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G2 et al Reply Memorandum -- PDF and text
Friday, February 04 2005 @ 08:38 AM EST

Here's G2, CNET, and Forbes' Reply Memorandum in Support of their Motion to Intervene and to Unseal Court's Records. Our thanks to Steve Martin for the transcript and HTML.

Their argument can basically be summed up that they'd like to have their lawyer look at all the sealed documents, so they can argue about them at a hearing, one by one, if they want something unsealed:

"The Court should permit Intervenors to intervene in this action for purposes of challenging designations made under the Protective Order. The Court should order that Intervenors' counsel be made party to the Protective Order and permitted to view those filed documents sealed pursuant thereto. The Court should require the parties to state the 'good faith' basis for their designation of each of such documents as 'Confidential.' Finally, the Court should schedule briefing as to those documents that Intervenors and the parties cannot agree are appropriately sealed or appropriately unsealed."

That isn't such a strong argument. Who is the bad guy in this picture, who is over-sealing things? They don't know. But it could happen, and they trust the parties and the judge not at all, so they want to look for themselves. Basically, they argue that civil cases should be just as open as criminal cases. This is a doomed argument. They aren't. Then they present an argument that probably lacks judicial appeal. They say they want access so they can see if he is doing his job right:

"Second, public access, especially in this case, will play a significant positive role in advancing the litigation. As argued above, the actual and perceived legitimacy of the Court's decisions in this case depend upon public access to the information used to reach those decisions. In most cases, this Court goes to considerable trouble to make filings readily available, maintaining a public clerks' office and even adopting means of electronic access. These efforts are for good reason; the public cannot judge or otherwise rely upon the fairness of a decision that is made in secret, with secret information. This is particularly true in this case, where proponents of open source software vehemently oppose SCO's theory that Linux contains some aspect of its proprietary Unix system. Every aspect of this case available to this public is criticized and examined in detail, and secret submissions jeopardize public confidence in the process."

So, they would like to monitor the judge's decisions. First they say that the Court has gone to great lengths to make documents available, and then I think they reveal what the real motive may be. Proponents of open source "oppose SCO's theory" that there is any Unix code in Linux. I believe that would be Groklaw they are referring to, particularly when they next mention that "every aspect of this case is criticized and examined in detail." I believe they want to try to find something to help win the PR battle for the other side, and they'd like the public's taxes to pay for their personal quest. What did you expect from G2 and Forbes? As for CNET, what's a nice girl doing in a place like this?

As for what they want, they want nothing that might impact negatively on SCO revealed. The Linux code SCO improperly designated confidential isn't even on their radar, for example. What they want can be found first in footnote 2. They want the hearing where the email was improperly read aloud by SCO unsealed. For some reason, SCO desperately wants that email made public. That's the conclusion I draw, anyway. And they want the exhibits attached to discovery motions, which appears to involve the same materials. Why? I gather they want SCO to look better, and maybe some journalists too. It's mighty hard for the other side to accept that they just might have been wrong about Linux and SCO's claims. Just think how embarrassing as a journalist, looking back at the early coverage of this case in particular and comparing it with the facts as currently known. How can it be? They couldn't just have been wrong, could they?

And what do you make of this sentence? "A decision on the case will have far ranging impacts beyond the millions of shareholders of the two parties..." They acknowledge that the share price of IBM and SCO can be affected by developments in the courtroom, and then they argue simultaneously for materials that are most likely to impact negatively on IBM, in their world view, and positively on SCO. Remember that article by Steven Hantler, assistant general counsel at DaimlerChrysler in the Wall Street Journal that mentioned that nowadays folks bring lawsuits with the very purpose of impacting negatively on a company's reputation precisely to send the victim company's stock down, so as to pressure them into settling? He mentioned a 5-Page Program plaintiffs in such situations use:

"Page Five is staging a press conference or working with their allies at the network news magazines to generate incendiary coverage about their lawsuits. In Old West parlance, some of these events could be called 'necktie parties' -- that is, public hangings. Trial lawyers have even been known to brief financial analysts who cover a company's stock in an effort to drive down share price. . . .

"The idea of this coordinated campaign is to create a perfect storm of highly adverse media coverage, regulatory agency subpoenas, share-value loss, and decline in company and product reputation that overwhelms any company that did not see it coming. The trial bar knows that if they can turn up the heat, someone in the besieged company will propose settling the lawsuit 'for a couple hundred million dollars' as the most expedient solution, even though the lawsuit is without merit."

They may be granted some access, if the judge is in an extraordinarily laid-back mood, and relishes prolonging the case still further with more delay on the public's tab, but not, in my opinion, because of anything argued here. Frankly, it's almost as if they have changed their minds, but it could just be that it's mighty hard to argue a point successfully to a judge, when you aren't telling him openly what you really want and why. One would have to be irony-challenged, for sure, if while arguing for openness, one masked one's actual motives and goals.

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

Michael Patrick O'Brien (USB #4894)
Andrew H. Stone (USB #4921)
JONES WALDO HOLBROOK & McDONOUGH PC
[address]
[phone]

Attorneys for G2 Computer Intelligence, Inc., CNET Networks, Inc., and Forbes, Inc.

IN THE UNITED STATES DISTRICT COURT
STATE OF UTAH, CENTRAL DIVISION


THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff,
vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation,

Defendant.
REPLY MEMORANDUM IN SUPPORT
OF MOTION TO INTERVENE AND
MOTION TO UNSEAL COURT'S
FILES



Civil No. 03CV0294

Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells

G2 Computer Intelligence, Inc. ("G2"), CNET Networks, Inc. ("CNET"), and Forbes, Inc. ("Forbes") (collectively "Intervenors")1 submit the following Reply Memorandum in Support of their Motion to Intervene and to Unseal Court's Records.

Neither SCO nor IBM deny that this case is of significant public interest. SCO's claims have tremendous ramifications for the computer industry; they challenge one of the most widely adopted open source operating systems available. The case involves two public companies, one of them among the

1

world's largest corporations. This Court's website lists this case among its ten high profile cases currently pending in the District. A decision on the case will have far ranging impacts beyond the millions of shareholders of the two parties and may affect technology adopted by millions of other people.

A fundamental component of our judicial system is the right of public access to judicial proceedings. Like all aspects of our democratic government, courts derive their legitimacy from powers granted by the people. Decisions made in secret, or based upon secret evidence and arguments, cannot be perceived as fair by the public. It is for this reason that courts are presumptively open to the public and that sealing of proceedings or records is disfavored.

The parties here have reacted to Intervenors' motion in different ways. SCO acknowledges the limits on access to certain documents, and points out that Intervenors have not yet demonstrated reasons for altering the Protective Order or unsealing any documents in this case. The answer to this argument is simple: until Intervenors' attorneys have access to the sealed documents, it is impossible to argue whether the documents are properly sealed or whether they are documents that are more properly released to the public.

IBM, on the other hand, has resisted the motion on several grounds. First, without citing any authority to the contrary, IBM questions whether a right of access exists. Second, IBM argues that the Protective Order in this case, because it requires that a party designate documents as confidential in "good faith," adequately protects any public interest. Third, IBM invites the Court to exclude, without any review, whole classes of documents as necessarily beyond the reach of the First Amendment, common law or any other theory of public access. IBM is wrong on all accounts.

2

The Court should permit Intervenors to intervene in this action for purposes of challenging designations made under the Protective Order. The Court should order that Intervenors' counsel be made party to the Protective Order and permitted to view those filed documents sealed pursuant thereto. The Court should require the parties to state the "good faith" basis for their designation of each of such documents as "Confidential." Finally, the Court should schedule briefing as to those documents that Intervenors and the parties cannot agree are appropriately sealed or appropriately unsealed.

I. The Court Should Permit Access to Court Documents Which Are Not Genuinely
Competitively Sensitive.

Intervenors do not question IBM's assertion that blanket protective orders are commonplace in civil litigation. That, indeed, is part of the problem. When parties are permitted to unilaterally designate their documents produced and later filed with the Court as "confidential," large portions of the "public" record are automatically sealed from public view. Private litigants generally do not have any particular interest in challenging designations made by an opposing party — their interest is a private one in litigating the case, as opposed to the public's interest in its judicial processes. Blanket protective orders such as the one involved here generally do not contemplate that a court, on its own motion, would challenge any such designation. Thus, as in this case, large portions of the documents filed with courts in civil matters are presented for decision to the court outside of public view.

This threatens the legitimacy of our civil jurisprudence. See generally Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983), cert. denied, 465 U.S. 1110, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984). Federal courts are not private arbitrators provided at public expense for the

3

convenience of parties. They are funded and empowered by the public and their decisions are public decisions.

Significantly, IBM cites no case that has held that the public has no right of access to civil proceedings. In fact, at least five circuits recognize a right of access to civil proceedings, and none reject the right. Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988); Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984), cert denied sub nom, Cable News Network, Inc. v. United States District Court for the Southern District of New York, 472 U.S. 1017, 105 S.Ct., 3478, 87 L.Ed.2d 614 (1985); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983), cert denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984); In re Continental Ill. Sec. Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984). IBM likewise makes no argument that the reasoning by the United States Supreme Court that public access is a necessary element of courts' legitimacy when it comes to criminal proceedings do not apply just as strongly to civil decisions. See Richmod Newspapers Inc. v. Virginia, 448 U.S. 554, 564-569 (1980). It is particularly true in a case such as this, which will have widespread public implications. A protective order permitting IBM or SCO to simply unilaterally declare documents submitted to the Court to be sealed does nothing to protect the public's right to know about the process this Court is undertaking.

Intervenors do not suggest that their rights to access are without limits. Intervenors have no desire to require either party to release genuinely competitively damaging information of no public significance. Proprietary source code, for example, would plainly be appropriately sealed. But it is premature to conclude that any single class of documents, such as documents attached to discovery

4

motions or SCO's Motion for Leave to File a Third Amended Complaint are necessarily outside the purview of the public, without balancing whatever privacy interests, if any, may justify sealing against the public's interest in access.

II. The Court Should Apply The Experience and Logic Test Set Forth By the Tenth Circuit.

IBM acknowledges that the Tenth Circuit in United States v. McVeigh, 119 F.3d 806 (10th Cir.1997), cert denied sub non, Dallas Morning News v. United States, 522 U.S. 1142, 118 S.Ct. 1110, 140 L.Ed.2d 163 (1998) and United States v. Gonzales, 150 F.3d 1246 (10th Cir. 1997), cert denied sub nom, Albuquerque Journal v. Gonzales, 525 U.S. 1129, 119 S.Ct. 918, 142 L.Ed. 2d 915 (1999) applied the test for public access set forth by the Supreme Court in Press-Enterprise Company v. Superior Court, 478 U.S. 1 (1986) ("Press-Enterprise II"). The parties agree that this test requires that the Court consider (1) whether the document which has been historically open to inspection by the press and public; and (2) whether public access plays a significant positive role in the function of the particular process in question.

The first test is easily satisfied in this case. Intervenors seek only to unseal those documents that have been or are filed with the Court. Papers on file with the Court are historically and normally available to the public; the Court's files are generally open for public inspection. See Nixon v. Warner Communications, 435 U.S. 589, 597, 98 S.Ct 1306, 55 L.Ed. 2d 570 (1978). While IBM argues that sealed documents are not historically open to the public, that is tautology: obviously, the motion here challenges the very seal that IBM argues places the documents out of public reach. The result of this

5

argument would mean no sealed document could ever meet the test.2 Protective orders, while common, are still the exception to the ordinary rule of open files.

Second, public access, especially in this case, will play a significant positive role in advancing the litigation. As argued above, the actual and perceived legitimacy of the Court's decisions in this case depend upon public access to the information used to reach those decisions. In most cases, this Court goes to considerable trouble to make filings readily available, maintaining a public clerks' office and even adopting means of electronic access. These efforts are for good reason; the public cannot judge or otherwise rely upon the fairness of a decision that is made in secret, with secret information. This is particularly true in this case, where proponents of open source software vehemently oppose SCO's theory that Linux contains some aspect of its proprietary Unix system. Every aspect of this case available to this public is criticized and examined in detail, and secret submissions jeopardize public confidence in the process.

Moreover, IBM's argument that having to justify its designations of "confidential" is somehow burdensome ignores the fact that, under this Court's Protective Order, IBM must already have a good faith basis for each of its designations. Requiring it to articulate those bases for those documents on file is not burdensome, if the Protective Order has been properly invoked. While requiring the parties to establish those bases for sealing may somewhat tax their subjective individual interests, the judicial

6

process benefits from the credibility it gains through openness. The civil process is advanced by a presumption that civil litigation should be conducted in public, absent a genuine interest justifying closure. That is enough for the second prong of the Press-Enterprise II test.

Finally, IBM argues that documents attached to discovery motions or SCO's Motion For Leave to File a Third Amended Complaint should be excluded, without review, from any unsealing based upon their presumed secondary role in the process. IBM's position in this regard oversimplifies the reality of civil litigation. The Court's decisions on discovery motions can have far-ranging impacts on the merits of the case. Such pleadings can go to the very heart of the judicial function in civil litigation:

Discovery procedures have become a continuing focus of controversy and reform within the judicial and the legal community. This debate has arisen precisely because discovery is so important in trial practice. If we take as our standard 'that the public's right of access attaches to decisions of major importance of the administration of justice,' then discovery motions and hearings fall within the ambit of this right.

Mokhiber v. Davis, 537 A.2d 1100, 1112 (D.C. App. 1988). Even more significantly a motion for leave to amend is an important event of public interest, altering the very claims made in the case and, in effect, redefining the case. The Court cannot assume that such papers never contain anything of sufficient public interest to even consider whether a seal is appropriate at all.

The appropriate analysis is the one set forth in United States v. Amodeo, 71 F.3d 1044, 1049-1050 (2nd Circuit 1995).3 Under Amodeo, the weight of the presumption of access is variable, depending upon the importance of the particular document to the judicial process. When the document is directly

7

relevant to the core judicial function, the presumption of access is strong, the First Amendment is implicated, and the documents can remain sealed only if sealing is "essential to preserve higher values and is necessary to serve that interest." McVeigh, 119 F.3d at 813. When the document is less relevant to the judicial function, the presumption may be weaker, but the Court must still balance the common law right of access against the competing interests of the parties, and the proponent of sealing still bears the burden of establishing the need for the seal. Nixon v. Warner Communications, 435 U.S. 589, 598 (1978) (balancing required); Huntsman-Christensen Corp. v. Entrada Indus., Inc., 639 F.Supp. 733, 737 (D.Utah 1985) (balancing, burden on party resisting access to overcome presumption of access). By asking the Court to retain the seal, without review, on all documents attached to discovery motions, IBM effectively says that no right of access can ever attach to such motions, regardless of their content or impact on the case. This is not and should not be the law. Whether to retain the seal on such documents is a decision that is best made by the Court after weighing, in a fully informed manner, the interest of the public in access against the interest of the parties in secrecy.

Accordingly, the Court should order that the Protective Order be modified to permit counsel for Intervenors to review sealed documents under the "Attorneys Eyes Only" provisions of that Order. The Court should further order that the parties explain their good faith basis for sealing those documents filed with the Court under seal, a basis that, under the Protective Order, they are already required to have.

Finally, the Court should set a timetable for briefing on any documents the parties and Intervenors cannot agree should be appropriately sealed or unsealed.

8

Respectfully submitted this 31st day of January, 2005.

JONES WALDO HOLBROOK & McDONOUGH PC

By: (signature)
Michael P. O'Brien
Andrew H. Stone
Attorneys for G2 Computer Intelligence, Inc., CNET Networks, Inc., and Forbes Inc.

9

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 31st day of January, 2005, I caused a true and correct copy of the foregoing to be sent as indicated below to the following:

Brent O. Hatch
Mark F. James
Hatch, James & Dodge, P.C.
[address]

(via facsimile & hand delivery)
David Boies
Boies, Schiller & Flexner LLP
[address]

(via facsimile & 1st class mail)
Stephen N. Zack
Mark J. Heise
Boies, Schiller & Flexner LLP
[address]

(via facsimile & 1st class mail)
Todd Shaughnessy
Snell & Wilmer LLP
[address]

(via facsimile & hand delivery)
Advid Marriott
Cravath, Swaine & Moore LLP
[address]

(via facsimile & 1st class mail)
Donald J. Rosenberg
[address]
(via facsimile & 1st class mail)

(signature)


  1. G2, CNET, and Forbes, as proposed Intervenors, do not mean to presume the Court's decision on this aspect of their motion by styling themselves "Intervenors." Though SCO has affirmatively stated that it does not oppose the motion to intervene, and IBM has not argued against it, G2, CNET, and Forbes merely adopt this style for ease of reference.

    (Back to text)

  2. That is documents that were sealed from the beginning. In this case, the Transcript of the Court's October 19, 2004 hearing was not originally sealed and the hearing was held in open court. Docket, Entry No. 328. Thus, even under IBM's tautological test for whether such a record was historically available, Intervenors prevail with respect to this Transcript. As a matter of actual history, the hearing was open to the public.

    (Back to text)

  3. IBM implicitly suggests the same standard when it acknowledges a "spectrum establishing the strength of the presumption of access to documents filed with the court." See IBM Memo. at p. 9.

    (Back to text)


  


G2 et al Reply Memorandum -- PDF and text | 270 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Go Here Please.
Authored by: Hiro Protagonist on Friday, February 04 2005 @ 08:42 AM EST
So PJ can find them.


---
I Grok... Therefore... I am.

[ Reply to This | # ]

G2 et al - obvious bias ?
Authored by: Anonymous on Friday, February 04 2005 @ 08:50 AM EST
This is particularly true in this case, where proponents of open source software vehemently oppose SCO's theory that Linux contains some aspect of its proprietary Unix system.

The use of the word "its" here seems to indicate that G2 et al support SCOG's claim that they are "the owner of UNIX operating system". As we know here at Groklaw, SCOG still hasn't provided conclusive evidence to support their oft-repeated claim. G2 et al have an obvious bias in favour of SCOG which makes their motives, well, transparent.

[ Reply to This | # ]

Off Topic (OT) here
Authored by: Naich on Friday, February 04 2005 @ 08:51 AM EST
And may all your links be
<a href="http://www.example.com/">Clickable</a>

[ Reply to This | # ]

"Nice girl" CNET?
Authored by: skyisland on Friday, February 04 2005 @ 09:02 AM EST
I tend to think of CNET as a more staid-looking version of ZDNET, a cheap hussy
which I long ago stopped paying attention to. Superficial, and suspect compared
to more reliable sources of general e-news, e.g., eweek, or the Register.

[ Reply to This | # ]

Time to Boycott CNET?
Authored by: Anonymous on Friday, February 04 2005 @ 09:17 AM EST
CNET has been in bed with M$FT for years, perhaps it is time to boycott them
(though, it's not like I frequent them these days anwyay). One of the biggest
problems I see in this fiasco is MSFT's involvement with the suppose
"internet technology press", paying organizations to pretend as if
SCOG has a case against Linux/IBM. Are there any laws against that sort of
thing? PJ even pointed out attempts by SCOG to use press stories likely
prepared or funded by msft in court. That sort of thing should be very illegal.

[ Reply to This | # ]

G2 et al can find any violations if they want (and want to pay)
Authored by: cricketjeff on Friday, February 04 2005 @ 09:21 AM EST
All they have to do is to buy a sourcecode licence for Sco's Unix and download
the kernel files. Nothing else in this case is relevant because that's the only
thing that can discredit Linux. The fact they want to look at everything else
merely illustrates they don't believe there are any infingements to find.

[ Reply to This | # ]

G2 et al Reply Memorandum -- PDF and text
Authored by: codswallop on Friday, February 04 2005 @ 09:37 AM EST
I believe Judge K. will give G2 at least part of what it wants and that he
should do so. In order of decreasing probability I predict

1) A redacted version of the hearing.

2) Redacted versions of the briefs.

3) Redacted versions of the declarations

4) Unsealing of some of the documents whose sealing is completely unjustified -
like Linux code.

I'd be surprised if he went beyond this and allowed a poking around, document by
document. He's more likely to review the protective order itself and how the
parties have used it.

It's hard to see that any of this would be bad. I'd say the chance of his
unsealing documents where IBM has invoked lawyer-client privilege is effectively
0, unless he rejects IBM's claim of privilege. That issue would have to be fully
briefed first.

---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.

[ Reply to This | # ]

G2 et al Reply Memorandum -- PDF and text
Authored by: Steve Martin on Friday, February 04 2005 @ 09:42 AM EST

Several things come out to my "IANAL"-type eyes while reading this:

"The answer to this argument is simple: until Intervenors' attorneys have access to the sealed documents, it is impossible to argue whether the documents are properly sealed or whether they are documents that are more properly released to the public."

I still wonder who elected G2's lawyers arbiters of whether documents are or are not properly sealed.

"When parties are permitted to unilaterally designate their documents produced and later filed with the Court as "confidential," large portions of the "public" record are automatically sealed from public view."

Does this mean that G2 thinks all such designations of confidentiality must be open to debate? I wonder if G2 would be willing to share their corporate records, earnings, salaries, private memos, et al ad nauseum just because we might want to see it?

" As argued above, the actual and perceived legitimacy of the Court's decisions in this case depend upon public access to the information used to reach those decisions." (emphasis added)

Do my eyes deceive me? Are G2's lawyers seriously arguing that Judge Kimball's decision will have no legitimacy unless G2 et al are able to exercise supervision of his decision process? Can lawyers be that stupid?

"By asking the Court to retain the seal, without review, on all documents attached to discovery motions, IBM effectively says that no right of access can ever attach to such motions, regardless of their content or impact on the case. This is not and should not be the law."

Wonderful. Now G2's lawyers are instructing the Judge in the law. I'm sure he'll appreciate this.

"Finally, the Court should set a timetable for briefing on any documents the parties and Intervenors cannot agree should be appropriately sealed or unsealed."

Gee, it seems to me that this would add an incredible amount of delay to the resolution of this case, and ... oh, wait. Never mind.

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

[ Reply to This | # ]

Could G2's motion backfire?
Authored by: Thomas Frayne on Friday, February 04 2005 @ 09:48 AM EST
If G2's motion is intended to unseal IBM's documents without unsealing SCOG's, I
can imagine a court order which redresses this imbalance. For example, the
judge could grant the motion in part, and deny it in part, perhaps something
like this:

-----------
G2 is made a party for the sole purpose of challenging the propriety of
unsealing documents. G2's lawyer is allowed to look at any document that either
IBM or SCOG agrees should be examined for improperly sealed material, except for
the transcript that was sealed by the court sua sponte. G2's lawyer has 30 days
to submit a motion and a supporting memorandum to unseal specific documents, or
to gain access to specific documents to look for improperly sealed material.
IBM and SCOG have 10 days each to respond to G2, and all three parties have 5
days further to reply. IBM and SCOG can also submit challenges to seals, as
provided in the protective order. All briefing will be under seal. There will
be no hearing. There will be no extensions of the time for the briefing, except
by stipulation of all three parties.

Any challenged document or challenged part of a document that all three parties
agree can be unsealed will be unsealed. Any challenged document or part on
which there is no agreement will be sealed or unsealed as determined by the
court.
--------------


I think that an order like this would maximize the information that could be
revealed to the public without unsealing properly sealed documents, favoring one
side, or unduly delaying the case.

[ Reply to This | # ]

Hard to argue...
Authored by: Observer on Friday, February 04 2005 @ 09:59 AM EST
> ... it's mighty hard to argue a point successfully to a judge, when you aren't telling him openly what you really want and why.

Or perhaps more to the point, it's hard to argue with a judge when your key point it that you don't trust his judgement!

---
The Observer

[ Reply to This | # ]

G2 et al Reply Memorandum
Authored by: hal9000 on Friday, February 04 2005 @ 10:27 AM EST
Why does Judge Kimball have to make judgement on
this issue ?

He hasn't ruled on a number of outstanding issue's for
4-5 months now. His Bio says that he likes to render
judgement quickly so that all parties in dispute are
not inconvienced.

I think he will just take this motion under advisement.

Clearly, he is waiting to resolve who actually owns the
copyrights with the SCO v Novell case first.

He can then render a decision on the copyrights in the
SCO v IBM case with an opinion about lack of evidence
on the behalf of SCO.

This will also make it easier to finalise the contract
issues.

[ Reply to This | # ]

G2 et al Reply Memorandum -- PDF and text
Authored by: Anonymous on Friday, February 04 2005 @ 10:51 AM EST
Maybe G2 et al need to be made part of the discovery process. IBM, as part of
its Latham act claims, might be very interested in finding out everything there
is to know about dealings between Maureen O'Gara, Forbes, and SCOG. Any emails
between MO'G and and SCO employees or officers for the last 10 years should be
sought. And since the OSS commuity has such an intense interest in this case,
none of it should be sealed.

[ Reply to This | # ]

Advid Marriott
Authored by: WhiteFang on Friday, February 04 2005 @ 11:02 AM EST

And they are still mis-spelling David's name.

{shakes head}

G2's and et al's lawyers are still just as (pejorative adjective of your choice here) as before. You'd think with all the prior comments about this kind of sloppy work in all their previous filings someone over in their office would get a clue.

[ Reply to This | # ]

I'm right in saying that you know what was in that email
Authored by: Anonymous on Friday, February 04 2005 @ 11:15 AM EST
The one that was read out in court, yes?

I respect your decision to not publish it. But you do know, and you're
commenting on it here in ways that appear to make it clear that you don't want
it to become public.

That rather implies that it's a bad thing for IBM. It's also uncomfortable
because you are commenting, however indirectly, on an issue on which you should
have no knowlege.

I know it was SCO's poisonous ploy to try to put this thing into the public
domain, but the fact is that you received it, and you chose to read it. Please
be sure to keep your hands clean here. You really don't want to become yet
another tainted participant-observer in this case. Nor is it a great idea to
become more-equal-than-others amongst your Groklaw peers.

If you're going to share, share. If not, please consider not commenting on this
matter, no matter what the provocation.

[ Reply to This | # ]

What is Cnet's angle in all this?
Authored by: ray08 on Friday, February 04 2005 @ 12:18 PM EST
"What did you expect from G2 and Forbes? As for CNET, what's a nice girl
doing in a place like this? "

I have really been watching them (Cnet) and their coverage in this case. It
seems to be fairly balanced, but they don't report very much about it. My take
has been that it is "old" news not worth much time. Cnet just doesn't
appear to be the type of news organization to be getting bogged down in scandal.
So, I ask, what is their real angle in their personal involvement with G2 and
Forbes with the case?

---
Caldera is toast! And Groklaw is the toaster! (with toast level set to BURN)

[ Reply to This | # ]

Someone at IBM probably goofed in an email.....
Authored by: Anonymous on Friday, February 04 2005 @ 12:36 PM EST
And probably referred to Linux as a Unix variant... or said some code was 'like'
some other code... or 'implemented like we did with AIX'...

That's most likely what this is all about..... just what someone said in an
email somewhere that would be a harmless faux paus (sp?) but likely to get
pounced on by SCO and G2 as an admission by IBM.

Just my guess, tho.

-JH (not logged in)

[ Reply to This | # ]

Can someone explain "failure to mitigate damages" or "burden of proof" to me...
Authored by: prayforwind on Friday, February 04 2005 @ 12:36 PM EST
"The Linux code SCO improperly designated confidential isn't even on their
radar..."

This should be the crux of the matter. If I understand things right, if
plaintiff sues defendant, for the lawsuit to remain valid the plaintiff must
show some reasonable effort to "mitigate damages" if possible. In this
case, not only has SCO outright refused to identify the offending -publicly
availiable- code -in court-, but Darl has publicly stated that they'll make more
money off IBM by -refusing- to mitigate damages (by identifying the code) and
thus making themselves "partners in crime". (and of course, it's not
possible for IBM to "erase their fingerprints" by making all or any of
the linux kernel code revisions disappear).

Just an analogy: If I take you to court for, say, alleged racial harassment, the
very first thing I will be asked to show is evidence that I clearly made you
aware of the situation and politely asked you to stop it. If I can't do that,
I'll get immediately sent packing, no?

So can anyone explain why SCO doesn't have to identify this code, where IBM must
show millions of pages of code? And why is the burden of proof on the defendant,
not the plaintiff? I've been following this for some time, but clearly I'm
missing something; what?


---
jabber me: prayforwind@jabber.org

[ Reply to This | # ]

Even O'Gara Can be right sometimes
Authored by: rsteinmetz70112 on Friday, February 04 2005 @ 02:03 PM EST
Even O'Gara can be right sometimes. I think that using public resources (the
court system) to reslove private disputes, places the matter in the public
arena. If the parties wish to keep things confidential then there are private
forums for dispute resolution.

G2, Forbes and Cnet have an interest in finding out what is going on and I am
glad someone decide to test whether the parties were acting in good faith.

---
Rsteinmetz

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Re: CNET
Authored by: NicholasDonovan on Friday, February 04 2005 @ 02:17 PM EST
In my opinion, CNet is hardly innocent. One of their largest sponsors is
Microsoft and they seem willing, ready and able to spread FUD about Linux
whenever they get the chance.

This is ironic as their infrastructure runs almost entirely on Linux. In fact
when they installed Linux the network admins there received calls saying,
"What happened? Everything's faster!"

I wonder how many of the pro-Microsoft editorialists at C/ZD-Net realize that?

*Before anyone starts screeching I KNOW C/ZD-Net are not the same as Ziff
Davis.*

It still doesn't erase the fact that many of these people, in my opinion, have
been willing accomplices over the years and their former writers from Jesse
"Could You Get Fired for Recommending Linux" Berst, to Dave 'Trying
ever so hard to not spread FUD this week it hurts' Coursey.

Of course I don't need to go into meanderings of attempted 'journalistic
persuasion' of the people like Didio, Enderle, DiCarlo and any other so-called
'journalist' that fails to understand that the right to 'Freedom of the Press'
also means 'Freedom of the Public to Hold Your Feet to the Fire.

For you see, there are no privileges or rights without responsibility. The Open
Source community is lectured by those I refer to 'pseudo-intellectualists' who
believe that just because they are against 'Cause 'A'', they are an
intellectual. Ahhhh... No.


You're an intellectual if your opinion is based on thorough research, the
ability to weigh both sides of the issue. You're operating on pure emotion if
your first thought is to write about how these 'crazy, sandal wearing, penguin
worshiping cult members' are running the industry because it forces you to
actually have to think for yourself and do away with a benefactor or two....
guess what? You're not approaching the problem as an intellectual. Now you're
simply an editorialist.

As many have seen, those who predicted that the Open Source community would be
in shambles and that us 'Crunchies' had better wake up, are seeing that personal
integrity is not worth the cost of not analyzing the whole picture and perhaps
obeying ones corporate master.

Some folks at CNet would do well to understand that this applies to them as
well.


Cheers,


Nick




---
Not an Attorney.
Views expressed are my personal opinions and not necessarily those of my
employer or its affiliates.

[ Reply to This | # ]

Maybe G2 doesn't really want anything?
Authored by: Anonymous on Friday, February 04 2005 @ 02:30 PM EST
Sort of like scox asking for discovery that scox doesn't really want, and has no
intention of ever analyzing.

The entier case is one big PR stunt. Why should this be any different? Msft
shills, forbes and O'Gara, simply want to point at the sealed documents and
scream: "WHAT IS IBM HIDING!!? WHY IS THE COURT HIDING THIS FROM THE
PUBLIC!!?"

To anybody familiar with msft, the msft FUD stencth is all too familiar.


[ Reply to This | # ]

So I'll sound like a Troll.
Authored by: Anonymous on Friday, February 04 2005 @ 02:54 PM EST
I know it'll be an unpopular view, but I support this motion. I really could
care less if one side or the other is more guilty of hiding non-trade/business
secret information. A person has a right to privacy, I don't believe the same
should apply to a corporation.

I understand PJ's arguments about how it can easily be abused with nuisance
lawsuits. Maybe better penalties are needed for litigants with no legs(SCOG
comes to mind).

The judges may or may not be acting competently. The only way to know with any
certainty is if their motions are inline with the availiable information. As an
example, what if people hadn't seen the exact terms of the contract between
Chrysler and SCO(Tarantella version), the dismissal would have made less sense
if for whatever reason the contract was deemed confidential.

The surest way to lose a victory, is for the victory to be in question because
of hidden/unknown information. Win or lose, allegations of unfairness to one
side or the other will tear through the trade press like a wild fire. With no
information can you prove one way or the other the verdict is true and fair?

Trust the judge? Why? Is a judge something other then human? Humans are
falliable, partial and inconsistant. Truth is seeing all the facts yourself and
coming to your own conclusion, especially if it involves something important to
you.

Just some food for thought. I know it gives me indigestion.

---------------------------
Black - White .. Nah.. Grey - Gray

[ Reply to This | # ]

A couple of things...
Authored by: Anonymous on Friday, February 04 2005 @ 03:16 PM EST
First and foremost -- PJ get legal counsel. If G2 wins, they you and your
counsel should be able to file for the same access and same rights granted to
G2. I agree with some of the other comments: "Who elected G2 to see what
should and what should not be made public?". This would be a very easy
judgement to get, then we could see all the grimy things that SCO has been up
to.

Second, I think this brings up an interesting question. Let's just assume that
all IBM board members must attend board meetings wearing baseball caps that say
"SCO Sucks!". Well, obviously, IBM would not want this to get out to
the general public. But if somehow that went into the confidential discovery
docs and SCO wanted to bring it up at trial, how could that be kept secret?
Obviously, everyone in the open courtroom would hear it, etc. Or would those
portions of the hearing be closed to the public?

Is that what you are getting at by saying the public only has limited right to
know with regards to civil trials?

Thanks...

[ Reply to This | # ]

Judges reaction
Authored by: Anonymous on Friday, February 04 2005 @ 05:07 PM EST
I wonder how a judge would react to be told he doesn't know what he is doing and
needs a lawyer to check him out?

Also a question. Could the document containing the read aloud email be released
with the sealed email part being kept under seal?

[ Reply to This | # ]

  • Judges reaction - Authored by: Anonymous on Friday, February 04 2005 @ 05:35 PM EST
    • Judges reaction - Authored by: Anonymous on Friday, February 04 2005 @ 09:18 PM EST
..enough already..
Authored by: webster on Friday, February 04 2005 @ 05:16 PM EST
The Judge has enough on his plate without this little tempest in a teapot which
does absolutely nothing to resolve the case. No matter what he orders, someone
can appeal. So he ought to take this motion and put it at the bottom of his
pile, 'under advisement" as they say.

If he eventually feels compelled to act, the safest, quickest, and easiest thing
to do is deny the motion which is business as usual. Anything novel, such as
review by counsel and standards of review, are for a rules commission or a
legislative rules committee.

The SCOfolk shouldn't be behind this initiative unless they have despaired of a
settlement. Confidentiality has its price. A settlement maintaining
confidentiality may be worth much more than a settlement without. But FUD's
their game now, one they are losing to many talented clickers out there like PJ.

---
webster

[ Reply to This | # ]

G2 et al Reply Memorandum -- PDF and text
Authored by: Anonymous on Friday, February 04 2005 @ 05:24 PM EST
Even if the argument is true, shouldn't the court err on the side of caution?
Even if some of the documents were improperly sealed, is the public interest
genuinely harmed by delaying their unsealing until after trial?

[ Reply to This | # ]

G2 et al Reply Memorandum -- PDF and text
Authored by: Anonymous on Friday, February 04 2005 @ 05:36 PM EST
I'm obviously not a lawyer, but it seems odd to me that someone who isn't a
party to the case can seek to interfere in the conduct of the case. What is the
compelling reason for the records to be unsealed NOW, causing more delays in the
process? It would seem to me that openness serves the public interest, but the
"People" are not a party in this case. "We" may have a
right to know, but the case should not be interrupted over the matter of whether
someone who's not a party to the case should have access to the sealed documents
of the case.

[ Reply to This | # ]

A thought
Authored by: Anonymous on Friday, February 04 2005 @ 05:55 PM EST
SCO knows their case is pretty much doomed.
The court (and hopefully their lawyers) has instructed them to keep their mouth
shut.

SCO will not be doing well by its sponsors (Microsoft et al) if it dies a silent
death.

The solution to this is to get these 'third parties' involved and to get SCO's
side (e.g. FUD) out, without it looking like it's coming from them (since noone
listens to them anymore) and without irritating the judge further.

Seems to me that this could be more than just independent actions of
SCO-friendly media, but rather a planned strategy from SCO and their backers.

Any takers?

[ Reply to This | # ]

  • A thought - Authored by: RPN on Friday, February 04 2005 @ 06:10 PM EST
    • A thought - Authored by: blang on Friday, February 04 2005 @ 06:45 PM EST
  • SCO problem - Authored by: Anonymous on Friday, February 04 2005 @ 07:05 PM EST
Why is the burden of proof on the defendant?
Authored by: Anonymous on Friday, February 04 2005 @ 07:00 PM EST
Why?

Why is no one asking this question?

[ Reply to This | # ]

Judge replies to G2 et al Reply Memorandum -- PDF and text
Authored by: mattw on Friday, February 04 2005 @ 10:14 PM EST
In a brief document, Judge Kimball today responded to the G2, Forbes and CNET
motion to intervene in the SCO vs IBM case.

"Due to the media's general inability to find truth in an empty room, and
then to celebrate thier own inability in public forum, I have decided not to
accede to their demands."

"If however, they demonstrate an ability to do research, beyond asking
those with the most mud for some to sling, then I may reconsider my current
stance."

"As this is likely to occur slightly before Microsoft releases it's patent
portfolio to the Open Source community, and slightly after Sun makes up it's
mind if it's working with, or against the community, I won't be holding my
breath."

Judge Kimball then returned to discussions with Magistrate Wells about how they
could push SCO to continue suing themselves into bankruptsy, without placing
undue burden on IBM.

[ Reply to This | # ]

Can IBM now depose O'Gara?
Authored by: Anonymous on Friday, February 04 2005 @ 11:28 PM EST
So now that o gara has attached herself to the actual
case, and is demonstrating that she seems to know the
contents of the email in question, can IBM depose her and
ask her to show where she got her information from, if she
actually has any?

[ Reply to This | # ]

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