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The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Wednesday, January 26 2005 @ 01:16 AM EST

What goes around, comes around, they say. And we now have the hilarious opportunity to watch SCO tell the court how burdensome it would be for SCO to have to produce to IBM every product Caldera distributed for the past 6 years. These are the same folks who whined until they got not only every released version of AIX and Dynix going back to the '80s but every *unreleased* one also, in their own discovery demands.

Here, for your enjoyment, are SCO's objections to IBM's discovery efforts related to IBM's patent counterclaims:

Objections to International Business Machine Corporation's Rule 30(b)(6) Notice of Deposition ("The Click-Wrap Notice");

Objections to International Business Machine Corporation's Rule 30(b)(6) Notice of Deposition ("The Compression Notice");

Objections to International Business Machine Corporation's Rule 30(b)(6) Notice of Deposition ("The Configurable High Availability Notice").

I don't know when I've enjoyed reading anything so much. I love hearing SCO tell the judge that IBM's depositions notices are unduly broad and burdensome. They don't have enough time to prepare, they don't want the depositions to be in Utah, it's too soon for them to answer questions, IBM is allegedly seeking info or documents protected from discovery by the attorney-client privilege, and on and on. They must be just going down a list they found of conceivable objections to discovery.

The problem is, they just argued very persuasively that massive discovery is essential to prove their case, and they got a lot of what they asked for. Now, to turn around and make an opposite argument isn't likely to go down so smoothly. One thing judges really do try to do is play fair with both sides. And if IBM can persuade the court that they need the materials and information they are asking for, they will certainly get it. And that will cost SCO's legal team, as well as the company, a lot of time and effort and money. Two of those three are exactly what SCO doesn't have a whole lot of any more.

But the bottom line is, what's good for the goose is good for the gander. Litigation is, like any other human interaction, reflective of how you act. That is, if you are polite and civil and play fair, the other side usually will too. If they don't, then the other side will match you.

As one attorney said once when we were in negotiations, "If it's love, it's love. If it's war, it's war. Take your pick." That's essentially what I see in these documents. IBM has been the polite one from the beginning. Now it's war. And SCO is screaming, "Mommy! Mommy!"

Oh, and IBM is also seeking "testing, evaluation, analysis and debugging" materials regarding all the products going back 6 years. They also have asked for such things as the names of SCO personnel most knowledgeable about the discovery matters and "the identity of the original developer and all persons who worked on, and the location of any documents regarding, the development of configurable monitors and recovery schemes in such product" for all Configurable High Availability Product acquired by and thus not originally developed by SCO. See what I mean? And I haven't even listed the half of what IBM is asking for.

Litigation is, as I have said, a conversation with the judge. But it's also a conversation between the two sides' attorneys. I hear IBM saying to SCO, fine. Let's both be burdened by having to get busy poring through mountains of documents in this stupid, pointless lawsuit. SCO objects "insofar as it causes annoyance, oppression, undue burden, or expense to SCO." Excuse me while I laugh out loud. Annoyance, oppression, undue burden and expense, as far as I've been able to tell, are the four horsemen of SCO's entire legal strategy.


  


The Tables Are Turned - SCO Objects to IBM's Discovery Demands | 355 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic Here
Authored by: DBLR on Wednesday, January 26 2005 @ 02:11 AM EST
All OT subjects here Please.

---

"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is
a well-armed lamb contesting the vote."
Benjamin Franklin.

[ Reply to This | # ]

Corrections
Authored by: DBLR on Wednesday, January 26 2005 @ 02:13 AM EST
Please place Corrections here so PJ can correct.

---

"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is
a well-armed lamb contesting the vote."
Benjamin Franklin.

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: YMHEE_BCEX on Wednesday, January 26 2005 @ 02:15 AM EST
Do we have the subpoenas themselves? I don't remember seeing a discussion about
click-wrap software, and other terms... I don't even see the sealed version
anywhere. So, what exactly TSG is objecting to?

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: Anonymous on Wednesday, January 26 2005 @ 02:20 AM EST
"I object!!!"

"For what reason?"

"Because it ruins my case!"

Muwahaha

[ Reply to This | # ]

  • Liar Liar - Authored by: Anonymous on Wednesday, January 26 2005 @ 01:03 PM EST
If they don't have enough time to prepare for these depositions,
Authored by: fudisbad on Wednesday, January 26 2005 @ 02:24 AM EST
Then I cannot see all that source code being analysed (or even them trying to
hire someone who will do the job) within the time limits in this case.

Get rid of the Novell suit, Judge, and save IBM a ton of effort.


---
See my bio for copyright details re: this post.
This subliminal message has been brought to you by Microsoft.

[ Reply to This | # ]

What's good for the goose...
Authored by: RedBarchetta on Wednesday, January 26 2005 @ 02:26 AM EST
Perhaps Judge Wells approved SCOG's liberal discovery request (for all
unreleased versions of AIX) with the intent of eventually doing similar for
IBM. SCOG asked for broad discovery, and it got it. Why should she hold back
against IBM?

Especially in light of the counter claims -- where IBM can really make SCOG's
life miserable.

Let loose the dogs of war, I say...

I'm quite confident in saying that SCOG hasn't seen burdensome and oppressive
quite yet. That'll happen in the next 6 months, and should make for
entertaining reading.




---
Collaborative efforts synergise.

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: Hygrocybe on Wednesday, January 26 2005 @ 02:27 AM EST
Let me also add to the hilarity: I rocked the ceiling with laughter and added:
"Good on yer IBM." This really is chickens coming home to roost.

However on a more serious note: Whenever IBM moves like this, there is a
definite and highly relevant reason for it; it is not merely a case of 'tit for
tat', even if it looks it. IBM will have a very, very good reason for this
search of SCO's material and as I have said before: I would NOT like to be in
SCO's shoes. South America looks even more inviting at this stage doesn't it ?

---
Blackbutt, Australia

[ Reply to This | # ]

Configurable High Availability
Authored by: Anonymous on Wednesday, January 26 2005 @ 02:31 AM EST
Does anyone know what product "Configurable High Availability"
actually refers to?

Seems that IBM is going after something very specific that it (IBM) contributed
to Linux and wants to show that SCO is in violation of its patent/license
agreements.

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: Anonymous on Wednesday, January 26 2005 @ 02:49 AM EST
SCO + lawyers read Groklaw, and that hurts; no more misspelling of names this
time around....

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: kawabago on Wednesday, January 26 2005 @ 02:55 AM EST
SCO has a strategy?


---
Life is funnier from the far end.

[ Reply to This | # ]

Crying about cost.
Authored by: DBLR on Wednesday, January 26 2005 @ 03:03 AM EST
Well if they would stop repeating them selves in each of the 3 objection they
just filed with the court they could save a lot of money. As I see it the most
these 3 objections should of used was 15 pages. I would think it cost a lot of
money to have someone dictate, type up and proof read the needless 30 page of
repeat crying about how much money it will cost them to comply with the 3 IBM
notices. In fact if they cut out the needless BS in all the Motions they file I
would think they could save many thousands of dollars.

---

"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is
a well-armed lamb contesting the vote."
Benjamin Franklin.

[ Reply to This | # ]

What Groklaw really needs...
Authored by: Anonymous on Wednesday, January 26 2005 @ 03:04 AM EST
...is a standard ROFLMAO topic for every SCO-related thread!
Those IBM lawyers are the best stand-up comedians the courtroom has seen in a
long time :) The way they trash SCO is just SO funny!

[ Reply to This | # ]

Now wait just a second, SCO
Authored by: inode_buddha on Wednesday, January 26 2005 @ 03:17 AM EST
Aren't these objections related more to IBM's counterclaims? Why are you
bringing these issues up now, instead of finishing your original suits first? Do
you really expect me to believe that IBM all of a sudden spurred this response
when you've been stalling on your original cases for 18 months?

"When we speak of free software, we are referring to Freedom, not
price." -- Richard M. Stallman

---
inode_buddha
peter.vantassell@gmail.com

[ Reply to This | # ]

Ooh, this is tough on IBM
Authored by: Anonymous on Wednesday, January 26 2005 @ 03:29 AM EST

I mean, they have to buckle down, treat these objections seriously, and answer them with specificity, rather than just screaming with laughter and cackling "Now how do you like them apples?"

Although to be honest, half of me wishes that they'd do the latter, just for the sheer entertainment value.

[ Reply to This | # ]

Looks like a check list to me
Authored by: Night Flyer on Wednesday, January 26 2005 @ 03:34 AM EST
People planning to be lawyers, keep a copy of these. These are a fairly good
check list of things to object to if you want to throw a wet blanket on a
process.

It is apparent to me that SCO's attorneys are hoping that one or more of these
will strike a note with the judge, ending in a delay of process. And they are
fishing to find which 'hot button' the judge will respond to.

When I was just starting out, one of the managers, who wanted to block my
project, did this to me. He made me climb over so many irrelevant road blocks,
and pursue so many dead ends that there were times that I was lost in the forest
of confusion. (I consider mixed metaphors an art form.)

After a while I learned to see the obfuscation for what it was and how to deal
with this nonsense:

1.) Treat it seriously.
2.) Answer each point succinctly, briefly and soon.
3.) Look to see if there are, in fact, any relevant objections (ie: is IBM
asking for something that doesn't exist or are clarifications actually
needed?).
4.) Don't allow it to delay the main purpose. Keep the answer to these
objections as a side bar.
5.) Don't get drawn into an argument of semantics. Keep a very clear
definition of terms.
6.) Deal with the fluff objections and move the fluff out of the way. Then
focus on the one or two key points that actually have some relevance. Deal with
the one or two issues, and keep moving ahead.

IMHO, IBM lawyers are grinning about now but, because they are professionals,
you will never actually see them do it. They probably got what they expected.
They also know what to do.

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

[ Reply to This | # ]

It can be said
Authored by: Anonymous on Wednesday, January 26 2005 @ 03:37 AM EST
It must be obvious to SCO now, SCO's dreams of a settlement with IBM, as
indicated by their recent public statements, are nothing more than that: IBM
has very clearly indicated they have no intention of settling, and are going to
grind away at this ridiculous farce, this abuse of the court system, until SCO
have ceased to exist.

Why am I hoping some clear precedent regarding methods comes out of this? We
have that already. But I'm apprehensive. Nothing is certain or
"clear" anymore.

This place is truly corrupt.

-Meshuggeneh

[ Reply to This | # ]

Patents for defense
Authored by: dhonn on Wednesday, January 26 2005 @ 03:42 AM EST

Patents can be such a pain even to SCO. I guess IBM is using some of their
patents to protect itself and of course Linux.

As for the 500 patents FOSS got, its pretty much good enough. I think IBM will
toss us more patents if we need them to defend FOSS and Linux.

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: inode_buddha on Wednesday, January 26 2005 @ 04:03 AM EST
Notice objection 10 in the "Click-Wrap" objection

"... on the grounds that it seeks "any and all products" not only created by SCO but also relating in any way to SCO (including simpIy acquired by SCO)... [emph. added]

Gee, sorta like when IBM acquired Sequent?

---
inode_buddha
peter.vantassell@gmail.com

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: igb on Wednesday, January 26 2005 @ 05:18 AM EST
Some years ago, my father worked with a man called Jerry Rimmer (now, sadly, dead). The story goes that in the midst of some dispute, Jerry was accused of being awkward.

``I'm still trying to be helpful,'' he said, ``I've not started being awkward yet.''

ian

[ Reply to This | # ]

SCO's legal strategy defined...
Authored by: eggplant37 on Wednesday, January 26 2005 @ 06:00 AM EST
Annoyance, oppression, undue burden and expense, as far as I've been able to tell, are the four horsemen of SCO's entire legal strategy.

Main Entry: vex∑a∑tious
Pronunciation: -sh&s
Function: adjective
1 a : causing vexation : DISTRESSING b : intended to harass
2 : full of disorder or stress : TROUBLED
- vex∑a∑tious∑ly adverb
- vex∑a∑tious∑ness noun

Hope this helps, have a nice day... *8)

[ Reply to This | # ]

My general reaction expressed in one word
Authored by: inode_buddha on Wednesday, January 26 2005 @ 06:05 AM EST
Skullduggery.

---
inode_buddha
peter.vantassell@gmail.com

[ Reply to This | # ]

Wicked IBM are not being specific
Authored by: Anonymous on Wednesday, January 26 2005 @ 06:28 AM EST
Page 3: ... because IBM has not provided specific constructions of its asserted claims, nor the support for such claim constructions, not has IBM stated how SCOs accused products allegedly infringe the patents-in-suits.

Hold those ribs! Oh my sides hurt! Ow! Ow!

[ Reply to This | # ]

Don't start
Authored by: overshoot on Wednesday, January 26 2005 @ 06:55 AM EST
Basic rules to live by:
  • Don't start a war of words with someone who buys ink by the tank-truck.
  • Don't start a land war with Russia.
  • Don't start a legal war of attrition with IBM.

In all of these cases, you might start it but the smart money is betting that the other side is going to finish it.

Someone forgot to read the instructions!

[ Reply to This | # ]

A re-assuring sign
Authored by: Thomas Downing on Wednesday, January 26 2005 @ 07:10 AM EST

I think that SCO knows very well that it is most unlikely that they can win anything significant should this case come to trial. I also think they know that the summary judgement prospects are also poor for them.

In this light, I think that the SCO strategy at this point is to try to persue the only remaining path to big bucks - a settlement. A settlement may be unlikely; but it still holds more hope than victories through any other path. If your odds of winning summary judgements and a jury award are .01, and the odds of a settlement are only .02, you still give more weight to the settlement.

I think SCO is trying to use ever available dollar of the war chest not to increase the chances of a court win, but to maximize the cost to IBM to defend. That is their only hope of moving IBM towards settlement. These new subpoenas and depositions from IBM point to IBM staying the course.

---
Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc.

[ Reply to This | # ]

Just when i was starting to get bored with SCO
Authored by: phrostie on Wednesday, January 26 2005 @ 08:22 AM EST
this is getting good.

*hands PJ a soda and a bag of popcorn.


---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu

[ Reply to This | # ]

Don't laugh too soon
Authored by: Anonymous on Wednesday, January 26 2005 @ 08:25 AM EST

What if "burdensome" is based on the relative financial condition of
the two parties? What's burdensome to SCO wouldn't be burdensome to IBM.

I've gotten the feeling that Wells' discovery ruling was because IBM can afford
it. And if she applies that same train of thought to SCO?


[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: Anonymous on Wednesday, January 26 2005 @ 08:45 AM EST
I think it was insurance.

IBM knew Wells' decision was approaching. So they had to look at best- and
worst-case scenarios. Somewhere in there was granting SCO's requests for broad
discovery, and of course IBM's lawyers would know that the judge would have to
have a very good reason to grant one discovery request and not the other. So,
IBM submits these requests so that if IBM has to ship tons of material to SCO,
then SCO has to do likewise. Or neither does. Both ways are OK with IBM since
they know they can outlast the SCOundrels.

[ Reply to This | # ]

  • True - Authored by: Anonymous on Wednesday, January 26 2005 @ 12:51 PM EST
Well this clears one thing up for me
Authored by: Nivuahc on Wednesday, January 26 2005 @ 09:07 AM EST
I was wondering why SCO was so close-mouthed about their recent 'win' with Judge
Wells.

In light of what we have here, it would have made things far worse on them had
they gone around spouting off about how great a 'victory' it was. It seemed so
out of character at the time but now it makes a lot more sense. A good portion
of IBM's defense, to date, is all of SCO's posturing to the press.

I can just imagine press clippings of Darl and Co. talking about how 'justice
was served' and how it was 'only fair' being attached to IBM's filings.

---
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 | # ]

(in short) Why does IBM need this?
Authored by: Anonymous on Wednesday, January 26 2005 @ 09:17 AM EST
In short, could somebody explain why IBM needs 6 years (or any years) of Caldera
products? Is this because of IBM's counterclaims that SCO has been infringing
upon IBM's patents?

---CSG_SurferDude (I really gotta get an account here)

[ Reply to This | # ]

The Tables Are Turned - SCO Objects.. Methinks thou doth protest too much...
Authored by: Anonymous on Wednesday, January 26 2005 @ 09:21 AM EST
This is the perfect opportunity for SCO to stall.
"Your honor... It will take us 2 years to find all the data
requested...."

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: blacklight on Wednesday, January 26 2005 @ 09:22 AM EST
"The problem is, they just argued very persuasively that massive discovery
is essential to prove their case, and they got a lot of what they asked
for"

SCOG persuaded no one but judge Welles, who couldn't be bothered with any facts
that point to SCOG's bad faith, and who gave a court order with glaring mistakes
because she couldn't be bothered with scheduling a hearing before rendering her
court order: so far, I see SCOG get two court orders, each preceeded by a
hearing. Now, I see IBM get a court order from her without a hearing - and this
is a court order that will cost IBM a pretty penny to comply with, assuming that
IBM does not protest. Asymmetry? Disparate treatment? Plain old laziness?
Specific disrespect for the defendant?

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: blacklight on Wednesday, January 26 2005 @ 09:34 AM EST
I did predict that judge Welles' poorly thought out court order would open a can
of worms and throw the schedule to hell, and it is hypocritical of her to demand
that IBM come up with a schedule accomodating the damage that she inflicted. Now
come IBM's request for discovery. It appears that judge Welles has lost control
of her courtroom.

[ Reply to This | # ]

Anybody else notice...
Authored by: Anonymous on Wednesday, January 26 2005 @ 09:56 AM EST
Anybody else notice that SCO seems to have been cut&pasting in the 'Click
Wrap' objection? Several of their objections to specific discovery requests
complain that it would be no more burdensome for IBM to do the research on
*Topic No. 7*.

Of course, the first mention of the topic number matches the subsection header,
but they missed the change in at least 4 of the second mention in the
objection.

Talk about sloppy work. (Unless they're really only trying to claim that 7
would be no more burdensome for IBM to research than SCO, and not topics 8, 9,
10, and 11.)

[ Reply to This | # ]

BSD, Novell, and such
Authored by: Anonymous on Wednesday, January 26 2005 @ 10:52 AM EST
At the end of the BSDi v USL lawsuit probably most of System V was owned by
BSDi. Novell did not transfer ownership of any code to old SCO. So a good
argument can be made that the only code owned by SCO is code that they have
produced themselves.

IBM has asked for proof of all code created by SCO. This will greatly reduce
the amount of code that SCO can claim has been infringed.

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

[ Reply to This | # ]

Dynix, Which one?
Authored by: Anonymous on Wednesday, January 26 2005 @ 11:01 AM EST
Just in case SCO doesn't have a copy of 'their' Dynix, (circa 1981) I would be
happy to send them a copy of mine.....oh wait a minute I just noticed there is a
copyright 10/2/1981 on this stuff....forget it. fdr

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: Steve Martin on Wednesday, January 26 2005 @ 11:34 AM EST

What goes around, comes around, they say.

Indeed. For example:

SCO objects generally to the Click-Wrap Notice as unduly burdensome because IBM has scheduled this deposition to take place in the offices of its local counsel in Salt Lake City, Utah. Many of the individuals likely to have knowledge of the topics listed in IBM's Click-Wrap Notice reside in the Eastern United States, as to SCO's counsel and IBM's counsel.

Hmmm... sure didn't keep TSG from objecting to moving TSG v AutoZone to Tenneseee, and that move was (as I recall) for the same reasons.

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

The Boot is on the other Foot...
Authored by: Anonymous on Wednesday, January 26 2005 @ 11:37 AM EST
...and it's aimed at SCO!

after i calmed down enough from SCO's hilarious duplicity, i started thinking about the 'why'--beyond a simple 'tit for tat' what is IBM's strategy here?

one interesting outcome could be to identify how much FOSS is included in SCO's products--i'm betting that the percentage isn't low, and it would be embarrassing to SCO...

more than embarrassing, isn't the issue of SCO being non-compliant with the GPL still on the table? that's when things could *really* get uncomfortable for the SCOundrels!

perhaps this isn't just a defense of the GPL, but an offensive move to enforce the GPL...

enjoy your 'win' SCO, because it's probably the last one you'll see!

-DWitt

[ Reply to This | # ]

Costs
Authored by: Anonymous on Wednesday, January 26 2005 @ 12:31 PM EST
I'm concerned the cost of litigation will force SCO to abandon its meritorious
claims.


Wait... no I'm not.

[ Reply to This | # ]

SCO's Linux Kernel Personality??
Authored by: Anonymous on Wednesday, January 26 2005 @ 01:48 PM EST
could this have anything to do with SCO's Linux Kernel Personality? Or is IBM
implying that SCO has used any of its GPL'd Linux code in other parts of
OpenWare? I've always though Linux Kernel Personality was real shady and can't
imagine that it doesn't contain code that shouldn't be there.

Taking a further leap, if GPL'd code is found in SCO's code, could this lead to
lawsuits with other closed source companies that could possibly be using code
in ways they don't have the right to?

I was going to post on my blog about this topic, but I'll throw the idea out
here. What incentive is there for a company like, say, Microsoft to not use
whatever code (under any license) or any software patents in their own products?
If anyone tries to sue MS, they will most likely settle or be bought, but the
cost of litigation and the chance of beating MS lawyers is slim to none, so how
many even try? So microsoft can support software patents, because they can sue
the pants off anyone who uses their's, but can't be beaten for using anyone
else's. same with code, but code is more hidden, and less likely to be
discovered.

hopefully this will usher in a time of large code audits for closed source
companies and we'll see a lot more open source in the near future.

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: Anonymous on Wednesday, January 26 2005 @ 02:16 PM EST
ZFS meets the needs of a file system for everything from desktops to data centers.....

Sheesh, this chestnut again?

Ask yourself - what similarity does a desktop have to a data center? Why then should we expect some single, magic, silver bullet to apply from one end of the spectrum to the other? Sun and M$ share this particular conceit (in regard to their own respective product offerings).

[ Reply to This | # ]

Official "The SCO Group" Positions - One-Hundred-Four days without an official post
Authored by: AllParadox on Wednesday, January 26 2005 @ 02:24 PM EST
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group".

Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.

This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.

PJ says you must be on your very best behavior.

If you think this thread is childish or juvenile, or you just want to comment on
this thread, please post under "O/T".



---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: tredman on Wednesday, January 26 2005 @ 03:34 PM EST
This is such a win-win for IBM.

If IBM prevails on these motions, they get to completely bury SCOX in their own
bureaucratic b.s.

If SCOX prevails, IBM then has the ammunition to go back and appeal the previous
Wells decision, claiming that the net result is highly inequitable.

And SCOX just walked right into it.

Tim

[ Reply to This | # ]

SCO Objects - poorly
Authored by: AllParadox on Wednesday, January 26 2005 @ 03:56 PM EST
I remain convinced that the attorneys drafting the TSG motions generally
practice in State Courts and are unfamiliar with Federal Rules of practice.

If you, as counsel for a party, are objecting to something, then begin by
reviewing the caselaw for basic rules for your type of objection. When I was in
practice I frequently found not only the little landmines that would have blown
up my presentation, those little quirks that are just contrary to the general
spirit of some rule, but I also found the big roadblocks: things that I
misunderstood or where I was just plain wrong.

Real lawyers read, a lot. From long practice, they read very quickly.
Practicing Trial Lawyers have the most important tools within arms' reach: a
copy of the Federal Rules of Civil Procedure, with annotations - case headnotes
of opinions where decisions were made about how to apply the rules. It should
not take an experienced practicing Trial Lawyer more than ten minutes to review
all the relevant Rules and relevant interpretation headnotes, just to brush up
on the requirements.

The things that IBM is allowed to request are laid out in Fed.Rules.Civ.Proc.
26, and particularly in section (b)(i). Here is 26(b)(i), so you do not have to
search for it:
-----
Fed.Rules.Civ.Proc. 26(b)(i)In General

Parties may obtain discovery regarding any matter, not privileged, that is
relevant to the claim or defense of any party, including the existence,
description, nature, custody, condition, and location of any books, documents,
or other tangible things and the identity and location of persons having
knowledge of any discoverable matter. For good cause, the court may order
discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.
All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii),
and (iii).
-----

Critical to this discussion, and to TSG's objections, is the next to last
sentence: "Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible
evidence." Courts of appeals have interpreted this sentence to mean
exactly what it says, and interpreted it very broadly. A well known example:
evidence of habit by a single instance of conduct long after a particular act is
generally inadmissable to prove habit. Nonetheless, Federal Courts, apparently
up to and including the U.S. Supreme Court, allowed President Clinton to be
deposed about his relationship with Monica Lewinski, conduct that clearly
occured many years after any possible contact he may have had with Paula Jones.
As here, the grounds for the breadth of discovery were controlled by Rule
26(b)(i).

From TSG's objection to the Click-Wrap Notice, Under Topic No. 2, paragraph 3
states:
"SCO objects specifically to Topic No. 2 because it is overbroad and unduly
burdensome to the extent that it seeks information related to Click-Wrap
Products to the extent that term can be construed to include products other than
those that IBM has accused of infringing the patents-in-suit."

So what? The test is whether it is reasonably calculated to lead to the
discovery of admissable evidence. The TV character Perry Mason used to object
because something was "immaterial" and "irrelevant". For
once the phrase is apropos. The objection really is immaterial and irrelevant.

It is no surprise to any practicing Trial Lawyer that attorneys sometimes make
objections that are irrelevant and immaterial. This stuff is extremely
complicated, as you now know if you are a Groklaw regular.

If you were to query trial lawyers and get an honest answer out of them, they
would all admit that there have been many times where they made an objection, it
was over-ruled, and upon later reflection, were quite glad that no one tried to
make a big deal out of it ethically, because it had absolutely no merit
whatsoever.

This is not, however, some arcane issue rarely touched, buried in some complex
and convoluted proceeding.
Of all the issues that Judge Wells decides, this is far and away the most common
that she handles. My guess is that determining whether something is or is not
discoverable under this specific rule constitutes 55% of the judgments she makes
on a weekly basis. I mean that quite literally. I think 55% of her rulings
touch directly on Rule 26(b)(i).

They failed to even refer to the Rule requirement when making the objection,
though they listed it earlier as a separate objection.

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: HockeyPuck on Wednesday, January 26 2005 @ 05:30 PM EST
One has to wonder what the "Boise" charged to file each of these. I'm
sure it was a pretty penny. I ask because these filings are great examples of
"cut and paste". Simply "insert objection here" and change
the name of what you are objecting to. Heck, they probably have a macro that
does all their work by now. Thatís how they came to terms with SCO as far as
payments are concerned. Just repeat everything and use the same points for every
argument and objection. No one has to do any real lawyer work.

Here is why I think IBM is doing this. First, I think they are turning the
tables on SCO asking for something they know they will object to. They plan to
get what they want and further show that SCO demands, and then back tracks, duck
and weaves, when similar demands are made of them. IBM is asking for something
that is not near the demands made of IBM; but SCO will claim burden and all
that. Now IBM can tell the court SCO asked for the world and the court felt that
it was not enough burdens for IBM to get much of that. Then at the same time SCO
is telling them this is too much and a waste of their time; remembering that one
main argument was regard how easy it was for IBM to use CMVC to get this. But
somehow they do not have any such system (Iím not sure what tool SCO is
objecting to).

They also plan to show that the SCOgroup has been looking at ways to stifle
competition to their products for some time and I would expect that some of this
will be exposed if IBM is able to get even some of what they are looking for.
This will expose SCO as being on equal terms as IBM when it comes to fair play
in the business world.

Corporations can be mean and that is not unusual. They often speak with
disregard and malice towards other companies (including partners) behind closed
doors. This is not unusual and as such I believe that the G2 unsealing of
documents situation is also playing a role. I believe IBM knows exactly what
they are looking for and where to get it. The rest is just smoke and mirrors.
SCO, on the other hand, has no intention of exposing themselves as just another
greedy corporation (itís hard to think of any way they would not appear that
way) because that dims their chances if this ever goes to jury. It will dim the
public view of the case and basically expose the case for what it is; a sleazy
way to capitalize on something they have no rights to.

I wish I know how to play chess better. I may be able to deduce some logic of
the case. On the other hand, perhaps I did not know the inter working of this
case. Iím close to the ďfunny farmĒ as it is and that may be the factor that
sends me over the edge.

[ Reply to This | # ]

The IBM MasterClass
Authored by: Anonymous on Wednesday, January 26 2005 @ 05:59 PM EST
I'm sure that I'm not the only one who appreciates this, but you really do have to admire the calm, collected and, above all, humoured patience of the IBM legal team.

Think about what they've done.

Each time that SCO have tried to game the system, they have waited carefully to see how the judge has reacted. Then they have made their move.

SCO made a slew of currently unsubstantiated accusations about IBM placing SCO IP in Linux. IBM responded by listing - across more than 700,000 lines of code - every IBM program file and contribution that they had made to the Linux distribution, that SCO were distributing. This was the supremely clever move that pinned SCO with the dilemma over whether they claimed the GPL was legally valid or not.

Next, SCO decide to string out the legal case with a complete rash of pointless discovery claims, working on the idea that if they are sufficiently irritating, IBM would buy them out. IBM didn't.

I have a theory here. I reckon there has recently been a new approach by SCO to IBM along the lines of "We can end this now if you settle, that way you don't have to do this discovery lark and we don't air your emails in public".

Again, IBM waited patiently to see how the judge was going to react. When she ordered IBM to produce more discovery, they calmly handed down a motion they had clearly prepared long in advance, using the same tactics to give SCO a far more bruising and uncomfortable pounding in return. IBM are outthinking SCO at so many levels here that it's fun just trying to keep up.


OK - end of the sensible stuff - here's a slightly silly thought:

When IBM trounce SCO and win this case, PJ is of course going to publish a wonderfully humerous and entertaining book about the whole long fiaSCO. We need to pursuade some film studio to buy the film rights, but under some kind of GPL arrangement. Something along the lines of "You can make a film of this if you like, but you can't force people to pay for tickets to see it in the cinema, since it has to carry this GPL licence..." I'm not describing the idea too well, but I'm sure that you're grokking my meaning here. As the future opens to us, we can actively explore ways that this approach can be applied to other parts of our lives... Maybe we could pursuade the cinemas to cover their distribution costs by putting up the prices on the nachos...

[ Reply to This | # ]

The Wall
Authored by: rp$eeley on Wednesday, January 26 2005 @ 06:54 PM EST
Ah, yes .. the handwriting is becoming more and more clear.
Ever wonder what ten million lines of code suddenly dumped on the Open Source
Community would be like?
The future is almost upon us. Get ready. Get set. .....

[ Reply to This | # ]

The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Authored by: Sunny Penguin on Wednesday, January 26 2005 @ 07:19 PM EST
I think some things IBM would like to see is:
Caldera Linux Desktop
Caldera anything shows the court/world the true nature of SCO-X; How the name of
Caldera was changed to resemble SCO.
Also, this will show how SCO-X/Caldera knew what code was in Linux for years,
and how SCO-X could have made short work of any code comparisons wiithout any
code from IBM.
Caldera Linux
Caldera Open Server
Unixware

Compare all three for any "evidence"

---
Just Say No to Caldera/SCO/USL/?

[ Reply to This | # ]

OT: Judge to Censor Groklaw?
Authored by: Anonymous on Wednesday, January 26 2005 @ 08:35 PM EST
A judge in Austrialia wants the internet censored of any stories that relate to cases before her. I guess that means the end of Groklaw.

link

[ Reply to This | # ]

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