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| Court Tells SCO Their Filing Was Deficient; Must ReFile - Update: Motion and Memo as text |
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Monday, December 18 2006 @ 04:16 PM EST
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The Court has notified SCO that its request for reconsideration of Judge Kimball's November 29th Order is deficient. They have to refile properly. Here's the Pacer docket entry:12/18/2006 - 900 - NOTICE OF DEFICIENCY re 897 Request. The document was filed as a request and would be better filed as a motion. The court asks the filer of the original document to file the pleading again. The new pleading will receive a new document number on the docket. (jmr ) (Entered: 12/18/2006) SCO must do more work. Two can play procedural rules games, eh? I'm frankly puzzled, because SCO did file their request as a motion, at least they titled it a Motion for Reconsideration, so I can't yet tell you what the deficiency is. It is possible the court made a mistake, but it is also possible the court noticed SCO forgot to dot an I or cross a T somehow. The rules of procedure, which are the rules by which a court conducts civil litigation, are very detailed. Here's IBM's earlier and successful Motion for Reconsideration. Maybe one of you eagle eyes can spot a difference. Presumably the court has told SCO what it needs to correct with specificity. Or then again, maybe it is leaving it up to SCO to find the problem in that mountain of procedural rules? Just joking. SCO is in a difficult spot. The more it tries to annoy IBM by drawing this process out, the more it simultaneously annoys the court. Its motion for reconsideration stated that the grounds for the motion were that the rules of procedure did not justify Judge Kimball's order. So perhaps now the court has decided to notice and insist on all the rules of procedure in the minutest detail. And no one will know the rules better than the judge, who also has the power to enforce them. Update: I think Groklaw member AJWM may have put his finger on at least one problem, namely that the
filing moved for reconsideration, but also
"seeks leave to
reopen four depositions of IBM programmers."
That's an entirely unrelated request, having nothing to do with Judge Kimball's prior order. Update 2: Here are SCO's Motion for Reconsideration of November 29th Order [PDF] and the Redacted Memorandum in Support [PDF], as text. My thanks to Steve Martin for doing the HTML on the Memo and to Chad for the memo. Marbux notices some other problems. Update 3: See the next article for what I found in my research. I think the issue is what kind of motion, based on Rule 60.
I'm still researching, but here is what marbux thinks: Rule 60 provides the constraints on a motion for reconsideration of an order, along with other rules imposing more general requirements. Rule 7 - Rule 7(b) states in relevant part:
An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.
Other than the request to reopen four depositions, the SCO motion does not specify the relief requested and it does not "state with particularity the grounds therefor" other than a bare statement that providing a URL for two discovery items was sufficiently specific and a vague statement that expert reports are somehow relevant to the request. There is in effect just a generalized request that the court reconsider a particular ruling without explaining the grounds for the request and without identifying the portions of the ruling that SCO wants to be reconsidered.
It is not a proper motion. You have to tell a judge what relief you are after and you have to do more than say "read these four expert reports then reconsider your ruling." A motion that particularizes neither the relief sought nor the grounds therefor does not qualify as a motion and therefore is an improper communication with the court. It is only a request.
Consider it this way. SCO asked the judge to reconsider. If the judge wanted to be a smart aleck, he could write back, "Okay, I've granted your request and I have reconsidered," but not say a word more. SCO won its request. So what? Were SCO to write back and say, "what did you decide after you reconsidered," the judge could say, "you didn't ask me that; if you want to know, you'll have to file a motion."
What the court is saying with this notice is "don't plan to file an appeal based on that bit of trash. I'm not going to go hunting through the huge record of that ruling plus four new expert reports unless you tell me precisely which needles you want me to look at and where they are."
It's all about specificity. Here's the text.
***************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Robert Silver (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Steven N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for The SCO Group, Inc.
__________________________________
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.
_________________________________
MOTION FOR RECONSIDERATION
OF NOVEMBER 29TH ORDER
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
________________________________
Plaintiff, The SCO Group, Inc., by and through undersigned counsel, moves for reconsideration of this Court's Order dated November 29, 2006, which affirmed in total the Magistrate Judge's Order of June 28, 2006, wherein the Magistrate Judge struck 187 technology disclosures from the case. SCO respectfully submits that the rules of procedure do not support such a result under the circumstances of this case.
The grounds for this motion are new evidence previously unavailable, and the need to correct clear error or prevent manifest injustice. SCO respectfully requests that this Court reconsider the Order to allow for consideration of new evidence not in the original record and to prevent manifest injustice. The Magistrate Judge did not have, at the time she entered the Order striking SCO's claims, the benefit of the expert reports prepared in this action.
SCO also seeks leave to reopen four depositions of IBM programmers, each reopened deposition not to exceed two hours, for the purpose of exploring an evidentiary issue important to IBM's Motion.
Last, the December Submission did comply with the required level of specificity by providing a URL address on which numerous patches – all of which indicate file, version and line – at the Tab linked to Items 279 and 280.
For the foregoing reasons, SCO prays that this Court will reconsider its Order of November 29, 2006, and grant relief as requested above.
DATED this 13th day of December, 2006.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
By ___[signature]___
Counsel for The SCO Group, Inc.
2
CERTIFICATE OF SERVICE
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing SCO's MOTION FOR RECONSIDERATION was served on Defendant/Counterclaim-Plaintiff, International Business Machines Corporation, on this 13th day of December, 2006, via electronic mail (by agreement of the parties) to the following:
David Marriott, Esq. (email)
Cravath, Swaine & Moore LLP
[address]
Todd Shaughnessy, Esq. (email)
Snell & Wilmer LLP
[address]
___[signature]____
3
**********************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[Address]
[Telephone]
[Facsimile]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Attorneys for The SCO Group, Inc.
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. |
REDACTED
MEMORANDUM IN SUPPORT OF
MOTION FOR RECONSIDERATION
OF NOVEMBER 29th ORDER
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C . Wells
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Plaintiff, The SCO Group, Inc., by and through undersigned counsel, submits this
Memorandum in Support of its Motion for Reconsideration of this Court's Order dated November 29,
2006, which affirmed in total the Magistrate Judge's Order of June 28, 2006, wherein the Magistrate
Judge struck 187 technology disclosures from the case. SCO respectfully submits that the rules of
1
procedure do not support such a result under the circumstances of this case. In order to prevent
manifest injustice to SCO, reconsideration is appropriate on each of the grounds set forth below.
On reconsideration, relief may be appropriate "where the court has misapprehended the
facts, a party's position, or the controlling law." Servants of the Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000). Motions to reconsider are generally analyzed under the test established for
Rule 59(e) motions to amend a judgment, provided that such motion is filed within ten days of the
order for which movant seeks reconsideration. See id.; see also Phelps v. Hamilton, 122 F.3d
1309, 1323-24 (10th Cir. 1997); Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir.
1991) (observing that arguments that the district court misapplied the law or misunderstood a
party's position are properly raised in a Rule 59(e) motion). There are three bases on which relief
may be granted: (1) an intervening change in the controlling law; (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice. SCO respectfully
requests that this Court reconsider the Order to allow for consideration of new evidence not in the
original record and to prevent manifest injustice.
Each Item or combination of Items stricken from SCO's case comprises a basis on which a
jury could find IBM liable for SCO's losses. By precluding SCO from presenting these claims to
a jury, the effect of the Order is tantamount to partial dismissal. "Before imposing dismissal as a
sanction, a district court should ordinarily evaluate the following factors on the record: '(1) the
degree of actual prejudice to the [other party]; (2) the amount of interference with the judicial
process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that
dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser
sanctions.'" Gripe v. City of Enid, 312 F.3d 1184, 1187 (10th Cir. 2002) (quoted in Procter &
2
Gamble Co. v. Haugen, 427 F.3d 727, 738 (10th Cir. 2005) (identifying these as the "Ehrenhaus
factors").
This Court stated its intent to undertake a de novo review, but it was in fact deferential to
the Magistrate Judge, noting her "educated position" to evaluate discovery-related issues. The
opinion of this Court affirming her Order is expressed in a single paragraph. De novo review
requires that the actual underlying testimony relevant to an issue be considered. See Gee v. Estes,
829 F.2d 1005, 1008 (10th Cir. 1987). The Tenth Circuit has instructed:
When objections are made to the magistrate's factual findings based
on conflicting testimony or evidence, both § 636(b)(1) and Article
III of the United States Constitution require de novo review. The
constitutional safeguards, as established by Congress and
interpreted by the courts, are such that an appellate court must be
satisfied that a district judge has exercised his nondelegable
authority by considering the actual testimony, and not merely by
reviewing the magistrate's report and recommendations.
Id. at 1008-09 (internal quotation marks and citations omitted).
Furthermore, while here no evidentiary hearing was held either by the Magistrate Judge or
by the District Court, (although SCO requested one) there are factual issues and evidence
underlying the decisions. This motion for reconsideration seeks consideration of evidence beyond
what was present in the record before the Magistrate Judge. Now that this case has been removed
from the trial schedule to allow for consideration of summary judgment motions and for the
Novell trial to proceed first, there is no compelling time restraint which precludes pursuing the
avenues discussed below. SCO specifically asserts three bases for relief from the Order.
3
1. The Order Should Not Have Been Entered Before All Expert Reports Were Filed
The Magistrate Judge did not have, at the time she entered the Order striking SCO's
claims, the benefit of the expert reports prepared in this action.1 (SCO specifically urged that the
motion be deferred until after expert reports were exchanged and expert discovery was conducted.)
The issues before the Magistrate Judge and before this Court clearly involve complex issues of
computer technology on which the Court would benefit from consideration of expert reports. We
submit that consideration of the expert reports of Marc Rochkind and Evan Ivie in particular
would assist the Court in understanding that the technology items subject to the June 28 Order
were disclosed in sufficient detail to allow for preparation of a defense. The Court could ascertain
from such review, for example, that concerns of sandbagging are unwarranted. Moreover,
inspection of IBM expert reports would reveal that on the technology items not subject to the June
28 Order, and to which IBM experts responded, the responsive expert reports did not require or, to
any significant degree, make use of the type of version, file and line identifiers that the IBM
Motion to Strike was predicated upon.
Proper consideration of the expert reports through either an additional round of briefing or
an evidentiary hearing would give the Court the benefit of the substantial work that has gone into
this issue by technology experts in considering (or in this case, reconsidering) the necessity and
propriety of the Order striking claims.
2. New Evidence Would Likely Be Available Through Several Additional
Depositions of IBM Programmers
The Magistrate Judge and this Court denied SCO's request for an evidentiary hearing on
the factual issues presented in IBM's motion. Discovery of fact witnesses was closed prior to the
4
first hearing before the Magistrate Judge on IBM's Motion. Due to the summary judgment
schedule and the Novell trial, this case has now been removed from the trial calendar. SCO seeks
leave to reopen four depositions of IBM programmers, each reopened deposition not to exceed
two hours, for the purpose of exploring an evidentiary issue important to IBM's Motion.
IBM, as the Court is aware, contends that SCO's technology disclosures are fatally
defective by failing to have specific version, file and line coordinates for all technology items.
These items are largely methods and concepts that IBM programmers disclosed from the Dynix
operating system, which is a derivative of UNIX System V subject to the restrictions on use and
disclosure contained in the Agreements at issue in this case. These witnesses, such as Timothy
Wright, Rick Lindsley, Gerrit Huizenga, and Jack Vogel, should be asked whether they know the
coordinates in Dynix for the technology items they disclosed to the Linux community. If they do,
that is proof IBM is not prejudiced by any omission in the SCO submission. If they do not know
these coordinates for disclosures they made from Dynix, perhaps they could explain how SCO
knows or should know that information but they do not.
Reopening these depositions for this purpose would cause no prejudice to any party, given
the current time schedule and very modest expenditures of time and money. (If the Court
subsequently concludes that this was not beneficial, it can award the expenses incurred by IBM in
connection with such depositions.) We submit that such supplementary testimony is likely to
expose the central flaw at the heart of IBM's motion — that the information (version, file and line)
of stricken technology items is either not known to the individuals to disclosed such technology
(and thus not reasonably known to SCO), or, in fact, is already known to IBM, who cannot then
possibly sustain a claim of prejudice justifying striking these items from SCO's case. See, e.g.,
Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir. 1988) (finding abuse of
5
discretion where district court dismissed claims for unintentional mistake not resulting in any
actual prejudice).
3. At a Minimum, the Court Should Reconsider a Limited Number of the
Stricken Items
While SCO believes the Order should be reconsidered in its entirety, in the alternative,
SCO requests that the Court reconsider the following list of Items. These Items have not been
specifically mentioned in either the Magistrate Judge's Order or in this Court's Order. SCO
maintains that if the Court were to examine them individually, it would be satisfied that the
identifying information provided by SCO is consistent with SCO's discovery obligations and
sufficient to inform IBM as to the nature of the disclosure. An explanation of how each item was
identified in the December Submission, which SCO contends was sufficient information to notify
IBM of the nature of the disclosure, is also found on the following table:
REDACTED
6
REDACTED
As noted above, the December Submission did comply with the required level of
specificity by providing a URL address on which numerous patches — all of which indicate file,
version and line — at the Tab linked to Items 279 and 280. The nature of these Items and the
manner in which they were identified in the December Submission is explained further in the
7
Expert Report of Marc Rochkind.3 The Magistrate Judge accepted the contrary representation of
Randall Davis in his declaration, without the benefit of either an evidentiary hearing to determine
what weight to afford his statement, or affording SCO an opportunity to present a responsive
declaration.
CONCLUSION
For the foregoing reasons, SCO prays that this Court will reconsider its Order of
November 29, 2006, and grant relief as requested above.
DATED this 13th day of December, 2006.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
By (signature)
Counsel for The SCO Group, Inc.
8
CERTIFICATE OF SERVICE
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and
correct copy of the foregoing SCO's MEMORANDUM IN SUPPORT OF MOTION FOR
RECONSIDERATION was served on Defendant/Counterclaim-Plaintiff, International Business
Machines Corporation, on this 13th day of December, 2006, via electronic mail (by agreement of
the parties) to the following:
David Marriott, Esq. ([email address])
Cravath, Swaine & Moore
[address]
Todd Shaughnessy, Esq. ([email address])
Snell & Wilmer LLP
[address]
By (signature)
9
EXHIBIT A
FILED UNDER
SEAL
10
(1) SCO had filed initial reports prepared by its experts prior to entry of the Magistrate Judge's Order. However, two
additional sets of reports were exchanged after the Order of June 28.
(Back to the main text)
(3) For the Court's convenience, SCO has attached hereto only those pages specifically relevant to Items 279
and 280 as "Exhibit A."
(Back to the main text)
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| Authored by: MathFox on Monday, December 18 2006 @ 04:19 PM EST |
So that Pamela can correct them in a single sweep
---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 04:20 PM EST |
I can just hear Kimball:
"You know which rule you broke, now go fix it. What are you waiting
for?"[ Reply to This | # ]
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| Authored by: MathFox on Monday, December 18 2006 @ 04:22 PM EST |
Don't stray too far from legal and FOSS issues...
Make links and post in HTML mode if you know a bit of HTML.
---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.[ Reply to This | # ]
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| Authored by: rsi on Monday, December 18 2006 @ 04:28 PM EST |
Or then again, maybe it is leaving it up to SCO to find the problem
in that mountain of procedural rules? Just joking. Don't joke!
It would be quite appropriate! That is what SCO has done to IBM, so why
shouldn't SCO have to sit there scratching their heads for once! ;^) [ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 04:29 PM EST |
... that SCO should not re-file, that Kimball doesn't want to have to deal with
this particular batch of SCO's baloney.
MSS2[ Reply to This | # ]
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| Authored by: MathFox on Monday, December 18 2006 @ 04:30 PM EST |
| I have the feeling that this notice is about document #899: SCO'S OBJECTION TO THE
MAGISTRATE
JUDGE’S DECISION
ON IBM’S MOTION TO CONFINE which is little more than a
notice from BSF that they "will file a memorandum, 10 days after the written
order."
Kimball seems to give them notice that he expects a proper motion, with
memoranda.
Why do I have the feeling that Wells's written order will come
before Christmas? ---
If an axiomatic system can be proven to be consistent
and complete from within itself, then it is inconsistent. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 04:34 PM EST |
What is the procedure for filing electronically? Perhaps they did not check a
box correctly?[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 04:40 PM EST |
| it has "requests" in the text. [ Reply to This | # ]
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| Authored by: Nick_UK on Monday, December 18 2006 @ 04:40 PM EST |
OK, please tell us what was wrong and will we fix it!
"Sorry, you know what you did wrong, and it isn't us to
tell you what you know what you did wrong here"
Yes, but we need to know what it was to fix this?
"We know, but we are not telling you - file it properly."
OK, we did file it properly - but what is wrong then?
"We have a suitcase full of the errors..., so you must
tell us what you did wrong, then we can tell you."
Heh.
Nick[ Reply to This | # ]
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| Authored by: AJWM on Monday, December 18 2006 @ 04:43 PM EST |
The filing moved for reconsideration, but also contains the wording "SCO
respectfully requests that this Court reconsider the Order".
More significantly, the next paragraph starts "SCO also seeks leave to
reopen four deposistions of IBM programmers,".
Surely that is an entirely unrelated issue (although SCO says that it's
"for the purpose of exploring an evidentiary issue important to IBM's
Motion".
It concludes praying for both the Court to reconsider the Order and granting the
requested relief.
The second part of all that seems to me (IANAL, etc) clearly a request, not a
motion. Perhaps that's why the court sent it back?
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 04:43 PM EST |
| IS this something SCO did intentionally to provoke the judge? [ Reply to This | # ]
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| Authored by: kawabago on Monday, December 18 2006 @ 04:45 PM EST |
If it's a request, SCO can keep asking after it's turned down. If it's a motion,
once it's declined, they can't. That's what it looks like to my
un-legally-educated mind.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 04:47 PM EST |
Sounds like a request to me. Also, they don't "pray" that the court
will "grant relief", but don't actually ask for any. A
reconsideration is not relief. Re-opening depositions is not relief.
I suspect (I hope) that Judge Kimball wants them to do one thing in one filing,
not ask for reconsideration *and* go fishing again *and* ask for some
unspecified "relief".[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 04:51 PM EST |
Everyone above who has noted the use of the word "request" is
incorrect. The successful motion of IBM that PMJ linked us to also uses that
word.
I see that the order is not to file a new document, but to "refile".
My guess is that they checked the wrong box on some accompanying form.[ Reply to This | # ]
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| Authored by: MrCharon on Monday, December 18 2006 @ 04:52 PM EST |
SCO's Motions looks like a letter to the Court, where IBM's motion has a
Preliminary Statement, Argument, and Conclusion. But then IBM actually refers
to their motion as "request for reconsideration".
Anyone know what the legal difference between a Motion and a Request is?
---
MrCharon
~~~~
[ Reply to This | # ]
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| Authored by: overshoot on Monday, December 18 2006 @ 04:53 PM EST |
| maybe this is a hint that their next last-minute request for an extension of
time to file, or request for leave to file overlength, or ... just might get
"no" for an answer, leaving them with no reply at all?
Well, we have
been dreaming of that day. I wonder if His Honor has, too? [ Reply to This | # ]
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| Authored by: GriffMG on Monday, December 18 2006 @ 05:02 PM EST |
I think the tell-tale was that while IBM requested a reconsideration SCO prayed
for one!
B-)
---
Keep B-) ing[ Reply to This | # ]
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| Authored by: mexaly on Monday, December 18 2006 @ 05:04 PM EST |
SCO says they had a URL in their December submission that has the file, line,
and version information.
Maybe the court is saying that submissions must be original copies, not HTTP
vapors?
Golly, if you could just file a URL and keep updating the "evidence"
as the case proceeds, well, then, ...
---
My thanks go out to PJ and the legal experts that make Groklaw great.[ Reply to This | # ]
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| Authored by: jmc on Monday, December 18 2006 @ 05:12 PM EST |
...it's a way for Judge Kimball to signal "perhaps you might like to
reconsider whether you want to file something so stupid - calling me a liar too
- whatever it's called or perhaps I'll reconsider my decision not to start
dishing out sanctions".[ Reply to This | # ]
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| Authored by: elcorton on Monday, December 18 2006 @ 05:26 PM EST |
This is from the redacted brief [898] supporting SCO's botched "request"
for
reconsideration [894]:
Motions to reconsider are generally
analyzed under the test
established for Rule 59(e) motions to amend a judgment,
provided that such
motion is filed within ten days of the order for which
movant seeks
reconsideration.
These intervals can be tricky to
compute. For most purposes, the clock
starts the day after the written order is
entered, and counts only business
days. Docket 894 was filed on Dec. 13, which
by my count was the last
day on which it could be filed. Kimball has now
rejected the pleading as
deficient in form, politely asking the movant to
refile it under a new docket
number. No big deal, right? What he doesn't
mention is that, by SCO's own
argument, it's now too late for the motion to
be entertained. SCO's
counsel may have lost this motion for their client,
because of a procedural
error a first-year law student wouldn't have made. [ Reply to This | # ]
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| Authored by: Juggler on Monday, December 18 2006 @ 05:39 PM EST |
SCO is deficient.
Yep. That pretty much sums it up![ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 05:43 PM EST |
This is just the tip of the ice-berg. SCO is trying to get a reaction from the
judge they can use for retrial.[ Reply to This | # ]
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| Authored by: Wardo on Monday, December 18 2006 @ 05:46 PM EST |
| I think the problem with their filing is that they are making statements which
seem to match up with the opening portion of the IBM motion. The last paragraph
of the SCO motion seems to match up with the conclusion section in the IBM
motion...
New evidence - So what's missing is a decent argument and
quoted cases supporting that argument. Saying the judge didn't have some expert
reports, and not citing anything to support the claim seems like my kids relying
on the "but mommy says" routine. (True or not, if mom's not there to prove or
veto it, dad's in charge).
Reopen discovery - We would like to ask
these guys some more questions, because there is an evidentiary issue important
to IBM's motion. No details on the issue, just a declaration that an issue
exists. Again, no arguments as to when this has been allowed in the past in
some other case, just the claim that it's important enough to grant the
reopening of depositions. (Sorry no kid analogy here...)
URLs - We
gave you the URLs to some patch files, which gives you file line and version.
Yeah, so what, you were told to provide that information for all the items, and
instead you provided a patch URL. You could have looked it up and saved those 2
items from being thrown out. (I told you kids to clean your rooms, not shove
everything in the closet! But dad, the room is clean...)
So yeah, I
really think the judge is giving them a freebie to refile because there is no
substance to the motion. I want this that and another thing, but I won't
tell you why with any specifics. (Nor will I provide any case law that supports
my motion.) Maybe the motion should have been titled "What SCO wants for
Christmas".
Wardo [ Reply to This | # ]
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- Went a little fast - Authored by: Wardo on Monday, December 18 2006 @ 06:09 PM EST
- My $.02 - Authored by: Anonymous on Monday, December 18 2006 @ 06:50 PM EST
- My $.02 - Authored by: red floyd on Monday, December 18 2006 @ 07:54 PM EST
- URLs - Authored by: tinkerghost on Tuesday, December 19 2006 @ 01:20 PM EST
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| Authored by: ozbird on Monday, December 18 2006 @ 06:12 PM EST |
It concludes praying for both the Court to reconsider the Order and granting
the requested relief.
"Prays" seems a unusual choice of words for a
legal document, but perhaps not in Utah. Is it's use instead of "requests"
significant?
It kind of gives the impression that SCO knows that a simple
request would be denied, so they're asking the judge to "turn the other cheek".[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 06:18 PM EST |
Unfortunately, BS and SCO haven't ever seemed to recognise hints from the bench
- no matter how pointed they are.
Something it's likely that Judge Kimball, with a heavy sigh, realised even as he
was penning the order!
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| Authored by: gumnos on Monday, December 18 2006 @ 06:24 PM EST |
The document was filed as a request and would be better filed as a
motion. The court asks the filer of the original document to file the pleading
again.
Roughly translated "If you file a request, I
don't have to care. If you file a motion, I actually have to pretend
like I care."
:-)
-gumnos
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| Authored by: Anonymous on Monday, December 18 2006 @ 07:28 PM EST |
| How can there be new evidence? Discovery is over! It seems to me that no amount
of new evidence would help SCO at this point. The court sanctioned SCO for
failing to provide evidence with sufficient specificity by the court imposed
deadline. How can additional evidence or specificity provided after the
passing of the deadline be at all pertinent. Perhaps the court can't quite see
this either. While a motion doesn't have to give all details, surely the reasons
stated for seeking reconsideration have to have at least a thin veneer of
respectibility and relevance.
"I request reconsideration of this ruling on
the grounds that my mother makes a very good lemon pie".
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| Authored by: SirHumphrey on Monday, December 18 2006 @ 08:59 PM EST |
Court flier orders refile, riles filer.
Motion for Reconsideration considered a request. Court requests reconsidered
Motion, for consideration; Denies Deficient fishing request; Pleading declared
insufficient; Requests the pleading obvious. Specifically orders specifics with
specificity, to be specific.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 09:48 PM EST |
truckloads of legal procedures !
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| Authored by: bystander1313 on Monday, December 18 2006 @ 09:55 PM EST |
From F.R.C.P. Rule 7:
(b) Motions and Other
Papers
(1) An application to the court for an order shall be by motion
which, unless made during a hearing or trial, shall be made in writing, shall
state with particularity the grounds therefor, and shall set forth the relief or
order sought. The requirement of writing is fulfilled if the motion is stated in
a written notice of the hearing of the motion.
tSCOG argues in
their attempted motion (and supporting memorandum) that the grounds for their
motion are "consideration of new evidence not in the original record and to
prevent manifest injustice." However, one appellate court had this to say
about motions for reconsideration:
"The granting of a motion for
reconsideration is "an extraordinary remedy which should be used sparingly." 11
Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d ed.
1995). Unless the court has misapprehended some material fact or point of law,
such a motion is normally not a promising vehicle for revisiting a party's case
and rearguing theories previously advanced and rejected. See In re Sun Pipe Line
Co., 831 F.2d 22, 24-25 (1st Cir. 1987). To obtain relief, the movant must
demonstrate either that newly discovered evidence (not previously available) has
come to light or that the rendering court committed a manifest error of law. See
Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 7 n.2 (1st Cir.
2005)."
The motion fails to cite a single specific instance of
a manifest error of law committed by Judge Kimball. The memorandum covers three
examples that tSCOG cites as instances of new evidence.
- The first
example talks about how the magistrate judge did not have available certain
expert reports that were later produced by tSCOG when rendering the initial
ruling. However, it appears to me that the only reason the purported evidence
was not available to Judge Wells was because tSCOG chose not to reveal it until
later. Evidence from expert reports authored by Rochkind and Ivie especially do
not seem to fit the standard of unavailability required to sustain a motion for
reconsideration.
- The second example doesn't even talk about actual evidence,
but rather only the possibility of obtaining additional evidence if only tSCOG
were allowed 2 hours of additional deposition time with four IBM
programmers.
- Finally, the third example simply asks Judge Kimball to
reconsider a limited set of stricken items, while again failing to disclose any
particulars about having new and previously unavailable evidence or
illustrations of clearly manifest errors of law.
tSCOG seems to have
failed the first requirement of a proper motion, to state with particularity the
grounds for such a motion. They also seem to have failed the second requirement,
to clearly set forth the relief or order sought.
The only specific actions
which tSCOG asks the court to perform call for "reconsideration of this Court's
Order dated November 29, 2006" and to "reopen four depositions of IBM
programmers." They fail to state what they wish the court to do upon performing
the reconsideration (in sharp contrast to the IBM motion example cited by PJ),
and fail to show how re-opening depositions would even be relevant to such a
reconsideration.
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| Authored by: sschlimgen on Monday, December 18 2006 @ 10:16 PM EST |
In IBM-898, SCO has the
following little gem regarding re-deposing IBM engineers:
"We
submit that such supplementary testimony is likely to expose the central flaw at
the heart of IBM's motion - that the information (version, file and line) of
stricken technology items is either not known (and thus not reasonably known to
SCO), or, in fact, is already known to IBM, who cannot then possibly sustain a
claim of prejudice justifying striking these items from SCO's
case."
This looks like a false dichotomy to me, setting up an
unsupportable "either/or" situation. If they include this in a future motion, I
hope IBM jumps on it and points out a third possibility - that SCO, being the
claimant, ought to know what it's claiming.
Which, come to think of
it, pretty much describes this case from day one.
---
Meandering
through life like a drunk on a unicycle. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 18 2006 @ 11:28 PM EST |
Actually, SCO's filing of this law suit was deficient. But we all aready know
that.
...D[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 19 2006 @ 12:17 AM EST |
894 is supposedly the originally version of the motion/request
897 is supposedly the redacted version of 894
900 is the ruling on the procedure.
There are two anamolies that seem hard to explain:
1. 897 is supposedly redacted - but if you examine the PDF there doesn't appear
to be any redaction.
The word "redacted" or "redacted" doesn't appear in place of
any sentence in the motion.
In some redacted documents in the past, there has just been whitespace where a
part was redacted. However there is no space for whitespace anywhere in 897.
Which makes me wonder if anything has been redacted.
Is it possible that 897 is not the redacted version of 894, but something else?
Maybe SCO drafted both a request, and a motion, and redacted versions of both of
these,
And after consideration, meant to file the motion as 894, and redacted motion as
897,
But accidentally slipped up, and filed request as 894, and redacted motion as
897 ???
(This would not be the first time SCO has made this kind of slip up. Remember
the request to dismiss IBM's 9th, 10th and 14th counterclaims, which was meant
to actually only be about the 10th).
2. Second oddity is that docket 900 references 897, i.e. the redacted version
If you look at the past dockets from the court, (e.g. oral hearings, rulings,
etc.) they always reference the non-redacted version.
So, in other words, one would expect 900 to reference 894.
Quatermass
IANAL IMHO etc.
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| Authored by: Anonymous on Tuesday, December 19 2006 @ 12:24 AM EST |
May be SCO intentionally filed those request / motion in deficient way in order
to get more delay.
</ sarcasm on />
Is it normal that plaintiff delay their case ?. Plaintiff usually want their
case resolved asap and get their awarded money asap, right ?.
</ sarcasm off />
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| Authored by: Anonymous on Tuesday, December 19 2006 @ 12:27 AM EST |
BSF doesn't seem to mind they are dragging our court system through the mud, the
case haas become obvious for what it is- unspoken extortion.
SCOG through it's attorneys and fairy is seeing to it that our system is viewed
as all about spinning lies and car salesman tactics.
That pretty much scares off the world, who wants to be subject to imperialism ?
our system is supposed to be about freedom.
SCOG & BSF know no shame, the level of incompetance seen in SCO's recent
filings suggest either the intern is doing all the filings or BSF namesakes are
losing their basic knowledge of law- either way the symptoms speak for
themselves.
These types of puss filled infections will be overcome by the hot lance of the
law, it's just a matter of time.
Natural selection & cream rising to the top is a basic foundation of
freedom, suppression of collegial thinking leads societies into monopolistic
control-
The Emperor Has No Clothes[ Reply to This | # ]
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- No duh Sherlock - Authored by: Anonymous on Tuesday, December 19 2006 @ 08:52 AM EST
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| Authored by: sproggit on Tuesday, December 19 2006 @ 02:57 AM EST |
A long time ago now, PJ posted an article (written, I believe, by AllParadox)
which interpreted some rulings for Judge Kimball as being messages for both IBM
and TSG with respect to how the case was coming along.
Lacking the experience or explicit legal knowledge of AllParadox, my
contribution is but a wild guess, but right now I have a feeling that Judge
Kimball is sending several messages with this request to re-file:
Firstly, as so many have observed already, he has decided that he has an
opportunity - and that the time is right, to remind both TSG and BSF that,
"He who lives by the sword, dies by the sword..." and that if they
want to try and tie him up with procedural niceties, then he can play that game
very well, thank you.
Secondly, I think this is an understated way of saying to BSF, "You might
think that you can bully, intimidate or run rings around Judge Wells, but don't
event _think_ of trying any of that with me."
Thirdly, I believe the good Judge can sense when things are being "set
up" for later moves in this particular story, and has decided to get in on
the act himself. This request to refile is not a sanction, exactly, but we could
easily interpret it as an "unofficial warning" along the lines of,
"OK boys, you get this one for free. The next one is gonna cost
you..." It is a nice, polite, formal way of saying, "I can ask you to
play by the rules, or I can slap you with the rule book. Which one you get is up
to you..." but at no time would I dare to miss the inference!!!
Fourth, and I have to throw this one in, I'd like to think that Judge Kimball
wrote this with a smile on his face. I think and would like to believe that he's
showing us he has a sense of humour. Well, maybe.
Fifth and last, it leaves us in no doubt that he groks what's going on around
here. He groks deeply, as Michael Valentine Smith might say...[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 19 2006 @ 04:51 AM EST |
| "Moreover, inspection of IBM expert reports would reveal that on the
technology items not subject to the June 28 Order, and to which IBM experts
responded, the responsive expert reports did not require or, to any significant
degree, make use of the type of version, file and line identifiers that the IBM
Motion to Strike was predicated upon." Did Biff write that one ? Sounds
just like his word-salad style. [ Reply to This | # ]
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| Authored by: elronxenu on Tuesday, December 19 2006 @ 05:42 AM EST |
The Motion asks for:
- Reconsideration of the Court's Order which upholds
the
Magistrate Judge's order to strike non-specific items of
evidence
- 4
further depositions of IBM programmers
However, the Memorandum asks
for:
- Reconsideration of the Court's Order which upholds the
Magistrate
Judge's order to strike non-specific items of
evidence
- Reconsideration to
include new evidence
- 4 further depositions of IBM programmers
- The court
should reconsider the striking of specific
items.
I don't know if that is
enough to get the motion refused
as "not well formed", but it seems like a
sloppy work
product from SCO's lawyers. Perhaps it really was written
by their
lowest level staffer. Whose signature is on the
motion page?
SCO's attempt
to catch IBM in a dilemma (as in "they
should know where in Dynix was the
technology they
disclosed") won't work, because that's only part of the
required specificity. SCO also needs to show where that
technology was
inserted into Linux, to show that it was
inserted as a result of the IBM
disclosure; they need to
show where the code was in SysV. to prove that the
SysV
code was the same as the Dynix code and that the SysV code
hadn't been
released or otherwise become unprotectable. It
seems the burden of proof will
be insurmountable for SCO
for any of their items at all, no matter how specific
SCO
has been in their disclosures.
I have to wonder why SCO are trying this
apparently lame
tactic at this time. At any moment they could be killed by
PSJs or Novell's constructive trust. Is this "motion"
likely to slow down the
judgement on the PSJs? Or is
Kimball about to rule on PSJs and he wants to do
so with
no motions outstanding?
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| Authored by: Chris Lingard on Tuesday, December 19 2006 @ 09:52 AM EST |
Bob Mims reports in the Salt Lake
Tribune
"Largely, SCO wants to show some new
evidence and cites some technical problems in the decision to be fixed. I can't
really discuss more because [documents are under seal]," SCO attorney Brent
Hatch said Thursday.
IBM, which has steadfastly declined to
comment on developments in the suit, had no comment.
Both sides in
the suit filed by SCO in March 2003 have filed documents under seal involving
proprietary software and projects.
So is this the
first Perry Mason moment?
[ Reply to This | # ]
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- Hee hee - Authored by: Anonymous on Tuesday, December 19 2006 @ 12:45 PM EST
- Maybe an attempt - Authored by: Anonymous on Tuesday, December 19 2006 @ 12:52 PM EST
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| Authored by: WhiteFang on Tuesday, December 19 2006 @ 11:38 AM EST |
It seems to me that, with this filing, BS&F and SCOX are continuing their
practice of telling the judges that BS&F knows the law better than the
judges.
It appears to be a regular part of BS&F's strategy of getting 'their way' in
court. It hasn't worked in this court, but certainly not for lack of trying!
The expression "To a man with a hammer, every problem looks like a
nail." comes to mind. I wonder if BS&F even knows of any other way to
conduct their litigation?
---
DRM - Degrading, Repulsive, Meanspirited 'Nuff Said.
"I shouldn't have asked ... "[ Reply to This | # ]
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| Authored by: Wardo on Tuesday, December 19 2006 @ 12:17 PM EST |
It seems to my non-lawyer mind that SCO should have objected to the version file
and line with these expert reports long ago. From some of the other posts I
glean that:
- The experts that will weigh in on file line and version
were SCO's experts, and were available since the start of this case.
Marc
Rochkind:
- Declaration [669] (filed 14 APR
2006).
- Declaration filed as exhibit F to [820] (27 SEP
2006).
I don't find the expert reports he names in the second declaration.
Namely: An Analysis of Certain Technical Issues in: [case title] and
Rebuttal Report of Marc Rochkind [case title]
Dr. Evan
Ivie:
- Declaration as exhibit C to [820] (27 SEP
2006). It seems he prepared 2 reports as well, but I can't locate filings by
these titles either: Expert Report of Dr. Evan Ivie, May 19, 2006 and
Expert Rebuttal Report of Dr. Evan Ivie, August 28, 2006.
Some of
these reports are mentioned in a certificate of service [686] (24 MAY 2006) and
another declaration of service [758] (31 AUG 2006) but I
can't find the text of the reports.
- The file line and version requirement
was in a number (2 or 3?) of ORDERS from the court during
discovery.
- Discovery has been dragged out for quite some time.
I'm
guessing the expert reports filed on 27 September are the ones in question,
since they come after the June 28 order. (The order resulting from a hearing on
14 April 2006 [Article or
PDF Transcript].
Interestingly the beginning of the order states that the Marc Rochkind
declaration was permitted so SCO would have their expert against IBM's
expert.
So the hearing was April 14, and SCO was granted leave to file
Rochkinds expert report, and IBM asked to be able to rebut that report. (I
think this was granted as well.) And now SCO is trying to get more expert
reports admitted on the subject to refute the exclusion of the evidence they
presented. There has to be a cutoff of counter reports from experts, otherwise
you would get a stack overflow of rebuttals...
Is there any way to tell if
the expert reports filed after the June 28th order were in the works, or were a
response to the order itself? SCO objected to the June 28th order in [724]
filed on 18 July 2006 (Redacted version of [726] which was filed on 13 July
2006). This was upheld by Judge Kimball in [884] (29 NOV 2006) after a hearing
on 24 OCT 2006. Is it just me or do some of the expert reports look like they
are supporting the motions submitted to counter the orders resulting from IBM's
motion to exclude certain parts of the discovery? All of which should have been
argued when the initial file line and version discovery order was issued (IMHO
of course). It really looks like they are trying to add expert testimony to the
14 April hearing, well after the fact, by filing motions supported by new expert
testimony. Then claiming that the new expert reports should have been in the
record before the ruling was made.
Are they in effect saying "you should
have used these expert reports in deciding your order, that I didn't submit
until after I moved to have your order reviewed"?
Corrections welcome,
because I know I may be looking at this backwards or sideways...
Wardo [ Reply to This | # ]
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| Authored by: Laomedon on Tuesday, December 19 2006 @ 12:58 PM EST |
| Simplest explanation:
The PACER entry [900] only refers to 897 (the
redacted motion, filed as request) - thus BS&F only needs to refile
the redacted motion as motion. [ Reply to This | # ]
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| Authored by: Jaywalk on Tuesday, December 19 2006 @ 05:52 PM EST |
These witnesses, such as Timothy Wright, Rick Lindsley, Gerrit
Huizenga, and Jack Vogel, should be asked whether they know the coordinates in
Dynix for the technology items they disclosed to the Linux community. If they
do, that is proof IBM is not prejudiced by any omission in the SCO submission.
If they do not know these coordinates for disclosures they made from Dynix,
perhaps they could explain how SCO knows or should know that information but
they do not. This is like the old joke where someone asks, "Do
you still beat your wife?" Because the accusation is buried in the question,
there is no way to answer. Both "yes" and "no" are wrong. The right question
would be to ask if material in Dynix was improperly contributed to Linux, but
SCO does not want to ask that. They've been scouring both Linux and Dynix to
find similarities they can use and have come up with nothing. Since they can't
find "where" the infringing code is, they can't prove "if" there is any.This
is a transparent attempt to get to trial with the "if" question already answered
in their favor. ---
===== Murphy's Law is recursive. ===== [ Reply to This | # ]
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| Authored by: webster on Tuesday, December 19 2006 @ 07:19 PM EST |
II - Memo [Comments on Motion are above]
1. They start by spouting law favorable to them or generally appropriate but
soon come to their red flag: "By precluding SCO from presenting these
claims to a jury,....." p. 2. First pitch, curve ball inside -- confusing
specified evidence, vfl, for claims. Earth to SCO "You have a right to
present specified claims, vfl. You do not have a right to present unspecified
claims." Anonymous, GL, 6/16/06, 13:51 a.m. Nothing new. Already asked
and answered.
2. Oh my! Next they say that Kimball did not "undertake a de novo
review" despite clear evidence to the contrary: KImball said he did.
Who's telling the truth? What will that witness Kimball say when that Judge
Kimball reconsiders? Why would the SClawyers (SCO lawyers) bang their head
against this wall? They must be desperate for some reason. p. 3.
3. They then go on to ask for a hearing to seek to introduce new evidence since
the trial has been put off and there is time. They promise three bases for
relief from the Order. p. 3.
4. Reason one is that the motion to strike should have considered the experts
first. See 8 the Speculative Analysis below about this. Here again SCO
arguments work against themselves. They say Rochkind and Ivie expert reports
would show that the striken material was specific enough. Wha...? Weren't they
specific on additional material? Previously unspecified, undisclosed material?
Did they make unpecific references to SCO's unspecific, stricken material? What
is wrong with vfl? They also want the court to look at the IBM experts for two
reasons --they show that IBM has enough time to defend themselves, and they did
not have to be specific to blow them away. Well how could they? They ask for
an additional round of briefing or an evidentiary hearing. The Judges seem to
have shut the door. It is too late for VFL's. No more briefing and hearing on
the same stuff is necessary.
5. Reason two is that new evidence would likely be available through several
additional depositions of IBM programmers. Such....persistence, to be delicate!
Again see 8 below. They have some emails or something that seem to indicate
that 4 IBM programmers gave something to Linux. It's concepts and methods and
SCO's one-clause derivative theory. There is time, no prejudice, and SCO offers
to pay for it all if it does not produce anything. Why can't SCO just line up
the concepts and methods in SYS V code with the same in Linux? All they would
have to do is pinpoint the undisclosed, unknown and matching m and c's, if there
are any unknown m & c's.
6. Reason three is a request to reconsider at least a limited number of
stricken items, ones that have not been referenced by Judge Welles or Judge
Kimball with specificity. Such ....persistence! They want itemized strikes by
the judge. Sort of like redoing homework for extra credit. They then argue
that an URL specifies all the patches linked to. The IBM expert panned this and
SCO did not have an opportunity to respone or be heard. Ergo a fundamental
breakdown in fairness and due process.
7. They then ask for the relief "suggested" above. They must mean
reversal, or a hearing, or briefing, or depositions, or reconsideration of
limited items. Kimball is no dummy. He can figure it out.
8. Speculative analysis. Unlike in most complex civil litigation, the SCO
clients (SClients) have a good idea what is going on in this case due to the
intense scrutiny and dire prospects. The SClawyers are despondent and
heartless. They are known to produce slapdash or deficient product. This
motion is a desperate attempt to cover the SClawyers assets. Its stridency and
repetition and affront to the judges indicate they are laboring for themselves,
not SCO. They have been vigorous in demanding discovery, blaming IBM,
stonewalling and filing paper, but they have not been so dynamic in discovering
evidence, and disclosing evidence. They have been lax at discovering what may
not exist. They have been relaxed with depositions and counting lines. This
motion refers to two colossal errors. The first is not including the expert
code references in the final disclosures. The second is not conducting
sufficiently thorough and specific depsotions. The items that led them to these
four programmers were disclosed to them. They either did not depose, or if they
did depose they did not ask the specific questions. So the SCLawyers are
scrambling. It puts them in the ironic position of hoping their one-clause
derivative theory gets blown away. This makes these errors harmless. If the
theory gets anywhere, they have fumbled possible evidence that may have backed
them up. They are screaming for a break from Kimball.
9. The refiling should be interesting.
---
webster
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| Authored by: sk43 on Tuesday, December 19 2006 @ 11:26 PM EST |
I do not understand the protocol for how expert reports are
prepared and exchanged, but from SCO's description in
Section I., it appears that only the Rochkind and Ivie
reports (filed on behalf of SCO) address the method &
concept items, while IBM's reports failed to reply to them
at all. I infer this from SCO's statement:
"Moreover, inspection of IBM expert reports would reveal
that on the technology items not subject to the June 28
Order, and to which IBM experts responded, ..."
Thus, it would appear the expert reports that SCO is asking
Kimball to consider contain ONLY SCO's side of the story for
the M&C claims.
IBM filed its original motion on the basis that it couldn't
even begin to prepare expert reports without the version,
file, line information.[ Reply to This | # ]
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