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Attorney Reactions to the Kimball Order
Thursday, February 10 2005 @ 07:54 AM EST

Reactions from attorneys are starting to come in to Judge Kimball's Order, and they back up what I wrote, except that, if anything, they phrase it more strongly than I did.

Here's Stephen Shankland's article on ZDNET:

The opinion bodes poorly for SCO, intellectual property attorneys agreed.

"Based on the scathing language of the ruling, it appears that SCO just barely dodged a possible knockout punch in this round," said Carr & Ferrell attorney John Ferrell. "There's very little that can be more disastrous to your case than an angry federal judge."

Added Allonn Levy of law firm Hopkins and Carley, "Even though you have to say IBM did not hit the home run, if you read that order, you have no choice but to see this as another setback for SCO. This judge is painting an ominous picture for SCO."

Well, that's plain on its face, no? An ominous picture for SCO.

PC Pro's Matt Whipp has EFF's Jason Shultz's reaction:

Jason Schultz, attorney at the Electronic Frontier Foundation concluded the order as a fairly emphatic victory for IBM.

'I had suspected that the judge would deny IBM's motions without prejudice because discovery is still ongoing. However, it's clear from the language of the ruling that the judge would grant IBM's motion on the copyright issues if discovery were closed now. So this means that unless SCO comes up with more evidence than it currently has, it will lose its copyright claims against Linux. We'll see if SCO can manufacture more evidence, but at this point, it looks unlikely. So what this order tells us is that we may have to wait a bit longer to get the result, but the result will most likely be a win for IBM,' he said.

Bob Mims at the Salt Lake Tribune describes the judge as peezed. Ronna Abramson says the judge bad-mouthed SCO. Here's more from ComputerWorld, in an article titled "Judge declares SCO's lack of evidence 'astonishing'":

Director of IP law firm Open Source Law, Brendan Scott, said the key thing to take out of the judgment is that Kimball has made quite an express statement that SCO has failed to provide evidence.

"Reading between the lines, Judge Kimball is saying SCO better get its act together and he's not happy with its case so far," Scott said. "IBM had to overcome a high hurdle and the judge has some sympathy for IBM's case."

Scott said the judgment is a blow to SCO, particularly to the perception of its chances of success. "The problem for SCO is that it has done a lot of accusing but has shown no evidence," he said. "SCO needs to show evidence and come up with something, especially in light of two years ago when it was saying it had evidence. Either [the company] has it and for some reason is sitting on it or it is just hot air."

Scott believes the risk SCO is taking by not producing evidence is that the judge will end up declaring a summary judgment and throw the case out of court. "The best way for SCO to counter is to put its evidence on the table," he said.

SCO declined to comment.

Don't you love that last bit? Since when does SCO decline to comment? Kimball has shut their mouth. UPDATE: It was a temporary loss of function. Whipp got this hilarious spin from them:

SCO said in a statement: 'We are pleased by the court's order denying all three of IBM's motions to effectively dismiss SCO claims without a trial. Coupled with last month's ruling from the Magistrate Judge on discovery, we are looking forward to our day in court.

I have to say, I'll miss these guys when there is nothing left of SCO but an old blues song. Marbux doesn't mind commenting. I asked him for his input on what I had written about the ruling, and while I normally wouldn't publish what is behind the scenes brainstorming, in this case I asked if he'd let me. I wanted those of you whose first reaction was gloom and doom to understand the why of it. Why wasn't I sharing in the gloom? What did I see that you couldn't see? A few thought I was just spinning, trying to make a bad situation look better. Not at all. I always write what I really believe, and as you've seen, attorneys reading the ruling came to the same conclusions I did. If anything, I was understating it.

But it's more like this: the law uses English but they use it in a particular way that isn't the way you'd use it in a nonlegal setting. 1 So, as the attorney said, you have to know how to read between the lines of a ruling to get what the judge's message really is.

Here, then, is Marbux doing just that, and sharing with me his opinion and how he reads the ruling, between the lines. Keep in mind that he's just imagining what Judge Kimball might be thinking, and I personally have a more moderate assessment than he does, because of the Liu reference, something I think IBM should have addressed directly in their motions (they may be kicking themselves about that today), but which they surely will now. I do view that as a manageable issue however. It's just that in courtrooms, you never know for sure what can happen, and it's better to have no issues than one manageable one still on the table. So, with that background you should be able to understand what Marbux is writing, and from here on, it's Marbux:


PJ, I think your published evaluation of Judge Kimball's ruling is a pretty realistic assessment.

U.S. lawyers know that what judges do is to pick winners and losers, then help the winners win and help the losers lose. The goal is finality in a dispute. That means helping the winner create a record that has the best chance of being sustained on appeal. Even more importantly, however, Judge Kimball has decided that this case is going to get what judges call "active case management." That means that the judge is dropping the default mode of just letting the lawyers develop the record while the judge plays referee. The judge is going to actively manage development of the record.

Viewed through that lens, here's my own interpretation of what Judge Kimball is saying, stripped of legalese and the shroud of impartiality that judges have to wear:

"IBM, you got my attention and I'm all over this case now. But we're going to do it my way. Don't worry, IBM. The briefs have convinced me that you are going to win this case, so I'm going to help you win. Our main task is to work together to create a record that has the best possible chance of standing up on appeal. People appeal my rulings all the time, but I'm pretty good at predicting how the Tenth Circuit will rule and I don't get reversed very often. I'm in charge, so listen very carefully to what I say.

"I'm not going to sit back and let the lawyers run the show. This is a case I'm going to actively manage from here on out. Here are my ground rules for the winner and the loser.

"SCO, your case is absurd, and you're trying to swim up a waterfall. You made your bed; now you have to sleep in it. Your motion to get rid of the counterclaims is denied and off my desk. I'm not worried about getting reversed on that subject. I realize you're not going away, but you are not escaping my courtroom without a judgment that clears up all the FUD you've been spreading about Linux and IBM. For the benefit of the press, which seems to be taking interest in this case, here are some juicy quotes from SCO executives about all the evidence they claimed to have that Linux is a rip-off of SCO's Unix code. Please note in your articles that SCO was required to come forward with all the evidence it has to back those claims, and it hasn't got any. It couldn't even offer any proof that it holds the copyrights it is suing over. Draw your own conclusions for now, but I am definitely going to be deciding before this case is over whether SCO can come up with any evidence to support its claims in the discovery it wants from IBM.

"SCO, you are not going to win your case in my courtroom. I've chosen the winner and it isn't you. So you can only use my court to develop a record for the court of appeals. I'm not giving you any easy excuses for an appeal, so you can drown in all the discovery you made the mistake of asking for. You can even have the extra stuff Judge Wells ordered that you didn't ask for. I caught that sentence in your objection where you said Judge Wells only ordered what you want. We all know that even if the evidence you want is somewhere in the discovery you're getting, you're incapable of finding it, or at least unwilling to expend the resources to find it. You said you need the discovery before I can rule on summary judgment, so don't bother filing any dispositive motions until discovery is over. You can spend your time between now and the close of discovery digging through that mountain of Swiss cheese and trying to convince Judge Wells that there are too many holes in it.

"IBM, empty your trash cans and execute ye olde Discovery Dump. SCO can rent a warehouse for all the documents, CDs, and tapes, then have to account it all when the case is over and SCO has to return it.

"IBM, don't think for a second I can't handle this thing after discovery closes. But before then, I can't predict what SCO is going to manage to pick out of the Discovery Dump. Plus, your motions for partial summary are interconnected enough that an earlier ruling might mess with my ability to rule in your favor on the later motions. So your dispositive motions are all off my desk until discovery closes, and don't bother filing any more before then. I'll take care of you when I can rule on all your summary judgment motions at once.

"Just to make it harder for SCO to see all the trains coming down the track, IBM can file whatever motions it wants after discovery closes, and can even renew its existing summary judgment motions then if it wants. SCO, that means you are not going to get many more clues about what IBM's lawyers are working on before discovery closes. You'll have to get ready for the motions IBM has already filed, but only when you can no longer argue the need for further discovery as an excuse for having no evidence. And you're going to have to work in the dark on the other arguments IBM is going to raise then.

"IBM, I want your lawyers to be working between now and close of discovery on more motions for summary judgment raising alternative legal grounds for the same relief requiring different SCO proof to withstand them, and on going to trial on the unfair competition counterclaims. Don't worry about sending me too many motions after discovery closes. We'll set up a schedule in the Pre-Trial Order for the date to file them. The more quality briefs I get from you, the more choices I have on how to rule in your favor.

"I know what I'm telling you to do. I can handle the paperwork, and I want you to build an arsenal of dispositive motions to unleash on SCO's lawyers all at once, after discovery closes and the Pre-Trial Order allows no further delays. Make sure you give me a good basis for ruling in your favor on every SCO issue that won't require a trial, and don't bother with any extra arguments that might get reversed. But SCO, your lawyers know how it works after a judge has chosen the winner. Don't plan on getting any "supplemental" briefs after discovery closes, not that your lawyers will have time to write any then, because the policy on extensions of time is going to change abruptly after discovery closes. It's vital to maintain scheduled trial dates, after all.

"Both sides have major litigators on their legal teams, so you know how it works once a judge decides a major case is interesting and deserves active management. Between now and the close of discovery, I'm going to be working on handing off new cases to other judges and adding some extra law clerks to help clear my backlog, work on the arguments IBM has already raised, and doing legal research on the issues presented by this case.

"SCO, you made the mistake of bringing me a frivolous lawsuit, then asking for the sun, the stars, and the moon in discovery. Prepare to reap what you have sown."

All just my opinion, of course. Judge Kimball said he hasn't reached any decision on the summary judgment motions. He's just saying how the evidence looks so far, while carefully reserving any final decision because of the outside chance SCO might be able to come up with something in all that discovery. But I can tell you as a certainty that the celebration is still going on in Armonk, New York. There will be hang-overs aplenty.

This is also great news for the Linux community at large. Judge Kimball didn't just say which way the wind is blowing; he also said it's in gale force and he is going to push the boat himself. The speculation is over. IBM is almost certainly going to win at the District Court level and be armor-plated for appeal.

There just may be some hang-overs in Lindon, Utah as well, but they will be caused by sudden and severe depression, not joy. SCO was just told it's going to lose, and it's going to lose in a way that drives the litigation budget sky-high. Remember, the attorney retainer agreement says that SCO has to cover all out-of-pocket expenses. The day of reckoning is approaching. SCO is going to have to pay for a fleet of outside experts to review all that code. Remember, the discovery management order prohibits SCO staff from looking at IBM's code.

The SCO lawyers have no choice but to reevaluate their commitment to the case. They've just been told that to get a win, they've got to finish the District Court phase before a judge who intends to bury them in paper, then win an appeal, then retry the case in District Court, all with a case that's suddenly lost nearly all its glow.

If the SCO lawyers decide to jump ship, the out-of-pocket expense provision may well be their best escape hatch. If SCO can't commit to raising the money the lawyers say is necessary to pay the outside experts, the lawyers have grounds for declaring the retainer agreement in material breach, which gives them a legally defensible right to void the agreement and withdraw.

1 I got the following email from Trebonian, and he expresses it very well:

Please thank Marbux for his analysis of Judge Kimball's order. It really added value to your analysis piece.

When I read these legal edicts, I feel like an observer at a ceremony in the Japanese Shogun's court in the 17th century. So much is happening that goes totally over your head - yet an overwhelmingly strong message can be communicated to anyone familiar with the rituals.

The words are mainly ceremonial, and boiler-plate, but the way things are said, the body language, and the things that are left unsaid deliver "deafening" signals to all the regulars.

Even to my untutored eye, Judge Kimball was using some unusually strong wordings, and stilted use of repitition - (I keep hearing the message to IBM's lawyers EMPHASIZING to wait until after discovery to refile). It is nice to have a real "courtier" confirm my impressions.

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