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SCO Files "Stipulated" Motion That Wasn't Stipulated
Thursday, November 02 2006 @ 11:21 PM EST

This is a new one. Remember back in the middle of October when SCO and IBM stipulated to a small extension of time in the schedule for briefing on the summary judgment motions, with the agreement that neither would seek further delay, after which in the October 24th hearing SCO asked the judge for an additional week, and IBM said OK?

You'll never guess what SCO wants now. More time, of course, another week to submit its opposition papers. And that would make IBM's next deadline December 29. Yes, smack dab in the middle of the holidays.

IBM said no. Yet SCO submitted a document it called a "stipulation and joint motion" with the "conformed signature" of IBM's Todd Shaughnessy. Oh boy. Inside the document, the wording indicates that IBM does not agree, yet the title indicates it is being submitted by both parties, and there is the apparent signature from IBM. Might a busy judge not notice the fine print? It isn't submitted by both parties, and IBM didn't authorize Shaughnessy's signature, it tells the court in its opposition and cross motion, protesting SCO calling its submission a stipulated joint motion, when it isn't a joint motion and it wasn't stipulated to, and attaching a signature it wasn't authorized to attach. Rather, IBM made clear to SCO, it says, that it was opposed to any extension of time. Here are the documents, all PDFs:

Simply unbelievable. As Groklaw member Rudisaurus sarcastically asks in a comment, why didn't SCO just affix Judge Kimball's conformed signature too?


  


SCO Files "Stipulated" Motion That Wasn't Stipulated | 183 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: Anonymous on Thursday, November 02 2006 @ 11:55 PM EST
Put your corrections here, if you have any.

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Off Topic
Authored by: Anonymous on Thursday, November 02 2006 @ 11:56 PM EST
With or without clickies, although clickies are preferred. Check the red text
under the "Post Mode" box.

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

*boggle*
Authored by: Anonymous on Friday, November 03 2006 @ 12:01 AM EST
If that doesn't land them in trouble I really am lost...

What could they have been thinking? What they tell the judge might be
interesting. Then again, it'll probably be some talk about a (collective) memory
lapse.

--
meshuggeneh, not logged in from here...

[ Reply to This | # ]

What does it take?
Authored by: Anonymous on Friday, November 03 2006 @ 12:04 AM EST
At what point will BSF lawyers face sanctions? It seems that no matter what they
do, they get no punishment, so there is no incentive for them to stop.

[ Reply to This | # ]

SCO Files "Stipulated" Motion That Wasn't Stipulated
Authored by: Anonymous on Friday, November 03 2006 @ 12:05 AM EST
Well, what's SCO got to lose at this point? Nothing, really.

I can't wait to see what they do next to push the envelope.

[ Reply to This | # ]

SCO Files "Stipulated" Motion That Wasn't Stipulated
Authored by: Dave23 on Friday, November 03 2006 @ 12:05 AM EST
For everyone's information, a "conformed signature" is one in the form:

/s/ John Doe

Where "John Doe" is represented by the submitter as having assented to or signed the document.

IANAL, but under normal — that is, commercial — circumstances, if what IBM says is true, the agent of SCOX/BSF who submitted this stipulation would be in very serious hot water.

---
Nonlawyer Gawker

[ Reply to This | # ]

The important thing for Groklaholics to remember...
Authored by: Anonymous on Friday, November 03 2006 @ 12:08 AM EST
is that there will ALWAYS be some stupidity to discuss and debunk. Every delay
by SCO opens an opportunity for someone else (M$, HP etc) to do something stupid
and make our day.

Nature abhors a vacuum. So does stupidity it seems.

Oh man, what a book all this stuff will make.

[ Reply to This | # ]

Hey PJ. Is that December 29, 2006?
Authored by: Anonymous on Friday, November 03 2006 @ 12:11 AM EST
Just checking in case they were seeking a few extra YEARS of discovery.

[ Reply to This | # ]

SCO Files "Stipulated" Motion That Wasn't Stipulated
Authored by: Anonymous on Friday, November 03 2006 @ 12:16 AM EST
isn't fraudulently inserting an signature um, what's the word? criminal?
bare
minimum it's sloppy. did bsf just get their wire's crossed, with one group
thinking it was a joint motion and attaching those details without knowing that
ibm had objected?

[ Reply to This | # ]

A bald-faced lie, plus forgery ...
Authored by: Anonymous on Friday, November 03 2006 @ 12:28 AM EST
This is downright unbelievable? Are they *fishing* to be disbarred?

[ Reply to This | # ]

SCO Files "Stipulated" Motion That Wasn't Stipulated
Authored by: Anonymous on Friday, November 03 2006 @ 12:36 AM EST
My take on this is that BSF edited a prior document and didn't remove the signature block.

I get this from the fact that part of the document appears to be in italics.

[ Reply to This | # ]

Forget about sanctions
Authored by: Anonymous on Friday, November 03 2006 @ 12:41 AM EST
I'm told by a lawyer who attended a get together with Judge Wells speaking, that
the good judge said 'I don't believe in sanctions, and never use them'.

I suspect that at least one of the folks from SCO's counsel was also present.

Anybody know if Judge Wells has ever sanctioned anyone?

[ Reply to This | # ]

Checking the SCOnks
Authored by: webster on Friday, November 03 2006 @ 12:49 AM EST
.
IBM doesn't trust SCO. They have to check with the clerk to see if what has
been filed matches what has been served upon them. SCO could file in the
morning and serve at night (or not at all) just to sneak a unstipulated order
past the judge. I guess they don't have any credibility left to worry about.

ON the other hand they probablysent in this annotated stipulation because they
were very short of time. They said IBM didn't agree. Maybe they were hoping
for an inattentive judge.

---
webster

[ Reply to This | # ]

fishing for prejudicial remarks?
Authored by: jiri on Friday, November 03 2006 @ 01:07 AM EST
Could they be fishing for a prejudicial remark?

Hanlon's razor says it's a mistake, most likely.

Jiri

---
Please e-mail me if you reply, I usually read with "No comments".
jiri@baum.com.au

[ Reply to This | # ]

Simply unbelievable.
Authored by: lannet on Friday, November 03 2006 @ 01:12 AM EST
...and wouldn't it be blatently fraudulent use of a signature?

---
When you want a computer system that works, just choose Linux.
When you want a computer system that works, just, choose Microsoft.

[ Reply to This | # ]

What happens now?
Authored by: cventers on Friday, November 03 2006 @ 01:46 AM EST
If I'm reading this correctly, SCO wants more time to file
opposition papers to IBM's motions for summary judgement.
They are already due. SCO wants an extension it agreed not
to ask for.

Have they filed incomplete opposition papers? None? What
happens if the court says no to the extension - SCO has
not filed any opposition (or a poor one) to IBM's motions?
Does IBM win everything, including all the counterclaims
at that point?

[ Reply to This | # ]

  • What happens now? - Authored by: Anonymous on Friday, November 03 2006 @ 11:40 AM EST
    • Ow. - Authored by: Anonymous on Friday, November 03 2006 @ 02:13 PM EST
    • What happens now? - Authored by: Anonymous on Friday, November 03 2006 @ 04:41 PM EST
file correction?
Authored by: Anonymous on Friday, November 03 2006 @ 01:48 AM EST
I think, from a layman point of view, that SCO should get into deep trouble by
this if they do not imideatly file a correction.
The system should really punish them then.

I wonder if they have an obligation to file a correction at all?

[ Reply to This | # ]

Windows Vista?
Authored by: Anonymous on Friday, November 03 2006 @ 02:15 AM EST
I have said several times earlier that the entire case will crash completely
just at the time Windows Vista arrives. SCO have achieved their goals and
everyone can continue living happy together.

Well, Vista is going to arrive this month, so now is the right time to start
crashing. So I don't think these errors are a way of going for appeal. They are
simply taking the fast route to get the case thrown out for ever.

If Microsoft later is shown to be behind this, they will have to pay a few
million dollars in fine and replace unix-systems with Windows Vista on a few
universities free of charge. So it's really a win-win situation for everyone.

[ Reply to This | # ]

Stage lighting
Authored by: jbb on Friday, November 03 2006 @ 02:23 AM EST
I once took a week-long seminar in stage lighting given by a leading practitioner. The goal was almost always to light the actors so all of the audience could see them clearly. But she said that every now and then, the performance was just so bad that it was a mercy to light the stage poorly so it was hard to see the actors clearly. It results in the lighting designer taking the heat and criticism instead of the actors.

I have to wonder if BS&F are trying to play a similar trick with some of their wacko stunts like this. Or maybe it is like the misdirection of a card sharp who gets you to watch the cards in his left hand very carefully while he is palming a totally different card with his right hand.

---
You just can't win with DRM.

[ Reply to This | # ]

No actual arguement / reasoning
Authored by: Anonymous on Friday, November 03 2006 @ 03:25 AM EST
It's interesting. Normally stipulated motions don't need much support,
presumably because both parties agree on something, and judges are generally
happy to go along with their agreements.

However, given that SCO is asking for something that IBM doesn't want, you'd
think they would stick in some form of arguement. Did the dog eat their
homework? Just not enough time to get this stuff done?

Don't forget they were screaming about wanting to get to trial as fast as they
could, but keep on delaying things.

[ Reply to This | # ]

New motion submitted by SCOfflaws
Authored by: cricketjeff on Friday, November 03 2006 @ 05:02 AM EST
Dear Judge Us and IBM stipulate that we all agree that IBM stole all our stuff
and are smelly. Us and IMB also stipoolates that we gets all their dosh.
Signed SCO and IBM


[ Reply to This | # ]

What Eben Moglen thinks about MS - Novell.
Authored by: kinrite on Friday, November 03 2006 @ 05:24 AM EST
Can be found Here.

---
"Truth is like energy...it can not be created, nor destroyed"

[ Reply to This | # ]

SCO Files "A forged Document"
Authored by: Anonymous on Friday, November 03 2006 @ 05:31 AM EST
Isn't attaching a signature to a document that was not signed , or authorized by
the owner of the signature, a forgery

[ Reply to This | # ]

where's the surprise?
Authored by: Anonymous on Friday, November 03 2006 @ 07:16 AM EST
They've tried so many other tricks that this is just interesting as to what they
woould try next. We knew they would try something.

;-)

[ Reply to This | # ]

I don't know about law, but in *my* profession ...
Authored by: Anonymous on Friday, November 03 2006 @ 08:10 AM EST
Regardless of the reason, in my profession carelessness of this kind is called negligence, and normally gets you either sanctioned or kicked out by the profession. People die when professionals don't pay attention to details. They have a duty of care to their clients and the public at large.

There are so many examples of negiligence by this firm in this case that I'm looking forward to SCO or their officers and board suing their lawyers when they lose. As Brian Wilson said, "wouldn't it be nice ...".

Dreaming on ...

J

[ Reply to This | # ]

Malpractice?
Authored by: c1ay on Friday, November 03 2006 @ 08:20 AM EST
Could BSF commit enough malpractice to warrant being both sued for such and
released from the case so that SCO could start anew looking for representation?
That would certainly by them some time.

[ Reply to This | # ]

Why SCO will get the time
Authored by: Anonymous on Friday, November 03 2006 @ 09:05 AM EST
SCO will get the time they asked for, despite the outrageousness of their method
of doing so.

Because they won't file their opposition papers to IBM's SJ motions, by the
original [actually twice moved already] deadline.

And Kimball will not be prepared to grant IBM's SJ motions, unopposed.


Quatermass
IANAL IMHO etc.

[ Reply to This | # ]

SCO Files "Stipulated" Motion That Wasn't Stipulated
Authored by: Anonymous on Friday, November 03 2006 @ 09:51 AM EST
This just goe to show. If you want to lie legaly hire a lawyer.

[ Reply to This | # ]

Did any SJ replies get filed?
Authored by: Anonymous on Friday, November 03 2006 @ 10:02 AM EST
Since IBM does not agree to the proposed scheduling change, I would assume they
filed their replies to TSCOG's summary judgment motions. Has there been any
sign of IBM reply's on PACER or at the court?

[ Reply to This | # ]

Question for the lawyers
Authored by: tinkerghost on Friday, November 03 2006 @ 10:24 AM EST
Is it normal to file requests for extensions and overlength motions on the last
day?
It seems to me that you would have to file them in advance with the
understanding that they could be turned down.

In this case, if the judge denies the motion for an extension, then BSF is
toasted - their responses to the PSJ motions for IBM are going to be a day late,
even if Wells rules first thing in the morning on these things. I just can't see
how - following a stipulated agreement & a granting that is 'subject to the
agreement that neither side will seek any further extension...'.
If the judge has said "I will grant you 1 week because IBM says so, but
only if you agree not to look for another extension" I don't understand why
you would risk 90% of the case on the chance that she didn't mean it.

---
You patented WHAT?!?!?!

[ Reply to This | # ]

SCO Files "Stipulated" Motion That Wasn't Stipulated
Authored by: Anonymous on Friday, November 03 2006 @ 10:53 AM EST
It's a delay tactic. It's classic SCO.

By the time the judge rules on this motion, SCO will file their overdue
briefing, claiming good faith reliance on the aforementioned motion for an
extension. SCO will also argue that the joint motion was stipulated to, and at
the 11th hour, IBM flip-flopped. And lastly, SCO will argue that to deny the
motion for an extension would be unduly prejudicial to their case.

[ Reply to This | # ]

I though Kimball was joking.
Authored by: rsteinmetz70112 on Friday, November 03 2006 @ 11:23 AM EST
When he suggested dates during the holidays, on the weekend during the last
hearing.

It is now obvious he understood what was about to happen.

---
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 | # ]

Could this be a way of both losing and saving face?
Authored by: Liquor A. on Friday, November 03 2006 @ 11:25 AM EST
For some reason, I suspect that BSFLLP is hoping that Judge Kimball will deny
the motion WITHOUT ordering the 1 week extension.

I'm not a lawyer of any kink, but I'm suspecting that NO reply to IBM's SJ
motions in the scheduled time will be an automatic loss of the SJ.

Wouldn't that let them say "But we only lost on a technicality?"

---
Liquor A.

[ Reply to This | # ]

At what point
Authored by: Guil Rarey on Friday, November 03 2006 @ 12:17 PM EST

...do we start using words and phrases like "disbarment" and
"disciplinary committee" and "fraud on the court" to discuss
this stuff?

It's not agressive representation and it's not clerical error. Not for this.
Most of the lawyers I know are from one medium-sized Midwestern city, and the
ones I know are "collegial" in the full and best sense of the word.
(Mind you, this doesn't describe all of the lawyers in town - most of the ones I
know work at the better-established local firms) Anyone who tried this crap
within that community would be professionally ruined. Their ability to
represent clients would be destroyed. And that's assuming they weren't referred
to a committee for professional discipline or disbarment.

Seriously - unless BSF backpedals - and fast - if Nazgul want to gut them
personally, they can, and probably should.

[ Reply to This | # ]

How I think this arose - Having one's cake and eating it
Authored by: Anonymous on Friday, November 03 2006 @ 12:59 PM EST
SCO agree to 1 week extension at the hearing. IBM isn't keen on the extension,
but doesn't really have any objections, so they agree.

Both parties agree to a stipulation to implement this extension, subject to an
additional stipulation of no further extension.

Then SCO decides that they really want an additional week extension.

So what are their options at this point:

Option A:

1. File the stipulation for the one week extension, and saying there will be no
more extensions

then 2. File an additional motion within that week asking for another week
extension, despite the fact that they only just agreed to no further
extensions.


Option B:

1. File the stipulation (joint motion) asking for a 1 week extension.

and 2. At the same time, file a motion asking to the judge to ignore their own
(joint) motion, and to give them 2 weeks instead.



The question: Which is worse? Contradicting yourself at the same time, or
contradicting yourself within a week of your motion?


SCO's lawyers think to themselves that they don't like either of these options.

So, instead, they MERGE 1 and 2 (option C). To be fair, they did highlight with
italics, the bits (part 2) that IBM doesn't agree with.

The merge strategy is an inventive attempt to make it look: "IBM agrees to
give us this much, but we want a bit more", while concealing 2
contradictions in SCO's position:

(i) That what SCO's stipulating to, isn't actually what they want.

(ii) That SCO have stipulated to no more extensions, but are at the same asking
for another extension.


Quatermass
IANAL IMHO etc.






[ Reply to This | # ]

Are they just lazy?
Authored by: GLJason on Friday, November 03 2006 @ 01:09 PM EST
If you look at the motion, it is really the original stipulated motion with SCO's comments added in italics. Seriously, you can't propose a stipulation that ISN'T STIPULATED TO. What were they thinking? Did they just not want to file two separate documents?

They attached both orders, the one with the dates IBM agreed to and the dates that SCO wants. I don't see the judge getting overly confused about it, after all the first sentence says "IBM does not agree to the language of this proposed stipulation." Judge Kimball can read I'm sure, and in any case he would only sign one of the orders.

The only reason I can see for this is that they were under the gun and absolutely had NO TIME to do it properly. Either that, or since they aren't getting paid by SCO anymore and since the chances of SCO winning any money for them to share appear vanishingly small, they are having the janitor write their motions now.

[ Reply to This | # ]

SCO Files "Stipulated" Motion That Wasn't Stipulated
Authored by: Anonymous on Friday, November 03 2006 @ 01:57 PM EST
I have often wondered at how 2nd rate the work product of BSF has appeared to be
atleast since there was a "cap" put on SCO's legal fees.

Perhaps given that there is a limited amount of funds, given that there is an
even more limited amount of evidence, and given that those two add up to an even
greater limited chance of an Sco/BSf victory, just perhaps, all of the
"grunt work" has been dumped on the 2nd string legal support team, or
a very limited amount of behind the scenes attention is being paid by BSF to the
case. Hence the multiple errors in documents etc that we have seen in the last
year or so.

Maybe they just don't care about the SCO case as much as they initially did. A
sure sign that SCO's lawyers no longer believe they have much of a case. Perhaps
they are going through the motions (no pun intended).

[ Reply to This | # ]

SCO Files "Stipulated" Motion That Wasn't Stipulated
Authored by: Anonymous on Friday, November 03 2006 @ 02:03 PM EST

I have a question. As I have always thought signing someone else's name on legal documents was fraud, what does the usage 'conformed signature of undersigned counsel' mean?

[ Reply to This | # ]

SCO just got the delay they wanted by pulling this stunt.
Authored by: Anonymous on Friday, November 03 2006 @ 02:37 PM EST
I imagine they might get penalized in some way, but as long as it takes a week
or 2 to get this decided. Doesn't that get them the delay they want?

[ Reply to This | # ]

Actually it's quite believeable
Authored by: The Mad Hatter r on Friday, November 03 2006 @ 03:37 PM EST


Considering everything we've seen in the last couple of years I'd say this is
totally believable. The question is why did they do it?

1) Is it an attempt to totally annoy the judges?

2) Is it an attempt to really get an extra week?

3) Or was it an honest (gasp) mistake?

As I've said before I'd give almost anything to be able to read minds for an
hour, if I could pick the hour and the people who'd be present.



---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

This is a good thing ...
Authored by: Anonymous on Friday, November 03 2006 @ 04:26 PM EST
... since I believe there's only two explanations (broadly speaking):

1. It wasn't deliberate. BS know what's left of their "case" is so
much waste paper. So the fee earners are off concentrating on more lucrative
work and have handed it over to trainees and paralegals. Or possibly the office
cat!

2. It was deliberate. In which case it doesn't deserve to be given such exalted
titles as "gamesmanship" or "playing the system". It would
have to be nothing more than desperation and panic.

I favour the former explanation. BS appear to be a pretty competent law firm
when they try. Despite our opinion regarding their choice of client and tactics.
I just don't think they are really trying any more.

[ Reply to This | # ]

Has SCO withdrawn or refiled?
Authored by: Anonymous on Friday, November 03 2006 @ 04:48 PM EST
The big tell will be if SCO attempts to withdraw refile or whatever other
corrective action they are allowed. If so then it "might" be sheer
incompetence.

However if SCO does not quickly act to correct it then it must be a deliberate
filing and accepted by the court as a definite action by the party submitting
it.

[ Reply to This | # ]

SCO Files "Stipulated" Motion That Wasn't Stipulated
Authored by: findlay on Friday, November 03 2006 @ 09:06 PM EST
PJ, I thought from near the end of the hearing Judge Kimball worked out with
Singer and Marriott that they would need one more week for discovery without
actually pushing back the trial, but perhaps I'm remembering wrong.


Justin

[ Reply to This | # ]

OK, I have it figured out
Authored by: sk43 on Friday, November 03 2006 @ 09:13 PM EST
[839]

Both parties' memoranda in opposition to the pending motions for summary
judgment, currently due October 25, 2006, shall be due no later than
November 1, 2006;

The parties stipulate that they will not seek any further extensions of
the deadline for memoranda in opposition to the pending summary judgment
motions.

[846-A]

Both parties' memoranda in opposition to the pending motions for summary
judgment, currently due November 1, 2006, shall be due no later than
November 8, 2006;

The parties will not seek any further extensions of the deadline for
memoranda in opposition to the pending summary judgment motions.

[846-B]

Both parties' memoranda in opposition to the pending motions for summary
judgment, currently due November 1, 2006, shall be due no later than
November 15, 2006;

The parties will not seek any further extensions of the deadline for
memoranda in opposition to the pending summary judgment motions.

[ Reply to This | # ]

" Simply unbelievable." nope, just more BS&F slop
Authored by: tangomike on Saturday, November 04 2006 @ 02:29 PM EST
After the subpoena fiasco last January, this is just more of the same. TSCOG
wants a third extension; IBM finally says no. TSCOG tries this stunt to get
another extension to Nov. 15 Since it looks like incompetence, there won't be
any sanctions. Whether they get till Nov. 15 remains to be seen. It would be
nice if the judges took them at their word that Nov. 8 was acceptable, and left
it at that.

BS&F are really desperate to get the PSJ's put off. I'm not sure what they
want to happen, but TSCOG bankruptcy would get them an enormous amount of delay,
so that would be my guess, at this point. A constructive trust would work well
for that.

---
Deja moo - I've heard that bull before.


[ Reply to This | # ]

sanctions.sanctions.sanctions
Authored by: polymath on Sunday, November 05 2006 @ 12:17 PM EST
If the judge fails to impose a sanction he is guilty of allowing the
administration of justice to fall into disrupt.

[ Reply to This | # ]

Holiday games
Authored by: mtew on Monday, November 06 2006 @ 02:58 AM EST
First a prediction:

BSF and tSCOg will not receive severe sanctions while the case is in progress,
BUT they will probably be hit with truck loads AFTER the case is decided. That
way they will not be able to appeal on the basis of prejudice.

Much more interesting:

IIRC tSCOg/BSF have pulled ... during the Christmas Holidays before. Why should
this year be any different?

---
MTEW

[ Reply to This | # ]

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