Happily, andyj had a sudden burst of energy and quickly transcribed SCO's Reply Memorandum in Support of Its Motion for Separate Trials, so here it is as text.
As you will see, SCO pretends it didn't hear most of IBM's arguments, and it twists the parts it did absorb and acts like they mean something other than what IBM wrote. I used to have a sister who argued a little bit like SCO, although she couldn't hold a candle to SCO in scale and daring. But she did have the most irritating way of picking out one tiny side point I had said and twisting it to make it seem like I had conceded her main point. SCO does the same. It's really annoying.
For example, my sister and I were the same size, and we had an arrangement to share our clothes. But in reality, I rarely got to wear hers and she was always wearing mine. If my sister and I wanted to wear the same sweater to school, she'd tell my mom that I shouldn't be allowed to wear it because I'd get it dirty. I'd maybe say, "Well, she got my green dress dirty last week when I let her wear it, so what is the difference?" To which, my sister would say, in triumph, "See? She admits she is going to get it dirty," ignoring the fundamental fairness issue underlying my remark.
SCO here says, "See, IBM admits that this case is complicated and unwieldy and it might make sense to split it up," whereas IBM's chief point was that it doesn't think any of this nonsense is ever going to go to trial, because they expect to bring motions for summary judgment, and that it is too soon to know if there is a need to bifurcate, anyway, and it surely is too soon to know which elements of the case to break off into separate trials, if any, because discovery is just getting going, even if it were in some imaginary universe ever going to trial.
To which SCO replies, as if it hadn't heard that part, and it had no clue that the deadline for receiving discovery from IBM was this past Monday, "Worse, SCO has yet to see a single document from IBM in response to SCO's discovery supporting its patent
claims. . . ."
I hope the judge finds such non sequiturs as annoying as I do. In a perfect universe, the judge had a sister.
I trust the "40 patent claims" SCO moans about is a typo, not a stretching of the truth to make the case seem "unwieldy" and "complex". There are, as usual, typos in the document.
They seem to be arguing that it's too much to expect them to be able to handle all this discovery at the same time, to which one might point out that they brought the action and reasonably could have expected counterclaims. Granted they may be stretched rather thin, with so many other legal actions going on, but they brought the AutoZone and DaimlerChrysler cases after filing the action against IBM, so who is to blame if they are loaded down? If they can't handle all the legal work, maybe they should stop suing people. Just a suggestion.
Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[Address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
David K. Markarian (admitted pro hac vice)
BOISE, SHILLER & FLEXNER LLP
[Address, phone, fax]
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC.,
PLAINTIFF SCO'S REPLY MEMORANDUM
IN SUPPORT OF ITS MOTION FOR
Case No. 2:03CV0294DAK
Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells
IBM acknowledges that this court "has considerable power to decide how a
trial should be conducted and broad discretion to decide whether and how to separate
claims and issues." IBM's Response, p. 3. IBM also concedes that this case is very complex, and
that "it may make sense ultimately for the Court to adjudicate the claims and issues presented
in more than one trial." IBM Response, pp. 3, 4. (emphasis added). Most importantly, IBM scarcely
denies that its patent counterclaims have nothing to do with this case, devoting a mere two
sentences of its Response Brief to this critical issue. And in those two sentences, IBM admits
that the counterclaims are unrelated and unwieldy, claiming only (without showing) that they are
not "as unrelated" and "as unwieldy" as SCO has shown in its motion. Moreover, the many factual
points SCO demonstrated in its motion proving that separate trials are warranted are unrefuted in
IBM's Response Brief.
With the essential facts undisputed, IBM's sole argument in opposition
to SCO's motion for separate trials is that this Court should defer decision of this
issue until a later date - indeed, IBM suggests that the motion be denied without prejudice. IBM's
justification for deferring ruling on an issue that requires immediate attention is two fold. First, IBM
hypothesizes that "most (if not all) of the claims and issues in the suit can and should be
resolved by summary judgement...." IBM Response, p. 3. Second, IBM believes that the discovery and Markman
hearings required for the three remaining patent claims can be begin and end in
approximately 3 months. IBM Response, p. 6. Neither proposition justifies combining the pre-trial
and trial of the admittedly unrelated patent claims with the remainder of the litigation.
In contrast to IBM's "wait and see" suggestion, SCO has already
identified multiple grounds for separating discovery and trial of the patent counterclaims
from other claims in this case. SCO's motion detailed the ways it would be prejudiced if forced
to litigate the patent counterclaims injected by IBM into the case at the same time as the
non-patent issues. Examples of this prejudice include the fact that SCO and IBM currently have only
approximately 3 months remaining within which to complete non-expert discovery and are allocated
40 depositions each. IBM's remaining patent counterclaims alone could require as many as 65
addtional depositions to resolve the 40 patents claims they raise. The resolution of these
unrelated patent counterclaims could delay the litigation by at least 18 months, as the court must hold
Markman hearings and resolve the countless technical issues such claims represent. Worse,
SCO has yet to see a single document from IBM in response to SCO's discovery supporting its patent
claims, so SCO is hardly in a position to initiate the required patent depositions or even
prepare for them. If the patent counterclaims are not separated so that the remainder of the case
can proceed to trial, these admittedly unrelated counterclaims will impede the orderly preparation of
this case, including doubling the already considerable pre-trial time needed to bring this
matter to resolution. IBM, on the other hand, does not claim that it will be prejudiced by
separating the patent and non-patent issues.
Ignoring the impact on SCO of having to conduct discovery of both the
patent and non-patent claims at the same time, IBM instead relies on cases where courts
exercised their discretion to defer ruling on motions to separate trials. None of those cases
supports the idea that a district court must or should postpone such a decistion until after discovery.
Moreover, not a single one of IBM's cases involved patents, while numerous cases cited in SCO's motion
specifically related to separating patent claims. IBM has not endeavored to distinguish any of
these cases, all of which fully support separating the unrelated patent counterclaims from the
remainder of the litigation.
For the foregoing reasons, SCO respectfully requests that the Court
enter an order separating for discovery and trial IBM's four patent counterclaims from
the other claims in the case.
DATED this 19th day of April, 2004.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise
David K. Markarian
Counsel for Plaintiff/Counterclaim defendant
1 After requesting that SCO further identify IBM's inequitable conduct before the Patent and Trademark
Office, IBM coluntarily dismissed one of its four patent counterclaims.
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, hereby certifies that a true and correct copy
of PLAINTIFF SCO'S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SEPARATE
TRIALS was server on Defendant Internation Business Machines Corporation
on the 19th day of April, 2004, by U.S. mail to:
Evan R. Chester, Esq.
David Marriot, Esq.
Cravath, Swaine & Moore LLP
Donald J. Rosenberg, Esq.
Alan L. Sullivan, Esq.
Todd Shaughnessy, Esq.
Snell & Wilmer L.L.P.