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Friday's Interim Deadline - What Not to Expect
Monday, October 24 2005 @ 11:46 PM EDT

As you know, Friday is an interim deadline for the parties in SCO v. IBM to lay their cards on the table in discovery regarding allegedly infringed code. Or more specifically, as you can see on the IBM Timeline page, it's listed as the "Interim Deadline for Parties to Disclose with Specificity All Allegedly Misused Material Identified to Date and to Update Interrogatory Responses Accordingly." The very thought of SCO having to disclose anything with specificity at last has us all drooling, I know, and I've seen some high hopes that finally SCO will have to present its evidence and reveal to the world what code is allegedly infringed by IBM.

Wait a second, guys. This is The SCO Group we are talking about here. SCO's middle name is delay.

If you are a long-time reader of Groklaw, you've got to know by now that the way it is in the books isn't the way it really is in real life. That is why lawyers have to be trained even after they graduate from law school, to actually find out how to be lawyers. There's book knowledge, and then there is practical experience. They overlap, of course, but here, we need to focus not on what the scheduling order proclaims will happen, but instead let's consider what is likely to happen in real life.

So what can we realistically expect to happen on Friday? I asked Marbux, and the short answer is probably not much as far as seeing any evidence is concerned. Whatever the court sees won't be for our eyes, for starters. Then there is litigation strategy. As you know, this is an *interim* deadline, not the final deadline, which doesn't roll around until December 22, and knowing SCO as well as we do, do you think they will wait for the final deadline, perchance, to reveal any really good stuff? Marbux says this as far as the interrogatories:

I'm expecting answers to interrogatories would for the most part be a few tidbits, accompanied with essays about reserving the right to supplement and amend responses later, etc. And I'd expect a lot of SCO wastebaskets being emptied for a big document dump, so the SCO lawyers can talk about what a tremendous amount of information they have already produced, that they spent billions of manhours working on it, etc. I expect the Swiss cheese strategy for discovery, i.e., IBM asked for Swiss cheese, and SCO will produce the holes on Friday, with promises to deliver the rest of the cheese later.

So that is what he thinks is likely, but keep in mind SCO has other options, if they yearn for more delay. For one annoying possibility, they could ignore the deadline and wait for IBM to file a motion to rectify the situation. That isn't likely because we wouldn't be the only ones annoyed. Judges aren't so keen on parties disobeying court orders.

But they could maybe file a last-minute motion to modify the scheduling order, I suppose, despite Judge Wells' firm words on the subject at the hearing October 7. SCO doesn't always pay close attention, I've noticed, to what Judge Wells tells them. The way they garbled her previous discovery orders was a sketch, although Judge Wells didn't seem to find it so funny.

A last-minute motion. That's the ticket. SCO could once again suddenly "discover" new evidence that IBM really, really, this time we really mean it, stole SCO's sneakers. Then they could ask for time to do discovery on this new "outrageous IBM misconduct" that SCO just found out about by reading graffiti on a bathroom wall someplace. Eureka! Evidence at long last! Email Forbes right away! I can see their headline now in my mind's eye: Maybe, Just Maybe, SCO Can Pin IBM To the Wall, they can trumpet. Ah, the excitement! Ah, the FUD! Ah, the good olde days. Ah, the stock price.

Maybe then SCO could get some delay, while the motion gets run through the legal pasta maker, and when it's spaghetti, *then* SCO coughs up the evidence, or at least a bit of same.

Normally, I'd venture to say such a strategy would be unlikely, because it would also make a judge mad, but with those wild and crazy SCO guys, so creative and bold, who knows? They don't seem to care.

You are supposed to comply with a judge's order. If you don't like the order and can't comply, you are supposed to file a motion far enough in advance that the motion can be heard and ruled on in time for you to comply with the deadline if your motion fails. With the deadline being Friday, that's not possible at this late hour. Hmm. Maybe an emergency ex parte motion? Wake the Judge up. Who cares if it's 3 AM? SCO needs a hearing right away on this emergency graffiti evidence.

All right. I'm getting silly. Judges in Utah are more laid back than in, say, New York City, I've noticed, so SCO could almost pull something like this off, I'm thinking, with no sanctions, too. But if they were to take such risks, it'd be about the December 22nd deadline, not this one on Friday, I believe.

Anyway, the point is, I don't want you to expect much of anything to happen on Friday. This isn't the big moment we've been waiting for, I don't think, knowing SCO as I do. It *is* coming, though... and they are certainly free to surprise me.


  


Friday's Interim Deadline - What Not to Expect | 116 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Friday's Interim Deadline - What Not to Expect
Authored by: Anonymous on Monday, October 24 2005 @ 11:57 PM EDT
Yeah... I'm not expecting an Emily Latella "never mind" moment
either...

...D

[ Reply to This | # ]

SCO: where's the beef?
Authored by: Anonymous on Tuesday, October 25 2005 @ 12:01 AM EDT
It would be nice for SCO to show the evidence they had BEFORE they filed the
lawsuit against IBM.

It would be nice for SCO to show the millions of lines of code that it's MIT
mathematicians showed that were copied line for line from Unix to Linux.
Who are these MIT guys anyway?

It would be nice for SCO to prove it has the copyright transfer documents for
Unix from Novell to The Santa Cruz Operation, and the copyright transfer
documents from The Santa Cruz Operation to Caldera/SCO.

So far we have no shred of evidence.

Please, oh please, SCO. Give us one shred of evidence so you can avoid
Partial Summary Judgment when discovery ends.

[ Reply to This | # ]

Off-topic here
Authored by: Ted Powell on Tuesday, October 25 2005 @ 12:07 AM EDT
Please use a meaningful subject line, and make links clickable.

---
GPL code ... It's the difference between owning your own home and just renting.
--PJ

[ Reply to This | # ]

Friday's Interim Deadline - I Agree
Authored by: rsteinmetz70112 on Tuesday, October 25 2005 @ 12:29 AM EDT
I think you're right.

On The Other Hand I don't think it really matters.

I believe IBM by now has the complete providence of every bit of code in AIX and
probably Linux and Sys V as well. Any assertion by SCOG will be met with the
complete refutation of the assertion that it was improperly contributed.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

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

[ Reply to This | # ]

Friday's Interim Deadline - What Not to Expect
Authored by: Anonymous on Tuesday, October 25 2005 @ 12:31 AM EDT
SCO

Slow
Continuous and
Ongoing

[ Reply to This | # ]

  • Excellent! (n/t) - Authored by: Anonymous on Tuesday, October 25 2005 @ 05:20 AM EDT
Friday's Interim Deadline - What Not to Expect
Authored by: XORisOK on Tuesday, October 25 2005 @ 12:37 AM EDT
A sad statement - But dead-on, PJ!

---
Cogito Ergo ZOOM - "I think, Therefore I drive fast!"

[ Reply to This | # ]

If SCO produces nothing...
Authored by: Anonymous on Tuesday, October 25 2005 @ 12:53 AM EDT
...is it then IBM's turn to spin?

Could they then say "Caldera claimed millions of lines of code copied into
Linux over two years ago. Here we are at the interim deadline and they have
produced 'holes' -- NOTHING! Therefore, they must not have ANY evidence."

I know IBM has never been in the spin game, but might it not be time to
entertain the idea?

[ Reply to This | # ]

Are SCO Guys Related to Tom DELAY by any chance ?
Authored by: Anonymous on Tuesday, October 25 2005 @ 12:54 AM EDT
With so much depending on DELAY, I suspect its more than their middle name. May
be it is their name.

[ Reply to This | # ]

Halloween
Authored by: IMANAL on Tuesday, October 25 2005 @ 01:20 AM EDT
IIRC, the first serious delay was the Yule in 2003 when they said they could not
get hold of all relevant staff in order to get the material needed to court.
That was despite months of available time for preparation.

Are there any upcoming events of that magnitude they can relate to? I think
Halloween will be too late even for SCO. But perhaps Superbowl?! (What do I know
about sports)

---
--------------------------
IM Absolutely Not A Lawyer

[ Reply to This | # ]

Hey Judge......
Authored by: NemesisNL on Tuesday, October 25 2005 @ 01:26 AM EDT
Edmund Burke had it right when he said:

"the only thing necessary for the triumph of evil is for good men to do
nothing"

So if SCO comes up with nothing this friday.....You think it might be time to
actually do something about it?

[ Reply to This | # ]

Hmm, what to show ... what to show ...
Authored by: elronxenu on Tuesday, October 25 2005 @ 01:26 AM EDT
I could imagine they will trot out that old BSD code again, or errno.h, or ELF ... or maybe not.

They might try to continue their "concepts and methods" strategy by claiming they own all the AIX and linux code. They will therefore not need to be specific about any particular code.

Upon reflection, I think they will forget what "with specificity" means, and go for the vaguest possible response, and pray that they do not end up "in contempt".

It's perfect! They can simply mix together a few of their previous motions and present that to the court as their response. This work doesn't even need any of the major names - Boies need not trouble himself - it can be done by any assistant, and so it will be cheap. Of course it will be overlength - so you can expect Friday's hearing to consist of no actual disclosure by tSCOg, rather they will file a motion for leave to file an overlength memo, which will reveal all.

[ Reply to This | # ]

because it would also make a judge mad
Authored by: Anonymous on Tuesday, October 25 2005 @ 01:50 AM EDT
Color me stupid, but ....so what?
If the judge gets mad enough, they (try to?) move her off the case in a manner
similar to the way Microsoft did in their anti-trust case.
Does she make SCO pay a couple of grand in sanctions? Sounds like a simple, and
good from SCOs perspective, business decision.
Does she put a junior SCO lawyer in jail for a couple days?
Good deal for SCO again.
Maybe even Bois? For $22M he is probably quite willing for a week or two.
Suppose the judge hits SCO with a $1M fine. So what? They are spending in
excess of $50M to throw FUD at FOSS. Why would another $1M be a concern to
them?
Moreover, any money they have left after their four law suits fail will be paid
out to their defendents in damages (I think. Anyone have a good feel for
this?)
So, if they are going to end up bankrupt in the end,
why would they care if they pay it in sanctions to the court or compensatory
damages to their defendents?

I guess, at this point with SCO's demise a virtual certainty, why would they not
be willing to anger a judge,
especially if it might add delay while they seek her removal?

Just asking ....

[ Reply to This | # ]

My Guess - Smoke and Mirrors
Authored by: soronlin on Tuesday, October 25 2005 @ 05:28 AM EDT
If they produce nothing then they play into a PSJ.

If they produce vague ramblings then they can be sanctioned for not being specific.

If they produce vague ramblings about a lot of specific code, then they fulfil their obligations while making IBM's job hardest and leaving themselves the most wriggle room. They will highlight every line that shows the smallest similarity.

I also expect them to wedge in the "we're still working on it" excuse if the judge will wear it.

[ Reply to This | # ]

My wild guess
Authored by: Anonymous on Tuesday, October 25 2005 @ 06:52 AM EDT
SCO's new renewed motion to compel - seeks 30(b)(6) depositions from IBM about
all IBM's Linux activities and contributions.

My wild guess is that this will form an important part of the picture in their
response to the interim deadline.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Time for sanctions
Authored by: gvc on Tuesday, October 25 2005 @ 09:02 AM EDT
When they fail to produce any concrete allegations, the sanction is obvious -
disallow any evidence or theory not advanced *with specificity* by the deadline.
Period.

[ Reply to This | # ]

SCO has a real challenge
Authored by: Prototrm on Tuesday, October 25 2005 @ 09:06 AM EDT
The problem SCO is facing is that they don't know what's been "stolen"
from them, and won't until they get a chance to look through every document IBM
has so it can find something. So, if they have to tell the judge with
specificity what it is that IBM has done to them before they're allowed to do
their code spelunking, then they're facing a nasty catch-22. They'll have no
choice but to find ways to create additional delay.

Since the legal system was never intended to be used in this "Sue first,
and we'll figure out what you did in discovery" manner, I can't help but
wonder if there could be legal and/or civil penalties for following a course of
action that seems little removed from fraud.

Of course I,ANAL.

[ Reply to This | # ]

Intended Audience?
Authored by: MplsBrian on Tuesday, October 25 2005 @ 10:34 AM EDT
Sometimes I get the impression that PJ is no longer writing just for the
technologists that started following this blog way back when. This piece almost
reads as a taunt - something along the lines of "You guys don't really have
the moxie to try these shenanigans, do you?"

[ Reply to This | # ]

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