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Stipulation & Order Re Briefing on SCO Motion to File 3rd Amended Complaint - text
Friday, October 29 2004 @ 07:39 AM EDT

IBM is evidently opposing SCO's Motion to File a Third Amended Complaint, which is hardly a surprise. Here is the Order setting forth, on stipulation, the dates for the motion papers to be filed. IBM has until November 23, 2004 to file its memorandum in opposition, and SCO then has until December 21 to reply, all of which means, I'm thinking, that SCO would like to star in a remake of the movie, Bleak House.

Our thanks to Rand McNatt for transcribing these documents.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

-----------------------------

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

----------------------------------

ORDER RE BRIEFING ON SCO'S
MOTION FOR LEAVE TO FILE A THIRD
AMENDED COMPLAINT

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

---------------------------------

Based upon the stipulation of the parties, and good cause appearing, IT IS HEREBY ORDERED as follows:

(a) IBM's Memorandum in Opposition to SCO's Motion for Leave to File a Third Amended Complaint Pursuant to Federal Rules of Civil Procedure 15(a) and 16(b) shall be due on November 23, 2004; and

(b) SCO's Reply Memorandum in Support of its Motion for Leave to File a Third Amended Complaint Pursuant to Federal Rules fo Civil procedure 15(a) and 16(b) shall be due on December 21, 2004.

DATED this 27th day of October, 2004.

BY THE COURT:

___[signature]______
DALE A. KIMBALL
U.S.DISTRICT COURT JUDGE

APPROVED AS TO FORM:

HATCH, JAMES & DODGE, P.C.

____[signature]______
Brent O. Hatch
Mark F. James

Attorneys for Plaintiff


CERTIFICATE OF SERVICE

I hereby certify that on the 27th day of October, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

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

____[signature]_____
Amy F. Sorenson


United States District Court
for the
District of Utah
October 28, 2004

**CERIFICATE OF SERVICE OF CLERK**

Re: 2:03-cv-00294

True and correct copies of 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.
BOISE SCHILLER & FLEXNER
[address]

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

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

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

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

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

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

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

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


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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

-------------------------------

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff

--------------------------------------------------

STIPULATION RE BRIEFING ON SCO'S
MOTION FOR LEAVE TO FILE A THIRD
AMENDED COUNTERCLAIM

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

------------------------------------

The parties, through their counsel of record, hereby stipulate and jointly move the Court for an Order amending the deadlines for briefing as follows:

(a) IBM's Memorandum in Opposition to SCO's Motion for Leave to File a Third Amended Complaint Pursuant to Federal Rules fo Civil procedure 15(a) and 16(b) shall be due on November 23, 2004; and (b) SCO's Reply Memorandum in Support of its Motion for Leave to File a Third Amended Complaint Pursuant to Federal Rules fo Civil procedure 15(a) and 16(b) shall be due on December 21, 2004.

The parties submit herewith a proposed Order confirming these deadlines.

DATED this 27th day of October, 2004.

SNELL & WILMER L.L.P

____[signature]______
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

DATED this 27th day of October, 2004.

HATCH, JAMES & DODGE, P.C.
(sig: Brent O. Hatch)
Brent O. Hatch
Mark F. James

Attorneys for Plaintiff


CERTIFICATE OF SERVICE

I hereby certify that on the 27h day of October, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOISES, SCHILLER & FLEXNER LLP
[address]

Robert Siver
Edward Normand
Sean Eskovitz
BOIES, SCHILLER & FLEXNER LLP
[address]

(sig: Amy F. Sorenson)


  


Stipulation & Order Re Briefing on SCO Motion to File 3rd Amended Complaint - text | 582 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
When will we see the revision?
Authored by: spuluka on Friday, October 29 2004 @ 07:42 AM EDT
Any idea when the revised version will be available for review? Any clues as to
what has been changed?

---
Steve Puluka
Pittsburgh, PA

[ Reply to This | # ]

But IBM's counter-claims are unaffected?
Authored by: Anonymous on Friday, October 29 2004 @ 07:48 AM EDT
I see more delay on the horizon for SCO's claims, but can we still expect IBM's
axe to fall on its present schedule?

[ Reply to This | # ]

OT Here Please
Authored by: Greebo on Friday, October 29 2004 @ 07:51 AM EDT


---
-----------------------------------------
Recent Linux Convert and Scared Cat Owner

[ Reply to This | # ]

Corrections Here Please
Authored by: Greebo on Friday, October 29 2004 @ 07:52 AM EDT


---
-----------------------------------------
Recent Linux Convert and Scared Cat Owner

[ Reply to This | # ]

Why does this always take so long?
Authored by: Greebo on Friday, October 29 2004 @ 07:57 AM EDT
IANAL, so i'm be very curious to know why the parties are given so long to file documents that, I would think, could easily be written a lot faster?

Why not give each party 2 weeks to file? I'm sure with the number of lawyers that both SCO and IBM have this would still be more than enough time.

To my mind this just gives SCO the delay they always seem to be looking for, or have i missed something?

Greebo

---
-----------------------------------------
Recent Linux Convert and Scared Cat Owner

[ Reply to This | # ]

Bleak House
Authored by: Anonymous on Friday, October 29 2004 @ 08:07 AM EDT
Don't forget, Bleak House presents contrasting lawsuits.

There's a kind-of perpetual suit between those who can afford it and regard it
as a bit of sport, which is in sharp contrast to Jarndyce, and the cameo cases
that ruin lives. Both still happen even today, though we don't hear about the
victims.

Noone in SCO/IBM is a defenceless victim.

[ Reply to This | # ]

SCO Motion to File 3rd Amended Complaint
Authored by: rsteinmetz70112 on Friday, October 29 2004 @ 10:46 AM EDT
It seems likely that all of these filings will be sealed, since in all
probability they deal with the famous privileged emails.

SCOG seems likely to allege that during discovery they found out that IBM was up
to all kinds of secret perverse things and they have to amend their complaint to
cover these things of lose the opportunity forever.

Besides SCOG has been sealing more and more of their papers, possibly to avoid
outside scrutiny.

I hope I'm wrong.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Well, I'm probably going way out on a limb here but, I'll speculate that...
Authored by: Groklaw Lurker on Friday, October 29 2004 @ 10:58 AM EDT
SCO cannot possibly be satisfied with such a trivial filing as this. Surely they
will feel compelled to request permisson to file, at the very least, one
overlength memorandum as well.

And of course, memorandums in support of their overlength memorandum, and
memorandums declaring their constitutional right to 25,000 man years of access
to CMVC, RCS, SCCS, CVS and any other source code control system ever developed
or conceived of by man.

Ah well, if anything good comes of all this, it will probably be that during all
that searching, SCO will come across those poor, missing MIT mathematicians who
must surely be hungry and thirsty after such a long sojourn through the twilight
zone.

Please, please Judge Kimball, deliver to us a Partial Summary Judgement before
election day...

---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

Explanation please
Authored by: Anonymous on Friday, October 29 2004 @ 11:21 AM EDT
I realize that many of the documents relating to this motion are sealed, so it
may be hard to explain this without access to all the information

But can anybody explain this in simple terms?

If I understand correctly, SCO wants to amend their complaint (except for the
O'Gara reports I don't have any idea on what basis this might be)

If I understand correctly, IBM thinks SCO shouldn't be allowed to amend their
complaint

So my questions are:

What are the issues?

Should SCO be allowed to amend their complaint? What are the arguments in
favor, and against?

What is normal in this kind of situation?

If SCO is allowed to amend their complaint, what does this do to discovery and
the schedule?

If SCO is not allowed to amend their complaint, would they lose forever the
possibility of litigating the issues that might be raised in their proposed 3rd
amended complaint?

[ Reply to This | # ]

Davis Scofield??
Authored by: seanlynch on Friday, October 29 2004 @ 11:40 AM EDT

Mr. David W. Scofield, Esq.
PETERS SCOFIELD PRICE

Is Mr. Scofield new, or have I just missed him in the past?

[ Reply to This | # ]

How would Amended Complaint affect MPSJs?
Authored by: DMF on Friday, October 29 2004 @ 12:40 PM EDT
This is a question on procedure.

IBM has made motions for partial summary judgement on a couple of issues and in
one case the process is pretty far along. Assume that SCO is allowed to file
an(other) amended complaint. How does that affect the MPSJ procedurally? Start
over? Provide a basis for more delay?

I'd guess it depends on the nature of the amendment. What do we watch for in
that regard?

And what does this do to the discover schedule? Give them another 1+ years of
hollering that IBM is holding out on them?

[ Reply to This | # ]

PS
Authored by: Anonymous on Friday, October 29 2004 @ 12:52 PM EDT
<<I hope future posters from Yahoo can learn to exit (exuent)
gracefully.>>

They can't learn that...they get thrown out too fast.

[ Reply to This | # ]

    OT: Account Deletion Alternatives?
    Authored by: Anonymous on Friday, October 29 2004 @ 02:46 PM EDT
    PJ, not knowing what kind of control you have over the databes, to prevent a
    loss of attribution, it may be better to disable accounts than delete them.

    Alternatively, if the desire is to also get rid of all comments for a particular
    UID then delete the account, is it possibly to simply search and replace every
    comment attibuted to that user by resetting them to an initial value then delete
    the UID? This way threads would not be mangled.

    IANADBA (I am not a DBA). Just some thoughts.

    [ Reply to This | # ]

    Order Re Briefing on SCO Motion to File 3rd Amended Complaint
    Authored by: kbwojo on Friday, October 29 2004 @ 03:04 PM EDT
    Sometime ago IBM brought up the Las Vegas slide show in one of their filings. I
    recall TSG made a response that the code they showed in the Las Vegas slide show
    was used to show how good their method was of finding obfuscated code. Does
    anyone remember if TSG's response was made in a press release, a court filing,
    or during a hearing? If it was in a filing or court hearing does anyone remember
    which one? I am trying to find this because in the hearing on CC10 they claimed
    that they have no way of finding obfuscated code and they needed access to all
    of AIX/Dynix for a road map to find obfuscated code and this obviously
    contradicts their previous claim. Any help is appreciated.

    [ Reply to This | # ]

    Prosco
    Authored by: MunchWolf on Friday, October 29 2004 @ 04:00 PM EDT
    I don't even pretend to know what is going on with this flame war, but I do
    wonder if it some of the posts are part of the prosco launch?

    -Munch "I wouldn't be surprised to see SCO take advantage of this"
    Wolf

    [ Reply to This | # ]

    Gentlemen let's be civil
    Authored by: Ed Freesmeyer on Friday, October 29 2004 @ 05:22 PM EDT
    I'm noticing more and more anomolies in this web-site's code over the last few
    days. Links that lead to a blank page, links that exist when I click respond,
    then disappear by the time click "Submit Comment". Links that lead to
    incorrect posts.

    I'm becomming convinced that one of three situations may be happening and that
    we are simply not being observant enough to avoid blaming each other for what
    may very well be technical contributory issues:
    1. Geeklog code improvements/updates are finally starting to show some
    *nasty* side effects.
    -- OR --
    2. Geeklog code and/or the database have reached some performance threshold
    beyond which their performance becomes unreliable/unpredictable
    -- OR --
    3. We have a corrupted database (corrupted pointers and/or corrupted
    relations within the code). This need not show up as actually fsck-style data
    corruption, but there may be enough re-directed links that the system is
    beginning to lose its 'mind'.

    I posted yesterday about the design of geeklog that causes all Anonymous posts
    that don't point to a valid user id number to default to Anonymous. I still
    have not personnally confirmed that, but I believe it's very likely to be the
    case. I may get a chance to personnally confirm this this weekend. Therefore
    any noise about PJ "converting" all someones posts to Anonymous and
    'stealing their IP' when their account is deleted are just that - noise - PJ has
    no control over this.

    As to the intentional deletion of John Gabriel's account, the jury's still out -
    we don't have all the facts. John can be vocal and his cohorts can be vocal,
    but until PJ's side is heard I (for one) *REFUSE* to try this case in the court
    of public opinion. I did not buy SCO's stories and I won't buy these until all
    facts are heard.

    [ Reply to This | # ]

    Order Re Briefing on SCO Motion to File 3rd Amended Complaint
    Authored by: Anonymous on Friday, October 29 2004 @ 05:36 PM EDT
    What the hell is wrong with the people on the Yahoo Message board these days?

    They seem to be launching somesort of Jihad against Groklaw nowadays for alleged
    post deletions. Have they really fallen to SCO's attempt to undermine Groklaw so
    readily?

    Stephen

    [ Reply to This | # ]

    SCO below $3
    Authored by: Anonymous on Friday, October 29 2004 @ 07:39 PM EDT
    Apropos of nothing - SCO stock closed under $3 today - first time since the
    fiaSCO started. Just had to tell someone...

    [ Reply to This | # ]

    Some sort of meta moderating is needed ?
    Authored by: Anonymous on Friday, October 29 2004 @ 08:43 PM EDT
    I love this site as it is the best place to get all the
    information on the SCO case with good solid explanations
    of the legal speak which I am not as familiar with. The
    other really major benefit is that there are a large
    number of very clued in people posting comments which make
    excellent reading. However just lately it is getting
    harder to read the excellent comments as the have started
    getting drowned out by the "other" comments being posted.
    Maybe it would be useful to have some sort of meta
    moderating, like what slashdot has. This could help
    separate the large number of trolls currently posting.

    [ Reply to This | # ]

    nice signature concept from skip N/T
    Authored by: numtek on Friday, October 29 2004 @ 09:20 PM EDT
    I'll take it

    ---
    -----
    The above post is released under the Creative Commons license
    Attribution-Noncommercial 2.0.
    P.J. has permission for commercial use

    [ Reply to This | # ]

    • Good idea! - Authored by: snorpus on Friday, October 29 2004 @ 09:45 PM EDT
      • Good idea! - Authored by: snorpus on Friday, October 29 2004 @ 09:53 PM EDT
        • Good idea! - Authored by: Anonymous on Saturday, October 30 2004 @ 09:13 PM EDT
          • Not so - Authored by: Anonymous on Monday, November 01 2004 @ 08:39 PM EST
    legal question: can anything be sealed?
    Authored by: Anonymous on Friday, October 29 2004 @ 11:02 PM EDT
    I was just thinking about this as I was reading the postings here, what are the
    rules as to what can be sealed and what can't?

    how much can SCO get away with?
    I mean, can they arbitrarily seal anything they feel like ?

    or are there specific rules, and what happens if SCO tries to seal something
    that shouldnt be (or whatever) ?

    IANAL, etc etc blah blah

    [ Reply to This | # ]

    More speculation
    Authored by: tangomike on Saturday, October 30 2004 @ 02:42 PM EDT
    Just a thought on this "third" amendment:- TSCOG may have noticed some
    aspect of their "second" amandment that IBM intends to go after. They
    woke up to it from some priveleged document they got in discovery (thus the
    sealed bits). They're now trying to head it off by dropping some aspect of the
    last complaint that IBM hasn't (YET) pursued.

    Possible candiddates:

    Something they alleged would give IBM an opening in the 'corporate veil' and a
    chance to pursue TSCOG's backers.

    The SCOsourcescam opens a nice hole for IBM to go through in pursuit of
    damages.

    IIRC the Monterey contract allowed IBM to walk away, but placed some
    restrictions on TSCOG's predecessors. IBM intends to pursue this aspect down the
    road.

    Unfortunately, I've got a prior commitment so I haven't done any real checking
    on these (please note the Title). I'll leave them as exercises for the
    community.

    ---
    The SCO Group's secret project to develop Artificial Stupidity has obviously
    succeeded!

    [ Reply to This | # ]

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