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IBM's Memo in Opp. to SCO's Motion for Reconsideration - as text - Updated |
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Sunday, January 21 2007 @ 02:38 AM EST
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Here's IBM's Memorandum in Opposition to SCO's Motion for Reconsideration of the Court's Order of November 29, 2006 [PDF] as text. I can't believe we are still talking about this. I gather IBM feels the same way, because it opens like this:Refusing to take "no" for an answer, SCO claims the Court
did not really conduct a de novo review (as the Court stated it did) and demands reconsideration. When SCO filed its sealed motion for reconsideration, asking Judge Kimball to reconsider his November 29th Order which upheld Magistrate Judge Wells' June 28, 2006 Order and dismissed SCO's original objections, and which tossed out 187 of SCO's items of allegedly misused materials, we wondered why they would keep bringing this up. SCO asked Judge Kimball to do a de novo review of Wells' order, and he did. And still SCO objects. Now we learn what IBM thinks it's about: Under the guise of seeking "limited reconsideration", SCO seeks to undermine the rationale of the Court's decision as to the remaining 177 items (as to which its failings are no different) and thus improve SCO's position on its next appeal of this issue. Oh, Lordy, will these dudes never call it a day?
Here's one nice thing about it. Extended litigation gives us the best opportunity to learn about the process, and heaven only knows we've seen just about every aspect of complex litigation in SCO's performance. And here's something new. IBM also attaches 11 cases as exhibits, and happily this time they clipped out the copyrighted bits from most of them, so I can post those for you. As an aid, I've provided links to the exhibits (all PDFs) when they are referenced in the Memorandum, so if you wish to take the time to check the court decisions, you can. If you do, you'll see how lawyers use cases to build strength into their position. I think you'll find it deepens your understanding of the process.
[ Update: There were 4 exhibits that still had copyrighted material included, so I got them for you from the court directly, so here are the four exhibits that were missing: Exhibit B, Exhibit C, Exhibit D, and Exhibit G. And now that you have all the exhibits, it will help you to read LII's very clear explanation of the process of finding on-point cases by doing legal research. You can be sure that IBM followed essentially this process and that they no doubt read many, many more cases than the 11 they finally chose. As you will see, you have to start somewhere, and most lawyers/paras will start with an encyclopedia of some sort, such as American Law Reports, which groups cases by topic, so you can find cases that are useful because the rulings deal with the same subject you have in your case. West has some free downloads, and to show you a little bit how it works, here's the trademark and tradenames download [PDF]. ALR has tons more information than that, of course, and when you find a case that looks promising from the description, you look it up in a book that has all the court decisions, which you can do too, if you happen to have a courthouse or a law school library near you or if you wish to pay for digital access. Then you check to make sure it is still good law (it might be a great ruling that got overturned on appeal, for example, so it isn't a great case after all), and if it is good, you have your first case. Then you hunt for more. So, there you are, a start in understanding what is a very complex area of law, legal research, which is my very favorite part.]
For example, if you take a look at Exhibit A [PDF], Monroe v. Myers, you'll notice some things that IBM doesn't quote in the memo, but which Judge Kimball is bound to notice: that it was a case where someone sought to get the court to reconsider a decision based on new experts' materials. Bingo. The case also explains the grounds that justify a motion for reconsideration: an intervening change in the law, new evidence, or clear error/manifest injustice. A change in the law doesn't just mean someone wrote and passed a new law; rather, a court could issue a decision in another case that bears on the matter decided that now a party would like reconsidered. That counts as a change in the law also, because it changes case law. It would be appropriate to bring it to the attention of the court. If the judge misapprehended the facts or the law, then it is justified to bring to his or her attention the facts or the law you think were overlooked or misunderstood; but if a party just wants to advance new arguments or supporting facts that were available earlier, then it isn't appropriate. A motion for reconsideration is not a chance for a second bite at the apple, Exhibit A states. And Exhibit K emphasizes the point like this: "A motion for reconsideration 'is not a substitute for appeal.'... Rather the purpose ... is to 'ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.'" Obviously, IBM feels that is what is happening.
Here's what I think: IBM provided all the cases to comfort the judge, to give him a foundation for confidence that his decision was correct and will be upheld on appeal. I read the entire document as IBM saying to the judge: Don't let SCO intimidate you -- you are on solid ground, your order was correct, and so was Judge Wells', and here are the cases you need to prove it. Three of them, Exhibit B, Exhibit C and Exhibit D, are cases decided by Kimball himself, one stating that a party can't use "a motion for reconsideration to reargue the motion or present evidence that should have been raised before" and two others standing for the rule that if a party could have made a diligent effort to discover materials it could have used but just didn't, that doesn't constitute "new evidence" usable in a motion for reconsideration. For sure, he knows those three stood up just fine. So IBM is essentially reminding him that he's decided cases that are like this one already. Unfortunately Exhibits C and D have all the copyrighted material still attached, so I can't provide them. If I have time, I'll try to get them from Pacer later. [Updated: see above. I have them.] All the cases are offered to demonstrate that a disagreement with a court's decision isn't
enough to get the court to alter, or even to properly reconsider, its decision. You can't use a motion for reconsideration to reargue matters the court already considered and rejected. You need new evidence, something you couldn't have offered before because it wasn't available before. Here, SCO has asked to do more discovery on the grounds that it could probably find some evidence if discovery is reopened; that in itself, IBM points out, proves that SCO's request for reconsideration doesn't meet the requirement. If SCO had new evidence, it wouldn't need to do more discovery, would it? As for its assertion that Judge Wells failed to consider certain expert reports that were filed after her order, IBM points out that SCO never asked her to wait for them or to consider them -- they didn't present them except for a few excerpts, in connection with her order. SCO never attached the reports to any motion in connection with this matter, even though all the initial reports were available prior to her order. Further, SCO could have attached declarations from all the experts with its memo in opposition to IBM's motion, but it didn't. It did attach one from Marc Rochkind, and he claims to have been the principal author of SCO's final list of allegedly misused material, so that in itself shows the experts' thoughts and findings are not new evidence but material that was available to SCO. It just didn't use it, and that means it waived using it. No one "overlooked" it -- SCO elected not to use it. Even if SCO won every argument, though, IBM points out the bottom line: SCO still has not provided IBM with the missing coordinates, and that is the basis for the original ruling. None of the experts' reports provides that specificity. And that is what the ruling was about. Nothing has changed. IBM says this is just about SCO saying the Court was wrong: Moreover, merely asserting that if the Court were to look again it would find
otherwise says nothing more than that the Court was wrong in the first place and should change
its mind. That is not true, and it is not in any case an adequate basis for reconsideration. Yet
again, a party cannot "use a motion for reconsideration to reargue the motion or present evidence
that should have been raised before." ************************
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.
______________________
IBM'S MEMORANDUM IN OPPOSITION
TO SCO'S MOTION FOR
RECONSIDERATION OF THE COURT'S
ORDER OF NOVEMBER 29, 2006
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C.
Wells
Pursuant to Fed. R. Civ. P. 59(e), defendant/counterclaim-plaintiff International Business
Machines Corporation ("IBM") respectfully submits this memorandum in opposition to the
motion of The SCO Group, Inc. ("SCO") for reconsideration of the Court's November 29, 2006
Order (the "Order").
Preliminary Statement
Following careful review of the record, this Court affirmed Magistrate Judge Wells'
ruling that SCO may not proceed as to items of allegedly misused material not properly
identified in its Final Disclosures. Refusing to take "no" for an answer, SCO claims the Court
did not really conduct a de novo review (as the Court stated it did) and demands reconsideration.
SCO, however, provides no grounds for such a motion. Instead, SCO plays for the Court a mix
of the same arguments that this Court reviewed de novo and rejected, and arguments SCO never
before asserted and thus waived. SCO's motion comes nowhere close to meeting the high
standard for reconsideration and should therefore be denied.
The Federal Rules of Civil Procedure do not recognize a motion for reconsideration. For
that reason, motions for reconsideration are generally treated as a Rule 59(e) motion to alter or
amend the judgment. Fed. R. Civ. P. 59(e). An "extreme remedy to be granted in rare
circumstances", Rule 59(e) may be deployed only to "correct manifest errors of law or introduce
new evidence." Monroe v. Myers, No. 05-00351, 2006 WL 2699029, at *1 (D. Colo. Sept. 19,
2006) (Ex. A); see Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). "A party should
not use a motion for reconsideration to reargue the motion or present evidence that should have
been raised before." Whitmer v. World Fin. Network Nat'l Bank, No. 04-00567, 2006 U.S. Dist.
LEXIS 73169, at *3 (D. Utah October 6, 2006) (Kimball, J.) (citation and internal quotation
marks omitted) (Ex. B). Instead, the burden lies upon the moving party to show “(1) an
intervening change in the controlling law; (2) the availability of new evidence; [or] (3) the need
to correct clear error or prevent manifest injustice." Mantle Ranches, Inc. v. United States Park
Serv., 950 F.Supp. 299, 300 (D. Colo. 1997). "[A] disagreement with the court's decision is not
enough to warrant the court to amend, alter, or reconsider its decision." Whitmer, 2006 U.S.
Dist. LEXIS 73169, at *6.
SCO contends that the Court should "reconsider the Order to allow for consideration of
new evidence not in the original record and to prevent manifest injustice." (Mot. at 2.)
Specifically, SCO asserts three bases for reconsideration: (1) the Order should not have been
entered before all expert reports were filed; (2) new evidence would likely be available through
several additional depositions of IBM programmers; and (3) at a minimum, the Court should
reconsider a limited number of the stricken items.
As is further discussed below, however, each of these arguments lacks merit. SCO fails
to point to any new evidence in support of its request for reconsideration, let alone new evidence
that was previously unavailable to it. The evidence that SCO suggests it might find if discovery
were re-opened would not (even if found) undermine the Court's Order. Moreover, SCO comes
nowhere close to showing that the Court's Order resulted in manifest injustice. Rather, it asserts
arguments that it either already waived or that the Court rejected (after a de novo review
conducted out of an abundance of caution) - neither of which is a valid basis for reconsideration.
For the multiple, independent reasons set out in IBM's memorandum in opposition to SCO's
objections, which we do not repeat here but incorporate by reference, the Order was correct.
SCO's motion for reconsideration should therefore be denied.
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Argument
I. SCO'S ARGUMENT ABOUT EXPERT REPORTS LACKS MERIT.
SCO first argues that "the Order should not have been entered before all expert reports
were filed". (Mem. at 4.) But there is no support for this assertion, and it does not in any case
support a motion for reconsideration.
First, expert reports were not required for Magistrate Judge Wells to rule on IBM's
motion or for this Court to review Judge Wells' order. No rule of law, no order of the Court and
no understanding of the parties contemplated that the parties' expert reports would be "filed" in
connection with IBM's motion. Moreover, excluding the excerpts attached to SCO's motion for
reconsideration, none of the parties' expert reports has ever been filed in connection with IBM's
motion or SCO's objections to the order granting that motion, despite the fact that (as SCO
acknowledges in a footnote) it had served its initial reports prior to entry of Judge Wells' Order.
Second, SCO was free to submit a declaration from any of its experts with its opposition
to IBM's motion, but it elected not to do so. In fact, SCO submitted a declaration from Mr.
Rochkind, who claims to have been the principal author of SCO's Final Disclosures, in advance
of oral argument before Judge Wells. Thus, the allegedly-overlooked expert reports are not new
evidence that was previously unavailable to SCO. Caprin v. Simon Transp. Servs., No. 98-863,
2001 U.S. Dist. LEXIS 25680, at *5 (D. Utah Mar. 12, 2001) (Kimball, J.) (denying motion for
reconsideration where declarations, depositions and documents would have been available at the
time of the original order had plaintiff made a diligent effort to discover them) (Ex. C).
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Third, neither Mr. Rochkind’s declaration nor any of the expert reports in this case (which SCO never made part of these proceedings) creates a basis for reconsideration of the Order. Like the Rochkind declaration, none of SCO's reports identifies the missing coordinates,
the absence of which forms the core of the Court's ruling. Moreover, contrary to SCO's
suggestion, IBM's experts have made perfectly clear that they were unable properly to evaluate
SCO's claims based on SCO's failure specifically to identify them. (See 9/25/06 Decl. of Todd
M. Shaughnessey, Ex. 181 ¶ 14; Ex. 213 ¶ 14; Ex. 234 ¶¶ 30, 64; Ex. 290 ¶¶ 71, 124.) It is
undisputed that SCO has never provided IBM with the information that it requested and that the
Court ordered SCO repeatedly to provide.
Fourth, SCO waived any argument that Judge Wells should delay her decision on IBM's
motion until after expert discovery was complete by not raising the argument with her until oral
argument. See Thomas v. Denny's, Inc., 111 F.3d 1506, 1510 n.5 (10th Cir. 1997) (holding that
court would not consider issues raised for the first time in oral argument); Acker v. Burlington
Northern and Santa Fe Ry. Co., 388 F. Supp. 2d 1299, 1302 n.2 (D. Kan. 2005) (holding that
because "Plaintiffs did not raise this issue . . . in their original memorandum in support of their
motion . . . [t]he court [would] not consider the argument.").
Fifth, SCO raised this argument in its objections to this Court (SCO Obj. Br. at 45), and
the Court rejected it. A party may not "use a motion for reconsideration to reargue the motion or
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present evidence that should have been raised before.” Whitmer, 2006 U.S. Dist. LEXIS 73169,
at *3; MacArthur v. San Juan County, No. 00-584, 2000 U.S. Dist. LEXIS 22792, at *23 (D.
Utah December 12, 2000) (Kimball, J.) (Ex. D); Caprin, 2001 U.S. Dist. LEXIS 25680, at *5.
II. SCO'S REQUEST TO REOPEN DISCOVERY IS UNTENABLE.
Next SCO argues that "new evidence would likely be available through several additional
depositions of IBM programmers". (Mem. at 4.) Again, SCO is wrong.
First, an order may be subject to reconsideration only if there is new evidence that was
unavailable at the time the order was decided - not speculation that a party might be able to find
evidence to support its position if allowed to reopen discovery. See Belmont v. Assocs. Nat'l
Bank (Delaware), 219 F. Supp. 2d 340, 346 (S.D.N.Y. 2002) (denying motion where plaintiff
had "not offered any newly discovered evidence - he only [sought] to use discovery in hopes of
finding further evidence"); see also Poddar v. State Bank of India, No. 98-1691, 2006 WL
2092469, at *1 (S.D.N.Y. July 26, 2006) ("[P]laintiffs' new and vague request for additional
discovery is not a ground for reconsideration.") (Ex. E); Naiman v. New York Univ. Hosp. Ctr.,
No. 95-6469, 2005 WL 926904, at *2 (S.D.N.Y. April 21, 2005) ("Rich's request for additional
discovery is not an appropriate basis for a motion for reconsideration.") (Ex. F). SCO's own
argument demonstrates that there is no new evidence in support of SCO's position; if SCO had
new evidence, it would not need to reopen discovery.
Second, the discovery SCO seeks was available to it previously, and SCO declined to
pursue it. SCO deposed three of the four witnesses whose depositions it seeks to reopen (Messrs.
Wright, Lindsley and Huizenga) and never noticed the deposition of the fourth witness
(Mr. Vogel) even though it had identified him in its Interim Disclosures as having allegedly
5
disclosed Dynix material to Linux long before the close of discovery. (See Doc. # 545,
Items 003 & 004.) Thus, the evidence that SCO seeks is not "the type that could not have been
discovered previously by due diligence". Belmont, 219 F. Supp. at 346. Because these
additional depositions "were simply not pursued previously by" SCO, they cannot supply the
basis for reconsideration as supposedly "new evidence". Id.; see also Caprin v. Simon Transp.
Servs., 99 Fed. Appx. 150, 164 (10th Cir. 2004) (To present "new evidence", a party must show
that it "made a diligent yet unsuccessful effort to discover the evidence."); Webber v. Mefford,
43 F.3d 1340, 1345 (10th Cir. 1994) (moving party must show that evidence is newly discovered
or, if available before judgment, that counsel made diligent attempts to discover it).
Third, the evidence SCO claims it might discover from these depositions would not
justify reconsideration of the Order. SCO says it would ask the witnesses "whether they know
the coordinates in Dynix for the technology items they disclosed to the Linux community" and, if
not, whether "they could explain how SCO knows or should know that information but they do
not". (Mem. at 5.) However, the Order is based on much more than SCO's inability to provide
Dynix coordinates; it is based also on SCO's inability to provide UNIX System V and Linux
coordinates. (6/28/06 Order at 6.) These failings are by themselves sufficient to justify the
Order. Moreover, as much as SCO ignores the fact, the Order is based in significant part on
SCO's failure to disclose its allegations, which are best known to SCO and for which no
discovery was required from IBM.
Fourth, SCO waived any argument that the Court should allow further discovery, which
closed long ago without any objection from SCO. SCO did not raise the need to depose or
redepose the four IBM programmers before Judge Wells. See Lewis v. State of Oklahoma Ex
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Rel. Board of Regents for Tulsa Community College, 42 Fed. Appx. 160, 2002 WL 1316810, at
*6 (10th Cir. 2002) ("Because issues not raised before the magistrate judge are waived, the
district court did not abuse its discretion in holding that Lewis had waived her timing
argument.") (citations omitted) (Ex. G); Traylor v. Jenks, No. 05-1167, 2006 WL 2715009, at *1
(W.D. Okla. Sept. 21, 2006) ("[T]his argument . . . was not raised before the Magistrate Judge
and is, therefore, deemed waived".) (Ex. H).2 Nor did SCO raise the argument in its objections
to this Court. See U.S. v. Castillo-Garcia, 117 F.3d 1179, 1197 (10th Cir. 1997) ("[A]rguments
raised for the first time in a motion for reconsideration are not properly before the court . . . .
Thus, the district court did not abuse its discretion when it denied the government's motion to
reconsider.") (citations omitted); Wendover City v. W. Wendover City, No. 03-523, 2006 WL
3469606, at *2 (D. Utah Nov. 30, 2006) (denying motion for reconsideration where
"Defendants' arguments on this issue could have been, but were not, raised in prior briefing")
(Ex. I).
Fifth, SCO's purported reason for requesting additional depositions is to provide support
for arguments that it made previously in its objections and that the Court already rejected.
Specifically, SCO contends that the depositions might show that IBM either knows the specifics
of SCO's claims, such that IBM cannot claim prejudice, or IBM does not know them, in which
case, says SCO, they could not reasonably be known by SCO. (SCO Mem. at 5.) SCO made
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this same argument in its objections, and the Court rejected it. (SCO Obj. Br. at 46-50.) Again,
a party may not "use a motion for reconsideration to reargue the motion or present evidence that
should have been raised before." Whitmer, 2006 U.S. Dist. LEXIS 73169, at *6; See
MacArthur, 2000 U.S. Dist. LEXIS 22792, at *23; Caprin, U.S. Dist. LEXIS 25680, at *5.
III. SCO'S ALTERNATIVE REQUEST FOR LIMITED RECONSIDERATION IS
EQUALLY FLAWED.
Finally, SCO argues that "at a minimum, the Court should reconsider a limited number of
stricken items". (Mem. at 6-8.) SCO points to ten items, which it claims were not specifically
mentioned by the Court. (Id at 6.) "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". (Id.) Like SCO's first two arguments, this argument fails.
First, contrary to SCO's contention, both Magistrate Judge Wells' Order and this Court
have made clear that the Court examined all of the items of allegedly misused material at issue,
including the ten items on which SCO now focuses. Magistrate Judge Wells' Order expressly
states: "SCO submitted its alleged misappropriated materials on CD-ROM. The Court has
reviewed all of the disputed items individually". (Order at 2 n.3.) Likewise, this Court expressly
stated (in the Order) that it conducted a de novo review and that "the court considered carefully
the memoranda and other materials submitted by the parties" - before and after taking SCO's
objections under advisement. (Order at 1.) Thus, the premise of SCO's contention is mistaken.
Second, both Magistrate Judge Wells and this Court expressly found that SCO did not
satisfy its discovery obligations or provide adequate information to IBM about its allegations.
(11/29/06 Order at 4; 6/28/06 Order at 32.) SCO's motion does not - and could not - show
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otherwise. Moreover, merely asserting that if the Court were to look again it would find
otherwise says nothing more than that the Court was wrong in the first place and should change
its mind. That is not true, and it is not in any case an adequate basis for reconsideration. Yet
again, a party cannot "use a motion for reconsideration to reargue the motion or present evidence
that should have been raised before." Whitmer, 2006 U.S. Dist. LEXIS 73169, at *6;
MacArthur, 2000 U.S. Dist. LEXIS 22792, at *23; Caprin, U.S. Dist. LEXIS 25680, at *5.
Third, SCO's request for "limited" reconsideration is a Trojan Horse. Both Magistrate
Judge Wells and this Court ruled that SCO may not proceed as to the 187 items at issue for
reasons equally applicable to each of the 187 items. Specifically, the Court found 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." (Order at 4.) Under the guise of seeking "limited reconsideration", SCO seeks to
undermine the rationale of the Court's decision as to the remaining 177 items (as to which its
failings are no different) and thus improve SCO's position on its next appeal of this issue.
SCO's failings regarding the ten items it singles out on this motion are no different from the
failings of the other items.
Fourth, SCO's argument that a number of the stricken Items are "akin" to some of the
"negative know how" Items not stricken by the Court (Mem. at 6 n.2) fails because it could have
been, but was not, previously raised in its briefing in support of its objections and is thus waived.
See, e.g., Castillo-Garcia, 117 F.3d at 1197 ("[A]rguments raised for the first time in a motion
for reconsideration are not properly before the court . . . . Thus, the district court did not abuse its
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discretion when it denied the government’s motion to reconsider.”) (citations omitted);
Wendover, 2006 WL 3469606, at *2 (denying motion for reconsideration where "Defendants'
arguments on this issue could have been, but were not, raised in prior briefing"). SCO had
available Magistrate Judge Wells' Order sustaining some of the "negative know how" items and
could have made this argument in its objections. Because SCO did not, this argument is waived.
Even if this argument were not waived, it would have no merit because the three "negative know
how" Items not stricken by Magistrate Judge Wells (Items 23, 43, 90) are not "akin" to the three
Items for which SCO specifically seeks reconsideration (Items 3, 4, 15). Items 3, 4 and 15 do
not involve disclosures of "negative know how". Each of these Items, by their terms, involves
allegations of disclosures of Dynix/ptx methods and concepts and are thus like the other Items
the Court did strike. Accordingly, SCO's argument, even if properly asserted, would fail.
Fifth, allowing SCO to proceed as to any one of the 187 items at issue in the Order would
result in undue prejudice to IBM, as stated in IBM's memorandum in opposition to SCO's
objections and as expressly found by the Court. Contrary to SCO's contention, the fact that the
Court has deferred the trial date is immaterial. Allowing SCO to proceed as to any one of the
187 items (not to mention 10 of them) would require reopening fact discovery, redoing expert
reports and depositions, and redoing summary judgment briefing. Significant delay and expense
would result and even then IBM would be unable properly to prepare its defense because SCO
still would not have disclosed its allegations.
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Conclusion
For the foregoing reasons, IBM respectfully requests that this Court deny SCO's motion
for reconsideration.
DATED this 19th day of January, 2007.
SNELL & WILMER L.L.P.
/s/ Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Of Counsel:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Alec S. Berman
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
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CERTIFICATE OF SERVICE
I hereby certify that on the 19th day of January, 2007, a true and correct copy of the
foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system
to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
/s/ Todd M. Shaughnessy
428057.1
12
INDEX TO ADDENDA
Exhibit A: Monroe v. Myers, No. 05-00351, 2006 WL 2699029, at *1 (D. Colo. Sept. 19,
2006)
Exhibit B: Whitmer v. World Fin. Network Nat'l Bank, No. 04-00567, 2006 U.S. Dist.
LEXIS 73169, at *3 (D. Utah October 6, 2006)
Exhibit C: Caprin v. Simon Transp. Servs., No. 98-863, 2001 U.S. Dist. LEXIS 25680, at *5
(D. Utah Mar. 12, 2001)
Exhibit D: MacArthur v. San Juan County, No. 00-584, 2000 U.S. Dist. LEXIS 22792, at
*23 (D. Utah December 12, 2000) (Kimball, J.)
Exhibit E: Poddar v. State Bank of India, No. 98-1691, 2006 WL 2092469, at *1 (S.D.N.Y.
July 26, 2006)
Exhibit F: Naiman v. New York Univ. Hosp. Ctr., No. 95-6469, 2005 WL 926904, at *2
(S.D.N.Y. April 21, 2005)
Exhibit G: Lewis v. State of Oklahoma Ex Rel. Board of Regents for Tulsa Community
College, 42 Fed. Appx. 160, 2002 WL 1316810, at *6 (10th Cir. 2002)
Exhibit H: Traylor v. Jenks, No. 05-1167, 2006 WL 2715009, at *1 (W.D. Okla. Sept. 21,
2006)
Exhibit I: Wendover City v. W. Wendover City, No. 03-523, 2006 WL 3469606, at *2 (D.
Utah Nov. 30, 2006)
Exhibit J: E.E.O.C. v. Body Firm Aerobics, Inc., No. 03-846, 2006 WL 1579608, at *3 (D.
Utah June 1, 2006)
Exhibit K: McCormick v. City of Lawrence, Kan., No. 02-2135, 2005 WL 1606595, at *6 (D.
Kan. July 8, 2005)
1
"[S]upporting facts that were available at the time of the original motion" cannot be
offered up as "new" evidence for purposes of Rule 59(e). Servants of the Paraclete v. Doe, 204
F.3d 1005, 1012 (10th Cir. 2000); see also Brinkman v. Kansas Dep't of Corrs., 869 F. Supp. 902, 904 (D. Kan. 1994) (holding that evidence that could have been discovered and offered to
the court if plaintiff were diligent is not newly discovered); Atl. States Legal Found. v. Karg
Bros. Inc., 841 F. Supp. 51, 55-56 (N.D.N.Y. 1993) ("newly discovered evidence" must in fact
be newly discovered, or could not have been discovered by due diligence); Waltman v. Int'l
Paper Co., 875 F.2d 468, 473-74 (5th Cir. 1989) (holding that evidentiary materials available
before party filed its opposition are not newly discovered evidence).
2
See also E.E.O.C. v. Body Firm Aerobics, Inc., No. 03-846, 2006 WL 1579608, at *3 (D.
Utah June 1, 2006) (holding that because "[t]hat objection was not raised in Body Firm's . . .
pleadings before [Magistrate] Judge Alba . . . . the court therefore will not consider Body Firm's
new argument") (Ex. J); McCormick v. City of Lawrence, Kan., No. 02-2135, 2005 WL
1606595, at *6 (D. Kan. July 8, 2005) ("[P]laintiff should have brought this [] argument to the
attention of the magistrate judge. Having failed to do so, the court will not consider this
argument for the first time now.") (Ex. K)
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Authored by: feldegast on Sunday, January 21 2007 @ 02:53 AM EST |
So PJ can fix them
---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
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- f --> of - Authored by: ankylosaurus on Sunday, January 21 2007 @ 02:56 AM EST
- First line of p3 is missing - Authored by: ankylosaurus on Sunday, January 21 2007 @ 03:03 AM EST
- Corrections Here - Authored by: Anonymous on Sunday, January 21 2007 @ 04:09 AM EST
- Missing beginning of sentence "Pursuant to..." page 2 - Authored by: cybervegan on Sunday, January 21 2007 @ 04:47 AM EST
- Machines Corporation ("IBM") - Authored by: Ian Al on Sunday, January 21 2007 @ 04:50 AM EST
- Corrections Here - Authored by: grundy on Sunday, January 21 2007 @ 06:04 AM EST
- Corrections Here - Authored by: Anonymous on Sunday, January 21 2007 @ 09:12 AM EST
- Missing paragraph break in Exhibit B: - Authored by: PTrenholme on Sunday, January 21 2007 @ 10:12 AM EST
- Links and Exhibit citations - Authored by: cbc on Sunday, January 21 2007 @ 10:45 AM EST
- In your update...('manyhh') - Authored by: Anonymous on Sunday, January 21 2007 @ 11:44 AM EST
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Authored by: ankylosaurus on Sunday, January 21 2007 @ 02:55 AM EST |
Please make links clickable.
---
The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
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- Alternative explanation: what if Novell has had some steer? - Authored by: Anonymous on Sunday, January 21 2007 @ 05:48 AM EST
- OT: Vista cost analysis updated - Authored by: grouch on Sunday, January 21 2007 @ 05:51 AM EST
- Vista is a business risk - simple.. - Authored by: Peter Baker on Sunday, January 21 2007 @ 07:17 AM EST
- OT: Vista cost analysis updated - Authored by: Alan(UK) on Sunday, January 21 2007 @ 08:20 AM EST
- With all due respect, Alan, - Authored by: Nivuahc on Sunday, January 21 2007 @ 08:50 AM EST
- Too late... - Authored by: nanook on Sunday, January 21 2007 @ 08:59 AM EST
- Too late... - Authored by: Anonymous on Sunday, January 21 2007 @ 10:48 AM EST
- Too late... - Authored by: Anonymous on Sunday, January 21 2007 @ 11:18 AM EST
- Too late... - Authored by: Anonymous on Sunday, January 21 2007 @ 11:44 AM EST
- Too late... - Authored by: Anonymous on Sunday, January 21 2007 @ 01:05 PM EST
- Too late... - Authored by: analyzer on Sunday, January 21 2007 @ 05:30 PM EST
- ? - Authored by: Weeble on Sunday, January 21 2007 @ 06:13 PM EST
- ? - Authored by: Anonymous on Monday, January 22 2007 @ 03:50 AM EST
- ? - Authored by: DL on Monday, January 22 2007 @ 01:13 PM EST
- further themes for XP - Authored by: Anonymous on Monday, January 22 2007 @ 02:15 PM EST
- Too late... - Authored by: Steve Martin on Monday, January 22 2007 @ 06:55 AM EST
- Vista != XP SP3 - Authored by: Anonymous on Monday, January 22 2007 @ 02:30 AM EST
- Too late... - Authored by: DaveJakeman on Monday, January 22 2007 @ 05:44 AM EST
- Too late... - Authored by: nanook on Sunday, January 21 2007 @ 01:58 PM EST
- Too late... - Authored by: Anonymous on Sunday, January 21 2007 @ 04:00 PM EST
- OT: Vista cost analysis updated - Authored by: Anonymous on Sunday, January 21 2007 @ 02:07 PM EST
- OT: Vista cost analysis updated - Authored by: gbl on Sunday, January 21 2007 @ 09:27 AM EST
- Minutes to TSG Doom Day? - Authored by: gbl on Sunday, January 21 2007 @ 06:55 AM EST
- Change afoot? - Authored by: Duane on Sunday, January 21 2007 @ 08:32 AM EST
- The Linux dilemna, and maybe why Novell wanted "interoperablitiy deal" so much. MS wins again. - Authored by: Anonymous on Sunday, January 21 2007 @ 08:51 AM EST
- IBM goes after Microsoft? - Authored by: Vaino Vaher on Sunday, January 21 2007 @ 10:07 AM EST
- Bob Mims makes the top of Google News with Vista review - Authored by: Griffin3 on Sunday, January 21 2007 @ 11:19 AM EST
- In Illinois, it is illegal to speak English - Authored by: Anonymous on Sunday, January 21 2007 @ 11:36 AM EST
- Sidebar - How could Windows Vista make the adoption of the Open Document Format more difficult? - Authored by: Anonymous on Sunday, January 21 2007 @ 11:47 AM EST
- Linux based Trinity Rescue CD 3.2 released - Authored by: ByteJuggler on Sunday, January 21 2007 @ 12:21 PM EST
- Questions about Vista DRM - Authored by: Anonymous on Sunday, January 21 2007 @ 02:34 PM EST
- "OSDL, Free Standards Group to merge" - Authored by: Brian S. on Sunday, January 21 2007 @ 09:58 PM EST
- Linux Foundation announced - Authored by: hardmath on Sunday, January 21 2007 @ 10:38 PM EST
- OT: Analogy For OOXML - Authored by: Anonymous on Monday, January 22 2007 @ 12:21 AM EST
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Authored by: Anonymous on Sunday, January 21 2007 @ 03:16 AM EST |
we've seen just about every aspect of complex litigation in SCO's
performance
Is this really true? [ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 21 2007 @ 04:11 AM EST |
With all of BSF's shenanigans, my wife (who is an attorney) says the biggest
winners here are all of the paralegals and clerks hired to support IBM's
filings, as this suit surely has them researching case law en mass.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 21 2007 @ 06:10 AM EST |
Oh, Lordy, will these dudes never call it a day?
Over the last
3 years we have learned the answer to this one. SCOX will never "call it
a day", because the whole purpose of their strategy is to prolong the case as
long as possible. That's what Microsoft paid them to do, and that's what they're
doing. Given that goal, I have to say that BSF LLP is doing a brilliant
job.
The litigation will end when SCOX ceases to exist. When that happens
depends on whether Microsoft gives them more money. Without financial "life
support", SCOX can't last a year. They're losing nearly $1 million per month
and their net assets (assets minus liabilities) are about $8 million -
ignoring any liability they may have to Novell. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 21 2007 @ 06:30 AM EST |
This would seem to be the only part that they would have any chance with.....if
they had a genuine case.[ Reply to This | # ]
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Authored by: sproggit on Sunday, January 21 2007 @ 07:29 AM EST |
To PJ's question :
"Oh, Lordy, will these dudes never call it a
day?"
the most obvious response has to be in the negative - and
for a very simple reason.
The SCO Group are going to lose this
case.
Hold steady. Before anyone jumps to any conclusions, think about
the ramifications of the judgement, not as an "end-game" move, but as a
step on the way. If this were a game of chess, an IBM victory in this case is a
bit like "check", but not "checkmate".
It's not checkmate, IMHO,
because the real "game" at hand here was not SCOvsIBM, but an attempt by
a "Pipe Fairy" to deal a mortal blow against the Free Software movement in
general and against Linux in particular.
If we continue to think about
this case as being the entirety of the "game" being played out before us, we run
the risk of missing the bigger picture and of seeing strategies that are working
at multiple levels. So, if this case is a piece to a puzzle, merely part of a
larger strategy, does that fact alter potential outcomes in this legal
dispute?
I believe it does.
The opponents to the Free Software
movement are smart enough to realise that this case is lost. They have,
therefore, accepted this fact and changed strategies.
In the early
stages, the tactics were, "delay, delay, delay" in order to have as much time as
possible to orchestrate a campaign of FUD. Then IBM and Novell started to rip
that campaign to pieces with their legal filings, so we had a brief period in
which we saw The SCO Group change tactics a few times. Were they speeding up, or
were they slowing down?
Now we're into the concluding section of this
particular skirmish. Ask yourself: what's the best possible outcome that an
anti-FOSS campaigner could hope for?
I suspect that the answer would
simply be for The SCO Group to file for bankruptcy on the eve of this case
getting to trial. If that were to happen, Darl McBride could have, if not his
day in court, then his sound-byte on the news: "We would have prevailed in this
case had IBM not bullied us into the ground with their terrible motion
practice!"
Meanwhile, with the case never coming to trial and never
being settled in IBM's favour, the cloud will remain over the Free Software
community and over Linux in particular, ready for some other patsy to pick up
the baton and try and carry it a little further forward. In the background, we
should anticipate that Darl and perhaps a few of his other directors and staff
might initiate a new startup somewhere, perhaps using this precious mobile
technology IP that they like to talk about ...
Put simply, this case
getting to trial is bad news for SCO. They need to go bankrupt first...[ Reply to This | # ]
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Authored by: webster on Sunday, January 21 2007 @ 12:03 PM EST |
A Short One
1. Though short, it is sharp as a knife and shiny too. It sets forth the law,
including cites to J. Kimball's own decision three months ago with a copy
attached. Talk about making it easy for the judge!
2. Then this: "The evidence that SCO suggests it might find if discovery
were re-opened would not (even if found) undermine the Court's Order."
p.2. That's two layers of wrong --reopening discovery and not affecting the
material already ruled on. Duh, you can't reconsider what hasn't been
presented.
3. In "I. SCO'S ARGUMENT ABOUT EXPERT REPORTS LACKS MERIT" IBM says
it wasn't specific when presented, when considered with experts, when Wells
considered it, when you considered it, and when you consider it now again. SCO
has never given the coordinates. p. 3-5.
4. SCO's request to reopen discovery. This is a strong argument for IBM.
Indeed, they accuse SCO of a lack of due diligence since SCO noted one of the
now-proposed deposees during discovery but neglected to depose him. But here is
a little gem of shocking lucidity that puts the whole ball game in perspective:
-------------
-------------"However, the Order is based on much more than SCO's inability
to provide Dynix coordinates; it is based also on SCO's inability to provide
UNIX System V and Linux coordinates. (6/28/06 Order at 6.) These failings are by
themselves sufficient to justify the Order. Moreover, as much as SCO ignores the
fact, the Order is based in significant part on SCO's failure to disclose its
allegations, which are best known to SCO and for which no discovery was required
from IBM."-------
-------------
P. 6, near the bottom. SCO knows why we are here. All this 'sturm und drang'
about Dynix is a side-show. With this background it is very safe for the Court
not to reconsider.
5. IBM calls SCO's request for limited reconsideration of ten items not
specifically mentioned as a trojan horse since they were rejected for the same
reasons as the other items. They seek to undermine the rationale for the
striking of the other 177 items. They remind the court that striking this
evidence is a sanction for willfuly failing to specify/disclose. It has caused
them prejudice. Reopening discovery would cause them to have to redo everything
at great expense. (I.e. fact discovery, expert reports and depositions and
summary judgment briefing.)
6. The odds are IBM v SCO plus 17 points. Take IBM.
---
webster
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 21 2007 @ 12:36 PM EST |
" if and only if SCO now complies with the 3 previous court orders, "
"we would not object to SCO being allowed to re-open one of the 187 items,
(of IBM's choosing), if SCO swears to the court it will not seek to re-open any
of the other 186, and if SCO acknowledges to the court that SCO has been acting
in bad faith continuously for 4 years."
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 21 2007 @ 01:11 PM EST |
For some times now the prevailing theory of Vista is that
MS is including DRM to appease Hollywood.
The Register
Universal exec - say goodbye to the old record co.
http://www.theregister.co.uk/2007/01/20/kenswil_license_stuff/
Wonder how it feels to have a DRM locked up operating
system that is not wanted.
Great work Microsoft.
<For those of you who do not get the sarcasm read the
article>[ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 21 2007 @ 01:18 PM EST |
aspect of the proposed questions.
While IBM do point out that the burden is on SCO but don't point out what I and
others thought would be a strong, amost fatal argument against SCO's motion. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 21 2007 @ 01:34 PM EST |
I've decided IBM is not researching just SCO but also Microsoft. It will save
IBM lawyers a ton of time when it's Microsoft on the other side of the table. If
Microsoft tries to use the same strategy, IBM will have its research already
completed.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 21 2007 @ 03:12 PM EST |
Spectacularly nice example of excellent lawyering, as usual from IBM's side.
This case is providing a lot of excellent examples of what to do and not to do
in
a lawsuit.
J [ Reply to This | # ]
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Authored by: JamesK on Sunday, January 21 2007 @ 03:50 PM EST |
Let's hope SCO & BSF don't hear about this. They may try to use it as a
tactic. ;-)
---
DRM 'manages access' in the same way that jail 'manages freedom.'
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 21 2007 @ 05:42 PM EST |
When will arbitration procedings commence? Any idea on when they will wrap up? [ Reply to This | # ]
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Authored by: chiark on Monday, January 22 2007 @ 06:08 AM EST |
Three of them, Exhibit B, Exhibit C and Exhibit D, are cases decided by
Kimball himself, one stating that a party can't use "a motion for
reconsideration to reargue the motion or present evidence that should have been
raised before" and two others standing for the rule that if a party could have
made a diligent effort to discover materials it could have used but just didn't,
that doesn't constitute "new evidence" usable in a motion for
reconsideration
Exacty what is left for the judge to do than to point at
that paragraph and say, "read that"?
That's a beautiful bit of work: in the
face of all the hand-wringing and positioning from SCO, it cuts through and
gives absolute support to the position adopted. I'm not a lawyer, and was never
really interested in law until groklaw, but that's an elegant response.
As
an aside, I would not get into a debate with IBM's legal team ;-) : it might be
fun for a while, but I'd be skinned alive. [ Reply to This | # ]
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Authored by: Anonymous on Monday, January 22 2007 @ 01:38 PM EST |
"SCO claims the Court did not really conduct a de novo review (as the Court
stated it did) and demands reconsideration."
The Judge said he did a de novo review, SCO/BSF said 'no you didn't'. They
appear to be telling the Judge he's a liar. Odd way to try and reach out to the
Court, isn't it? Or, are they just trying to anger the Court, hoping the Court
will make a mistake by handing SCO/BSF their backsides in a reply?
Would we expect the Court to respond to SCO's request with a well thought out
and lengthy reply - or something along the lines of "No" period?[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, January 23 2007 @ 12:31 AM EST |
What is SCO likely to try next? An interlocutory appeal on this issue? Is
there any penalty for trying that? SCO is claiming that this motion is so
essential to their case that it's effectively dispositive, so they might be able
to get away with an interlocutory appeal. [ Reply to This | # ]
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Authored by: GLJason on Tuesday, January 23 2007 @ 08:34 PM EST |
As IBM points out, if SCO gets these ten items back in, that throws both
Judge Wells's and Judge Kimball's rulings into question. If there is any
startling new evidence that does have the missing information, Judge Kimball can
just ask SCO "Why wasn't this evidence in the final disclosures?". I don't know
of any new evidence that SCO has that they didn't have when the final
disclosures were made. Expert opinions aren't evidence, they are opinions.
What they write about may be considered evidence. For instance, if
If expert testimony was the key to finding the evidence, SCO should
have done that PRIOR to the deadline for final disclosures. They brought their
case nearly four years ago, they SHOULD have known what IBM was doing wrong
before filing. They have had access to SVRX source code and Linux code since
2001. If they wished to object to "file-version-line" specificity, they should
have done so at the first ruling on a motion to compel back in December 2003.
At the very latest they should have asked Judge Wells for guidance when IBM
informed them that the interim disclosures weren't good enough, that they
required "file-version-line" information and that they would bring it up with
the court if that level of specificity wasn't present in the final
disclosures.
[ Reply to This | # ]
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