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SCO's Redaction to Sealed Motion for Reconsideration - Curioser and Curioser
Wednesday, December 20 2006 @ 01:42 AM EST

Somebody is getting confused. Maybe it's me. Maybe it's the clerk. Maybe it's SCO. But SCO has filed a document that is supposedly a redaction of document 894, which is titled on Pacer as "SCO Motion for Reconsideration of November 29th Order", and it's marked "SEALED MOTION". The new filing is called not a redaction of that motion but just Motion for Reconsideration of November 29th Order [PDF, #902]. 902 is described on the docket sheet as being "REDACTION to [894] SEALED Motion". 894 was filed on December 13th. 902 was filed on the 19th. Are you with me so far?

On Monday, we looked at docket number 897, which was filed on the 14th. Pacer says 897 is the "SCO Request for Reconsideration of November 29th Order" (note "request", not "motion"). The court notified SCO on the 18th that this filing, 897, is deficient, because it was "filed as a request and would be better filed as a motion". Now, 897 was filed on December 14th, the day *after* the sealed Motion for Reconsideration, 894.

So, the steps, at least on Pacer, go curiously like this, as far as I can make out:

  • SCO files [894] sealed Motion for Reconsideration (13th)
  • SCO files [897] Request for Reconsideration (14th)
  • Court tells [900] SCO (18th) its request [897] needs to be a motion instead, despite the fact that SCO has already filed a motion [894] the day before the request [897].
  • SCO files [902] a "redacted" version of the supposedly sealed motion [894], but [897], which is the request for reconsideration, and [902], the "redacted" motion, are identical, which means that the request was actually titled a motion.

I give up. From Pacer, it looks like SCO double filed, once as a motion and once as a request. This is starting to remind me of the subpoena that ordered Oracle to have a witness show up without fail for a deposition on January 27 in Oakland, California and the notice of the deposition said to show up on the 27th for the same deposition in Armonk, New York. Remember? Maybe the court gave up too and that is why it asked SCO to file anew and told it how to file, as a motion, not a request. Honestly, that could actually be the simple explanation. In any case, I'm not going to make my brain hurt any more over trying to figure out what SCO is doing. When they refile, I'll turn my brain back on.

Also, the parties wish to take a break themselves, and heaven only knows someone needs a vacation. The parties have stipulated to give each other until January 12th to reply to all the summary judgment motions. The deadline had been December 22.

Here's what the stipulated motion says about the time extension:

The parties, through their counsel of record, hereby stipulate and jointly move the Court for an Order enlarging deadline for both parties to file their respective reply memoranda in further support of the pending motions for summary judgment. The parties respectfully request that the current deadline, December 22, 2006, be extended to January 12, 2007. The parties make this motion with the understanding that the requested extension will not affect the dates set for oral argument on the parties’ motions for summary judgment, and will allow the Court sufficient time to consider the parties’ papers.

This of course mainly benefits SCO, because it has more summary judgment motions to reply to than IBM. And as longtimers will recall, the holidays are very big with SCOfolk. Just kidding around.

Here are all the pertinent Pacer entries, so you can have fun with this puzzle, if you are so inclined. Or, like me, you may wish to just wait and see what SCO files that sticks:

894 - Filed: 12/13/2006
Entered: 12/14/2006
Sealed Motion
Docket Text: SEALED MOTION for Reconsideration of November 29th Order #[884] filed by Plaintiff SCO Group. (blk, )

895 - Filed: 12/13/2006
Entered: 12/14/2006
Sealed Document
Docket Text: **SEALED DOCUMENT** MEMORANDUM IN SUPPORT re [894] SEALED MOTION to Reconsider Order #[884] dated 11/29/06, filed by Plaintiff SCO Group. (blk, )

897 - Filed & Entered: 12/14/2006
Request
Docket Text: REQUEST for Reconsideration of November 29th Order filed by Plaintiff SCO Group. (Hatch, Brent)

898 - Filed & Entered: 12/14/2006
Brief
Docket Text: SUPPORTING MEMORANDUM BRIEF re [897] Request for Reconsideration of November 29th Order filed by Plaintiff SCO Group. (Hatch, Brent)

900 - 12/18/2006 - 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)

901 - Filed & Entered: 12/18/2006
Motion for Extension of Time
Docket Text: Stipulated MOTION for Extension of Time to file reply memoranda in further support of pending motions for summary judgment filed by Defendant International Business Machines Corporation. (Attachments: # (1) Text of Proposed Order)(Shaughnessy, Todd)

902 - Filed & Entered: 12/19/2006
Redacted Document
Docket Text: REDACTION to [894] SEALED MOTION for Reconsideration of November 29th Order by Plaintiff SCO Group. (James, Mark)

I only know one thing as clear as a bell. I'd pay to be a fly on the wall at BS&F. And to give them a hand, I've posted in News Picks an article by a paralegal on how to draft a motion properly, so next time they positively can't miss.

Yes, I'm just kidding around. Maybe they didn't know which was the correct form, a request or a motion, and they worried about missing a deadline, which can happen with a request for reconsideration, which has a short time to file, so they just filed both. That would actually be a smart thing to do in a case like that, I'd say. The worst thing a law firm can do is miss a deadline.

Update: Thanks to Chad, we have it as text now:

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

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)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLOWER. LLP
[address, phone, fax]

Stephen 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 0. 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]

By____[signature]_____

3

  


SCO's Redaction to Sealed Motion for Reconsideration - Curioser and Curioser | 267 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic Here
Authored by: moosie on Wednesday, December 20 2006 @ 01:50 AM EST
Make links clicky.

- moosie.



---
"I can make you feel, but I can't make you...think" - Jethro Tull

[ Reply to This | # ]

Curioser and Curioser
Authored by: Fogey on Wednesday, December 20 2006 @ 01:53 AM EST
Well, this being SCO, it's probably just the Re-Redaction of the Re-Request for
Re-Reconsideration.

---
Old age and treachery ALWAYS
beats Youth and enthusiasm!

[ Reply to This | # ]

Mind Reading
Authored by: The Mad Hatter r on Wednesday, December 20 2006 @ 01:59 AM EST


As I've said before - I'd give almost anything to be able to read minds, if I
could pick the time, and the people.


---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

Corrections here please
Authored by: jbb on Wednesday, December 20 2006 @ 02:14 AM EST
... all in one place.

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

[ Reply to This | # ]

Less and less curious
Authored by: Anonymous on Wednesday, December 20 2006 @ 03:00 AM EST
I don't think there is much to understand -- its just the most people on Groklaw
(there were some exceptions) read way too much into the court's notice of
deficiency.

All the happened is that when 897 was filed, either SCO made a mistake, or the
clerk made a mistake, and it was entered into Pacer as a Request, when it should
have been entered as a Motion (specificially, redacted version of 894, the
sealed *Motion* for Reconsideration).

Someone noticed the mistake, and the court told SCO to re-file as a Motion,
which is what they have done. Of course the contents are unchanged (same as
897), because there was never anything wrong with the contents. (Well, being a
SCO-authored document, there is lots wrong with it, but that is another story
;-)

[ Reply to This | # ]

SCO's game - leave all doors open, choose
Authored by: skidrash on Wednesday, December 20 2006 @ 03:07 AM EST
which one to go through when they're pushed.

"oh, judge - silly us, did you really think we meant THAT? no, actually, we
meant THIS ...."

Just like their discovery - to gain an unfair advantage, delay until the 11th
hour, 59th minute, 59th second.

[ Reply to This | # ]

SCO's Redaction to Sealed Motion for Reconsideration - Curioser and Curioser
Authored by: wharris on Wednesday, December 20 2006 @ 03:12 AM EST
Near as I can tell It's pretty simple. 897 should be a motion for
reconsideration
isntead of a request for reconsideration. Instead of chaning the title, the
court
asked SCO to refile. SCO did, as a motion (Actually, as a redacted version of
their
existing version).

Don't see any mystery here but IANAL.

[ Reply to This | # ]

SCO's Redaction to Sealed Motion for Reconsideration - Curioser and Curioser
Authored by: Anonymous on Wednesday, December 20 2006 @ 04:52 AM EST
"The worst thing a law firm can do is miss a deadline."

Really? I'd think having a client like Darl the Snarl would have to run that a
very close second!

[ Reply to This | # ]

SCO's Redaction to Sealed Motion for Reconsideration - Curioser and Curioser
Authored by: elronxenu on Wednesday, December 20 2006 @ 05:17 AM EST
I guess that our document 897 is not the correct document 897. The court has entered this document properly as 902, and one day soon they will realise their mistake and make the correct 897 available.

I guess that the correct 897 will be titled "REQUEST for ..."

[ Reply to This | # ]

  • No - Authored by: GLJason on Wednesday, December 20 2006 @ 10:22 AM EST
Shall we have a celebration when the 1,000th document gets filed?
Authored by: billyskank on Wednesday, December 20 2006 @ 05:57 AM EST
:D

---
It's not the software that's free; it's you.

[ Reply to This | # ]

Simple Explanation (and a curiosity)
Authored by: GLJason on Wednesday, December 20 2006 @ 06:10 AM EST

Very simple (after I spent an hour thinking about it :)). 897 and 898 were incorrectly filed by the clerk as new entries when they are actually redactions to 894 and 895. The mistake may have been made since 894 wasn't redacted at all and the word "REDACTED" doesn't appear on the motion. Also the docket text is incorrectly entered as "REQUEST". 900 is Judge Kimball telling the clerk to re-file the documents with correct docket text, since he looked at them and they are motions. This will give them new docket numbers, possibly because the system doesn't allow the modification of docket text once entered (sinsible if you don't want a rogue clerk messing with ten-year-old cases). The clerk correctly re-files 897 as 902 (nearly exact same documents, down to clerk stamping both received on 12/13 so it couldn't be SCO re-filing), and either hasn't bothered with 898 yet (Judge Kimball didn't mention fixing that one) or hasn't gotten around to it. Since it is simply a redaction of a properly filed and sealed memorandum and the only issue is with the docket text, I don't think it's a big deal.

So 897 and 902 are almost identical, down to both being stamped "Received 2006 Dec 13 7:30". And despite being filed (by clerk) on separate dates (8/14 and 8/19 supposedly). About that "almost". I don't know if anyone else noticed, but pages 2 and 3 are per-pixel identical on both versions. However, if you open up both documents in different tabs in Firefox (or in some PDF viewer) and switch between them, you can see that Page 1 is slightly different, although the contents remain the same. It's almost as if the first page was scanned at two different times, but the second and third digital page were copied from the original scan. I don't know what this could mean...

[ Reply to This | # ]

Error - Reply in Further support
Authored by: Anonymous on Wednesday, December 20 2006 @ 08:33 AM EST
Actually it's the reply in further support that has been delayed. The
oppositions have already been filled.

So, as far as you want to characterize it as helping one side or the other, I'd
say it helps IBM a little. Since I believe IBM is far more likely to get their
SJ motions than SCO.

[ Reply to This | # ]

Oh, Great. SCO Has Gone Heisenberg On Us
Authored by: Anonymous on Wednesday, December 20 2006 @ 09:00 AM EST
Hey, everybody!

So the only way to find out what SCO is presently doing with these filings is to
wait for them to stop, then track where they've been.

Or does the "Uncertainty Priciple" mean their prospects in the case?

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

SCO's Redaction to Sealed Motion for Reconsideration - Curioser and Curioser
Authored by: Anonymous on Wednesday, December 20 2006 @ 09:54 AM EST

PJ said:

I'm not going to make my brain hurt any more over trying to figure out what SCO is doing. When they refile, I'll turn my brain back on.

PJ, now you've gone and done it! By turning your brain off, you will most likely thoroughly understand what SCO is doing! Be afraid , be very afraid !

Seriously, I wish you and all grokers the best blessings of the holiday season!

...D

[ Reply to This | # ]

SCO's Redaction to Sealed Motion for Reconsideration - Curioser and Curioser
Authored by: Anonymous on Wednesday, December 20 2006 @ 10:52 AM EST
This is the original motion that was rejected by Judge Kimball as inadequate.
It is dated December 13, 2006. Nothing new to see here.

[ Reply to This | # ]

Crying Wolf for 3 years
Authored by: Anonymous on Wednesday, December 20 2006 @ 11:10 AM EST
SCO has been crying wolf for 3 years, they say they do not know what a wolf
looks like. The longer this drags on the better for Linux & the community,
by that I am suggesting that the case has already been dismissed in the minds of
the majority leaving only motivation as a factor for continuing.

Can anyone think of any other OS that has been subject to a MICRO scopic
examination ?

Would Microsoft ever allow windows code under go this type of scrutiny?

Nuff said, now for a quote " Time is on my side, yes it is"

[ Reply to This | # ]

Another Christmas Carol??
Authored by: jmc on Wednesday, December 20 2006 @ 11:13 AM EST
In the bleak midwinter, while frosty winds make moan,
PJ's working out what SCO means and feeling all alone.
It's not as if she's come to think that SCO has got a case,
But she really would just like to know how came we to this place.

If they were playing Chess or Go it really would be time,
That looking round the board they'd say "It's hopeless we resign",
But SCO has had it from Judge Wells and Kimball's shown the door,
Still onward goes their argument - for discovery they crave more.

They endlessly repeat their bleating 'gainst all reason it may face,
That IBM should help them out with failings in their case.
Of "truckloads", "mountains" stolen code they haven't found
a jot,
So IBM employees now should have to find the lot.

"If they can find it", so they say, "that only goes to
show",
"That the seekers of the evidence should be IBM not SCO".
"And if they can't find it", they say on, "and they're the ones
who know",
"Then how can anyone expect the finders to be SCO?".

This sophistry seems clever and it's gone on for so long,
That all and sundry overlook here IBM has done no wrong.
That despite the system's failings and its glacier-like pace,
It really is now down to SCO to come up with their case.

And if they cannot do that as surely now they ought,
They'd better give it up and seek the mercy of the court.
Their latest pleading's pretty lame and offensive can't get higher,
Than saying to Judge K - "No de novo you're a liar".

For four years now we've had our fun and said to Darl, "You Jerk,
This senseless case has haunted us and we must get back to work.
It's time for you to take your loot and find a sunny beach,
In some poor third-world country where extradition doesn't reach".

[ Reply to This | # ]

borwser identification
Authored by: Anonymous on Wednesday, December 20 2006 @ 11:26 AM EST
many non-ie browsers are set to identify themselves to web servers as ie.

also, most users use the default browser installed on their machine when they
get it. iow, ie due to the windows monopoly on the desktop.

sum.zero

[ Reply to This | # ]

There were TWO decisions in the Nov. 29 Order [884]
Authored by: DMF on Wednesday, December 20 2006 @ 01:18 PM EST
One decision was the reaffirmation of Judge Wells' order.

The other decision was about scheduling, vacating the trial date.

It could be that one of the sealed duplicates deals with the scheduling issue.
It would be sealed if they talked about how it affects their financial
condition. And maybe duplicate titling is to throw everyone (i.e. PJ) off...

[ Reply to This | # ]

SCO's motion practice...
Authored by: mrcreosote on Wednesday, December 20 2006 @ 11:29 PM EST
... is starting to give me motions of a somewhat different type.

---
----------
mrcreosote

[ Reply to This | # ]
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