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The Wells Order to Confine SCO's Claims to and Strike Allegations in Excess of Final Disclosures
Tuesday, December 26 2006 @ 03:39 PM EST

This is the written order from the November 30th hearing in SCO v IBM, where Magistrate Judge Brooke Wells ruled from the bench, granting IBM's motion to confine SCO to whatever evidence they had put on the table by the court-set deadline of December 22, 2005. This is the written order, Order Granting IBM's Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final Disclosures [PDF}.

SCO has already filed objections to it with presiding Judge Kimball, in anticipation of this written order. As you may recall, when Judge Wells issued her order from the bench, she told SCO to take it up with Judge Kimball if it so desired. And so it has.

And you can see why it would want to, in that this order speaks not just to SCO's case, but it is a sanction for misbehavior, and no law firm wants that on its record. I think I may say that this is probably particularly true when one represents a litigious client.

Just so everyone is clear, this isn't the November 29th order, where Judge Kimball upheld Judge Wells' June 28th order tossing out items on SCO's list of allegedly misused materials because IBM said they were not described with the required specificity, by version, file, line, and the court agreed. SCO has also asked Judge Kimball to reconsider his order on that, after he already reviewed Judge Wells' order and affirmed. The court, in turn, has notified SCO its filing is deficient and SCO has to refile.

This is instead the written order from November 30th, the next day, on another IBM motion, and it relates more to some materials SCO tried to introduce via experts reports, like the Marc Rochkind methods and concepts materials. As you can see in the Wells order, it's tossed.

Let me be clear on one point I've seen misunderstood in the media -- none of SCO's claims in its Complaint as filed have been tossed. SCO's Second Amended Complaint, which is the final and operative one, stands as filed, with all the claims intact. SCO's ability to *prove* them is what has been affected, but the claims are still in the case. IBM is working on that, with its various summary judgment motions, at least some of which look to me like a piece of cake, but the court has not yet thrown out any of SCO's claims in its complaint by either of the two orders, just evidence in support and materials introducing new claims by means of a back door, the experts reports, after the discovery deadline.

All of the items tossed by both orders could have been part of the case, if SCO had put them on the table straightforwardly, by the deadline, identified so IBM could know what the issues are, by version, file and line, and had it presented evidence in support of its methods and concepts theory by the deadline. Now, the court has ordered that it is too late:

...SCO may not challenge as misused, by expert testimony or otherwise, any material that SCO has not specifically identified in its Final Disclosures of Material Allegedly Misused by IBM...

As for anything else, not on the list, SCO can't introduce anything new, either:

As to what SCO has not specified as misused, it is the Court's intent that this order shall apply to any and all allegedly misused material, including structures and sequences.

Unless SCO can get this overturned, it's buh-bye methods and concepts. And some of you, I know, will say good riddance. All SCO had to do was play by the rules, and none of this would have happened. Instead, as Judge Wells put it, SCO seemed to be trying to hide materials until the 11th hour, in hopes of gaining an unfair advantage. And that tactic has blown up in SCO's face. She warned both sides at a February 2006 hearing that she didn't want evidence used that had been held back, in words she recalled in her June 28th order:

Obviously what I don't want is either side to use information that has been withheld in support of a summary judgment motion or in support of their case at trial, all evidence need[s] to be on the table for the other party to analyze and take a look at

She meant it. As Judge Kimball just wrote in his order affirming her June 28th order, there is no reason for SCO to be surprised:

The court finds that SCO failed to comply with the court’s previous discovery-related Orders and Rule 26(e), that SCO acted willfully, that SCO’s conduct has resulted in prejudice to IBM, and that this result–the inability of SCO to use the evidence at issue to prove its claims– should come as no surprise to SCO.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

____________________________

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.

___________________________________

ORDER GRANTING IBM'S MOTION TO
CONFINE SCO'S CLAIMS TO, AND
STRIKE ALLEGATIONS IN EXCESS OF,
THE FINAL DISCLOSURES

Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

Defendant and Counterclaim-Plaintiff International Business Machines Corporation's ("IBM's") Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, The Final Disclosures came before the Court for hearing on November 30, 2006. David Marriott appeared for IBM. Brent Hatch appeared for Plaintiff and Counterclaim-Defendant The SCO Group, Inc. ("SCO"). The Court, having considered both parties' papers, having heard argument of counsel, and for good cause appearing,

IT IS HEREBY ORDERED as follows:

1. IBM's motion is granted in full;

2. As provided in the Court's order dated July 1, 2005, the parties' Stipulation re Scheduling Order dated December 7, 2005, this Court's order dated June 28, 2006, and Judge Kimball's order dated November 29, 2006, SCO may not challenge as misused, by expert testimony or otherwise, any material that SCO has not specifically identified in its Final Disclosures of Material Allegedly Misused by IBM (Docket No. 591); and

3. As to what SCO has not specified as misused, it is the Court's intent that this order shall apply to any and all allegedly misused material, including structures and sequences.

DATED this 21st day of December, 2006.

BY THE COURT

___[signaature]___
Brooke C. Wells
Magistrate Judge

2

APPROVED AS TO FORM:

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Edward Normand

___/s/ Brent O. Hatch _______________
Counsel for Plaintiff
(e-filed with authorization from counsel)

3

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of December, 2006, a true and correct copy of the foregoing was delivered by email to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

___/s/ Todd M. Shaughnessy________________

4


  


The Wells Order to Confine SCO's Claims to and Strike Allegations in Excess of Final Disclosures | 196 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: Tufty on Tuesday, December 26 2006 @ 03:44 PM EST
Misteaks happen


---
There has to be a rabbit down this rabbit hole somewhere!
Now I want its hide.

[ Reply to This | # ]

Off Topic Here, Please
Authored by: Tufty on Tuesday, December 26 2006 @ 03:46 PM EST
For all your Off Tropic topics.

Please read notes before ye post.


---
There has to be a rabbit down this rabbit hole somewhere!
Now I want its hide.

[ Reply to This | # ]

The Wells Order to Confine SCO's Claims to and Strike Allegations in Excess of Final Disclosures
Authored by: Anonymous on Tuesday, December 26 2006 @ 03:50 PM EST
Instead, as Judge Wells put it, SCO seemed to be trying to hide materials until the 11th hour, in hopes of gaining an unfair advantage.

How many "unfair advantage" rulings will it take to cancel her one "good faith" ruling that seems to be the only straw SCO has left to grasp, going by the number of times they cited it?

[ Reply to This | # ]

Unfortunately
Authored by: rsteinmetz70112 on Tuesday, December 26 2006 @ 03:55 PM EST
I suspect that IBM will need to be on guard from now on as SCO will try to get
this stuff back in at every turn. They will likely claim they didn't understand
the order to apply "this evidence", just "that other
evidence".

---
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 | # ]

What? Structures and Sequences?
Authored by: devil's advocate on Tuesday, December 26 2006 @ 04:23 PM EST

Where did she get this language from? I thought it was "code and methods and concepts". SCO will just say that simply doesn't apply to the additional evidence they would like to introduce. What does it even mean? I guess structures of code and sequences of lines, but that doesn't cover methods.

[ Reply to This | # ]

The Wells Order to Confine SCO's Claims to and Strike Allegations in Excess of Final Disclosures
Authored by: Anonymous on Tuesday, December 26 2006 @ 04:30 PM EST
Where is the sanction for misbehavior?

[ Reply to This | # ]

The Wells Order to Confine SCO's Claims to and Strike Allegations in Excess of Final Disclosures
Authored by: Nivag on Tuesday, December 26 2006 @ 04:47 PM EST
Ah...

The Judge has allowed SCO to say that "IBM mis-interpreted..." - which
is not the same as "mis-used..."

I'm sure SCO's legal team will think up some dodge, somehow, someway, or
other...

Could one of the Judges ask SCO's legal team to draft a motion outlining the
sanctions that should be imposed upon them (SCO's legal team) - with IBM's legal
team having the right to correct and extend said sanctions against SCO???


-Nivag

[ Reply to This | # ]

Call me a cynic...
Authored by: Wardo on Tuesday, December 26 2006 @ 04:55 PM EST
... but dispite the filing of an "intent to object" to this order by
SCO, I still think it's going to be filed on the afternoon of the last possible
day.

SCO's lawyers know what the order will contain, so they have had almost a month
for research and caselaw finding to support whatever objection they will be
raising. Is it normal in most cases for a law firm to wait till the last
possible moment to file objections? Do they polish and refine the motion to
object that much (so that every minute counts towards a better product)? Or is
it more of a "don't give any extra time for the other side to respond"
kinda thing?

Wardo

[ Reply to This | # ]

Claims confusion? maybe not
Authored by: Anonymous on Tuesday, December 26 2006 @ 05:03 PM EST
SCO has refered to the excluded items in more than one filing as
"Claims" (which causes confusion in itself).As was pointed out in
reply to an earlier article.One comment was that the court knew by context what
SCO was talking about. Is the judge allowed to assume/infer what SCO meant in a
filing?

If SCO does this often enough without the Judges and/or IBM objecting do the
excluded items become "Claims"?

Surely, BSF knows the difference between evidence and a claim, yet chose to use
the term "CLAIM".
Will SCO be able to point to these things later, on appeal if any, and say;
"We told the court our Claims could not be excluded/dismissed in this
manner and were ignored"?
This is SCO after all.
Or, is this a minor nit-pick? To me it appears as tho "the devil is in the
details" when it comes to legal filings. At times I can be a bit thick and
this might be one.

[ Reply to This | # ]

DOD bars use of HTML e-mail, Outlook Web Access
Authored by: Anonymous on Wednesday, December 27 2006 @ 01:02 PM EST
As a contractor for the DOD managing email systems, I often find myself
sctaching my head in disbelief at the policy decisions made. But when the
command comes from on high we have no choice but to do their bidding.

I have fought many a battle against the insanity and lost everytime.

It is true, "Military Intellegence" is an oxymoron.

[ Reply to This | # ]

Sanctions and Frivolous Lawsuits
Authored by: Anonymous on Wednesday, December 27 2006 @ 01:21 PM EST
I hope that the sanctions against SCO's Lawyers - Boies, Schiller & Flexner
LLP
- are held up. This is a black mark against lawyers and law firms since
sanctions against lawyers and law firms discourages clients from using them
in the future. It is nice to deprive bad lawyers of work.

I also hope that this lawsuit will be declared a frivolous lawsuit. This will
allow the court to force SCO's Lawyers to pay IBM the money they were paid
by SCO. Would that not be their just desserts.

Thus, two desired outcomes:
1. Impair SCO's lawyers from obtaining future work.
2. Force SCO's lawyers to pay IBM the $30 million that SCO paid them.

[ Reply to This | # ]

Witheld Evidence
Authored by: MplsBrian on Wednesday, December 27 2006 @ 01:43 PM EST
Speaking of witheld evidence, to take the devil's advocate position for a
moment, does the IBM letter to Santa Cruz that cancels the transfer of the
Monterey project to Caldera/SCO also qualify as 'witheld evidence?' Has it been
submitted prior to the recent summary judgement motion, and, more importantly,
should it have been?

[ Reply to This | # ]

The Wells Order to Confine SCO's Claims to and Strike Allegations in Excess of Final Disclosures
Authored by: webster on Wednesday, December 27 2006 @ 03:09 PM EST
1. This order has already been appealed to Kimball with a written objection.
They will now probably file further written objection and memo from this written
order. They will ask for a hearing, de novo. Kimball will give it the 'de
novo' review out of an abundance of caution, but it is too simple to bother with
a hearing. SCO will then ask for reconsideration because what else can they do.
Wells did all the heavy lifting with her big discovery order and Kimball liked
it. Both orders will stick. SCO went farther then they could ever hope for
with fuzzy claims and stonewalling. The judges have figured it out.

2. These orders are ironclad so far as SCO proving its claims and defending
against SJ's on their claims. They are certainly going to try and introduce the
stricken material as defenses to IBM's claims. The ironic argument will be
"Why should SCO be further damaged by their lawyers' failure to disclose
these materials in a timely fashion?" It is one thing to preclude a claim
by sanction, quite another to preclude a defense. This issue will return. What
else can they do. As someone characterized it, it's "whack-a-mole" by
litigation.

3. Since the dispositive motions have been briefed, they will have to be
reconsidered in the light of these orders. Redactions would help. SCO won't
like that. They might refuse and rest on the previous submissions. IBM could
then blackline the stricken materials and resubmit SCO's briefings. That would
certainly make it easier for the Judge.

4. What a joy it was to have the task of drafting this order, particularly
parts 1 and 3. They derived every benefit from the transcript.

---
webster

[ Reply to This | # ]

What could the SCOG Prove?
Authored by: Glenn on Wednesday, December 27 2006 @ 06:03 PM EST
PJ said "Let me be clear on one point I've seen misunderstood in the media
-- none of SCO's claims in its Complaint as filed have been tossed. SCO's Second
Amended Complaint, which is the final and operative one, stands as filed, with
all the claims intact. SCO's ability to *prove* them is what has been
affected,"

I don't think that the SCOG's ability to prove anything has been diminished
one iota by Judge Wells' ruling and order. None of any of that stricken
"evidence" proved anything. Just as none of the items left on the
table prove anything. It is just less garbage that IBM will have to deal with.

Glenn {okay, okay IANAL}

[ Reply to This | # ]

I'm a cynic, too
Authored by: Anonymous on Wednesday, December 27 2006 @ 06:08 PM EST
OK, so I AM very cynical.

I've read the posts, and the more I read, the more I am convinced that SCOG (and
M$ pulling the strings) have had this plan all along.

The plan?

* Cost IBM (and hence make it an example to others) a bucket of money, which
they will have no hope of ever recovering from SCO with any form of counter
litigation, creating a chilling effect
* Never get to trial, getting the entire case gutted on the way there,
because:
o They don't want anyting to be citeable that is in favor of Linux
being free and clear of any of the Unix patents
o They don't want anything about the GPL ever to actually come up in a
court case where the opposition has better lawyers than they do
o They do want to put FUD into the mindshare of everyone, which they
have already done

Well, I think SCOG/M$ have obtained their goals. SCOG has almost no assets
left, and after Novell is done, I'll bet they are in the hole so far they never
emerge.

With only 21 million in listed assets, (most recent 10Q, page 3), and their
losses running at about 4.5 million per quarter (page 4), (and that was 6 months
ago), it looks like SCOG will actually run out of money before next fall
(assuming that they maintain the same burn rate.)

What will M$ do if this entire issue comes up again, if it ever feels the need
to put FUD into the minds of their customers? Simply find another company
willing to fall on it's sword, the same as SCOG.

Well, it may be cynical, but it is my opinion. And, as such, worth every penny
you paid for it.

[ Reply to This | # ]

The Wells Order to Confine SCO's Claims to and Strike Allegations in Excess of Final Disclosures
Authored by: Anonymous on Wednesday, December 27 2006 @ 09:12 PM EST
I'm glad to see SCO held to the rules. There is some
real satisfaction in seeing SCO having its nose rubbed
in its too smart for its own good game playing. I
imagine that's even more satisfying for the lawyers.
It was their turf SCO was soiling.

However, I was sort of looking forward to having SCO
beaten over the head with their position's total lack
of merit...

SCO: The general organization of Linux is a copy of the
general organization of Unix, infringing our rights.

IBM: And that's IBM's fault?

SCO: Of course, IBM must pay SCO BILLIONS!

IBM: So, in which version of Linux did this organization
first appear?

SCO: Ah, well....

IBM: Let me rephrase, what was the last version of Linux
which had an organization disimilar to Unix?

SCO: Well, um....

IBM: So the structure of Linux has always been similar
to Unix? Since the first working version?

SCO: Ah, well....

IBM: At least, the structure was in place before IBM
started its Linux activities?

SCO: IBM made major contributions to Linux. Without IBM,
Linux wouldn't have been enterprise ready.

IBM: Just like Unix System V, before IBM made it into AIX?

SCO: No, well, umm, not exactly....

IBM: So this organization present in the first version
that Caladra distributed?

SCO: Well, you see we didn't know what was in it....

IBM: But your CEO says he did.

SCO: But, that was then, this is now....

IBM: Really.

SCO: Besides, its irrelevant, because of, umm, the TARDIS!

IBM: Moving on. This similar organization --
was it described in a book, published not by AT&T,
but with knowledge and cooperation of AT&T?

Well, I really aught to be satisfied with motions for PSJ,
they beat SCO around the head enough. Asking for SCO to be beaten and ridiculed
more really isn't in keeping with the charity appropriate to the season --
however much it appeals to the child in me.

[ Reply to This | # ]

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