decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
SCO Files 2nd Motion Asking the Red Hat Judge for a Delay on Discovery
Thursday, October 09 2003 @ 04:25 AM EDT

There has been quite a lot of activity in the Red Hat case.

SCO filed a Motion to Dismiss the action in its entirety, as you know, and Red Hat filed its answering brief. But since we last reported on this case, Red Hat initiated discovery. They asked SCO for documents and for answers to some pointed questions. IBM is forcing SCO into a corner in Utah, and Red Hat is forcefully and aggressively trying to do the same in Delaware. You'll see, I think, that we haven't been wasting our time telling the world the details of this story. The big picture is that Red Hat is telling SCO to prove their allegations with specificity. They also want all their source code, and I'm sure you can figure out what they want to do with it, when I tell you that they asked for the complete Linux Kernel Personality source code, among the other products for which they have requested source code.

They also want to hear some details about the relationship between Canopy and SCO, including any stock or intellectual property transfers. They want SCO to "identify by title, version, module(s) and line(s)" what they think is misappropriated in any way or in violation of any of its rights. They ask for the details of Microsoft and Sun's licensing arrangement with SCO. They want to know who those 1500 companies were that got the letter, and what happened next. They want to know exactly what SCO has filed a copyright on. They want all the details of SCOsource, including all the folks who have seen the code SCO has been showing under the NDA and what they saw, and any other contact with any Linux users about supposed liability. They want to know how they compared the UNIX and Linux code to determine infringement. They want to know if they've done any comparisons of the two and what the results were. They want to know all the stock or industry analysts SCO has met with or talked to and what was said. In short, it's like the kind of fantasy a guy might have about a bully getting his at last, because they asked them everything we wanted somebody to finally ask SCO and make them answer.

SCO responded to Red Hat's discovery requests by filing a new motion, and it has told the judge, in a Motion to Stay Discovery Pending Resolution of Motion to Dismiss, it would like a delay until after the first motion, the Motion to Dismiss, is ruled on. They surely don't seem in any hurry to get this matter resolved. They argue that because they are simultaneously providing discovery to IBM (of course IBM says they aren't seeing anything, as I recall), they can't possibly do both, and anyway, if they win their motion, it'd be moot. In short, they would very much like not to have to do this, presumably so that if they win the Motion to Dismiss they can continue to refuse to give any particulars about their case. If the judge doesn't grant their Motion to Dismiss, they'd like the judge to give them 30 days to provide all the discovery items.

Both of Red Hat's discovery documents are attached to this SCO Motion to Stay Discovery, and they begin with definitions, like what is "intellectual property" within the context of the document, and instructions, like how to identify the writers of documents, etc.. The first document begins on page 7 of the pdf, but we find out what Red Hat is asking for on page 12, where the list begins.

Red Hat in its "First Request for the Production of Documents and Things" asks SCO to produce the following documents:

1. All documents concerning the subject matter of the Complaint.
2. All documents concerning any customer, or potential customer, of Red Hat.
3. All communications between SCO and Red Hat or any employee of Red Hat.
4. All communications between SCO and any user or potential user of a Linux product, including Red Hat LINUX product, concerning any rights to Linux, or UNIX that SCO claims to have or concerning any actions by Red Hat that SCO claims are wrongful.
5. All documents that concern any and all copyrights in which SCO claims an ownership or other legal interest of any kind and that also concern any UNIX software or UNIX product.
6. All documents concerning the registration of any copyrights in any UNIX software or UNIX product, including, without limitation, all documents submitted by SCO to the United States Copyright Office concerning UNIX.
7. All documents concerning the purposes of SCOsource, the formation of SCOsource, any intellectual property managed by SCOsource, and all correspondence to or from SCOsource or any director, officer, employee, attorney or agent employed by, assigned to, or acting on behalf of SCOsource.
8. At least one example of each license agreement that SCO has used to license each and every UNIX product, UNIX software, or UNIX service, any open source software, product or service, any Linux product, Linux software or Linux service, or to license each of the following: UnixWare, UnixWare 7, UnixWare 7.1.1, Unixware 7.1.2, UnixWare 7.1.3, Open UNIX, Open UNIX 8, Reliant HA, NeTraverse Merge, Merge, Merge 5, SCO OpenServer, SCO OpenServer Release 5.0.5, SCO OpenServer Release 5.0.6, SCO OpenServer Release 5.0.7, OpenServer Kernel Personality, OpenServer Kernel Personality for UnixWare 7.1.3, SCOx Web Services, SCOx, SCO Update Service, SCO Linux, SCO Linux 4.0 Server for the Itanium Processor Family, SCO Linux 4, SCOoffice, SCO Volution, Caldera Volution Manager 1.1, SCOoffice Mail Server 2.0, Caldera Volution Messaging Server 1.1.1, Caldera Volution Messaging Server 1.1, OpenLinux, OpenLinux 3.1, OpenLinux 3.1.1, OpenLinux 64, UnitedLinux, UnitedLinux 1.0, United Linux 1.0, UnitedLinux 1.0 Service Pack 2, UnitedLinux 1.0 Service Pack 1, Samba, Samba Multibyte version, Cdrtools, Mozilla Browser.
9. Documents sufficient to show each and every entity that had access to any portion of UNIX code that SCO contends was copied or was otherwise incorporated into any Linux software in violation of any of SCO's copyrights, trade secret or other intellectual property.
10. All documents that concern any SCO licensing program, including any licensing program offered by or in conjunction with SCOsource.
11. All documents concerning any license of any UNIX kernel, UNIX operating system or UNIX intellectual property that SCO has offered, is offering or intends to offer, including, without limitation, all license agreements with any entity that had access to each and every portion of the UNIX code SCO contends was copied or was otherwise incorporated into any Linux software in violation of any of SCO's copyrights.
12. All documents concerning any SCO license with Microsoft and Sun Microsystems, Inc. ('Sun'), including copies of the licenses, correspondence concerning the licenses, and notes or other documents related to any meeting concerning the licensed technology or negotiations of the license.
13. All documents concerning communications between SCO and Microsoft and/or SCO and Sun Microsystems regarding: Red Hat, Red Hat's actual or potential customers, UNIX, Linux, IBM, and Sun Microsystems' or Microsoft's licensing of any SCO technology, software or product.
14. All documents concerning SCO's ownership of UNIX intellectual property and/or concerning SCO's right or ability to enforce or protect UNIX intellectual property.
15. All documents concerning any other person or entity's ownership of any UNIX intellectual property and/or concerning any other person or entity's rights to enforce or protect UNIX intellectual property.
16. All documents concerning communication between SCO and Novell Inc. ('Novell') regarding ownership of UNIX intellectual property, including without limitation, contracts or agreements between SCO and Novell regarding UNIX or Linux, all correspondence between SCO and Novell regarding UNIX or Linux, all correspondence between SCO and Novell concerning UNIX or Linux, and documents concerning Novell's past or present ownership of any rights in any UNIX or Linux technology, software, product or service.
17. All documents concerning SCO's legal claims against IBM or any pending litigation with IBM.
18. All documents concerning both the development of UNIX and ownership rights in UNIX intellectual property.
19. All documents and communications regarding IBM's misappropriation, or alleged misappropriation, of UNIX intellectual property, code, structure, sequence, organization or other proprietary information, including, without limitation, all such documents concerning any agreements with IBM regarding UNIX, the development of UNIX, rights to UNIX software or technology, Linux, the development of Linux, or rights to Linux software.
20. A copy of the source code of each and every version of UNIX software in which SCO claims to own any intellectual property rights or have any other legal interest, and a copy of the source code of each and every version of Linux software in SCO's possession custody, or control that was created on or after January 1, 2000, whether or not released for public use, licensing or sale, and a copy of the source code of each and every version of UNIX software that SCO has sold, offered for sale, licensed, and offered to license.
21. The source code of any SCO Linux product and any third party Linux product identified in response to Interrogatory No. 6.
22. A copy of the source code for each version of the following: UnixWare, UnixWare 7, UnixWare 7.1.2, UnixWare 7.1.3, Open UNIX, Open UNIX 8, Reliant HA, NeTraverse Merge, Merge, Merge 5, SCO OpenServer, SCO OpenServer Release 5.0.5, SCO OpenServer Release 5.0.6, SCO OpenServer Release 5.0.6, SCO OpenServer Release 5.0.7, OpenServer Kernel Personality, OpenServer Kernel Personality for UnixWare 7.1.3, SCO Linux, SCO Linux 4.0 Server for the Itanium Processor Family, SCO Linux 4, OpenLinux, OpenLinux 3.1, OpenLinux 3.1.1, OpenLinux 64, UnitedLinux, UnitedLinux1.0, UnitedLinux 1.0 Service Pack 2, UnitedLinux 1.0 ServicePack 1.
23. All documents concerning examples of UNIX and Linux software code that SCO has shown to any third party in conjunction with its claims that Linux infringes SCO's intellectual property rights in any UNIX software or technology, including without limitation, all such documents concerning any examples of UNIX code that were displayed to the public, including without limitation at SCO Forum and/or in Las Vegas, Nevada and/or during the month of August 2003, and including, without limitation, all such documents concerning any examples of UNIX and Linux code that have been displayed at any facility that SCO has set up to show examples of UNIX code to any third-party in conjunction with any claim by SCO that any Linux software or kernel infringes any intellectual property right of SCO in UNIX or any UNIX software.
24. All documents concerning any non-disclosure agreement that SCO or any other person has executed in conjunction with its claims that Linux infringes SCO's intellectual property rights in any UNIX software or technology.
25. If SCO contends that any portion of the UNIX code, or the structure, sequence, or organization of the UNIX software, was made a part of Linux, copies of all UNIX code generally, and specifically copies of that which SCO contends has been made a part of Linux.
26. All documents identifying any portion of the UNIX code, or the structure, sequence, or organization of the UNIX software that is a part of Linux.
27. All documents identifying any SCO intellectual property or proprietary information that has been incorporated into Linux, including without limitation, any trade secret or copyrighted software, and/or concerning the circumstances whereby any SCO intellectual property, trade secret or proprietary information became a part of Linux.
28. All documents concerning IBM's development of Linux to the extent that the development relates to any UNIX intellectual property right, including such documents regarding Project Monterey, and all documents that establish when SCO first became aware that IBM had made or may have made contributions to Linux.
29. All documents concerning SCO's and/or SCOsource's review and enforcement of its intellectual property rights surrounding the UNIX operating system.
30. All documents concerning SCO's distribution or involvement in the distribution of Linux including UnitedLinux.
31. All documents concerning SCO's development of Linux software and United Linux software, including, without limitation, communications regarding any SCO employee or former employee's contributions to Linux and UnitedLinux, and documents concerning whether UnitedLinux contains any SCO UNIX intellectual property.
32. All documents concerning any analysis or comparison of UNIX and Linux and all documents and communications concerning any investigation into Linux and whether that software contains UNIX intellectual property.
33. All documents describing Open UNIX 8, including all technical documentation, licensing parameters, how the product is sold, distributed and/or implemented, and any comparison or analysis of Open UNIX 8 and Linux.
34. All documents concerning any analysis or comparison of UNIX and Linux code, sequence, structure, or organization, including, without limitation, such documents regarding the benefits or functionality of Linux as compared to the UNIX software product.
35. All documents concerning the statements made in a letter posted on SCO's website providing that SCO's own Linux customers would not be liable to SCO for actions it may take against other Linux users who are not SCO customers.
36. All documents concerning the basis for SCO's claim for damages in the action pending against IBM in the District of Utah.
37. All documents concerning the statements made in the letter dated on or about May 12, 2003, sent by SCO to approximately 1,500 Linux users or potential users including the documents that form the basis for SCO's statement in that letter that SCO believed its intellectual property and other rights were infringed.
38. All documents referred to in preparation of or concerning the SCO presentation made at Deutsche Bank Securities ('DBS') on or about July 22, 2003, and all documents provided to DBS for the preparation of any DBS financial and/or industry report.
39. From January 1, 2003 to present, all documents concerning any communications with financial or industry analysts, including any communications or meetings with financial analysts that cover Red Hat stock.
40. All documents concerning any public statements made by SCO that pertain to the subject matter of the Complaint.
41. All documents concerning the statements made by Darl McBride in a CRN.com interview entitled, 'Update: CRN Interview: SCO Defends $1 Billion Lawsuit Against IBM,' including the following statements: (a) '[t]here will be a day of reckoning for Red Hat and SuSE when this is done'; and (b) 'IBM took chunks [of code] out of [Project] Monterey, and gave it away. You can find it in Red Hat and SuSE Linux.'
42. All documents concerning the statements made by Chris Sontag in a Mozilla QuestOnline Magazine article entitled 'SCO-Caldera v. IBM: SCO Clears Linux Kernel but Implicates Red Hat and SuSE,' available at http://www.mozillaquest.com/Linux03/ScoSource-10_Story01.html including the following statements: (a) 'We are using objective third parties to do comparisons of our UNIX System V source code and Red Hat as an example. We are coming across many instances where our proprietary software has simply been copied and pasted or changed in order to hide the origin of our System V code in Red Hat'; and (b) 'We're not talking about the Linux kernel that Linus and others have helped develop. We're talking about what's on the periphery of the Linux kernel.'
43. All documents concerning the following statements:
a) made in SCO's May 14, 2003 press release, including the statement that 'The SCO Group . . . today warned that Linux is an unauthorized derivative of UNIX and that legal liability for the use of Linux may extend to commercial users';
b) made in SCO's May 14, 2003 press release, including the statement that 'SCO will continue to support existing SCO Linux and Caldera OpenLinux customers and hold them harmless from any SCO intellectual property issues regarding' those products;
c) made by Chris Sontag in a CNET News.com interview entitled 'SCO May Expand Linux Case Soon,' including the statements(a) that SCO 'may bring subsequent actions against Linux software developers such as Red Hat and SuSE'; and (b) 'Do we have potential issues with Red Hat, SuSE and other commercial Linux distributors - yes, we might';
d) made by Darl McBride in a CNET News.com interview entitled 'Why SCO Decided to Take IBM to Court' including the statement that 'if in fact users are running systems that have basically pirated software inside of there, or stolen software inside of their systems, they have liability. We're not saying that they created that liability; we think there are a number of parties along the way that generated that. But we feel like we have an absolute requirement to let them know what was going on as we went down this path';
e) made by Chris Sontag in a VNUnet.com interview entitled 'Interview: SCO chief Darl McBride part 2' included the response 'Yeah. that one is a no-brainer' to the question 'Are you still saying categorically that there is offending code in the Linux kernel?';
f) made in SCO's July 21, 2003 Press Release including the statements that SCO 'will offer UnixWare licenses tailored to support run-time, binary use of Linux for all commercial users of Linux based on kernel version 2.4.x and later. SCO will hold harmless commercial Linux customers that purchase a UnixWare license against any past copyright violations, and for any future use of Linux in a run-only, binary format';
g) made in SCO's July 21, 2003 Press Release including the statements that 'SCO indicated last week that Linux end users could face liability for running it in their organization. Beginning this week, the company will begin contacting companies regarding their use of Linux and to offer a UnixWare license';
h) 'Since the year 2001 commercial Linux customers have been purchasing and receiving software that includes misappropriated UNIX software owned by SCO';
i) made in SCO's July 21, 2003 Press Release including the statements that 'Today, we're stating that the alleged actions of IBM and others have caused customers to use a tainted product at SCO's expense. With more than 2.4 million Linux servers running our software, and thousands more running Linux every day, we expect SCO to be compensated for the benefits realized by tens of thousands of customers'; and
j) made in SCO's July 21, 2003 Press Release including the statements that 'We have a solution that gets [Linux users] clean, get [Linux users] square with the use of Linux without having to go to the courtroom.'
44. SCO's quarterly and annual financial reports from the day SCO acquired the rights to UNIX to present, and documents sufficient to identify SCO's sales and profits since the date SCO acquired the rights to UNIX to the present.
45. All documents concerning a Linux Lottery or the phrase the "Linux Lottery'.
46. All documents concerning revenue generated by any SCO licensing program or licensing initiative, including any analysis or projection of revenue that could be earned by virtue of a Linux licensing program, UNIX licensing program. SCOsource licensing program, or SCOsource licensing initiative.
47. All documents concerning the establishment or setting of UNIX licensing fees by SCO, including without limitation documents related to licensing fees associated with any technology owned or managed by SCOsource, any contention by SCO that users of Linux must pay a fee of any kind to SCO, and any licensing fees related to other SCO UNIX technology, software, products and services.
48. All documents concerning both the Canopy Group and UNIX, including without limitation, communications with the Canopy Group regarding UNIX.
49. If SCO contends that Red Hat or its customers have violated any of its rights in UNIX software (including without limitation any copyrights or trade secrets), all documents concerning that contention.


That last part about finances is presumably so Red Hat can figure out its damages if it wins.

Then, in Red Hat's "First Set of Interrogatories", stil in the same pdf, it wants SCO to answer the following interrogatories, or questions:

1. If SCO contends that Red Hat or its customers are violating or have violated any UNIX intellectual property rights in which SCO has any legal interest, set forth with specificity the basis for that contention.
2. If SCO contends that Red Hat or its customers are misappropriating or have misappropriated any of its trade secrets, set forth with specificity the basis for that contention, including without limitation, the identity of any trade secrets and the circumstances under which those trade secrets were misappropriated.
3. If SCO contends that Red Hat or its customers have infringed any of SCO's rights protected by the Copyright Act, 17 U.S.C. Sections 101 et seq., set forth with specificity the basis for that contention, including without limitation, the identity of any copyrights that SCO claims are infringed and the basis for SCO's claim that Red Hat or any Red Hat customer has infringed that copyright.
4. If SCO contends that Red Hat or any of Red Hat's customers are required to pay a fee to license SCO's UNIX intellectual property, set forth the basis for that contention, including without limitation the amount of each and every such fee, the method used to establish the amount of that fee, the basis for the fee, and the terms of any associated license.
5. Provide the following information in a manner that precisely identifies each and every instance of copyright infringement that SCO maintains exists in any of Red Hat's Linux software or products:
(a) Identify by title, version, module(s) and line(s) each and every portion of UNIX source code that you claim has been copied or has otherwise been incorporated into any Linux software in violation of any of SCO's copyrights;
(b) For each and every portion of UNIX source code identified in 5(a) above, identify by title, version, module(s) and line(s) each and every corresponding portion of Linux source code that you claim was copied or otherwise incorporated from the identified portion of UNIX source code in violation of SCO's copyrights;
(c) For each and every portion of UNIX source code identified in 5(a) above, describe whether SCO claims that the UNIX source code was literally copied, is a derivative of UNIX source code, copies the structure, sequence, and organization of the UNIX code, and any other manner in which SCO claims the Linux code infringes any of SCO's copyrights;
(d) For each portion of the UNIX code identified in 5(a) above, identify the individual(s) who authored that portion of the code, the date that portion was written, and the date that portion became a part of the UNIX code; and
(e) For each portion of the UNIX code identified in 5(a) above, identify each entity that had access to that portion of the UNIX code and the dates it had such access.
6. Identify every SCO Linux product, and every third party Linux product, that contains any code corresponding to the Linux code identified in 5(b) above.
7. Provide the following information to precisely identify each and every instance of misappropriation of SCO's trade secrets that SCO maintains exists in any of Red Hat's Linux software or products:
(a) Identify by title, version, module(s) and line(s) each and every portion of Linux source code that you claim contains a trade secret of SCO's that has been misappropriated or otherwise wrongfully incorporated;
(b) For each and every portion of Linux source code identified in 7(a) above, identify by title, version, module(s) and line(s) any portion of UNIX code that contains or embodies SCO's trade secret(s) that SCO contends has been misappropriated or otherwise wrongfully incorporated into the Linux source code;
(c) For each and every portion of Linux source code identified in 7(a) above, describe SCO's legal basis for claiming that the Linux source code contains a trade secret of SCO's that has been misappropriated or otherwise wrongfully incorporated into Linux;
(d) For each portion of the UNIX code identified in 7(a) above, identify the individual(s) who authored that portion of the code, the date that portion was written, and the date that portion became a part of the UNIX code; and
(e) For each portion of the UNIX code identified in 7(a) above, identify each entry that had access to that portion of the UNIX code and the dates it had such access.
8. Excluding the instances of copyright infringement and trade secret misappropriation identified in SCO's responses to Interrogatory Numbers 5 and 7, provide the following information to precisely identify each and every instance of infringement of SCO's intellectual property rights that SCO maintains exists in any of Red Hat's Linux software products:
(a) Identify by title, version, module(s) and line(s) each and every portion of Linux source code that SCO claims infringes any intellectual property right of SCO;
(b) For each and every portion of Linux source code identified in 8(a) above, identify each and every intellectual property right(s) of SCO that SCO claims is/are infringed by the identified portion of Linux software (e.g., patent number and claim, contract by parties and date or similar identifying information, a description of the know how at issue and a description of the methods at issue); and
(c) for each and every portion of Linux source code identified in 8(a) above, further specifically identify by title, version, module(s) each and every corresponding portion of UNIX source code that you claim embodies the intellectual property right(s) that is/are infringed.
9. Describe with particularity the process(es) that SCO undertook to determine that Linux infringed the intellectual property rights of SCO, including without limitation, the date the process(es) began, the intellectual property rights examined or analyzed, the identity of all persons involved in determining for SCO that Linux infringed the intellectual property rights of SCO and each such persons specific role(s), and all reports or other documents concerning the infringement of SCO's intellectual property rights that were generated.
10. Identify the manner in which any SCO Linux product that contains any code corresponding to the Linux code identified in Interrogatory Numbers 5(b) or 7(a) above was marked and created, identify the extent of any modifications to non-SCO Lilnux that SCO made in creating SCO Linux, and identify the individuals involved with the marketing and creation of such SCO Linux product(s).
11. For the period from 1993 to present, identify each and every version of UNIX (including each UNIX kernel or UNIX operating system) and Linux (including each Linux kernel or Linux operating system) that SCO, or any company that was or is affiliated with SCO, has sold, licensed, distributed, or otherwise transferred rights to.
12. Identify each license, including the parties, date and terms, that SCO has executed or negotiated since January 1, 2003 in conjunction with any licensing initiative, licensing program, SCOsource, or otherwise in conjunction with SCO's claims that Linux infringes any of SCO's copyrights, trade secrets or other intellectual property rights of SCO.
13. Identify each Linux end user or potential Linux end user that SCO has contacted concerning its claims that Linux infringes SCO's copyrights, trade secrets or other intellectual property rights of SCO.
14. Identify each person that SCO has shown examples of UNIX or Linux source code that SCO claims provides a basis for any of SCO's claims that Linux infringes any of SCO's copyrights, trade secrets or other intellectual property rights of SCO, including all persons that viewed such examples at any 'viewing facility' established by SCO.
15. Identify each and every meeting SCO has had with any financial, stock or industry analyst (including Deutsche Bank) from January 1, 2001 to present, including without limitation the date of each meeting, the persons that attended each meeting, the subjects discussed at each meeting, and the reasons for each meeting.
16. Describe with particularity the relationship between the Canopy Group and SCO, including without limitation, any direct or indirect ownership interests of each company in the other, the corporate structure of and purpose of the Canopy Group, the instances and amounts of money and stock transferred between SCO and the Canopy Group from January 1, 2001 to the present, any intellectual property transferred between Canopy and SCO from January 1, 2001 to the present, all agreements between SCO and Canopy, including any license agreements, from January 1, 2001 to present.


SCO has responded to the discovery requests by telling the judge they'd like a delay: In SCO's Motion to Stay Discovery, it tells the judge that it shouldn't have to respond to Red Hat's requests for discovery at this time, because they've filed a motion to dismiss, and until the motion is ruled on, they'd rather not tell Red Hat anything, because it'd be "wasteful" and so very time-consuming. After all, if their Motion to Dismiss the case in its entirety is successful, then they won't have to do discovery at all.

Besides, similar discovery is ongoing in the IBM case, they argue, so a brief delay won't cause any evidence to disappear (like it'd be a great strain to Xerox an extra copy). And it'd cost a lot for SCO to have to produce all the discovery materials requested, they argue. And since the Motion to Dismiss is based on the law, and not on the merits of the case, they say, none of the discovery is needed for Red Hat to answer their Motion to Dismiss, and furthermore, they already filed their reply to the motion, so obviously they don't need the requested documents to do that. (I'd argue with their contention that their Motion to Dismiss is based only on the law, because one of their main points was that they never intended to sue Red Hat until after the IBM matter. That's not an issue of law, but of fact, but they are naturally going to tell the judge only the parts it wants her to hear.) If the judge doesn't dismiss their case in its entirely, they'd like 30 days to respond to the discovery requests. In short, delay, delay, delay. The same song they sang in Utah to get matters postponed until February of 2004.

Red Hat has also filed an amended brief, according to this letter, correcting some typos in the original. That will make Grokkers happy, I know, judging from comments and email I got. Then, in the final document, Stipulation and Order to Extend Time, the parties agreed to give SCO until October 10 to file its reply to Red Hat's answering brief to SCO's Motion to Dismiss and the judge so ordered on October 6.

Remember the tennis balls? This is SCO's final word, normally, in this round on the Motion to Dismiss. The judge next will decide the SCO Motion to Dismiss, after it gets the next SCO filing on the 10th, but now there is a second motion, and Red Hat will have an opportunity to reply to this new Motion to Stay Discovery .

Motion practice can be confusing, but the bottom line is this: there are two motions from SCO now before the judge. First, we had the original Motion to Dismiss, asking the judge to make this whole thing go away. Red Hat replied to that saying please don't, and then it filed for discovery. SCO doesn't want to do discovery, because it hopes to get away scot free by getting the case dismissed, so it has filed a Motion to Stay Discovery. Stay just means put off until a future date, or postpone. So the second motion is asking for a postponement of discovery until after the judge rules on the first motion. Confused yet? I hope not, because we've only gotten started.

If the judge doesn't grant them the delay, I expect next SCO will start specifically refusing to answer certain questions and refusing requests for documents, just as they are in the IBM case, and then that will probably end up before the judge in Delaware, with Red Hat having to bring the problem to the judge for resolution, just as IBM is having to do in Utah. In short, SCO appears to be looking for delays in both cases, which is exactly what the Linux/free software community has been saying from the beginning, that SCO didn't want to bring this to trial in a speedy way. The media back then seemed to think otherwise, but now we have Exhibit A, you might say. The proof is in the pudding.

We'll find out how it plays in Delaware and fairly soon. Red Hat's attorneys did a wonderful job on these discovery demands, and if SCO answers even half of them, I expect it'll be curtains for them, depending of course on what evidence it can produce to support its claims, if any. I typed this up mighty fast, because I wanted reporters and other interested parties to be able to quote from the list easily, and because I enjoyed reading it and wanted everyone to do the same without having to download a pdf. But the pdfs are what you should use for anything that matters, in case there may be typos and because I formatted it to fit a smaller space.

And now, a bit of champagne for me.


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )