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SCO's View of Its Motion for Reconsideration
Tuesday, December 19 2006 @ 12:47 PM EST

Bob Mims got SCO's attorney Brent Hatch to speak. So we get to hear what they think their motion for reconsideration is about:
Utah's SCO Group has asked a federal judge to reconsider striking most of the claims from its $5 billion, Linux-related lawsuit against IBM.

But they don't want anyone to know why.

Attorneys for the Lindon-based software company, which claims IBM illegally leaked SCO-owned Unix programming code into the freely-distributed Linux operating system, filed supporting documents for their reconsideration motion under seal this week.

"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.

So, SCO has swung around and is trying again for its Perry Mason moment. You know, the one that Magistrate Judge Brooke Wells characterized as almost like hiding the evidence until the 11th hour to try to gain an unfair advantage. I told you I thought they'd try something like this. The court has already informed SCO that the motion as filed is deficient and must be redone.

And while courts are always inclined to take seriously any pertinent new evidence, in this case, the apparent game playing has hurt their chances. The issue in the order they'd like reconsidered was whether they'd met a deadline. They didn't.

So, now they offer "new" evidence. Had they presented the new evidence straightforwardly, it could have been introduced long ago; as it is, having tried already to slip evidence in through the back door, after the deadline, and quietly via vague references that the court found insufficient (and in experts reports, the subject of another SCO motion for reconsideration of another IBM motion SCO lost that same week), it is hard to view the new attempt as anything but another run at getting the same evidence in underhandedly after the discovery door slammed shut. As Mims points out, because of the redaction, who knows if it's the same evidence or actually something new? Well, IBM will know. And that's how we'll find out eventually.

Sometimes tricks work in litigation, sadly; but once your reputation has been damaged, it's a lot harder to trick a judge.

Here's some information about F.R.C.P. Rule 60, which is about newly discovered evidence, not that I personally believe that is what this likely is, but here's the rule on it:

Rule 60. Relief from Judgment or Order

(a) Clerical Mistakes.

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc.

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., ยง 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

I marked the parts that seem to apply to SCO. Note that newly discovered evidence is by motion, not a request for reconsideration. Note the next Rule also, Rule 61:

Rule 61. Harmless Error

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

In the notes on Rule 60, it explains a bit what the rules are for:

Subdivision (b).

When promulgated, the rules contained a number of provisions, including those found in Rule 60(b), describing the practice by a motion to obtain relief from judgments, and these rules, coupled with the reservation in Rule 60(b) of the right to entertain a new action to relieve a party from a judgment, were generally supposed to cover the field....

The reconstruction of Rule 60(b) has for one of its purposes a clarification of this situation. Two types of procedure to obtain relief from judgments are specified in the rules as it is proposed to amend them. One procedure is by motion in the court and in the action in which the judgment was rendered. The other procedure is by a new or independent action to obtain relief from a judgment, which action may or may not be begun in the court which rendered the judgment. Various rules, such as the one dealing with a motion for new trial and for amendment of judgments, Rule 59, ... and one for judgment notwithstanding the verdict, Rule 50(b), and including the provisions of Rule 60(b) as amended, prescribe the various types of cases in which the practice by motion is permitted. In each case there is a limit upon the time within which resort to a motion is permitted, and this time limit may not be enlarged under Rule 6(b). If the right to make a motion is lost by the expiration of the time limits fixed in these rules, the only other procedural remedy is by a new or independent action to set aside a judgment upon those principles which have heretofore been applied in such an action. ...

To illustrate the operation of the amendment, it will be noted that under Rule 59(b) as it now stands, without amendment, a motion for new trial on the ground of newly discovered evidence is permitted within ten days after the entry of the judgment, or after that time upon leave of the court. It is proposed to amend Rule 59(b) by providing that under that rule a motion for new trial shall be served not later than ten days after the entry of the judgment, whatever the ground be for the motion, whether error by the court or newly discovered evidence. On the other hand, one of the purposes of the bill of review in equity was to afford relief on the ground of newly discovered evidence long after the entry of the judgment. Therefore, to permit relief by a motion similar to that heretofore obtained on bill of review. Rule 60(b) as amended permits an application for relief to be made by motion, on the ground of newly discovered evidence, within one year after judgment. Such a motion under Rule 60(b) does not affect the finality of the judgment, but a motion under Rule 59, made within 10 days, does affect finality and the running of the time for appeal.

So, SCO is in effect asking for relief, based on "newly discovered" evidence. I think that is why they have been asked to refile as a new motion. But is it newly discovered? Or previously hidden? That will be Judge Kimball's job, to parse out which it is, and he has to give SCO a fair hearing. I know he will, but he doesn't miss much. I also don't expect the ultimate outcome to depend at all on this particular motion or the "newly discovered" evidence. But it could have some effect on a later appeal, so it will be addressed by the court with seriousness of purpose, whether or not it's just another SCO sleight-of-hand.


  


SCO's View of Its Motion for Reconsideration | 182 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off-topic here, please
Authored by: overshoot on Tuesday, December 19 2006 @ 12:55 PM EST
Baked with HTML preview and topped with nice clicky links.

[ Reply to This | # ]

Corrections here please
Authored by: MadScientist on Tuesday, December 19 2006 @ 12:59 PM EST

[ Reply to This | # ]

Occam's Razor
Authored by: Laomedon on Tuesday, December 19 2006 @ 01:03 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 [897] as motion.

Thus perhaps the speculation about the actual motion's deficiencies is premature? I'd like to wait for IBM's reply.

[ Reply to This | # ]

SCO's View of Its Motion for Reconsideration
Authored by: Anonymous on Tuesday, December 19 2006 @ 01:04 PM EST
Well, either Bob didn't get it right or SCO has spun yet again:

"Utah's SCO Group has asked a federal judge to reconsider striking most of
the claims from its $5 billion, Linux-related lawsuit against IBM."

CLAIMS were not struck, EVIDENCE that failed to meet the requisite specificity
was struck.

There's a BIG DIFFERENCE.

[ Reply to This | # ]

Considering Reconsidering - Motion and Memo
Authored by: webster on Tuesday, December 19 2006 @ 01:22 PM EST
.

I Motion------

1. Presume SCO started out with their best pitches. They say the grounds are
"new evidence previously unavailable", [not "newly
discovered" evidence] and that Judge Wells did not have benefit of the
expert reports when she made her decision. [Are these experts at specificity?]
There are some curve balls here, and maybe a spitter.

2. Oh, by the way, judge, four depositions, mustard not mayonaise, onions, hot
peppers and hold the pickle.

3. How does SCO spell relief? "a-s- a-b-o-v-e"




II Memo---------

[Sorry gtg to real life] to be continued]

---
webster

[ Reply to This | # ]

Newly discovered evidence? I don't think so.
Authored by: Anonymous on Tuesday, December 19 2006 @ 01:24 PM EST
The URLs in the disclosures are not newly discovered. They existed all along.

Thew newly discovered evidence that SCO seeks to use are:

1. Material in their expert reports

2. Evidence that they have NOT discovered, but which they hope to discover by
deposing IBM programmers (to some how prove that SCO could not identify VFL)

However the court has already considered and reject both these arguments.

Point 1: At the time SCO opposed IBM's motion, they said the court should wait
for expert reports. The court decided it didn't need to before striking. In
other words, this argument has already been rejected.

Point 2: At the the SCO opposed IBM's motion, they said that IBM could ask its
own programmers for VFL, and that SCO couldn't possibly know VFL. The court
already rejected this argument too.


There is no new relevant evidence


Quatermass
IANAL IMHO etc.

[ Reply to This | # ]

SCO's View of Its Motion for Reconsideration
Authored by: Anonymous on Tuesday, December 19 2006 @ 01:37 PM EST
2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

I should certainly hope they won't get a new trial. But if they allow depositions on this, then wouldn't they have to move back into discovery to allow IBM to depose people on the material?

[ Reply to This | # ]

Newly discovered evidence?
Authored by: eskild on Tuesday, December 19 2006 @ 01:45 PM EST
That is hardly the case, especially as they need to depose some developer first
before they might have something!

---
Eskild
Denmark

[ Reply to This | # ]

SCO's View of Its Motion for Reconsideration
Authored by: tknarr on Tuesday, December 19 2006 @ 02:40 PM EST

I think 60(b)(2) is why SCO tried to slide this one through as a request for reconsideration instead of a simple motion to introduce new evidence. The judges have already made clear that they believe SCO had or should have had all this evidence in hand earlier and could and should have produced it before the deadline. If SCO openly asks to introduce it now, they'll have to explain to the judges exactly why they didn't have it available earlier. SCO doesn't have an answer to that that doesn't amount to "Because we wanted to keep IBM from being able to respond.", and that's gonna fly about as well with the judges as a lead brick. So, SCO's trying to slide the evidence in as material supporting their arguments during a hearing to reconsider the ruling. I suspect, though, that Judge Kimball's note indicates that the attempt's not going to fly like a lead brick, it's going to fly like one of Wile E. Coyote's Acme(tm) brand anvils.

[ Reply to This | # ]

Oh I get it ...
Authored by: devil's advocate on Tuesday, December 19 2006 @ 02:42 PM EST

Oh I get it, SCO says the court's judgement is deficient so the court says "actually your motion criticizing us is deficient". We haven't seen the motion yet but Hatch mentioned "technical problems in the decision to be fixed". That can't have gone down too well with Judge Kimball.

[ Reply to This | # ]

Where did they find the new evidence?
Authored by: rsteinmetz70112 on Tuesday, December 19 2006 @ 02:50 PM EST
Expert Reports are not "Allegedly Misused Material", they are
opinions. "Allegedly Misused Material" is a set of facts which experts
may draw conclusions from.

If they have new evidence, in the form of new facts, where did that come from?

If it came form IBM's discovery it is too late.

One possibility is it came for Novell's discovery, which is not closed yet, so
it is possible something SCO could not have anticipated turned up.

Another possibility, although very remote, is that it came from someplace else,
like someone tossed it over the transom at SCO or BSF.



---
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 | # ]

SCO's View of Its Motion for Reconsideration
Authored by: Anonymous on Tuesday, December 19 2006 @ 03:03 PM EST
Three guesses:
1) Blepp finally returned from his 'round-the-world hiatus?
2) MIT scientists finally surfaced?
3) SCO finally figured out how to use the CVS server?
;)

[ Reply to This | # ]

Isn't it about time
Authored by: Anonymous on Tuesday, December 19 2006 @ 03:54 PM EST
I feel that the time is right about now, that Kimball should rule that IBM's
homegrown code (from AIX and Dynix), isn't protected by the contracts.

This is obvious to everyone except SCO and their legal team. Such a ruling would
put paid to all of SCO's current shenanigans in one fell swoop.

[ Reply to This | # ]

SCO on infoweek
Authored by: Anonymous on Tuesday, December 19 2006 @ 05:15 PM EST
A interesting article in info week. Sco claims: "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 individuals who 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." Link Which means SCO really is trying to use the 4 depositions to show that IBM can already provide the VFL, or no one can. I'm just not sure how that helps SCO. They need some sort of evidence other than hand waving.

[ Reply to This | # ]

SCO still a laughingstock
Authored by: Anonymous on Tuesday, December 19 2006 @ 06:32 PM EST

It still seems as if SCO's lawyers actually WANT people to laugh at them.

I'm really hoping all this will also discredit Microsoft in the battles ahead.



[ Reply to This | # ]

Considering Reconsidering or SClients v. SClawyers
Authored by: webster on Tuesday, December 19 2006 @ 08:14 PM EST
.

II - Memo............... [Comments on Motion are way 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,
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 depositions. 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. They will have the benefit of Groklaw.



---
webster

[ Reply to This | # ]

I wonder if this is intentional - "SCO wants to show"
Authored by: skidrash on Tuesday, December 19 2006 @ 09:24 PM EST
"SCO wants to show some new evidence and cites some ...."

Hmmm .... who's running the case - BSF or SCO?

Who's writing the motions and requests? SCO or Hatch or BSF?

Is this really what it sounds like to me? Hatch distancing himself from SCO?
Setting the stage to say that he can't be held responsible in any way?

And didn't Hatch learn his lesson about interviews, when IBM included his words
in their opposition memo
(paraphrased)
"in an interview, SCO's own lawyer, Hatch, admitted that claims are still
there and therefore were not stricken ..."

Feel free to copy this post anywhere.

[ Reply to This | # ]

SCO's next idea:
Authored by: Anonymous on Tuesday, December 19 2006 @ 09:46 PM EST
SCO cannot tell anyone, even the court, due to national security concerns.

Hey, It works for other coverups...

[ Reply to This | # ]

  • SCO's next idea: - Authored by: Anonymous on Tuesday, December 19 2006 @ 10:08 PM EST
SCO's View of Its Motion for Reconsideration
Authored by: Kaemaril on Tuesday, December 19 2006 @ 09:53 PM EST
How many goes does SCO get at this?

SCO : We'd like you to reconsider your earlier decision.

Judge : No.

SCO : Would you, y'know, reconsider that decision to not reconsider?

Judge : NO.

SCO : Aw, man. Well, fair enough.

Judge : Good.

SCO : Yeah, it's just really ... listen, I don't suppose I could ask you to ...
oh, I dunno, I'm thinking out of the box here ... reconsider that decision to
not reconsider that decision to not reconsider?

Judge : Look, you're beginning to get irritating now ...

SCO : Aha! Proof positive you're out to get us!

Judge : What?

[ Reply to This | # ]

Again, we come back to delay no matter what it takes
Authored by: dmarker on Tuesday, December 19 2006 @ 10:37 PM EST

(even if it takes ridiculous tactics).

Delay is the order of the day. Maybe these ones do relate to the qtr report due
(IIRC one is due).

But each time I see another tactic like this one I see tSCOg seeking thru
BS&F more time for Microsoft.

DSM

[ Reply to This | # ]

SCO's new evidence
Authored by: Anonymous on Tuesday, December 19 2006 @ 10:54 PM EST
But they DO have new evidence! They've got Kimball's decision!

(SCO translation of events)
In our request to overturn Wells' decision we pointed out that we had not been
told that the evidence would be thrown out if it didn't meet the specificity
required. Then Kimball went ahead and threw it out, thereby proving that
specificity really was required. Since we now have proof its required that
implies that we must not have known beforehand, therefore Wells erred.

Not to mention her not reading the expert reports, which were not due until
after the deadline, thereby proving the schedule was in error also!

And as further proof, Hatch asked in the last hearing what Wells meant by
limiting the expert report to claims allowed, so clearly Wells orders are
ambiguous and unclear. All of them. So since we never understood what we were
supposed to do, discovery should be reopened so we can ask the right questions.

(Anb if you fall for that we'll be submitting our request to amend claims....)

[ Reply to This | # ]

  • Ouch.... - Authored by: Anonymous on Wednesday, December 20 2006 @ 03:19 PM EST
You have to file under seal
Authored by: Anonymous on Thursday, December 21 2006 @ 08:42 AM EST
When you accuse a judge of lying. Even so, unless they have real evidence, the
lawyers could be disbarred from practicing in Federal Court in Utah, just by
Judge Kimball. I have seen it happen in other cases where the attorneys had
said that the judge did something for a different reason than the judge said.

Of course this is O. Brent Hatch, so he won't get in trouble.

[ Reply to This | # ]

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