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SCO Reacts to IBM's Proposed Scheduling Order
Saturday, April 02 2005 @ 01:04 PM EST

SCO has now submitted a memorandum [PDF] explaining their side of the scheduling order dispute they are having with IBM. They take pot shots at IBM's Memorandum in Support of their proposed schedule and try to persuade the court that their proposed schedule is better.

What it is really all about, as you will see, is that Judge Brooke Wells' discovery order was, in IBM's view, unfair to IBM, and by a motion for reconsideration, it seeks redress. SCO would like to retain the tilt in their favor, naturally.

So both sides are talking about their proposed scheduling order promoting fair and efficient progress of the case, but what it really is all about is who gets a leg up, that little bit of an edge that can make all the difference. SCO claims they are not seeking any litigation advantage, but why wouldn't they be doing that? It's what lawyers do. They claim IBM is seeking such an advantage. That's how the system works. The parties fight for what they want, but the judge tries to find the fair and equitable way. Pretending that isn't what they are doing isn't going to fool the judge, I wouldn't think. It seems obvious.

SCO denies, in footnote 2, there ever was a tentative agreement reached and then broken by SCO, as IBM claimed in its proposed schedule. I'm not sure why they think the judge will find that more appealing, since her direction was that the parties come up with an agreement together. Clearly that is impossible, so the judge will have to wade into the mud puddle and figure things out here herself.

Here's a list of the disagreements SCO feels exist:

  • They can't agree on what the likely outcome will be on IBM's motion for reconsideration. SCO would like to schedule with the presumption that it will be denied and IBM will comply by May 3. IBM naturally assumes the court might just rule in their favor and would like to allow time for that.

  • SCO wants a new deadline for parties to amend their pleadings. That's no doubt because they want the court to give them another shot at trying to pin something on IBM, the new copyright allegation they'd like to add. IBM would like the court to abide by its earlier order that no further amendments would be allowed barring exceptional, compelling circumstances. But SCO points out that the court already decided that they needed a new scheduling order, so why is it a stretch to include amending the pleadings in the new schedule? They argue that IBM's Motion for Entry of Judgment Limiting Scope of IBM's Ninth Counterclaim is effectively a motion to amend too. SCO's motion to amend is not untimely, they argue, because they filed it as soon as they found out about "IBM's misuse of SCO's code, based on Project Monterey documents that IBM first turned over in discovery." SCO plans on propose still more amendments to its complaint, they tell the judge, so it makes sense to set a new deadline to allow for that. That's what discovery is for. They have a point there. It is normal to amend pleadings based on what you find out in discovery. But two years and counting... at some point, there has to be a cutoff. The only question is whether the judge feels that point has been reached or not.

  • SCO wants monthly status conferences to resolve "discovery disputes that may arise" -- in short, they would like a solution to a problem that has not yet arisen, but they extrapolate from the past and would like to foreclose the kinds of problems that have presented themselves in the past. Frankly, I think they want this because of the legal cap on fees. It is cheaper to show up one day in court a month to discuss discovery issues than to do the full motion practice first and then show up for oral argument.

  • SCO wants expert reports exchanged in a certain sequence, which IBM would prefer be different. SCO says IBM has no reason for such a reschedule, but I seem to recall IBM said that SCO wanted discovery to end and then the experts exchange reports, thus blocking IBM from doing discovery on matters raised in the reports. Here is how IBM described it in their proposed scheduling memorandum:

    SCO, by contrast, insists on a schedule that would allow it to keep IBM in the dark about its claims and deny IBM the right to prepare its defenses to those claims. SCO's proposal, if accepted, would result in further unnecessary disputes and delay.

    IBM objects to three of the provisions SCO seeks to include in the scheduling order. SCO seeks to include provisions that would (1) foreclose IBM's motion for reconsideration without substantive review by the Court; (2) re-open the pleadings more than one year after expiration of the deadline for amending pleadings; and (3) require the parties and the Court to participate in monthly status conferences -- on no particular subject -- that would merely invite unnecessary disputes. . . .

    SCO reinforced our concern by refusing to agree to a schedule that would require either an interim or a final disclosure of the Allegedly Misused Material."

    Another factor, I suspect, is that SCO knows that IBM plans on bringing their summary judgment motions back to the court, as soon as discovery is done.

  • SCO says they want earlier deadlines for fact discovery, expert reports, expert discovery and dispositive motions than IBM. I expect this relates to the same issue IBM has on the expert reports scheduling process. They want to be able to do discovery, once SCO finally tells them what this is all about, if they ever do. I gather they feel SCO would like to do the reveal only after it is too late for IBM to do any further discovery.
  • Then on page 3, we get to the nub of the thing. SCO says that IBM, under its proposal, will only provide some discovery by May 3, due to its motion to reconsider. That's not fair to SCO, they claim, because then SCO must meet interim and final disclosure and discovery deadlines by June 10 and August 11. After that, IBM would get a full 3 months unilaterally to complete discovery on its defenses to SCO's claims. That, they allege, is unfair and unreasonable. SCO wants a discovery deadline of October 28, "with expert discovery to follow".

The problem has arisen because the Wells Order was, at least as far as IBM is concerned, unfair to them. SCO would like to keep things tipped their way, naturally. And IBM is trying to redress the balance, with SCO kicking and screaming on each point. IBM, by bringing its motion for reconsideration, sets up a situation where SCO feels it now will have a time advantage. So they are trying to make sure IBM doesn't get the benefit of Judge Kimball's willingness to let IBM file its motion. On such little issues, ultimate winners and losers are decided sometimes. And SCO is clearly worried they won't have time to sift through all the code they fought so long to get. Be careful what you wish for, my mom always says.

Seeking an advantage is, of course, exactly what SCO's attorneys are supposed to do. If a judge makes a mistake in your favor, you tell the judge what a well-reasoned opinion it was, as SCO does here in this memorandum. But IBM appears solidly convinced that a mistake was made, and from what I see, they've decided to let the court know that they'd like some fairness in their direction now.

There is one very telling paragraph. SCO, as usual, trash talks IBM throughout their memorandum, accusing IBM of intransigence in discovery. IBM, in its proposed schedule, asked the Court for a firm deadline by which SCO must tell IBM at last what IBM is supposed to have done wrong with the code by "version, file, and line of code." SCO very much does not want that to happen. Rather, they say IBM must use interrogatories, and SCO can supplement them, piece by piece as they come across things in reviewing the code. SCO claims it isn't the one dragging its feet, and repeatedly slurs IBM, pointing the finger at them instead, but here is a moment of obvious clarity. IBM wants a day by which SCO has to present some proof, some evidence IBM can respond to with particularity at last, and SCO, rather than readily agreeing, dances around trying to avoid having to put its cards on the table.

We've reached the two-year anniversary, and we still don't know exactly what SCO's beef is. And it's *IBM* who is "intransigent"?!?


  


SCO Reacts to IBM's Proposed Scheduling Order | 230 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO Reacts to IBM's Proposed Scheduling Order
Authored by: Samari711 on Saturday, April 02 2005 @ 01:17 PM EST
So did SCO conveniently forget to address the point IBM made about the Monterey
contract requiring all litigation regarding it to be done in New York with no
jury?

---
IANAL
IAACSCSWTHKS (I Am A Computer Science College Student Who Thinks He Knows
Something)

[ Reply to This | # ]

Typos Go Here
Authored by: entre on Saturday, April 02 2005 @ 01:20 PM EST
.

[ Reply to This | # ]

SCO Reacts to IBM's Proposed Scheduling Order
Authored by: junklight on Saturday, April 02 2005 @ 01:35 PM EST
Have there been other cases where the allegation has remained so firmly veiled
for so long? and in particular a successful one on the part of the party who is
hiding their actual complaint?

[ Reply to This | # ]

OT and other links here, please...
Authored by: jbeadle on Saturday, April 02 2005 @ 02:06 PM EST
Please make the links clickable, like so:

<a href="http://www.example.com">your words here</a>

and post as HTML formatted.

Thanks,
-jb

[ Reply to This | # ]

Now entering the Twilight SCzOne
Authored by: Anonymous on Saturday, April 02 2005 @ 02:36 PM EST

"IBM still has not produced critical discovery that SCO has been seeking for more than a year [...] and that the court ordered most recently in January" [my italics]

Which is technically correct. Of course, it would also be correct, and a little more accurate to say "discovery [...] that the court ordered for the first time in January"

What worries me is that if SCO repeats sings this "IBM is stalling" line frequently enough, that the judges in this case might start to believe it, rather than checking the records on what they actually ordered.

[ Reply to This | # ]

SCO Reacts to IBM's Proposed Scheduling Order
Authored by: urzumph on Saturday, April 02 2005 @ 03:17 PM EST
I have to say, Reading the IBM scheduling order and then this memo is a laugh.

The IBM Scheduling order reads like IBM trying to pin down someone with a No
true scotsman arguement (Changes arguement or an important definition every time
it's beaten and pretends it hasn't changed) and the Sco memo reads like someone
who _really_, _really_ doesn't want that.

[ Reply to This | # ]

Project Monterey Agreement
Authored by: rsteinmetz70112 on Saturday, April 02 2005 @ 04:27 PM EST
In re-reading the Project Monterey Agreement I noticed the following under Licenses
(c) License to SCO of Licensed IBM Materials and IBM Project Work

2. Subject to Section (c) (1) above regarding third party or other restrictions, IBM hereby grants to SCO a worldwide, non-exclusive, royalty free (subject to the royalty provisions set forth below), perpetual and irrevocable (subject to Section 14.0, "Termination") right and license under IBM's and applicable third parties' copyrights, to the extent IBM has the right to grant such rights, and any trade secrets or confidential information in the Licensed IBM Materials and IBM Project Work which are included in the Deliverables to (i) prepare or have prepared Derivative Works, (ii) use, execute, reproduce, display and perform the Licensed IBM Materials and IBM Project Work and Derivative Works thereof, (iii) sublicense and distribute the Licensed IBM Materials and IBM Project Work and Derivative Works thereof either directly or through Distributors, in the form of Source Code, Object Code, Documentation, and/or in any other form whatsoever, and (iv) grant licenses, sublicenses, and authorizations to others (including without limitation SCO Subsidiaries, Distributors and any other third parties), on a non-exclusive basis that is equal to the scope of the licenses granted hereunder, limited only as specifically described in Section (e) below The rights and licenses granted in this Section (c)(2), with respect to the IA-64 Product, shall be limited to use and distribution solely in connection with SCO products designed to operate on the Intel Architecture or with a single Special Purpose Processor. Designed to operate on the Intel Architecture shall mean designed to run on an the Intel X86, Pentium, Pentium Pro, Merced or their successors or compatible microprocessors without recompiling. Special Purpose Processor means a processor that is (i) for a single pre-defined embedded special purposes application, and (ii) does not allow the end user to run the system as a General Purpose Computer System, either directly or indirectly. General Purpose Computer System means a commercially available system which is intended to be reprogrammable by the end user and is either (i) intended for primary use as a general purpose business computer, a personal computer, or a scientific/technical workstation; or (ii) part of a network configuration whose primary purpose is for executing general application programs supporting general business, personal or scientific/technical activities.

(d) License to IBM of Licensed SCO Materials and SCO Project Work

2. Subject to Section (d) (1) above regarding third party or other restrictions, SCO hereby grants to IBM a worldwide, non-exclusive, royalty free (subject to the royalty provisions set forth below), perpetual and irrevocable (subject to Section 14.0, "Termination") right and license under SCO's and applicable third parties' copyrights, to the extent SCO has the right to grant such rights, and any trade secrets or confidential information in the Licensed SCO Materials and SCO Project Work which are included in Deliverables to (i) prepare or have prepared Derivative Works, (ii) use, execute, reproduce, display and perform the Licensed SCO Materials and SCO Project Work and Derivative Works thereof, (iii) sublicense and distribute the Licensed SCO Materials and SCO Project Work and Derivative Works thereof either directly or through Distributors, in the form of Source Code, Object Code, Documentation, and/or in any other form whatsoever, and (iv) grant licenses, sublicenses, and authorizations to others (including without limitation IBM Subsidiaries, Distributors and any other third parties), on a non-exclusive basis that is equal to the scope of the licenses granted hereunder, limited only as specifically described in Section (e) below.

The language is pretty much identical except for the bolded part which limits SCOG, not IBM and the IBM license paragraph is much shorter.

As has been noted before this seems to limit SCOG to Intel processors. I just realized that it might also prevent an AMD 64 version, since it won't run very well, if at all without recompiling. If Intel delivers a AMD compatible processor, SCOG may be able to use it, assuming it's 100% compatible and does not require and modifications to the code.

How SCOG is going to deal with the plain language of this agreement is beyond me, unless SCOG is going to contend that IBM was not authorized to use SYS V r4/5 code and obtained it improperly. If that is the case the Project Monterey agreement is irrelevant, IBM simply stole the code. If IBM obtained the code as a part of Project Monterey, then it seems to me that they have a licenses to use it anyway they want.

I'd love to see the theory SCOG is using to say IBM has no right to use Project Monterey code. There seems little question that they have a royalty free, perpetual and irrevocable license.

---
Rsteinmetz

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

[ Reply to This | # ]

SCO Reacts to IBM's Proposed Scheduling Order
Authored by: Anonymous on Saturday, April 02 2005 @ 04:35 PM EST
>>We've reached the two-year anniversary, and we still >>don't know
exactly what SCO's beef is. And it's *IBM* who >>is
"intransigent"?!?

As an citizen of the USA. I would like to say this is silly. The court system is
broken and shuld be fixed. Sory, but two years of nothing, when they claimed
they hade millions of lines of code. Show us the code!

[ Reply to This | # ]

MJ Well's Has a Chance Now......
Authored by: NastyGuns on Saturday, April 02 2005 @ 05:04 PM EST

MJ Wells now has a chance to correct her huge mistake of ordering IBM to provide all of this material to SCO without ever holding SCO to the previous court orders (HER very own orders to boot!) to provide their supposed proof.

IMHO, she should order that IBM does not need to do the developer stuff, ensure IBM continues with collecting the other information, but make any turn over of that information contingent upon SCO providing the proof they've claimed to have for so long and yet have failed to produce. Even give SCO 30 days to do so before monetary sanctions start for each day after 15 days taken. If it reaches 30 days, SCO et. al. should be held in contempt of court.

Of course I'm no lawyer, and I don't have any illusions about this actually happening. However, it or something very similar needs to be done to call a halt to this complete farce of the US judicial system.

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

[ Reply to This | # ]

Why can't this scenario happen?
Authored by: gnutechguy99 on Saturday, April 02 2005 @ 08:22 PM EST
The SCO v. Novell case picks back in May right? Why couldn't Kimball rule in the
Novell case that SCO has no copyrights and then declare that the SCO v. IBM
farce is a CONTRACT case and should be settled in NY State courts as per the
CONTRACT?

Just asking and looking for feedback. THX

[ Reply to This | # ]

Kimballs options on the 3rd amended complaint
Authored by: Paul Shirley on Saturday, April 02 2005 @ 08:53 PM EST
I've already suggested the contract clause gives Kimball the perfect excuse to
kick the 3rd version to NY.

There might be a better option: suppose Kimball accepts the amendment (someone
posted a rule that should allow that) but enforces the 'no jury' wording. That
would be devastating to SCOG, it would remove all chance of further delay,
remove their only chance of a big win (no jury to confuse) and Kimball is best
informed to reach a rapid decision.

It raises the possibility that Kimball could dismiss the copyright aspect when
IBM refiles its PSJ and simultaneously (or near to it) dismiss the contractual
claims. Maybe, SCO have just made their biggest mistake, by trying so hard to
avoid the NY court no-jury clause they will precipitate a more rapid endgame.
And just quickly enough that they'll have assets left to lose in the
counterclaims!

Maybe SCOG realise what could happen and the continued attempts to delay the end
of discovery is their reaction?

[ Reply to This | # ]

SCO Reacts to IBM's Proposed Scheduling Order
Authored by: NastyGuns on Saturday, April 02 2005 @ 09:12 PM EST

Reading the order, I note (and may have missed some) at least six (6) attempts to say (or insinuate) that IBM has failed to produce discovery against a previously ordered court order for over a year (of course we all know that this onerous discovery order was issued for the first time in Jan 2005):

  • In Section I, bottom of pg 3 you find this:
    First, SCO's proposed scheduling order is based on IBM's production by May 3 of the discovery that this Court ordered (indeed, reordered) in January.
  • And bottom of pg 4, last sentence of the 1st argument you find:
    Having lost in its efforts to avoid producing the discovery at issue, IBM thus assumes away a substantial part of the discovery that this Court ordered pursuant to its thorough and well-considered January 18 Order (based on SCO's renewed motion to compel discovery the Court had previously ordered IBM to produce in March 2004).
  • In Section II, bottom pg 8 (continuing on to pg 9):
    The discovery deadline SCO proposes reflects SCO's estimate of the amount of time SCO needs (1) to review and analyze the enormous volume of source code and revision and contribution information that IBM withheld for over a year, but has now been ordered to produce; and (2) to respond to IBM's pending and expected discovery requests. SCO's proposed deadline also gives IBM a full opportunity to seek discovery on SCO's claims and on IBM's defenses. SCO does not seek any special treatment or litigation advantage through its proposed schedule; it asks only for the opportunity to develop the proof of its claims based on material that IBM has long withheld.
  • In the first paragraph of pg 10:
    Although the question of a revised discovery schedule is before the Court as a consequence of IBM's refusal to produce voluminous, relevant discovery for over a year, IBM seeks a revised...
  • The last sentence of footnote 8 on pg 10:
    IBM's claim of a "reciprocal" discovery obligation is yet another instance in which IBM seeks to downplay the Court orders finding that IBM has refused to produce voluminous and plainly relevant discovery for over a year.
  • Finally from mid pg 12:
    IBM has availed itself of these processes, and SCO will supplement its discovery responses as information becomes available upon its review of the discovery that IBM has refused to produce for over a year.
All emphasis is mine.


And then there is this from the top of pg 11:

In arguing for a bifurcated discovery schedule on the ground that SCO had not identified to IBM's satisfaction the evidence of IBM's misappropriation of SCO's protected material, IBM disregards that SCO did not have the discovery needed to identify all of the misappropriation at issue.

Combine that line, with the information provide above from pg 12 about SCO supplementing its discovery. This implies to me that SCO is saying the burden of proof is on IBM to prove they didn't violate anything by providing discovery against the claims and therefore isn't on them (SCO) without getting any discovery first. (And for all intents and purposes, it seems that MJ Wells apparently agrees with that line of reasoning, confirmed by her discovery order against IBM and not holding SCO to providing its (definitely twice ordered) proof.)

Now, is it just me, or is it actually SCO that disregards the fact that they are responsible to show the evidence of wrong doing first? And then add any extra evidence found during discovery? A plaintiff is not allowed to fish for evidence just because. At least that's how this IANAL, understands how all this legal stuff is supposed to go.

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

[ Reply to This | # ]

Version, file and line of code
Authored by: Anonymous on Sunday, April 03 2005 @ 01:30 AM EST
Correct me if I'm wrong, but isn't this essentially a restatement of the yeay
plus old non-compliance by SCO with regard to a discovery order and at least one
order to comply?

"IBM, in its proposed schedule, asked the Court for a firm deadline by
which SCO must tell IBM at last what IBM is supposed to have done wrong with the
code by "version, file, and line of code."

If that is the case, then please for the love of Pete, can someone tell me why
the Magistrate judge has not realized that SCO has not only lied to her, but
mis-used her goodwill in order to seek an tmporper litigationn advantage?

"SCO very much does not want that to happen. Rather, they say IBM must use
interrogatories, and SCO can supplement them, piece by piece as they come across
things in reviewing the code."

In other words they are openly and deliberately defying jUdge Wells' previous
order for them to comply with IBM's discovery requests.

Can any of the Lawyers here explain to me why exactly the Judge is seemingly
blind to the quite obvious abuse of process that SCO and their
"attorney's" are commiting in her court?

~Highlander
(definitely IANAL)

[ Reply to This | # ]

next century
Authored by: john hrdo on Sunday, April 03 2005 @ 04:10 AM EDT
So SCO wants the discovery deadline set for
October 28 with experts discovery to follow
in January-February 2006.

What a surprise.

SCO does not want this case to go trial in
the first place. Right now, they are
indirectly pushing for a trial date in the
second half of 2006. If they get their will,
other tricks will be found to postpone the
trial again and again.

But why? A trial with a dozen clueless jurors
getting more confused by the day and only
aware that a small Utah company is being
bullied by a monster company from the East
Coast? That cannot be so bad.

SCO does not want the trial because they know
for certain that in the end they would be
defeated and there are financial limits even
before the end of the end is reached in the
legal itinerary. They want to keep harassing
IBM to make themselves marketable to others.
Others means not IBM, IBM cannot afford
a settlement with the scumbags for reasons
that do not need to be discussed any longer.

Others could mean some really adventurous venture
capitalist or some company that has a bundle
to discuss with IBM. Sun or Novell, for
instance. They could negotiate with IBM.

Particularly, watch Novell. They have a
special relationship to SCO, both Ralph Yarro
and Darl McBride have worked there and know
Novell people personally. The SCO-Novell
trial has already been postponed twice for
innocent reasons. If the date mid-May is
pushed up again (for innocent reasons), we
can start smelling a rat.

[ Reply to This | # ]

Isn't SCO Fearing Something That Already Happened??
Authored by: Anonymous on Sunday, April 03 2005 @ 04:11 AM EDT
IBM, in its proposed schedule, asked the Court for a firm deadline by which SCO must tell IBM at last what IBM is supposed to have done wrong with the code by "version, file, and line of code." SCO very much does not want that to happen.

I don't recall specifically, but didn't this already happen last year either in January or March? I seem to recall a ruling in one of those months in which the judge already said that SCO needed to provide such information . . . and, of course, SCO failed to do so. It ended up getting lost in the noise that was SCO's discovery cries.

-- nonpartisan (not logged in)

[ Reply to This | # ]

They don't have any copyrights...
Authored by: Latesigner on Sunday, April 03 2005 @ 11:26 AM EDT
This should be interesting.
SCO wants to stick in a copyright claim before a judge who doesn't think they
have any copyrights?
Did someone at the law office forget that Kimball's hearing the Novell case as
well?

[ Reply to This | # ]

When can IBM shout enough
Authored by: Chris Lingard on Sunday, April 03 2005 @ 01:55 PM EDT

How long will it take Yarro and McBride to dump their shares; or to short sell an equivalent number via a proxy.

SCO wants monthly status conferences to resolve "discovery disputes that may arise" -- in short, they would like a solution to a problem that has not yet arisen, but they extrapolate from the past and would like to foreclose the kinds of problems that have presented themselves in the past. Frankly, I think they want this because of the legal cap on fees. It is cheaper to show up one day in court a month to discuss discovery issues than to do the full motion practice first and then show up for oral argument.

This is perfect for them. They can feed their propaganda into court, and then quote the judge and court via their paid lackeys.

And if they have some evidence, they can add it at the last moment; and get twelve Utah men of straw as jury. Is there any way to get this case out of Utah; it is clear that the law is too weak there, to get a fair trial.

[ Reply to This | # ]

Final Disclosure
Authored by: mrcreosote on Monday, April 04 2005 @ 03:34 AM EDT
Maybe IBM could accommodate SCO's problems with the schedule for Final
Disclosure, by restricting it to only the evidence SCO had in it possession when
they made the original complaint, and which formed the basis for making the
original complaint.

---
----------
mrcreosote

[ Reply to This | # ]

  • What are the odds? - Authored by: Anonymous on Monday, April 04 2005 @ 10:26 PM EDT
    • So what - Authored by: Anonymous on Monday, April 04 2005 @ 11:13 PM EDT
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