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SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Wednesday, February 01 2006 @ 04:38 AM EST

SCO has become addicted to discovery, I gather. The deadline for the end of discovery is apparently driving SCO crazy, and they are scrambling frantically to keep doing just a little bit more.

Take a look at this 11th-hour motion, SCO's Motion for Leave to Take Certain Prospective Depositions [PDF]. When I read it, I had absolutely no idea what to make of it. All I could see is they wanted more time to do some future depositions of three entities, Intel, Oracle and The Open Group, none of whom showed up after SCO sent them subpoenas and scheduled depositions for the 27th, the very last day of discovery. I don't see in the motion, however, that SCO called or negotiated with any of the three, which is very odd, to bring a motion without having done that. SCO needs the judge to OK an extension of time to make it possible to still do the depositions if motions to compel SCO plans on filing in other states are granted. What in the world? I asked Marbux to explain to me what is going on. Here's his explanation.

In the motion, SCO reveals that it sent Rule 30(b)(6) subpoenas to Oracle, the Open Group, and Intel telling them to show up for depositions on the 27th, but none of them showed up and they didn't file a motion to quash or for a protective order, according to SCO. However, since it all just happened, Marbux tells me he thinks it is possible that SCO just didn't get the papers by the time they filed this with the court. Here's what he told me:

Since this all went down on the 27th, it's possible that the subpoenaed companies moved for a protective order in their respective jurisdictions but SCO's lawyers haven't received the motions yet. (Service by mail is still proper.)

When a non-party files a motion for a discovery protective order, that automatically relieves them from showing up at 30(b)(6) depositions (not so for parties).

Lawyers don't just ignore subpoenas and hope they go away. Marbux also told me it is also possible there was something wrong with the subpoena or something wrong with the service, and that if you get a subpoena that is defective, you generally just ignore it. If that's it, I'm guessing the former, because it makes more sense that SCO made the same mistake three times than three different process servers in two different states all made a mistake.

The deadline for discovery is now past, so SCO is asking the court for help. The 27th was the last day for discovery, "Close of All Fact Discovery Except As to Defenses to Claims Relating to Allegedly Misused Material," as you can verify on our IBM Timeline page. They scheduled three depositions and asked for documents on the very last day, and when no one showed up, it left them in an odd situation. Since they have had since March of 2003 to depose whomever they pleased, one might ask why they waited until the very last day, but whatever.

Now these companies are not in Utah. So SCO first had to get subpoenas issued from the jurisdictions in which the companies are located.

SCO's motion says it will now be filing motions to compel in the other states. It filed in Utah too, to let the judge there know what is going on in the other states. Marbux thinks the other judges will very likely transfer their motions to Utah, to avoid the risk of contradictory decisions.

So what is SCO asking Utah to do? It's asking not to be cut off at the pass. SCO's argument is that the three companies had an obligation to appear, so their "refusal to do so" isn't SCO's fault, and if the other states grant the motions to compel that SCO is going to file, SCO asks the court in Utah to please let them go ahead with the depositions, even though the deadline is past. Marbux:

They are in a spot where they need approval from at least two different courts, one in Utah and one or more where the depositions were scheduled. It's kind of a chicken-and-egg problem. If they didn't move in both courts simultaneously, here's what could happen.

Say they move to compel in San Jose federal court, but didn't simultaneously move in Utah federal court for permission to take depositions after the deposition cut-off date. They could be opposed in San Jose on grounds that they're past the discovery deadline in any event, so their discovery motion is moot. Plus they could get in trouble in Utah for trying to extend the discovery deadline without the Utah court's permission.

Taking it the other way around, say they move in Utah for permission to extend the discovery deadline but don't promptly move to compel in San Jose. Then their motion in Utah can be opposed on grounds that they are asking the court to rule on a hypothetical situation, since there isn't even a discovery motion pending in San Jose.

Roll it all up, and they are preventing both situations by having motions pending in both courts, with both courts fully advised of the situation. They are also practically guaranteeing that the other courts will transfer the discovery motions to Utah, since there is a risk of inconsistent decisions.

Are you with us so far? So "prospective" deposition here means sort of contingent -- if the other courts say yes, SCO asks Utah to say yes too. Now, we haven't heard from the three companies. Their story may be quite different. After SCO tried to pull the "we just found out about AIX on Power" prank, I like to hear the other side speak, instead of taking anything SCO says as gospel. But now you know what SCO's side is.

Some other filings from Pacer:

01/31/2006 605 CERTIFICATE OF SERVICE by International Business Machines Corporation to SCO's Ninth Request for the Production of Documents (Shaughnessy, Todd) Modified on 1/31/2006 - the incorrect PDF was attached to this entry. This certificate of service will be re-efiled by counsel. (ce, ). (Entered: 01/31/2006)

01/31/2006 606 CERTIFICATE OF SERVICE by International Business Machines Corporation to SCO's Sixth Set of Interrogatories (Shaughnessy, Todd) (Entered: 01/31/2006)

01/31/2006 608 CERTIFICATE OF SERVICE by International Business Machines Corporation of IBM's Responses and Objections to SCO's Ninth Request for the Production of Documents (Shaughnessy, Todd) (Entered: 01/31/2006)

01/31/2006 609 Modification of Docket: Error: incorrect PDF was attached to entry no. 605. Correction: the docket text of this entry was modified to reflect that counsel will re-efile the CERTIFICATE OF SERVICE by International Business Machines Corporation of IBM's Responses and Objections to SCO's Ninth Request for the Production of Documents. (ce, ) (Entered: 01/31/2006)

As you can see, IBM is objecting to some of SCO's discovery demands, so what do you bet we see some motion practice there, knowing SCO as we do? In short, SCO is finding it very hard to actually stop doing discovery. Why it waited until the very last minute to do all this is incomprehensible. If you wanted information from The Open Group, you'd logically know it some time ago.

In SCO v. Novell, Novell has stipulated to let SCO amend its complaint:

01/26/2006 92 STIPULATION re: 89 MOTION to Amend Amended Complaint by SCO Group, Novell, Inc (alt) (Entered: 01/31/2006)

01/31/2006 93 ORDER granting 89 Motion to Amend Amended Complaint. Signed by Judge Dale A. Kimball on 1/26/06 (alt) (Entered: 01/31/2006)

As you can see, the court has signed the order, based on the stipulation of the parties. A Motion to Amend Amended Complaint -- that sounds exactly like SCO, and we've only just begun in this case. SCO was almost certainly going to get to do this, so there's no reason to go to the expense and trouble of motion practice. Also, at the beginning of litigation, the two sides try to be nice to each other, generally speaking. Later, it can change, but typically at the start, you find more "After you, Alphonse" politeness.

********************

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.

SCO'S MOTION FOR LEAVE TO
TAKE CERTAIN PROSPECTIVE
DEPOSITIONS

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

Pursuant to Rule 26 of the Federal Rules of Civil Procedure, Plantiff The SCO Group, Incorporated ("SCO"), requests the Court to grant SCO leave to take certain prospective depositions of Intel Corporation ("Intel"), the Open Group, Incorporated ("The Open Group") and Oracle Corporation ("Oracle").

SCO served Rule 30(b)(6) subpoenas (as well as document requests) on each of these corporations requring them to appear for depositions scheduled for January 27, 2006. The corporations did not appear for their depositions and have not filed motions to quash or motions for protective order.

Considering the corporations' failure to produce a Rule 30(b)(6) witness on January 27, 2006 (today), SCO will file the appropriate motions to compel in the two jurisdictions from which the three subpoenas at issue were issued. In those motions, SCO intends to cite the precedent demonstrating that each of the three companies was given adequate notice and was obligated to produce a Rule 30(b)(6) witness on the noticed topics (and to produce documents in response to the requests therein) -- or else should have filed a motion to quash or for protective order, which none of the three companies did.

Accordingly, SCO respectfully requests that, to the extent the district courts in the foregoing two jurisdictions grant SCO's motions to compel, this Court permit SCO then to take the Rule 30(b)(6) depositions of the foregoing three companies. If those companies were obligated to appear for deposition, but simply and improperly declined to do so, their refusal of course should not work to SCO's detriment with respect to the end of certain fact discovery on January 27, 2006. SCO proposes to inform this Court if the foregoing two jurisdictions issue such an order or orders, and thereby request the Court for leave to take the deposition or depositions at issue.

2

DATED this 27th day of January, 2006.

Respectfully submitted,

By: __[signature of Mark F. James]___
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

Counsel for The SCO Group

3

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Motion for Leave To Take Certain Prospective Depositions was served on Defendant IBM on the 27th day of January, 2006:

By Facsimile and U.S. Mail:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

By U.S. Mail:

Donald J. Rosenberg, Esq.
[address]

____[Signature of Mark F. James]____

4


  


SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group | 473 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT here
Authored by: golding on Wednesday, February 01 2006 @ 04:52 AM EST
Follow the instructions at the bottom of the page for links, etc...

---
Regards, Robert

..... Some people can tell what time it is by looking at the sun, but I have
never been able to make out the numbers.

[ Reply to This | # ]

Corrections here
Authored by: Anonymous on Wednesday, February 01 2006 @ 04:57 AM EST
(whoo hoo!)

[ Reply to This | # ]

Grounds for more discovery?
Authored by: Anonymous on Wednesday, February 01 2006 @ 05:07 AM EST
Somehow, I'm afraid SCO's gameplan might be the following:

SCO to court: "Your honor, we just found some incredible, we mean
_really_ devastating evidences of IBM's wrong-doings when deposing
these people from Intel, Oracle and The Open Group! This newly found
facts shed a radically new light on the litigation! It transpires that the
implications of these new facts are ground-breaking! So, we are asking
for an extension for discovery. And we'll probably have to revise the
whole schedule, including the trial dates!"

Court to SCO: "Why now? Isn'it a bit late? Why did you wait at the very
last
minute to bring this?"

SCO to court: "Oh well, we... hehe... you see, it's... ah ah... hehe...
ohoh...
Well, your honor, you sure don't want us to have grounds to appeal your
judgment, do you?"

I feel like Bill Murray in "The goundhound day"...

[ Reply to This | # ]

Can you just request appearance on a certain date?
Authored by: Anonymous on Wednesday, February 01 2006 @ 05:09 AM EST
So apparently SCO just wanted these three companies to turn up on the 27th
of January. I think it is quite reasonable to assume that a company would
have a person who would be suitable to appear in court for them, but that
person might be on holiday on the 27th of January. Normally that should be a
problem, you just ask them to appear a week later, for example. Of course
that couldn't be done here, because that is the end of discovery.

If a company asked me to appear in court on one specific day, and it is even
just a small hardship for me to appear on that day, and not the day before,
and not the day after, and it has to be that day because the company waited
for two years until the very last possible day to ask for my court appearance,
would that count under "unjustifiable hardship" or something similar,
so that
I don't have to appear?

Lets say SCO had deposited twenty IBM employees, with plenty of time before
the deadline, so they asked say employee #1 to appear on the first working
day of October, employee #2 to appear on the second working day of October
and so on, and employee #14 realises that he is supposed to appear on the
day of his wedding anniversary. Could SCO insist on that date, or would they
be forced to accomodate him (because he could appear on any of the other
days easily)?

Same situation, but no time left because SCO was so slow: Would he have to
appear?

[ Reply to This | # ]

If this is a joke...
Authored by: Anonymous on Wednesday, February 01 2006 @ 05:11 AM EST
...it is just not funny any more.

Perhaps I should not comment if I have nothing to say - but then SCO should not
sue unless they have some evidence to bring.

Unless SCO can do another Apollo 13, I think everyone except PJ and Marbux are
going to lose interest in this case.

How long is it before this case can come to trial?

Alan(UK)

[ Reply to This | # ]

A little pun... =)
Authored by: Anonymous on Wednesday, February 01 2006 @ 05:23 AM EST
I cannot resist the pun...

"We don't take... discovery"

sbans

[ Reply to This | # ]

What happens if the subponeas were defective ...
Authored by: Anonymous on Wednesday, February 01 2006 @ 05:28 AM EST
... has SCO lost the chance to get these depositions? PJ, Marbux et al, could
you enlighten us please.

[ Reply to This | # ]

SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Authored by: Anonymous on Wednesday, February 01 2006 @ 07:06 AM EST
I think this is easy

-SCO wants delay,
-SCO knows it's already extended itself to get delay and won't get anymore on
it's own
-SCO schedules dispositions for the LAST DAY of discover
-'Something' happens with the subpoenas, and the evidence suggest that
'something' was caused by SCO
-The parties to be deposed don't appear, more than likely caused by the
'something' that happened with the subpoenas
-SCO now can say they have incomplete discovery due to someone else not showing
up, hopefully taking the blame off SCO for stalling after the deadline
-SCO files for an extention to get the missing discovery, because we all know
Intel, ORACLE, and The Open Group has the key piece of evidence SCO needs to
cement their case
-SCO gets more delay.

[ Reply to This | # ]

SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Authored by: Waterman on Wednesday, February 01 2006 @ 07:08 AM EST
It could be something as simple as they sent the things to the wrong people/addresses. Would that be the first time for them? No. Think back to when they sent stuff to DC.

Any Lawyer
Intel Corporation
Wrong Address
Right Town, Right State

The lawyers could also just be rolling on the floors with laughter. SCO? Hasn't IBM squashed that bug yet? Hahahehehaha.

[ Reply to This | # ]

amend it's complaint: should be ...its (n/t)
Authored by: Anonymous on Wednesday, February 01 2006 @ 07:52 AM EST
n/t

[ Reply to This | # ]

What's Open Group got to do with anything?
Authored by: Steve Martin on Wednesday, February 01 2006 @ 07:57 AM EST
Can someone please explain to me exactly what relevance The Open Group could
possibly have to a supposed *contract* dispute between TSG and IBM?


---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"

[ Reply to This | # ]

I know what happened to those notices
Authored by: overshoot on Wednesday, February 01 2006 @ 08:09 AM EST
They were sent to the wrong companies, at addresses in the middle of a freeway,
attention to (named) low-level staffers who left years ago.

[ Reply to This | # ]

I notice SCOG does *not* say
Authored by: Anonymous on Wednesday, February 01 2006 @ 08:17 AM EST
Just when they filed / served the subpoenas on these three corporations.

That might be very interesting.

PeteS

[not logged in]

[ Reply to This | # ]

SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Authored by: blacklight on Wednesday, February 01 2006 @ 08:28 AM EST
I started screening my phone calls when some acquaintances to whom I should
never have given my home phone number called me, hitting me up for money. One
woman called me up at 5:00 AM to yell into the phone: "Hello, this
Adrienne! I'll be evicted, if I don't have $500" And she was deliberately
putting me on the spot, compelling me to make an immediate decision over the
phone. I wanted to tell her to take a hike, but at the same time I did not want
to be a critical factor as to why she became homeless. So I parted with my
money.

SCOG is doing much the same thing: making a deliberate decision not to do these
outside Intel-Oracle-etc. depositions until a few days before the deadline,
missing the deadline and then filing papers with the judge, putting the judge on
the spot to rescue SCOG from the consequences of its decisions. From the point
of view of human nature, it's not a pretty sight.

For the record, I never make business decisions over the phone, and I never make
business decisions on the spot - and I don't care how good the offer is: this
takes much if not all of the effectiveness of any high pressure sales tactics
that I might be subjected to. And now, I don't pick up my phone unless it is
clear to me that the caller is someone I want to talk to, and he or she is in
the midst of leaving me a message on my answering machine.


---
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 | # ]

Certificate of Service on the Supeonas?
Authored by: penfold on Wednesday, February 01 2006 @ 08:29 AM EST
Shouldn't SCOX have filed a CoS for all three to prove that they were recieved
in time to send someone? I remember seeing documents that were filed with the
court on the very last day they were due... and I distinctly had the impression
that they were dropped off 15 minutes before the court clerks closed for the
day.

How do we know that SCOX didn't put them in the mail at 5 pm on the 26th, and
they weren't delivered until 10 am on the 30th?

---
The worth of man is determined by the battle between good and evil in the mans
subconcious.The Evil within is so strong that the way to win is to deny it
battle

[ Reply to This | # ]

SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Authored by: eggplant37 on Wednesday, February 01 2006 @ 08:30 AM EST
The one question that I'd like to see answered is when did SCO subpoena these
three companies? One wonders how much lead time they gave these corporations to
respond and comply with the subpoenas.

[ Reply to This | # ]

To Much in 1 day
Authored by: Anonymous on Wednesday, February 01 2006 @ 09:32 AM EST
How could SCO have even deposed 3 people in one day then filed the completed
dispositions with the court on the same day.

How much perparation is required on the transcripts?
How much comment would SCO be expected to file along with the transcripts?
Surely if they were to be presented as evidence with argument then some work on
the argument part would have to be done.

I just don't see it as being possible even if the people had showed up for SCO
to have completed the filing.

[ Reply to This | # ]

This is obviously a delay tactic.
Authored by: arrg on Wednesday, February 01 2006 @ 09:32 AM EST

I have no doubt about it. So my only question is, what kind of trouble can they
get in for playing these obvious games? How far can a law firm go on things like
this? I'm an every day guy who knows very little about the law, but I can see
the obviousness in all this so I imagine the judge can too.

If they do get in trouble who gets punished? Sco or the law firm?

In the end I hope one of them gets some kind of punishment for this stuff,.
Otherwise I'm going to loose a lot of faith in our system.

---
Time is funny stuff, space has it's points too.... - Hap

[ Reply to This | # ]

Movie of the week?
Authored by: DodgeRules on Wednesday, February 01 2006 @ 09:36 AM EST
This went from being a Movie of the Week to a Mini Series to a Sitcom that keeps
being renewed for another season. When will the madness end? I think it is
time to turn off the TV before it turns into the longest running Soap Opera in
history.

[ Reply to This | # ]

  • Not to mention - Authored by: Anonymous on Wednesday, February 01 2006 @ 02:30 PM EST
Not the Anonymous Corrections Thread
Authored by: DaveJakeman on Wednesday, February 01 2006 @ 09:55 AM EST
...which is probably a bit late in the day anyway.

---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

[ Reply to This | # ]

Images of SCO
Authored by: DaveJakeman on Wednesday, February 01 2006 @ 11:01 AM EST

For some inexplicable reason, whenever I think of SCO now, my mind is filled with this image: a picture of the world's worst pantomime horse.

I don't know why, but when I type the letters "S", "C" and "O", this occurs - every time. I don't know what's happening to me. Maybe I need professional help.

---
Should one hear an accusation, first look to see how it might be levelled at the accuser.

[ Reply to This | # ]

SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Authored by: Anonymous on Wednesday, February 01 2006 @ 11:35 AM EST
When will we know when the supeonas arrived at their destinations? Would the
Open Group tell PJ? Will SCO file a SoC that is available to the public?

[ Reply to This | # ]

Curious -- what if SCO does get delay?
Authored by: russellphoto on Wednesday, February 01 2006 @ 11:52 AM EST
I am curious, PJ/Marbux (and others natch).

IF SCOg gets the delay, could this actually affect the trial date. IF that is
true, could this not work out to the good if the Novel trial takes place BEFORE
the IBM trial?

I mean, after all, that is what this case is really about. IBM is just the
not-so-hapless victim. A contract case that Novell says they can tell SCOg to
stop (which they have and SCOg has ignored) because SCOg does NOT own the UNIX
copyrights and has not paid their royalties as they should have to Novell.

That would be a nice twist if Novell's case was to actually be heard and not
dismissed when the motion to dismiss comes up in the short term.

Oh, and if the Novell motion is granted, IBM is then over.

Just a few thoughts,
Russell G.
IANAL -- so go fish

[ Reply to This | # ]

SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Authored by: Anonymous on Wednesday, February 01 2006 @ 11:54 AM EST
I think this should be titled SCO's FIRST SCO's Last Gasp in Discovery. I don't
believe for a moment the is the LAST last gasp.

[ Reply to This | # ]

Somebody get me a tinfoil hat
Authored by: Anonymous on Wednesday, February 01 2006 @ 12:04 PM EST
I seem to remember that IBM started sending their stuff to SCO by hand delivery,
since SCO was apparently playing some "we never got it" games early in
this farce.

So here come Intel, Oracle, and The Open Group, telling SCO that their subpoenas
are defective, or that their scheduling arrangements need to be adjusted, or
whatever, and not knowing how SCO plays the game, they simply mail their replies
to SCO, like reasonable people would do. And SCO "never heard back from
them."

Prediction: IBM is already contacting Intel, Oracle, and The Open Group, asking
exactly what they told SCO, and how they sent the response. If it's SCO's fault
(or SCO's game), IBM will be able to show it in a reply, and that will be the
end of SCO's request, and the end of discovery, and the end of delay to the
schedule.

It's just too suspicious that none of the three even replied. That just can't
be coincidence. As somebody else said, the common denominator is SCO, so it's
pretty likely that the blame goes there.

MSS2

[ Reply to This | # ]

It's the end of FACT discovery.
Authored by: kawabago on Wednesday, February 01 2006 @ 12:57 PM EST
The FACTs don't support SCO's case so the close of FACT discovery doesn't apply
to them.

---
TTFN

[ Reply to This | # ]

SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Authored by: Anonymous on Wednesday, February 01 2006 @ 01:13 PM EST
This sounds like one of those reporter statements where the
reporter calls the subject, lets the phone ring once and hangs
up. This is repeated again. Then the reporter states that
despite repeated efforts, no comment was received from the subject.

Seems like SCO likes to leave much out of their statements.

[ Reply to This | # ]

SCO's Last Gasp (in Discovery)
Authored by: grundy on Wednesday, February 01 2006 @ 02:42 PM EST
When IBM served Rule 30(b)(6) subpoenas on the accountants there were detailed
documents that specified the subjects to be discussed; what happened to the
corresponding documents in this instance?

[ Reply to This | # ]

Intel, Oracle and The Open Group, PeopleSoft, SAP, Apple, adobe, and CA
Authored by: blang on Wednesday, February 01 2006 @ 03:40 PM EST
To buy a little extra time.

Whether any of these are relevant doesn't matter.

BSF is at 11th hour, and realize they still don't have a case.

By shooting with a shotgun in the 11th hour, they hope to randomly hit somewhere
that would scare IBM into settling.
And if that fails, the manouver buys them a little extra time digging in the
stuff they already have.

My bet is that SCO does not know what they are looking for, but hope to get
lucky.

Also this smells a bit of Perry Mason. Didn't someone say that last-minute
tactics of this sort is frowned upon by judges?

I imagine if it had been a REAL case, one could conceivably understand a last
big discovery push as the lawyers were tying up the case. And only some small
details from third parties would serve that purpose.

But in this case, we have a misbehaving litigant who has stretched the patience
of the court.

My prediction is that SCO will have to show up in front of Wells or Kimball, and
explain why they suddenly need this. And this time I suspect "my dog ate
the homework" is not going to be a sufficient excuse.

Now to the details:

intel: Could be related to itanium. However, intel and H-P's late delivery of a
marketable itanium chip has nothing to do with IBM. And intel did their best to
deliver. The only reason intel now sells 64bit x86 si because AMD did it.
intels' strategy was to go with IA64, the itanum.

Opengroup: Opengroup is the holder of the Unix TM, and oversees the Unix spec.
It is hard to see how are relevant to the IBM litigation. I could asee them
having a role in SCO vs Novell, but not SCO vs IBM. It would not surprise me the
least that BSF is incompetent enough to mix the cases up.

Oracle: Beats me. Oracle is available on Openserver. Oracle is available on
Linux. Oracle is a partner and competitor to IBM. Oracle had once announced
linux as primary platform, but recently announced they were moving to Solaris as
main platform. Still, it is hard to see how it has anything to do with IBM.

[ Reply to This | # ]

Pamela's first sentence
Authored by: Nick_UK on Wednesday, February 01 2006 @ 04:10 PM EST
"SCO has become addicted to discovery, I gather."

I think after all this time, with no evidence, even IANAL
can now deduce they are still looking for something.

SCO put the SCO in diSCOvery. A great (and clever way) to
go down in history.

Nick

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Could this be what the phone conference on 1/26 was about?
Authored by: Anonymous on Wednesday, February 01 2006 @ 04:31 PM EST
there was a phone conference on 1/26 regarding the deposition of 3 companies
see:

href="http://www.groklaw.net/article.php?story=20060126125812788">

could this
be the motion practice associated with this phone conference? The timing would
be consistent.

[ Reply to This | # ]

A lot of questions, pardon my ignorance
Authored by: blang on Wednesday, February 01 2006 @ 04:37 PM EST
"Since this all went down on the 27th, it's possible that the subpoenaed
companies moved for a protective order in their respective jurisdictions but
SCO's lawyers haven't received the motions yet. (Service by mail is still
proper.)"

What are the rules with courts?
Is it good enough having a document postmarked the same day as the deadline, or
is it supposed to be in the hands of the receiver by that date?

Is it soon enough to drop it in the mailbox the same day, and get it postmarked
the next day?

And another one: If SCO expected to need some extra discovery close to th
edeadline, would not the proper action be to ask the court for leave, say a 1
week extention of the deadline?

Why do it in the last minute and risk not gettin it at all?

Based on this, I expect the intel/Oracle/Opengroup etc. discovery is of hardly
any urgency at all.

Also, does defense and attack play a role?

Did SCO originally intend to depose these for their defense, but IBM never gave
them the kind of softball that would have implicated these parties, and now have
to use them for attack in stead?

Did SCO fail to depose these companies earlier, in order to hide their
intentions?

And if so, does that leave IBM an extra out for an appeal, if against all odds a
jury is duped into voting for SCO?

It all just makes no sense. Occam's razor, and all the facts we have seen tells
me that SCO's goose already was cooked, and is now starting to resemble gelatin.


Bon apetit!

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Mortal peril....
Authored by: Latesigner on Wednesday, February 01 2006 @ 05:10 PM EST
IBMs' counter claims will destroy SCO, their only hope is to hang on and hope
the PIPE fairy comes through.
It seems these guys won't get time in Cub Fed(Whether or not they should is
another point)but it wouldn't surprise me to hear that personal bankruptacy was
a hazzard.
No, these guys have every reason to want to keep this going.
It's hard to get out, intact, when a scam goes wrong.

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

[ Reply to This | # ]

Prosecution, Litigation, & Transaction IP Attorney
Authored by: Anonymous on Wednesday, February 01 2006 @ 05:13 PM EST
Could some of the more legal minded types explain what the difference between
prosecution attorneys, litigation attorneys and transactions attorneys and what
it is that they do in front of the Patten and Trademark Board. Thanks

[ Reply to This | # ]

Nitpicking, but ...
Authored by: Steve Martin on Wednesday, February 01 2006 @ 05:29 PM EST

Pursuant to Rule 26 of the Federal Rules of Civil Procedure, Plantiff The SCO Group, Incorporated ("SCO"), requests the Court to grant SCO leave to take certain prospective depositions of Intel Corporation ("Intel"), the Open Group, Incorporated ("The Open Group") and Oracle Corporation ("Oracle").

Okay, I know I'm nitpicking here, but from what I can see on the Web, The Open Group is not a corporation. They list themselves on the Patent and Trademark Office Website as an LLC (a Limited Liability Company), and not a corporate entity. Nor do they refer to themselves on www.opengroup.org as "The Open Group, Incorporated" (at least not that I could find); they call themselves a "consortium" and never a "corporation". Could this be a flaw in TSG's subpoena to The Open Group? Remember that they sued DaimlerChrysler under the wrong corporate name, at the wrong address. This is not as serious as that, but it certainly brings DC to mind.

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

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SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Authored by: Anonymous on Wednesday, February 01 2006 @ 06:06 PM EST
Okay here's my take on this

They sue everyone, then have all the other cases put on hold pending the outcome
of the IBM case, (ie:all other cases remain on hold) (no losses).

Now that the IBM case is coming to a close, (they found nothing) they try to put
the IBM case on hold pending the outcome of the Novell case, which is just
starting up, thus they extend the litigation for another few years. Just doing
what they were paid to do(stall for time). Just like stepping stones.

Leave no stepping stone unturned.
Gunillablue



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How Tibbetts Works
Authored by: Anonymous on Wednesday, February 01 2006 @ 07:03 PM EST
I remember reading an article (can't find it now) written by Tibbetts on how to
use discovery to win your case. He said that's how they (Canopy) won against
Microsoft and Computer Associates (as Center 7).

Guess who the local lawyer is at Canopy/SCO?

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Head scratching
Authored by: Anonymous on Thursday, February 02 2006 @ 03:31 AM EST
Three depositions on the same day; depositions scheduled for the last possible
day; all three, to major reputable organisations, seemingly ignored ...

OK, maybe there will be a logical explanation, but it all seems very odd. The
suspicion that SCO is attempting some strange legal manoeuvre is hard to
resist.

Does anyone have a logical explanation?

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IIRC
Authored by: inode_buddha on Thursday, February 02 2006 @ 10:41 AM EST
IIRC all of the companies mentioned had some part to play in Monterey.

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

Oracle's quashing motion, on SCOfacts
Authored by: _Arthur on Friday, February 03 2006 @ 09:29 AM EST
http://scofacts.org/Oracle-subpoena-1.pdf

The SCO Goup inc is identified as a Michigan corporation, no way to tell if the

error is Oracle's or SCO's.

As expected SCO subpoena is defective, invalid, null and void in so many ways
that its becomes a textbook example how not to write a subpoena.

[ Reply to This | # ]

SCO's Last Gasp in Discovery: Wants to Depose Intel, Oracle and The Open Group
Authored by: mobrien_12 on Friday, February 03 2006 @ 01:26 PM EST
I can't figure out why they wan't to depose these three entities anyway.

[ Reply to This | # ]

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