decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Did Judge Wells Fail to Rule on SCO's Motion? - I Don't Think So
Wednesday, December 14 2005 @ 01:54 AM EST

I took the time to review the transcript of the October 7th hearing, in SCO v. IBM to see who was correct in the current dispute between the parties over SCO's objections to Judge Wells' Order of October 12th, 2005, argued in Tuesday's court hearing. I was naturally curious to see if I could figure out what will happen, which way Judge Kimball might rule.

SCO alleges that they brought a motion with an alternative request that all nonpublic Linux materials be turned over. According to them, Judge Brooke Wells never ruled on that alternative request:

In its Renewed Motion to Compel dated September 6, 2005 (the "Renewed Motion"), and during oral argument on the Renewed Motion on October 7, 2005, SCO argued that the Magistrate Court should order IBM to produce Linux development materials that SCO has sought since June 2003, because (1) in SCO's view, the Magistrate Court had previously ordered IBM to produce them, and (2) if the Magistrate Court had not so ordered, it should do so now, as the requested materials were plainly relevant and not unduly burdensome for IBM to produce. In denying the Renewed Motion, the Court concluded that it had not previously ordered IBM to produce the requested materials, but did not address SCO's argument that the Court should now order IBM to produce them. SCO asks this Court to issue such an order.

IBM, according to our eyewitnesses at yesterday's hearing, told the judge that Wells did rule on all parts of SCO's motion, and that she denied the SCO motion. Certainly they made that argument in their opposition memo.

I have to tell you, though, that I started out thinking SCO might be right, because on a surface reading of the written Order, I saw no specific sentence addressing their alternative relief. However, on closer inspection, I see SCO did indeed bring up the request in the hearing, multiple times, so when the judge ruled and said she denied the motion, clearly it meant all their requests. What clinches it, for me, is that SCO got some additional materials ordered, as part of the order they are objecting to. Judge Wells ordered some additional limited production of materials IBM offered to produce at the hearing. If that isn't responsive to SCO's alternative request for more nonpublic Linux materials, what is it? It certainly doesn't relate to anything else in SCO's motion. Nothing else explains that aspect of the ruling.

So, on that basis, I concluded that IBM is correct in its interpretation of what happened and that SCO just isn't happy with the order. Once again, SCO seems to be either misunderstanding what Judge Wells writes and says, or they are playing the delay game, covered over by word games. I collected snips of the transcript to show you what convinced me that IBM ought to prevail.

First, though, let me remind you of what Judge Wells said in her Order, the written one SCO is objecting to:

1. IBM did not agree to produce all documents relating to the development of Linux, as SCO contends;

2. The issue of the discovery from IBM of all documents relating to the development of Linux was not raised before the Court, was not understood by the Court to be a part of SCO's prior motions, and was not contemplated in the Court's March 3, 2004, January 18, 2005, and April 19, 2005 Orders (the "Orders");

3. IBM appropriately interpreted the Orders, and SCO's interpretation of the Orders takes out of context what the Court believes to be the clear meaning of the Orders;

4. The declarations of Todd M. Shaughnessy regarding discovery are sufficiently in compliance with the requirements of the Court to explain those efforts made and those documents not produced; and

5. At the hearing, IBM nevertheless offered to undertake a reasonable search for and produce non-privileged and non-public Linux programmer's notes, design documents, white papers, and interim or draft versions of Linux contributions from the files of 20 of the IBM Linux developers whom SCO identifies as potential deponents and whose files it would like IBM to search.

Accordingly, IT IS HEREBY ORDERED that IBM has complied with the Orders of the Court, and that SCO's Motion to Compel Discovery and request for sanctions therein is denied. In accord with IBM's offer, SCO is ordered to provide IBM, on or before October 12, 2005, with a list of the 20 Linux developers. IBM will endeavor to make its production on a rolling basis, but in any case shall complete the production by December 7, 2005. SCO must complete the deposition of these developers before January 27, 2006.

Stuart Singer spoke for SCO at the hearing, and the indefatigable David Marriott for IBM. Judge Wells is represented in the transcript as "The Court". Here are the snips I found that I think are relevant, with comments by me in blue text:

Judge Wells, p. 6 of transcript:
19 THE COURT: Mr. Singer, let me stop you real
20 quickly and supplement the record by indicating this so that
21 you know. I have read the submissions of both SCO and IBM.
22 have read the affidavit of Mr. Shaughnessy. I have read the
23 transcript of the original of the orders -- or the hearing
24 that resulted in the orders, and I have read each of the
25 orders themselves.

This shows that Judge Wells had read SCO's motion documents and that would include their request that IBM be ordered to turn over all nonpublic Linux materials. So even if not one word was ever said at the hearing on the matter, it was already before her.

Singer, p. 18:
4 And it's indicated that in many instances, there's
5 been a development process which runs from IBM or Sequent
6 programmers immersed in SCO's proprietary UNIX code between
7 the selection of AIX and Dynix material for Linux and the
8 actual contributions to Linux. SCO requires access to that
9 development history including both code and related
10 documentation for exactly the same reason this Court has held
11 that:
12 SCO needed access to the material evidencing the
13 developers and development process of Dynix and AIX
14 themselves.

Here's Singer's first request for the materials related to their alternative relief. "SCO requires access," as he puts it.

Singer, p. 24:
12 appropriate steps to preserve that information upon the
13 commencement of this suit. We submit that that information
14 should be produced in a manner they should work with us that
15 requires the least adjustment, if any, to the discovery
16 schedule in place. For example, we have a number of
17 depositions of programmers coming up, and they should give us
18 an advance of those programmers' depositions the files
19 indicating what it is those programmers were working on.
20 Instead, we have a situation where they're saying,
21 you take blindly these depositions of the programmers. You
22 can ask them what work they did in a deposition, but you
23 shouldn't get the benefit of the files of their desk top or
24 their server which would indicate what work they did in
25 preparing the contribution.

Here's Singer's second demand. The materials "should be produced", he says, meaning now. "They should give us" prior to depositions of IBM programmers the materials SCO is asking for.

Singer, p. 25, 26:
1 Clearly that material is very relevant and is at
2 the heart of this case. And even if it were not the subject
3 of these earlier orders and the earlier agreement by IBM, it
4 should be produced.

Here's Singer's third request. Even if SCO was wrong about the earlier orders and what they ordered, "it should be produced." That in a nutshell is the alternative relief that SCO was asking for in the motion.

Singer, p. 26:
19 Your Honor. We submit that they have an order to produce it
20 forthwith. And we submit further if the Court agrees with us
21 respectfully that their action has not been appropriate in
22 this regard, and the Court should consider sanctions, as well.
23 THE COURT: Thank you, Mr. Singer.

Here's the fourth request, and they not only ask for an order telling IBM to produce the materials, they ask for sanctions. She didn't specifically state that she denied that request either.

Uh oh. Me and my big mouth. I hope SCO doesn't file a motion about that. Joke. Joke. The judge did specifically deny the sanctions request.

Marriott, p. 32:
5 documents. Your Honor will remember that at the beginning of
6 the case the allegations of the complaint left, we thought us
7 unsure as to what this case was about. And that's what
8 precipitated the set of motion practice about figuring out how
9 we would receive the discovery. And Your Honor set up
10 protocol, as I think of it, by which SCO would identify the
11 code at issue in the case. Once identified, IBM would then
12 provide discovery with respect to that. That is as we
13 understand it has been the protocol in the case.

This is a point that makes it hard for Kimball, in my view, to order anything further turned over, until SCO fulfills its obligation to tell IBM what code is at the "heart" of the case, as SCO would say. That's the protocol, and if that is the protocol, you can't say, "Well, just give them everything," particularly if they haven't filed what they are supposed to to give IBM a clue about what this discovery is about. What I don't know is what SCO filed that is under seal. If Judge Kimball waits to rule until December 22, the final deadline for SCO to file all allegedly infringing code, he'll be in a position to know if any further discovery would be appropriate, based on what SCO files. Unless he orders a different protocol, he can hardly order that every paper at IBM that mentions Linux has to be turned over, no matter what code it is related to, and whether or not SCO has an allegation about the code on the table.

Marriott, p. 48, 49:
23 Your Honor, in addition, we do believe -- and I
24 won't burden the Court with this point, these arguments have
25 been made before, and I think they stand true today
[p. 49]
1 no reason for the production now given the protocol Your Honor
2 has set out for this information. We have produced the
3 contributions that are available. To the extent there were
4 nonpublic things that really didn't qualify as contributions
5 but were failed effort, they have been made available. We
6 have produced, you know, the equivalent of billions of lines
7 and literally hundreds of millions of lines of AIX and Dynix
8 code, all of the development information from that
9 information.

Here Marriott argues against their motion's alternative relief. He said there's no reason for it to be ordered, given the protocol.

p. 50, Singer:
10 MR. SINGER: Thank you.
11 First, Your Honor, these requests are not directed
12 to everything in the company. The particular focus of this
13 that we are asking the Court to rule either has already been
14 required or should be required forthwith are the documents
15 created by the Linus Technology Center that have not been
16 produced to date, that are nonpublic and they relate to IBM
17 contributions that have actually been made to the outside
18 world.
19 Now, to the extent there are documents that are in
20 the public domain, that's not included. To the extent there
21 was work on dead ends that didn't actually result in
22 contributions, that's not included.

Here Singer again asks for a ruling on their request, saying it either has been required earlier or if not, it should be. Again, that is precisely their alternative relief.

p. 55, Singer:
21 With respect to the burden, we do not believe that
22 300 people at the core of the project, 50 of whom apparently
23 have already gathered some undefined set of material from
24 Linux is unreasonable for IBM to be ordered to provide. That
25 is at the very core of this case.

Once more, Singer says it should be ordered now, and that it wouldn't be a burden.

p. 56, 57, Marriott:
22 distributors. What I heard Mr. Singer saying is what he
23 really wants is to have the documents for the developers he's
24 going to depose.
25 We are agreeable, Your Honor, if SCO wants to give
[p. 57]
1 us a list of the 20 developers that they think they've got to
2 depose and they want to give us a fair opportunity to meet
3 with these people and to collect the documents and if we could
4 put this to rest, we will go to -- they choose the people,
5 because I don't want them to complain that we chose the wrong
6 people later on, they know who the people are. They know who
7 they want to depose. They told the Court recently in an order
8 they had a pretty good sense of what they were going to do by
9 way of deposition. We will go to the files of those 20
10 people, and to the extent documents are there that haven't
11 been produced from whomever they select, we will provide them.
12 Thank you, Your Honor.

Here's Marriott making the offer to provide materials in a limited fashion.

Judge Wells, p. 58:
8 So I find that IBM has, in fact, complied with the
9 orders of the Court, and I would deny except as has been now
10 acknowledged will be provided SCO's motion to compel.

So, as you can see, the matter was raised repeatedly by SCO at the hearing, opposed by IBM, and at the end, IBM offered a suggested solution, to move the case forward, and the judge agreed and ordered that IBM's suggestion be followed. That was her ruling on their request that IBM turn over all nonpublic Linux materials, SCO's alternative relief. She decided to limit the Linux discovery they get to do to the 20 developers IBM volunteered to provide.

So, the bottom line is that Judge Wells did not make a mistake and forget to rule on SCO's alternative relief request, according to my reading of the transcript. After hearing SCO ask for more materials, she said that their motion was denied except as to what IBM said they'd provide. As it happens, when you bring a motion asking for X, Y and Z, the judge can simply say, motion denied. That means X, Y, and Z are all denied. She doesn't have to say, motion is denied as to X. It is denied as to Y. It is also explicitly denied as to Z, although she can. The thing about SCO's lawyers is, they sound so plausible, it pulls you in, unless you look very closely, which is what I've just done, and what I hope the Judge will do as well.

I hope Judge Kimball doesn't grant SCO's motion, because it would teach SCO a lesson that I think they need to learn. Instead of being forthright with the court and simply asking for what they wanted like men, they instead did this elaborate song and dance, claiming that Judge Wells had already ordered these materials turned over and accusing IBM unjustly of violating her orders. They even asked for sanctions. Wells told them they were misinterpreting her orders, and she said IBM had never been ordered to turn over what SCO was asking for. She denied their motion, but would she have done so, I wonder, if they hadn't played the games they did? We'll never know. Now they're claiming that something Wells wrote in an order means one thing, while a more reasonable interpretation is that she said exactly what she meant. She meant to deny their motion, and she did deny it. That's my conclusion anyway. Feel free to form your own impression. That's why I provide all the links.

I can't believe they almost had me convinced.


  


Did Judge Wells Fail to Rule on SCO's Motion? - I Don't Think So | 141 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here (n/t)
Authored by: micheal on Wednesday, December 14 2005 @ 02:31 AM EST
No Text

---
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 | # ]

Off Topic Here
Authored by: pajamian on Wednesday, December 14 2005 @ 02:33 AM EST
Please make links clickable as per the instructions in red at the bottom of the
post a comment form and please don't forget to post in HTML mode and preview if
you have links to make sure that they work properly. A little bit of text
explaining what the link is for is also helpful and appreciated.


---
Windows is a bonfire, Linux is the sun. Linux only looks smaller if you lack
perspective.

[ Reply to This | # ]

Decisions by numbers
Authored by: IMANAL on Wednesday, December 14 2005 @ 02:35 AM EST
One thing that struck me is how the early documents of SCO and IBM from two years ago were much better structured with arguments and requests numbered. That way it was easier to follow what was wanted. And, I suspect, it would have been easier here too. Any order may perhaps have been better linked to a particular, and numbered, paragraph. Is this common practice in the courts to have broad statements covering a whole suite of requests?

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

[ Reply to This | # ]

One of PJ's better, no best, efforts
Authored by: jdg on Wednesday, December 14 2005 @ 03:07 AM EST
I think that PJ has done a good job here of assessing the real issues at play in
this set of motions, an din doing so has illuminated what has been happening and
how the lawyers have tried their best to work things for the benefit of their
clients.

One thing that I take from this is that the attorneys for tSCOg did a pretty
good job of setting the apparent context so that their request looks reasonable
on its face. This is important for two reasons. Obviously, the first is for
the purpose of winning something with the motion. Also, for giving credibility
to tSCOg in its pursuit of this whole ... (I do not want to use the words that
first come to mind).

The exposition also places tSCOg's effort in the "appropriate"
context, not the context that the attorneys try to create. In doing so, you can
see how Kimball might wipe away any hopes of tSCOg, including appeal prospects.
In particular, one issue that has bothered "the faithful" has been
brought to the fore. Well's initial ruling that tSCOg had to bring forth what
the problem was before IBM was required to address tSCOg's discovery.

Now, that initial requirement could be an adequate basis for telling tSCOg NO.
As in, no, you do not get that production from IBM until you specify things with
particularity. Since you have not done so, you are not allowed further
discovery license.

We will have to see how this does indeed play out. However, it seems to me that
we might really see the nails being set out to be driven into the coffin. I
know that Walter would be extremely skeptical of this assessment, but I think
that he would be grateful to be shown wrong. I hope that he is and that we see
two very negative responses to tSCOg's "new renewed" motions.

(I apologize for not being very lucid at this late hour; I also hope that I am
not overly optimistic. I do not expect much to happen until after the nest
hearing with M. Judge Wells (no bench ruling, although that would REALLY
emphasize the Court's true opinion of tSCOg and its contentions. In particular,
I am hoping that the speculation about waiting to see if there is still an
"astonishing lack" of evidence.


---
SCO is trying to appropriate the "commons"; don't let them [IANAL]

[ Reply to This | # ]

You're tired PJ
Authored by: rsi on Wednesday, December 14 2005 @ 03:11 AM EST

"I can't believe they almost had me convinced."

You have been looking at all of this far too long, in much finer detail than most of us. That's what they are counting on. They expect IBM to grow tired also, and settle out of court. They don't count on how tenacious both you and IBM are! ;^)

You need to take a day off and enjoy the Holiday Season! Cheers!

[ Reply to This | # ]

Did Judge Wells Fail to Rule on SCO's Motion? - I Don't Think So
Authored by: micheal on Wednesday, December 14 2005 @ 03:34 AM EST
tSCOg and IBM seem to have (or have had) two different definitions of the word
contributions. IBM, at one time, seemed to define it as code only. I think that
tSCOg also defined it as code only, but, later changed it to include paperwork.

IBM seems to say that since tSCOg asked only for code then that is all the early
orders referred to.

tSCOg seems to say that the early requests included paperwork, too.


---
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 | # ]

It's called selective hearing and SCo is very prone to it
Authored by: RPN on Wednesday, December 14 2005 @ 04:06 AM EST
Some people get so convinced by themselves they develop selective hearing. They
hear what they want to hear not what was actually said. I'm sure we all know
examples from our own lives. Microsoft 'fans' are to some extent doing it too
:)

SCO has been doing this a long time but especially the last year plus. It could
also be gamesmanship to a point but then that would imply a subtleness of
approach we don't see otherwise.

Richard

[ Reply to This | # ]

SCO seem to be demanding the right to fish.
Authored by: Anonymous on Wednesday, December 14 2005 @ 04:13 AM EST

As I understand it in plain English:

1.The protocol agreed between SCOG and IBM states that SCOG should tell IBM which area of suspected code violation they are interested in. eg.JFS

2.In the example given IBM should put forward the names of any developers involved in Linux JFS for SCOG to take their choice from.

3.SCOG then names those developers it wishes to depose.

4.IBM then produces those people complete with their notes and paperwork for SCOG's lawyers to investigate and interview.



SCOG are now appealing that they don't know which developers to choose from the names which IBM has put forward and so they will have to see the notes and paperwork of every developer before choosing.

Isn't that plain and straight forward fishing?

Brian S.

[ Reply to This | # ]

seems easy enough to prove...
Authored by: Anonymous on Wednesday, December 14 2005 @ 05:06 AM EST
...presuming that each claim has to be disposed of separately on paper. It
doesn't seem likely that they would be 'all denied' in a single blanket
reference, it creates uncertainty.

[ Reply to This | # ]

What I don't understand...
Authored by: Jude on Wednesday, December 14 2005 @ 06:18 AM EST
... is why the judges are putting up with this nonsense.

tSCOg sued IBM. I would think that tSCOg had some specific wrongdoing(s) in
mind when they filed suit, but here we are nearly two years later and they still
can't figure out who to depose, despite have already gotten an amazing amount of
discovery. I'm sure tSCOg could have framed discovery requests that were more
specific if they had any idea what they were suing IBM for in the first place.

When are the judges going to realize that tSCOg is on a fishing expedition?

[ Reply to This | # ]

Did Judge Wells Fail to Rule on SCO's Motion? - I Don't Think So
Authored by: Anonymous on Wednesday, December 14 2005 @ 08:20 AM EST
PJ said:
"Here's the fourth request, and they not only ask for an order telling IBM to produce the materials, they ask for sanctions. She didn't specifically state that she denied that request either.

"Uh oh. Me and my big mouth. I hope SCO doesn't file a motion about that."

I hope they do. It would make them look like unbelievably perfect idiots. Because the order says,
"Accordingly, IT IS HEREBY ORDERED that IBM has complied with the Orders of the Court, and that SCO's Motion to Compel Discovery and request for sanctions therein is denied."
It's pretty clear to me from the transcript that SCO's motion was denied in its entirety, including what they characterize as their alternative request.

RBH

[ Reply to This | # ]

SCO must complete the deposition of these developers before January 27, 2006.
Authored by: pogson on Wednesday, December 14 2005 @ 08:41 AM EST
Is SCO complying with the order? IBM says they have only deposed a few so far. I
think this is a millstone hanging around SCO's neck. They have no ground to
stand on if they are not making any use of what they have already been given.
This is negative weight to SCO's argument that they will find something if IBM
turns over more. This is positive weight to IBM's argument that the requested
material is irrelevant.


---
http://www.skyweb.ca/~alicia/ , my homepage, an eclectic survey of topics:
berries, mushrooms, teaching in N. Canada, Linux, firearms and hunting...

[ Reply to This | # ]

Did Judge Wells Fail to Rule on SCO's Motion? - I Don't Think So
Authored by: Stumbles on Wednesday, December 14 2005 @ 09:08 AM EST
IMNHO, this notion SCO is trying to float is ludicrous and they
know that. Even though I don't like it. Both Wells and Kimbell
have gone well beyond what I concider normal allowances and
given SCO unprecedented leeway. Especially since SCO is still
violating two court orders to produce their initial evidence.

Which still astounds me that SCO has not been taking to task by
the judge for still violating court orders. All I can say is, if it were
anyone else they'd a been slapped hard a long time ago.

The only reason SCO is on this track now is as what they have
done all along..... stall the inevitable.

---
You can tune a piano but you can't tune a fish.

[ Reply to This | # ]

How did we get to this point?
Authored by: ExcludedMiddle on Wednesday, December 14 2005 @ 10:40 AM EST
After reading some of this again, I just don't understand how we got to this
point in discovery without TSG identifying anything, even still. They are
clearly STILL fishing. And I've been reading this case, every filing, since the
beginning.

I'm sorry but the idea, paraphrased, that "They show us the code, and we'll
give them discovery" in a hearing is just ludicrous at this late date. I
just don't see how we can have a reasonable discovery without TSG specifying
what this is about.

I suppose that IBM is just going to bide their time, give them what they ask
for, and wait for the end of discovery so that they can reinstate their PSJs. It
just strikes me, AGAIN, of being just strange to be so late in this discovery
process without any real substantive claims being made by the plaintiff.

[ Reply to This | # ]

Can't they ask Wells?
Authored by: Jaywalk on Wednesday, December 14 2005 @ 11:10 AM EST
This reminds me of the original hearing they're arguing about. SCO is telling the judge what she ordered instead of asking for clarification. It also reminds me of my four-year-old: When Daddy says "no", ask Mommy. If Wells says "no", ask Kimball.

So can't SCO ask for clarification now? Couldn't they just ask Wells if she intended to deny that motion as well? And if SCO doesn't want to do that, can Kimball? It just seems weird to me that they'd be arguing about what Wells ordered rather than asking Wells.

---
===== Murphy's Law is recursive. =====

[ Reply to This | # ]

Discovery protocol
Authored by: jbb on Wednesday, December 14 2005 @ 11:39 AM EST
I vaguely remember that early in this case Judge Wells ordered the discovery protocol that Marriott is referring to. I also remember that many of us referred to it when the massive AIX/Dynix discovery was ordered.

A quick search for "Wells protocol" did not turn up the original order regarding discovery by Judge Wells. I don't think she actually used the word "protocol" in the order. Here are some early links from a search for "Wells discovery ordered":

I think there may have been an even earlier order from Judge Wells saying that SCO has to first point to what parts of Linux may contain infringing code. Does anybody know where that order is?

---
Anyone who has the power to make you believe absurdities has the power to make you commit injustices.

[ Reply to This | # ]

  • Discovery protocol - Authored by: Anonymous on Wednesday, December 14 2005 @ 05:29 PM EST
Did Judge Wells Fail to Rule on SCO's Motion? - I Don't Think So
Authored by: tknarr on Wednesday, December 14 2005 @ 12:52 PM EST

SCO was just pulling a semantics game. This whole thing is them saying essentially "The judge didn't say she was denying our request, so that means she granted it.". The courts don't work that way, though, they work the opposite: if the judge doesn't say you're granted your request, you don't get it. In technical terms, the courts operate in default-deny and SCO would really prefer default-allow.

[ Reply to This | # ]

Sorry to say, this doesn't matter
Authored by: webster on Wednesday, December 14 2005 @ 03:39 PM EST

It doesn't matter whether SCO twisted Wells words at the prior hearing, or
whether they did it again at the last hearing before Kimball. They are
advocates obliged to represent their clients interest. They have a bias which
makes them overly eager to put their spin on any statements. The Courts know
this. They mnay have vexed Wells why waste time.

But the question is should SCO get the discovery. It is easiest and safest for
the court to simply order everything so no one has a beef. You can get reversed
for denying relevant discovery. You'll never get reversed for ordering complete
discovery.

IBM's big mistake was proceeding like a good Boy Scout with their discovery when
SCO did not comply with the protocol. IBM would have been fully justified in
producing nothing because nothing is relevant until SCO produces 1) offending
linux code; 2) offended unix code; 3) SCO's exclusive right to the Unix code.
Without this stuff they were justified in saying they were flying blind. They
have all but said, "SCO come fish in our pond." SCO will poke and
pick around and ultimately declare something that sounds like evidence.

If both were stonewalling, then the only rational decison would be for the the
court to order the plaintiff to go first so that they could know what was
relevant. Who's afraid of a little motion to compel? Certainly SCO ain't. IBM
should have followed this protocol itself and not sprung until SCO did. SCO has
put all the weight on IBM. They have been toiling over discovery. The SCO
attorney's dream up motion titles, eschew depositions, They attack and don't
disclose. Some day they may have to pay, but its Christmas and there are a lot
of parties. Each day of delay is a total victory. No worries, no paying.
December 22 is a good day for a party. We can worry about it next year.

---
webster
>>>>>>> LN 3.0 >>>>>>>>>

[ Reply to This | # ]

Nice analysis PJ
Authored by: Anonymous on Wednesday, December 14 2005 @ 05:20 PM EST
I'm sure it will help Judge Kimball.

J

[ Reply to This | # ]

Did Judge Wells Fail to Rule on SCO's Motion? - I Don't Think So
Authored by: Sunny Penguin on Wednesday, December 14 2005 @ 07:42 PM EST
About IBM:

A terminator quote applies here:

Listen. And understand. That terminator is out there. It can't be bargained
with. It can't be reasoned with. It doesn't feel pity, or remorse, or fear. And
it absolutely will not stop, ever, until you are dead.

---
"Numerical superiority is of no consequence. In battle, victory will go to the
best tactician."
~ George Custer (1839-1876)

[ Reply to This | # ]

Can Judge Kimball just ask Judge Wells?
Authored by: Anonymous on Thursday, December 15 2005 @ 10:23 AM EST
It seems like it could be cleared up quite simply just by asking Judge Wells if
her ruling included the Linux issue? Is this allowed?

[ Reply to This | # ]

Kudos to Judge Kimball and Judge Wells
Authored by: Rudisaurus on Thursday, December 15 2005 @ 04:07 PM EST
... for their evident patience and discipline. The emoting in the quote which follows could just as easily have come from either one of them -- but it never has.

(from this ZDNet article on the on-going Kazaa saga)
Although he scheduled the motion for hearing, Justice Wilcox again showed signs of frustration with the prolonged nature of the case, and blamed participants on both sides.

"I would cheerfully have nothing more to do with this case. I don't wake up in the morning and think 'I'd like a bit more Kazaa today'," he said, citing learning about the technology as "quite time consuming".
Bear in mind that Justice Wilcox is Australian (hence, outspoken).

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )