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SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline
Tuesday, September 30 2003 @ 04:43 PM EDT

Our fabulous Frank Sorenson ran to the courthouse and got the papers for us. Judge Kimball signed the Order saying that SCO has until Feb. 4, 2004 "to file any amended pleadings or add parties to this action".

So it's a fait accompli, or as we say in the US, a done deal. Here's the pdf of the signed order.

I have SCO's Motion for Enlargement. Basically, their argument was that they didn't have enough time to meet the original deadline and do discovery. Because IBM just filed new counterclaims, they argue, they need time now to do discovery and if the discovery process comes up with new information, they might want to amend their pleadings or add parties. They can't say that would happen now, but if they are forced to meet the current deadline, they'd amend without the discovery process and conceivably miss that opportunity.

Their basis for asking for the time delay in paraphrased detail:

1. Discovery isn't finished, and the original time schedule presumed it would be by now; IBM hasn't provided, they say, what they asked for. SCO has "been providing discovery" they say in footnote 1, but the rest of the footnote says that actually they won't be providing tens of thousands of more documents until "early next week". Translation: we haven't provided everything either.

2. "...other circumstances have drastically changed... Specifically, IBM recently has filed an eleven count counterclaim, including four separate claims of patent infringement." This means time is needed for more discovery. During discovery, it could happen that there would arise the need to add parties, depending on what is learned, or to amend SCO's pleadings. Further SCO didn't yet file its answer to IBM's counterclaims, and the deadline for that is October 1.

3. SCO requested time to enlarge, but IBM refused.

4. Prejudice will be suffered by SCO if it is forced to amend its pleadings without the benefit of further discovery.

So, that's their argument, and the judge said yes. Please note that no new parties are mentioned by name. In fact, they are saying they might add parties or amend, but they won't know until discovery is finished. See why I never leap to conclusions until I see the actual papers? It's a good rule to live by. The pdf is available.




  


SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline | 100 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline
Authored by: Anonymous on Tuesday, September 30 2003 @ 05:07 PM EDT
PJ:

Does this rule out any summary judgments before then? I was hoping IBM's
seeking a declaratory judgment might speed things up.

Stuart Thayer

[ Reply to This | # ]

SCO stock still down...
Authored by: Anonymous on Tuesday, September 30 2003 @ 05:14 PM EDT

...and falling; down to 13.83 at closing, down another .03 in after-hours trading as of 5:00 PM.

[ Reply to This | # ]

SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline - blacklight
Authored by: Anonymous on Tuesday, September 30 2003 @ 05:23 PM EDT
The fact that judge Kimball so quickly granted the SCO Group's motion to delay
indicates that IBM did not oppose the motion. As far as IBM is concerned, the
more parties added the merrier.

If the SCO Group sends its "invoices" on October 15, I would expect
a strong reaction from both IBM and RH. RH in particular can strengthen its
claim that there is a controversy between RH and the SCO Group because the SCO
Group is engaging in threatening behavior toward RH's customers. Needless to
say, HP will join the party as a litigant once any of HP's customers get an
"invoice" from the SCO Group. As the Chinese curse used to say, the
SCO Group is living in interesting times.

[ Reply to This | # ]

Today's FUD forecast:
Authored by: beast on Tuesday, September 30 2003 @ 05:42 PM EDT
Four more months of SCO.

[ Reply to This | # ]

[newbie question]
Authored by: Anonymous on Tuesday, September 30 2003 @ 06:04 PM EDT
Hi, I am from Europe. Correct me if I am wrong, but in the US court verdicts
gets decided through a jury. They decide true or false. What role does a judge
have in the US, except for guarding order in the courtroom? (perhaps watched to
many movies here..).

But seriously, wouldnt it be a kind of strange in avarage-sixpack-joe,being
member of a jury, would have to decides complex matter of Linux/Unix etc?

[ Reply to This | # ]

SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline
Authored by: Anonymous on Tuesday, September 30 2003 @ 06:09 PM EDT
I noticed that Mark Heise is not listed as one of the recipients in the
Certificate of Service.

Does this mean he is off the case?

[ Reply to This | # ]

SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline
Authored by: Alex on Tuesday, September 30 2003 @ 06:27 PM EDT

What's interesting to me about this is that it looks like the Red Hat case is
going to go first. Does IBM want this to happen, and if so, why?

Alex

[ Reply to This | # ]

Are we Having Fun Yet
Authored by: brenda banks on Tuesday, September 30 2003 @ 07:25 PM EDT
i couldnt resist
but all this news at one time is almost overload
my money is on Linus for the additional party to the suit
or novell.i cant see how redhat could be added as they dont have a contract with
sco
sgi wasnt a part of the contract with sco and IBM
linus has the control of the kernel and novell was a party to the contract
so it is between those two
and if sco wants to discredit the community and really p*ss someone off then
suing linus would set off some hotheads for sure
even tho he would be in IBM's hands and would be alright
but that might be a way to get sympathy
unless the situation is difused ahead of time

---
br3n

[ Reply to This | # ]

SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline
Authored by: shaun on Tuesday, September 30 2003 @ 08:06 PM EDT
Despite the legal filing SCO stock dropped today. I think SCOX holders are
realizing that IBM is going to bury SCO and that SCO was ill prepared for this
fight.

IBM has completely turned the tables on SCO and they are feeling the pressure. I
just wonder how long before they crack?

--Shaun

[ Reply to This | # ]

Question your assumptions.
Authored by: skidrash on Tuesday, September 30 2003 @ 08:40 PM EDT
You're assuming SCO's actions are about anything tangible, that this whole
action is a well-reasoned, reasonable series of events. They're not (about
anything tangible). And They're not (well-reasoned, reasonable).

Darl said it in the Forbes article. They're looking for publicity. Now that
all the news media that were providing an open mike before, have now switched
stations (away from SCO), Darl needs to do something extreme to get back in the
press.

Sue Linus.

The stock-pumping PR, the share price is THE thing and THE WHOLE of the
thing[1].

[1]tp, 5th Elephant.

[ Reply to This | # ]

SCO Justice Deferred - SCO Shopping List
Authored by: Anonymous on Tuesday, September 30 2003 @ 08:44 PM EDT
I believe Canopy/SCO will be using discovery time to go shopping prior
to February next year, if Red Hat doesn't bust their bullocks first.

1) Bolster legal team with more IP expertise and technical knowledge
2) Patents to face off against IBM's, maybe donated or cross-licensed
by Sun & MSFT, etc. for the remainder of the unissued SCOX warrants
3) PR management to handle hip-shooting/foot-hitting execs
4) VC team to keep SCOX price afloat, unless SEC starts sniffing
5) Lobbyist firm to push IP issues with politicos
6) Find business folks feeling victimized by GPL

Forewarned is forearmed. Of course their ability to find the items on
affordable terms might be hampered by a lack of faith in their ability to
execute, given track record to date.

I feel it imperative that whatever can be done to help Red Hat move
forward be done!

[ Reply to This | # ]

linux show for tonight
Authored by: brenda banks on Tuesday, September 30 2003 @ 08:58 PM EDT
http://linuxtoday.com/news_story.php3?ltsn=2003-09-30-023-26-OP-CY-SW
should be really good
ransom love is to be on it


---
br3n

[ Reply to This | # ]

SCO's new PR line
Authored by: Anonymous on Tuesday, September 30 2003 @ 09:18 PM EDT
I think SCO's new PR line is that they are small Utah company, that is full of
good members of their local community, who are being picked on by big bad patent
bully, IBM.

The reason I think this is their line, is it the subtext in some of today's
articles. Reporters don't make this stuff up - they're getting it from
somewhere. And the chances are, it's from Yarro, Stowell and McBride.

Perhaps that's even how they (SCO) feel now. All I can say is good.



[ Reply to This | # ]

The silence is deafing!
Authored by: blhseawa on Tuesday, September 30 2003 @ 09:27 PM EDT
PJ,

After I read this post and the one before it. Things have suddenly gotten
cyrstal clear.

Here is what I mean, the delay asked for and received in the IBM case is not
surprising, especially since IBM dragged Canopy into it, because the (IP) case
is now being waged in a urgent fashion with Red Hat.

SCO needs to respond to Red Hat's response in a much better fashion then they
have. I for one am not impresses with SCO's legal pleadings and responses so
far. It appears to me that SCO management has just figured out they need *REAL*
legal help and fast! I think they are just now getting some understanding of
the potential legal rammifications if SCO's actions are judged as criminal.

This has become a two theater war and it takes alot more resources, lawyers and
money then SCO has to wage it.

As you point out, the Red Hat response is well written, well thought out, and
fully researched by paralegals and lawyers.

SCO had better do some legal midnight oil burning, or the whole SCO house will
come burning down.

My hat's off to the Red Hat and IBM legal teams, they seem to know what they
are doing.

PJ, Thanks for the web and all of the info.

I do appreciate your efforts.

[ Reply to This | # ]

SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline
Authored by: lightsail on Tuesday, September 30 2003 @ 09:39 PM EDT
SCO has determined that they are up the creek without a paddle. Having used the
GPL for eight plus years, having included the GPL in their 10-k filings, SCO
sees it as impossible to reverse course and take the opposite position that the
GPL is in direct conflict with U. S. copyright laws IN A COURT OF LAW.

Without a legal leg to stand on in the pivotal issue of the GPL, that issue
alone will doom the SCO its lawsuit with IBM. So you buy as much time as you can
to hope that something usable falls your way, or you figure out some way to cash
out before the house of cards collapses. You simply say that the lawsuit went
badly in the next 10-K and you get the cash without jail time.

[ Reply to This | # ]

SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline
Authored by: Anonymous on Tuesday, September 30 2003 @ 10:01 PM EDT
I remember an article a while back that I think quoted McBride accusing IBM of
stalling/delaying. If anyone can help find that, it would be great to point out
another instance of SCO hypocisy.

[ Reply to This | # ]

no interviews?
Authored by: Anonymous on Tuesday, September 30 2003 @ 10:06 PM EDT
Am I right that we have had no interviews for a week or two from any SCO
executives, only the one from Yarro? And if so, why? Also no reply to the
Groklaw letter. Have they run out of things to say, or did their lawyers finally
convince them it is counter-productive?

[ Reply to This | # ]

settlement timing
Authored by: Anonymous on Tuesday, September 30 2003 @ 10:10 PM EDT
I was wondering when IBM would decide to enter settlement talks with SCO. It
seems to me they will wait until they are done with discovery and have had time
to digest all the documents they get.

That is because they seem to think that they will come up with some dirt, while
SCO won't come up with any dirt in its discovery. I assume IBM wants to get
into as strong a legal position as it can so that it can demand as much as
possible in settlement.

Any idea how long that would be, like three months from now or what?

[ Reply to This | # ]

SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline
Authored by: AG on Tuesday, September 30 2003 @ 11:26 PM EDT
I posted this already under the wrong story once. Heise (the German magazine, not the gun-for-hire) reports that SCO wants to add more lawyers and needs to make them familiar with the case (thus needs more time). SCO did indeed add Stephen Zack and Mark Heise to the case (what does pro hac mean, btw). I am surprised such a high stake motion is not filed by the uber-lawyer, but by the same guy who was laughed at by everybody for his legal theories about the validity of GPL. Are they already preparing for a "incompetent lawyer" appeal? Here is the Heise (remember, magazine, not the lawyer) story in German.

[ Reply to This | # ]

Talking horse theory
Authored by: skidrash on Wednesday, October 01 2003 @ 12:10 AM EDT
Criminal X was before the king to be sentenced to death.

In a last, desperate gamble, he tells the king that he can teach the king's
prize stallion to talk.

The king allows X to teach the horse to talk.

The other convicts laugh as X is led to the stables, "you're going to be
up to your neck in horse kaka".

So? I'm alive. In six months the horse may die, the king may die, the king may
be overthrown. I may die naturally.
For now, I'm a living horse teacher, not a dead criminal.

[ Reply to This | # ]

SCO Can't Count
Authored by: Newsome on Wednesday, October 01 2003 @ 01:07 AM EDT

Not only does SCO need a lesson on the GPL, they also need a lesson on basic math.

In this motion, they very clearly state that IBM filed an eleven count counterclaim (paragraph 5). In IBM's original counterclaims, there were only 10, and the amended filing contained 13.

Linus was right. They are smok ing something!
(Here in Utah, we had a "controlled-burn" that got out of hand, and the wildfire filled up the valleys with very thick smoke. Story here.)

-- -
Frank Sorenson

[ Reply to This | # ]

Response deadline hasn't changed?
Authored by: Anonymous on Wednesday, October 01 2003 @ 01:52 AM EDT
Correct me if I'm wrong but doesn't SCO still have to respond to IBM's
response and counterclaims by October 15th? The order only extends
the time to amend pleadings and add parties and says nothing about
extending the deadline for SCO to respond to IBM's answer to the
amended complaint and counterclaims.

[ Reply to This | # ]

they have given the interviews
Authored by: skidrash on Wednesday, October 01 2003 @ 04:18 AM EDT
I bet McBride and Stowell and Sontag are out there every day hoping to get into
ZD/CN/VNU or bigger news venues.

They've been tuned out.

Even the most clueless reporter following this story is wise to them by now.
Varghese has been the most obvious, with his side-by-side listing of

previous/new previous/new

statements.

[ Reply to This | # ]

sgi interview,sco cancels license
Authored by: brenda banks on Wednesday, October 01 2003 @ 08:49 AM EDT
http://www.cbronline.com/cbrnews/c87ea1f4f478527880256db20018c17e

---
br3n

[ Reply to This | # ]

SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline
Authored by: Anonymous on Wednesday, October 01 2003 @ 09:33 AM EDT


> A lot of people like IBM's Promissory Estoppel counterclaim, but won't admit to what it means...

Please explain what your getting at here? As far as I can see IBM is trying to say is that:
  "You can't release under the GPL and then claim breach of copyright/tradesecret
   and then try to claim license fees back."

I.E. You made a promise of rights under the GPL and now you are trying to say you didn't make that promise and claim damages as a result.
What do you think it means?

[ Reply to This | # ]

Appropos of SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline
Authored by: Wesley_Parish on Saturday, October 04 2003 @ 05:30 AM EDT
I was just reading my daily McGonagall, "The Horrors of Majuba", and this caught my eye, as being prophetic of SCO:
But who's to blame for their fate I'm at a loss to know,
But I think 'twas by fighting too numerous a foe;
But there's one thing I know, and, in conclusion, will say,
That their fame will be handed down to posterity for many a day!

Change "fame" to "fate" and we have something we all can agree on.

---
finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

[ Reply to This | # ]

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