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SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Sunday, July 11 2004 @ 08:25 AM EDT

Here is SCO's admission that it lacks the facts sufficient to defeat IBM's Motion for Partial Summary Judgment, their Rule 56(f) Motion in Further Opposition to IBM's Motion for Partial Summary Judgment. It is also the document that will explain all the others that have been flying around recently.

What is a Rule 56(f) motion? It is what you file when you need more time to do discovery and are staring a summary judgment motion in the face that you know you can't defeat with the evidence you have in hand.

IBM has brought a motion for partial summary judgment with respect to its counterclaim 10, and SCO can't present the necessary evidence to defeat it evidently, so they have filed this motion to try to persuade the judge that they need more time for discovery and so the judge shouldn't grant IBM's request.

What? SCO asking for a delay? You're . . . surprised? Shocked and surprised? Yes, friends, SCO is asking for yet another delay.

Here is Rule 56 of the Federal Rules of Civil Procedure:

"Rule 56.  Summary Judgment

"(a) For Claimant.

"A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.

"(b) For Defending Party.

"A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.

"(c) Motion and Proceedings Thereon.

"The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

"(d) Case Not Fully Adjudicated on Motion.

"If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

"(e) Form of Affidavits; Further Testimony; Defense Required.

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

"(f) When Affidavits are Unavailable.

"Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

"(g) Affidavits Made in Bad Faith.

"Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt."

Like everything else about the legal system, there is a whole lot more to it than just the words in the books. You are asking the judge to give you more time for discovery, and you have to meet a certain standard to get your wish.

You can't, for example, have goofed around and wasted time and then succeed on the 56(f) motion. Here's part of a ruling where the judge turned down a Rule 56(f) motion for that very reason, because the plaintiff had made no attempt to obtain discovery:

"Fed R. Civ. P. 56(f) allows a party opposing a motion for summary judgment to seek deferral of a ruling pending discovery of essential facts. See Committee for the First Amendment v. Campbell , 962 F.2d 1517, 1521-22 (10th Cir. 1992). The rule is not 'invoked by the mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable.' Pasternak v. Lear Petroleum Exploration, Inc. , 790 F.2d 828, 833 (10th Cir. 1986). A party requesting additional time must provide an affidavit 'identifying the probable facts that are not available,' listing the steps 'taken to obtain these facts,' and explaining 'how additional time will enable him to rebut movant's allegations of no genuine issue of fact,' Committee for the First Amendment , 962 F.2d at 1522 (quotation omitted). 'The purpose of the affidavit is to ensure that the nonmoving party is invoking the protections of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition.' Id . (quotation omitted). If the party seeking deferral has been dilatory, 'no extension will be granted.' Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550, 1554 (10th Cir.1993)."

On the other hand, if you really haven't had a fair chance to do discovery, you should be granted more time, as the attorneys argued in this brief:

"Under Rule 56(f) of the Federal Rules of Civil Procedure, summary judgment cannot be granted where the party opposing the motion can show that he needs discovery in order to establish his defenses or to pierce the plaintiff's allegations. Rule 56 requires discovery 'where the nonmoving party has not had the opportunity to discover information that is essential to its opposition.' Metabolife Int'l v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001), quoting Anderson v. Liberty Lobby, 477 U.S. 242, 250 n.5 (1986); Vance by and through Hammons v. United States, 90 F.3d 1145, 1148-1149 (6th Cir. 1996)."

Naturally, you have to be specific in telling the judge what you expect to find and you can't ask for more time just on a hunch, or just because you vaguely think a fishing expedition might turn up something relevant somewhere, somehow:

"To oppose a summary judgment under Rule 56(f), a party must file an affidavit explaining: (1) the information sought and how it is to be obtained; (2) how a genuine issue of material fact will be raised by that information; (3) what efforts the affiant has made to obtain the information; and (4) why those efforts were unsuccessful. See, e.g., S.E.C. v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980), cert. denied, 449 U.S. 1082, 66 L. Ed. 2d 806 (1981); First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 294, 20 L. Ed. 2d 569 (1968). All the plaintiffs have alleged in their affidavit is the need to depose individuals to establish the conspiracy to discriminate and give away public property. No mention of any of the other causes of action is made. Informative is the excuse given by the plaintiffs for their failure to obtain this information -- 'I . . . have attempted t[o] obtain this information without going through the expense and time of taking depositions.' The plaintiffs cannot be allowed to sit and wait for a motion for summary judgment before taking any action towards proving their allegations. Clearly, the plaintiffs have failed to establish any cause for the granting of such a motion. See Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416 (9th Cir. 1987) (summary judgment will not be delayed for discovery on factual issues that the movant has already negated with affirmative evidence); Paul Kadair, Inc. v. Sony Corp., 694 F.2d 1017, 1030 (5th Cir. 1983) (noting that Rule 56(f) cannot be relied upon to defeat a motion for summary judgment "where the result of a continuance to obtain further information would be wholly speculative")."

The purpose of the court is to give both sides a fair hearing, and the standard is fairly liberal in granting 56(f) motions:

"Rule 56(f) provides that if the party opposing a motion for summary judgment cannot yet submit evidence supporting its opposition, 'the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.' Fed. R. Civ. P. 56(f). The Supreme Court has restated this rule as requiring, rather than merely permitting, refusal 'where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

"Because of the requirement that the nonmoving party be permitted to conduct necessary discovery, summary judgment is often considered inappropriate early in a case. See, e.g., , 821 F.2d 461, 469 (8th Cir. 1987); Schwarzer, et al., supra, at P 14:66. In addition, federal courts take into account difficulties that the nonmoving party may have in developing the evidence he requires to defend the motion. For example, if the information needed to defend the motion is in the moving party's control, as is generally the case when a plaintiff must prove malice, 'most courts . . . are lenient in granting further time for discovery . . . .' Wright, et al., supra, at s. 2740, p.409; see also International Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3rd Cir. 1990) ('Where the facts are in possession of the moving party a continuance . . . should be granted almost as a matter of course.'); Schwarzer, et al., supra, at P 1466. This tendency toward leniency is strengthened when the summary judgment motion raises latent fact issues such as motive, intent, knowledge, or credibility and the moving party has exclusive control over those facts. Wright, et al., supra, s. 2741, at p.422; cf. Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979) (noting that because malice implicates the defendant's state of mind, it 'does not readily lend itself to summary disposition'). "These rules comport with the purpose of Rule 56(f), which is 'to provide an additional safeguard against an improvident or premature grant of summary judgment.' Wright, et al., supra, at s. 2740, p.402. Therefore, the provision permitting continuances 'should be applied with a spirit of liberality.' Id."

On the other hand, here is a case where the judge said he wouldn't allow a Rule 56(f) continuance "merely on some vague hope plaintiff will turn something up that is relevant."

To understand a Rule 56(f) motion, you have to understand what summary judgments are and what they are for. Here's a page that explains civil procedure, if you'd like a structural view of the process. It says that summary judgments are the mechanism under the Federal Rules to deciding cases where no trial is necessary. It's like a fast track way to get a decision, without going through a trial. As you saw, Rule 56(c) requires that there be "no genuine issue as to any material fact" and that the movant be entitled to judgment as a matter of law. Juries weigh evidence. Summary judgment is for when there is no evidence to weigh.

In our present case, it's IBM that has brought a motion for partial summary judgment on their counterclaim 10. It's up to SCO to present facts in dispute in order to defeat their motion. They have not done so, and they can't, and this motion is their admission that they can't. (It's also conceivable that they have some facts up their sleeve but they'd rather not reveal it at this time. I pretty much rule that out, though, because I am so convinced that there is no infringing code. But I'm just presenting all the conceivabilities, so you can weigh matters and draw your own conclusion.) So now they are asking the judge for time to get their ducks in a row by doing depositions of Linus and some of his Notorious Gang of Thousands. In order to convince the judge, they have to give good reasons why they don't have the discovery materials they need. The idea behind the rule is that you don't want a premature dismissal without giving the nonmoving party a fair chance:

"56(f) protects a party opposing a motion for summary judgment if the party states reasons why he cannot present essential facts." Starks v. Commercial Union Ins. Co., 501 So. 2d 1214, 1216 (Ala. 1987). 'The rule 'should be liberally applied to allow parties an ample opportunity to marshal necessary facts to support their respective positions.'"

In order to get more time, you have to tell the judge what you still need from discovery and what steps you already took to try to get it, and if it is the other side that has been blocking you, you are more likely to get your wish for more time:

"'When a party files an affidavit under Rule 56(f) for additional discovery time, . . . [t]he trial court may deny the affiant's request for additional time, deny the motion for summary judgment, order a continuance for additional discovery or make such other order as is just.' Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550, 1553-54 (10th Cir. 1993) (citations and quotation omitted).

"A party seeking time to conduct additional discovery under Rule 56(f) must provide an affidavit identifying what facts are not available and what steps the party has taken to obtain those facts. See Committee for the First Amend. v. Campbell , 962 F.2d 1517, 1522 (10th Cir. 1992). 'Rule 56(f) may not be invoked by the mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable . . . .' Pasternak v. Lear Petroleum Exploration, Inc. , 790 F.2d 828, 833 (10th Cir. 1986). 'Furthermore, if the party filing the Rule 56(f) affidavit has been dilatory, or the information sought is irrelevant to the summary judgment motion or merely cumulative, no extension will be granted.' Jensen , 998 F.2d at 1554.

"Here, plaintiff did not file an affidavit as such. Rather, his counsel filed a motion and brief, to which he attached his affidavit stating that all factual averments contained in the motion and brief were true to the best of his knowledge. Even if construed as the required affidavit, these documents did not meet the requirements of Rule 56(f). They neither set forth the specific facts plaintiff needed to discover, nor explained how such facts would have been useful to oppose defendants' motion. See Jensen , 998 F.2d at 1554-55. Further, the record reflects that plaintiff was dilatory in pursuing discovery before filing the Rule 56(f) motion. Under the circumstances, the district court did not abuse its discretion in denying plaintiff's Rule 56(f) motion."

So all the posturing by SCO -- that IBM is dragging its feet in discovery and won't give them this and that, that SCO has been so "in good faith" in the discovery process (note SCO didn't mention the first Motion to Compel that IBM won against them, only the Second, which IBM also won but where the judge said SCO finally showed good faith, but this "good faith" showed up in February of 2004, almost a year after the case began, after a hearing where the judge told SCO pointedly that the hearing was about *their* compliance, not IBM's), the long list of people they just have to depose (which they could have done for some time now but haven't bothered), etc. -- it's all about fitting into a 56(f) motion and meeting the requirements, or blowing enough hot air that it looks like you've met them..

Now that you get it, and you have read the Red Hat letter to the judge in Delaware saying that SCO says whatever it thinks will help it to win, you probably get why my first reaction was to throw up. Those of us watching this story unfold in detail, day after day, have no doubt which party has been delaying.

So, what can the judge do about their motion? He can grant them more time, he can decide they don't deserve more time and grant IBM's summary judgment request, he can fashion some resolution himself, whatever he wants, up to a point. The Rule says a judge "may" do such and such, but you can abuse that discretion if you pick a resolution that makes no sense. Here is a case where there was an appeal, and the judge thought the lower court had abused its discretion:

"Although Rule 56(f) does state that "the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just, under the facts of this case, we hold that it was an abuse of discretion for the trial court to enter a partial summary judgment for the Bank and a summary judgment for Kelly, and we reverse those judgments and remand the case for further proceedings."

So what do we learn from that? That whatever the judge decides, it's appealable. Sigh.

So, once again the bottom line is, SCO wants another delay. The problem they face is that they have sought so many delays and have dragged their feet so much, it could come back to haunt them now in this 56(f) Motion. Remember the Santa ate my discovery excuse? The evidence they couldn't gather because of Christmas after they had agreed 30 days was enough in open court on December 5, with the obvious knowledge that Christmas tends to happen every year and was about to occur once again?

"THE COURT: All right. Does that give you sufficient time? I am holding you to the 30 days, but if we get this order signed by Wednesday of next week, let's make it even the fourth week of January, which is after the 19th. Why don't we do it Friday, then, the 23rd at 10 o'clock, again, and then we will address the remaining motions of SCO, all right.

"MR. MCBRIDE: So Your Honor is not ruling on our motions at this point in time; is that correct?

"THE COURT: No. I'm not ruling on your motions, and that is inherent in my order that further discovery be postponed.

"MR. MCBRIDE: Very good, Your Honor.

"THE COURT: We'll address them then.

"MR. MCBRIDE: So and we'll, in this next -- the January hearing then we will address the -- our pending motions as well?


"MR. MCBRIDE: Thank you, Your Honor."

But when the deadline arrived, they said they needed three more months, remember? Remember Hatch acknowledging their posturing he categorized as just good lawyering in the last hearing?

"HATCH: In addition to that matter, there's been, you know, as always at the beginning of the case, the complexity, when we're dealing with good attorneys and aggressive attorneys, there's been a considerable amount of jockeying that has affected the schedule. And part of that resulted in Judge Wells at one point staying discovery for a period of three months. And then at the end of that three months, giving one party 45 days to respond to some of the discovery the motion compel [sic] at the beginning of that. So that took about four and half months out of it, as well."

The whole discovery process was shut down for months by judge's order, on IBM's side, until SCO put up or shut up and complied with IBM's discovery requests first. Do judge's relieve one side from having to comply with discovery until the other side complies if the other side has been good? I don't think so. SCO for months had told the court they couldn't comply until IBM *first* turned over all the AIX and Dynix code from the history of the world, which the judge refused to order IBM to do. So, SCO wasn't chosen to go first on a roll of the dice. They were told to go first because IBM had argued that SCO, as the plaintiff, had the burden to tell them what they were accused of doing wrong with specificity, so IBM could defend itself. SCO is now telling it that it was just somebody had to go first, and they got chosen at random. It wasn't like that at all. For that matter, SCO is still asking for the same thing. They want IBM to prove their case for them. They have consistently pushed for IBM to have to go first, and there was a lot of time lost over that. Now we know why they wanted IBM to go first -- they are fishing for some evidence of their wild allegations.

That was their decision and their strategy. The problem is, if you delay yourself, you can't successfully bring a 56(f) Motion. Now, they must pretend none of that delay from their posturing ever happened, and it's all IBM's fault. What, though, is the reason they haven't deposed Linus already if that is so vital? IBM filed their 10th Counterclaim back in March. It's now July. Is that not four months of inaction, if we count time like SCO, or 3 1/2 otherwise? What excuse for that inaction can there be? Is he hard to find? The poor man lives in the public eye. It all depends on how well the judge grasps SCO's techniques. If it's still too early for him to get the big picture, they may get a continuance. But don't forget. Judge Kimball, when partially granting their request for more time on the Scheduling Order, told them they'd get no more delays. So he isn't totally clueless.

But the US legal system was fundamentally designed to be fair. It's not supposed to ever be "Off with their heads" without a mighty good reason and a fair chance to prove your side. Cynics can abuse that system, no doubt about it. Sometimes they do. But that reflects more on them than on the system. Cynics figure out mean ways to hustle money from simple down-home tourists' from the mid-West when they visit New York City, too. That doesn't tell me that there is anything wrong with being open-hearted, sincere, and too nice to quickly see the cynical thieves for what they are in time to save your money. It'd be a sad world where we all view everyone as a snake, just in case. What else do hustlers do but take advantage of niceness?

So, bottom line: they might get more time, but if they do, it merely postpones the inevitable. They can subpoena the Pope if they want and every Linux user on the face of the earth and they still won't find any infringing code in Linux. They keep thinking that if they just get more time, more code, more depositions, they'll find something. Or they pretend that is what they are thinking. Give it up, SCO. You gambled and lost.

Oh, and earth to SCO: Linus was never a student of Andrew Tanenbaum's. They weren't even in the same country. You need to stop believing the nonsense you get from AdTI and garbage you read in the media. Don't get me started on "think" tanks. And as for "analysts", Microsoft's Steve Ballmer just admitted openly that they use them to get their message out. How does it feel, Yankee Group, to be outed? I'm sure everyone will *really* take seriously every word falling from the lovely lips of Ms. DiDio now.

Back to SCO, it's making your lawyers look stupid, to the max, when they swear in declarations and put in your filings that Linus was a student of Tanenbaum's, cross their hearts and hope to die.

You, more than most, ought to know that reporters print a lot of nonsense, just because it lands on their desk in the form of a press release and they don't have time to really fact check. Ask Darl to show you his phone-book sized clippings notebooks, the ones he showed off at SCOForum last summer, about the million lines of code he had in hand and how they didn't need to do one bit of discovery because they already had truckloads of infringing code, line by line copying -- even the comments were identical, remember? -- code his MIT deep-diving sleuths had found, etc. Headline after headline. And none of it, if SCO's current story is believed, turns out to be true. Unless SCO's 56(f) Motion is fibbing and they don't really need more time to try to find infringing code? Just wait until we get to the tort counterclaims part of this trial. SCO is in so much trouble. And just think of all those people who bought the stock believing those headlines. My, oh my, oh my.

The trouble with fibbing is, after a while nobody believes you any more. I wonder how all those reporters feel, now that SCO has told the Utah court that their lawsuit against IBM isn't one bit about IBM putting Unix code into Linux: "SCO has not alleged any copyright violation based on IBM's contributions to Linux, and has brought only a single, limited copyright claim against IBM that is expressly based on IBM's use and distribution of AIX and Dynix after the termination of its licenses."

Now you tell us. Do you suppose the reporters feel like a hustled tourist in Times Square, reaching for his wallet to pay for a hot dog and finding the wallet gone and suddenly remembering and connecting the dots about that guy that bumped into him, apologized profusely and then disappeared into the crowd? They ought to be writing about this, and maybe after the shock wears off, they will. Some of them. The ones who aren't busy getting Microsoft's message out. I gather SCO contacted journalists about their current legal flurry. But the headlines were mighty few and far between this time, and none of the articles I saw spun it the way SCO would have liked.

Even a decent, friendly tourist from South Dakota can't be hustled twice.

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