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A Red Hat Teleconference - Judge Asks, What's Taking So Long?
Monday, March 27 2006 @ 11:00 PM EST

Here's the transcript of a January 24 teleconference between the parties in Red Hat v. SCO and Judge Sue Robinson, the judge assigned to the case. If it ever gets off the runway.

To those of you who wondered if it is normal for a lawsuit to take as long as SCO v. IBM has, the answer is no. This is not normal. The proof is in this transcript, where the judge herself remarks on her surprise it is taking so long to get to trial. When she stayed the case, she indicates, she figured it'd be over by now. She calls the pace of the litigation glacially slow, as a matter of fact.

And that's about all she knows about the case. You'll see why Red Hat doesn't much fuss over reports they send her now. This judge doesn't have this case on her front burner. And she doesn't have the file before her.

She doesn't remember how the case got stayed (she stayed it herself sua sponte, meaning it was her own idea), and she doesn't remember if anyone was unhappy about the stay, so she doesn't recall that Red Hat filed a request for her to reconsider and she turned them down a full year and a day later, speaking of glacial. No wonder Red Hat is in no particular rush any more to go before this judge. Of course, if the case was immediately before her, I'm sure Judge Robinson would give it more attention than she is now, but it's still a bit unsettling to read how little this judge is paying attention.

She called the teleconference to ask the parties what is taking so long, and first the SCO attorney dances as fast as he can, telling her how Judge Kimball is holding them tightly to the schedule and malarky like that, not mentioning all the delays SCO has asked for and gotten, and then when she gives Red Hat a chance to express a desire for more speed, Red Hat declines to do so, saying, in effect, having waited two years, they feel a bit differently now than at the beginning when they opposed the stay. After waiting two years, at this point it is easier to let IBM haul the water up the hill on its own broad shoulders. That should make it easy for this judge to get it, even if she never pays close attention.

I'd expect that Red Hat felt in this teleconference the way you would if you called the doctor telling him you were having chest pains and he greeted you when you walked in by saying, "So, I hear you have a problem with a hangnail." It doesn't inspire confidence as to the future.

She ends by telling the parties that if the trial gets put off even one week, she wants someone to tell her, and then she'll ramp it up in Delaware.

If she remembers what she said, they were probably thinking. I long ago concluded that they need more judges in Delaware.

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

IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF DELAWARE

_____________

RED HAT INC.,

Plaintiff,

vs.

THE SCO GROUP,

Defendant

________

CIVIL ACTION

NO. 03-772 (SLR)

_________

Wilmington, Delaware
Tuesday, January 24, 2006
10:05 o'clock, a.m.
*** Telephone Conference

BEFORE: HONORABLE SUE L. ROBINSON, Chief Judge

________

APPEARANCES:

YOUNG CONAWAY STARGATT & TAYLOR, LLP
BY: JOSY W. INGERSOLL, ESQ.

-and-

WILMER CUTLER PICKERING HALE AND DORR
BY: MARK G. MATUSCHAK, ESQ. and
MICHELLE D. MILLER, ESQ.
(Boston, Massachusetts)

Counsel for Plaintiff

Valerie J. Gunning
Official Court Reporter

APPEARANCES (Continued):

MORRIS, NICHOLS, ARSHT & TUNNELL.
BY: JACK B. BLUMENFELD, ESQ.

-and-

BOIES, SCHILLER & FLEXNER
BY: MAURICIO GONZALEZ, ESQ.
(Miami, Florida)

Counsel for Defendant

___________

PROCEEDINGS

(REPORTER'S NOTE: The following telephone telephone conference was held in chambers beginning at 10:05 a. m.)

THE COURT: Good morning, counsel. This is Judge Robinson and Valerie is here as our court reporter. As always, it would be helpful if you identified yourselves by name each time you spoke so that our record is clear.

The reason I -- I wanted to get you all on the line, I've been getting your status reports. It wouldn't appear as though the case is moving very quickly. In fact,

2

glacial might be the name for it. And I think I had put our case here, I had stayed it because I had an expectation that the case out West would be moving more quickly and that it made more sense for us to wait. But I'm getting a little concerned because the case has been around. It's a '03 case and we're now into '06.

So could someone fill me in on what's factually happening out there and whether there's any expectation that you are going to get to trial and a resolution within the next, I don't know, whatever.

When is it scheduled to happen here?

MR. GONZALEZ: Your Honor, this is Mauricio Gonzalez for the SCO Group.

According to the scheduling order that's now in effect, we're scheduled to go to trial in February 2007, and Judge Kimball has been pretty, pretty solid in keeping us to that schedule, so from our point of view, we would expect to go to trial on that date, barring any other unusual occurrences, of course.

THE COURT: All right. And I can't recall, it has been long enough, whether this was a contested stay or whether there's someone who's not particularly happy with the fact this case is moving so slowly.

MR. MATUSCHAK: Your Honor, it's Mark Matuschak for Red Hat.

3

Initially, I think the Court ordered the stay sua sponte and we did it on behalf of Red Hat. As the Court indicated, that was a couple years ago, I believe, had opposed the entry of the stay. You know, we're in a slightly different position I think today since we're two years down the path, waiting for the IBM case to resolve.

MR. GONZALEZ: Did somebody --

MR. MATUSCHAK: No. We're still here.

THE COURT: All right. I guess I just wanted to make sure that you all were confident that this case was going to resolve. I mean, we're still more than a year a from a trial date.

MR. GONZALEZ: Your Honor, Mauricio Gonzalez again.

THE COURT: Yes?

MR. GONZALEZ: Our fact discovery deadline on our claims is this Friday, and then we have a March discovery deadline in the IBM case on defenses to claims. And then the Court contemplates that in July we would have dispositive motions and then again in February would be the trial, and the Court has really, you know, gone out of its way to prevent anything that would delay that schedule, so, again, we've come a long way and I think now that we really have the trial in sight, I think it makes sense to keep things as they've been with the Red Hat case.

4

THE COURT: All right all right. Well, I'm willing to stay the course, but if that trial date gets moved even a week, someone needs to let me know, and I'm going to ramp this thing up because this is an old case that I get to report to Washington because I've got an old case on my docket.

MR. GONZALEZ: Sure.

THE COURT: And that never makes me happy when I've got matters to report that I have no control over.

MR. GONZALEZ: Sure.

THE COURT: All right. All right. Thank you very much for your time, counsel. Good-bye now.

(Counsel respond, "Thank you, your Honor.")

(Telephone conference concluded at 10:12 a.m.)

______________

[Certification of court reporter.]

5

  


A Red Hat Teleconference - Judge Asks, What's Taking So Long? | 321 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here Please
Authored by: AntiFUD on Monday, March 27 2006 @ 11:10 PM EST

There is a 'geet' to report to Washington ... get it!

---
IANAL - But IAAAMotFSF - Free to Fight FUD

[ Reply to This | # ]

Off Topic Hereinafter and Below Please
Authored by: AntiFUD on Monday, March 27 2006 @ 11:14 PM EST

No comment. [this space intentionally left blank]

---
IANAL - But IAAAMotFSF - Free to Fight FUD

[ Reply to This | # ]

Holy cow.
Authored by: Anonymous on Monday, March 27 2006 @ 11:43 PM EST
The more I hang out over here the more I am disgusted with the so-called
American justice system.

I guess law is like sausage. You should never see it being made.

I am shocked at how sloppy, incompetent and easily duped our judges are. Simply
shocked. I would have never in a thousand years guessed at the level of
incompetence and indefference to justice shown by the judges in these cases.

[ Reply to This | # ]

SCO is in an interesting position now
Authored by: jbb on Tuesday, March 28 2006 @ 12:08 AM EST
If they delay the IBM court case for even one week then it triggers the start of the Red Hat case. The walls are slowing closing in on SCO in a torture chamber they built for themselves.

Time to strap on the golden 'chute and have a nice long vacation in a country that does not have an extradition treaty with the USA.

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

[ Reply to This | # ]

Judge screwed up?
Authored by: pajamian on Tuesday, March 28 2006 @ 12:29 AM EST

THE COURT: All right all right. Well, I'm willing to stay the course, but if that trial date gets moved even a week, someone needs to let me know, and I'm going to ramp this thing up because this is an old case that I get to report to Washington because I've got an old case on my docket.

This sounds to me like the Judge has to make some sort of report to her superiors in Washington (DC?) because this case on her docket is so old and still unresolved. I think maybe she called this conference because she screwed up and now is going to take a fall for it with her superiors so she's looking for some answers and someone else to blame.

THE COURT: And that never makes me happy when I've got matters to report that I have no control over.

Of course she's not happy, but I don't think she had no control over this. She ordered the stay and then dropped the ball completely after that to the point that Red Hat has all but given up on getting any kind of justice from her.

This is just my take on it and IANAL, nor am I involved in the legal system in the USA or any other country so I could easily be wrong.

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

[ Reply to This | # ]

control... or lack thereof...
Authored by: Jimbob0i0 on Tuesday, March 28 2006 @ 01:22 AM EST
THE COURT: And that never makes me happy when I've got matters to report that I have no control over.

And that line says it all folks. How do you think RedHat felt all that time ago when she decided to delay and ask for status reports every quarter (or thereabouts)? Every RedHat report has begun (to paraphrase):

...we are not a party to the suit in progress but are merely filing our report based upon the public record of the case...

Things have come full circle it seems and the judge is starting (at last) to get a taste of what it feels like (for RedHat) to be at SCO's mercy... uh I mean determination... to meet their own schedules rather than any court's schedule.

[ Reply to This | # ]

I like this quote though.
Authored by: Anonymous on Tuesday, March 28 2006 @ 03:59 AM EST
"...and whether there's any expectation that you are going to get to trial
and a resolution within the next, I don't know, whatever."

Wouldn't we all like to know?

[ Reply to This | # ]

PROCEEDINGS
Authored by: DaveJakeman on Tuesday, March 28 2006 @ 04:50 AM EST
(REPORTER'S NOTE: The following telephone telephone conference was not held in
chambers beginning at 10:05 a.m.)

THE COURT: Good morning, counsel. This is Judge Robinson and Valerie is here as
our court reporter. As always, it would be helpful if you identified yourselves
by name each time you spoke so that our record is clear.

(Ah, thank you - my coffee, at last. Gulp.)

The reason I - (Gaaah! There's no sugar in my coffee! Yerk!) - I wanted to get
you all on the line, I've been getting your status reports. It wouldn't appear
as though the case is moving very quickly. In fact, glacial might be the name
for it. And I think I had put our case here, I had stayed it because I had an
expectation that the case out West would be moving more quickly and that it made
more sense for us to wait. But I'm getting a little concerned because the case
has been around. It's a '03 case and we're now into '06.

(Sugar!!!)

So could someone fill me in on what's factually happening out there and whether
there's any expectation that you are going to get to trial and a resolution
within the next, I don't know, whatever.

(Yeah, whatever, who cares? Sugar! Must... have... sugar...!!!)

When is it scheduled to happen here?

(Lucky I keep some in my top drawer. Where is it?)

MR. GONZALEZ: Your Honor, this is Mauricio Gonzalez for the SCO Group.

According to the scheduling order that's now in effect, we're scheduled to go to
trial in February 2007, and Judge Kimball has been pretty, pretty solid in
keeping us to that schedule, so from our point of view, we would expect to go to
trial on that date, barring any other unusual occurrences, of course.

(Heh, methinks SCO itself is a pretty unusual occurrence, don't I think? Yeah,
there might just be the odd "unusual occurrence" happening sometime
between now and then. Double heh. Heh heh.)

"THE COURT: All right. And I can't recall, it has been long enough, whether
this was a contested stay or whether there's someone who's not particularly
happy with the fact this case is moving so slowly.

(It's in here somewhere, I'm sure. Where did I put it? Can't remember...)

MR. MATUSCHAK: Your Honor, it's Mark Matuschak for Red Hat.

Initially, I think the Court ordered the stay sua sponte and we did it on behalf
of Red Hat. As the Court indicated, that was a couple years ago, I believe, had
opposed the entry of the stay. You know, we're in a slightly different position
I think today since we're two years down the path, waiting for the IBM case to
resolve.

(Jeez, you mean you've stayed it all this time and you don't even know we
contested it??? You don't know we were unhappy about it??? This is enough to
make me...)

MR. GONZALEZ: Did somebody --

(Break wind?)

MR. MATUSCHAK: No (er, an excuse, quick: "It wasn't me?" [no, that
would imply it was Her Honor]; er, "That was my squeaky chair?" no,
too realistic; I know - a disconnect). We're still here.

(Couldn't help it. Just too blown away. Always does that to me. Still can't
believe it!!!)

THE COURT: All right. I guess I just wanted to make sure that you all were
confident that this case was going to resolve. I mean, we're still more than a
year a from a trial date.

(Phew. [Blush])

MR. GONZALEZ: Your Honor, Mauricio Gonzalez again.

THE COURT: Yes?

(Drat and double drat! Where's the sugar? Who's been in my top drawer?)

MR. GONZALEZ: Our fact discovery deadline on our claims is this Friday, and then
we have a March discovery deadline in the IBM case on defenses to claims. And
then the Court contemplates that in July we would have dispositive motions and
then again in February would be the trial, and the Court has really, you know,
gone out of its way to prevent anything that would delay that schedule, so,
again, we've come a long way and I think now that we really have the trial in
sight, I think it makes sense to keep things as they've been with the Red Hat
case.

(Ohhhhh, such fancy footwork. So smooooth. Dave will be proud of me. And
triple bonus points if it works. Fingers crossed. Heh.)

THE COURT: All right all right. Well, I'm willing to stay the course, but if
that trial date gets moved even a week, someone needs to let me know, and I'm
going to ramp this thing up because this is an old case that I get to report to
Washington because I've got an old case on my docket.

(And it makes me look bad, having cases in my docket that have been sitting
around for years. It looks like I'm not taking an interest in my cases! Now
where has that sugar got to? Who's had it? I'm gonna sue the pants off them
when I catch them!!!)

MR. GONZALEZ: Sure.

(She took it! Yay!!! Yeah, sure thing babe, you wouldn't want Washington to
get all upset now, would you? And if it's delayed by even a week you'll be the
first to know. Heh.)

THE COURT: And that never makes me happy when I've got matters to report that I
have no control over.

(Heck no, that would never do, would it? Heh.)

MR. GONZALEZ: Sure.

(Yeah, right. Heh.)

THE COURT: All right. All right. Thank you very much for your time, counsel.
Good-bye now.

(Counsel respond, "Thank you, your Honor.")

(Kowtow, kowtow. Heh.)


---
SCO: hunting for snarks in an ocean of sharks
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

[ Reply to This | # ]

If your judges are as old
Authored by: Anonymous on Tuesday, March 28 2006 @ 07:29 AM EST
... as ours in the UK, senility would be a concern on a case as prolonged as this. :)
I sometimes think I'll be senile too before this is sorted out.
Where was I?

[ Reply to This | # ]

A Red Hat Teleconference - Judge Asks, What's Taking So Long?
Authored by: Anonymous on Tuesday, March 28 2006 @ 11:21 AM EST

This is appalling. If I went into a meeting as unprepared as this --- not even
remembering what I myself had done --- I would be fired. The judge should be
ashamed.

[ Reply to This | # ]

Win-Win
Authored by: Quila on Tuesday, March 28 2006 @ 11:33 AM EST
SCO is now backed into a corner, with these options:

1) Allow their demise to proceed swiftly in the IBM case, ceasing all delay
tactics.

2) Further delay that demise, but by doing so resurrect the first offensive
lawsuit against them, draining more resources.

Whatever the specifics of this teleconference are, it's a win-win for the good
guys.

[ Reply to This | # ]

Could this have been planned?
Authored by: Reven on Tuesday, March 28 2006 @ 02:06 PM EST
It was pointed out that this puts SCO's maneuvering for delays in a new light.
But perhaps this was the whole point of the exercize. I think it would be
foolish to assume that judges never talk to each other. If you tick off a
judge, you do it at your own peril. I could see Judges Kimball and Wells getting
a little ticked at both the little mini-appeal of Judge Wells' ruling, and at
SCO's little dance trying to work around the deposition deadline. Heck, pick a
motion - any SCO motion, and you'll find cause for indignation. PJ has
suggested this case is being "managed". So, I got to thinking, could
Judge Kimball or Wells (or both) have called up Judge Robinson and had a little
chat with her that went something like this:

Wells: "SCO has been pulling fast ones in my court trying to circumvent my
orders. I could go on for an hour here, but I'm sure you know the drill."
Robinson: "I know. Ok, so what can I do to help?"
Wells: "I'm hoping you can send them a little message. Let them know that
if they do win any sort of delay here, that it will cost them with you."
Robinson: "I think I can manage that."

I could see Judge Robinson's little "was this an opposed stay?" bit
being her acting the blonde. After all, she can't come out and say "I just
got off the phone with Judge Wells", can she? So she has to do a song and
dance about reporting to Washington (which is probably true anyway).

Is this in the realm of possibility? I think it's dangerous of SCO to assume it
isn't. People talk to each other, and what goes around comes around.


---
Ex Turbo Modestum

[ Reply to This | # ]

A Red Hat Teleconference - Judge Asks, What's Taking So Long?
Authored by: Bill The Cat on Tuesday, March 28 2006 @ 03:38 PM EST
Too bad this isn't a criminal situation...

Amendment VI - Right to speedy trial, confrontation of witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

---
Bill Catz

[ Reply to This | # ]

Fishing trip?
Authored by: SpaceLifeForm on Tuesday, March 28 2006 @ 03:39 PM EST
This entire action by the Judge seems staged
for the benefit of various interests (except Plantiff).

In fact, I really don't see that she learned
anything via the teleconference that she didn't
already know or should have known via the reports.

Accordingly, Red Hat really had nothing to say
other than to remind the judge that the delay
was hers.

I think it's telling that Counsel for Plaintiff
did not say anything further in this matter,
such as it could tip off SCOX as to their thinking.

The fact that the conference took seven minutes
to discuss so little leads me to imagine that
there was some pregnant pauses during that time.




---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Dang, lost another keyboard. A Red Hat Teleconference - Judge Asks, What's Taking So Long?
Authored by: Anonymous on Tuesday, March 28 2006 @ 04:47 PM EST
I have to stop having anything to drink while I read Groklaw.

"THE COURT: All right all right. Well, I'm willing to stay the course, but
if that trial date gets moved even a week, someone needs to let me know, and I'm
going to ramp this thing up because this is an old case that I get to report to
Washington because I've got an old case on my docket."

She has to report to Washington and doesn't like having an old case on her
docket, and she stayed it herself, and rejected Redhat's request to lift the
stay.

My guess the only reason Redhat didn't push for a lift of the stay at this
point, is that the more stuff that comes out, the less valid SCOG's claims look,
and it has provided a *LOT* of free publicity for Redhat.

On the other hand, it would have been interesting for Redhat to push at that
point. (Maybe they weren't ready to, more's the pity.) Nothing like having
another front to distract SCOG from resolving their mess.

[ Reply to This | # ]

A Red Hat Teleconference - Judge Asks, What's Taking So Long?
Authored by: LaurenceTux on Tuesday, March 28 2006 @ 05:58 PM EST
a bit of a question what happens if after ibm v TSCOG and or Novell V TSCOG
there is no TSCOG left except a few random skull fragments and a femur? does the
case get filed as "dismissed due to lack of a plantif" and the judge
is done?

[ Reply to This | # ]

A Red Hat Teleconference - Judge Asks, What's Taking So Long?
Authored by: Anonymous on Thursday, March 30 2006 @ 09:13 PM EST
Sad. SCO make baseless claim and now, years later one of the Judges in a related
case does not even remember putting it off. I am VERY disapponted in our justice
system.

[ Reply to This | # ]
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