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| IBM Opposes SCO's Motion re Expert Declaration & New Proposed Protective Order |
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Wednesday, April 12 2006 @ 10:01 PM EDT
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Still more on Pacer in SCO v. IBM. Two more documents, or three, depending on how you count: first, IBM strongly opposes SCO's Motion for Leave to to File Declaration of Marc Rochkind [PDF] and second, the parties have stipulated to an Addendum to Protective Order [PDF], so as to protect nonparties' confidential documents from the eyes of all but outside counsel and independent experts. The proposed order is attached to the stipulation and joint motion.
Here's the Pacer docket information:
663 [PDF]
Filed & Entered: 04/12/2006
Motion to Amend/Correct
Docket Text: Stipulated MOTION to Amend/Correct [38] Protective Order filed by Defendant International Business Machines Corporation. (Attachments: # (1) Text of Proposed Order Addendum to Protective Order [PDF])(Sorenson, Amy)
664 [PDF]
Filed & Entered: 04/12/2006
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [661] MOTION for Leave to File Declaration of Marc Rochkind filed by Defendant International Business Machines Corporation. (Sorenson, Amy) IBM's position is that SCO's just looking for another opportunity to make its arguments, that the declaration is essentially a sur-reply."SCO’s attempt to file a declaration just days before the scheduled hearing is not only belated and unjustified, but it is also plainly just an effort to make additional legal arguments." SCO failed to file its allegedly misused materials with sufficient specificity by the deadline. That's IBM's position in the motion, and it's the only issue. SCO filed its list and the boxes of "evidence" with the court. If it wishes to prove IBM wrong about specificity, all it needs to do is pull out something specific from the boxes of evidence or point to it on the list. Trying to fix their failure to file with sufficient specificity by the court's deadline can't be fixed now by bringing up new materials. That's the point of the motion, after all. If it is allowed, IBM says, they'd need a delay. There is no way the court or its expert, Randall Davis, can sufficiently evaluate the expert declaration before Friday's hearing, which is another good reason not to allow it, IBM says. They don't even know if Davis is available. Here's why. SCO told the court it had served its proposed declaration on IBM on Monday, but as of IBM's time of filing its opposition on Wednesday, it had not received anything from SCO about it. The first IBM learned of it was today, Wednesday, when the court notified IBM. That means IBM wrote this opposition the very same day and filed it lickety split. You're supposed to have more time than that to respond to a motion. Lawyers can serve each other once they have all appeared several ways, depending on the court rules. We've seen email and snail mail and fax and personal service in this litigation. If SCO had chosen to send the declaration by either email, fax, or personal service, it would have arrived long before Wednesday, obviously, in the normal course of events. In other words, IBM is letting the court know that SCO appears to have deliberately chosen the slowest method possible, to give IBM the least amount of time to evaluate the materials or respond to the motion. Sad to say, but I've seen this happen in other litigation. It's one of the more common tricks of the trade, you might say. But it can cost you if you get called on it, court rules assuming gentlemanly behavior and all, and here IBM is calling SCO on it and letting the court know exactly what's been going on. ******************************
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax] Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
---------------------------
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.
----------------------------
IBM’S MEMORANDUM IN
OPPOSITION TO SCO’S MOTION FOR
LEAVE TO FILE DECLARATION OF
MARC ROCHKIND
Civil No.: 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
----------------------------
Argument
IBM respectfully submits this memorandum in opposition to SCO’s motion for leave to file the Declaration of Marc Rochkind in connection with IBM’s motion to limit the scope of SCO’s claims. SCO seeks to file a sur-reply declaration in opposition to IBM’s preclusion motion purportedly on the grounds that it did not know IBM would submit a declaration from Professor Davis with IBM’s reply papers. However, the only reason IBM submitted a declaration from Professor Davis was to rebut SCO’s assertions (in its opposition papers) that SCO provided the specificity required by the Court. If SCO had wanted to substantiate its assertions of compliance, the time for doing so was when it submitted its opposition brief. There is absolutely no reason it could not have submitted a declaration then. Indeed, it should have known IBM would submit a declaration to rebut any false assertions of compliance.
SCO’s attempt to file a declaration just days before the scheduled hearing is not only belated and unjustified, but it is also plainly just an effort to make additional legal arguments. If SCO believes Professor Davis erred in his analysis, it can point the Court to the information which IBM contends is missing at the hearing. After all, the primary purpose of Professor Davis’ declaration was simply to confirm that SCO did not provide the specific information it was required to provide. Moreover, SCO provided the Court with a copy of its Final Disclosures. It does not need a declaration to show the Court what they say. It can show them to the Court at Friday’s hearing. SCO should not be allowed to use an untimely declaration to seek to justify its non-compliance with the Court’s orders.
Allowing SCO to submit a belated, sur-reply declaration likely would necessitate further delay, which would itself be unjustified. Neither the Court nor IBM should be required to evaluate an expert submission in less than 48 hours. Although SCO claims to have served IBM
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with its motion on Monday, as of this filing IBM has received nothing from SCO on this score. SCO’s filing came to IBM’s attention for the first time today when its counsel received a notice from the Court. Moreover, if a SCO declaration were allowed (and, respectfully, it should not be), IBM and Professor Davis would need a fair opportunity to respond. That would obviously require more than a few days, assuming Professor Davis is even available. For these reasons, we respectfully submit that SCO’s motion to file a sur-reply declaration be denied.
DATED this 12th day of April, 2006.
Snell & Wilmer L.L.P.
/s/Amy F. Sorenson
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Of Counsel:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Alec S. Berman
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
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CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of April, 2006, a true and correct copy of the foregoing was sent to the following by U.S. Mail:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
/s/Amy F. Sorenson
4
******************************
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax] Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
---------------------------
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.
----------------------------
STIPULATION AND JOINT MOTION
FOR AN ADDENDUM TO THE
PROTECTIVE ORDER
Civil No.: 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
----------------------------
The parties, by and through their counsel of record, hereby stipulate and jointly move the Court as follows: 1. On September 15, 2003, The SCO Group, Inc. (“SCO”) and International Business Machines Corporation (“IBM”) agreed to the terms of a stipulated protective order (the “Protective Order”). 2. In the course of fact discovery in this action, certain non-parties have objected to the production of documents on the ground that the Protective Order contains no mechanism to limit access to certain documents which they describe as highly confidential to the parties’ outside counsel and independent experts only. 3. In order to resolve this objection, and to allow for the timely production of such documents by non-parties, counsel for SCO and IBM have agreed that the Protective Order should be amended to provide for the designation and production by non-parties, where appropriate, of such documents as “HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY”. 4. Accordingly, the parties hereby stipulate and agree that the Protective Order should be amended as follows: If, in the course of this action, a disclosing non-party discloses information that, in accordance with Federal Rule of Civil Procedure 26(c)(7), the disclosing non-party in good faith contends should not be disclosed to in-house counsel, in-house representatives or in-house experts otherwise entitled to view confidential information pursuant to this Protective Order, such disclosing non-party may designate such information as “HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY”. Information so designated by a non-party may not be disclosed to a party’s in-house counsel, in-house experts, or any of its officers, directors, or employees. HIGHLY CONFIDENTIAL information shall be governed by the Protective Order and used only for the purposes of this action and not for any other purpose or
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function, including without limitation any business, patent prosecution, competitive or governmental purpose or function. No person who prosecutes patents relating to the technology claimed in any patents in suit shall have access to HIGHLY CONFIDENTIAL information. 5. Filing under seal; notice of challenge to designation. If any information produced by a non-party and designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL is filed with the Clerk of the Court in this litigation, information so designated shall be filed under seal in accordance with the provisions of Paragraph 6 of the Protective Order. If any party or non-party files a motion challenging the CONFIDENTIAL or HIGHLY CONFIDENTIAL designation of information produced by a non-party and filed with the Court, the party responsible for filing the information designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL with the Court shall provide notice to the producing non-party of such challenge. 6. Notice of use of non-party materials in open court. In order to provide a producing non-party with an opportunity to seek protection against public disclosure, if a party wishes to introduce into evidence on direct examination any document produced by a non-party and designated CONFIDENTIAL or HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, the party shall provide five days prior notice of that intent to the producing non-party by email, telephone or facsimile. If a party intends to use such a document produced by a non-party for purposes of cross-examination, it shall provide five days prior notice of that intent to the extent practicable, and if such notice is not practicable, shall provide as much prior notice of such intent as is practicable, also by email, telephone, or facsimile. 7. All other provisions of the Protective Order shall remain in full force and effect. The parties respectfully request that the Court enter an Addendum to the Protective Order reflecting the foregoing in the form submitted herewith.
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DATED this 12th day of April, 2006.
Snell & Wilmer L.L.P.
/s/Amy F. Sorenson
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
DATED this 12th day of April, 2006.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
By: /s/Brent O. Hatch
Counsel for Plaintiff
(signed copy of document bearing signature of Brent O.
Hatch is being maintained in the office of Snell &
Wilmer)
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CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of April, 2006, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
/s/Amy F. Sorenson
5
******************************
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax] Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
---------------------------
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.
----------------------------
[PROPOSED]
ADDENDUM TO PROTECTIVE ORDER
Civil No.: 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
----------------------------
On September 15, 2003, The SCO Group, Inc. (“SCO”) and International Business Machines Corporation (“IBM”) agreed to the terms of a stipulated protective order (the “Protective Order”).
In the course of fact discovery in this action, certain non-parties have objected to the production of documents on the ground that the Protective Order contains no mechanism to limit access to certain documents which they describe as highly confidential to the parties’ outside counsel and independent experts only. In order to resolve this objection, and to allow for the timely production of such documents by non-parties, counsel for SCO and IBM have agreed that the Protective Order should be amended to provide for the designation and production by nonparties, where appropriate, of such documents as “HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY”.
Based upon the stipulation of the parties, and good cause appearing therefore, IT IS HEREBY ORDERED that the Protective Order is amended only as follows: 1. If, in the course of this action, a disclosing non-party discloses information that, in accordance with Federal Rule of Civil Procedure 26(c)(7), the disclosing non-party in good faith contends should not be disclosed to in-house counsel, in-house representatives or in-house experts otherwise entitled to view confidential information pursuant to this Protective Order, such disclosing non-party may designate such information as “HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY”. Information so designated by a non-party may not be disclosed to a party’s in-house counsel, in-house experts, or any of its officers, directors, or employees. HIGHLY CONFIDENTIAL information shall be governed by the Protective Order and used only for the purposes of this action and not for any other purpose or function, including without limitation any business, patent prosecution, competitive or governmental purpose or function.
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No person who prosecutes patents relating to the technology claimed in any patents in suit shall have access to HIGHLY CONFIDENTIAL information.
2. If any information produced by a non-party and designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL is filed with the Clerk of the Court in this litigation, information so designated shall be filed under seal in accordance with the provisions of Paragraph 6 of the Protective Order. If any party or non-party files a motion challenging the CONFIDENTIAL or HIGHLY CONFIDENTIAL designation of information produced by a non-party and filed with the Court, the party responsible for filing the information designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL with the Court shall provide notice to the producing non-party of such challenge.
3. In order to provide a producing non-party with an opportunity to seek protection against public disclosure, if a party wishes to introduce into evidence on direct examination any document produced by a non-party and designated CONFIDENTIAL or HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, the party shall provide five days prior notice of that intent to the producing non-party by telephone, email, or facsimile. If a party intends to use such a document produced by a non-party for purposes of cross-examination, it shall provide five days prior notice of that intent to the extent practicable, and if such notice is not practicable, shall provide as much prior notice of such intent as is practicable, also by telephone, email, or facsimile.
DATED this ____ day of April, 2006.
BY THE COURT
____________________________
United States District Court
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APPROVED AS TO FORM AND CONTENT:
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
By /s/Brent O. Hatch
Counsel for Plaintiff/Counterclaim-Defendant
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CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of April, 2006, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
/s/Amy F. Sorenson
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| Authored by: Trollsfire on Wednesday, April 12 2006 @ 10:09 PM EDT |
If you find any.
--Trollsfire [ Reply to This | # ]
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| Authored by: The Mad Hatter r on Wednesday, April 12 2006 @ 10:19 PM EDT |
And don't forget the Clickable Links.
---
Wayne
http://urbanterrorist.blogspot.com/
[ Reply to This | # ]
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- Well OT - As we were talking about lights the other day - Authored by: Tufty on Wednesday, April 12 2006 @ 11:28 PM EDT
- Rob "Wrong Again" Enderle Peers Into Apple's Windows Future - Authored by: Anonymous on Thursday, April 13 2006 @ 12:39 AM EDT
- bad news = stock jump - Authored by: troll on Thursday, April 13 2006 @ 02:25 AM EDT
- Australian Spammer has decision go against him - Authored by: Crocodile_Dundee on Thursday, April 13 2006 @ 02:29 AM EDT
- PIPE Fairy??? - Authored by: Anonymous on Thursday, April 13 2006 @ 03:46 AM EDT
- Linux: The Gray Borders of the GPL - Authored by: Winter on Thursday, April 13 2006 @ 04:03 AM EDT
- Rockers off their rockers ... demanding copyright extension in Europe - Authored by: Anonymous on Thursday, April 13 2006 @ 11:45 AM EDT
- Finally (and it is really about time!)...... - Authored by: tiger99 on Thursday, April 13 2006 @ 11:58 AM EDT
- SCO Group Strives to Remake Itself as Lawsuit Woes Linger - Authored by: DannyB on Thursday, April 13 2006 @ 01:31 PM EDT
- The scary part - Authored by: Anonymous on Thursday, April 13 2006 @ 02:21 PM EDT
- Google Voice Search Patent - Authored by: yellowsnow314159 on Thursday, April 13 2006 @ 01:58 PM EDT
- OpenSuse 10.1 RC is out - Authored by: Anonymous on Thursday, April 13 2006 @ 11:07 PM EDT
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| Authored by: The Mad Hatter r on Wednesday, April 12 2006 @ 10:27 PM EDT |
That has got to be the most interesting part of the filing. I can understand why
the Nazgul sound a wee bit upset.
---
Wayne
http://urbanterrorist.blogspot.com/
[ Reply to This | # ]
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| Authored by: Brian S. on Wednesday, April 12 2006 @ 10:36 PM EDT |
that lawyer firms don't make?
Just like the faulty subpoenas to Intel and
the others.
Regardless of the quality of the evidence, it is unreasonable
notice.
IBM just had to say "This is the first we've heard of it!".
IMHO
BSF are willing to concede this arguement.
The time has been pulled forward
to 11AM.
Does the court recognise they may have to put up with some lawyerly
protestations from people who can't answer the question - "Why have you
attempted to by-pass all reasonable procededure?" "Don't you know how to
lawyer?" The extra time will allow them to move on "after lunch"?
Or has
someone important got an afternoon game of golf? Is it Spring in Utah
yet?
Brian S.
[ Reply to This | # ]
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| Authored by: ExcludedMiddle on Thursday, April 13 2006 @ 12:39 AM EDT |
Now we finally get to see if the court will stop giving SCO leeway. Until now,
they seem to get just about anything they ask for. At this point, a rejection of
this particular motion seems unlikely to be actionable on appeal. I believe that
this is the reason for the earlier leeway. If this is allowed to stand, it's
entirely unfair to IBM.
The good news is that they must be realizing that their opposition brief was
probably not sufficient. Only that thought would prompt them to try something
like this, as I assume that games like these could really cause the ire of the
judge right before a critical hearing like this one.
I just can't wait for the hearing. As I've said prior, this is finally a time
where the court can do something definitive to limit the scope of the case. I
hope that the judge makes the right decision. Based on the arguments we've seen,
it should be an obvious choice.
[ Reply to This | # ]
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| Authored by: webster on Thursday, April 13 2006 @ 01:16 AM EDT |
1. So IBM only knows of this Motion because they stumbled upon it. If it
doesn't come in the mail tomorrow, let's hope it comes before 11 AM Friday.
Clearly BSF doesn't consider this a mistake or discourteous. They want the word
to get out that they will fight dirty for their clients. If you won't settle,
you will pay a price. What they lack in substance they make up in attitude y
cujones.
2. The SCO expert was for cosmetic purposes to counter the IBM expert. They
should have filed his declaration with their opposition. It really doesn't
matter. If he has something to contribute, he can whisper it in Normand's ear,
Silver's too, even if he's napping. Maybe he can point them to some of the
their evidence in their box and note it on IBM's chart of specificity. Maybe he
downloaded that nice color coded chart off GL and referenced some of their
specific evidence. Better late than never. I think SCO was counting on him to
persuade Judge Wells that the evidence IBM requires is specifically "in the
box." He copied some of it off the CVVS[?] software hisself. It all
looked like Unix to him, even the stuff in lUnix. He's published this stuff out
in books which are out there and open for all to see, ooops...!
3. Wells should deny SCO this time. After numerous discovery requests, two
motions to compel, an intermim deadline, and a deadline deadline, enough is
enough. If this SCO expert has not helped SCO behind the scenes already to be
more specific, his public declaration isn't going to but anything on the Map to
Specificity. If SCO didn't hire and consult him until after the deadline.....,
that's a reason to deny his declaration with specific haste.
4. I read on this board today a call for a nickname for the Novell lawyers.
How about a nickname for the SCO lawyers? The gang who couldn't shoot straight?
5. God bless meta-data from Word. check this out: "...if a SCO
declaration were allowed (God damn it, and, respectfully, it should not be), IBM
and Professor Davis would need a fair opportunity to respond." IBM is
pulling their punches. That's one of those guilty "respectfullys."*
6. Oh, and by the way, the Judge can't help but be somewhat cognizant of the
Novell arbitration request which might short circuit this case and make all that
has gone heretofore an irrelevant waste of time in a few short months. No
wonder Judges hate to spend time on civil cases. Hours of research, drafting,
argument and consultations can be reversed or nullified by a settlement or a
blindside resolution from an unanticipated source. The time for patience has
passed.
*Item produced under a creative license.
---
webster
[ Reply to This | # ]
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| Authored by: Khym Chanur on Thursday, April 13 2006 @ 01:44 AM EDT |
| ... and second, the parties have stipulated to an addendum to the Protective
Order, so as to protect nonparties' confidential documents from the eyes of all
but outside counsel and independent experts.
Shouldn't something like
this happen automatically, because of the standard rules of the court? Why do
they need to stipulate to it? ---
Give a man a match, and he'll be warm
for a minute, but set him on fire, and he'll be warm for the rest of his life.
(Paraphrased from Terry Pratchett) [ Reply to This | # ]
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| Authored by: stend on Thursday, April 13 2006 @ 02:12 AM EDT |
| Was it inappropriate for IBM to use US Mail to serve their objection? It was
posted promptly on PACER, but would the official service reach SCO's lawyers by
Friday? ---
Please see bio for disclaimer. [ Reply to This | # ]
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| Authored by: argee on Thursday, April 13 2006 @ 02:14 AM EDT |
What the judge could do is not even reply to SCO's
request until AFTER the hearing. Its an untimely
motion, with no request for expedited or emergency
consideration.
---
--
argee[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Thursday, April 13 2006 @ 08:18 AM EDT |
Stupid Lawyer Tricks seem to be part of lawyering and IBM seems to have engaged
in some of its own, in an apparent attempt to limit SCOG's ability to respond to
their motion to exclude the almost 200 items.
When IBM filed their initial motion in February they only included Todd
Shaughnessy's Declaration from May of 2005.
IBM apparently waited for SCOG to Reply before wheeling out the big guns
(Professor Randall Davis) in IBM's Response, limiting SCOG's time to reply. IBM
even got SCOG to agree to give them more time to file their response.
Of course we don't know what SCOG said in their Opposition since it was sealed.
I'm pretty sure IBM had Professor Davis review the material before filing their
motion and based much of it on his (or other experts) analysis.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 13 2006 @ 09:45 AM EDT |
It occurs to me that the Marc Rochkind deposition may have little or nothing
that helps SCO's case, but SCO hopes that the attempt to introduce it will force
a delay in tomorrow's hearing.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 13 2006 @ 09:49 AM EDT |
What's this hearing about?
Since there's some confusion as to what Judge Wells ordered in some comments,
here's the sections from the order.
2. As previously ordered, SCO is to provide and identify all specific lines of
code that IBM is alleged to have contributed to Linux from either AIX or
Dynix. This is to include all lines of code that SCO can identify at this time.
3. SCO is to provide and identify all specific lines of code from Unix System V
from which IBM's contributions from AIX and Dynix are alleged to be derived.
4. SCO is to provide and identify with specificity all lines of code in Linux
that it claims rights to.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 13 2006 @ 09:54 AM EDT |
| I just noticed a difference between Randal Davies testimony and IBM's lawyers
reporting of it.
Davies testimony
IBM-658
While
the final declarations include color-coded illustrations and line-by-line source
comparisons, they either do not do so with regard to any of the 198 items at
issue or the materials provided do little to particularize SCO's
claims.
(My emphasis)
IBM's Reply
Memorandum:
Moreover, while the Final Disclosures include
color coded illustrations and line-by-line source comparisons, they do not do so
with regard to any of the 198 Items at issue, which are utterly lacking in the
requisite particularity.
Probably a slip, but the expert
testimony is not quite as damning as the reply makes out. [ Reply to This | # ]
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| Authored by: tangomike on Thursday, April 13 2006 @ 10:10 AM EDT |
TSCOG's motion to add their expert (#661) filed 04/10
IBM's stipulated change to Protective Order (#663) filed 04/12
So the two legal teams have been in communication enough to stipulate, but TSCOG
chose to send their motion for adding the expert to IBM by snail mail and didn't
mention it to IBM.
Nice.
---
Deja moo - I've heard that bull before.
[ Reply to This | # ]
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- Two Docs - Authored by: Jude on Thursday, April 13 2006 @ 10:18 AM EDT
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| Authored by: AllParadox on Thursday, April 13 2006 @ 10:58 AM EDT |
"Although SCO claims to have served IBM with its motion on Monday, as of
this filing IBM has received nothing from SCO on this score.
SCO’s filing came to IBM’s attention for the first time today when its counsel
received a notice from the Court."
<rant/>
IMHO, this is where U.S. courts lose the most time.
Lawsuits beat the alternative: sawed-off shotguns at ten paces. To have people
use lawsuits, there must be rules. Not just written rules, but enforced rules.
Courts routinely and arbitrarily allow participating lawyers to seriously
violate the rules, by not enforcing the rules.
Here is a very serious example, widely displayed on the world stage.
The cost to the court system comes in several ways.
There is a cost in reduced respect for the law. People think they can commit
crimes and break contracts, and then contribute to the clogged court system, by
hiring a "good" lawyer, e.g. B.S.&F., and get out of the
consequences of their actions. In spite of my own extensive experience, I too,
am beginning to believe this, based on what has been going on in the Utah
courtrooms.
There is a huge cost in increased court and legal expenses. Citizens should now
rightly believe that the majority of the cost of Civil litigation is fruitless
and wasteful malpractice and responses to malpractice. The malpractice is
obvious to anyone who bothers to observe courtroom practices. Judges usually
ignore it. Appellate courts and disciplinary committees ensure that trial
judges ignore it, by punishing those who do not.
Attorney malpractice is effectively unregulated. Contrary to what all the
lawyers say, we can deduce this from the conduct of attorneys. If B.S.&F.
had even an iota of fear of sanctions from the Utah disciplinary committee, this
would not have happened. Even if disciplinary complaints are made against
B.S.&F., the hearing will be held in private, to reduce the embarassment to
the Utah Bar.
The proper response here: anything effective will do. I personally would like
to see counsel do a week in jail for contempt. I doubt that any sanction
against the client, "The SCO Group", would be worthwhile. I have yet
to see anything from them that shows they care anything about proper procedures
or the consequences of attorney misconduct. My strong suspicion is that they
have actively promoted it.
IMHO, this case would have been completely resolved a year ago, without a trial,
if the judges had required "The SCO Group" to follow the rules. I am
not slamming the judges. Judge Kimball and Judge Wells are doing a proper job.
Following the rules would have reduced their workload, though. The Tenth
Circuit appellate court might still get unhappy about proper enforcement.
<end rant/>
---
PJ deletes insult posts, not differences of opinion.
AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.[ Reply to This | # ]
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- Boy, AP is riled. This must really be bad. - Authored by: tangomike on Thursday, April 13 2006 @ 11:06 AM EDT
- Roast - Authored by: Quila on Thursday, April 13 2006 @ 11:09 AM EDT
- Roast - Authored by: Anonymous on Thursday, April 13 2006 @ 12:04 PM EDT
- Roast - Authored by: Anonymous on Thursday, April 13 2006 @ 03:51 PM EDT
- Roast - Authored by: RagnarokNemo on Thursday, April 13 2006 @ 12:09 PM EDT
- Roast - Authored by: stend on Thursday, April 13 2006 @ 12:29 PM EDT
- There is truth in the parent - Authored by: Anonymous on Thursday, April 13 2006 @ 12:44 PM EDT
- Attorney Malpractice - Authored by: rsteinmetz70112 on Thursday, April 13 2006 @ 01:01 PM EDT
- fake tags ... - Authored by: Anonymous on Thursday, April 13 2006 @ 01:34 PM EDT
- Morgendorffer, Van Driessen, McVicker, and Buzzcut LLC - Authored by: Anonymous on Thursday, April 13 2006 @ 03:04 PM EDT
- Not slamming the Judges? - Authored by: Anonymous on Thursday, April 13 2006 @ 08:20 PM EDT
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| Authored by: Quila on Thursday, April 13 2006 @ 10:59 AM EDT |
"If it is allowed, IBM says, they'd need a delay."
Red Hat, get ready for action![ Reply to This | # ]
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| Authored by: jimbudler on Thursday, April 13 2006 @ 11:44 AM EDT |
Don't they usually have the name of the person who sent the papers typed in
below the scribble (signature)?
This one doesn't. And it does say service by mail. But from where? The BSF
office in Outer Mongolia. With insufficient postage?
---
Jim Budler[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 13 2006 @ 01:22 PM EDT |
| The essence of IBM's Motion to Limit SCO's Claims is encapsulated in this
excerpt from their Memorandum in Support of the motion:
"SCO’s failings
regarding the Final Disclosures do not occur on an empty set. They come
following repeated discovery requests by IBM and three separate orders of this
Court. Indeed, they come in derogation of this Court’s orders. The appropriate
remedy for a party’s failure to
comply with an order requiring the disclosure of
the party’s claim is an order precluding the party from pursuing undisclosed
elements of the claim. ... Many courts have held that a party’s claim must be
limited to exclude elements of the claim for which the party has failed to
provide appropriate, court-ordered discovery."
IBM's motion is, then, a
discovery motion, in that it seeks a remedy, pursuant to Fed. R. Civ. P. 37, for
TSCOG's failure to provide discovery. Consequently, SCO's motion is also a
discovery motion, in that it seeks to permit the declaration in opposition to
IBM's discovery motion.
The local rules for the Federal District Court in
Utah provide:
"Unless otherwise ordered, the court will not entertain
any discovery motion, except those motions brought by a person appearing
pro se and those brought under Fed. R. Civ. P. 26(c) by a person who is not a
party, unless counsel for the moving party files with the court, at the
time of filing the motion, a statement showing that the attorney making the
motion has made a reasonable effort to reach agreement with opposing attorneys
on the matters set forth in the motion. Such statement must recite, in
addition, the date, time, and place of such consultation and the names of all
participating parties or attorneys."
DUCivR 37-1(a).
TSCOG failed to
comply with this rule. The court should not even entertain SCO's motion, let
alone grant it. [ Reply to This | # ]
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| Authored by: skidrash on Thursday, April 13 2006 @ 02:18 PM EDT |
I think this below is bad reasoning.
IBM included an expert declaration, so SCO should be allowed to file a
declaration
The only issue in allowing SCO go file another piece of paper should be, Were
any new issues raised in the latest IBM reply?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, April 13 2006 @ 07:55 PM EDT |
My question here is what prompted Marc Rochkind to commit proffesional suicide?
In a single action he has gone from being a respected author (Hey, even I have
his old book, maybe that is why I feel betrayed) to being the most hated person
(after Daryl) in the Open Source AND Unix communities. The money must be good
but can it be THAT good?
And this when he has just published a new book (after a twenty year absence,
love to hear him explain that at trial) "Advanced Unix Programming".
I feel kind of sad for Addison-Wesley - they publish some very good books but
every cent they invested in this one is now lost, sales should go so close to
zero as to be statistically insignificant. Hope they can get their advance
back.
[ Reply to This | # ]
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| Authored by: darkonc on Thursday, April 13 2006 @ 09:39 PM EDT |
| You notice that IBM's reply to SCO's motion was (like SCO's motion) 'served' on
them by (snail) mail just 2 days before oral arguments. ---
Powerful,
committed communication. Touching the jewel within each person and bringing it
to life.. [ Reply to This | # ]
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