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SCO Loses Motion to Bifurcate - SCO Motion to Delay Partly Denied, Partly Granted
Thursday, June 10 2004 @ 11:16 PM EDT

There is no moss growing on the Honorable Dale Kimball. Now comes word that SCO's Motion to Bifurcate the patent claims has also been denied without prejudice to renew after all dispositive motions have been decided. That is what IBM said made sense to do, wait until it is clear what is actually going to trial. Personally, I am guessing that would be nothing. What a waste of time it was to even bring this motion now. Perhaps that was the purpose.

On SCO's Motion to Amend the Scheduling Order, in which SCO asked for delays (not IBM, despite McBride's comments during the teleconference Thursday that it was IBM delaying), the judge said that because IBM's 14 counterclaims were added after the original scheduling order was set, and because he is denying SCO's motion to separate the patent claims, he is giving them a bit more time. He denies their motion in part, he says, and he grants it in part. And they got the judge's attention. He isn't going to grant any further delays, he says, noting that IBM has accused SCO of seeking delays in order to do FUD. This is the schedule and it's firm. No more horsing around.

Here is the judge's conclusion:

"Accordingly, IT IS HEREBY ORDERED that (1) SCO's Motion to Bifurcate is DENIED without prejudice to renew after all dispositive motions have been decided; and (2) SCO's Motion to Amend Schedling order is GRANTED in part and DENIED in part. As set forth above, the court has amended the Scheduling Order, although not to the extent requested by SCO."

The bottom line is that the trial has been pushed back from April of 2005 to September 30 of 2005, for the jury stuff, and the actual trial set to begin November 1, 2005.

Here is what SCO asked for in terms of delays:

  • fact discovery deadline changed to May 18, 2005
  • expert discovery deadline changed to July 15, 2005
  • deadline for filing dispositive motions changed to July 27, 2005
  • disclosure of 26(a)(3) materials changed to August 3, 2005
  • deadline for the special attorney conference and for the settlement conference changed to August 15, 2005
  • final pre-trial conference changed to approximately August 30, 2005
  • trial period should be changed to approximately September 15, 2005

Here is what the Judge is giving them instead:

  • fact discovery - Feb. 11, 2005
  • expert discovery - April 22, 2005
  • dispositive motions - May 20, 2005
  • Rule 26(a)(3) disclosures - Sept. 30, 2005
  • Sp. Atty conference & settlement conference - October 3, 2005
  • final pretrial conference - Oct. 10, 2005
  • exchange of proposed jury instructions - Sept. 30, 2005
  • filing of proposed jury instructions - Oct. 10, 2005
  • 5-week jury trial - Nov. 1, 2005

And here, and on Pacer, is the original schedule:

  • 08/04/04 - Fact Discovery cutoff
  • 10/22/04 - Expert Discovery cutoff
  • Deadline for filing of all motions 11/10/04 ;
  • Attorney Conference by 3/11/05 ;
  • Final Pretrial Conference 3/28/05 ;
  • 5 Week Jury Trial 4/11/05

IBM prevailed on the motion that mattered, the bifurcation. As for a few months' delay, who cares? I seriously doubt that this case is ever going to reach a jury anyway at the rate things are now progressing. The delay potential was crucial in the area of discovery, because you don't do certain things until that is complete, and SCO did not achieve the delay it sought in that area.

All in all, a very pleasant and satisfying day. I hope this is all clear, and not filled with typos, because I am exhausted and putting my off-duty sign on this exact minute.

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