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SCO Reaps What It Sows - A Supplemental Memo on Discovery Boomerangs
Thursday, September 16 2004 @ 01:03 AM EDT

Here's a lovely peek behind the curtain. SCO, prior to yesterday's hearing, filed an Ex Parte Emergency Motion for a Scheduling Conference, trying like crazy to undo what it has done to itself. It was filed on Monday. This was part of what they were discussing at the end of yesterday's hearing, related to SCO's Expedited Motion to Enforce the Scheduling Order.

Here is SCO's supporting memorandum. What it tells us is priceless. It seems that when SCO filed its Supplemental Memorandum, with the permission of Judge Wells, another in a long series of the paper blizzard they have been showering on the court, regarding their alleged need for all of AIX since the founding of the world, they shot themselves in the foot.

SCO presents the "emergency" as dire indeed, brought on by IBM's litigation tactics, as they put it, and which -- unless the Court will help -- means IBM will win, they say, based on tactics and not merits. The World According to SCO. A true emergency, without doubt. And here is why SCO brought the Expedited Motion to Enforce the Scheduling Order.

They filed "a supplemental memorandum in support of their pending request that the court order IBM to produce early versions of the AIX and Dynix computer operating systems." In the memo, SCO said it can't prove its theory of the contract case without all that code. And to prove IBM's position was "untrue", they submitted some emails SCO "happened to possess". In sifting through discovery provided by IBM, "SCO was able to discover an apparent scheme by IBM to misappropriate certain exceptionally valuable SCO rights". SCO "raised the e-mails only as illustrative ancillary points", they assert. The discovery hearing was scheduled for September 14 at that point.

Lo and behold, what did that dastardly meanie IBM do? They filed an ex parte motion asking for more time to answer SCO's supplemental memorandum, so they could get declarations to answer the new points SCO raised. SCO filed an opposition brief immediately, but Judge Wells granted IBM's request anyway. SCO adds it isn't sure if Judge Wells had a chance to see their opposition papers before issuing her ruling. So the hearing got scheduled for October 19.

SCO frantically offered to withdraw its supplemental memorandum without prejudice, so that the discovery hearing could stay on the September 14 date. Judge Wells, however, "declined to reconsider her Order".

Is that not funny? SCO, by its tactics, shot itself in the foot. It just would keep filing more documents. And so it came to pass that the hearing on IBM's 10 counterclaim was heard before SCO's discovery matters. They imagine that makes all the difference.

If we put these two documents together with the notes from the hearing yesterday, it puts into perspective Judge Kimball telling them at the end that if any hearing was required, they could do it by phone. Methinks their hyperbolic, over-the-top language, accusing IBM of skullduggery galore backfired. Some of the documents they have submitted have seemed really mean-spirited. Maybe they struck the Court the same way.

Now judges don't decide matters on the basis of emotion. It's on the law. I see one point they raise that at first glance may have some validity regarding the 9th Counterclaim, and I'll be looking forward to reading what IBM writes in response, but SCO's nasty and histrionic rhetoric makes it hard to credit anything they say. And, frankly, when a party starts to make you gag, it surely doesn't help their cause.

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