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AutoZone Files Notice of Non-Opposition to SCO's Motion to Amend Complaint; Asks for 8/24 Hearing Cancellation - Updated 2Xs
Saturday, July 18 2009 @ 12:10 PM EDT

AutoZone, Inc. has filed a Notice of Non-Opposition, Request to Vacate Hearing, and Proposed Order [PDF] to SCO's Motion for Leave to File Amended Complaint. In it AutoZone explains:
Although SCO's proposed First Amended Complaint (Dkt. 99) is filled with errors of fact and law, AutoZone will address these errors in response to SCO's amended complaint and otherwise through the course of this litigation.
And then it asks the judge to cancel the August 24th hearing that he set before AutoZone could respond to SCO's motion. That probably means the August 24th hearing will be canceled. So if you were planning to attend, and I know some were, be aware that it looks likely there will be no hearing that day. If/when the judge signs the proposed order, you'll know for sure.

Why isn't AutoZone opposing? I confess to some puzzlement. I waited to post this so I could think about it a bit. Several possible reasons occur to me, but the most likely is that they know something I don't and the strategy is based on that. Other possibilities: money. Every motion and every hearing costs money. And it is hard to get a motion to amend a complaint denied, because the law encourages such motions. So that is probably part of AutoZone's thinking, that it could be money down the drain. And it could be too that they would like to adjudicate some things, keeping in mind that AutoZone's stated position is that while SCO is bound by the Utah court ruling, AutoZone isn't, not being a party to SCO v. Novell. And maybe they were not so sure why the judge set a hearing before they could file an opposition and decided to avoid whatever that was about. This is a strategic decision, though, no doubt about it.

No matter how I look at this non-opposition, there is no escape from the conclusion that AutoZone just doesn't mind a bit if this litigation goes forward on any basis SCO wishes to invent or dredge up.

AutoZone, in my view, has always been too nice, decent and fair in the litigation, and I do worry about that. SCO has taken advantage of their honor and decency, as I view it, but then, in the end IBM's similar litigation persona paid off for them, and in any case, you stay true to what you are. But if it were me, at this point, I'd oppose at every point, in every way, all the way, honorably and fairly but with firmness and total focus. But I've known SCOfolk longer. And, of course, I don't have to pay for it. They do.

Here are the docket entries:

07/17/2009 - 101 - NOTICE by Defendant Autozone, Inc. of Non-Opposition to Plaintiff's Motion for Leave to File Amended Complaint, and Request to Vacate Hearing and Proposed Order Vacating Hearing (Wilmer, Nikki) (Entered: 07/17/2009)

07/17/2009 - 101 - ERROR: Wrong event selected. (MJZ) NOTICE by Defendant Autozone, Inc. of Non-Opposition to Plaintiff's Motion for Leave to File Amended Complaint, and Request to Vacate Hearing and Proposed Order Vacating Hearing (Wilmer, Nikki) (Entered: 07/17/2009)

07/17/2009 - 102 - Submission of PROPOSED ORDER filed by Defendant Autozone, Inc. (MJZ) (Entered: 07/17/2009)

07/17/2009 - NOTICE of Docket Correction to 101 Notice (Other) : ERROR: Wrong event selected by attorney Nikki L. Wilmer; CORRECTION: Refiled by Court as 102 Proposed Order Submission. (no image attached)(MJZ) (Entered: 07/17/2009)

What is the error message about, since both filings seem to be identical? It probably means the clerk wanted the proposed order listed, not the notice, to make it more prominent, in that the proposed order requires action by the court and the notice doesn't.

Here's a blast from the past, a 2001 ZDNet article that upholds something AutoZone long ago told the court, namely that it moved away from OpenServer to Linux because OpenServer was no longer going to be supported:

SCO purports to own the copyright in a computer operating system known as UNIX. AutoZone formerly used a version of the UNIX operating system known as "OpenServer" that AutoZone licensed from SCO on its store servers. As a result of an announcement by SCO in 1999 that it would no longer support the OpenServer system, AutoZone decided to switch its store servers to the competing Linux operating system. This migration process took approximately three years and was completed in 2003.
The 2001 article not only confirms that the code was no longer being supported back then, it shows Caldera was actively encouraging its OpenServer customers to switch to Linux or UnixWare, then being called OpenUnix:
One issue the company faces is encouraging customers of its OpenServer product, which the company is no longer developing, to migrate to OpenUnix or OpenLinux products. To encourage this transition and to make the two other products work more similarly, the company will release programming tools in the autumn, Bench said.

"As the two products are integrated, we have two or three fairly major products...that will be released this fall. We believe that solution set will give us a tremendous bridge for our current customer base to move forward on the new platforms," Bench said.

Yes, that Bob Bench. So these guys knew the real story, I'd conclude, and from day one. Perhaps AutoZone's 'sin' was moving to Red Hat instead of Caldera's Linux, but encourage OpenServer customers to switch to Linux Caldera certainly did.

Update:Here's why I say that. When SCO first announced its first SCOsource license, SCO System V for Linux Release 1.0, it was for COFF files, shared libraries, the very ones that SCO accused AutoZone of infringing. But here's the odd thing. Caldera customers, the ones using Caldera's version of Linux, got that license and the libraries for free. And they could use it for running OpenServer applications on Linux.

So, how much more would it be free for OpenServer customers who had already purchased OpenServer and already had the libraries to be able to use them without charge? Presumably they could, if they used them with Caldera Linux. So the issue isn't that no one could use the libraries on Linux or even that they could only use them if they bought them. They were free and free to use on Linux. Here's a screenshot of the relevant information from the announcement, which was on SCO's website in 2003:

So what is SCO's beef with AutoZone? And what damages can they possibly expect in a fact pattern like this, even if it could prevail?

Update 2: LinuxJournal published a review of OpenServer in 1997, and it turns out SCO at the time was giving OpenServer away for free at trade shows, trying to build up interest, and it also made it available for educational use for $19. It came with everything, I gather, SCO sued AutoZone over:

The Santa Cruz Operation (SCO, has a new strategy for attracting users to its OpenServer Desktop System. SCO is giving it away for free, or at least nearly for free.

Though the company could claim 40% of the Unix market share a couple of years ago, it's now facing serious pressure from Windows NT and of course, Linux. Because the OS is priced similarly to NT, it has traditionally been out of the reach of students, educators and the idle curious. While there are a vast number of commercial applications running on OpenServer (it's often employed as a base for retail database systems, thus its market share), the company obviously wants to interest a new generation of developers and administrators.

To further its aims, SCO has made its single-user license free. The catch is that you still have to purchase the media. The OpenServer package, which includes a CD-ROM, a boot disk, a disk of drivers and a small pamphlet costs $19.00 US. If you're used to downloading your distributions at no cost, that's not an option, but SCO has also been handing out their OS gratis at trade shows. You won't be able to download the source anywhere. OpenServer may be free, but it's not “open”. Additionally, the single-user license is intended for educational use only. If you want to run OpenServer as part of your business, you're supposed to purchase a license....

Unfortunately, while SCO provides an OS, it doesn't offer much in the way of a distribution. And, before you're able to port your favorite applications, you may have dig up a compiler. After several tries, I finally got the installer to recognize my free license for the OpenServer Development System. I had to install the non-developer version, then use the SCO software installer to import the developer version from the CD-ROM. This process provides a prompt for the developer license, and this time, the free license worked. It never did accept the license from the main install screen.

Here's the announcement about giving away "free" licenses to UnixWare and Openserver in 1996:

SCO Provides FREE UNIX System Licenses To Students, Educators and UNIX Enthusiasts Around The World

SCO Forum96, Santa Cruz, CA (August 19, 1996) -- In a move that empowers students, educators and UNIX system enthusiasts with free access to the world's most popular business computing environment, SCO today announced plans to provide a free license to use its popular UNIX systems, including SCO OpenServer and SCO UnixWare, to anyone in the world who wants to use them for educational and non-commercial use to enable the evaluation and understanding of UNIX systems. The bold move has far-reaching implications for the future of the UNIX platform and marks the stunning public debut of SCO's stewardship of the UNIX system. It also represents the first time in more than 20 years that the owner of UNIX technology has provided the operating system free of charge to the public.

Alok Mohan, SCO's president and CEO, said, "This is only the second time in UNIX's 25-year history that the owner of the technology has made this offer. The last time this happened, a $60-billion-dollar industry was born."

The UNIX system was in its infancy when AT&T Bell Labs gave it away for free to colleges and universities to help with research and development projects. Soon, thousands of students were learning to program on UNIX systems. After graduation, they took that knowledge into the corporate world, building a $60-billion-dollar industry. The legacy of AT&T's gift to universities includes the Internet, the World Wide Web, multiprocessing, and much more. Today, the UNIX system is the software engine that processes trillions of dollars' of business transactions around the world.

"SCO believes it is time to return the favor," said Mohan, "and deliver the result of more than 20 years of technical innovation back to educators and students worldwide. With the explosive growth of the Internet and the breadth of development tools for UNIX systems available today, one can only imagine what this new generation will do with this open operating system platform."

What the Students Will Get

The availability of free UNIX system licenses begins with SCO OpenServer license, followed closely by a free SCO UnixWare license. The initial availability of a free SCO OpenServer license provides UNIX system enthusiasts with access to a high-end, commercial quality UNIX product that would normally be out of reach due to price constraints. Students, as well as professionals who use the UNIX system at work, now have an affordable means of running the UNIX platform at home, enabling them to create a home BBS or web site.

What's In Free SCO OpenServer?

With a Free SCO OpenServer license, users interested in UNIX technology have access to a fully functional, single user version of the SCO OpenServer Desktop System, which includes SCO Doctor Lite, and SCO ARCserve/Open Lite from Cheyenne, and the SCO OpenServer Development System. The SCO OpenServer Desktop is an advanced, single user UNIX operating system that delivers RISC workstation capabilities and performance on cost-effective Intel architecture platforms. The Desktop System integrates a powerful 32-bit, multitasking, X/Open UNIX system compliant operating system with networking, graphics, and Internet facilities. The Development System includes a set of state-of-the-art C compilers, debuggers, application programming interfaces, and libraries for developing applications.

How to Get It

Free SCO OpenServer license can be ordered and licensed via the Internet. To place a media order or acquire a license to use the software, go to: Free SCO OpenServer is licensed for educational and non-commercial use. The license is free of charge. The product media, if desired, costs $19.


AutoZone Files Notice of Non-Opposition to SCO's Motion to Amend Complaint; Asks for 8/24 Hearing Cancellation - Updated 2Xs | 139 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here, please...
Authored by: jbeadle on Saturday, July 18 2009 @ 12:28 PM EDT
...if any. Don't forget to put the correction in the title line...



[ Reply to This | # ]

O/T (Off topic) here, please...
Authored by: jbeadle on Saturday, July 18 2009 @ 12:34 PM EDT
If you reference a link, please make it clicky (as shown on the "Post a
Comment" page), and use HTML for the post mode.


[ Reply to This | # ]

Newspick discussions here, please...
Authored by: jbeadle on Saturday, July 18 2009 @ 12:36 PM EDT
Please indicate which Groklaw newspick item you are referring to in the title of
your post.


[ Reply to This | # ]

AutoZone Files Notice of Non-Opposition to SCO's Motion to Amend Complaint; FIles for SUmmary Ju
Authored by: Anonymous on Saturday, July 18 2009 @ 12:44 PM EDT
I expect that Autozone will shortly file it's response to SCO and for Summary
Judgment based on its rights under the License agreements it has with SCO and
the decision in Utah.

[ Reply to This | # ]

"...filled with errors of fact and law..."
Authored by: tiger99 on Saturday, July 18 2009 @ 12:47 PM EDT
Nothing new, then!


Actually, AZ and their lawyers must be getting fed up with SCO, because that is fairly strong language for a lawyer, as we have seen.

Of course, SCO may be history in 9 days, and the BK trustee may be having to end the legal proceedings in the most expeditious way possible....

[ Reply to This | # ]

Why no oppose> one mans thought
Authored by: Anonymous on Saturday, July 18 2009 @ 01:04 PM EDT
If AutoZone opposes, they have to list reasons why they oppose. This tells SCO
what their reasons are, allowing SCO to build counter arguments. if AutoZone
doen't oppose they get to bring these up in front of the judge.

[ Reply to This | # ]

AutoZone Files Notice of Non-Opposition to SCO's Motion to Amend Complaint; Asks for 8/24 Hearing Cancellation
Authored by: Anonymous on Saturday, July 18 2009 @ 01:35 PM EDT
No longer developing is not at all the same thing as not supporting. I have no
idea whether (as part of "encouraging" migration away) they were not
supporting OpenServer, but this article doesn't mention the subject.

[ Reply to This | # ]

Clues That It Might Be Time To Migrate
Authored by: sk43 on Saturday, July 18 2009 @ 01:38 PM EDT
While Santa Cruz & Caldera never actually stopped supporting OpenServer, they clearly signalled that it was being phased out:
  • Datamoni tor (Mar 11, 1998): "New OpenServer 5.x.x releases this year presage the code going into maintenance mode thereafter ..."
  • (Feb 23, 1999): "OpenServer won't get any new features."
  • (Aug 4, 2000): ""Sales of the firm's legacy Unix OS, which is now in maintenance, ..."
  • (Feb 6, 2001): "Along the way, Caldera plans to gradually phase out OpenServer, SCO's older Unix product."
  • (Feb 9, 2001): "SCO stopped development of OpenServer in 1999 ..."
  • (Aug 17, 2001): "The operating system is in maintenance mode now ..."
  • The Register (Jan 9, 2002): "SCO's OpenServer has been in maintenance mode for some years ..."
  • (June 27, 2002): "... a key product for the company has been the OpenServer version of Unix ... It remains popular, even though the Santa Cruz Operation ceased new development of the product ..."

Later on, on C.U.S.M., there was this exchang e between Tony Lawrence, a SCO reseller, and Jonathan Schilling, a SCO employee:

  • Lawrence: "We aren't the ones who told the world that OpenServer would be discontinued, causing it to quickly lose even more support from third party developers.
  • Schilling: "Agreed, a big mistake. Names, brands, appearances, look-and-feels, compatibility, continuity are all important. SCO realizes now that trying to migrate partners and users from OS A to OS B is counter-productive to say the least.
Alas, the realization came far too late for AutoZone.

[ Reply to This | # ]

Bob Bench-- History and Current status
Authored by: Anonymous on Saturday, July 18 2009 @ 01:50 PM EDT
Bob Bench served as CFO at Vista/ aka Innuity. This was the web hosting/credit card servicing company run by John Wall (an early "pipe fairy").

Innuity is now on the pink sheets at 0.01-0.06 cents/share and Bench is no longer with the company. Wall is still CEO, but the company appears nearly moribund.

Bench moved to Cognigen Networks, Inc. dba "Commission River". This company appears to upsell telephone service bundles with an affiliate marketing website system.

Cognigen was insolvent, and the company was renamed Bayhill Capital subsisting on capital infusions from Bench's investment LLC's: Little Hollow Farms, Vector Capital LLC and Bayhill Capital. The company was renamed Bayhill Capital and trades, very thinly, as BYHL.ob

Most recently on June 10,2009, Bayhill signed a reverse merger agreement to become a oil and gas operating company. The existing BYHL.ob stock will be diluted 10::1 and the new company will be created from the shell.

[ Reply to This | # ]

So that's how it works...
Authored by: JamesK on Saturday, July 18 2009 @ 02:51 PM EDT
"The 2001 article not only confirms that the code was no longer being
supported back then, it shows Caldera was actively encouraging its OpenServer
customers to switch to Linux or UnixWare, then being called OpenUnix:"

You advise your customers to do something and then sue them when they take your
advice. Great business plan.

Self Assembling Möbius Strip - See other side for details.

[ Reply to This | # ]

Unopposed Motion to Amend Complaint
Authored by: DaveJakeman on Saturday, July 18 2009 @ 05:27 PM EDT
I'm recalling the last time SCO's motion to amend their complaint went
unopposed. And what happened afterwards.

And here they are again, fighting battles on too many fronts, with scant
resources. Surely, they are their own worst enemy.

[ Reply to This | # ]

Why isn't AutoZone opposing?
Authored by: gjleger on Saturday, July 18 2009 @ 08:33 PM EDT
They wish to spend the less money possible before the bankruptcy ruling that
they assume will be soon...

We assumed the same as well...

I'm hoping that they rule sooner rather than later.

We all know the ruling we want of course ;-)

[ Reply to This | # ]

AutoZone Files Notice of Non-Opposition to SCO's Motion to Amend Complaint; Asks for 8/24 Hearin
Authored by: Anonymous on Saturday, July 18 2009 @ 10:41 PM EDT
Well if they migrated to Red hat that in itself is interesting as Caldera's
OpenLinux is obviously based on Red Hat. The start up scripts still contain many
Red Hat comments and the structure is very similar. At least it is on my
OpenLinux 2.3 box.

[ Reply to This | # ]

Authored by: Anonymous on Saturday, July 18 2009 @ 11:14 PM EDT
When I first viewed this article I don't recall seeing the information about

[ Reply to This | # ]

  • Update? - Authored by: Anonymous on Saturday, July 18 2009 @ 11:43 PM EDT
So what is SCO's beef with AutoZone?
Authored by: Anonymous on Sunday, July 19 2009 @ 01:43 AM EDT
> For non-SCO Linux systems, the SCO System V for Linux rpm
> is available for web download.

Umm, does anybody here know what was the state of the
"web download"? Free, gratis, and unfettered?
I have seen too much "free download" software that turns out
to be cripple ware that requires payment and/or registration.

[ Reply to This | # ]

A Strategy Based On Multiple Fronts
Authored by: sproggit on Sunday, July 19 2009 @ 02:57 AM EDT
History is littered with examples of individuals, companies, generals and
nations who thought that *they* were different, that *they* had the military,
moral or other innate right that meant that they could open conflict on multiple
fronts and win.

So here is The SCO Group, now spending money going after Autozone, even while in
Chapter 11 and apparently having to gear up to their court case against IBM, to
say nothing of potential appeals in the Novell litigation.

Is this rational? [ Note: rhetorical question! ]

What possible benefit can The SCO Group get from spinning up the legal wheels
here? A rational CEO, having already had to file for Chapter 11, would no doubt
formulate a plan that consisted of moving forward, one step at a time. The mere
fact that the company is in Chapter 11 should signal to the Board that things
are not proceeding as planned.

It's not possible to say if TSG would prefer to reach Chapter 7 or if they would
prefer to sell what's left of their business to a third party. Though it is
interesting that they seem to try and sell it to themselves via sleight of

It would be interesting to see the terms of any fire sale if/when they hit
Chapter 7.

[ Reply to This | # ]

COFF - beaten to death before, but will add it here once more
Authored by: Anonymous on Sunday, July 19 2009 @ 04:40 PM EDT
as mentioned in prior threads and articles, and discussed to
death, COFF is a required standard. You may have some
required COFF definition files that layout the Common Object
File Format and pointers to access the required entry
points, but COFF can't be protected. Once you decide that
COFF is the standard executable file format, any ancillary
COFF file descriptors are implied and required.

You could also move to ELF the newer and more flexible
format that allowed better debugging and linking, but
whether you chose COFF or ELF, those FORMATS were not
protected, they were required and the files written to
access the predefined formats were also required by design
constraints, hence unprrotectable.

As I noted before, when something works, you don't change it
arbitrarily. The COFF descriptors worked in V3. Sys 4 moved
to ELF. Therefore, SCO, Tarantella, etc. wold have had no
reason to alter a single byte of code, except to change
comments and copyright notices.

Therefore, any COFF files would have been covered under BSD,
AT&T, USL or Novell copyright. Never under an SCO copyright.
Any mention of COFF files on a machine become irrelevant to

Now if SCO claimed certain library calls, system calls or
driver functions, linked into files were SCO property that
might be an issue, but COFF -- no way. If it worked OK in
1990-1995, nobody would have touched it later, because it
could break all the legacy code. Hence, SCO had no rights to
claim COFF was their IP.

Please recall that COFF was a format, not a function.
Therefore it is mostly immutable, once defined and found
functional. Only a fool changes functional, tested code that
works. And SCO staff programmers were not fools. Management
... was debatable.

Any complaint SCO makes must mention a specific linked
library file, not a generic COFF format, or else they are
claiming that breathing AIR is illegal because they have
copyrights on oxygen. SCO has made NO improvements to the
COFF format defined and used for 10-15 years before they
acquired the Unix business, (but not copyrights) from

[ Reply to This | # ]

OpenServer may be free, but it's not “open”
Authored by: Anonymous on Sunday, July 19 2009 @ 05:24 PM EDT
It's free, just like the drug peddler's first hit...

[ Reply to This | # ]

Free Openserver
Authored by: Anonymous on Sunday, July 19 2009 @ 10:17 PM EDT
> OpenServer away for free at trade shows

They were probably giving away the _media_ for free. The Free OpenServer
licences were obtained over the internet.

With 'Free OpenServer' and 'Free UnixWare' there was a charge for the media of
around $19. This media included a couple of manuals and some CDs. I have some

The licence was free. It was only a single-user licence so was not useful except
for trials and development. Mine included the development kit (SDK) and Java
plus some add-ons such as SCO Merge (runs Windows 3.11), Vision (SMB file
sharing), and such.

They also supplied a SkunkWare CD which was FOSS applications compiled for
OpenServer and/or UnixWare.

[ Reply to This | # ]

SCO System V for Linux wasn't free
Authored by: Anonymous on Monday, July 20 2009 @ 06:45 AM EDT
So, how much more would it be free for OpenServer customers who had already purchased OpenServer and already had the libraries to be able to use them without charge? Presumably they could, if they used them with Caldera Linux. So the issue isn't that no one could use the libraries on Linux or even that they could only use them if they bought them. They were free and free to use on Linux. Here's a screenshot of the relevant information from the announcement, which was on SCO's website in 2003:
SCO System V for Linux is available at no cost to current SCO Linux 4.0 Customers via the SCO Linux Update Service. For non-SCO Linux systems, the SCO System V for Linux rpm is available for web download. The rpm permits easy entry of the license data required for installation on non-SCO Linux systems.
How does that make it free to run on non-SCO Linux? To my reading, it implies that you had to purchase a license from SCO if you wanted to install it onto a non-SCO Linux system, and then enter that license information during the installation of the rpm. Where else would you get the license data that you needed to enter during installation?

[ Reply to This | # ]

the question of buyouts
Authored by: LaurenceTux on Monday, July 20 2009 @ 09:33 AM EDT
As soon as SCO goes to chapter 7 would it be legal for IBM/Novell/%somebody
related% to cut a deal with a company and have that company buy the assets with
the goal of spinning this circus down quickly?

or to put this another way would a company that purchased the assets of SCO also
be liable for the non funded portions of the liabilities??

[ Reply to This | # ]

Shared Vs. Static Libraries?
Authored by: Anonymous on Monday, July 20 2009 @ 10:28 AM EDT
I beleive OpenServer had both Dynamic and Static binaries.

Some binaries were compiled statically and incorporated bits of the SCO
libraries into the binary.

Some binaries were compiled dynamically and needed SCO's Dynamic (Shared)
Libraries on the local system in order to execute.

We seem to be jumping back and forth in this discussion between the two.

The RPM loaded the SCO Dynamic Libraries onto the Linux system, allowing SCO
Dynamic Binaries to run (possibly does other things like provide support for
COFF binaries). I wonder if an existing OpenServer code would have activated the

SCO seems to be suing AutoZone over Static COFF Binaries run on Linux, not
loading Shared Libraries.

[ Reply to This | # ]

AutoZone Files Notice of Non-Opposition to SCO's Motion to Amend Complaint; Asks for 8/24 Hearing Cancellation - Updated 2Xs
Authored by: Anonymous on Monday, July 20 2009 @ 11:48 AM EDT
Two Strategic Reasons for Non-Opposition.
1) Amendments to a claim are almost automatically allowed, since the idea is
that ALL possible claims between the parties be dealt with in one trial. There
exist a small number of exceptions, but if there is a factual dispute as to
whether the exception may or may not apply (such as the operative date for
commencement of a limitation period starting to run, or, as we see in Novell,
what the contract includes), then that factual question *requires a trial*.

Note that Autozone states that 'there are...factual and legal errors' in the
amended claim. Autozone effectively cannot win this Motion, if that is the case.
(It could possibly, thereafter, win a motion to dismiss that part of the
new-as-amended claim, by conclusively proving that the allegation is false, but
again, that is difficult: the test is hard to meet.

So Autozone realistically cannot defeat this Motion. Therefore, strategically,
is makes sense not to waste time and money on fighting it.

2) More importantly, there can be no delay as *there is no appeal from a consent
Order*. If Autozone were to oppose and get the motion to amend dismissed, we
*know* that SCO would appeal, thus introducing even further delay (while SCO
awaits its canonization from the Court of Appeal in Novell). Autozone does not
want any delay. And an appeal would be even more wasted time and money. And the
same reasons for not opposing in the first place, apply on appeal.

Cliff's Notes for Non-Lawyers.

Courts have 2 operating bias modes about the disputes between parties. It is
easy to overlook which bias mode is operative.

The trial bias: The determination of actual factual disputes between the parties
can ONLY be dealt with by a trial. This bias is towards allowing a plaintiff
'his day in court'. So getting a claim knocked out before trial is exceedingly
difficult. The bias is against defeating claims before trial.

The discovery allowance bias: Meanwhile, the court wants to ensure that the
trial is full and fair and that *every* possible dispute between these parties
should be dealt with in one place at one time. If any questions arise, the bias
in the rules is towards promoting a full and fair determination of all
disputes, and against a party seeking to restrict or limit discovery or to
restrict the matters in issue.

So there is a bias to allow amending the claim to expand the relief sought, or
to change the basis for the claim. Similarly, most requests for expanded
discovery are allowed. Parties are not allowed to conceal or destroy material
evidence. So there is a bias towards allowing certain types of relief on
motions, if that relief will (possibly) tend to define the questions which the
trial will have to determine. And this bias to nowhere near as strong as the
bias in favour of allowing a trial. So a gaming plaintiff can continue to fail
to produce meaningful evidence and still have an on-going claim (cf IBM).

The first bias is strongly against the defendant who wants to get rid of a
vexatious claim. If there are factual issues, a trial is required.

The second bias can help a defendant where he can force a plaintiff to disclose
the holes in the case. But this may be costly in time and money. This bias makes
it easy for a gaming plaintiff to continue to game the system throughout the
discovery phase, even in the face of overwhelming contrary evidence. (OK, he
will have to lie, but then, by definition, he's a gaming plaintiff and I repeat

There is, accordingly, a burden of proof which hangs around with these biases.
No points for guessing who carries the burden of proof in each situation. Just
keep these in mind, the next time we discuss Motions. And keep in mind that
these biases tend to carry through when dealing with Appeals and questions
within appeals. But the Appellant always carries the burden of proof on an

[ Reply to This | # ]

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