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Ladies and Gentlemen, SCO v. IBM Is Officially Reopened ~pj
Saturday, June 15 2013 @ 05:46 PM EDT

The Hon. David Nuffer has ruled on the SCO v. IBM motions, granting SCO's motion for reconsideration and reopening the case, which IBM did not object to. Judge Nuffer apologizes to the parties for the error in his previous order refusing to reopen the case. Sounds like a mensch to me. I love it when judges don't pretend something is the lawyers' fault when it's really the judge's fault. He's newly assigned to this case, and it's been going on for over a decade, so he specifically tells the parties not to assume his familiarity, asking them to provide him with enough detail in the various briefs going forward to work with. And he has essentially accepted the IBM suggestions on how to go forward, which SCO did not want to happen. I was fairly confident he would, though, precisely because he's new and he surely needs some time and help from the parties to get up to speed. So it's going to go like this:
1. SCO must file a brief statement identifying the claims it agrees are foreclosed by the SCO v. Novell judgment, the one that found that Novell did not transfer the UNIX copyrights to SCO in 1995. That wiped out all of SCO's claims, IBM asserts; SCO says it has two left.
2. IBM can then object to that list, which I'm sure it will.
3. IBM can then, by July 15, file a new motion for summary judgment on the remaining claims and counterclaims. This is what SCO did *not* want to happen.
4. After that motion is decided, there will be a process and schedule set up for the parties to respond to the court's request that they identify summary judgment motions filed before the current judge was assigned that they still want to be decided, which this judge will then do.
Here's what *won't* happen, what SCO wanted, namely that the old summary judgment motions filed 5 years ago that were stalled all this time by SCO's bankruptcy be ruled on without SCO having to do any more briefing.

Here's what *could* happen: The whole thing could be over after step number 3.

Here's the order:

06/14/2013 - 1115 - ORDER granting 1110 Motion to Reconsider 1109 the court's order denying the 1095 motion to reopen this case. The motion to reconsider is granted, the motion to reopen is granted and the parties are directed to make submissions as stated in the order. (DN) (Entered: 06/14/2013)

Here are all the summary judgment motions still pending. Those are the ones that SCO must go through and decide which are still viable, if any. They believe tortious interference and unfair competition regarding the Project Monterey partnership.

The thing that makes predictions a bit murky is that there are some other motions, aside from the summary judgment motions, that were also not officially decided before SCO filed for bankruptcy that could, in SCO's perfect world, reopen certain matters. I believe they would have been denied, if the prior judge had had time to rule on them. Now? I don't know. There was a SCO motion for reconsideration pending and one objection to an earlier ruling, and a motion to supplement its list of allegedly misused materials. How any of this survives the Novell victory is unknown to me, but SCO are a clever, clever bunch. Here they are, just for completeness:

1 and 2. You can find two of these unresolved SCO motions linked to in this Groklaw article. SCO filed an objection [PDF] to the magistrate judge's order to confine (Nov. 30, 2006, from the bench) and to the presiding judge's order [PDF] upholding the magistrate judge's June 28, 2006 order, limiting SCO's claims to the ones it had laid out and the parties had done discovery on, the order barring SCO from introducing a new methods and concepts claim via SCO expert Marc Rochkind, which I wrote about here and here. In essence, it was a sanction, based on her decision that SCO more or less hid evidence until the 11th hour to try to gain an unfair advantage. If SCO can get that decision lifted, obviously it can go forward full steam ahead. I assume that is the dream. But how they can when they don't own the copyrights is the mystery.

3. And SCO also filed a yet-to-be decided motion to supplement its list of misused material, an alternate way to try to get its new method and concepts claim introduced into the case. Again, I don't see how any of this matters now, unless the game is to try to introduce post-1995 UnixWare copyrights into the case. That's probably it. Of course, that bumps into the same wall that the Marc Rochkind methods and concepts claim crashed into -- it's a bit late now, since discovery ended long ago. SCO didn't list a single UnixWare copyright or any UnixWare materials allegedly infringed, but that's what claiming "new evidence" could end up being about.

4. And SCO filed a motion for reconsideration of the court's ruling denying SCO's claim that IBM was guilty of spoliation of evidence.

What SCO should really ask the court for is a Time Machine, so it can go back in time and do a better job. Actually these motions are asking for exactly that, if you think about it.

You know what? I lived this history in excrutiating detail all through the decade when it was playing out, day after gruesome day, and *I* can't remember everything, even though I wrote articles about every twist and turn. I still have to look it up and try to refresh my recollection. And even then, I worry about whether I got it all right, but those are the motions that are still red on our SCO v. IBM Timeline page, meaning they are still pending. We need to bring that page up to date, I notice. Groan. Who can believe this is still going on?

If I can't remember it all clearly, how in the world can a newly assigned judge be expected to have all the details at his fingertips without briefing? Maybe that's why SCO hoped he'd rule without it. It's not really possible to look closely at SCO's machinations and wish them God speed. That's the one true and reliable statement in this saga, that the closer you look, the less you like what you see.

And here is the text of the order, and I've altered it only in that I've made links to all the docket-numbered filings in the footnotes:

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC.,
Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant.

ORDER REOPENING CASE AND
VACATING PRIOR ORDER

Case No. 2:03-cv-294 DN

District Judge David Nuffer

SCO filed a motion for reconsideration1 of the court's order2 denying its motion to reopen3 this case. IBM does not oppose the motion to reconsider or the motion to reopen the case.4 The order entered denying the motion to reopen is VACATED.5 This motion for reconsideration is therefore GRANTED;6 the motion to reopen is GRANTED;7 and the clerk will reopen the case.

IT IS FURTHER ORDERED:

1. On or before June 24, 2013, SCO shall file a brief statement identifying its claims which it agrees are foreclosed by the Novell judgment and the form of a judgment dismissing

(1)

those claims. The order shall be emailed in word processing format to [email].

2. On or before June 28, 2013, IBM may file any objection to the form of that order.

3. On or before July 15, 2013, IBM may file a new motion for summary judgment limited solely to the effect of the Novell judgment on the remaining claims and counterclaims. The motion shall provide sufficient factual background to understand the claims in this case and the claims and decision in the Novell case without assuming the court has read other documents in this case file or has any knowledge of the claims in the Novell case.

4. After that motion is decided, by a method and on a schedule yet to be determined, the court anticipates the parties will be asked to identify summary judgment motions filed before the case was assigned to this judge which should still be decided and digest and submit pertinent parts of memoranda and supporting materials. These motions will be reactivated on the court docket and would then be resolved by the court.

Dated June 14, 2013.

BY THE COURT:

(signature)

David Nuffer
United States District Judge

(2)

1 Docket no. 1110, filed May 7, 2013.
2 Docket no. 1109, filed April 23, 2013.
3 Docket no. 1095, filed November 4, 2011.
4 Docket no. 1111, filed May 24, 2013.
5 The order was based on a fundamental misunderstanding of the effect of the SCO bankruptcy on this case. As SCO pointed out in its request to submit the motion to reopen (docket no. 1107, filed June 12, 2012) the bankruptcy stay has been entirely lifted as to this case, including SCO's claims and IBM's counterclaims. The court apologizes to the parties for its error and the unnecessary work it has caused the parties..
6 Docket no. 1110, filed May 7, 2013.
7 Docket no. 1095, filed November 4, 2011.

  


Ladies and Gentlemen, SCO v. IBM Is Officially Reopened ~pj | 428 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Ladies and Gentlemen, SCO v. IBM Is Officially Reopened ~pj
Authored by: ChrisP on Saturday, June 15 2013 @ 06:01 PM EDT
Hooray! Part 3 of this saga has now been released. More late night entertainment
reading all the details coming up. <grin>

---
Gravity sucks, supernovae blow!

[ Reply to This | # ]

Corrections thread
Authored by: ChrisP on Saturday, June 15 2013 @ 06:02 PM EDT
Please put the correction in the title.
korrecshun -> correction

---
Gravity sucks, supernovae blow!

[ Reply to This | # ]

Off topic thread
Authored by: ChrisP on Saturday, June 15 2013 @ 06:05 PM EDT
This is an SCO free zone.

---
Gravity sucks, supernovae blow!

[ Reply to This | # ]

Newspicks
Authored by: ChrisP on Saturday, June 15 2013 @ 06:07 PM EDT
Newspicks comments. Please add a linky to the story as the news scrolls off the
front page fairly quickly.

---
Gravity sucks, supernovae blow!

[ Reply to This | # ]

Helping the judge get up to speed
Authored by: Anonymous on Saturday, June 15 2013 @ 06:22 PM EDT
I wonder if PJ, with the help of
a lawyer and donations to defray
costs, could file a brief as a
friend of the court detailing
all of SCO's slimy manipulations
and maneuvers to let the judge
know exactly what kind of scum
he is dealing with, requesting
sanctions?

[ Reply to This | # ]

Comes here
Authored by: SpaceLifeForm on Saturday, June 15 2013 @ 06:29 PM EDT
Apparently ChrisP got distracted.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

So the Zombie Returns
Authored by: AH1 on Saturday, June 15 2013 @ 09:18 PM EDT
Should we expect another 10 years of fun and frivolity from SCO and the folks at
BSF? Or dare we hope that the Nazgul will make short work of them.

[ Reply to This | # ]

IBM has only 4 days?
Authored by: rsteinmetz70112 on Saturday, June 15 2013 @ 10:51 PM EDT
The order says;

1. On or before June 24, 2013, SCO shall file a brief statement identifying its
claims which it agrees are foreclosed by the Novell judgment and the form of a
judgment dismissing

2. On or before June 28, 2013, IBM may file any objection to the form of that
order.

I don't see that SCO needs to list "all" of the remaining claims, only
those claims which are "foreclosed". That alone seems to me to leave
lots of room for SCO's famous mischief.

That IBM apparently has only 4 days to respond to what will likely be a very
convoluted brief from SCO seems to be an open invitation for the games to begin
(again).

---
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 | # ]

Ladies and Gentlemen,
Authored by: Anonymous on Saturday, June 15 2013 @ 10:57 PM EDT
Welcome back, my friends
To the show that never ends

Tufty

[ Reply to This | # ]

What a wonderful coincidence
Authored by: Anonymous on Sunday, June 16 2013 @ 02:42 AM EDT
I was in he midst of reading the old articles again, and it was more out of a
sense of nostalgia.

Now we'll see the IBM meat chopper and the Boies Schiller Boys in full swing
again. I can't wait!

This will be fun and gratification.

[ Reply to This | # ]

SCO v. IBM Pantomime Season
Authored by: complex_number on Sunday, June 16 2013 @ 03:15 AM EDT
I know that many Groklaw readers in the US won't understand what sort of
theatrical show a British Pantomime is but in most of them there is a point
where one of the actors gets into a verbal duel with another one that goes along
something like

"Oh yes it is"
"Oh no it isn't"
"Oh yes it is"
"Oh no it isn't"

This can then result in custard pies or buckets of water being thrown and
general mayhem ensuing.

I found (what I hope is) the final death throws of SCO to be so close to a plot
of a panto that I couldn't refuse to make this post.

(Darl would make a fantastic Ugly Sister!)


---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

Building up towards the ultimate Red Dress Day! (n/t)
Authored by: tiger99 on Sunday, June 16 2013 @ 04:10 AM EDT

[ Reply to This | # ]

Let the fun commence - SCO v. IBM Is Officially Reopened
Authored by: SilverWave on Sunday, June 16 2013 @ 04:24 AM EDT
SCO, always prepared to throw more good money after bad.

It could be their new corporate motto ;-)



---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Ladies and Gentlemen, SCO v. IBM Is Officially Reopened ~pj
Authored by: Steve Martin on Sunday, June 16 2013 @ 06:59 AM EDT

SCO didn't list a single UnixWare copyright or any UnixWare materials allegedly infringed, but that's what claiming "new evidence" could end up being about.

Actually, I believe they did. Looking at the Second Amended Complaint, specifically the Fifth Cause of Action, we see that one of the copyrights which they claim was infringed is on UnixWare 7.1.3, the copyright on which was registered (by them) on June 11, 2003. Given that UnixWare 7.1.3 was released in 2003 (according to this Wikipedia article, I'd say it's very possible that this version contains code put into the product post-1995 and so would not be subject to the Novell ruling. That might give them at least a toe hold to continue this nonsense.

---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

You knew the job was dangerous when you took it
Authored by: Anonymous on Sunday, June 16 2013 @ 02:50 PM EDT
Mentally I mean .

What happened to the bankruptcy proceedings . I thought that was a lifetime job
for the attorney Kahn.

Maybe Sco will call for Super Chicken ..CLUCKK!!

[ Reply to This | # ]

Best marketing money Microsoft ever spent
Authored by: Anonymous on Sunday, June 16 2013 @ 03:13 PM EDT
http://www.computerworld.com/s/article/91145/Update_Microsoft_behind_50M_SCO_inv
estment


Cheapest way ever to put a cloud over competitors for over a decade.

[ Reply to This | # ]

Ladies and Gentlemen, SCO v. IBM Is Officially Reopened ~pj
Authored by: royjones on Sunday, June 16 2013 @ 04:31 PM EDT
I started talking about going to law school ten years ago because of this case
and Groklaw. Now I'm just about to start my 3LE year and here we are again. I
wonder if even this part will be resolved when I graduate in two years.

[ Reply to This | # ]

Oh to be a lawyer!
Authored by: The Simulator on Sunday, June 16 2013 @ 09:27 PM EDT
If there's one thing this case proves: the US legal system
(or, at least, the Utah legal system) is completely broken.
It's a wonder IBM isn't bankrupt after 10 years of paying
lawyers and staff to fight this ridiculous lawsuit. Trials
of this length favor neither the plaintiff nor the
defendant, but the lawyers seem to do OK out of it. It's not
as if the courts even seem to understand the issues after
all this deliberation either.

Remember the court in Michigan that threw out SCO's claims
against Chrysler in a matter of weeks? If only the same
court could hear all of SCO's cases.

:-(

---
---
Simulation engineers do it with models virtually every day!

[ Reply to This | # ]

SuSE arbitration ?
Authored by: nola on Monday, June 17 2013 @ 11:45 AM EDT
What about the SuSE arbitration issue.

Does the lifting of the bankruptcy stay allow that to be reopened?

[ Reply to This | # ]

So, I read this line from PJ...
Authored by: Lazarus on Monday, June 17 2013 @ 02:28 PM EDT
"Here's what *could* happen"


And I immediately thought of the movie Clue.

But I'm not sure that SCO can correctly compute "1 + 2 + 1 + 1".

---
Ph'nglui mglw'nafh SCO L'ndon wgah'nagl fhtagn.

[ Reply to This | # ]

Prediction: SCO's briefing will be fantastic
Authored by: vb on Monday, June 17 2013 @ 03:44 PM EDT
It will follow this definition of fantastic: "Imaginative or fanciful;
remote from reality."

I'm guessing that when we read SCO's briefing we will be entering a new world, a
world not bound by such trivial things as "case history". Like PJ,
SCO probably can't recall of the details of this case. If past SCO work is any
indication, they won't need to recall past details since they will be creating
new details anyway.

[ Reply to This | # ]

Deadlines?
Authored by: jplatt39 on Monday, June 17 2013 @ 07:24 PM EDT
I suppose it's a stupid question but when does SCO's statement detailing which
claims are foreclosed have to be in? Can we expect it before July 14th (with
IBM's due the next day) or can they delay beyond that?

[ Reply to This | # ]

Ladies and Gentlemen, SCO v. IBM Is Officially Reopened ~pj
Authored by: eggplant37 on Tuesday, June 18 2013 @ 05:02 PM EDT
Has anyone cued the dead horse yet? I'm sure it's in for a
sound flogging. Holy mackeral! Ten years old, dead four
years, and it's back!

"I say we take off and nuke the entire site from orbit --
It's the only way to be sure." -- Lieutenant Ellen Ripley,
Aliens, 1986

[ Reply to This | # ]

Well?
Authored by: Sunny Penguin on Tuesday, June 25 2013 @ 02:28 AM EDT
we have any confirmation the The SCO Group actually filed on time?

---
/FL

[ Reply to This | # ]

  • Well? - Authored by: moz1959 on Tuesday, June 25 2013 @ 10:43 AM EDT
Ladies and Gentlemen, SCO v. IBM Is Officially Reopened ~pj
Authored by: m_si_M on Wednesday, June 26 2013 @ 01:44 AM EDT

A question for those versed in bancruptcy law:

  • The TSG Group (TTSGG) has no money left, yet Judge Kahn, Mr. Ken Nielsen and a few others are still being employed. Who pays their salaries? The American taxpayer via the bankruptcy court?
  • While BSF are working on the basis of a capped fee agreement, any kind of court proceeding will result in additional costs not covered by the agreement. Again, will taxpayers have to pick up the costs for this farce?
  • Is it possible to hold former executives financially liable for incurred expenses?

Replies from Legal Eagles would be welcome.

[ Reply to This | # ]

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