decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Order Granting SCO Leave to File Overlength Reply Memo re Expedited Motions
Thursday, September 30 2004 @ 12:32 PM EDT

Here is the Order giving SCO, once again, leave to file another over-length reply memorandum. This would be their Reply Memorandum regarding their two expedited motions, for a scheduling conference and to "enforce" the scheduling order.

**************************

Brent O. Hatch (5715)
Mark F. James (5295)
Mark R. Clements (7172)
HATCH, JAMES & DODGE
[address, phone, fax]

Robert Silver (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

_________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


_________________

THE SCO GROUP, INC.

     Plaintiff/Counterclaim-
     Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

     Defendant/Counterclaim-
     Plaintiff.

_________________

ORDER GRANTING
PLAINTIFF'S EX PARTE MOTION
FOR LEAVE TO FILE OVER-
LENGTH REPLY MEMORANDUM

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge, Brooke Wells

_________________

This matter comes before the Court on the Ex Parte Motion of Plaintiff/Counterclaim-Defendant The SCO Group ("SCO") for Leave to File an over-length Consolidated Reply Memorandum in Further Support of SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order and Emergency Motion for a Scheduling Conference. The Court, having considered the matter, hereby determines that good cause and exceptional circumstances exist and here ORDERS that SCO be granted leave to file its over-length Memorandum.

DATED: September 27, 2004

     BY THE COURT:

     ___[signature]___
     Honorable Dale A. Kimball


CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, hereby certifies that a true and correct copy of [Proposed] ORDER GRANTING PLAINTIFF'S EX PARTE MOTION FOR LEAVE TO FILE OVERLENGTH REPLY MEMORANDUM was served on Defendant International Business Machines Corporation on this 24th day of September, 2004, by U.S. mail, postage prepaid to:

     Alan L. Sullivan, Esq.
     Todd M. Shaughnessy, Esq.
     Snell & Wilmer L.L.P.
     [address]

Copy to:
     Evan R. Chesler, Esq.
     Cravath, Swaine & Moore LLP
     [address]

     Donald J. Rosenberg, Esq.
     [address]

     Attorneys for Defendant/Counterclaim Plaintiff IBM Corp.

     ___[signature of Mark F. James]___


United States District Court
for the
District of Utah
September 27, 2004

* * CERTIFICATE OF SERVICE OF CLERK * *

Re: 2:03-cv-O0294


True and correct copies or the attached were either mailed, faxed or e-mailed
by the clerk to the following:


Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]
EMAIL

Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]

Frederick S. Frei, Esq.
ANDREWS KURTH
[address]

Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]
EMAIL

Mr. Alan L Sullivan, Esq.
SNELL & WILMER LLP
[address]

Todd M. Shaughnessy, Esq.
SNELL & WILMER LLP
[address]
EMAIL

Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL

Mr. Kevin P McBride, Esq.
[address]
EMAIL

Robert Silver, Esq.
BOIES SCHILLER & FLEXNER
[address]

Mr. David W Scofíeld, Esq.
PETERS SCOFIELD PRICE
[address]
EMAIL

  


Order Granting SCO Leave to File Overlength Reply Memo re Expedited Motions | 196 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: AntiFUD on Thursday, September 30 2004 @ 12:37 PM EDT

If any!

---
IANAL - But IAAAMotFSF - Free to Fight FUD

[ Reply to This | # ]

Trolls and derogatory comments re: PJ's editorial style here
Authored by: AntiFUD on Thursday, September 30 2004 @ 12:40 PM EDT

Go on ... you know you want to!

---
IANAL - But IAAAMotFSF - Free to Fight FUD

[ Reply to This | # ]

Expressions of surprise at this latest turn of events here please
Authored by: AntiFUD on Thursday, September 30 2004 @ 12:42 PM EDT

Wow, what a novel concept!

---
IANAL - But IAAAMotFSF - Free to Fight FUD

[ Reply to This | # ]

OT stuff here.
Authored by: Franki on Thursday, September 30 2004 @ 12:47 PM EDT
WoooHoooo, patent office rejects Microsoft FAT patent.

Microsoft FAT patent rejected!!!!!!!!

Franki

---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86

[ Reply to This | # ]

OT - Off-Topic here please
Authored by: AntiFUD on Thursday, September 30 2004 @ 12:48 PM EDT
If posting a link to an article on the World Wide Web, please try to use the
HTML Formatted mode and make it easy to click on a link and follow it directly
to the article of interest by using an Anchor tag.
<a href="http://example.url/">visible text</a>

This is also the place to start discussions unrelated to the topic(s) of the
original story.

Please choose new and appropriate titles for unrelated topics.

---
IANAL - But IAAAMotFSF - Free to Fight FUD

[ Reply to This | # ]

Who writes the order granting leave ?
Authored by: Anonymous on Thursday, September 30 2004 @ 12:57 PM EDT
It seems strange that the order granting leave to submit says
"hereby determines that good cause and exceptional circumstances exist and
here"


Why do I get a feeling that we'll hear SCO claiming at the next press conference
that the judge said that they had "good cause and exceptional circumstances
exist"

Is this written by SCO and just signed by the judge, or is this normal wording
for these documents ?

Or are we all at groklaw just getting a little too paranoid :-)

[ Reply to This | # ]

Is this permission to file IBM-308?
Authored by: Anonymous on Thursday, September 30 2004 @ 01:30 PM EDT
I thought they had already filed IBM-307/308 with 308 being the redacted version
of 307. Is this permission to file yet another one, or just permission to file
what TSG had already submitted to the court?

Also, are we going to get the text version of 308 posted with the insightful PJ
commentary?

Pugs (who isn't logged in)

[ Reply to This | # ]

Exceptional circumstances?
Authored by: Anonymous on Thursday, September 30 2004 @ 01:41 PM EDT

Oh stop it! My sides are hurting!

[ Reply to This | # ]

What good is a limit?
Authored by: Anonymous on Thursday, September 30 2004 @ 02:00 PM EDT
Has SCO filed any motions that meet the required length limit?

Come on court, why even have a limit on brief length if you are going to simply
allow SCO to file overlength briefs for each and every one of their nonsense
motions. Better to simply tell them..."Plaintif has been given ample
opportunity to make their concerns noted before the court. If this brief is
simply another rehash of your previous positions and does not raise new issues,
please stick to the length limitation."

[ Reply to This | # ]

Why all the long, rambling repetitive memos?
Authored by: Anonymous on Thursday, September 30 2004 @ 02:07 PM EDT
The main reason (trying to confuse the court with volume to compensate for the
lack of having any actual evidence to present) has already been covered.
However, there may be a secondary reason. We all believe this litigation could
become a real cause celebre to be studied by many in years to come. Just maybe,
these long boring epistles are designed to deter future study of the case.

[ Reply to This | # ]

"Magistrate" Judge?
Authored by: Anonymous on Thursday, September 30 2004 @ 02:11 PM EDT
I have been wanting to ask this question--what is a "Magistrate"
Judge? What
is Judge Wells' relationship to Judge Kimball, are they peers or is there a
hierarchy here?

[ Reply to This | # ]

Will any of these requests ever be deinied?
Authored by: whoever57 on Thursday, September 30 2004 @ 02:28 PM EDT
It looks to my inexpert eye that SCO is abusing the system. Since the motions
rehash the same arguments over and over again, there is no "good
cause" for the overlength motions.

So, what would cause a denial of such a motion? The end of the world? I know
that judges don't want to be overruled on appeal, but, by allowing this
succession of overlength documents, the judge is just lining himself up to
receive the same in all his future cases.

[ Reply to This | # ]

Grandma's Chocolate Chip Motions
Authored by: Anonymous on Thursday, September 30 2004 @ 03:27 PM EDT
To a number of blank pages, add the:
Misunderstandings
Misquotes
Unsubstantiated allegations
Poor research
Outright lies
Blend in as much verbage as the court will allow.
Add dashes of righteousness and incredulity until the palate is overcome.
Bake at 350 degrees until half done.
Serve with a garnish of unrepentant greed.
(Chocolate chips may be added if desired.)

[ Reply to This | # ]

OT: Royal Bank all shook up
Authored by: Anonymous on Thursday, September 30 2004 @ 03:57 PM EDT

On May 7, 2004 Royal Bank backed out of the SCO PIPE deal when it announced that it had sold 20,000 of its SCO Series A-1 preferred stock to BayStar. Royal Bank converted its remaining 10,000 Series A-1 preferred shares into SCO common stock at a conversion price of $13.50 per common share.
SCO press release

In May, 2004 Royal Bank decided to have a management shakeup.

"Royal Bank began studying changes in May, although the U.S. problems were ``absolutely not'' the impetus for them, said spokesman David Moorcroft. Nixon, 47, presented the ideas to the bank's board of directors for approval this afternoon."
Bloomberg, September 9, 2004
Bloomberg, September 10, 2004

"The changes ``mask the real issue here, and that is that Royal has got itself between a rock and a hard place in the U.S.,'' said Alex Zivic, a financial services analyst at CI Fund Management Inc.'s Signature Group of Funds, which manages the equivalent of about $10.9 billion, including Royal Bank."

"Royal Bank spokesman David Moorcroft said the changes were not a result of the U.S. problems, although the reorganization will help that business."
Toronto Star, September 23, 2004

"the new Number 2 executive at the Royal Bank has not been recruited to confront the bank's difficulties in its recent U.S. expansion. Stymiest, it appears, will instead be the Royal's defacto chief ethics officer, given that her responsibilities are to include governance, compliance, regulation and accounting standards."

'Stymiest touted Canada as a gateway to the United States for any offshore company that "isn't quite ready for Sarbanes-Oxley, U.S. GAAP and corporate justice, Mississippi style."'

"Translation: Listing your firm on the TSE enables you to thumb your nose at the Sarbanes-Oxley governance reforms of 2002, implemented in reaction to the scandals at Enron Corp., WorldCom Inc. and other former blue-chip U.S. firms; to fly below the radar of GAAP (generally accepted accounting principles); and rest easy that Canadian courts are reliably more business-friendly than their U.S. counterparts."
Toronto Star, September 30, 2004

--------------------
Steve Stites

[ Reply to This | # ]

Order Granting SCO Leave to Repeat Itself Again
Authored by: rand on Thursday, September 30 2004 @ 04:37 PM EDT
While working my way through SCO's <Inhale> Redacted Consolidated Reply
Memorandum in Further Support of SCO's Expedited Motion to Enforce the Court's
Amended Scheduling Order and Emergency Motion for a Scheduling Conference
</exhale> I was struck particularly by the number of repetitions and
restatements of every argument.

Reminds me of a biology instructor I had. She liked to give long, hard tests,
at least 100 questions every week -- but she always ran out of material half-way
through.

This was actually on the Semester Final:

Page 1:
"_________________ are the sites of cellular respiration.
A. Mitochondria B. Organelles C. Golgi Bodies D. Membranes"
Page 5:
"Mitochondria are the sites of cellular _________________.
A. respiration B. mitosis C. granularity D. division"

I think SCO want the filings to be monumental in scope, but they're runing out
of arguments on the first page, and so are forced to reiterate every point in
each and every following paragraph. Maybe that's to make up for the rather
distinctive lack of evidence.


---
The wise man is not embarrassed or angered by lies, only disappointed. (IANAL
and so forth and so on)

[ Reply to This | # ]

Repeats?
Authored by: Anonymous on Thursday, September 30 2004 @ 05:18 PM EDT
This was covered in IBM & SCO File Docs Re SCO's 2 Expedited Motions that was posted on Monday. Is this how we are handling slow newsdays now? I actually thought that something new had been filed by the way this was presented.

[ Reply to This | # ]

Could the Judge be granting all these because he's hoping...
Authored by: Anonymous on Thursday, September 30 2004 @ 08:32 PM EDT
... that SCO will hit the target (we're not talking bullseye), and give him a
reason to dismiss IBM's judgements? I mean, if the Judge has made up his mind,
one way or the other, then letting SCO file as many (and however long), of these
as they want, really doesn't matter.

I'm guessing he is favoring granting IBM's motions, because if he were going to
rule for SCO, he would just deny their overlength rants, because SCO wouldn't be
disappointed by the outcome. Could this also be why SCO keeps filing them, to
see which way the judge was leaning? If the judge denied them, and then ruled
against them, they might have cause for appeal.

So, to me (and IANAL), the fact the judge would let me keep filing these
overlength legal documents would be the judge's way of saying "Keep a
shooting at the target, cause you ain't hit nothing yet."

[ Reply to This | # ]

Good cause ??
Authored by: Night Flyer on Thursday, September 30 2004 @ 09:13 PM EDT
Honorable Dale A. Kimball wrote: "The Court, having considered the matter,
hereby determines that good cause and exceptional circumstances exist and here
ORDERS that SCO be granted leave to file its over-length Memorandum."
----------
Understanding that this is might be a 'form letter' response from Judge Kimball,
did I miss some point that SCO made? Was there a communication I missed where
SCO showed 'good cause and exceptional circumstances'? Was there a round robin
of phone calls that we were not privy to?
---------------------
I look forward to analyzing this over length submission... It will be
interesting to remove the rhetoric and extra verbiage and discover how many of
the 28 pages were competent, relevant and material... (and how many were
incompetent, irrelevant and immaterial).

---------------
Veritas Vincit: Truth Conquers

[ Reply to This | # ]

Reply Memo re Expedited Motions up at Tuxrocks
Authored by: marbux on Thursday, September 30 2004 @ 11:24 PM EDT
A redacted version of SCO's consolidated reply brief is up at Tuxrocks. (PDF).

[ Reply to This | # ]

Judgement Timetable
Authored by: Anonymous on Thursday, September 30 2004 @ 11:45 PM EDT
Several people have argued quite eloquently that Judge Kimball doesn't need
to wait until the discovery hearing in front of Judge Wells to issue his
judgement on IBM's tenth counterclaim. So why is SCO so desperate to delay
the meeting with Judge Wells.

It seems that if SCO were really desperate to get the revisions of the AIX
releases that they'd want to be able to argue in front of Judge Wells again.
What is it that they are so afraid of? Judge Wells could turn them down, but
can she do other things? End discovery? Cite SCO as being uncooperative?
Fine them? Why are they now so anxious to be out of her courtroom when it
seems like the only remedy they can have to get the intra-AIX revisions is
through her.

While I know that Judge Kimball CAN rule without on the tenth counterclaim
now, does he gain anything by waiting until after the mid-October hearing?
(Assuming that he declines to intervene and change the date of this hearing).

If Judge Kimball ruled now on the tenth counterclaim, and SCO pulled a lame
attempt at a Perry Mason moment by showing a handful of vaguely similar
lines between Unix and Linux at Judge Wells hearing, then wouldn't that give
them grounds for SCO to get his judgement overruled? Or does it?

I see that SCO is in a bad spot. But why are they putting in all the effort that

they are to fight it NOW. It simply seems that the wheels are already moving
and that even trying to put a stick in the spokes to slow them down (like with
this emergency motion) isn't gaining them anything. Or is it?

Sorry, I'm just really baffled by their behavior here.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )