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AutoZone Trial Set for August 10, 2010 [Hardy Har] - Updated
Thursday, July 30 2009 @ 09:28 AM EDT

The trial date for AutoZone has been set for August 10, 2010. But I think we can reasonably expect some summary judgment motions from AutoZone long before then.

What the judge has done is administrative. Early on, the judge always sets up a schedule. But you saw in the IBM case, that doesn't at all mean that anyone will stick to the schedule. That trial was originally scheduled for April of 2005, but it hasn't happened yet. In this case, I seriously doubt SCO v. AutoZone will ever go to trial. The judge has also ordered that the case is now referred to a magistrate judge to set up a settlement conference prior to May 31, 2010, which is also in the realm of fantasy. I mean, they might meet, but I don't expect SCO management to ever settle anything. Of course, if SCO gets a trustee in bankruptcy court, that would alter the landscape significantly. Trustees are not known for litigation-at-all-costs fever.

Here's the judge's order, not in a PDF but just a docket reflection of what he ruled in chambers:

07/24/2009 - 103 - MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 7/24/2009. By Deputy Clerk: K. Goetsch.

IT IS ORDERED this case is scheduled for Jury Trial on the stacked calendar of 08/10/2010, at 08:30 AM in LV Courtroom 7D before Judge Robert C. Jones; Calendar Call will be held on 08/04/2010, at 08:30 AM in LV Courtroom 7D before Judge Robert C. Jones.

IT IS FURTHER ORDERED this case shall be referred to the U. S. Magistrate Judge for scheduling of a settlement conference. The deadline to set a Settlement Conference is 05/31/2010.

To the extent the parties seek to extend discovery and/or related deadlines which would effect the trial date, any such request shall include a request to continue the hearings set by this minute order.

(no image attached) (Copies have been distributed pursuant to the NEF - KXG) (Entered: 07/24/2009)

I gather this judge wants this case to get going. So, what happens now? Discovery, only this time both parties get to do discovery. Originally, only SCO got to do some limited discovery specifically related only to the issue of whether it would ask for a preliminary injunction, which it decided not to do. Wise move, considering what discovery demonstrated.

A reader found an interesting ComputerWorld article from 1996, "SCO leading Unix fightback against NT", showing why Santa Cruz decided to merge OpenServer and UnixWare -- to deal with loss of business that was heading to Windows NT:

In April this year market research company IDC predicted Windows NT Server will overtake Unix in total server sales this year....

SCO has announced that mid-1997 it will deliver its new operating system, Gemini, a consolidation of its SCO OpenServer and SCO UnixWare (based on the Unix System V, release 4.2 Unix kernel which it acquired from Novell last year).

If you recall, AutoZone moved to Linux from OpenServer after they said SCO announced it would no longer support OpenServer, and that means that at that time, there was no new code being developed for OpenServer, presumably. And when SCO lost against Novell on the UNIX copyright ownership issue, it put out a statement:
The company is obviously disappointed with the ruling issued last Friday. However, the court clearly determined that SCO owns the copyrights to the technology developed or derived by SCO after Novell transferred the assets to SCO in 1995. This includes the new development in all subsequent versions of UnixWare up through the most current release of UnixWare and substantial portions of SCO UnixWare Gemini 64.
This confirms the point I made the other day that they don't own the older code, even if it's in OpenServer. They'll have to prove they own the copyrights on the COFF and header files they claim were allegedly infringed, even if they could prove infringement. And that's why I really don't expect we'll ever get to a trial in this case.

Update: I see some comments about the trial schedule, expressing annoyance that the judge set the trial date a year off. That is actually not far off for a court. I'll show you why.

And the judge doesn't get to pick any old schedule. Here are the Federal Rules of Civil Procedure [PDF], and you'll notice on page 76 it mentions that each court must have a rule for scheduling trials. So they do. Here are the local Nevada rules [PDF].

If you look on page 46 of the Nevada rules, it mentions the judge getting the parties together for a scheduling conference. The parties here did just have a telephone conference, and probably they did discuss things like discovery. They tell him at that conference what they expect they'll need in the way of discovery, so he can plan out a realistic schedule. And on page 55, you'll see that often there is a stipulated schedule. If not, there is normally, in Nevada, a 180-day period for discovery. But it can be more, if it seems to be needed.

So, why isn't the trial scheduled for 180 days from when AutoZone filed its Answer? Because there's more that has to happen between the end of fact discovery and the trial. If you look at the IBM Timeline page, at the top there is a schedule. The dates kept changing, because of all the delays, but look down the list for the entry that says Close of All Fact Discovery. See how many items come next, before the trial date? Things like:

  • Close of All Remaining Discovery (i.e., Fact Discovery As to Defenses to Any Claim Relating to Allegedly Misused Material); Initial Expert Reports;
  • Opposing Expert Reports;
  • Rebuttal Expert Reports;
  • Final Deadline for Expert Discovery (Expert Discovery Cutoff);
  • Dispositive Motions Summary Judgment Motions;
  • Oppositions to Dispositive Motions Summary Judgment Motions;
  • Reply Briefs on Dispositive Motions (Reply Memoranda);
  • Responses to Requests for Admissions;
  • Rule 26(a)(3) Disclosures;
  • Objections and counter-designations to Rule 26(a)(3) Disclosures;
  • Motions in Limine;
  • Deadline for Exchanging Proposed Jury Instructions;
  • Filing of Proposed Jury instructions;
  • Final Pretrial Conference;
  • Special Attorney Conference and Settlement Conference;
  • Oppositions to Motions in Limine;
  • Reply Briefs on Motions in Limine;
  • 5-week Jury Trial.

See what I mean? The judge has to schedule time for each of these things to happen, and some of them are responsive, meaning the defendant can't file something until the plaintiff does first. So they can't just all file everything on the same day.

Now, if you were watching closely, perhaps you noticed in that list that there was a schedule for a settlement conference? It's near the very end, just before the Oppositions to Motions in Limine and the Reply Briefs on Motions in Limine, followed by the trial. I think that's what the judge in AutoZone is referring to, except in his case he lets the magistrate judge do it. There's a lot to cover between the start of a case and the trial, in other words, and this case has been sitting on the back burner, doing nothing for a long time, so it's essentially just now getting started. Perhaps that will give you more context for why the trial is a year off.

One of the hard parts about being a lawyer is you have to know all the rules, and of course they are not static, so you have to keep checking. That's no doubt one reason why it's necessary to have a local lawyer or firm sign on with any out of state lawyer. You've seen pro hac vice applications by lawyers in several of the cases we've covered. If you look at the Nevada rules beginning on page 25, you'll see all that it means to sign up to represent a client in a state where you don't have a practice. Just thought you might be interested. What I was thinking as I did the list was how much we have covered on Groklaw, and if you were here for the entire ride, you know what each item on the list means. If you were not here for everything, you have a way to figure it all out, by just going down the Timeline pages and reading the corresponding articles.

My overall point is just this: we don't know all the factors that went into the exact date chosen, but when I consider all that has to happen first, it seems quite fast to me to go from the start of discovery to a trial in just a year. If you look at the schedule for the SCO v. Novell litigation, it took a lot more than that to get to trial, and that case was quicker than IBM to hit the milestones on the schedule. The only time a case goes quicker than that is when you have summary judgment motions, as we saw in the DaimlerChrysler case. If you look at that Timeline, you will see that the complaint was filed in March of 2004, and thanks to summary judgment in favor of DaimlerChrysler, it was essentially over by August. That is kind of what I expect will happen here, unless the Novell decision is massively overturned on appeal, perhaps. But this judge already told the parties that he intends to go forward as is, with the Novell judgment in Utah viewed as being the state of the copyright ownership relevant to this litigation. Even an appeal win by SCO, then, unless or until it is final, isn't likely to change his mind, and this case should be done long before that.


  


AutoZone Trial Set for August 10, 2010 [Hardy Har] - Updated | 260 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic
Authored by: idahoan on Thursday, July 30 2009 @ 09:47 AM EDT
.

[ Reply to This | # ]

Corrections here
Authored by: Erwan on Thursday, July 30 2009 @ 10:00 AM EDT
If any.

---
Erwan

[ Reply to This | # ]

News Picks Comments
Authored by: Kilz on Thursday, July 30 2009 @ 10:27 AM EDT
Please make all links the clicky kind.

[ Reply to This | # ]

UnixWare/OpenServer code entanglement
Authored by: _Arthur on Thursday, July 30 2009 @ 10:58 AM EDT
Novell has formally stated that they DO NOT CONSENT to the sale of the APA
to Unxis.

SCO wrote that it doesn't matter, they will sell Unixware only, sans APA.

There are serious doubts that UnixWare can be split from the APA. Obviously
SCO would be unable to perform its APA-mandated duties relative to
Unixware, once they sell it away. SCO has not addressed those legal points.

But, if SCO cannot sell Unixware, can they sell OpenServer ?
Yes, if OpenServer does not contain any Novell-owned Unixware Copyrights.

But that's where all SCO legal arguments of the past 5 year come back to bite
them in the axe. Can SCO state that no Unixware code was ever used in
Openserver? (Hint: Openserver now run on top of an Unixware kernel).
Can SCO state none of his programmers discusssed the merits of Unixware
methods wrt OpenServer ones ? Obviously not, see the Gemini project.
Can SCO state that in no time any of his programmers laptops contained
OpenServer and Unixware codebases at the same time ?

How long would it take for SCO to demonstrate that OpenServer is Unixware-
code free ? 6 years ?

So, SCO cannot sell or auction away Unixware without Novell consent, nor
Openserver without showing it does not contain any Unixware code.
I guess they will have to sell that JAVA patent, after all.

[ Reply to This | # ]

Older OpenServer Code Ownership
Authored by: rsteinmetz70112 on Thursday, July 30 2009 @ 11:15 AM EDT
I beleive the Judges ruling was intended to reflect issues before him and as far
as I recall the ownership of Santa Cruz code was not before him. I recall he
also ruled that SCO did own and have the right to driver code they and Santa
Cruz had developed as part of his ruling related to Sun.

To the extent that OpenServer incorporates older Unix code Santa Cruz was
developing OpenServer based on their license to Unix, and those portions of the
code are now owned by Novell.

Santa Cruz may also have acquired license to a great deal of other code through
Project Monterey.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Some Silly Questions
Authored by: sproggit on Thursday, July 30 2009 @ 11:40 AM EDT
A few stray thoughts occurred to me as I read this article. I wonder what fellow
Groklawrians make of these:-

1. Costs
How much do you suppose this side activity in litigation is going to cost SCO?
Or perhaps put more succinctly, can this really be a sensible use of their
dwindling financial resources?

2. Obligation To Proceed
Whilst I appreciate that the purpose of Chapter 11 is to provide a company with
protection from *Creditors* during a financial reorganisation, could this not
potentially extend to include the law firm[s] that a company would have to
retain for the purpose of another case? In other words, could SCO reasonably go
back to the Autozone Court and make a motion to have the Autozone case placed on
hold until such time as they emerge from Chapter 11 and are ready to proceed.

3. Bankruptcy Court Jurisdiction
In the event that the presiding Judge in a bankruptcy court considers that a
company's financial expenditure on a given activity is not conducive to the
financial reorganisation of that company [ and may implicitly be other than the
company's stated principle business ] then does that bankruptcy court have any
authority to intervene? Or could that only be achieved by transformation into
Chapter 7?

4. Bankrolling
In the event that a shareholder [ in this case Ralph Yarro III ] is willing to
inject further sums of cash into a stricken business, under what circumstances
would this be public knowledge. Presumably, Yarro's generosity would evaporate
the moment the case converted to Chapter 7?

5. Do existing creditors such as Novell have reasonable cause to ask the
Bankruptcy Judge to try and intervene in the Autozone litigation - and if they
do, can the Judge so intervene?

[ Reply to This | # ]

Judge wants to get things moving?
Authored by: GuyllFyre on Thursday, July 30 2009 @ 12:10 PM EDT
By scheduling for 2010? A whole year away, at that?

Getting things moving would mean he would have scheduled this for no more than 1
month away and stipulate that he wants it done and over with within 1 month
after that.

A timetable that puts this another year into the future is by no means getting
anything moving.

[ Reply to This | # ]

AutoZone Trial Set for August 10, 2010 [Hardy Har]
Authored by: Anonymous on Thursday, July 30 2009 @ 12:42 PM EDT
So, the Judge has decided that this case is no longer pending the results of the
Novell and IBM cases. Interesting. Further, this case is no longer stayed by
Bankruptcy. Also interesting. The judge must have concluded that the
bankruptcy and appeals with Novell will have been finished by then, no matter
what happens.

[ Reply to This | # ]

Discovery, SCO's favorite thing, or maybe not so much now..
Authored by: Kilz on Thursday, July 30 2009 @ 01:26 PM EDT
I think Autozone as a unique opportunity. To turn the tables on SCO's favorite
game, never ending discovery. Autozone could ask for mountains of discovery.
Truckloads of documents. All costing SCO money they don't have, or don't want to
spend at this point.

Wouldnt it be a shame if the appeal gets sent back to Utah for some little
matter. But SCO goes belly up because of discovery.

[ Reply to This | # ]

I remember when the IBM trial was scheduled for April 2005
Authored by: billyskank on Thursday, July 30 2009 @ 01:27 PM EDT
We were all groaning, we can't possibly wait till then!

If you'd travelled back from the future and told us then that it still won't
have happened by August 2009, I think we'd have committed mass suicide. ;)

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

[ Reply to This | # ]

August 24th hearing
Authored by: DustDevil on Thursday, July 30 2009 @ 02:59 PM EDT
Any word yet on if this is on or off?

---
All comments are my own, not that of my employer

[ Reply to This | # ]

You've done your job well, PJ...
Authored by: pcrooker on Friday, July 31 2009 @ 12:48 AM EDT
What I was thinking as I did the list was how much we have covered on Groklaw, and if you were here for the entire ride, you know what each item on the list means.
I only had to look up the Rule 26(a)(3) disclosures - basically the pre-trial announcement of witnesses, depositions & evidence.

It also helps having such a convoluted trial, we get to see so many things played out.

[ Reply to This | # ]
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