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To read comments to this article, go here
Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Wednesday, June 23 2004 @ 12:19 AM EDT

Here is the Order Denying SCO's Motion for Protective Order, as text. This was SCO's 11th-hour attempt to postpone depositions. We knew about the order, but note the third of the three reasons Judge Wells gives for not agreeing to postpone the depositions SCO asked to postpone. It wasn't listed on Pacer in the clerk's brief notes.

If you recall, in their motion asking to postpone the depositions, SCO argued like this:

"Second, the depositions scheduled for Tuesday, June 8th, directly conflict with the hearing date for the parties' argument on the Motion to Amend the Scheduling Order. The Court scheduled the hearing after IBM noticed the depositions. SCO submits that this intervening change in scheduling itself warrants the rescheduling of the deposition. It is true that both parties could simultaneously provide counsel to cover the June 8th hearing in Utah and what are likely to be trial depositions in North Carolina and California. However, SCO would be best represented if senior counsel with experience on this matter could attend both the hearing and the depositions. Under the current schedule, that is not possible."

So, Judge Kimball, who didn't just fall off a turnip truck, said he'd reschedule the hearing, which had been set for the same day as the deposition of David Frasure, if necessary, in order to get the deposition accomplished. That indicates that Judge Kimball is interested in getting this show on the road. SCO did not accept the offer, and the hearing went on as scheduled, so evidently they do have more than one attorney they can use in a pinch, despite their fervent pleas.

Lamlaw has an interesting theory about SCO's DaimlerChrysler suit, by the way. He points out that you can't be sued for slander or libel if you say things in court documents. He conjectures that SCO is just filing away for the PR benefits, even though they likely know they can't win:

"You have to keep in mind that statements made before in the court in pleadings, declarations and indeed testimony is privileged.  That means that no matter what is said or alleged in the court proceeding, DCC can not sue SCO or any of the witnesses for Libel, Slander, etc.  So if you are going to publicly claim that someone such as DCC has violated your so-called copyrights by taking SCO property and contributing it to Linux, you can safely make that public accusation provided it is conducted solely within the boundaries of the official court documents.

"This is the purpose of the DCC law suit. . . .SCO wants to publicly claim that SCO licensees have illegally contributed SCO property to Linux.  Of course this fellow is not in any position to testify to that conduct anyway unless he somehow has information far beyond what he disclosed here.  But the process of putting up a rather long Declaration complete with the suggestion that DCC is somehow making those contributions to Linux discloses SCO true intent with the law suit.

"Why is that?

"The court couldn't care less about accusations or suggestions that may be contained in this Declaration unless they relate directly to the issue before the court.  And here the issue before the court is whether DCC was obligated to provide the certification or whether or not they actually did provide an adequate certification.   SCO has not sued DCC for making any such contributions as this Declaration suggests.  And the portions of this declaration where Mr. Broderick says 'SCO claims this or claims that' is not something that a 'witness' could testify to anyway.  If SCO wants to make claims against DCC, their lawyers can draft the appropriate pleadings and the court can decide for itself what it is that SCO may believe or think.  Mr. Broderick's statements here are of no value to the issue before the court.  Yet they are presented here in leu of SCO actually filing a cause of action against DCC on those issues.  SCO could do that if they thought they had any evidence to back it up.  They have not. And that strongly suggests they have no such evidence.

"But you see, SCO really wanted to public accuse at least one Linux customer (former SCO customer) of making illegal contributions to Linux.  A public claim under the protection of legal papers in another case.  That is why the DCC case was filed. "Why  do I conclude that?

"Do you really think that SCO was damaged in any way shape or form by DCC not submitting that certification after having discontinued the use of SCO products for 7 years?  I mean you have got to be kidding.  The judge has to be asking 'Why is this case even here?'.    Even if SCO is legally correct the damages are nil.   Corporation just do not go around filing meaningless law suits showing nil damages.  This is a joke.  DCC knows it.  SCO knows it.  And no doubt the judge knows it too.

"So the real question is what SCO thought it would gain by filing it.  And the answer is making a public claim that DCC has violated SCO copyrights by making contributions to Linux without being held responsible for false public claims.   If SCO thought that the claim was valid they could have sued DCC directly based upon that claim.  But they have not.  What SCO wants is to make the public slur but be protected from law suits by doing so in the process of another law suit.  Any meaningless law suit will do."

So when SCO tells the court something, according to this theory, it may not be because they expect it to fly in the courtroom. In their motion to expedite, Judge Kimball called their bluff, cutting them off from being able to appeal that they didn't get a fair shake. They didn't postpone the hearing, even though he gave them the opportunity. What does that tell you? Me too.

*********************************

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

_________________________________

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant, vs.

INTERNATIONAL BUSINESS MACHINES CORPORATION

Defendant/Counterclaim-Plaintiff.

_______________________________

ORDER DENYING SCO'S MOTION FOR
PROTECTIVE ORDER

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

______________________________

Plaintiff and Counterclaim Defendant The SCO Group, Inc.'s ("SCO's) Expedited Motion for Protective Order came before the Court for a telephonic hearing on June 7, 2004. SCO was represented by Brent Hatch. Defendant Counterclaim Plaintiff International Business Machines Corporation ("IBM") was represented by Todd Shaughnessy.

The Court, being fully advised, hereby concludes as follows: (i) SCO's attempt to postpone depositions scheduled for the week of June 7, 2004 was undertaken too late; (ii) granting SCO's motion would cause undue inconvenience to the third party witnesses and other participants in the depositions, and (iii) to the extent SCO's motion is premised on its need to have the same attorney appear both at the deposition of David Frasure and at the hearing scheduled for June 8, 2004, before the Honorable Dale A. Kimball, Judge Kimball is willing to reschedule that hearing to accommodate SCO's counsel.

Based on the foregoing, and for good cause shown, IT IS HEREBY ORDERED that SCO's Expedited Motion for Protective Order be and hereby is denied.

DATED this 15th day of June, 2004.

BY THE COURT:

______[signature]_______
United States District Court
Magistrate Judge Brooke Wells

APPROVED AS TO FORM:

SNELL & WILMER LLP
Alan L. Sullivan
Todd M. Shaughnessy

CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott

BY ________[signature]_______
Counsel for Defendant International
Business Machines Corporation

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

By________[signature]_______
Counsel for Plaintiff


United States District Court
for the
District of Utah
June 17, 2004

CERTIFICATE OF SERVICE OF CLERK

Re: 2:03-cv-00294

True and correct copies of the attached werre either mailed, faxed or emailed by the clerk to the following:

Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]

Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]

Frederick S. Frei, Esq.
ANDREWS KURTH
[address]

Evan R. Chesler, Esq.
CRAVATH, SWAINE & MOORE
[address]

Alan L. Sullivan, Esq.
Snell & Wilmer LLP
[address]

Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]

Mr. Kevin P. McBride, Esq.
[address]

Robert Silver, Esq.

BOIES SCHILLER & FLEXNER
[address]

Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]


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