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SCO Reaps What It Sows - A Supplemental Memo on Discovery Boomerangs |
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Thursday, September 16 2004 @ 01:03 AM EDT
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Here's a lovely peek behind the curtain. SCO, prior to yesterday's hearing, filed an Ex Parte Emergency Motion for a Scheduling Conference, trying like crazy to undo what it has done to itself. It was filed on Monday. This was part of what they were discussing at the end of yesterday's hearing, related to SCO's Expedited Motion to Enforce the Scheduling Order.
Here is SCO's supporting memorandum. What it tells us is priceless. It seems that when SCO filed its Supplemental Memorandum, with the permission of Judge Wells, another in a long series of the paper blizzard they have been showering on the court, regarding their alleged need for all of AIX since the founding of the world, they shot themselves in the foot.
SCO presents the "emergency" as dire indeed, brought on by IBM's litigation tactics, as they put it, and which -- unless the Court will help -- means IBM will win, they say, based on tactics and not merits. The World According to SCO. A true emergency, without doubt. And here is why SCO brought the Expedited Motion to Enforce the Scheduling Order.
They filed "a supplemental memorandum in support of their pending request that the court order IBM to produce early versions of the AIX and Dynix computer operating systems." In the memo, SCO said it can't prove its theory of the contract case without all that code. And to prove IBM's position was "untrue", they submitted some emails SCO "happened to possess". In sifting through discovery provided by IBM, "SCO was able to discover an apparent scheme by IBM to misappropriate certain exceptionally valuable SCO rights". SCO "raised the e-mails only as illustrative ancillary points", they assert. The discovery hearing was scheduled for September 14 at that point. Lo and behold, what did that dastardly meanie IBM do? They filed an ex parte motion asking for more time to answer SCO's supplemental memorandum, so they could get declarations to answer the new points SCO raised. SCO filed an opposition brief immediately, but Judge Wells granted IBM's request anyway. SCO adds it isn't sure if Judge Wells had a chance to see their opposition papers before issuing her ruling. So the hearing got scheduled for October 19. SCO frantically offered to withdraw its supplemental memorandum without prejudice, so that the discovery hearing could stay on the September 14 date. Judge Wells, however, "declined to reconsider her Order". Is that not funny? SCO, by its tactics, shot itself in the foot. It just would keep filing more documents. And so it came to pass that the hearing on IBM's 10 counterclaim was heard before SCO's discovery matters. They imagine that makes all the difference. If we put these two documents together with the notes from the hearing yesterday, it puts into perspective Judge Kimball telling them at the end that if any hearing was required, they could do it by phone. Methinks their hyperbolic, over-the-top language, accusing IBM of skullduggery galore backfired. Some of the documents they have submitted have seemed really mean-spirited. Maybe they struck the Court the same way. Now judges don't decide matters on the basis of emotion. It's on the law. I see one point they raise that at first glance may have some validity regarding the 9th Counterclaim, and I'll be looking forward to reading what IBM writes in response, but SCO's nasty and histrionic rhetoric makes it hard to credit anything they say. And, frankly, when a party starts to make you gag, it surely doesn't help their cause.
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Authored by: ankylosaurus on Thursday, September 16 2004 @ 03:18 AM EDT |
---
The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 03:21 AM EDT |
Where they won't mingle with anything germane. [ Reply to This | # ]
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- David Boise absence & change to compensation plan - Authored by: Anonymous on Thursday, September 16 2004 @ 03:37 AM EDT
- David Boies - Authored by: Mike Steele on Thursday, September 16 2004 @ 03:45 AM EDT
- System Five, or System Vee? - Authored by: Anonymous on Thursday, September 16 2004 @ 04:19 AM EDT
- System Five, or System Vee? - Authored by: Anonymous on Thursday, September 16 2004 @ 04:53 AM EDT
- System Five, or System Vee? - Authored by: Anonymous on Thursday, September 16 2004 @ 07:06 AM EDT
- System Five, or System Vee? - Authored by: Anonymous on Thursday, September 16 2004 @ 07:11 AM EDT
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- Sysvee - Authored by: Anonymous on Thursday, September 16 2004 @ 08:47 AM EDT
- Sysvee - Authored by: Stinger on Friday, September 17 2004 @ 04:05 AM EDT
- Augh not again! - Authored by: Anonymous on Friday, September 17 2004 @ 11:46 AM EDT
- Sysvee - Authored by: Anonymous on Thursday, September 16 2004 @ 10:01 AM EDT
- Sysvee - Authored by: rc on Monday, October 18 2004 @ 07:44 PM EDT
- System Five, or System Vee? - Authored by: elderlycynic on Thursday, September 16 2004 @ 07:49 AM EDT
- System Five, or System Vee? - Authored by: Anonymous on Thursday, September 16 2004 @ 04:54 AM EDT
- System Five, or System Vee? - Authored by: TimMann on Thursday, September 16 2004 @ 02:22 PM EDT
- You say 'egg plant', I say 'aubergine' - Authored by: Anonymous on Thursday, September 16 2004 @ 06:05 PM EDT
- Anyone care to explain to me the thinking behind this? - Authored by: cpw on Thursday, September 16 2004 @ 05:47 AM EDT
- 10 security vulns found in Mozilla, already patched. - Authored by: archonix on Thursday, September 16 2004 @ 06:23 AM EDT
- I'm confused - Authored by: sappha58 on Thursday, September 16 2004 @ 08:06 AM EDT
- The times they are a changin' - Authored by: cpw on Thursday, September 16 2004 @ 08:35 AM EDT
- Japanese negotiation tactics - Authored by: Anonymous on Thursday, September 16 2004 @ 10:20 AM EDT
- Deseret News on yesterday's hearing - Authored by: Anonymous on Thursday, September 16 2004 @ 10:28 AM EDT
- Salt Lake Tribune's article on yesterday's hearing - Authored by: Anonymous on Thursday, September 16 2004 @ 10:33 AM EDT
- Patents delayed innovation on steam engines - Authored by: Anonymous on Thursday, September 16 2004 @ 01:14 PM EDT
- Question nobody seems to have asked - Authored by: Anonymous on Thursday, September 16 2004 @ 02:22 PM EDT
- OT: Economist awards Linus Torvalds - Authored by: WojtekPod on Thursday, September 16 2004 @ 02:48 PM EDT
- Calling it the way it is - Authored by: Anonymous on Thursday, September 16 2004 @ 05:34 PM EDT
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Authored by: Anthem on Thursday, September 16 2004 @ 03:30 AM EDT |
We love your dedication, but don't lose too much sleep, kay? [ Reply to This | # ]
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Authored by: Vaino Vaher on Thursday, September 16 2004 @ 03:52 AM EDT |
Those e-mails that SCO refers to: Are they available somewhere for the rest of
us to see?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 03:58 AM EDT |
It seems to me that SCO's "masterplan" can be clearly discerned from
yesterday's hearing and their last press conference. From the hearing we
learned that they were unwilling to invest any money on experts or code
comparisons to develop evidence. From the press conference we discover that
they are willing to invest $31 million for legal representation.
All those lawyers and no evidence spell HOAX to me! [ Reply to This | # ]
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Authored by: Philip Stephens on Thursday, September 16 2004 @ 04:04 AM EDT |
You have to wonder how long SCO thinks they can continue to lie about what Judge
Wells ordered IBM to produce in discovery, before they will get called on it.
It's quite astonishing to see SCO continue to push their ridiculous theory of
copyright infringement, even in the face of claiming that the case is not about
copyright infringement, and that the contract is all that matters.
They are simultaneously trying to get CC10 thrown out on the grounds that it's
too broad (even though IBM have clearly stated it's only about their alleged
infringements), and at the same time trying to rewrite copyright law to include
"the plot" of software as a protectable element. At no point have
they provided any rationale as to why their theory should even be entertained by
the court, let alone given the court a reason to order IBM to hand over every
revision of every file in AIX and Dynix. Instead, they continue to perpetuate
the lie that Judge Wells did in fact make such an order--a lie that Judge Wells
is not likely to be amused by. Why else would she have allowed the hearing to
be postponed under after yesterday's hearing?
There is no doubt about it: everything that SCO's lawyers are filing now is out
of sheer desperation, knowing that their backs are against the wall and they
have no case to speak of. It would be funny if it weren't so pathetic.[ Reply to This | # ]
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Authored by: DeepBlue on Thursday, September 16 2004 @ 05:00 AM EDT |
What a lovely read :-)
SCOX admits that IBM will win, nice hint to the Judge there - "Go ahead and
grant the PSJs, we don't have any evidence to stop them."
I think the audience is the public for this one - initially I thought it might
be the Appeals Court but they're not going to be impressed by SCOX's lying about
Judge Wells' orders are they?
All this whining about discovery is nonsense - for the copyright complaints you
compare Unix and Linux (as the Judge appeared to get yesterday) and for the
contract claims you only need to look at the contract, as SCOX has now conceded
that it is unambigous.
:-)
---
You shall know the truth and the truth shall set you free.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 05:01 AM EDT |
I found the following analyses at
http://www.bitlaw.com/source/cases/copyright/altai.html
regarding in my opinion a very similar lawsuit between CA and Altai regarding a
piece of software called "CA-SCHEDULER" in which judgement was
delivered in 1991.
I quote from the analyses for the benefits of those who still do not understand
(including it appears SCO's lawyers) what the term "copyright
protection" specifically *excludes*:
"In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work."
[ Reply to This | # ]
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Authored by: Steve Martin on Thursday, September 16 2004 @ 06:53 AM EDT |
Waitaminnit...
"SCO demonstrated in detail why IBM's refusal
produce [sic] that discovery — some of which SCO requested more than a
year ago, and some of which the Magistrate Judge had ordered IBM to produce
six months ago &mdash meant that SCO ..."
And yet, further
down in the same document:
"IBM not only has undertaken the
above-described conduct, but has done so in a context in which there is no
real chance that the Court will not order IBM to produce the
discovery."
Okay, guys, which is it: did or did not
the Court order the production of this preccciooouusssss
discovery?
--- "When I say something, I put my name next to it." --
Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: elderlycynic on Thursday, September 16 2004 @ 07:11 AM EDT |
Decimate really means to reduce by a tenth, not to reduce to a
negligible proportion (page 2 of SCO's polemic), though the
modern use tends to be to reduce to a tenth. It was originally
a punishment in the Roman army for things like running away
from the enemy, where one soldier in ten was killed.
Frankly, SCO's only hope is to apply the technique to their
lawyers. This sort of verbose and vague polemic is what
politicians do, and can have a considerable effect on the
less
informed sections of the public, and often on the media. But
judges have heard this sort of thing before. What is the
saying?
If the law is against you, pound the facts.
If the facts are against you, pound the law.
If the law and facts are against you, pound the table.
[ Reply to This | # ]
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Authored by: blacklight on Thursday, September 16 2004 @ 07:23 AM EDT |
"SCO frantically offered to withdraw its supplemental memorandum without
prejudice, so that the discovery hearing could stay on the September 14 date.
Judge Wells, however, "declined to reconsider her Order"."
Considering the fact that SCOG's entire strategy is based on creating delay and
more delay, SCOG must be powerfully terrified to sacrifice this bit of delay. At
this point in time, it is much more likely than not that SCOG has pretty much
wrecked its credibility with judges Kimball and Wells - Not a good thing for
SCOG to do it to itself when SCOG is on the cusp of a series of hearings that
are crucial to SCOG's future. But I disgress. At some point in the near future,
the judges' concern will shift from making up their minds to crossing the t's
and dotting the i's to ensure their decisions are appeals proof.[ Reply to This | # ]
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Authored by: WhiteFang on Thursday, September 16 2004 @ 08:03 AM EDT |
One of the priceless tidbits out of this court date is the clarification that
SCOX did _not_ perform the widely reported 'deep dives'.
This means that Darl and Co lied in public. {Yes, we already knew that}. And
this leads us to the concept of 'due diligence'. I think we finally have an
admission in open court which will make McBride, Sonntag et al _personally_
liable. Or, at the very least, provide a very broad avenue of attack for
shareholders to go after Darl's _personal_ funds. This is despite the protection
the board voted themselves prior to initiating the lawsuits.
I know there are at least two Yahoo Finance Board posters whom are retaining
significant shares in order to pursue this.
I can hardly wait for the transcript![ Reply to This | # ]
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Authored by: tclark on Thursday, September 16 2004 @ 08:07 AM EDT |
SCO says over and over that IBM has failed to produce discovery materials that
the court has ordered it to turn over. What exactly has the court
ordered IBM to produce, and have they produced it? [ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 08:26 AM EDT |
Their strategy is neatly unmasked by this supplemental memo. It seems
that
the reason they made so little effort to defend themselves against IBM's
10 CC
was that they were trying to get it put off pending full discovery of AIX
and
Dynix code. The hearing on the 14th would have
the judge taking the matter
under advisement, then the hearing on the 15th
similarly, but crucially AFTER
SCO's request for more discovery. If he granted
the former - and here their
arguments are strongest - he might possibly
postpone the latter, if he accepted
that their derivative code theory sounded
at least plausible. Now the 10th CC
is likely to be judged in complete and
embarrassing isolation from the contract
claims. They haven't answered
Randall Davis's testimony. There is 'no dispute
as to any material fact' since
Chris Sontag recently admitted in his supplement
to his testimony that there
was no literal copying of UNIX in Linux. There
doesn't now seem much that
the judge can do but grant IBM's request. [ Reply to This | # ]
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Authored by: eggplant37 on Thursday, September 16 2004 @ 08:49 AM EDT |
<a href=http://www.sltrib.com/business/ci_2417195>Here's the
article.</a>[ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 08:58 AM EDT |
Does anyone know what happened a few days ago that stopped GrokLaw from being
accessed via a squid proxy server? I can get to GrokLaw if I turn off the proxy;
turn it on and GrokLaw times out. Boo hiss.... Anyone?
tia[ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 09:07 AM EDT |
PJ wrote: I see one point they raise that at first glance may
have some validity regarding the 9th Counterclaim, and I'll be looking forward
to reading what IBM writes in response.
Perhaps its a feint
by IBM -- make an obvious overplay (PSJ on CC9 before AIX discovery) and hope
TSCOG focus on that. As AiP noted, TSCOG often respond with only one "good
reason why", compared with IBM's typical "defence in depth".
I'm sure many
would be happy with the PSJ on CC10 being granted, followed by limited discovery
on AIX history pertaining to CC9 only. TSCOG would not be among those
celebrating though. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 09:45 AM EDT |
For me, this is the funniest moment of the whole ordeal. To think that IBM
gutshot SCO using what? That's right ... a motion to DELAY! I have never seen
such raw panic in a lawyer's filings before.
Absolutely poetic -- a thing of beauty (tm).
-Storch[ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 10:01 AM EDT |
Sco Clown: "Objection, your honor!"
Judge: "On what grounds?"
Sco Clown: "Because it is devastating to my case!"
/obvious[ Reply to This | # ]
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- due credit - Authored by: Anonymous on Thursday, September 16 2004 @ 11:17 PM EDT
- due credit - Authored by: Tech on Friday, September 17 2004 @ 08:34 AM EDT
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Authored by: prhodes on Thursday, September 16 2004 @ 10:36 AM EDT |
It seems obvious to me that the whole disagreement about copyrights & the
discovery needed rests on SCOs definition of derivative works (i.e., non-literal
copying). So... can Kimball or Wells officially recognize this and ask for a
briefing? For example, ask SCO to brief their definition of derivative with
supporting cases, get IBMs response, and then SCOs re-response. Would this be
allowable, or would it open the judge up for an appeal?
From what I have read here & my own understanding, SCOs theory hasn't got a
snowball's chance of standing, but it would be nice to get it spelled out. Or
is it so clearly wrong that the judge sees it, and doesn't need to rule?
-Phil
[ Reply to This | # ]
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Authored by: pscottdv on Thursday, September 16 2004 @ 10:41 AM EDT |
I see one point they raise that at first glance may have some
validity regarding the 9th Counterclaim, and I'll be looking forward to reading
what IBM writes in response
For the benefit of those who
have not had time to read the supporting memorandum, the argument is essentially
this: IBM seeks to have *all* versions of AIX declared clean of any copyright
infringement, but IBM hasn't given them access to their code repository so how
can they check all versions? They need access to the repository to prepare
against this 9th counterclaim.
Two questions:
1. Is this not the
first time they have raised this argument? Isn't it a little late to be putting
forth brand new arguments in an *emergency* document that purports to explain
all the bad things that IBM has been doing to create the emergency? It reminds
me of
this
cartoon.
2.
Is it too late for IBM to change their 9th counterclaim to say that they only
want to clear released versions of AIX rather than all versions? [ Reply to This | # ]
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Authored by: Nivuahc on Thursday, September 16 2004 @ 11:26 AM EDT |
I just got my copy of SuSE Linux 9.1 Pro delivered via Fedex today and, I have
to say, in reading the Administration Manual... I could almost cry.
Two
years ago, when I setup my first 'real' server using Mandrake, I
struggled so much just to figure out what I needed and, then, how
to install it and configure it to make it do what I wanted.
I have never
read a manual so well put together or so comprehensive as this. If I'd have had
this thing 2 years ago (other than it, obviously, being way ahead of that time,
I know) I could have saved myself so much pain and agony. If something this well
put together had been available... man, oh man.
The manuals, alone,
are worth way more than the $89.00 I paid.
And they even gave me a neat
little sticker that I intend to put on my car windshield. :D
--- My
Doctor says I have A.D.D... He just doesn't understand. It's not like... Hey!
Look at that chicken! [ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 12:10 PM EDT |
first question: In other analysis efforts, when the subject seems too big to
hangle, the analyst starts dividing up the question. So, since SCO says 'this
huge thing has been copied' but refuses to present specifics, why can't the
judge ask 'ok, you refuse to answer the question on the grounds that it is too
vast a piece of code. here is your material divided up into <some number of
parts>. Which of these parts do you claim have been
copied (by any theory of copying)?' By subdividing and subdividing the
'material', they would rapidly do away with the volumn of discovery neccessary
to ANY theory of copying.
It seems to me that the judge could do this and should do this in order to
reduce discovery burden. And why doesn't IBM do this as well? And simply ask
which parts are in question? Or ask the judge to ask SCO? It seem like this
approach would be more likely to resist appeal.
second question: why can't (or won't) the judge simply ask what the model for
the process is and how it relates to the contract? If the model is 1) 'A IBM
programmer saw SCO Unix Source' (stipulated), 2a) 'IBM programmer wrote code
that that does not resemble any SCO Source code' (stipulated)
OR 2b) 'IBM programmer wrote code that included copied
SCO Source Code' THEN 2C) 'IBM programmer rewrote code
and published code in form that does not resemble any SCO Source Code.' (also
stipulated), then couldn't the judge simply rule whether the contract covers
that model?
The thing is that IBM should stipulate ALL of these options including 2B , since
thay are likely to have happened and simply get a ruling. What I'm hearing is
that all of these alternatives are non-infringing on copyright.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 12:15 PM EDT |
SCOs lawyers are thowing money at SCO's legal problems in the form of endless
motions. It was only a matter of time before this blizzard backfires. There is
always the little detail of unintended consequences that comes back and bites
hard.
My guess is that focused, effective and spot-on legal work need not be this
extravagant.
[ Reply to This | # ]
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Authored by: pooky on Thursday, September 16 2004 @ 12:33 PM EDT |
Looks like the cats out of the bag. Methinks SCO is setting up an argument for
an appeal because this court will not order IBM to give SCO what it wants, which
is tons of data to sift through to find some evidence that IBM broke their
contract so they can reap the damage award. I mean, how clear is a statement
that essentially reads "If the court won't help us IBM will win due to
tactics and not merit". Sounds like a great argument for an appeal.
Of course SCO is delaying, they can't get what they really want which is to
conduct their fishing expedition on all of IBM's code. If this court won't let
them, then perhaps the next court up the food chain will order it.
-pooky
---
If at First You Don't Succeed, Skydiving Isn't for You.[ Reply to This | # ]
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Authored by: Thomas Frayne on Thursday, September 16 2004 @ 01:33 PM EDT |
I OCR'd the memo, and will spell check and convert to html this morning.
Meanwhile, here is a summary of SCOG arguments. SCOG mixes its arguments about
contract issues with arguments that SCOG needs more discovery to oppose IBM's
CC10 PSJ motion. I think that separate threads should separate these arguments
and their refutations into two subtheads: "Post SCOG's CC10 PSJ arguments
and counter-arguments here", and "Post SCOG's contract arguments and
counter-arguments here". I'll submit place holder comments immediately
after this post.
As I recall the reports from yesterday, Kimball has allowed IBM to file a
response memo in about a week, and SCOG to reply in another two days. Following
that will be an expedited hearing by telephone. I think that the issues in that
hearing will be:
* IBM stonewalled discovery
* IBM delayed hearing to avoid discussion on merits
* IBM defied March court order
* SCOG is entitled to discovery related to the CC10 PSJ to produce and present
evidence that will refute the PSJ motion.
I think that Judge Kimball can rule on the first three items with the
information he has now. If he can rule on the last item without deciding
whether SCOG complied with the March court order, then he can then rule that
SCOG has presented no admissible evidence to refute the IBM CC10 PSJ, and is not
entitled to discover or present more. He could then grant the CC10 PSJ without
prejudicing SCOG's opportunity to argue that it complied with the March order.
Otherwise, Kimball will probably delay a ruling on the CC10 PSJ until after he
has read a transcript of the October 29 hearing.
Here is a summary of the arguments in SCOG's memo.
I. IBM Has Long Refused to Produce Directly Relevant
Discovery
* June 10, 2004 Order provided for an extended discovery period IBM has
stonewalled SCO in critical discovery while simultaneously seeking to force,
through three fact-intensive summary judgment motions, the Court's accelerated
adjudication of fact issues that SCO needs the outstanding discovery to oppose.
* Judge had ordered IBM to produce six months ago.
* IBM has now made matters orders of magnitude worse by seeking and obtaining
its latest delay The delay converts the likelihood that IBM would undercut the
Court's control into a guarantee that IBM will prevail without ever having to
defend its conduct on the merits.
II. There Can Be No Serious Doubt That SCO Is Entitled to
discovery
* No real chance that the Court will not order IBM to produce the discovery.
The discovery:
• contains the identities of key deponents ordered by the Court over six
months ago;
• contains likely admissions on the view IBM and Sequent took at the time
• contains the only way of showing how IBM and Sequent violated the very
contract theories that IBM incorrectly claims SCO does not possess
• contains the only remotely efficient way of investigating non-literal
copyright infringement
• contains the only conceivable way of defending against IBM's Ninth
Counterclaim, which asks the Court to find that nothing in the history of its
AIX program (independent of anything that later happened with Linux) violates
any SCO copyright - because the discovery sought contains the only centralized
repository of that entire AIX history.
IBM once contended that SCO had represented to the Court that it had completed
the necessary investigation, but IBM dropped that contention when SCO showed it
to be based on blatant distortions of the discovery record. IBM then argued,
instead, that SCO Should be forced use the most inefficient, time-consuming
means of investigating non-literal copying, even though discovery would
streamline this process; even though IBM was trying to cut short the
investigation process; and even though it would take IBM only "weeks"
to produce such discovery to make the process much more efficient instead of
grossly inefficient.
III. IBM's Most Recent, and Successful, Effort to Delay Discovery Was a
Mere Pretext
* IBM tried to put off SCO's core discovery for sixteen months, even in the face
of Court orders, threatened to give IBM control over the proceedings.
* IBM contended that there was no need for discovery of the early development of
the AIX and Dynix programs, performed in dependence on UNIX. IBM asked the
Court to deem the entire history of the AIX program free from copyright
infringement, but withheld the repository of that entire AIX history.
* SCO provided an illustration of the prejudice to SCO if IBM did not produce
that material. SCO presented e-mails only as illustrative ancillary points to
note the dangers.
* SCO agreed to a hearing date on September 14. IBM filed an ex parte motion
seeking to continue that hearing for time to respond to the supplemental
memorandum that SCO had filed.
* IBM's motion was a meritless, indeed pretextual, effort to delay.
* SCO shows above that the memorandum did not remotely raise any new factual
matter.
* IBM would be able to escape review on the merits for so long that any remedy
would come too late.
• IBM's sole response in its opposition brief was that out of the numerous
e-mails that SCO had filed under seal with its Supplemental Memorandum, two such
e-mails had to be returned on the purported basis that they were privileged.
• SCO never contested IBM's right to seek such return without first
litigating the issue of whether the documents had been inadvertently produced.
* SCO stated that it would not hold back the return of the two e-mails, but
that the other documents cited in SCO's supplemental memorandum were more than
sufficient to illustrate its point about its need for systematic, as opposed to
haphazard, document discovery.
• IBM had been unwilling to provide even the minimal infonnation about the
two e-mails that would have been required for IBM to place those documents on a
privilege log.
• Rather tha raising any claimed need for additional time or factual
material when it had ample time to respond to SCO's supplemental memorandum, IBM
waited for the Judge to grant SCO's motion for leave to file that brief and then
seized on that opportunity to seek a delay.
* IBM argued - for the first time, and without any substantiation - that SCO's
original memorandum and reply memorandum had raised "a number of new
arguments and issues to which IBM has not been permitted to respond" and
that "SCO's filings suggest that IBM must secure declarations to address
the new issues raised in SCO's papers."
[ Reply to This | # ]
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Authored by: Thomas Frayne on Thursday, September 16 2004 @ 01:35 PM EDT |
Post SCOG's CC10 PSJ arguments and counter-arguments here [ Reply to This | # ]
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Authored by: Thomas Frayne on Thursday, September 16 2004 @ 01:37 PM EDT |
Post SCOG's contract arguments and counter-arguments here [ Reply to This | # ]
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Authored by: rsmith on Thursday, September 16 2004 @ 03:39 PM EDT |
[begin of page 2]
SCO respectfully submits this memorandum in support
of its ex parte motion
for a case managment conference at the Court's earliest
possible
convenience to address an emergency that was injected into this case
late
last week - the resolution of which cannot be deferred without
effectively
deciding this dispute in IBM's favor based on its litigation
tactics, and
wholly independent of the merits. The problem has heen building for
an
extended period of time, and SCO has documented it step by step. As of
last
week, the problem had reached a point where the aggregated and
compounded
threat from IBM tactical maneuvers - IBM's blocking of discovery
coupled
with its attempted acceleration of adjudication - forced SCO to seek
what
was already unusual relief in the form of a request to the Court to
enforce
its Amended Scheduling Order against IBM's attacks. As SCO
explained, the
Court's amended Scheduliny Order had been seriously
undermined by coordinated
IBM maneuvers that not only bore no relation
whatsoever to the merits of this
case but were in fact designed to shield
IBM's conduct from scrutiny on the
merits. Relief was needed to ensure
that SCO would receive even a remotely fair
opportunity to use the
Court's extended discovery period for its intended
purpose.
Now, however, IBM has pushed this long course of conduct past
the brink,
creating an emergenty situation in which absent immediate
Court
intervention, SCO will be extremely prejudiced in its ability to
develop
and prove its case regardless of the outcome of SCO's efforts
to
obtain the outstanding discovery, and even if SCO is completely
right
on the merits of its claims and IBM is completely
wrong. It is because
IBM's latest step would so decimate SCO's rights
to pursue its claims that IBM
has brought this proceeding to the status of
an emergency and compelled SCO's
instant Motion.
SCO has demonstrated in recent filings over the past
several months that
IBM's coordinated campaign to block long-sought, and
Court-ordered,
discovery would preclude SCO
[end of page
2]
--- Intellectual Property is an oxymoron. [ Reply to This | # ]
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- page 3 of the support memo - Authored by: rsmith on Thursday, September 16 2004 @ 04:02 PM EDT
- page 2 of the support memo, OCR-ed and cleaned-up - Authored by: blacklight on Thursday, September 16 2004 @ 04:05 PM EDT
- page 4 of the support memo, OCR-ed and cleaned-up - Authored by: rsmith on Thursday, September 16 2004 @ 04:26 PM EDT
- page 5 of the support memo, OCR-ed and cleaned-up - Authored by: rsmith on Thursday, September 16 2004 @ 04:45 PM EDT
- page 6 of the support memo, OCR-ed and cleaned-up - Authored by: rsmith on Thursday, September 16 2004 @ 05:10 PM EDT
- SCO shouting - Authored by: webster on Thursday, September 16 2004 @ 05:48 PM EDT
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Authored by: tangomike on Thursday, September 16 2004 @ 03:54 PM EDT |
Since Darl and his rustlers have been (mostly) gagged since about May, I've
missed the footgun. It's nice (as in warm and fuzzy) to see that Darl has passed
it along to BS&F. Apparently, it's still in working order. In fact, it may
have been rebarreled for a higher calibre, explosive round.
---
The SCO Group's secret project to develop Artificial Stupidity has obviously
succeeded!
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 04:07 PM EDT |
It's still going in the U.S. too, along with several
imitators. But it's not nearly as popular as it was in the
'70s. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 16 2004 @ 06:11 PM EDT |
Article includes a very interesting interpretation of what the $31 million
cap is about. The author thinks the lawyers realized the case is going to fail
and they will never get any contingency fees, so they are trying to minimize
their expenses.
link [ Reply to This | # ]
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Authored by: Flower on Thursday, September 16 2004 @ 07:11 PM EDT |
Ok, I've gone over the minutes for the previous discovery rulings and now I'm
getting confused. I think the pertinent doc is IBM-109 and in it Judge Wells
specifically states:
1. To provide the releases of AIX and Dynix
consisting of "about 232 products" as was represented by Mr. Marriott at the
February 6, 2004 hearing. The releases are to be provided within 45 days of the
entry of this order. Following the production, SCO is to provide additional
memoranda to this Court indicating if and how these files support its position
and how they are relevant. The memorandum is to include with specificity, and to
the extent possible, identification of additional files SCO requests and the
reasons for such requests. The court will then consider ordering IBM to produce
more code from AIX and Dynix. See American Medical Systems, Inc. v. National
Union Fire Ins. Co., 1999 WL 562738, p. 2-3 (ordering a party to first "procure
relevant documents" and then reconsidering the discoverey request for the
production of more documents).
I just don't see it as any simpler
than that. SCO was specifically told that they would get their 232 versions of
AIX or Dynix and if they wanted more they would have to show the court
proof that they found something. Well, where is it? SCO keeps blasting
rhetoric through overlength documents but where is the document saying "We found
this and want to follow up by looking into more code."?
This just looks to be
some massive revisionist history here and I don't understand where SCO's legal
team is getting the footing to assert it. --- You make me out to be
responsible for your self-inflicted misery. - "Faceless" Godsmack [ Reply to This | # ]
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Authored by: Nick.Barnes on Friday, September 17 2004 @ 09:28 AM EDT |
Anyone willing to transcribe the memorandum (IBM-300) please comment in this
thread.
I'll take the motion (IBM-299).[ Reply to This | # ]
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