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SCO Tells the Red Hat Judge Their Version of SCO v. IBM
Tuesday, October 05 2004 @ 06:21 PM EDT

Here is the letter SCO has filed with The Honorable Sue Robinson, the judge presiding over the Red Hat v. SCO lawsuit, their periodic report on how things are going in the SCO v. IBM lawsuit, as required by Judge Robinson's April Order. It's a fairly straightforward account of what has happened since July, no bells, no whistles, just a wee bit of spin on the last paragraph -- about IBM withholding predicate discovery blah blah, over a year, blah blah, despite a court order, blah blah, the same story they told Judge Kimball, but this is, blessedly, the short version.

So short, they neglected to mention that SCO brought an Ex Parte Emergency Motion for a Scheduling Conference, which was denied by Judge Kimball. They mention their Motion to Enforce the Scheduling Order, but they never mention the second motion, despite mentioning the order, which denied them both.

That was the Order where the Judge said he was puzzled by SCO asking to "enforce" the scheduling order, because there was nothing IBM had done that was contrary to anything in his order, that he wouldn't hold a scheduling conference, and that any delay was SCO's fault, not IBM's or the Magistrate's. SCO didn't attach a copy of his Order, I gather. With so many motions, it is hard to keep it all straight and remember them all. Red Hat will file a report too, so she will get to hear both sides of the story, and no doubt Red Hat's will be a longer, more detailed version.

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

Morris, Nichols, Arsht & Tunnell
[letterhead]

October 4, 2004

Leslie A. Polizoti
[phone, fax, email]

The Honorable Sue L. Robinson
United States District Court
[address]

Re: Red Hat, Inc. v. The SCO Group, Inc., C.A. No. 03-772 (SLR)

Dear Chief Robinson:

Pursuant to this Court's April 6, 2004 Order (D.I. 34), SCO respectfully submits this second summary of the status of the SCO v. IBM pending before The Honorable Dale A. Kimball in the United States District Court for the District of Utah (the "Utah Case"). This summary updates the status of the Utah Case since July 6, 2004 (see D.I. 42).

Two motions that were originally scheduled for August 4, 2004 were heard before Judge Kimball on September 15, 2004:

1. Defendant/Counter-Plaintiff IBM's Motion for Partial Summary Judgment on Its Counterclaim for a Declaratory Judgment of Non-Infringement [Counterclaim Ten]; and

2. SCO's Motion to Dismiss or to Stay Count Ten of IBM's Second Amended Counterclaims.

Both parties made substantial submissions to the Court on these motions. Judge Kimball also heard on September 15, 2004, SCO's Rule 56(f) motion and IBM's Motion to Strike material submitted by SCO in opposition to IBM's above-referenced summary judgment motion. All of these motions are before Judge Kimball and are awaiting his decision.

In addition to the above-referenced summary judgment motion, within the past two months, IBM has also filed two additional motions, seeking summary judgment on SCO's contract claims as well as IBM's Eight Counterclaim for copyright infringement relating to Linux. In response to those motions, on September 8, SCO filed a Motion to Enforce the Scheduling Order, which asked the Court to defer consideration of IBM's dispositive motions until after the close of fact discovery. Judge Kimball denied SCO's motion on October 1, 2004, but the Court has provided SCO with additional time to respond to IBM's pending motions. SCO is preparing its responses to IBM's summary judgment motions on SCO's contract claims and IBM's Eight Counterclaim.

Finally, a number of discovery issues remain pending before the Magistrate Court. SCO has filed two applications seeking to compel the production of core, predicate discovery that IBM has now withheld for over a year. (Indeed, one of SCO's pending motions seeks to enforce the Magistrate Judge's March 3 Order, with which IBM still has not complied.) Magistrate Judge Wells has scheduled a hearing on all of the pending discovery issues for October 19, 2004.

Respectfully,

__[signature]___
Leslie A. Polizoti

cc: Peter T. Dalleo, Clerk (By Hand)
Josy Ingersoll (By Hand)
William F. Lee (By Fax)
Mark J. Heise (By Fax)


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