the hearing, Spector said this:
SPECTOR: ...
We had other witnesses. They didn't show up. I won't even go into the side story
about that. I got subpoenas and they disappeared. And so things had to change.
He is the master of whine. But was that true? Witnesses?
Perhaps he was true if one makes a helpful
reinterpretation:
We [in the court] had other witnesses. They [the
witnesses] didn't show up. I won't even go into the side story about that [as I
might get into trouble]. I [Mr Spector] got subpoenas and they [the subpoenas]
disappeared. And so things [in the proposed IBM agenda] had to change.
A royal "we" and lost subpoenas? Could that be
it?
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______
IMANAL
. [ Reply to This | # ]
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- Classic SCO :) - Authored by: Anonymous on Tuesday, August 11 2009 @ 06:38 AM EDT
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| Authored by: dodger on Tuesday, August 11 2009 @ 03:44 AM EDT |
If the scales of Justice are tampered with and they are unable to deliver any
kind of verdict; if you can play the system and stall the process; if you can
both convince the courts that you are well meaning and at the same time lie
through your teeth; if you can brazenly go where no man has gone before on a
mission to discover new forms of screwing with the system with a 'what-me-worry'
Alfred E. Neuman expression on your face; if you can do all of this, you are a
man my son - welcome to the cabbage patch, silly wabbit.[ Reply to This | # ]
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- Well - Authored by: Anonymous on Tuesday, August 11 2009 @ 03:46 PM EDT
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| Authored by: Anonymous on Tuesday, August 11 2009 @ 03:48 AM EDT |
Is it actually winning, if the only way to win in a court of law is to say
things that are absolutely untrue?
Sorry for that, but you should think a
minute about your view.
It's not only acceptable that the lawyers bend the
truth or simply lie in court, they are (in some countries) allowed to do so.
Further more, as both sides like to win before the judge, it's expected and
their duty and business to bend the truth or even to lie for the benefit of
their client.
It's fine that you show how much they bend or even just don't
care about the facts. But it's their job. Don't blame them on it. It's their
only way to survive. That's sad enough, isn't it?[ Reply to This | # ]
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