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| SCO Files Another Motion to Compel in IBM Litigation |
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Tuesday, January 03 2006 @ 09:46 PM EST
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SCO has filed a Motion to Compel in the SCO v. IBM case. So what else is new? When *doesn't* SCO file a motion to compel in the SCO v. IBM litigation? No matter how many they lose, they just keep filing them. Remember at the last hearing IBM's Todd Shaughnessy mentioning that addiction to motions?So, here we go again. Here's the Motion to Compel [PDF], which in its just-filed letter to the Red Hat judge it described like this: On December 29, 2005, SCO filed its Motion to Compel certain discovery
and 30(b)(6) witnesses, including numerous categories of damages-related
materials, documents concerning Project Monterey, documents related to
IBM's ongoing Linux activities, and all versions of AIX from 1985 to 1990. We'll get the Red Hat letter up in a few minutes. If you've forgotten what a 30(b)(6) witness is, go here. It's clear how SCO's lawyers spent the holidays, working for real, because they are filing motions in the two active cases. Here's the Plaintiff's Motion for Leave to File Overlength Memorandum in Support of its Motion to Compel [PDF]. They say they need more space, 25 pages instead of 10. The memorandum itself is filed under seal. There is also an attorney's declaration, Declaration of Mark F. James in Support of Plaintiff's Motion to Compel, also marked filed under seal, which lists lots of exhibits filed as paper documents. The document is available on Pacer but I won't put it up here until I can clarify if they goofed in making it available. But here are the two motions as text, thanks to Steve Martin. As you will see, SCO is trying very hard not to let the public in on whatever it is they are asking for in this motion. All we know is SCO wants IBM to produce some documents and some witnesses, as SCO puts it, "seven separate categories of highly relevant damages related documents, three separate categories of other highly relevant documents and four separate categories of testimony from corporate representatives." Don't worry. It all comes out in the wash eventually, as you've seen over and over in this litigation, so whatever they are asking for, we'll find out in due time, I'm sure.
********************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
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PLAINTIFF'S MOTION TO COMPEL
(ORAL ARGUMENT REQUESTED)
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
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Plaintiff, The SCO Group, Inc. ("SCO"), pursuant to Rule 37 of the Federal Rules of
Civil Procedure and for the reasons set forth in SCO's Memorandum in Support of its Motion to
Compel, respectfully moves this Court for an Order compelling Defendant International Business
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Machines Corporation ("IBM") to produce certain discovery and Rule 30(b)(6) witnesses
described in the Memorandum.
Dated this 29th day of December, 2005.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
By (signature of Mark F. James)
Counsel for The SCO Group, Inc.
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CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the
foregoing Plaintiff's Motion to Compel was served by mail on Defendant International Business
Machines Corporation on the 29th day of December, 2005, by U.S. Mail to:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Todd Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
(signature of Mark F. James)
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********************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
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PLAINTIFF'S MOTION FOR LEAVE
TO FILE OVERLENGTH
MEMORANDUM IN SUPPORT OF
ITS MOTION TO COMPEL
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
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Plaintiff, The SCO Group, Inc. ("SCO"), hereby moves this Court for permission to file
an overlength Memorandum of Points and Authorities in Support of its Motion to Compel SCO
seeks to file a Memorandum of 25 pages in length exclusive of cover sheet and table of contents
and authorities rather than the 10 pages ordinarily permitted. SCO requires the extra length for
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the following reasons. SCO's Motion addresses numerous deficiencies in Defendant
International Business Machines Corporation's ("IBM") production of discovery materials in this
litigation. Because of IBM's failures, SCO has been forced to move to compel the production of
seven separate categories of highly relevant damages related documents, three separate
categories of other highly relevant documents and four separate categories of testimony from
corporate representatives. It is impossible to discuss each of these fourteen separate categories
of required evidence within the ten page limit. SCO, therefore respectfully requests permission
to file an overlength Memorandum in Support of its Motion to Compel.
Dated this 29th day of December, 2005.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
By (signature of Mark F. James)
Counsel for The SCO Group, Inc.
2
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the
foregoing Plaintiff's Motion for Leave to Overlength Memorandum in Support of its Motion to
Compel was served by mail on Defendant International Business Machines Corporation on the
29th day of December, 2005, by U.S. Mail to:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Todd Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
(signature of Mark F. James)
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| Authored by: Nivuahc on Tuesday, January 03 2006 @ 10:27 PM EST |
clicky links, please
---
My Doctor says I have A.D.D... He just doesn't understand. It's not like... Hey!
Look at that chicken![ Reply to This | # ]
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| Authored by: Nivuahc on Tuesday, January 03 2006 @ 10:28 PM EST |
weeble was too slow ;)
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My Doctor says I have A.D.D... He just doesn't understand. It's not like... Hey!
Look at that chicken![ Reply to This | # ]
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| Authored by: rp$eeley on Tuesday, January 03 2006 @ 11:03 PM EST |
<sigh>
I'm beginning to wonder if I'll ever see SCO get their comeuppance. A person
could get seriously worn out just with all this waiting.
[ Reply to This | # ]
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| Authored by: WhiteFang on Tuesday, January 03 2006 @ 11:12 PM EST |
Don't worry. It all comes out in the wash eventually, ...
I never worry about what SCOX or the SCOX legal team says
anymore. I don't even get mildly annoyed anymore.
A} We all know at this
point that this is all smoke and mirrors.
B} Smoke always comes out in
the wash.
All in all. The last 3 years has been very educational. It's
help me to understand other judgements and even helped me out in municipal
court.
:-D
---
emerge addict since Gentoo version 1.2,
2002.
compiler error: value of "_Trust_Microsoft" always fails.
"Sony BMP has created serious public-relations ..." [ Reply to This | # ]
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| Authored by: EnragedBeaver on Tuesday, January 03 2006 @ 11:15 PM EST |
.
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The Enraged Beaver wants to help gnaw away at anti-OSS claims[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, January 03 2006 @ 11:45 PM EST |
| On December 29, 2005, SCO filed its Motion to Compel certain discovery and
30(b)(6) witnesses, including numerous categories of damages-related materials,
documents concerning Project Monterey, documents related to IBM's ongoing Linux
activities, and all versions of AIX from 1985 to 1990.
Oh Lordy!
I
thought we beat that one to death already!
Monterey???
They were already
told to forget about this one by Kimball,IIRC.
I'd like to know exactly what
part of N-O they are having difficulty understanding....
The unsigned-in
Rann [ Reply to This | # ]
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| Authored by: red floyd on Tuesday, January 03 2006 @ 11:46 PM EST |
Is *anyone* at all surprised that they filed for this as well?
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I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.
[ Reply to This | # ]
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| Authored by: lordshipmayhem on Tuesday, January 03 2006 @ 11:47 PM EST |
"When *doesn't* SCO file a motion to compel in the SCO v. IBM
litigation?"
That's an easy question - days that do not start with the letter "S".[ Reply to This | # ]
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| Authored by: cmc on Tuesday, January 03 2006 @ 11:48 PM EST |
Can someone please explain why a motion to compel would be filed under seal? I
can't imagine that TSG would be disclosing any of their "trade
secrets", etc. in a motion to compel, so why the seal? Especially when the
judge has already said he doesn't want things filed under seal unless they have
valid reasons for it.
cmc
[ Reply to This | # ]
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| Authored by: WhiteFang on Tuesday, January 03 2006 @ 11:54 PM EST |
Because of IBM's failures, SCO has been forced to move to compel ...
Tut-tut.
After Judge Wells declared IBM had met all
it's production requirements, this is a pretty nasty approach. And indeed, she
pointed out that IBM had offered more than required in the interests of moving
the case along. Of course, I wasn't expecting them to learn anything from their
previous gaffes. It became apparent long ago that implied slander is merely
considered another legal tactic by the SCOX legal team. The problem comes when
is the only tactic you know.
Once a mean spirited sore loser, always a
mean spirited sore loser in SCOX's case, I guess.
Here SCOX. Have a
shovel and dig yourselves a deeper hole. BTW - what do you want engraved on the
headstone?
"SCOX - when smoke and mirrors fail"
"Here lies
..."
"SCOX - Death by Litigation"
"SCOX - In Darl/Yarro We
Trust"
Still desperately looking to be bought out I
guess.
---
emerge addict since Gentoo version 1.2, 2002.
compiler error: value of "_Trust_Microsoft" always fails.
"Sony BMP has created serious public-relations ..." [ Reply to This | # ]
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- Nasty, nasty. - Authored by: red floyd on Wednesday, January 04 2006 @ 01:19 AM EST
- Nasty, nasty. - Authored by: Anonymous on Wednesday, January 04 2006 @ 07:11 AM EST
- Epitaph - Authored by: Pogue Mahone on Wednesday, January 04 2006 @ 02:51 AM EST
- Epitaph - Authored by: Kevin on Wednesday, January 04 2006 @ 08:47 AM EST
- Nasty, nasty. - Authored by: ThrPilgrim on Wednesday, January 04 2006 @ 05:05 AM EST
- SCO Epitaphs - Authored by: DaveJakeman on Wednesday, January 04 2006 @ 07:25 AM EST
- Nasty, nasty. - Authored by: Anonymous on Wednesday, January 04 2006 @ 07:45 AM EST
- Headstone - Authored by: Anonymous on Wednesday, January 04 2006 @ 09:22 AM EST
- Can the judge refuse permission? - Authored by: pdqlamb on Wednesday, January 04 2006 @ 12:25 PM EST
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| Authored by: artp on Wednesday, January 04 2006 @ 12:18 AM EST |
Sorry, your name isn't Shirley, it's Pamela. ;-)
The only reason to keep doing this is to get the judge to comment on how
incredibly dense they are.
It is sad that TSCOG can't even get the judge riled up enough to get a mistrial.
There's another brilliant stategy down the drain!
Meanwhile, I shall read your analysis of the situation on the bottom of the
article, and use that to decide when to wake up and pay attention to a TSCOG
request to compel.[ Reply to This | # ]
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| Authored by: webster on Wednesday, January 04 2006 @ 12:27 AM EST |
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1. This is even getting tedious for litigation. The Judges' response to this
should indicate their reserve of patience. If they deny the Motion for
overlength memo, there will be no mistake about that signal.
2. They have to explain in this memo "Why so late for this request?"
They already explain, because it is a motion to compel, that it is IBM's fault;
that IBM has been asked: and that IBM has not complied.
2A IBM will reply 1) You haven't asked and it wasn't ordered; 2) We have
complied, and 3) that is old and irrelevant and you would be foolish to bring
that before the judge. After all, who is s/he going to believe?
3. The delay issue is hard on them. When did they ask for this discovery?
When did IBM say they would not comply? Why didn't they ask sooner? Why didn't
they move to compel sooner? Why didn't they anticipate what they would need in
litigation like this? What is it relevant to? They are going to have to say it
is from newly-discovered evidence from newly-disclosed documents or
depositions.
4. IBM might consider opposing these motions with substantive arguments just to
try them out, e.g. It can't possibly be relevant because the code was already
disclosed by them in their Linux distribution, or under the contract there can
be no damages, ergo it is irrelevant. The Judge might reserve on it, but he can
get used to hearing it.
5. This discovery stuff is for delay and/or appeal. It's like criminal law--
every day of delay is a day of total victory. Also as with criminal law, they
are using the "one nut" theory. With this voluminous discovery
sideshow they might persuade "one nut" on a three-judge appeals panel,
who can then persuade another and you have a majority. [And oh yes, bing a nut
doesn't keep you from being a judge. Nuts have good connections or a crowd in
its firm trying to boost it out.]
6. We'll stop here lest we contadict an item above.
---
webster
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| Authored by: The Mad Hatter r on Wednesday, January 04 2006 @ 12:32 AM EST |
One of BSF's lawyers is having problems with his copy of Microsoft Word - he
hasn't figured out how to change the header to say anything other than
"Motion to Compel"
---
Wayne
http://urbanterrorist.blogspot.com/
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| Authored by: Anonymous on Wednesday, January 04 2006 @ 01:30 AM EST |
<yawn>
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| Authored by: blacklight on Wednesday, January 04 2006 @ 03:36 AM EST |
My predictions for the year 2006 are as follows:
(1) the SCOG freak show known as the IBM litigation goes on, as SCOG repeatedly
files almost identical and doomed motions for discovery, possibly to give SCOG
ground for appeal;
(2) SCOG looks for ways to game discovery in the Novell litigation to delay said
litigation;
(3) SCOG as a business continues to bleed cash even as it is shrinking, enabling
SCOG to solidly remain in its comfort zone - the red. SCOG's conference calls
regarding its earnings will relentlessly accentuate the positive: "As part
of our effort to cut costs by thinking out of the box, we are now requiring our
employees to supply their own toilet paper and we are telling our janitorial
services to clean up the toilets once a week rather than once a day. All toilet
flushes will be coin operated - Keep feeding the coins, or else. We are also
calling our customers collect to wish them "happy birthday""
---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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| Authored by: ThrPilgrim on Wednesday, January 04 2006 @ 05:11 AM EST |
I have worked out whats in the motion.
They are compelling IBM to stop being so generous in their, IBM's, responcies to
descovery.
If IBM keepe on being so reasanable there will be no grounds for apeal :-)
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, January 04 2006 @ 05:54 AM EST |
I'd jail all the SCO lawyers for 3 months - no bail - for contempt of court for
refusing to take NO for an answer![ Reply to This | # ]
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| Authored by: akempo on Wednesday, January 04 2006 @ 07:55 AM EST |
I may have gotten a little confused, but I thought the Judge said no more
motions. Or did that apply only to the period between the last filing and the
motions ruling last month?
akempo
---
Problems cannot be solved on the same level of thinking that created them.
Albert Einstein[ Reply to This | # ]
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| Authored by: blacklight on Wednesday, January 04 2006 @ 08:51 AM EST |
"All we know is SCO wants IBM to produce some documents and some witnesses,
as SCO puts it, "seven separate categories of highly relevant damages
related documents, three separate categories of other highly relevant documents
and four separate categories of testimony from corporate
representatives."" PJ
SCOG seems to have interpreted the requirement that it disclose its all of its
allegations with specificity by 29 Dec, as a back door to amend its complaint
and continue to game discovery. Further, SCOG's claim that its 293 allegations
are taken from "an even larger universe" of alleged violations are a
clear violation of the requirement that SCOG disclose ALL allegations.
---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, January 04 2006 @ 09:58 AM EST |
I'd like to file a motion for SCO to zip their lips until they give us a reason
for this bringing this lawsuit in the first place. I'd also like to file for
damages to my brain, for all the neurons that have committed suicide listening
to the complete horse hockey they've been spewing lo these many years now. Of
course, I think that would end up being a class action suit... Who else here
wants in? I don't know if jail time is possible for Darl and friends, but it's
certainly reasonable. I think the saddest part of this whole mess is that we're
going to have to wait until the end of July for IBM to be able to re-file for
dismissal. Ugh.[ Reply to This | # ]
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| Authored by: kattemann on Wednesday, January 04 2006 @ 11:52 AM EST |
Over here we got a Dickens serial on TV over the holidays. Somehow it reminded
me of the SCOX suits - "Bleak House" :-) [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, January 04 2006 @ 08:01 PM EST |
Don't worry. It all comes out in the wash eventually, as you've seen
over and over in this litigation, so whatever they are asking for, we'll find
out in due time, I'm sure.
Not to sound too cynical here, but
isn't this closely akin the character assination that went on in a newspaper in
Boston?
And, sadly, I'm sure that when this travesty is done (as in
toasty) the newswires of the world will sound the trumpets of truth of how the
innocent were falsly accused and all the evil mechanisations behind
it.
yeah, right
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| Authored by: ChrisP on Wednesday, January 04 2006 @ 09:16 PM EST |
| Are BSF/tSCOg calling IBM's lawyers liars? Or do they know something IBM
doesn't?
See the
Declaration
by Todd M. Shaughnessy paragraphs 29 to 31 for instance.
Of course IBM,
like me, will have many old computers lying around, switched off, and no-one
knows what's in them anymore. :-) ---
SCO^WM$^WIBM^W, oh bother, no-one
paid me to say this. [ Reply to This | # ]
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| Authored by: globularity on Thursday, January 05 2006 @ 08:27 PM EST |
By now SCO's all show no go antics should be well known, this motion was sole ly
to be able to tell thge judge in the red hat case something that might
superficially look good for thier case. Now if the red hat judge knows what grep
or a similar tool is good for then she will think that all these motions to
compel are very suspicious, as they would have been ruled on long ago I would in
her position have given Judge Kimball a call just to find out what was going on,
I guess that call would be devastating to SCO's case should she make it.
Mark
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"It's all about myths and conceptions" I think that is what Darl meant to say.[ Reply to This | # ]
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