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SCO's Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Complaint
Thursday, April 14 2005 @ 01:23 PM EDT

Here's SCO's Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Complaint [PDF].

It took me a while to figure out what they are "replying" to. Their Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend its Complaint (#429 on the docket sheet) has no response by IBM, of course, but SCO's Reply begins by talking about IBM's "rhetoric". They quote IBM's words "tactical ploy", so that targets the document they are quoting from as being IBM's Reply Memorandum in Further Support of IBM's Proposed Scheduling Order. So this is SCO's equivalent to that, their reasons why their proposed scheduling order is better than IBM's, I gather. But how does the Motion to Adjourn fit into that, exactly? I honestly don't know.

Anyway, they are ratcheting up the rhetoric themselves:

IBM's present argument is also deficient, however, because it would effectively allow IBM to prejudice SCO by exploiting the continuing impact of IBM's prior violations of this Court's orders. By witholding extensive and essential discovery through conduct now adjudicated to have been a prolonged violation of this Court's directives, IBM has necessitated the new scheduling order. IBM has still not produced most of what this Court ordered IBM to produce over a year ago.Whereas the previous scheduling order provided that the pleading amendment deadline would be six months before the close of discovery, IBM's approach would exploit its discovery violations and prejudice SCO by seeking to cut-off amendments fifteen (15) months before IBM has even begun to comply with the Court's discovery orders, and twenty-one (21) months before even IBM's proposed fact-discovery cut-off.

What prior violations of what court orders? Where do they get that? Is this for the peanut gallery? The court surely knows what happened. When did the court ever "adjudicate" that IBM's "withholding" of "extensive and essential discovery" was a "prolonged violation of this Court's directives"? I've read every word that isn't sealed. I simply have no idea what they are talking about. Is it not slander or libel if you say it in a court filing? This gives me a really bad taste in my mouth.


  


SCO's Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Complaint | 198 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion
Authored by: dkpatrick on Thursday, April 14 2005 @ 02:09 PM EDT
As long as the courts continue to accept SCO's pleadings and motions and
amendments without penalizing them for the obvious delaying tactics, SCO will
continue to do so. They have nothing to lose, evidently, by twisting the courts'
words and each new motion takes time and energy to adjudicate.

At some point you'd hope that the courts realize that they have the power to say
'no' and that justice delayed is justice denied.

---
"Keep your friends close but your enemies closer!" -- Sun Tzu

[ Reply to This | # ]

OT here, please
Authored by: overshoot on Thursday, April 14 2005 @ 02:11 PM EDT
And if you would post links as <a
href="http://www.example.com">clickable HTML</a>, that would
be appreciated.

[ Reply to This | # ]

Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion
Authored by: Anonymous on Thursday, April 14 2005 @ 02:16 PM EDT
"I've read every word that isn't unsealed" should most likely read
"I've read every word that isn't sealed."

[ Reply to This | # ]

Humour: The PJ briefcase.
Authored by: Franki on Thursday, April 14 2005 @ 02:31 PM EDT
We [SCO] have a briefcase filled with millions of lines of evidence of PJ being
an Ewok from Endor working for a foundation formed by Redhat, Novell and IBM
(the Empire) to undermine the worlds IP system. They are working from a Death
Star hidden behind the moon.

When the time comes we will show our millions of lines of evidence which will
prove once and for all that "All your bases are belong to us" and
Ewoks are not to be trusted. If you want a licence that allows you to suggest
that PJ isn't an Ework working for the evil alliance, all you need to do is
write a check to SCO and leave the amount fields blank.



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

[ Reply to This | # ]

Bad Taste
Authored by: overshoot on Thursday, April 14 2005 @ 02:36 PM EDT
What prior violations of what court orders? Where do they get that? Is this for the peanut gallery? The court surely knows what happened. When did the court ever "adjudicate" that IBM's "withholding" of "extensive and essential discovery" was a "prolonged violation of this Court's directives"? I've read every word that isn't unsealed. I simply have no idea what they are talking about. Is it not slander or libel if you say it in a court filing? This gives me a really bad taste in my mouth.

Well, since court filings are priveledged it isn't slander, and it isn't libel since it's written.

However, IMHO there's nothing wrong with the Court pointedly reminding both sides that misrepresenting the Court's own decisions to it in sworn submissions can be accounted for in only three ways:

  1. Gross incompetence. If this is the explanation, the Court expects the Bar to inquire into the responsible lawyer's fitness to practice.
  2. Gross negligence. If this is the explanation, the Court expects the Bar's Ethics Committee to inquire into the responsible lawyer's fitness to practice.
  3. Willful perjury. If this is the case, the Court can handle the matter on its own.

Summing up: in the future the Court will expect that motions filed with the Court will at a minimum reflect a modicum of familiarity with the case record, and in particular with the Court's own rulings in the matter. Failing that, the Court will expect one of the above three explanations from the filing party.

[ Reply to This | # ]

The Doc link gives a 404
Authored by: rocky on Thursday, April 14 2005 @ 02:37 PM EDT
Mmm, has the pdf been posted yet?

[ Reply to This | # ]

I guess IBM's last salvo hit home.
Authored by: rsteinmetz70112 on Thursday, April 14 2005 @ 02:37 PM EDT
IBM must have hit a nerve. But SCOG still can't shoot straight. It looks like
this one is improperly titled.

Perhaps SCOG expects IBM to attack on the grounds of discovery violations of the
previous orders. SCOG has been fairly careful to cover their bases by claiming
to be unable to comply because they need additional discovery. At least the
court was on notice of what they were doing.

I hope this over the top rhetoric has some consequences. I would expect an IBM
"In Further Reply ..." pretty soon. Pointing out that IBM has complied
in full and challenges SCOG to show what they have not done.

Odd how when someone challenges any of SCOG's assertions they lash out,
frequently incoherently.

---
Rsteinmetz

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

[ Reply to This | # ]

Corrections.
Authored by: DBLR on Thursday, April 14 2005 @ 02:53 PM EDT
Please place corrections here for P.J.



Charles


---

"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 Big Lie
Authored by: Anonymous on Thursday, April 14 2005 @ 02:53 PM EDT
They say that if you repeat it often enough, even a Big Lie eventually will
come to be accepted as the truth. They just really, really want everyone to
believe that the court ordered the production of everything they want over a
year ago, and that IBM has just been delaying.

[ Reply to This | # ]

I think you have this slightly wrong
Authored by: Anonymous on Thursday, April 14 2005 @ 02:56 PM EDT
This is SCO's reply in further support of SCO's adjournment motion (although yes
it does address points IBM's reply in support of IBM's proposed schedule)

I bet you will also see

1. SCO file a reply in support of SCO's proposed schedule separately
2. IBM has already filed a reply opposing SCO's adjournment motion (to which
this document is ostensibly a reply)

I think #1 may or may not have been filed yet

I suspect #2 has already been filed, but hasn't appear on the court's
site/docket/etc yet, perhaps because the clerk has scanned them in a different
order to which they are filed.

If #2 doesn't exist, it would surely be premature for SCO to file this reply
brief (why reply to a non-existant opposition).

The other possibility is that this motion is mistitled as is supposed to be
SCO's reply in support SCO's proposed schedule. However I rule out this
possibility, even for the gang who can't shoot straight, simply because it
doesn't address anything in SCO's proposed schedule except for the amendment to
pleadings issues (and there are at least 5 other differences between SCO's and
IBM's proposed schedules).

Additional evidence for my theory and that #2 exists, is it mentions IBM making
a point about Sam Palmisano's deposition motion (one of SCO's renewed renewed
motions to compel) being planned to be heard on 21 April. We haven't seen IBM
making any point on this issue in the scheduling motions (all of which are
unsealed so far), therefore #2 must exist.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Group think...
Authored by: Latesigner on Thursday, April 14 2005 @ 03:41 PM EDT
SCO's lawyers have lost sight of the fact that they're lieing.
There's no reason why group think can't work on lawyers just like it does on
anyone else it's just that the ordinary public doesn't often get to see it in
action.
I expect IBM to take full advantage of SCO's trip into unreality.
I'm also sure it's really going to tick-off the judge.

---
The only way to have an "ownership" society is to make slaves of the rest of us.

[ Reply to This | # ]

The Estate of Erwin Schreodinger
Authored by: Anonymous on Thursday, April 14 2005 @ 03:46 PM EDT
Blepp came into posession of this "magical" suitcase, when his father
bought an item at an auction in Vienna in 1961.

The auctioneer advertised the suitcase as containing several interesting and
historical documents, and Blepp Senior raised his hand, and won it without
contest. However, arriving at his hotel room, looking forward to exploring his
treasure, the suitcase was empty. He went back to the auction house the next
day, adn complained bitterly. The auctioneer pointed to the label inside the
lid, where it said. "Erwin Schrodinger, Wien". Poor sentior Blepp
took the suitcase back home, but his troubles were not over.

At the border post between Austria and Germany, Blepp stated that he had nothing
to declare, but was shocked when a cat jumped out of the suitcase, attacking one
of the customs officials.

Poor Blepp gave the suitcase to his toddler son, but warned about the magic.
However, as the young Blepp grew up, he found that he could harvest the power of
the suitcase to further his career. He was a great sucess of the vaudeville
circuit, dragging white rabbits, cats, albatrosses, and the occasional pony out
of his magic case. But his back could not take the strain anymore, so he he
joined the tech world, as a sales guy for SCO.

He was NOT lying when he said he had millions of lines of code in that suitcase,
but he wasn't telling the whole truth either.


[ Reply to This | # ]

Independent Opinion
Authored by: Anonymous on Thursday, April 14 2005 @ 03:54 PM EDT
I want some of what they are smoking. Talk about never leaving the '60s.

[ Reply to This | # ]

Is it not slander or libel?
Authored by: Anonymous on Thursday, April 14 2005 @ 03:58 PM EDT
Is it not slander or libel if you say it in a court filing?

It's a written public statement, so it is libel. And yes, this looks very very close. It's public defamation using statements they know to be untrue.

J

[ Reply to This | # ]

Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion
Authored by: Anonymous on Thursday, April 14 2005 @ 04:05 PM EDT
This is a new trick. Sco is getting a second reply to IMB's motion.

1 First Ibm came out with "Memorandum by Intl Bus Mach Inc in support of
proposed scheduling order"

2 Sco replied with "Memorandum by SCO Grp in support of SCO's proposed
scheduling order" which replied to #1

3 IBM then replied with "Memorandum by Intl Bus Mach Inc in further support
of proposed scheduling order"

Now the judge should rule. Sco shouldnt get to have another swing of the bat.
But

4 "Reply by SCO Grp to response to [429-1] ex parte motion to
vacate/adjourn the April 21, 2005 Argument on SCO's Motion to Amend
Complaint" is a reply to #3.

Naming it a reply before IBM has a chance to reply in hopes of stoping ibm from
replying before the judge dose.

[ Reply to This | # ]

Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Complaint
Authored by: Anonymous on Thursday, April 14 2005 @ 04:12 PM EDT
It pains me to say it, but so far, judging by
what the two judges have actually done, SCO's
reading of the case, the courts and the judges
is *spot on*. SCO has them *pegged* and feels
quite safe declaring that the court has
"adjudicated" (nice weasel word; they don't
seem to be literally saying that there was any
ruling but it kind of suggests it doesn't it)
that IBM is in violation of some court order.

I wish (but can't expect or even hope) that the
court will wake up and put SCO in their place.
But then maybe it is we who are out to lunch,
and SCO is doing just fine.

[ Reply to This | # ]

Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion
Authored by: Anonymous on Thursday, April 14 2005 @ 05:05 PM EDT
The link to the pdf is broken.

[ Reply to This | # ]

SCO's Interprtation of the Judge's Orders
Authored by: micheal on Thursday, April 14 2005 @ 05:13 PM EDT
In a comment to the article

SCO Asks for Delay on the April 21st Hearing and IBM Gets Really, Really Clear

Marbux says:

"But the Rules are very clear on this subject; it is the side objecting to discovery that has the burden of proof, and a request that is reasonably calculated to lead to the discovery of evidence that would be admissible at trial is proper."
In light of this it is almost as if SCO believes that the judge is giving a subtle hint to IBM.

"You (IBM's lawyers) know the rules of discovery. I (the judge) should not have to order you to provide SCO's properly requested discovery."

So SCO is interpreting the judges orders not only as applying to the items specifcally mentioned, but also to all of the other discovery that SCO requested. If any SCO discovery requests were improper then the judge would have said so.

IANAL

---
LeRoy

If I have anything to give, made of this life I live, it is this song, which I have made. Now in your keeping it is laid.
Anon

[ Reply to This | # ]

Can IBM motion to strike misleading text?
Authored by: jtsteward on Thursday, April 14 2005 @ 05:17 PM EDT
SCO has used misleading quotes from stuff they have filed in IBM as
"truths" in Autozone to make that case look better for them. Look for
more of the same.
If SCO is misrepresting the facts in a motion can IBM ask for the offending text
to be removed from the record?



---
-------------------------------------------------
Darl needs more bullets, he keeps hitting his foot but he won't go down

[ Reply to This | # ]

The Bar could, but doubtful it will do anything
Authored by: AMc on Thursday, April 14 2005 @ 05:20 PM EDT
The Utah Bar could investigate. However there are several quid pros at work
that make it highly unlikely it would ever see the light of day. The Bar in
most states would not intercede until a given action has closed. The logic
tends that any given lawyer could be sandbagging to get an edge up during trial,
and acting prematurely denies the client due representation. There is a strong
tendancy to approach accusations raised in this manner with a cold shoulder, as
the tactics that are in question today probably have been legit in the past and
will be in the future. No lawyer wants to reduce their bag of tricks, and for
every practicioner that preaches reform there is another that preaches against
with equally compelling arguments. And given who the attorney's in question are
(specifically Brent Hatch), you would stand a better chance of getting blood
from a turnip. One call from the Senator and any investigation will dry up. No
lawyer with an eye towards the bench will cross the head of the Senate Judiciary
Committee out of fear their career will terminate with extreme prejudice.

It's a shame too. This is really a case where the ABA and Utah Bar's should be
making an example out of the parties involved. If you look at the Utah Supreme
Court Rules of Ethics (the rules from which the Utah Bar derives it's rules of
common practice) they have multiple violations. Rules on payment, vested
interests, pro hack vice ethics expectations, professional behavior...and that's
just skimming the index. Kevin McBride has already exited the state and changed
practices. Hatch is standing to gain the most financially, and probably
coordinated the botched attempt to turn this case into an anti-GPL lobby. It's
an even bet that this IP grab was cooked up in expectations that Sen. Hatch
would push through some pre-INDUCE act that was so controversial it never made
it into the daily record. As for BSF they generate all the press they could
want between AIG, Tyco, the Florida sanctions, and their other activities.

The one hope I can see is that some investors will get involved in trying to
reclaim their lost investments. There are just so many bizarre actions.

- Kevin McBride, the initial attorney of record, was registered with the Utah
State Bar as a personal investment advisor and tax attorney. His previous work
had been for a corporate counsel firm with a mix of private and public clients.
Ethics rules should have prevented him from taking the case because his brother
was on the board of SCOG. After a few months around Lake Tahoe, he's trying to
establish an IP racket practice in Southern Cal.

- Canopy. Even giving the majority of the fund shuffling and questionable deals
as Yarro's doing, where was the oversite? Why was indemnification added to
terms with so many glaring problems? If Canopy provided HR, CFO, and other sort
of guidance, who is responsible for the ongoings at SCOG?

- Yarro et al. Canopy will point the liability finger in their direction, and
likely succeed. Their issues read like a cheap pulp thriller. All that
pocketed money is going to be a big red bullseye for groups looking for
payback.

- The Hatches. As tight knit as the family is, with it's record of dad
supporting his boy's activities, it might be time to ask what do they know and
when did they know it? The timing of the Darl's letter to Congress meshes with
some of Sen. Hatch' more distasteful attempts to legislate the internet. Did
they violate ethics rules (father or son)? How much did they profit at
shareholders expense?

This whole thing just begs for a Ken Starr-style grand jury investigation.
Except with teeth.

[ Reply to This | # ]

Feast of articles
Authored by: Anonymous on Thursday, April 14 2005 @ 05:26 PM EDT
After periodic stretches of a couple days between articles, or just a article or
so a day, suddenly the Groklaw addicts (me included) have 10 articles in just 2
days to paw through.

Go PJ!

[ Reply to This | # ]

"...a really bad taste in my mouth."
Authored by: Anonymous on Thursday, April 14 2005 @ 06:37 PM EDT
You never get used to it. It is the taste of defeat. It arises when the judge
does not see things your way and nothing you can do can change that. He may not
be following the law, he may not even fully agree with the other side, but he
will not see what you see as obvious. It is made all the more bitter by the
fact that you must hide it.

[ Reply to This | # ]

Errors/corrections here please.
Authored by: Anonymous on Thursday, April 14 2005 @ 06:39 PM EDT
> I've read every word that isn't unsealed.

"sealed"?

[ Reply to This | # ]

Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion
Authored by: greybeard on Thursday, April 14 2005 @ 06:48 PM EDT
I am certainly no legal savant, but it seems to me that SCO senses that the
magistrate judge is a patsy who is susceptable to their unsubstantiated claims
and grand-standing. It has certainly worked so far to continuously redefine the
extend of discovery. If they think that if they scream and kick and threaten to
turn blue she will roll over (again), why wouldn't they give it a shot? It
isn't like they had bothered to present a case in any of their previous
filings.

Appeals anyone?


---
-greybeard-

[ Reply to This | # ]

  • Disagree - Authored by: cheros on Friday, April 15 2005 @ 03:50 AM EDT
I would love to be inside Judge Kimball's head.
Authored by: Anonymous on Thursday, April 14 2005 @ 07:44 PM EDT
What is he thinking as he reads these crap filings from SCOG?

Is he thinking:
"Boy, SCOG's petty tactics and cheap slurs and constant distortions of the
truth sure get annoying. But its all worth it, because I'm going to slap these
losers down in a hard yet appeal-proof fashion if they don't cough up any real
evidence."

Or is he thinking:
"Hmm, IBM is being really nice and restrained in front of me, and SCO is
spouting a lot of gibberish, but they keep saying that IBM is being mean to
them. I wonder what is really going on here? What should I do?"

Or is he thinking:
"Arrgh.. my head hurts reading all these filings.. I've been bending over
backwards to avoid giving SCO grounds for eventual appeal, but the case is
becoming more and more of a mess.. Should I just leave it alone until discovery
is over, or should I try and straighten things out and risk the possibility of
appeal?"

Or is he thinking:
"Mmmmm.... another Donut! Rich, creamy chocolate Donut!"

(Well, probably not that last one.)

IANAL so I don't know much about how these things work, but its very frustrating
to watch this crap go on for *TWO FULL YEARS*. How can a federal court Judge
listen to this stuff for 2 years and not once say, "show me at least *some*
evidence or I throw this case out here and now"? I know the system doesn't
work like it does on TV, but I'd love to see some signs of the system working at
all. It doesn't seem to know how to cope with a frivolous litigant like SCOG
when the frivolous litigant manages to complicate and confuse everything the way
SCOG's lawyers have done.

[ Reply to This | # ]

Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion
Authored by: rusty0101 on Thursday, April 14 2005 @ 07:51 PM EDT
My own suspicion is that they are filing this, with the specific wording
indicating that IBM has failed to comply with the discovery orders, specifically
so they can repeate that claim as 'fact' in their periodic filings for the Red
Hat case, and possibly to drag it into the AutoZone case as well.

-Rusty

[ Reply to This | # ]

Sco's stock calculator broken
Authored by: Anonymous on Thursday, April 14 2005 @ 09:44 PM EDT
Um, try to run a check on how much money I would have if I invested 10K in sco 3
years ago.......

ERROR 4 : Sorry, either this company did not trade before 13-April-2005 or data
for this time period is currently unavailable.

Gotta love investor relations.
http://ir.sco.com/calculator.cfm

[ Reply to This | # ]

Correction
Authored by: Anonymous on Thursday, April 14 2005 @ 10:44 PM EDT
"I've read every word that isn't unsealed."

..that isn't sealed.

[ Reply to This | # ]

About the "we know who PJ really is" comments from Darl
Authored by: Anonymous on Thursday, April 14 2005 @ 11:08 PM EDT
Whoever Pamela Jones is, she writes clearly, does good research, and
differentiates between her opinions and the facts. She provides sources when
she quotes something, and to back up her research (so we can read the original
material and make up our own minds).

She has also shown herself to be a person of integrity and strong character.
She has never given us reason to mistrust her motives, and when her opponents
mount troll campaigns or slander her on other boards, she doesn't stoop to their
level or respond in kind.

So tell us her "big secret" Darl, it won't make a damn bit of
difference. If PJ turned out to be Bruce Perens wearing a wig, we wouldn't
care! PJ brings us timely reports of all your shady dealings and worthless
court filings, plus she spends huge amounts of her own time digging into the
details so she can explain them to us.

I have a high opinion of PJ, whoever she is. She's earned it. On the other
hand, my opinion of SCO and its henchmen is unprintable.

[ Reply to This | # ]

SCO's Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's M
Authored by: Anonymous on Friday, April 15 2005 @ 01:49 AM EDT
if you can't dazzle them with brillance baffle them with bs

[ Reply to This | # ]

Remember, it's a press war
Authored by: Anonymous on Friday, April 15 2005 @ 03:36 PM EDT
This looks to me like more fodder for our favorite analysts to write about. You
know the ones who regurgitate SCO’s court filings without even a cursory check
of the facts. It will be more of the same, IBM is the big bad guy misusing the
lawsuit and abusing discovery and poor little SCO doesn’t stand a chance if the
court allows this “abuse” to continue.

I think SCO knows that as things stand now they may not even get to a trial on
most of their complaints against IBM. Kimball seems to be alluding to as much by
saying in rulings that SCO has presented no evidence of misdeeds so far, after
more than a year of fact discovery. So here is SCO saying this is all IBM’s
fault, not theirs. Guess from the order that came down Kimball didn’t believe
them.

[ Reply to This | # ]

SCO's Reply in Support of its Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's M
Authored by: theMutant on Friday, April 15 2005 @ 05:41 PM EDT
Well, it seems to me that SCO is really complaining about the fact that the
judge seems to be tying the adjournment request together with the proposed
schedules. SCO's argument seems to be that the schedule has no impact on its
adjournment request. Maybe SCO is assuming that the denial of the adjournment
request was based on IBM's statements when it replied to SCO's proposed
schedule.

Maybe?

---
David W. Cooney, CNB (Certified Novell Bigot)
IANAL

[ Reply to This | # ]

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