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Tomorrow's Hearing Postponed
Thursday, January 22 2004 @ 11:14 PM EST

There has been a lot of talk about whether the SCO-IBM hearing scheduled for tomorrow was or was not postponed. It's definitely postponed. SCO has the notice up on their site. It's not up yet on Pacer, but we'll take their word for it. Here is what it tells us:

PLEASE TAKE NOTICE that a proceeding in this case has been set for hearing before Honorable Brooke Wells at:

Room 436
350 South Main Street
Salt Lake City, Utah

On Friday, 2/6/04 at 10:00 a.m.

TYPE OF PROCEEDING: All pending motions PLEASE NOTE: Courtesy copies of any documentation filed with the court should be hand delivered to Judge Wells' chambers. Also, please note that the hearing sheduled for 1/23/04 at 10:00 is VACATED.

I have no inside knowledge on why the postponement was requested. Sometimes you ask for a postponement just because the attorney you want to handle a matter is stuck in another case somewhere and can't be in two places at once, something you didn't anticipate when you set up the original hearing date. That isn't uncommon, although you try to avoid such things. Sometimes, it's because you just discovered some new evidence that will strengthen your case and you want to use it, but you finished all your documents before you had it and need time to weave it in. Sometimes you just couldn't finish in time for all the various and sundry reasons humans are prone to. It isn't usually some Perry Mason dramatic excitement, though, just the mundane scheduling issues that come up when a large group of humans have to be in the same spot at the same time. However, if I were SCO, I would probably be wondering what, if anything, it means. Happily, I am not SCO, so I am not worrying about a thing.


Tomorrow's Hearing Postponed | 137 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Tomorrow's Hearing Postponed
Authored by: cadfael on Thursday, January 22 2004 @ 11:39 PM EST
I realize that you don't know why, but is it safe to assume that the request
was on IBM's behalf?

[ Reply to This | # ]

IBM needs more time....
Authored by: webster on Friday, January 23 2004 @ 12:11 AM EST go over SCO's discovery materials and affidavits. They do not go into a
hearing and shoot from the hip. They are clearly preparing a written response
which they will want to file well in advance of the hearing. Some of this
response will relate to confidential material so we may not get to see any of it
unless IBM is merciful and redacts only the confidential part. SCO will want to
respond so we will see another delay. The Court will want to digest it all so
the next "continuance" will be a healthy one. Do not expect a
hearing on February 6.

IBM is going to find inadequacies in SCO's response. They may move to strike
counts not supported by discovery. They may ask for sanctions. They will want
to deter consideration of SCO's Motions for discovery by convincing the judge
SCO has not complied with the Court's Motion to Compel.


Recent Windows refugee

[ Reply to This | # ]

Tomorrow's Hearing Postponed
Authored by: shaun on Friday, January 23 2004 @ 12:15 AM EST
Surprisingly it's IBM postponing and not SCO. If IBM asks for a postponement
there must be a good reason. We already know that SCO did not put forth the
required discovery items IBM asked for. I would assume IBM has an Ace to play at
this point. Though don't ask me what.
It will be the day before my birthday so maybe IBM will let me have a nice
present by starting to put real pressure on SCO.


[ Reply to This | # ]

The danger of delusion
Authored by: MarkusQ on Friday, January 23 2004 @ 12:22 AM EST

If the only indication that it is posponed is a claim by SCO, do we really know anything?

Maybe they just wish it were posponed, and so decided to anounce that it was in the hopes that that would some how make it true. Or maybe they decided that, since it was their case they should be the ones who decide things like court dates, etc. Or maybe they've decided that something in the constitutional (6th amendment, IIRC) provision for "fair and speedy trials" means that either party can delay anytime they wish.

Sounds absurd, doesn't it?

But ask yourselves: is it really that out of line with their documented conduct to date?

-- MarkusQ

[ Reply to This | # ]

I think we know the most likely reason
Authored by: Anonymous on Friday, January 23 2004 @ 01:23 AM EST

Now it might just be scheduling... but...

I think we know the most likely reason.

You need to read over the Dec 5 transcription, plus Tibbitts' affidavit.

1. On Dec 5:

There is a telling bit near the end.

K. McBride asks whether the dates can be pushed back.

The Judge replies the 30 days for SCO to deliver can not, but she doesn't care
when the hearing is.

K. McBride talks about whether there will be enough time to brief on whether
SCO's responses are good enough (he uses the word specifivity or something -
i.e. whether they are specific enough). Clearly he seems to be expecting IBM to
argue that SCO's responses aren't good enough.

Anyway, the judge says the hearing may be pushed back if time is needed for such
a briefing.

My conclusion from this is
(i) SCO knew on Dec 5th, that what they would deliver, would be unlikely to be
good enough, at least in IBM's eyes. I think they are gaming it, but that's
just my opinion.
(ii) If SCO's responses were good enough in IBM's eyes, then IBM could simply
affirm it, and the court could look at the other pending motions. The need for
briefs would only arise if IBM didn't think SCO had delivered.

2. On Dec 5:

There is another telling bit.

K.McBride argues the court should follow a variant of Rule 33 (he later changes
his mind and talks about Rule 32).

He says basically, everything IBM did should be put on the table, and then SCO
can examine it, and finalize their allegations. Some allegations might be about
trade secrets, some about contracts, and so on.

IBM had previously, very forcefully in their motions and in their letters to
SCO, made the point that SCO should only be asking for discovery on items
related to their allegations. Without knowing the specific allegations, IBM
could not know whether a SCO discovery response was appropriate (within the
scope of the case).

Now the judge obviously picked up this, because she basically makes the same
point to Kevin McBride. She says to Kevin McBri that the court doesn't know
whether SCO's discovery requests are appropriate.

Now jump ahead to Tibbitts' affidavit:

It's like that entire conversation never took place.

He still wants to go fishing around in AIX and Dynix, and even OS/2 now, just in
case, SCO can come up with some allegations about these matters.

From reading Tibbitts' response, it's almost like he think K.McBride got his
ruling on rules 33 or rules 32, or whatever the flip he was talking about. He
certainly acted as if he got the ruling.

3. SCO also have a huge problem

In sworn responses to IBM's interrogatories, they say their allegations are
contained in System V, Linux and AT&T.

They admitted that they were not specific on December 5th

The court ordered them to reference the Bates numbered documents that *SCO* had
already produced.

So what happens?

Ryan Tibbitts affidavit (and presumably the 60 pages) is all about AIX/Dynix,
and not one thing to do with System V.

4. I think there are also other obvious problems even in the Affidavit. For
example, it seems to be lacking the information that court said it should
contain. Or rather, at least it is, for each missing piece.

5. IBM seemed pretty confident in today's statements didn't they? A lot more
talkative than usual too?

I could be wrong. IANAL, IMHO, etc., everything above is. But I think the next
hearing will be really bad for SCO.

[ Reply to This | # ]

Two Guesses
Authored by: diakka on Friday, January 23 2004 @ 01:24 AM EST
1: IBM has found some serious GPL violations in SCO's code.
of course, I don't know if IBM was even given SCO's code on that CD.

2: IBM has uncovered strong evidence of the SCO-MS connection.

Speculation sure is fun :-)

[ Reply to This | # ]

Tomorrow's Hearing Postponed
Authored by: Greebo on Friday, January 23 2004 @ 01:43 AM EST

Maybe someone has already seen this, but i found this link on Slashdot to a very nice article summarising SCO's case to date.


There are some excellent Darl Quotes in there.

My favourite so far is :

McBride says SCO revealed the offending code last August at its Las Vegas SCOForum. “Truly, and then they just ignored it,” he said "

Could you have more of a bare faced lie than that? So we 'ignored' the SCOForum code did we? What about the detailed break down that many people did of that code on this very site? And does anyone remember 1 Million lines of code being presented?


But i liked this comment from Linus the best :

When asked if he had any questions to pass along to McBride, Linus Torvalds chose to err on the side of caution. “The less I have to do with Darl McBride, the better off I am ... I don’t want for that ‘Darlness’ to rub off on me.”

[ Reply to This | # ]

Tomorrow's Hearing Postponed
Authored by: Anonymous on Friday, January 23 2004 @ 03:00 AM EST
It's not on Judge Wells's calendar for Friday, so there does seem to be a postponement.

[ Reply to This | # ]

Tomorrow's Hearing Postponed
Authored by: Anonymous on Friday, January 23 2004 @ 03:08 AM EST
L inuxWork AU:

"Both sides felt we would be better served if the hearing were postponed," said Stowell.

This doesn't concur with previous statements. Maybe The SCO Group wants to give the impression that they are still in control, while in fact IBM is running the show.


[ Reply to This | # ]

What is the significance
Authored by: Anonymous on Friday, January 23 2004 @ 03:47 AM EST
... of the phrase, "...TYPE OF PROCEEDING: All pending motions..."
in the notice? Not being a lawyer, I'm not sure whether that refers to the
purpose of 2/6 hearing or something else.

[ Reply to This | # ]

Of course IBM wants a delay.
Authored by: Anonymous on Friday, January 23 2004 @ 05:27 AM EST
This appears to be more or less the stuff that SCO claims there case is resting
on. And their legal strategy up to now boils down to "we don't have a
clue, but we think if we were allowed upturning IBMs underwear, we might find
something. And if we don't, we can at least make it a smelly business."

Now this material from SCO would appear to support this idea. If IBM can show

a) SCO does not expect to deliver more serious evidence.
b) the current evidence is junk and does not support their case

beyond reasonable doubt, this is their early ticket for having the whole thing
thrown out of court.

So they really _desperately_ need to slam this stuff seriously, in all detail.
If they give it a thorough, detailed and well-informed beating, it may be the
last thing they need to do to get this thrown out of this court, and, depending
on the quality of their work, not have revisions on the same claims be

Small wonder that they want a few weeks of time. The time may be well spent.

[ Reply to This | # ]

maybe a preemptive delay
Authored by: Alan Bell on Friday, January 23 2004 @ 06:07 AM EST
perhaps they thought SCO would apply for a delay of 90 days(as hinted) so they
applied for two weeks as a strategic move, if SCO applied for a delay to the
delayed date it would look pretty silly. (silly behaviour is an improvement over
their normal criminal behaviour so they still might do this.)

[ Reply to This | # ]

Reason for delay
Authored by: hardcode57 on Friday, January 23 2004 @ 07:12 AM EST
PJ: isn't a common reason for delay that the parties are involved in settlement
negotiations and would like more time to see if they pan out? I'd hate it to
happen, but this would explain SCO's unwonted silence.

[ Reply to This | # ]

Authored by: Anonymous on Friday, January 23 2004 @ 08:25 AM EST

Maybe, just maybe IBM is going over the consequences of the SCO vs Novell suit and the expected counter-suit Novell vs SCO. Maybe they've done this to give Novell time to bring the countersuit.

That is the one news item I can think of may have significant impact.

It's always nice to see how PJ keeps her distance from the speculating masses. ;-)

[ Reply to This | # ]

Tomorrow's Hearing Postponed
Authored by: blacklight on Friday, January 23 2004 @ 09:25 AM EST
IBM's track record, as I follow this case, is that IBM does not ask for delays
or postponements unless for good reason. We could speculate the reasons for the
postponement until doomsday, or we could wait two weeks and we may very well
have the reasons handed to us on a silver platter - I am all for silver
platters, and I enthusiastically opt for the lazy bum's approach and the easy
way out.

[ Reply to This | # ]

SCO needs more time
Authored by: Anonymous on Friday, January 23 2004 @ 10:51 AM EST
SCO needs more time to prepare damning evidence of IBM's contract and copyright violations.

[ Reply to This | # ]

Tomorrow's Hearing Postponed
Authored by: Anonymous on Friday, January 23 2004 @ 11:05 AM EST
"A Perth Australia based open source consulting company has told the SCO
Group that unless it details, by February 1, the specifics of what it claims are
IP violations in the Linux kernel, the company would refer the matter to the
appropriate legal authorities."

"Basically, we're asking SCO to put up or shut up," he said.
"A lot of badmouthing is going on, with no specific instances cited of
code which infringes their copyright. As a director of CyberKnights, I
personally know and trust several contributors to the Linux kernel, including
the original author, Linus Torvalds. As of three days ago, Linus told me that he
knows of no substantial code in his Linux kernel source code tree which could
possibly be subject to ownership claims by The SCO Group."

Brooks said he would first go to the ACCC if SCO did not reply to his letter by
February 1. "If that does not resolve things, I will take advice from my
lawyers about direct legal action," he said. "This thing has gone on
too long; someone has to bell the cat."

I may be that IBM may want to see what happens and IF SCO responds with it's
evidence then IBM could compare to see if it matches what SCO gave them.

Here is the news article.

[ Reply to This | # ]

FUD timing
Authored by: Anonymous on Friday, January 23 2004 @ 01:28 PM EST
Cleverly noticing that SCO had produced a made-for-press-release lawsuit to take
attention from their anticipated pasting in the courtroom, IBM asked for a

This will force SCO to shoot themselves in the foot AGAIN in two weeks, so they
can keep propping up their stock.

(Just my theory).

[ Reply to This | # ]

  • FUD timing - Authored by: Anonymous on Friday, January 23 2004 @ 04:50 PM EST
Tomorrow's Hearing Postponed
Authored by: Anonymous on Friday, January 23 2004 @ 01:31 PM EST
Didn't SCO say they were going to provide some additional evidence at the (Jan
23) hearing? That they'd have it ready by then, but needed more time from the
original date? If so, could IBM be calling SCO's bluff by delaying the
hearing, but still expecting SCO to deliver the additional items by the 23?
Thus giving IBM time to review them before the hearing if SCO actually delivers
them, or giving IBM an argument that they shouldn't be admitted because they
were not delivered in a timely manner...???

[ Reply to This | # ]

PJ, Tiny typo
Authored by: the_flatlander on Friday, January 23 2004 @ 01:32 PM EST
"However, it I were SCO, I would probably..."


It's not worth mentioning or fixing... but there it is.

And, thanks for the article and the info.

Everyone's speculation is a whole lot of fun, but I am sure you are right, it
is probably very mundane. A dentist's appointment, or something.


[ Reply to This | # ]

IBM needs the time to look over what SCO turned over.
Authored by: Anonymous on Friday, January 23 2004 @ 01:43 PM EST
SCO obviously would have tried to turn something over to IBM. It may not be
something solid, but they will have to at least pretend to do it, otherwise,
their case will straightaway go into the waters. So, what they probably have
done is sent in more vague allegations like giving the file names in Linux 2.4
and some lines, but doesn't really say much. Just like the errno.h file. It is
all a big big bluff.

IBM, on receiving this stuff, needs to carefully look over them in order to
complain to Jg Wells that SCO has not done its part to comply. You need time to
respond to this stuff. You want to look over it and make sure SCO has indeed
shirk its obligations. I see nothing sinister about all these delay. You need
time to comb through what the other side said.

And in order to move for dismissal, IBM does need to show that what SCO has
given is either not enough, or that what was given has nothing to do with them.
And again, the latter does take time to present the arguments.

[ Reply to This | # ]

Authored by: Anonymous on Friday, January 23 2004 @ 04:44 PM EST
Pacer says:
Docket Text: Magistrate Notice of Hearing Motion hearing set for 10:00 2/6/04 for all pending motions: [83-1] motion to extend time for pla to respond to dft IBM's third set of interrogatories and third request for production of documents, set for 10:00 2/6/04 for [73-1] motion to strike the 5th, 15th, and 19th affirmative defenses asserted by the SCO Grp in its Answers to IBM' Amended Counterclaims, set for 10:00 2/6/04 for [66-1] motion to Compel Discovery, set for 10:00 2/6/04 for [52-1] motion to extend time to 10/24/03 for pla to resp to mot/compel, set for 10:00 2/6/04 for [51-1] motion to extend time to respond to dft IBM's second set of interrogatories and second request for production of documents To be held before Judge Wells cc:atty ( Ntc generated by: JD)
Does that mean that only these matters will be discussed, or can new stuff drop in until the hearing?

[ Reply to This | # ]

  • Pacer - Authored by: Anonymous on Friday, January 23 2004 @ 04:49 PM EST
    • Pacer - Authored by: crythias on Friday, January 23 2004 @ 04:56 PM EST
Occam's Razor
Authored by: valdis on Friday, January 23 2004 @ 11:18 PM EST
I'm surprised that everybody is jumping to wild (even for this lawsuit) theories, when there's probably a much simpler explanation:

It's flu season.

Marriot came down with the flu on Wednesday-ish, and the IBM team decided they'd rather have him at 100% at a later date than at 50% on Friday, or somebody else substituting for him on Friday (read the Dec 5 transcript - you want this guy on your side, at 100% ;). They would have happily taken a time slot Monday, but Judge Wells is a popular magistrate and she's booked clear through the next 2 weeks...

[ Reply to This | # ]

sco to more fully comply
Authored by: Anonymous on Saturday, January 24 2004 @ 06:55 AM EST
sorry if this is a repeat, but i only just saw it:

"'SCO failed to comply with the court's order to fully answer IBM's
interrogatories and requests for documents by Jan. 23. SCO has now agreed to
provide additional responses, so the court has agreed to postpone the hearing
until Feb. 6 to give SCO additional time to reply,' said Mike Darcy, IBM

[ Reply to This | # ]

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