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Why SCO Requested to File Overlength Memo - What Is At Stake?
Tuesday, July 13 2004 @ 08:37 AM EDT

Here is SCO's Ex Parte Motion for Leave to File Over-Length Memorandum in opposition to IBM's Motion for Partial Summary Judgment on its Tenth Counterclaim, and here is Judge Kimball's Order granting them permission.

Here you find them pleading for more space, because a lot is at stake. You have read the memorandum already, but note in their motion what they are so nervous about: IBM has requested summary judgment under Rule 56 on the merits (that SCO has failed to produce any evidence of copyright infringement), and *alternatively* they are asking for sanction of dismissal under Rule 37(b)(2) (taking the position that if SCO were to come forward with evidence now, they should be sanctioned for allegedly failing to comply with discovery earlier while purportedly certifying to the court that they were in full compliance.)

This explains their urgency, but it doesn't answer one simple question: if SCO hasn't filed a copyright infringement claim against IBM and doesn't intend to, why does it care if IBM gets a summary judgment of non-infringement? Obviously, they aren't telling the judge their whole story, even in a very, very, very long memorandum, which we will have as text shortly. And if they do intend to make such a claim, why don't they present their evidence now? That would be a fine way to defeat the summary judgment. Because they don't have any? Where is that mountain of infringing code they told the world about? Was it all a dream?

By the way, SCO has filed in the Novell case. But the Pacer entry is interesting. I don't have the document yet, so I can't tell you more than that they filed:

31 - SECOND Amended complaint by SCO Grp Amends [31-1] amended complaint; jury demand (kvs) [Entry date 07/12/04]

Does anyone remember an amended complaint, to make this a Second Amended complaint?

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

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

Robert Silver, Esq. (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]

Attorneys for The SCO Group, Inc.

_________________________________

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.

___________________________________

EX PARTE MOTION FOR LEAVE TO FILE OVER-LENGTH MEMORANDUM

Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells

_________________________________

Plaintiff/Counterclaim-Defendant The SCO Group ("SCO") hereby moves the Court pursuant to District Court Rule 7-1(c) for leave to file an over-length Memorandum in Opposition to Defendant International Business Machines' Motion for Partial Summary Judgment on its Tenth Counterclaim for Declaratory Judgment of Non-Infringement and in Support of its Rule 56(b) Motion. SCO has combined argument on both Motions for the Court's convenience.

In its Memorandum in Support of Motion for Partial Summary Judgment, IBM requests summary judgment under Rule 56 on the merits and alternatively seeks the sanction of dismissal under Rule 37(b)(2). IBM's Rule 56 claim is based on its position that SCO has purportedly not produced any evidence of IBM's copyright infringement. IBM's alternative claim for sanctions under Rule 37(b)(2) is based on its position that if SCO were now to come forward with evidence in opposition to IBM's Motion, SCO should be sanctioned for allegedly failing to comply wth its discovery obligations while purportedly having certified full compliance to the Court. Thus, SCO must address IBM's legal and factual arguments under Rule 56 and also address IBM's request for sanctions under Rule 37(b)(2). In responding to these two claims, SCO must address IBM's numerous misstatements and mischaracterizations of the record and provide a detailed analysis of how SCO has fully complied with its discovery obligations.

Moreover, as part of its response to IBM's Motion, SCO has filed a motion under Rule 56(f). Rather than file a separate memorandum, SCO has included argument in support of its Rule 56(f) Motion in its Memorandum in Opposition to IBM's Summary Judgment Motion.

As SCO must address multiple issues and place them in context for the Court, SCO respectfully submits that the excess length is necessary to fully address the issues.

DATED this 8th day of July, 2004.

________[signature]________

HATCH, JAMES & DODGE, P.C.
Brent 0. Hatch (5715)
Mark F. James
[address, phone, fax]

Robert Silver, Esq. (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Counsel for Plaintiff/Counterclaim-Defendant

Frederick S. Frei (admitted pro hac vice)
Aldo Noto (admitted pro hac vice)
John K. Harrop (admitted pro hac vice)
ANDREWS KURTH LLP
[address, phone, fax]

Of Counsel


CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, hereby certifies that a true and correct copy of EX PARTE MOTION FOR LEAVE TO FILE OVER-LENGTH MEMORANDUM was served on Defendant International Business Machines Corporation on the 9th day of July, 2004, as follows:

BY HAND DELIVERY:

Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]

Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address}

Donald J. Rosenberg, Esq.
[address]

_______[signature]________


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