decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
IBM Challenging Wells' Order
Wednesday, February 02 2005 @ 04:53 AM EST

If Judge Wells' January 18, 2005 Order seemed odd to you, you are not alone. IBM has some objections too. What do you do when you think a judge has made a mistake? IBM had some choices. One is to go immediately to Judge Kimball and ask for a review, and another is to return to Judge Wells and ask for reconsideration/clarification. They have chosen the latter course, followed by an appeal to Judge Kimball after that, as necessary.

No doubt they are also busy trying to comply with the onerous discovery tasks she placed on them in the meantime, but I am not a a bit surprised that they are unclear exactly how to fulfill her order. How, for example, do you decide who made "the most" contribution to AIX? Where is the ruler for that? And what is IBM to do if most of the ones that would fit such a description, however you define it, are long gone from IBM, maybe 15 years or more ago, and IBM doesn't know where they are? How far are they obliged to go to try to locate people?

And then there is the issue of whether she understands the technology or has swallowed some baloney from SCO without factoring in some things it would be good for her to understand. For example, what was she thinking when she wrote, "IBM's case will be strengthened tenfold if IBM can show that notwithstanding possible contract protections, homegrown code provided no basis for the code that IBM eventually contributed to Linux?" It's reflective of a gross misunderstanding of IBM's position, the code involved, and what IBM needs to prove. It would be a shame for IBM to go on what might prove to be a wild goose chase, with all the effort and expense involved, based on what could be a correctable misunderstanding.

It's worth taking the time to explain to her, although most respectfuly, I'm sure, as the tone of this motion reflects, so that there are no future misunderstandings. It's a way to at least let a judge know that you think he or she made a mistake, and even if you lose the point on this level, it sets you up for future relief from above, shall we say.

So IBM has filed an Ex Parte Motion for Extension of Time to Submit Objections to Discovery Order [PDF] with Judge Kimball, asking for a little more time to seek clarification with Judge Wells first, followed by a schedule to then bring the matter to him. There are rules as to how fast you have to file objections to an order, so that is the reason for this request to seek clarification first.

What IBM makes clear in the wording, though, is that while they would like to discuss and get clarification with Judge Wells, that won't necessarily preclude them from next asking Judge Kimball to review the Order also afterward. In fact, they seem to anticipate it. And he isn't the final link in the chain, should IBM choose to take the matter even higher, if necessary.

Remember I said litigation is like a conversation? Sometimes when you explain something to even a good friend, they don't get it. What do you do? Shrug your shoulders and say, "Que sera, sera?" Of course not. You then try to explain it again, and if there are words whizzing past each other without being properly understood, you each take the time to clarify. Ever try to explain tech stuff to a relative? Did they get everything the first pass through your instructions? Or did you have to break it down a bit, before the light bulb went on? That is basically what is happening here. It's pleasant and respectful conversation, but it is IBM saying to the Court, "Excuse me, Your Honor, but I think a mistake has been made. What did you mean when you said XYZ? And did you remember point ABC when you said XYZ?"

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

______________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.

_______________________

EX PARTE MOTION FOR EXTENSION
OF TIME TO SUBMIT OBJECTIONS TO
DISCOVERY ORDER

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

_______________________

Defendant and Counterclaim-Plaintiff International Business Machines Corporation ("IBM"), through counsel, respectfully moves the Court for entry of an order extending the time for IBM to file its objections, pursuant to Federal Rule of Civil Procedure 72(a), to the Magistrate Judge's January 18, 2005, discovery order.

On January 18, 2005, Magistrate Judge Wells entered an Order Regarding SCO's Renewed Motion to Compel (the "Discovery Order"). IBM has a number of objections to the Discovery Order, and there are certain provisions in the order that we believe require clarification. IBM believes at least some of its objections could be resolved by raising them in the first instance with the Magistrate Judge, and would prefer to give the Magistrate Judge an opportunity to consider these objections before raising them with Your Honor.

Rule 72 of the Federal Rules of Civil Procedure, however, states that "[w]ithin 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made." Fed. R. Civ. P. 72(a). Thus, while IBM is hopeful that at least some of its objections can be resolved by the Magistrate Judge, and would prefer that they be addressed by her in the first instance, we do not want to waive IBM's right to appeal the Discovery Order, in particular IBM's right to seek Your Honor's review of each of the rulings made by the Magistrate Judge in the January 18, 2005, order.

For the foregoing reasons, we respectfully request that IBM be given an extension of time to lodge its objections to the Discovery Order. Specifically, IBM requests that the Court enter an order that would (1) require IBM to file a Motion for Reconsideration/Clarification of the January 18, 2005, Discovery Order no later than February 11, 2005, and (2) give IBM until 10 days after being served with a copy of the Magistrate Judge's order on that motion to file with the District Court any remainging objections to the Discovery Order.

IBM submits herewith a proposed form of order consistent with the foregoing request for relief.

DATED this 1st day of Febuary, 2005.

SNELL & WILMER L.L.P.
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

BY ____[signature]____
Counsel for Defendant International
Business Machines Corporation


CERTIFICATE OF SERVICE

I hereby certify that on the 1st day of Febuary, 2005, a true and correct copy of the foregoing was served by hand delivery to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
Edward Normand
Sean Eskovitz
BOIES, SCHILLER & FLEXNER LLP
[address]

_____[signature]____


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )