We have the letters to Judge Sue Robinson from the parties in Red Hat v. SCO. SCO's letter seems a bit shorter than Red Hat's, as you can see by the text below. That is because SCO neglected to mention the following:
- losing their motion to stay the DaimlerChrysler case and SCO's remaining claim re timeliness' stipulated dismissal thereafter
- G2's Motion to Intervene and to Unseal the Court's File in SCO v. IBM
SCO tells the judge that IBM filed four affidavits under seal, but only Red Hat tells her that all the documents related to SCO's motion to amend the complaint are under seal. It's a riot. Rashomon reborn. Maybe SCO would like the judge to imagine that things are going trippingly along? They tell the judge that "the parties have taken nine additional depositions and have noticed more than twenty additional depositions for January and February 2005." But which parties? Take a look at Pacer for yourself and see who appears to have been pursuing discovery with vigor (keeping in mind that there are additional depositions that don't appear on that list). Red Hat sums up their viewpoint, after telling about DaimlerChrysler saying SCO had failed to pursue discovery or to cooperate in it:
"In conclusion, the events in these related cases over the past 90 days -- most notably SCO's actions in the DaimlerChrysler case -- provide further evidence of SCO's litigation strategy of delaying for as long as possible resolution of the copyright claims that are at the heart of the pending lawsuits."
Morris, Nichols, Arsht & Tunnell
January 3, 2005
Jack B. Blumenfeld
[phone, fax, email]
The Honorable Sue L. Robinson
United States District Court
Re: Red Hat, Inc. v. The SCO Group, Inc., C.A. No. 03-772 (SLR)
Dear Chief Judge Robinson:
We write pursuant to Your Honor's April 6, 2004 Order to summarize the status of the SCO v. IBM case pending before The Honorable Dale A. Kimball in the United States District Court for the District of Utah. Since our last update to the Court, on October 4, 2004, the following has transpired:
On October 14, SCO filed a Motion to Amend its complaint, seeking to add a single copyright claim relating to IBM's use of infringing SCO code in its AIX product. The parties have now fully briefed the motion, but no date for oral argument has been scheduled.
On October 19, the parties argued SCO's two pending discovery applications before the Magistrate Judge. During the hearing, the Magistrate Judge ordered IBM to provide affidavits concerning its production of certain Linux-related documents that the Court had previously ordered produced, required the parties to exchange privilege logs, and took the remainder of SCO's discovery applications under advisement. (The Court entered a written Order on October 20.) On November 19, IBM filed (under seal) four affidavits in response to the Magistrate Judge's October 20 Order, and on November 19, 2004, the parties exchanged privilege logs.
On December 22, SCO filed a Motion to Compel IBM to produce more detailed affidavits in response to the Magistrate Judge's October 20 Order, and to compel IBM to produce witnesses to testify on several topics in two Rule 30(b)(6) notices of deposition that SCO had served.
SCO has filed Memoranda in Opposition to IBM's Motion for Summary Judgment on Its Eighth Counterclaim and Motion for Summary Judgment on SCO's Contract Claims. (IBM's reply briefs are due on January 14, 2005.)
In addition, the parties have taken nine additional depositions and have noticed more than twenty additional depositions for January and February 2005.
We will provide the Court with another update of the status of the litigation on or about April 4, 2005.
Jack B. Blumenfeld
cc: Peter T. Dalleo, Clerk (By Hand)
Josy W. Ingersoll, Esquire (By Hand)
William F. Lee, Esquire (By Fax)
Edward Normand, Esquire (By Fax)
Young, Conaway, Stargatt & Taylor, LLP
January 3, 2005
BY HAND DELIVERY
The Honorable Sue L. Robinson
United States District Court for the
District of Delaware
Re: Red Hat, Inc. v. SCO Group, Inc.
Civil Action No. 03-772-SLR
Dear Judge Robinson:
Pursuant to the Court's April 6, 2004 Order requesting a quarterly report on the status of various related litigation matters, Red Hat, Inc. submits this letter. Although Red Hat is not a party to these other related cases, Red Hat offers the following summary based upon publicly available information.
1. SCO Group, Inc. v. International Business Machines Corp.
As of October 4, 2004 when Red Hat submitted its last update, SCO's motion to dismiss, or in the alternative, stay IBM's counterclaim ten and IBM's motion for partial summary judgment on IBM's tenth [sic] counterclaim for a declaratory judgment of non-infringement of copyright were pending. Both motions remain under consideration.
On October 14, 2004, SCO filed a motion for leave to file a third amended complaint. IBM filed an opposition to this motion on November 30, 2004. All of the briefs relating to this motion have been sealed.
On November 30, 2004, G2 Computer Intelligence, Inc. ("G2"), a publisher of IT industry publications, filed a motion to intervene and motion to unseal the court's file. G2 requests, pursuant to Federal Rule of Civil Procedure 24(b), that it be permitted to intervene, and that the stipulated protective order entered into by the parties on September 16, 2003 be vacated or modified to permit public disclosure of the court's sealed records. The basis for G2's motion is that the denial of the public's right to access the sealed pleadings not only violates the common law right of public access to judicial records, but also the public's First Amendment right to oversee the judicial system. As of the date of this letter, neither party has responded to G2's motion.
2. SCO Group, Inc. v. AutoZone, Inc.
The Autozone case has been stayed since August 6, 2004, subject to a limited period of discovery relating to the issue of preliminary injunctive relief. This period of limited discovery ended December 13, 2004. The parties also entered into a protective order on October 29, 2004.
3. SCO Group, Inc. v. Novell, Inc.
Since Red Hat's October 4, 2004 update letter, Novell has filed motion to dismiss the amended complaint. Novell makes two main arguments in its motion: (1) that it cannot be liable for slander of title because it has a legal privilege to make a good-faith assertion of a rival property claim and to protect; and (2) SCO cannot show that Novell acted with malice, which it asserts is a necessary element of an action of slander of title. The motion has been fully briefed, and a hearing has been scheduled for January 20, 2005.
4. SCO Group, Inc. v. DaimlerChrysler, Inc.
Since October 4, 2004, the court granted summary judgment to DaimlerChrysler on all of its claims with respect to the sufficiency of its certification, leaving only one claim challending the timeliness of the certification. On November 17, 2004, SCO filed a Motion For Stay of Proceedings, asserting that this case should be stayed until IBM case has been resolved because a ruling in the IBM case would "provide important guidance concerning the obligations of end users like [DaimlerChrysler] under the certification requirement at issue here." In its opposition, DaimlerChrysler argued that SCO has no basis for a stay primarily because the IBM case has no bearing on the timeliness issue. DaimlerChrysler explained in its opposition that SCO had essentially abandoned its prosecution of the case -- missing each deadline set by the court, failing to initiate discovery, failing to respond to DaimlerChrysler's discovery requests, and failing to file witness and exhibit lists per the court's amended scheduling order. The court heard oral argument on November 24, 2004 and denied SCO's motion to stay. On December 21, 2004, the court entered a Stipulated Order of Dismissal Without Prejudice. SCO has until January 11, 2005 to file a claim of appeal.
In conclusion, the events in these related cases over the past 90 days -- most notably SCO's actions in the DaimlerChrysler case -- provide further evidence of SCO's litigation strategy of delaying for as long as possible resolution of the copyright claims that are at the heart of the pending lawsuits.
Josy W. Ingersoll
cc: Clerk of the Court (by hand)
Jack B. Blumenfeld, Esquire
Michelle D. Miller, Esquire (by facsimile)
Mark G. Matuschak, Esquire (by facsimile)
Stephen N. Zack, Esquire (by facsimile)
Stephen N. Zack, Esq.