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O'Gara Wishes to Prove SCO's Case, Or Something
Tuesday, November 30 2004 @ 09:44 PM EST

Here's the headline Maureen O'Gara chose:

CSN Asks Judge To Unseal the SCO-IBM Court Record

If SCO's Case Proved, It Could Derail The Linux Market
and Take The Open Source Movement Down With It

No hostility there. Maybe a little around the edges, oozing out? Leapin' Lizards, Batman, the heroine action figure who apparently wishes to Take the Open Source Movement Down singlehandedly is none other than Maureen O'Gara, who is asking the Utah court to unseal all the sealed records:

"Client Server News and LinuxGram, its sister publication, have asked the Utah district court hearing the SCO Group's $5 billion suit against IBM and IBM's subsequent counterclaims to open all the filings that have been sealed. SCO's suit claims IBM improperly incorporated aspects of SCO's Unix operating system in Linux. If proved, it could derail the Linux market and take the open source movement down with it."

I am glad she spells that out for the judge, so he realizes that he has a chance to destroy an entire segment of the IT industry should he choose to go along with the plot.

O'Gara is the editor of both CSN and LinuxGram, so I think the paragraph could have said, Maureen O'Gara has asked the court to unseal the records. I guess there will be no further pretense of editorial neutrality on her part.

Naturally, I am of two minds. One, I hope she wins and some things at least get unsealed, because I'm crazy wild to read everything. But on the other hand, the court and the parties wouldn't seal things without a reason that seems good to them. I believe in privacy, personally, and I don't think the public has a "right" to know everything. Just because you get sued by some litigious company or individual, it doesn't mean you now belong to the public, hook, line and sinker.

Well, I don't need to worry about it. That's what judges are for.

O'Gara believes the public can't understand the case, because of the sealing, which might explain at least some of her articles:

"However, the public has lost any real insight into the case because of a so-called stipulated protective order that SCO and IBM signed in September of 2003 that has let either of them unilaterally designate discovery material as 'confidential.'"

Speak for yourself. We're following along mighty fine on this side of the Great Divide. Our insight is that SCO is losing. Is that the problem?

O'Gara has it in her head that it is IBM sealing things predominantly:

"As a result, a large part of the case has been sealed, especially the substantive and material parts.

"IBM is believed to have been particularly free with the seal."

Who believes that? SCO? I don't, because I like to base my beliefs on actual facts. If you feel the same way, why not peruse the Pacer SCO v. IBM History, and let's count who is sealing what, and you'll see it's a dead heat, with SCO filing one more sealed document than IBM:

  • #191-1 -- SCO sealed Exhibits G, H, I and J to Memorandum in Support of their Renewed Motion to Compel -- 7/06/04

  • #197-1 -- SCO sealed Declaration in Support of its Opposition to IBM's Cross-Motion for Partial Summary Judgment, Declaration and Exhibits filed under seal. 7/09/04

  • #198-1 -- SCO sealed Declarations in Support of SCO's Motion for Continuance Pursuant to Rule 56(f). Declarations and exhibits filed under seal. 7/08/04

  • #203-1 -- SCO sealed Declaration of Chris Sontag in Support of Reply Memorandum Re Discovery. 7/12/04

  • #206-1 -- SCO sealed Exhibits RE: its Opposition Memorandum. Vols. 1-5. All exhibits are oversized and placed on the shelf in an expandable folder next to the case file with the exception of vol. 5. Vol 5 is SEALED and placed in the sealed file room. 7/09/04

  • #245-1 -- SCO sealed Ex Parte Motion for Leave to File a Supplemental Memo RE: Discovery. 8/19/04.

  • #269-1 -- SCO sealed Reply to Ex Parte Motion for Leave to File Supplemental Memo RE: Discovery. 9/03/04.

  • #0-0 -- SCO sealed Proposed Memorandum in Support of Expedited Motion to Enforce. 9/08/04.

  • #287-1 - SCO sealed Supplemental Memorandum Regarding Discovery. 8/19/04, entered 9/13/04.

  • #288-1 - SCO sealed Declaration of Jeremey O. Evans.

  • #289-1 - SCO sealed Declaration of Barbara L. Howe. 8/19/04, entered 9/13/04.

  • #290-1 -- SCO sealed Memorandum in Support of SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order dated June 10, 2004. 9/08/04. However it filed a redacted memorandum, #291-1. 9/09/04.

  • #292-1 -- SCO sealed Exhibits, 3 volumes, RE: expedited motion to enforce scheduling order. 9/09/04.

  • #293-1 -- SCO sealed Exhibits to Memorandum in Support of Expedited Motion to Enforce. 9/09/04.

  • #307-1 -- SCO sealed Consolidated Reply Memorandum in Further Support of Expedited Motion to Enforce Court's Amended Scheduling Order and Emergency Motion for a Scheduling Conference. 9/24/04. However, it did file a redacted version, #308-1.

  • #316-1 -- SCO sealed Reply brief RE: Sealed Supplemental Memorandum RE: Discovery. 10/04/04.

  • #317-1 -- SCO sealed Declaration of Jeremy O. Evans. 10/04/04.

  • #323-1 -- SCO sealed Memorandum in support of Motion to Amend Complaint.10/14/04.

That's 18 for SCO. And here is the list of items sealed by IBM:

  • #220-1 -- IBM sealed Exhibits to Declaration of Amy F. Sorenson. 8/04/04

  • #230-1 -- IBM sealed Memorandum in Support of Motion for Partial Summary Judgment on Breach of Contract Claims. 8/16/04. However, it filed a Redacted Memorandum, #232-1.

  • #234-1 -- IBM sealed Exhibits to Declaration of Todd M. Shaughnessy in Support of Motion for Partial Summary Judgment on Breach of Contract Claims. 8/13/04.

  • #239-1 -- IBM sealed exhibits to Declaration of Amy Sorenson. 8/16/04.

  • #241-1 -- IBM sealed Memorandum in Support of IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement. 8/16/04. However, it filed a Redacted Memorandum, #231-1 and an Addendum, #244-1.

  • #243-1 -- IBM sealed 9 boxes of exhibits, attached to Declaration of Amy Sorenson. 243-1.

  • #251-1 -- IBM sealed Exhibits RE: Reply Declaration of Todd M. Shaughnessy. 8/23/04.

  • 252-1 -- IBM sealed Declaration of Brian W. Kernighan. Filed under seal and placed in sealed room.

  • #257-1 -- IBM sealed Reply to SCO's Cross Motion for Partial Summary Judgment on Claim for Declaratory Judgment of Non-Infringement. Document placed in sealed room. 8/24/04.

  • #271-1 -- IBM sealed Memorandum in Support of Motion to Strike the 7/12/04 Declaration of Christopher Sontag. 9/07/04.

  • #304-1 -- IBM sealed Opposition to SCO's Supplemental Memorandum Re Discovery. 9/24/04.

  • #305-1 -- IBM sealed Declaration of Ron Saint Pierre. 9/24/04.

  • #306-1 -- IBM sealed Declaration of David Bullis. 9/24/04.

  • #331-1 -- IBM sealed Declaration of Alec S. Berman. 11/19/04.

  • #332-1 -- IBM sealed Declaration of Irving Wladawsky-Berger. 11/19/04.

  • #333-1 -- IBM sealed Declaration of Samuel J. Palmisano. 11/19/04.

  • #334-1 -- IBM sealed Declaration of Andrew Bonzani. 11/19/04.

That's 17 for IBM. And some of their sealings are because SCO sealed a document that they are responding to. #304, for example. Don't journalists check their facts any more before they write biased articles? 18 for SCO and 17 for IBM, and she says IBM "is believed" to have been particularly "free with the seal"?

In addition, Judge Wells has sealed an Ex Parte Order, dated 9/03/04 and entered 9/08/04, #270-1, granting SCO's sealed Ex Parte Motion for Leave to File a Supplemental Memo Re: Discovery (#245-1). And she sealed #328-2, the transcript of the 10/19/04 hearing. That is the one when SCO "accidentally" spilled some beans. I'm guessing this is the scab she would like to pick, so that whatever that information is, it gets good and spilled once and for all and totally. I don't view that as a lofty First Amendment goal, myself. It looks to me more like wanting to fight SCO's battles by proxy. I think it's SCO that wants that material revealed, so the public can have "insight" into the case in a way they think will be helpful to them in their PR.

Anyway, she is asking that all the transcripts be opened. She doesn't know it, evidently, but there is only one that is sealed. And she wants both sides, ha ha, to prove they really, really need to seal something, because the public has a right to know:

"Our motion to intervene contends that the protective order, usually reserved for trade secrets whose disclosure could be competitively damaging, may have been abused and that the material that has been put under seal has never been shown to be really confidential.

"It argues that merely protecting potentially embarrassing information that the parties 'do not want the public to see' violates the public's common law right of access to judicial records and its First Amendment right to oversee the judicial system."

Our right to "oversee" the judicial system? Um. No. Judges do that. I think that part will go over like a lead balloon. Maybe O'Gara misquoted her lawyers. She probably meant "monitor". You might like to read up on the law on the public's access to case files. Here is a snip:

"Several courts of appeals have held that the common law presumption attaches to the broad array of filed documents. See, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 782 (3rd Cir. 1994) (holding that a settlement agreement that was not filed with the court is not a judicial record accessible under the common law doctrine) . . . . There is some tension, however, among the courts of appeals with respect to whether the presumption of access attaches to all filed documents, or only to filed documents that the court relies on to make certain substantive decisions. The Second Circuit, in United States v. Amodeo, 44 F.3d at 145, summarized that approach:

We think that the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access. We think that the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.

"The First and D.C. Circuits have articulated a similar approach to the common law right. See Anderson v. Cryovac, Inc., 805 F.2d 1, 12-13 (1st Cir. 1986) (applying the common law right only to 'materials on which a court relies in determining the litigants' substantive rights') . . . .

"There is not yet a definitive Supreme Court ruling on whether there is a First Amendment right of access to court documents (in addition to the common law right discussed above). Nonetheless, several courts of appeals have extended the scope of Richmond Newspapers to grant a limited First Amendment right to various types of judicial records, both criminal and civil. See, e.g., In re Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir. 1984) (extending First Amendment access right to a 'special litigation report' filed in support of a motion to dismiss a shareholder derivative suit); and Publicker Industries v. Cohen, 733 F.2d 1059, 1067-70 (3d Cir. 1984) (holding that the reasons supporting a First Amendment right of access to criminal proceedings apply with equal force to civil trials and case file documents). The Tenth Circuit, however, declined to decide whether there is a First Amendment right to judicial documents, noting the lack of explicit Supreme Court holdings on the issue since Press Enterprise II. See United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997) (denying press requests for access to sealed documents in Oklahoma City bombing trial).

"B. Privacy-based limits on access

"Despite the legal presumption that judicial records are open for public inspection, it is equally clear that access rights are not absolute. The Supreme Court in Nixon v. Warner Communications observed that:

[E]very court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes.

435 U.S. at 596.

"The decision to deny public access involves a balance between the presumption in favor of access, on the one hand, and the privacy or other interests that may justify restricting access. These interests include the possibility of prejudicial pretrial publicity, the danger of impairing law enforcement or judicial efficiency, and the privacy interests of litigants or third parties. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997); United States v. Amodeo, 71 F.3d. 1044, 1047-50 (2d Cir. 1995). . . .

"In weighing the public interest in releasing personal information against the privacy interests of individuals, the Court defined the public's interest as 'shedding light on the conduct of any Government agency or official,' 489 U.S. at 773, rather than acquiring information about a particular private citizen. The Court also noted 'the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information.'" 489 U.S. at 770.

If Ms. O'Gara would like to send me her legal filing, I'm happy to publish it in full for her. Or we can wait until Pacer has it.

So, there you have it. Oh, and her lawyers are named Jones, Waldo, Holbrook & McDonough. I like to think she picked them because she's always been partial to the name Jones.

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