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Judge Kimball's Order Re Briefing; Shepardizing & Groklaw's Purpose
Saturday, August 14 2004 @ 09:59 AM EDT

Here, as promised, is Judge Kimball's Order Re Briefing for Pending Motions, granting the parties more time to get their motion papers filed. The court notation listed it as on "IBM Stipulation" and I wondered why. But the order is very clear, that it was on stipulation by both parties. Just another example that you have to go by the actual court document, not the clerk's notation, or you can get confused.

Just an incredible flurry of activity, and no wonder. Both sides realize this could be the ball game, so naturally they are putting their heart into it and trying to get it right. Also, some of the flurry is because of SCO, as IBM pointed out, filing more than once on the same request.

The hearings will be in September, but the hard work for the lawyers is now, researching and preparing the motion papers, which the judges will read prior to the hearings. You may remember at the December hearing with Judge Wells that she opened the hearing telling the parties what her position was likely to be, based on the papers she had read and research she had done after reading them, and then gave them both an opportunity to change her mind:

"JUDGE WELLS: Gentlemen, let me indicate, as we begin, that I have reviewed your submissions, I have reviewed what I believe to be the pertinent case law in this matter and I have reviewed the affidavit that was submitted by Mr. Shaughnessy. And I've also taken note of the statements that are included in the submissions which indicate that certain representations have been made by SCO to the media.

"Based upon my review of those items, I would tell you what my intention is today so that we can then focus the argument towards that particular end. As I've stated, and based upon my review of those items mentioned, it would be my intention to grant defendant IBM's motion to compel answers as to both sets of interrogatories, and to require plaintiff SCO to file responses to these interrogatories or affidavits indicating that they are unable to do so and why within 30 days of the entry of this order. I would further intend on directing that IBM's responses should correct those deficiencies that are set forth in the defendant's addendum which was filed on 11-4 of this year, and that is to include answers to Interrogatories No. 12 and 13. Now, in the interim, it would also be my intention to otherwise postpone all other discovery until such filings have been and compliance has been achieved. . . . All right, given that as my intended plan today, then I would ask counsel to focus your arguments as to why or why not I should not implement that plan."

So you can see that the papers matter. SCO tried to change her mind, but it failed. At SCOForum, I hear there was a mention of SCO being praised by Judge Wells for complying with discovery in good faith, but back in December, many months prior, you can see that was not her view at all. SCO glosses over that part of the discovery process in their papers too, so it is good to review.

By the way, the lawyers that handle the oral arguments are not necessarily the ones that write the briefs. They would of course be involved, usually, and sometimes they do both, but it is two different skills. Legal writing is a skill all its own. An attorney could be a brilliant writer but not so good at oral argument, and vice versa. And of course all of it is based on strategy, and that comes before you do anything else. You first do research, then you plan the strategy based on the facts of the case and what your research showed you your strengths and weaknesses are, and only then do you begin the writing or arguing. Obviously, there can be adjustments as you go along, but the theme is there from the beginning. They know what they will argue and write the papers accordingly.

Shepardizing

By the way, when you are doing actual legal research, you don't just find a case and that's that. You have to shephardize it, meaning you have to look in the case law records in Shephard's Citations to see if it is still good law. For example, you might have a case that wins at the lower court level, but gets overturned on appeal. If you were writing a legal brief, or worse, basing your entire legal theory on that lower court decision, you are in trouble. First, you'd get laughed at. The other side would be thrilled, of course, and would make sure to make it known to the judge, and then you'd lose. Bad law is worse than no law. So when you find a case by researching in encyclopedias, treatises, and other sources, you have to shepardize it carefully, and they teach entire classes on how to do it.

Even then, you have to be careful, because nuance is missing from Shepard's Citations. By that I mean, a case might have been overturned on appeal, but maybe not on the point you are researching. Also, you may find that a case has not been overrruled, but if you check all the cases and authorities criticizing, distinguishing, limiting and questioning it, you may realize that it might as well have been overruled and probably it eventually will be and in the meantime, it's not a good case to use because no court is going to view it as controlling precedent. Also, cases in your jurisdiction matter most to you. You also need to Shephardize the statutes you are relying on too, to make sure you have the latest, and to see how it has been treated by the courts.

You can shephardize online now, but it will cost you. Alternatively, your local courthouse law library will likely have the volumes. If there is a law school in your area, and if they allow the public in, they would have Shephard's Citations also. But be careful. Sometimes they are not up-to-date. Remember the Boies Schiller Jurisline case trying to break up the Lexis-Nexis stranglehold on legal research? Unfortunately it failed, so it's pay Lexis or drive to the courthouse and hope they have a current set of volumes.

You will notice that even the Judge's Order has a glitch this time, leaving out a word in the sentence referring to IBM's Cross Motion for Partial Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement. The word "on" is missing and probably intended. The actual title of the motion is Defendant/Counterclaim-Plaintiff IBM's Cross-Motion for Partial Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement, so you can see why one would want to refer to it colloquially. I have not corrected it, though, as it is Groklaw's policy to present the documents exactly as they are filed, mistakes and all, so we have as accurate a record for the permanent archives as possible, with the awareness that law students will undoubtedly be studying this case for a long time to come, as will historians.

Groklaw's Purpose

Groklaw is not a discussion board, although it's enjoyable and sometimes useful to have discussions along the way, or a blog or entertainment, though I try to make it funny and a pleasant experience. It's as complete a record as I can make it of this historic case, with all significant details recorded for history. That is why we have SCO Archives, a chronological listing of what happened by date. We have the IBM Timeline and one for Novell and Red Hat too, with all the legal documents and the dates they were filed, and we have the Legal Docs page also, which is currently in process of being updated and rearranged. All the legal documents filed are available as PDFs and as text, for the visually-impaired, who can have difficulty with PDFs, I've been told, and so that they can be searched by keywords using our Search utility. All that work is done by volunteers, some of whom go to the court to pick up documents and exhibits, some scan, some transfer from PDF to plain text, some do the HTML, some research, some send me links to stories worth covering, some attend court hearings and give us reports.

Groklaw is also an anti-FUD site. And I hope it's a place to grok enough of the law, so if anyone has any information that could be useful, they know where to bring it. That is the purpose of the Legal Links page, to show you where you can find legal information, and that is where you will find links to all the relevant courts too. We also have the Quote Database, so you can find specific quotations by the principals in the SCO story, which is updated by volunteers. Also, we offer transcripts of the hearings, teleconferences, of media interviews and public appearances, when we are able to obtain necessary permission.

Groklaw isn't Slashdot and it isn't the New York Times or the Drudge Report. It's a working site, thousands of people -- more than 7,000 now -- working together as volunteers, applying open source principles to chronicling the SCO legal assault on the FOSS community and trying to help to defeat what we believe is a wrongful attack. Groklaw is a non-commercial site. I am a volunteer too. I can tell you I've never worked so hard in my life, because I work for a living and do this in my free time afterward. Mathfox is a volunteer too. We are all volunteers. It's our way of saying thank you for software that the community wrote and gave as a gift to the world.

My concept was this: Many of Groklaw's readers know the history of UNIX and the SCO/Caldera history too, because they were there. They lived it. So my idea was that if I explained what would help, they would know where to find historical evidence that could make a difference. And it has happened just that way. Groklaw is not like any other site. It's sui generis, unique in its goals and purposes. So far as I know, it's never been done before, which is the creative fun of it.

I am explaining all this, and showing all that we do and offer, because we have hundreds of new members since SCOForum and a lot of new visitors, too, and many of you may not know all that is available here. Enjoy our hard work. And feel free to participate.

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

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 RE BRIEFING FOR PENDING
MOTIONS

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

______________________________

Based upon the stipulation of the parties, and good cause appearing,

IT IS HEREBY ORDERED as follows:

IBM's Reply Memorandum in Support of its Cross-Motion for Partial Summary Judgment its Claim for Declaratory Judgment of Non-Infringement shall be due on August 23, 2004;

SCO's Reply Memorandum in Support of its Motion to Dismiss or Stay Count Ten of IBM's Second Amended Counterclaims Against SCO shall be due on August 23, 2004;

SCO's Reply Memorandum in Support of its Renewed Motion to Compel shall be due on August 26, 2004;

SCO's Memorandum in Opposition to IBM's Motion to Strike the Declaration of Christopher Sontag shall be due on August 26, 2004; and

IBM's Reply Memorandum in Support of its Motion to Strike the Declaration of Christopher Sontag shall be due on September 7, 2004.

DATED this 13th day of August 2004.

BY THE COURT:

_____[signature of Dale A. Kimball]_____
United States District Court

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
August 13, 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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