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Novell's Opposition to SCO's Motion for Expedited Stay or Continuance, as text |
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Wednesday, October 18 2006 @ 11:58 PM EDT
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Novell forcefully rejects SCO's "extraordinary" request for a stay or continuance in its Opposition to SCO's Motion for Expedited Stay or Continuance [PDF]. Novell puts it like this: SCO presents an extraordinary request for delay. It seeks to defer this case for many months while it burns through the scant remaining cash assets on its balance sheet....Moreover, SCO neglects to offer even a hint as to how it is likely to succeed on the merits of the claims at issue in Novell’s Motion. SCO appears to have missed the point of Novell's motion, namely that if we all wait, SCO will run out of money and have nothing to give Novell. Duh. I do so love SCO's title. They seek an expedited stay. It reflects a switcheroo in strategy on SCO's part, I think. If you recall, when Novell asked the court for a stay [PDF], SCO fought that motion with both arms and both feet, and it won the right to go forward with the few issues not subject to arbitration. Now, Novell informs the court that at a recent meet and confer over SCO's motion, "SCO’s counsel proposed to stay the entire District Court litigation between SCO and Novell." It seems SCO would like a stay after all. Pronto. Like, um, reeeally fast, before Novell wins and takes all its money.
I get the impression that Novell is indicating to the court in highlighting SCO's switch that perhaps the court needs to consider whether what SCO says is really to be relied upon as being so. As for SCO's claim that Novell delayed in bringing this motion, Novell counters, saying no it didn't. It was SCO that for nearly three years "hid the Sun and Microsoft licenses that are the basis of Novell’s Motion." Ouch. That gives you a flavor of the document, in which Novell uses arguments SCO used earlier against it now. We seem to be in that phase, where everything SCO has said and done is coming back to haunt it.
There are five exhibits, all PDFs, attached: - A - emails back and forth between Ken Brakebill to Ted Normand trying to work out a stipulation, where the conversation goes something like this: Brakebill: "On what basis do you object to the proposed amendment?" Normand: "We have reviewed the proposed amendment, and SCO does not agree to stipulate thereto. Regards. Ted" [Update: a couple of readers point out correctly that the conversation is actually the other way around, and that if you work the timeline correctly, and start reading on page four and work back to page one, the emails show that they did work out an agreement to file Novell's amended counterclaims in about 12 days.]
- B - Plaintiff's First Request for Production of Documents and First Set of Interrogatories
- C - Novell's 2nd Set of Requests for Production to The SCO Group (you'll see Novell hasn't missed a thing: "Please produce all agreements between SCO and UNIX vendors resulting from SCO's SCOsource business, as referenced in SCO's Form 10K for the fiscal year ended October 31, 2004.")
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D - Novell's 1st Set of Interrogatories to the SCO Group and
- E - email from Brakebill to Normand with a proposed Stipulation attached, which is Novell's counterproposal of a mild extension of certain deadlines, which SCO, according to the Opposition papers declined to accept.
Here's the heart of Novell's argument regarding extending discovery, which SCO has asked for:
Extending the fact discovery cutoff at this late stage will have the prejudicial impact of imposing new discovery burdens on Novell as SCO seeks to serve new discovery to which Novell would not otherwise be obliged to respond. So, something may be up. Or perhaps it's just what Novell indicates, that SCO was neglectful, didn't take advantage of discovery, and now would like to get more time to do what it could and should have done already. Novell tells the court that during the parties meet and confer, Novell offered SCO some proposed time extensions in good faith, and if the court is in any way inclined to provide SCO with a measure of delay, Novell hopes it will adopt their proposed schedule, attached. And there's a footnote of interest, because it clarifies the narrow scope of Novell's motion: 4 As discussed, Novell’s motion for preliminary relief concerns only the non-stayed issue of whether SCO improperly breached its fiduciary duties to Novell by wrongfully converting the monies SCO collected from its 2003 licenses with Sun and Microsoft instead of passing them through to Novell. This motion does not entail consideration of any stayed issues such as Novell’s Linux-related activities or Novell’s alleged infringement of SCO’s purported copyrights, as SCO suggests. (See SCO’s Mot. for Expedited Stay, PACER No. 156, at 3-4.) So with that, I'll let you enjoy reading the documents themselves. ****************************
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[address, phone, fax]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]
Attorneys for Defendant & Counterclaim-Plaintiff Novell, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff & Counterclaim-
Defendant,
vs.
NOVELL, Inc., a Delaware corporation,
Defendant & Counterclaim- Plaintiff.
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OPPOSITION TO
SCO’S MOTION
FOR EXPEDITED STAY OR
CONTINUANCE
Case No. 2:04CV00139
Judge Dale A. Kimball
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SCO presents an extraordinary request for delay. It seeks to defer this case for many
months while it burns through the scant remaining cash assets on its balance sheet. SCO
proposes to stay the entire SCO v. Novell litigation until completion of the SCO v. IBM case or,
in the alternative, to postpone for up to six months the resolution of Novell's currently-pending
petition for dispositive or injunctive relief and the upcoming year-old fact discovery deadline.1
Because SCO's proposals lack good cause and would unfairly prejudice Novell, they should be
denied. At most, the Court should adopt the counterproposal offered by Novell and rejected by
SCO during the meet and confer process.
Among other things, SCO effectively asks the Court to deny Novell's injunction motion
by delaying briefing and hearing on Novell's September 29, 2006 Motion for Partial Summary
Judgment or Preliminary Injunction ("Novell's Motion") -- a motion that concerns the narrow
issue of whether Novell is entitled to a constructive trust comprising the monies SCO collected
from its 2003 licenses with Sun and Microsoft.2In doing so, however, SCO noticeably fails to
address the very issues that would inform the Court's decision on injunctive relief. For example,
SCO brushes aside its dire financial condition, overlooking that the constructive trust proceeds
sought through Novell's Motion will be substantially depleted (or possibly gone) after the
duration of SCO's proposed stay. Moreover, SCO neglects to offer even a hint as to how it is
likely to succeed on the merits of the claims at issue in Novell's Motion.
Finally, SCO's eleventh-hour attempt to prolong fact discovery for six months -- and
thereby impose new discovery obligations on Novell -- is unwarranted. SCO has known of the
November 1, 2006 fact discovery deadline in this case for nearly a year. During this time, SCO
had a full and fair opportunity to conduct discovery. SCO's admitted decision to conduct little
2
discovery from April 2006 to August 2006 and SCO's apparent inability to sufficiently plan for
its long-known deadlines in the IBM case are inadequate reasons to impose these new discovery
burdens on Novell and substantially delay resolution of this case.
A. Novell's Motion for Partial Summary Judgment or Preliminary
Injunction Is Timely and Should Be Adjudicated Immediately.
Eschewing the merits of Novell's Motion and superficially dismissing any urgency in
light of SCO's financial state, SCO argues that delay of Novell's Motion is acceptable because
Novell "waited for years" to file its injunction request and because Novell's summary judgment
request is "premature." On the contrary, Novell's Motion is a timely-filed response to SCO's
production of previously-undisclosed discovery and Novell's recent amendment of its pleadings
to clarify its legal theories concerning this discovery.
For almost three years, SCO hid the Sun and Microsoft licenses that are the basis of
Novell's Motion. Indeed, beginning in 2003, Novell repeatedly requested information
concerning these licenses so that Novell could verify SCO's compliance with its obligations to
administer collection of SVRX Royalties under the 1995 Asset Purchase Agreement, as
amended. SCO refused. Although SCO finally produced these two licenses in February of this
year (among 650,000 other pages of documents), SCO simultaneously filed a Second Amended
Complaint that raised new issues that were subject to arbitration. When Novell then moved to
stay the arbitrable issues, SCO argued that Novell had waived its right to seek a stay by making
"substantial use of the Court's resources" -- including by filing motions with this Court.3SCO
also specifically pointed to Novell's receipt of SCO's voluminous production containing the Sun
and Microsoft licenses (i.e., the licenses at issue in Novell's Motion) as proof that Novell was
3
substantially using the litigation process and had thereby waived any right to stay. (SCO's Opp.
Mem. at 12 n.5.)
Once the Court issued its stay order in late August, thereby disposing of SCO's waiver
argument, Novell moved quickly to get its Motion on file. Novell's counsel contacted counsel
for SCO with Novell's proposed counterclaims relating to the Sun and Microsoft licenses. (Ex. 1
at 9/7/06 Brakebill e-mail to Normand.) Two weeks later, after Novell diligently attempted to
procure SCO's stipulation, SCO agreed not to oppose the filing of Novell's amended
counterclaims. (Id at 9/19/06 Normand e-mail to Brakebill.) Three days later, this Court
approved the filing of those counterclaims. (9/22/06 Order Granting Motion for Leave to File
Amended Counterclaims, PACER No. 141.) Novell served them on SCO the following business
day. Novell filed its Motion four days thereafter.4The timing of Novell's Motion is thus not, as
SCO claims, the product of Novell's unnecessary delay in seeking preliminary relief -- much
less part of any nefarious plan by Novell (contrived with IBM's assistance) to "bind SCO's
hands" in the IBM litigation by filing around the time of summary judgment deadlines in the
IBM case.
In addition, Novell's request for summary judgment is not premature. Rather, it is ripe
for consideration. Novell's dispositive motion seeks relief based on two new causes of action
(i.e., breach of fiduciary duty and conversion) and two previously-existing causes of action (i.e.,
accounting and restitution). Each of these causes of action concern (1) the same transactions and
occurrences that were pled in Novell's original counterclaims -- namely, SCO's 2003 licenses
with Sun and Microsoft and SCO's failure to remit to Novell the monies SCO collected from
these licenses, and (2) the same contractual provisions that were pled in Novell's original
4
counterclaims as the basis for SCO's obligations to remit to Novell -- that is, sections 1.2 and
4.16 of the Asset Purchase Agreement. Indeed, contrary to SCO's statement that there has been
"no discovery specific to" the new causes of action at issue in Novell's Motion, months ago both
parties propounded written discovery on the Sun and Microsoft facts at issue. (See, e.g., Ex. 2,
SCO's 1/11/06 Request for Production Nos. 27, 29-30; Ex. 3, Novell's 12/14/05 Requests for
Production Nos. 6-15; Ex. 4, Novell's 12/30/05 Interrogatories 1-2.) Moreover, Novell's
September 2006 discovery requests do not make Novell's summary judgment motion premature.
Aside from a limited numbers of Requests for Admission asking SCO to admit undisputed terms
in the Sun and Microsoft licenses and the undisputed fact that SCO did not give Novell those
licenses until this litigation, Sun and Microsoft are not the focus of these requests.
Finally, SCO's quick dismissal of its deteriorating financial condition highlights SCO's
failure to understand the need for immediate adjudication of Novell's Motion. SCO's financial
position is more tenuous now than ever. Although SCO's liquid assets (i.e., cash, cash
equivalents, and available-for-sale marketable securities) were somewhat higher on July 31,
2006, as compared to October 31, 2005, SCO fails to put this fact into proper context.5
Immediately following October 31, 2005, SCO raised over $10 million in cash from existing
investors and a member of SCO's Board of Directors. (Jacobs Decl., PACER Nos. 150-151, Ex.
23 at 13.) Thus, SCO's cash position as of July 31, 2005 is not a reflection of growing revenues,
increased profitability, or a bright financial future for SCO.
A more detailed examination of SCO's overall financial position reveals that SCO's
financial picture has been steadily darkening since October 31, 2005. Over the ensuing nine
months, its total assets plummeted, from $28,948,000 to $23,472,000 -- a sum less than the total
monies SCO collected from the 2003 licenses with Sun and Microsoft. (Id at 3, 41.) Over this
5
same period, SCO's revenues declined 20% (to just $21,890,000) as compared to the same
period in SCO's prior fiscal year. (Id at 4.) In this period SCO also devoured nearly 65% of its
restricted cash supply, which dropped to just $2,010,000 as of July 31, 2006, and burned cash on
an operating basis at a rate of nearly $800,000 a month. (Id at 3-5.) Absent an immediate
hearing on Novell's Motion, Novell will be irreparably prejudiced in that SCO will have little to
no cash assets left to satisfy Novell's claims for relief.
B. There Is No Good Cause to Impose New Discovery Obligations On
Novell By Extending Fact Discovery Six Months.
SCO's proposal to extend the fact discovery period in this case lacks good cause. The
fact that SCO may be busy with deadlines relating to "the impending IBM trial" does not excuse
the fact that SCO has known of its competing demands in the two cases for a long period of time.
SCO has known of the November 1, 2006 fact discovery cutoff in this case for nearly a year,
when it negotiated and agreed on this deadline. (12/1/05 Attorney's Planning Meeting Report,
PACER No. 84, at 3.) It has known of the trial schedule in the IBM case for nearly 15 months.
(SCO v. IBM 7/1/05 Order, PACER No. 466, at 4-6.) SCO also has been aware of its ongoing
summary judgment deadlines in the IBM case for at least four months. (SCO v. IBM 6/8/06
Stipulation Re Amendment to Scheduling Order, PACER No. 694, at 2.) Yet, SCO failed to
seek an extension until days before the discovery cutoff. Extending the fact discovery cutoff at
this late stage will have the prejudicial impact of imposing new discovery burdens on Novell as
SCO seeks to serve new discovery to which Novell would not otherwise be obliged to respond.
Novell also should not be penalized for SCO's failure to conduct timely discovery over
the last year. For example, after SCO filed its Second Amended Complaint in February of this
year, it inexplicably waited until the final days of discovery to (untimely) serve numerous
discovery requests and interrogatories relating, in part, to that new pleading. See Bolden v. City
of Topeka, 441 F.3d 1129, 1149-51 (10th Cir. 2006) (affirming district court's denial of motion
to extend discovery deadline where lower court had found untimely and "null" the written
discovery requests served by Plaintiff during the thirty-day window preceding the court-ordered
6
deadline to complete discovery). The fact that Novell's stay motion was pending from April to
August 2006 does not excuse SCO's dilatory conduct. Like Novell, SCO could have served new
discovery at any time between the Court's entry of its stay order on August 21, 2006 and the 30-day window preceding discovery's close on November 1, 2006. SCO chose not to. SCO's
apparent neglect should not be rewarded by effectively reopening discovery, and thereby
imposing new obligations on Novell, for another six months.
Finally, Novell's recent amended counterclaims do not open the door to extending the
fact discovery period, either generally or for the more limited purpose of discovery on the new
causes of action. The changes in Novell's new counterclaims are limited in nature. Although
Novell added two causes of action and clarified two existing claims, these modifications
concerned previously-pled transactions in 2003 between SCO, Sun and Microsoft. The parties
engaged in fact discovery on these underlying transactions months ago.
C. Novell Would Agree to the Limited Time Extension Set Forth in its
Counterproposal Rejected By SCO.
During the parties' meet and confer on SCO's motion, Novell offered SCO a good faith
counterproposal providing for certain extensions of time. (Ex. 5 at 10/10/06 Brakebill e-mail to
Normand.) For example, Novell extended SCO the professional courtesy of an approximate 2-week time extension to file its opposition to Novell's Motion, provided that the extension would
not be used against Novell in its petition for preliminary relief. (Id) SCO refused Novell's
offer.
Novell also offered to extend the deadline to complete fact discovery concerning
discovery requests that were timely served under the Court's December 6, 2005 Scheduling
Order and Order Vacating Hearing to January 17, 2007. This would include accommodation for
the parties to complete their noticed depositions by the same date. SCO again refused.
Novell's counterproposal is fair and reasonable and the Court should adopt Novell's
counterproposal if it is inclined to grant any scheduling extensions at all.
7
DATED: October 18, 2006
ANDERSON & KARRENBERG
/s/ Heather M. Sneddon
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
-and-
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
Attorneys for Novell, Inc.
8
1
During the parties' meet and confer concerning SCO's motion, SCO's counsel proposed
to stay the entire District Court litigation between SCO and Novell.
2
In its public filings, SCO valued the amounts it received from the Sun and Microsoft
licenses at $25,846,000. (Jacobs Declaration in Support of Novell's Motion ("Jacobs Decl."),
PACER Nos. 150-151, Ex. 7 at 9.)
3
See SCO's Memorandum in Opposition to Novell's Motion to Stay ("SCO's Opp.
Mem."), PACER No. 156, at 2 ("[B]y virtue of its lengthy and substantial participation in this
litigation, including its numerous requests for and receipt of substantial discovery, Novell has
waived any purported right to its requested stay."), and 12 ("[T]he litigation machinery has been
substantially invoked. The parties, particularly Novell, have made substantial use of the Court's
resources. They have briefed and litigated, and the Court has adjudicated, [various motions].")
4
As discussed, Novell's motion for preliminary relief concerns only the non-stayed issue
of whether SCO improperly breached its fiduciary duties to Novell by wrongfully converting the
monies SCO collected from its 2003 licenses with Sun and Microsoft instead of passing them
through to Novell. This motion does not entail consideration of any stayed issues such as
Novell's Linux-related activities or Novell's alleged infringement of SCO's purported
copyrights, as SCO suggests. (See SCO's Mot. for Expedited Stay, PACER No. 156, at 3-4.)
5
SCO's liquid asset amounts at both points in time constitute a mere portion (40% and
54%, respectively) of the $25,846,000 in Sun and Microsoft revenues for which Novell seeks a
constructive trust. (Jacobs Decl., PACER Nos. 150-151, Ex. 23 at 3.)
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Authored by: PolR on Thursday, October 19 2006 @ 12:03 AM EDT |
In case some are required
[ Reply to This | # ]
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Authored by: PolR on Thursday, October 19 2006 @ 12:05 AM EDT |
Please make links clicky. Follow the parrten in the red text below the comment
box and post in HTML mode.
[ Reply to This | # ]
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- SCO UK website back up - Authored by: jmc on Thursday, October 19 2006 @ 06:22 AM EDT
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- SCOX - Authored by: Anonymous on Friday, October 20 2006 @ 12:06 PM EDT
- SCOX - Authored by: tiger99 on Friday, October 20 2006 @ 05:02 PM EDT
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Authored by: WhiteFang on Thursday, October 19 2006 @ 12:10 AM EDT |
After nearly four years of SCOX Squawking, they still manage to surprise me. I
hadn't fully understood SCOX's amazing alterverse point of view until reading
Novell's reply.
Way to go Novell!
---
DRM - Degrading, Repulsive, Meanspirited 'Nuff Said.
"I shouldn't have asked ... "[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 19 2006 @ 12:33 AM EDT |
I'm glad I wasn't writing this reply.. I'd have been tempted to remind Hizzhonor
that SCO filed suit against US and against IBM (along with others)... yet now
they claim they don't have the resources to handle the court / discovery /
motion practice for only two of these cases at once?
Novell still did a nice job of saying "A stay? Nah... not MY
problem!"
I'm still hoping to hear something on all the motion practice from the judges
sometime in the near future. This one interests me a lot, as does the response
to the objection to Judge Wells order on the discarding of sufficiently
non-specific "evidence" in the IBM trial.
Of course, IBM's PSJ motion is also of keen interest, to us all, I believe.
...D[ Reply to This | # ]
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Authored by: mwexler on Thursday, October 19 2006 @ 12:42 AM EDT |
I think I'm starting to see a new thread in SCO's arguments (forgive me if
you've all see this for months). They are arguing that all the stuff in the APA
about SVRX licenses only applies to binary licenses. Sure, they've used this
argument for a while about why they didn't have to give the money from Microsoft
and SUN to Novell. But apparently they are also using the same argument as why
they can ignore Novel's request to waive the IBM stuff also.
Has anybody found anything, in any of the documents that supports this SVRX
license = Binary License concept? Did they just make it up out of thin air? Is
it only in sealed documents?
[ Reply to This | # ]
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Authored by: PolR on Thursday, October 19 2006 @ 12:45 AM EDT |
Expedited stay. What an oxymoron.
The pit bulls don't have the patient way of the Nazguls. The don't chug along
the lengthy way of the procedure with all overlength memos and prolonged
discovery processes. They don't take their time building a tsunami of evidence.
They just go for the jugular and go for it now. It thelps that they have a
contract they can use against SCOG in accordance to Darl's concept of a contract
being a weapon.
SCOG is on the defensive. The issues are defined with specificity and supported
by unambiguous language. Arguments in favour of immediate resolution are
forceful. SCOG has to find an answer of die. This is the total opposite of what
BSF has done so far.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 19 2006 @ 01:22 AM EDT |
That's one choice domain name Novell's lawyers have. [ Reply to This | # ]
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Authored by: whoever57 on Thursday, October 19 2006 @ 01:48 AM EDT |
I wonder if Novell's earlier request for a stay was a deliberate attempt to
provoke SCO into the very situation SCO now finds itself: asking for a stay
having earlier opposed a stay. [ Reply to This | # ]
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Authored by: Dr.Dubious DDQ on Thursday, October 19 2006 @ 01:59 AM EDT |
They seek an expedited stay.
So...they want a quick slowness of the
trial?...
(Yeah, I know, perfectly normal legal term [I assume],
but in
the context of SCO shenanigans, it seems somehow
perverse...) [ Reply to This | # ]
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Authored by: technomom on Thursday, October 19 2006 @ 09:09 AM EDT |
An "expedited stay" essentially boils down to "hurry up and
wait". You're right, PJ, that does crack me up.
JoAnn[ Reply to This | # ]
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Authored by: ChrisP on Thursday, October 19 2006 @ 09:14 AM EDT |
So suppose Novell gets their constructive trust and drives tSCOg to backrupcy.
What then for the licensees? Who do they pay royalties to and get new licenses
from? Who do they ask about what they can do with their own code?
Would Novell leave the licensees in the lurch? I don't think so, they have
integrity!
APA Amendment 2 C says:
"Novell may execute a buy-out with a licensee without any approval or
involvement of SCO [Santa Cruz Operation], and will no longer be bound by any of
the requirements stated in Section B. above, if: (i) SCO ceases to actively and
aggressively market SCO's UNIX platforms; or (ii) upon a change of control of
SCO as stated in schedule 6.3(g) of the Agreement. "
I see (i) doesn't restrict itself to SVRX licenses. OpenServer and UnixWare are
fair game for a buy-out too, and the terms can bee even looser than IBM's
Amendment X.
Novell could set the licensees and UNIX free for a small fee and be done with
it. Are Novell ready for this? If not, do they want to get back into the UNIX
business (I think not)?
---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 19 2006 @ 10:03 AM EDT |
Do we actually want SCO to go, before we get resolution from the IBM case.
We really could do with IBM winning, and the case becoming a reference for any
other attempts against Linux.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 19 2006 @ 10:13 AM EDT |
MO
"Extending
the fact discovery cutoff at this late stage will have the prejudicial impact of
imposing new discovery burdens on Novell as SCO seeks to serve new discovery to
which Novell would not otherwise be obliged to respond." And, of course, it
will probably produce more delay.
In the court room a judge may ask a
lawyer to justify a question. The lawyer will then have to show that the
question is germain to the matter at hand. I wonder if there is something
equivalent for discovery?
SCO has previously asked for, and been
granted, extensive discovery, most of which turned up nothing. Given this
behavior pattern, I wonder if the judge can demand that SCO show that there is a
reasonable expectation that the discovery they are demanding will be fruitful.
[ Reply to This | # ]
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- SCO's MO - Authored by: rsteinmetz70112 on Thursday, October 19 2006 @ 10:23 AM EDT
- SCO's MO - Authored by: Anonymous on Thursday, October 19 2006 @ 09:16 PM EDT
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Authored by: Anonymous on Thursday, October 19 2006 @ 10:35 AM EDT |
> SCO has known of the November 1, 2006 fact discovery deadline in this case
for nearly a year.
So discovery is almost over, but who is the discovery magistrate?
[ Reply to This | # ]
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Authored by: Israel Pattison on Thursday, October 19 2006 @ 10:43 AM EDT |
While Novell is plugging away at SCO in US District Court, isn't it about time
we heard the result of the SUSE arbitration case in Europe? I thought that
avenue was supposed to yield results very quickly and definitively. Is there
any way to find out the progress in that case?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 19 2006 @ 10:46 AM EDT |
Progress in this case seems to have come to a complete halt. Kimball, who seems
to run at a snail's pace (at best), is now under tons of motions.
"Expedited" motions go unanswered for uncounted months.
It's almost like, why bother spending these millions on lawyers if the court
ignores what they submit?
What's going on here? Isn't there a mechanism for judges to get assistance, or
offload parts to other judges, when clearly over their head in work?[ Reply to This | # ]
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Authored by: Maciarc on Thursday, October 19 2006 @ 12:38 PM EDT |
Footnote 5 is
my favorite part of this document.SCO's liquid asset amounts at both
points in time constitute a mere portion (40% and 54%, respectively) of the
$25,846,000 in Sun and Microsoft revenues for which Novell seeks a
constructive trust. (Jacobs Decl., PACER Nos. 150-151, Ex. 23 at
3.) More than anything else, this shouts (to me, at least) "They've
already burned through half our money!" Many times in the past I've wished the
court had taken a heavier hand with SCO. However, I know that Judge Kimball's
caution has been a good thing in the long run for these cases.
This time,
his caution should weigh against SCO.
--- IANAL and I don't play
one on TV, this is just an "anti-SCO Philippic." [ Reply to This | # ]
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Authored by: Yossarian on Thursday, October 19 2006 @ 01:18 PM EDT |
> that if we all wait, SCO will run out of money and
> have nothing to give Novell.
Why can't the judge cut through this mess by telling SCO
something like: "I'll agree to stay the case after you
will put enough $$$$ in an escrow account to ensure that
if Novell will win then it will be paid"?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 19 2006 @ 01:26 PM EDT |
If SCO isn't holding the money anymore (and it seems there'll be at least less
left than Novell's owed), from whom can Novell collect?
Can they go after SCO's Investors? SCO's board? SCO's management team?
Sun&Microsoft (since their licenses haven't been paid for)?
Seems pretty horrible if the courts dragging this out forever leave Novell as
the main victim while Microsoft and SCO's management team pretty much got
everything they wanted (cloud over Linux til Longhorn launches; and large cash
bonuses respectively)[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 19 2006 @ 01:58 PM EDT |
Reminds me of when IBM went for summary judgement. SCO says wait we need more
discovery of the Universe! Is this a normal request when it comes to summary
judgements?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 19 2006 @ 05:18 PM EDT |
Kinda Ironic that both parties are doing the opposite of what they originally
wanted. I guess thats part of the strategic plan.[ Reply to This | # ]
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Authored by: chad on Thursday, October 19 2006 @ 10:38 PM EDT |
Compared to the Novel lawyers, the IBM bunch seem positively genteel. IBM is
playing an elegant chess game. Novel seems to be playing ice hocky.[ Reply to This | # ]
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Authored by: Anonymous on Friday, October 20 2006 @ 05:34 PM EDT |
The way I read these motions, SCO isn't even pretending to have a valid claim,
they just want to keep the money, and spouting nonsense hoping to do so.
Novell: They took our money, spent most of it, now we want a trust to protect
what's left.
SCO: We need more time.
Novell: Sure, but you're spending our money! We want it in trust!
SCO: No, we need it for our scam.
Novell: But it's ours, and you're blowing it at record speed!
SCO: No, we haven't spent it all yet.
Novell: Just most of it!
SCO: Six more months. Then it won't matter.
Is Kimball (or any judge) really likely to go along with this? Is the system
really this broken?[ Reply to This | # ]
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Authored by: Bill The Cat on Sunday, October 22 2006 @ 12:09 AM EDT |
Why doesn't Novell file criminal charges for Grand Theft?
That is what it is.
---
Bill The Cat[ Reply to This | # ]
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