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22 Sealed Documents in SCOland and 3,000 Exhibits Unsealed in Comes v. MS
Friday, January 19 2007 @ 08:43 AM EST

Will you look at this? I don't think this has ever happened before: 11 sealed documents filed at once in SCO v. IBM and 11 in SCO v. Novell. Waaa! No fair! I want to read this. Only kidding. It is what it is. One way or another, we eventually find out anyway. No doubt there will be redacted filings soon.

Never fear, though. We will never run out of reading materials. The judge in Comes v. Microsoft has approved making public over 3,000 of plaintiffs' trial exhibits in the case. They'll be available tonight on http://www.iowaconsumercase.com, their web site [Update: The site was removed on settlement of the litigation. Documents can now be found here]. Quite a few exhibits are already posted.

And here's what we have from Pacer that we are allowed to read, SCO's Cross Motion for Partial Summary Judgment on Novell's Fourth Counterclaim [PDF]. The memorandum in support isn't available yet, so all we know from this is that SCO has filed a cross motion, and that it asserts this as its theme, which the memorandum will elaborate on: "SCO is entitled to partial summary judgment on Novell’s Fourth Counterclaim because the evidence of the parties’ intent under the APA and Amendments thereto is undisputed in SCO’s favor." Heh heh Undisputed. These guys crack me up.

Keep in mind that what is going on in IBM is perfectly normal. Once discovery is over, the next part of the process is that each side moves for summary judgment on whatever it thinks it can win on right away, on the law as opposed to facts that must be decided by the jury. After that winnowing process is done, we know what is still on the table and what, if anything, needs to go to trial.

What is going on in Novell is unusual, and that is why you may discern that there is a real dogfight going on. I just wish I could see every bit of it.

Here are all the listings that are new on Pacer in SCO v. Novell:

01/16/2007 - 221 - **SEALED DOCUMENT** OPPOSITION to 180 Cross MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT ON NOVELL'S THIRD, SIXTH, SEVENTH, EIGHTH AND NINTH COUNTERCLAIMS filed by Defendant Novell, Inc.. (blk) (Entered: 01/18/2007)

01/16/2007 - 222 - **SEALED DOCUMENT** DECLARATION of Heather M. Sneddon re [221] Sealed Opposition to Cross-Motion filed by Defendant Novell, Inc.. Part 1 of 2. (Oversized - No attachment.) (blk) (Entered: 01/18/2007)

01/16/2007 - 223 - **SEALED DOCUMENT** DECLARATION of Heather M. Sneddon re [221] Sealed Opposition to Cross-Motion filed by Defendant Novell, Inc.. Part 2 of 2. (Oversized - no attachment.) (blk) (Entered: 01/18/2007)

01/17/2007 - 210 - NOTICE OF CONVENTIONAL FILING of Novell's Opposition to SCO's Cross-Motion for Summary Judgment (Filed Under Seal), Declaration of Heather M. Sneddon (Filed Under Seal), and Novell's Response to SCO's Statement of Facts (Filed Under Seal) filed by Defendant Novell, Inc. (Sneddon, Heather) (Entered: 01/17/2007)

01/17/2007 - 211 - NOTICE OF CONVENTIONAL FILING of (1)SCO's Memorandum in Opposition to Novell's Motion for Partial Summary on its Fourth Counterclaim for Relief, and in Support of SCO's Motion for Summary Judgment (2) Declaration of Brent O. Hatch filed by Counter Defendant SCO Group, Plaintiff SCO Group (Hatch, Brent) (Entered: 01/17/2007)

01/17/2007 - 212 - MOTION for Leave to File Over Length Memorandum in Opposition to Novell's Motion for Partial Summary Judgment on its Fourth Counterclaim for Relief, and for SCO's Cross Motion for Summary Judgment filed by Counter Defendant SCO Group, Plaintiff SCO Group. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Hatch, Brent) (Entered: 01/17/2007)

01/17/2007 - 213 - **SEALED DOCUMENT**MEMORANDUM IN OPPOSITION to 171 MOTION for Partial Summary Judgment on Novell's Fourth Claim for Relief filed by Plaintiff SCO Group. (Oversized - no document attached.) (blk) (Entered: 01/18/2007)

01/17/2007 - 214 - **SEALED DOCUMENT** Memorandum in Support re 180 Cross MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT ON NOVELL'S THIRD, SIXTH, SEVENTH, EIGHTH AND NINTH COUNTERCLAIMS filed by Plaintiff SCO Group. (Oversized - No document attached.) (blk) (Entered: 01/18/2007)

01/17/2007 - 215 - **SEALED DOCUMENT** DECLARATION of Brent O. Hatch filed by Plaintiff SCO Group. (blk) (Oversized - no attachment.) (Entered: 01/18/2007)

01/17/2007 - 216 - **SEALED DOCUMENT** EXHIBITS 10-43 re [215] Sealed Declaration of Brent Hatch filed by Plaintiff SCO Group. (Oversized - no attachment.) (blk) (Entered: 01/18/2007)

01/17/2007 - 217 - **SEALED DOCUMENT** EXHIBIT 35 re [215] Sealed Declaration of Brent Hatch filed by Plaintiff SCO Group. (Oversized - no attachment.) (blk) (Entered: 01/18/2007)

01/17/2007 - 218 - **SEALED DOCUMENT** EXHIBITS 44-56 re [215] Sealed Declaration of Brent Hatch filed by Plaintiff SCO Group. (Oversized - no attachment.) (blk) (Entered: 01/18/2007)

01/17/2007 - 219 - **SEALED DOCUMENT** EXHIBITS 57-63 re [215] Sealed Declaration of Brent Hatch filed by Plaintiff SCO Group. (Oversized - no attachment.) (blk) (Entered: 01/18/2007)

01/17/2007 - 220 - **SEALED DOCUMENT** RESPONSE to Statement of Facts in 180 Cross MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT ON NOVELL'S THIRD, SIXTH, SEVENTH, EIGHTH AND NINTH COUNTERCLAIMS filed by Defendant Novell, Inc.. (blk) (Entered: 01/18/2007)

01/18/2007 - 224 - Cross MOTION for Partial Summary Judgment on Novell's Fourth Counterclaim filed by Counter Defendant SCO Group, Plaintiff SCO Group. (Normand, Edward) (Entered: 01/18/2007)

And here's the new in SCO v. IBM:

01/12/2007 - 938 - **SEALED DOCUMENT** REPLY MEMORANDUM in support of 780 MOTION for Summary Judgment on SCO's Contract Claims filed by Defendant International Business Machines Corporation. Part 1 of 2.(Oversized - no document attached.) (blk) (Entered: 01/18/2007)

01/12/2007 - 939 - **SEALED DOCUMENT**REPLY MEMORANDUM in support of 780 MOTION for Summary Judgment on SCO's Contract Claims filed by Defendant International Business Machines Corporation. Part 2 of 2. (Oversized - no document attached.) (blk) (Entered: 01/18/2007)

01/12/2007 - 940 - **SEALED DOCUMENT** REPLY MEMORANDUM in support of 785 MOTION for Summary Judgment on IBM's Tenth Counterclaim filed by Defendant International Business Machines Corporation. (Oversized - no document attached.) (blk) (Entered: 01/18/2007)

01/12/2007 - 941 - **SEALED DOCUMENT** DECLARATION of Todd M. Shaughnessy filed by Defendant International Business Machines Corporation. (blk) (Entered: 01/18/2007)

01/12/2007 - 942 - **SEALED DOCUMENT** REPLY MEMORANDUM in support of 781 MOTION for Summary Judgment on SCO's Copyright Claim filed by Defendant International Business Machines Corporation. (blk) (Oversized - no document attached.) (Entered: 01/18/2007)

01/12/2007 - 943 - **SEALED DOCUMENT** REPLY MEMORANDUM in Support of 775 MOTION for Summary Judgment on SCO's Third Cause of Action, For Breach of Contract filed by Plaintiff SCO Group. (Oversized - no document attached.) (blk) (Entered: 01/18/2007)

01/12/2007 - 944 - **SEALED DOCUMENT** REPLY MEMORANDUM in support re 776 MOTION for Summary Judgment on IBM's Second, Third, Fourth, and Fifth Counterclaims filed by Plaintiff SCO Group. (blk) (Oversized - no document attached.) (Entered: 01/18/2007)

01/12/2007 - 945 - **SEALED DOCUMENT** REPLY MEMORANDUM in support of 784 MOTION for Summary Judgment on IBM's Eighth Counterclaim filed by Defendant IBM. (blk) Modified on 1/18/2007 by correcting filer information(blk). (Entered: 01/18/2007)

01/12/2007 - 946 - **SEALED DOCUMENT** REPLY MEMORANDUM in support of 783 MOTION for Summary Judgment on SCO's Interference Claims filed by Defendant International Business Machines Corporation. (Oversized - no document attached.) (blk) (Entered: 01/18/2007)

01/12/2007 - 947 - **SEALED DOCUMENT** REPLY MEMORANDUM in support of 782 MOTION for Summary Judgment on SCO's Unfair Competition Claim filed by Defendant International Business Machines Corporation. (blk) (Entered: 01/18/2007)

01/12/2007 - 948 - **SEALED DOCUMENT** SUPPLEMENTAL DECLARATION of Todd M. Shaughnessy filed by Defendant International Business Machines Corporation. (blk) (Entered: 01/18/2007)


  


22 Sealed Documents in SCOland and 3,000 Exhibits Unsealed in Comes v. MS | 292 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: XORisOK on Friday, January 19 2007 @ 08:50 AM EST
If necessary, so PJ can find them

---
Cogito Ergo ZOOM - "I think, Therefore I drive fast!"

[ Reply to This | # ]

OT Here
Authored by: laitcg on Friday, January 19 2007 @ 08:55 AM EST
Non-Anon...

I am getting an XML Parse error for Groklaw right now for rss... but newspicks
rss is working. :)

[ Reply to This | # ]

22 Sealed Documents in SCOland and 3,000 Exhibits Unsealed in Comes v. MS
Authored by: Anonymous on Friday, January 19 2007 @ 09:03 AM EST
ALL the sealed documents do not portrait a company confident in its 'mountain of
evidence' against IBM.

Not even a bucket full evidence can one lay a hand on.

What it shows is that the company is so afraid that the so called evidence they
have will be amount to nothing under the light from all angles.

So much for a 5-billion dollars damage claim!

[ Reply to This | # ]

22 Sealed Documents in SCOland and 3,000 Exhibits Unsealed in Comes v. MS
Authored by: flying_monkey on Friday, January 19 2007 @ 09:54 AM EST
I don't know that that's the only reason. I had gotten the idea that they seal
a lot of these documents because this community has in the past picked apart
almost every argument they've made. Creatures of the darkness, like
cockroaches, don't like the light shined on them.

[ Reply to This | # ]

SCO's cross motion
Authored by: Anonymous on Friday, January 19 2007 @ 11:39 AM EST
Does that mean that SCO is admitting that there are no issues of fact, and that
the judge can rule on the interpretation of the contract as a matter of law?

They might not want to do that...

MSS2

[ Reply to This | # ]

Undisputed Evidence
Authored by: Anonymous on Friday, January 19 2007 @ 11:42 AM EST
"SCO is entitled to partial summary judgment on Novell’s Fourth
Counterclaim because the evidence of the parties’ intent under the APA and
Amendments thereto is undisputed in SCO’s favor." Heh heh Undisputed. These
guys crack me up.

This actually looks like a shrewd legal move on SCO's part.

By saying that this evidence is undisputed, they are actually inviting Novell to
dispute it. If it's in dispute, then Novell cannot be granted a PSJ on their
relevant (counter)claims.

Chalk one up for SCO here. :(

[ Reply to This | # ]

SCO screaming
Authored by: Anonymous on Friday, January 19 2007 @ 12:08 PM EST
This sounds like SCO is screaming to be heard. We have already seen that they
will say anything to make a point. IANAL, but personally these filings that
SCO is making, sounds a lot like desperation to me.

[ Reply to This | # ]

22 Sealed Documents in SCOland and 3,000 Exhibits Unsealed in Comes v. MS
Authored by: Anonymous on Friday, January 19 2007 @ 02:35 PM EST
Would arbitration drive any of the SCO v Novell sealed motions?

[ Reply to This | # ]

evidence of the parties’ intent under the APA
Authored by: The Mad Hatter r on Friday, January 19 2007 @ 05:00 PM EST


Now that is truly hilarious. It should be very interesting reading the Judge's
response to it.



---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

PJ, please enlighten me...
Authored by: Anonymous on Friday, January 19 2007 @ 05:20 PM EST
In what way is what's going on in Novell unusual? To me it just looks like
motion practice on PSJs and stuff.

MSS2

[ Reply to This | # ]

Jewels from: Unsealed in Comes v. MS
Authored by: ikocher on Friday, January 19 2007 @ 07:47 PM EST
I can't believe this jewel!!!
from: http://www.iowaconsumercase.org/010807/PLEX_2456.pdf pag 5:

"ISV are something to crush"

So this is pure microsoft thinking ... great. Makes you think more than ten
times again to keep doing businness with them. They just want you as a pawn
(pag 1), with a pretty clear objective: CRUSH YOU! Is this what they call
'innovation' ?


Ivan

[ Reply to This | # ]

SCOG strategy is clear
Authored by: Anonymous on Saturday, January 20 2007 @ 01:49 AM EST
I think I can sum up the debate in all of the SCOG vs Novell.

Novell's position the APA and Amendments is a clear plain language contract
that is umambiguous. Thus the contract can be ruled on by judge as a matter
of law.

SCOG's position is the APA and Amendments is the contract is not clear, it
has ambiguities and thus extrinsic evidence (what thought the contract
meant) must be considered.

Therefore,

1) If the judge agrees with Novell, then the PSJ is a slam dunk and SCOG
loses.

2) If the judge sides with the SCOG, then the PSJ is defeated, and jury will
decide whos interpretation of the APA and Amendments is correct.

Thus the SCOG strategy is based upon claiming the APA and Amendments are
ambiguous. The achieve defeating the Novell PSJs and get their jury trial in
SCOG vs Novell.

Seems pretty clear why BSF is fight this so hard!

[ Reply to This | # ]

Archery laws
Authored by: alan.hughes on Saturday, January 20 2007 @ 07:13 AM EST
Actually the legal position of archery in the UK was even
stranger. There was a case in the 1990s (I think, memory a
bit hazy) in which some archers closed off a main road,
set up some butts and started shooting. Not surprisingly
the police got interested PDQ and came roaring up in some
force; however they ended up empty handed when the archers
pointed out that they were legally allowed to shoot
in "the King's Highway", and indeed (since it was a
Sunday) were legally obliged to do so. Both laws dated
back to an "ordinance" issued by one of the Plantegenet
kings in the 12th or 13th century - during the 100 Years
War

Not surprisingly those laws were repealed a couple of
weeks later.

Alan

[ Reply to This | # ]

Perhaps I'm over optimistic but...
Authored by: Anonymous on Sunday, January 21 2007 @ 10:30 PM EST
Does

[i]"All the new documents in SCO v IBM, are filings by IBM, not
SCO"[/i]

Plus

[i]"Keep in mind that what is going on in IBM is perfectly
normal. Once discovery is over, the next part of the process is that each side
moves for summary judgment on whatever it thinks it can win on right away, on
the law as opposed to facts that must be decided by the jury."[/]

equate to SCO
have no claims that they feel they can win on their merits, and are therefore
not trying for summary judgement?



[ Reply to This | # ]

22 Sealed Documents in SCOland and 3,000 Exhibits Unsealed in Comes v. MS
Authored by: Anonymous on Thursday, January 25 2007 @ 02:19 AM EST
I love this judge. He is opening the devil's vaults for the general public to see. These documents validate what many of us have long known. FUD, vaporware, undocumented APIs, blacklists. Oh my! But my favorite is Jim Allchin's I would buy a Mac quote. That says it all. Hell is freezing over.

[ Reply to This | # ]

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