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Wells Denies SCO's Motion to Strike
Wednesday, May 10 2006 @ 06:27 PM EDT

Judge Brooke Wells has reached a decision on SCO's Motion to Strike Portions of the Rebuttal Declaration of Randall Davis or for Leave to Respond to the Rebuttal Declaration. Here is her Order [PDF]. She has denied SCO's Motion.

You will recall that at the April 14th hearing IBM was granted the opportunity to respond to SCO's expert, Marc Rochkind. SCO then filed its motion, asking to be able to respond to IBM's rebuttal declaration by Dr. Randall Davis. Judge Wells had told them at the hearing that after IBM's response, that would be the last chapter, but SCO, of course, tried anyway.

There is a good reason why courts make transcripts of oral argument at hearings. It keeps people honest.

In SCO's Memorandum in Support of its Motion to Strike, it said the following:

After IBM submitted a declaration from Davis with its reply, SCO submitted a responsive Declaration of Marc Rochkind. On April 14, 2006, this Court heard argument on IBM’s motion and allowed IBM to submit a responsive declaration from Davis. The Court said the supplemental declaration should respond only to the Rochkind Declaration, and counsel for IBM confirmed. On April 28, IBM submitted a 22-page Davis declaration (much longer than the original Davis declaration and Rochkind Declaration combined) and included numerous new points not addressed in the Rochkind Declaration. These inappropriate arguments should be struck and disregarded, or else SCO should be permitted to respond to them.

Well, not exactly. Here's what happened at the hearing:

THE COURT: All right. What I am going to allow be submitted -- and, Mr. Marriott, I will allow you to submit a supplemental or a responsive declaration on behalf of Dr. Davis. How long will it take to do that?

MR. MARRIOTT: I'll need to check with him, Your Honor. Is ten days agreeable to the Court?

THE COURT: Ten days would be fine. Now, what effect does that have on the remainder of today's motion?

MR. MARRIOTT: In my mind, it has none, Your Honor, because, as I say, I don't think the declaration, taken as true, has any bearing on this motion.

THE COURT: All right.

MR. MARRIOTT: And I'll explain why.

THE COURT: And, Mr. Singer, I'm going to allow them to respond to that, but that's where it's going to be cut off.

MR. SINGER: I understand the Court's ruling, Your Honor. And the only thing I would ask is -- we haven't seen what's going to be said, and if there's new issues raised, we would hope the Court would entertain, at that time --

THE COURT: Well, I'm assuming that they will limit it, in proper surrebuttal fashion, to those issues raised or addressed in your submission. I don't anticipate that that will be an issue, and so, therefore, I'm going to leave it as stated. They will respond, and that will be it.

MR. SINGER: We understand, Your Honor. Thank you.

MR. MARRIOTT: Thank you.

Unless Mr. Singer saying, "We understand," is a confirmation by IBM, I'd say it was SCO that confirmed that it was not to try to respond to Dr. Davis, no matter what. In a nice touch, Judge Wells reminds SCO that at that same April 14th hearing, SCO raised the issue of responding, and it was told that it wouldn't happen:

During the hearing on April 14 this court explicitly told counsel for SCO that it was going to allow IBM an opportunity to respond. But, "that's where it's going to be cut off."

SCO, in other words, complained to her that IBM went beyond what the court said it could do. Well, she replies, in effect, even if that were true, you're doing the same thing, and she'd like to end it right here, right now. She's perfectly capable of filtering out anything inappropriate in a filing, and if she has questions, she will ask.

She thinks that will be the end of it. We'll see.

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

IN THE UNITED STATES DISTRICT COURT

CENTRAL DIVISION, DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim
Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES
CORP.

Defendant/Counterclaim
Plaintiff.

Case No. 2:03cv00294 DAK

ORDER DENYING SCO's MOTION
TO STRIKE

JUDGE DALE A. KIMBALL

MAGISTRATE JUDGE BROOKE C.
WELLS

On April 14, 2006, this court heard oral argument on IBM's Motion to Limit SCO's claims. During the hearing SCO also sought leave to file the Declaration of Marc Rochkind. The court granted SCO's motion and out of a sense of fairness permitted IBM's expert, Randall Davis, an opportunity to respond. Now in an apparent attempt to escalate the expert wars, SCO seeks to either strike Mr. Davis' rebuttal declaration, or in the alternative, be afforded an opportunity to respond to Mr. Davis latest declaration.1

During the hearing on April 14 this court explicitly told counsel for SCO that it was going to allow IBM an opportunity to respond. But, "that's where it's going to be cut off." Counsel

for SCO represented to the court that he understood the court's ruling but, hoped the court would entertain an opportunity to respond if new issues were raised in the rebuttal declaration. While the court appreciates SCO's concern regarding the alleged inclusion of inappropriate issues into the Davis' declaration, the court is fully capable of parsing out those items that are inappropriately included. Moreover, the court foresees that if it were to grant SCO's motion then doubtless, IBM would need an opportunity to respond followed by SCO requesting another opportunity etc. etc. etc. If the court decides it does need further clarification of the current issues concerning IBM's Motion to Limit SCO's claims it will request such clarification from the parties.

Accordingly, SCO's motion is DENIED.

DATED this 10th day of May, 2006.

BY THE COURT:

____[signature]_______
BROOKE C. WELLS
United States Magistrate Judge

1 See Motion, docket no. 676.

2

  


Wells Denies SCO's Motion to Strike | 395 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Wells Denies SCO's Motion to Strike
Authored by: Anonymous on Wednesday, May 10 2006 @ 06:30 PM EDT
1P. Finally, some good news from MJW.

[ Reply to This | # ]

Now there's Irony ;)
Authored by: Anonymous on Wednesday, May 10 2006 @ 06:32 PM EDT

There is a good reason why courts make transcripts of oral argument at hearings. It keeps people honest.
It's amusing to find out Judges automatically presume people being honest when there appears to be so much built into to the system to prevent dishonesty ;)

RAS

[ Reply to This | # ]

Great news!
Authored by: Anonymous on Wednesday, May 10 2006 @ 06:38 PM EDT
Infinite recursion has been avoided, and the (legal) universe is no longer in
danger of exploding.

And that means that we will get a decision on IBM's motion to throw out the 197
elements without any further baloney. (Well, SCO will probably run crying to
Kimball about how Wells is being mean to them. I doubt it will fly.)

MSS2

[ Reply to This | # ]

Did IBM even reply to this one?
Authored by: Anonymous on Wednesday, May 10 2006 @ 06:39 PM EDT
nice! I particularly liked the last sentence:

"If the court decides it does need further clarification of the current
issues concerning IBM's Motion to Limit SCO's claims it will request such
clarification from the parties."

In other words, "If I wanted you to speak, I would ask you".

But did IBM even get to reply before the judge denied this? Cause the dialogue
basically looks like this:

SCO: Can I please file th...
Court: NO! Next Question!

[ Reply to This | # ]

Corrections Here
Authored by: red floyd on Wednesday, May 10 2006 @ 06:40 PM EDT
For PJ.

And I resisted the urge to mispel words, except for that one.


---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

And as usual...
Authored by: Anonymous on Wednesday, May 10 2006 @ 06:42 PM EDT
SCO's stock price is up on the bad news.

[ Reply to This | # ]

OT here
Authored by: russellphoto on Wednesday, May 10 2006 @ 06:42 PM EDT
Please make links clickable

Russellphoto

[ Reply to This | # ]

Question about Law and Judges.
Authored by: Anonymous on Wednesday, May 10 2006 @ 06:50 PM EDT
This lawsuit is over 3 years old. I imagine there are many other lawsuits that
are as old. I imagine the judges have lots of cases to cover. My question is:
How can they keep everything strait? How can they remember everything? How can
they read everything and respond to everything. There are a ton of papers to
review. Are judges that smart? Do they have to have amazing memor? It just
seems to me its to much for a judge to do.

[ Reply to This | # ]

Translation: "I'm onto you..."
Authored by: kenryan on Wednesday, May 10 2006 @ 06:55 PM EDT
"Moreover, the court foresees that if it were to grant SCO's motion then
doubtless, IBM would need an opportunity to respond followed by SCO requesting
another opportunity etc. etc. etc."

Looks like Magistrate Wells pretty explicitly told SCOX she's onto their
tricks...

:-)


---
ken
(speaking only for myself, IANAL)

[ Reply to This | # ]

Wonderfully elegant phrasing
Authored by: Anonymous on Wednesday, May 10 2006 @ 07:21 PM EDT
All that's missing is the last sentence:

"Which will be shortly after hell freezes over."

[ Reply to This | # ]

A Small Sigh of Relief
Authored by: Steve Martin on Wednesday, May 10 2006 @ 07:44 PM EDT
My first thought when I read this Motion was that it might possibly delay Judge
Wells' decision on IBM's Motion to Limit Claims, based on this motion needing to
be decided first. Since this one is now off the table and out of the way (and in
a rather perfunctory way, I might add), I wonder if perhaps we might soon see
some action on IBM's motion. (Well, I can dream, can't I?)


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

[ Reply to This | # ]

beautiful, simply beautiful
Authored by: xtifr on Wednesday, May 10 2006 @ 08:25 PM EDT
It is never a good idea to suggest that the judge (or judges) in your case are
idiots. SCO effectively did this in their motion, and I'm not at all surprised
that the response was a touch acerbic. :)

But best of all, Wells didn't lose her cool. Some have suggested that SCO has
been trying to goad the judges into inappropriate behavior. If so, it didn't
work at all in this case.

---
Do not meddle in the affairs of Wizards, for it makes them soggy and hard to
light.

[ Reply to This | # ]

I wouldn't be surprised if she typed this order herself
Authored by: kawabago on Wednesday, May 10 2006 @ 08:40 PM EDT
Just for the satisfaction of saying no personally!

[ Reply to This | # ]

Wells Denies SCO's Motion to Strike
Authored by: blacklight on Wednesday, May 10 2006 @ 08:42 PM EDT
Judge Wells' decision indicates that she expects the parties to abide by the
letter and spirit of her orders, and that the parties get back to her in a
timely way if they need clarifications, or if they have issues with her orders.
I expect that the SCOG legal team will be running afoul of her more than once,
given its tendency to filter out her orders.

---
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 | # ]

Ok, this is good.
Authored by: mobrien_12 on Wednesday, May 10 2006 @ 08:58 PM EDT
I think IBMs lawyers have echoed the frustrations of the whole Linux community.
Exactly _what_ does SCOG claim? Darl yammering on about IP... then saying no we
can't tell you what it is because then the Linux people would take it out.
Stories changing all the time. No proof.

I really hope all this nebulous non specific stuff is thrown out, like it should
be and SCO is forced to say "look this is what is ours, line by line and
this is what you violated line by line." Why? Because without getting
specific they can do exactly what they have been doing for 3+ years... drag
stuff out ad infinitum. When they are forced to sit down and get specific and
stop delaying, I am very confident that their lawsuit is going to be shown to be
the sham we all believe it is.

[ Reply to This | # ]

BSF's motivation?
Authored by: Brian S. on Wednesday, May 10 2006 @ 09:18 PM EDT

Faulty subpoena's.

Faulty Expert Evidence.

Faulty Motion.

?????? With the whole world watching?

I appreciate Judge Wells' ruling.

BUT it doesn't affect the question:

What is BSF's motivation in "making these mistakes"?

Surely they can't be that incompetent?

Judge Wells' caution to Mr Singer about Mr. Davis' evidence must have been fresh in BSF's ears when they instigated this motion.

Or is it just what lawyer firms do to earn their money when they've run out of ideas? Do they "try to trip up" the Court?

Brian S.

[ Reply to This | # ]

Imagined SCO spin ...
Authored by: mickkelly on Wednesday, May 10 2006 @ 09:22 PM EDT
"... We are glad Judge Wells acknowledged our concern that IBM introduced new points in the newest Davis declaration. That was what we wanted. A clear victory for SCO ..."
Of course, whether IBM raised new points at all is another matter. The feeling one gets readings this, is that Wells says: "Oh please, stop!", but technically she threw SCO a bone by mentioning that she will ignore any inappropriate new points by IBM.

---
- may you ever drink deep -

[ Reply to This | # ]

Wells Denies SCO's Motion to Strike
Authored by: Anonymous on Wednesday, May 10 2006 @ 09:26 PM EDT
The follwoing sentence appears to make things even clearer:

'They will respond, and that will be it.'

Which part of that is ambiguous?

Tufty

[ Reply to This | # ]

Wells Denies SCO's Motion to Strike
Authored by: charlie Turner on Wednesday, May 10 2006 @ 09:50 PM EDT
Whew...! Many years ago, I was removing some old natural gas pipes from a
warehouse where I worked, and I was whacking away
on a pipe wrench with a 5lb mini-sledge hammer, and I missed,
and hit myself square in the face with said mini-sledge hammer. After reading
this ruling, I would say that this would be like being hit in the face by a
100lb hammer (clue stick, perhaps). This is probably the best document I've read
in this
case in a long, long time.
ct

[ Reply to This | # ]

SCOX stock, will it go up??
Authored by: arthurpaliden on Wednesday, May 10 2006 @ 09:53 PM EDT
So we can expect a rise in SCOX stock price tomorrow then.

[ Reply to This | # ]

Coming next week to a theatre near you...
Authored by: Anonymous on Wednesday, May 10 2006 @ 10:01 PM EDT
RENEWED Motion to Strike Portions of the Rebuttal Declaration of Randall Davis
or for Leave to Respond to the Rebuttal Declaration

[ Reply to This | # ]

Wells Denies SCO's Motion to Strike
Authored by: kurtwall on Wednesday, May 10 2006 @ 10:36 PM EDT
Now in an apparent attempt to escalate the expert wars, SCO seeks…
Schweet! W00t!

[ Reply to This | # ]

Poor English, but ...
Authored by: Anonymous on Thursday, May 11 2006 @ 02:32 AM EDT
SCO requesting another opportunity etc. etc. etc.

The second and third "etc" are redundant. Put this slip down to the stress of dealing with SCO and its lawyers.

[ Reply to This | # ]

Three "etc." 's in a row!
Authored by: iceworm on Thursday, May 11 2006 @ 03:03 AM EDT

Time to doff the tin(aluminum) foil hat and don the kevlar gear as a precaution against ricochet.

[ Reply to This | # ]

Wells Denies SCO's Motion to Strike
Authored by: Anonymous on Thursday, May 11 2006 @ 04:36 AM EDT
Oh, I'm the only one who reads this the other way? I guess I'm wrong then.

My feeling was that Wells was going to grant SCO's motion (although she would
presumably have to wait for IBM to reply first), in order to toss SCO a bone of
ultra-fairness, before ruling against them on the hearing itself.

Since she denied this out of hand, I wonder if she has in mind to deny IBM's
motion to toss the 198.

But I guess its more likely that the motion means exactly what it says.

[ Reply to This | # ]

"It keeps people honest"
Authored by: Anonymous on Thursday, May 11 2006 @ 06:58 AM EDT
There is no power on earth capable of making or keeping SCO honest.

[ Reply to This | # ]

This will not see its 'day' in court
Authored by: Anonymous on Thursday, May 11 2006 @ 07:39 AM EDT
Like the vast majority of people following this case, I would really like to
witness SCO getting all it deserves in court, with a summing up from a judge
that disects and condems the actions of both the company and its management.
Sadly, I do not believe that day will ever come. Even if it did, IBM can never
see its costs paid, let alone receive any damages, as SCO would clearly be
bankrupt many times over. I think the community should thank IBM and Novell and
the other parties involved in defending and continuing to defend the Linux
community in the full knowledge that it would be at their cost and no recovery
possible.

SCO has done its job. The funding was clearly arranged, both directly and
indirectly, by Microsoft - just enough to keep it going until Vista was ready
and enabling a program of FUD in an attempt to keep Linux at bay.

One last area of concern is the license and contract agreed and supplied by SCO
to Microsoft. It has yet to see the light of day. But what if it includes a
clause stating that in the event that SCO is not around for any reason,
Microsoft has the right to the IP, patents, whatever it is that SCO thinks it
owns. There was enough money involved to make this a reasonable condition. If
this is the case, what chance that Microsoft can continue with action against
the community?

[ Reply to This | # ]

Rotten Effort
Authored by: bb5ch39t on Thursday, May 11 2006 @ 09:36 AM EDT
Microsoft "strong arm" marketting. Reminds me of SCO and Autozone, sort of. Why would a vendor do this? If it were me, this would be a "wake up" call to look at getting rid of MS and Windows software entirely. Of course, I'm a commie Linux user.

Article

Note that the link is messed up because Geeklog keeps translating the singleton & into & in the URL.

[ Reply to This | # ]

Evergreen
Authored by: overshoot on Thursday, May 11 2006 @ 10:00 AM EDT
There's more rhetorical gold in this order every time I read it. I like soooo absolutely do not want to get into a war of words with this lady.

Example: not only did she do a beautiful job of phrasing my "the Court can manage that without you" notion, but the "and if I need help, I [1] know enough to ask" was lovely.

IMHO she has a serious load of issues accumulated on this case and this order was her chance to hint at a few of them -- all in one paragraph.

[1] (Unlike some parties I could name)

[ Reply to This | # ]

Priceless
Authored by: Anonymous on Thursday, May 11 2006 @ 10:11 AM EDT
"...Now in an apparent attempt to escalate the expert wars..."

gotcha, TheSCOG

[ Reply to This | # ]

At trial, if any
Authored by: mwexler on Thursday, May 11 2006 @ 11:31 AM EDT
Obviously the judge is skilled enough to parse out inappropriate bits, but if
this suit gets to trial, can the declarations be made available to the jury? If
so, do the parties again have a chance to strike portions that are considered
unresponsive?

[ Reply to This | # ]

  • At trial, if any - Authored by: Anonymous on Thursday, May 11 2006 @ 11:43 AM EDT
  • At trial, if any - Authored by: Anonymous on Thursday, May 11 2006 @ 06:03 PM EDT
Finally? -- Wells Denies SCO's Motion to Strike
Authored by: Anonymous on Thursday, May 11 2006 @ 12:08 PM EDT
Do you mean there is really a bottom to the bottomless pit?

Someone finally said enough is enough.

I am going to mark this down as an historic moment to be recorded for all
postarity to be passed on to my children, my childrens children neigh on to
seventy seven generations.

[ Reply to This | # ]

SJVN latest Linux-Watch article
Authored by: tredman on Thursday, May 11 2006 @ 01:25 PM EDT
I was reading his latest musings on the Initiative for Software Choice (don't
get me started), and by the time I finished reading the article, I just wanted
to cry. Some people just don't get it:

"[Melanie] Wyne [executive director of the ISC] whined that, supporting ODF
has 'little to do with access to documents, and everything to do with excluding
proprietary software providers.'"

SJVN was just as floored as I was.

The worst part about this is that there are some managerial types that actually
eat this, and think it tastes good, simply because it's Microsoft. Personally,
I thought the days of "Nobody ever gets fired for buying Microsoft"
was waning.

Steven, I know you read Groklaw. Don't stop fighting the good fight.
Eventually, some of these PHBs will get beaten down with a clue stick and come
to their senses, but until then....

---
Tim
"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

I think your interpretation is wrong
Authored by: GLJason on Thursday, May 11 2006 @ 02:29 PM EDT
THE COURT: Well, I'm assuming that they will limit it, in proper surrebuttal fashion, to those issues raised or addressed in your submission. I don't anticipate that that will be an issue, and so, therefore, I'm going to leave it as stated. They will respond, and that will be it.
MR. SINGER: We understand, Your Honor. Thank you.
MR. MARRIOTT: Thank you.
PJ: Unless Mr. Singer saying, "We understand," is a confirmation by IBM, I'd say it was SCO that confirmed that it was not to try to respond to Dr. Davis, no matter what.

No, Mr. Singer was saying "We understand (that IBM will be limited, in proper surrebuttal fashion, to responding directly to issues raised in Mr. Rochkind's declaration)." I don't see how you can say they are being dishonest in this instance. SCO had just brought up that the declaration should only respond directly to issues raised by Mr. Rochkind's declaration. The court confirmed that it was the proper thing to do and that it assumed IBM would do so, so there was no reason to change the wording of what she said.

I (not being a lawyer) could see how some of Dr. Davis's second declaration could be seen as legal argument (although not all that SCO wanted struck). I don't see any problem with SCO asking that those arguments not be considered by the court, and I see no problem with Judge Wells being able to filter those out on her own without them being stricken from the record.

I do think it's a little weird for SCO to be asking to respond to a surrebbutal, which would then require a sur-sur-surrebuttal from IBM since it's their motion. When does SCO see this stopping? I thought they should have postponed the court date until after IBM's surrebuttal was received, that would give both sides a chance to address all of the arguments made in the declarations in court. As it was, IBM had less than 24 hours to review the Rochkind declaration and SCO had no chance to review the Davis Surrebuttal prior to the hearing.

[ Reply to This | # ]

Wells Denies SCO's Motion to Strike
Authored by: Anonymous on Friday, May 12 2006 @ 12:21 AM EDT
IANAL.

IMHO, BSF made a misstep in asking to present the Rochkind declaration. The declaration did little to help their case, but IBM was always going to be allowed the last word. I think SCO had a legitimate beef with some aspects of Davis's reply. IBM, though, had calculated that they would be allowed some leeway within reason. The combined effect of the Rochkind declaration and Davis's reply has been to strengthen IBM's position on a very important motion at a cost in time of less than a month.

I am convinced that Magistrate Judge Wells wants to grant IBM's motion. Otoh, it must be admitted that doing so will seriously affect SCO's chances of any of their claims surviving until trial. We shall have to see whether the SCO claims will fly: that revelations on Dynix/AIX methods allowed Linux developers to make better decisions on how to implement features in Linux (without it being easy to identify exactly which lines of code made use of the various positive and negative guidelines). To grant IBM's motion, Magistrate Judge Wells must decide either

  • SCO would not be able to demonstrate they were damaged by the disclosure of methods and concepts unless they could indicate specifically how the disclosure was used in Linux AND such specificity does not currently exist AND SCO would be unlikely to be able to find such specificity going forward that a good faith attempt would not already have found; or
  • by not indicating in a timely manner that the bulk of their claims were based on methods and concepts, they are barred from raising that now; in essence, it amounts to amending their complaint through the back door when discovery is over.
In addition, Magistrate Judge Wells has to not only believe, but also be able to find sufficient justification, that SCO has deliberately tried to avoid providing IBM with the information they need to mount a proper defense.

This is an absolutely critical motion. I think IBM is going to be put to enormous expense following many what-if scenarios if the vague methods and concepts claims are allowed to go forward. I doubt whether it will be possible to dispose of them fully by means of summary judgments. Otoh, SCO's case will be gutted if brought down only to specifics that IBM can easily demolish. Justice says throw these claims out. What the law will decide we must wait and see.

[ Reply to This | # ]

Wells Denies SCO's Motion to Strike
Authored by: mikeprotts on Friday, May 12 2006 @ 08:39 AM EDT
....the police would say 'good by.' There was no crime.

You might know you've been burgled, because of a broken window, but not be sure
what was taken.

This is more like saying:

'I've been burgled, but I can't tell you how I know, whether there's any
evidence of a break in or even which property has been broken into, or even if I
have any property at all. Just arrest that man and I may find some evidence
later.'

Cheers
Mike

[ Reply to This | # ]

Can SCO appeal
Authored by: Anonymous on Friday, May 12 2006 @ 01:12 PM EDT
Can SCO go over JBW's head and appeal this decision? Would they prefer to do
this before she rules on the motion to strike? Or an appeal and a motion to stay
afterwards? It seems SCO may be desparate to delay, but would they be that
desparate?

[ Reply to This | # ]
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