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SCO, After Getting More Time, Says IBM Shouldn't Get Any. Or At Most 2 Weeks
Wednesday, March 16 2005 @ 09:00 PM EST

*Now*, SCO says it's in a hurry.

Or more precisely, they don't want the court to grant IBM the extra time it says it needs to comply with the January 18th discovery order. Last week, it was SCO that asked for and got 15 days more to get their opposition to IBM's Motion Limiting Scope of IBM's Ninth Counterclaim filed. SCO said they were too busy with discovery to meet the deadline, "due to SCO's workload of preparing discovery responses and other matters currently at issue in the litigation." The court gave them the extra time.

This week, it's IBM's turn to say they need time. They are busy collecting massive discovery and can't finish in time, among other significant reasons (see below), so they can't meet this deadline, but now we must all expeditiously move forward at a healthy clip, SCO says, or they'll be prejudiced. Prejudice is a powerful word in courtrooms. It's what you pull out when all else fails.

But what is the judge going to say? She'll put IBM's lawyers in a Utah courthouse dungeon and make them collect that discovery in chains, with her personally cracking the whip 24/7 so she can determine whether IBM really could meet the deadline if they just tried harder?

Discovery has already taken a lot of time, SCO cynically whines, without pointing out that it has repeatedly sought or caused delays throughout this entire process. Maybe they forgot, or hope we did, but I recall the SCO delays. I remember Judge Kimball granting their request to extend discovery, for heaven's sake, in answer to their Motion to Amend the Scheduling Order. Here is their memorandum in support, where they told the court they needed more time for discovery.

And remember the discovery deadline SCO couldn't meet because of shutting down the offices for Christmas? And what about the two Motions to Compel discovery (here and here) IBM had to bring and won? This isn't by any means a comprehensive list.

That was then. This is now. Now SCO's in a screaming rush.

Sigh.

So, here is their Memorandum in Opposition to IBM's Motion for 45-Day Extension of Time to Comply with 1/18/05 Order [PDF]. I dare say I could have written it for them. In fact, I wrote a friend this morning what I thought it would say, when we saw it on the Pacer list. I was horsing around, but as it turns out, I nailed it.

Here are the reasons they present to the court:

  • The court already listened to IBM's undue burden arguments and gave them the allotted time, so IBM should have to stick to it
  • SCO has been seeking this stuff for "more than a year" (note they don't say that the court told IBM to hand it over that long ago -- it was only on January 18th that the court ordered the discovery at issue here) and with probably future disputes to come, discovery is taking time and we need to "move this case toward trial as expeditiously as possible." These guys are an absolute hoot.
  • IBM claims it has sought to avoid delay, but this request is asking for delay. (I know. It makes no sense, or more precisely, it's pointless, but I think they just wanted to slip in another slur against IBM.)
  • IBM hasn't provided an affidavit to support its claim that it can't timely produce.
  • IBM's Motion for Reconsideration said it was making every effort to meet the deadline on all the discovery IBM was not seeking reconsideration on. So what happened? Now they can't? (The obvious answer to that is that when IBM said they'd try to meet the deadline and were hopeful, that was a month ago, and once you are in the middle of a task, things come up that block your best intentions. Like SCO now asking for middleware and hardware, for just one huge example.)

To make a long story short, they'd like the court to deny IBM's request for 45 extra days, but they know that isn't so likely -- neither judge has yet turned down a request for more time that I can recall -- so they ask that IBM be given only two weeks, if they get anything. That would be one day less than SCO got. Could it be just that petty? Like kids arguing in the back seat of the car on a family trip? I believe it could. At this point, they clearly detest each other. It's like that.

SCO hasn't addressed the chief reasons IBM asked for more time in their Motion for 45-Day Extension of Time to Comply with 1/18/05 Order:

  • IBM has asked for reconsideration of one of the order's requirements, and that isn't likely to be ruled on by the 60-day due date;
  • SCO has now demanded more than was ordered by Judge Wells, claiming they understand the order to mean that IBM has to produce not only code, but also hardware and middleware information, and that is, IBM says, a new request that the court has to resolve. The parties tried to resolve the issue, but SCO insists the January 18th order includes hardware and middleware information;
  • IBM really can't get it done in 60 days. They have, they tell the court, hundreds of employees working on this unprecedented court order, something IBM has never in its long existence ever been asked to do before, and it really is a massive task, just like they told the court during the discovery hearings.

As you can see, SCO ignored the first two points -- what really can they say? -- and addressed only the third. The judge may not grant the entire amount of time requested, but I think IBM is likely to be given more time. It's a reasonable request, given the first two points, neither of which SCO has argued against that I can see. Probably because they can't.

Judge Wells gave SCO a big hint in her Order when she wrote that she was asking IBM to produce materials with respect to the 3,000 for a reason, and that reason wasn't to punish IBM:

"Once again by requiring this, the court seeks to circumvent the rote objection by SCO alleging that they did not get enough information."

"Rote objection." Does that sound like she gets it? It does to me too. Reasonable persons might argue if her order was fair or not or well-crafted to deal with a party like SCO. The problem really is, as she wrote, that the legal system does depend on parties acting in good faith.

Obviously IBM thinks it was not a fair order in one respect at least. But does that sentence sound like Wells sees who SCO is and how they are and what they've been doing in discovery? I believe so. I also assume that judges in Utah do not live in caves or dungeons and have therefore heard about the allegations that were lodged against SCO's Chairman of the Board, Ralph Yarro, of fraud, among other serious things. How could that not have an impact? Settled or not, because of those allegations, there is something in the air now that was not there the last time these parties appeared before the court.

But I saved the best for last. SCO argues:

"In the January 18 Order, the Magistrate Court ordered IBM to produce, among other information, (1) the source code reflecting the full available revision history for the AIX and Dynix operating systems, and (2) IBM's responses to interrogatories regarding the 3,000 most significant contributions that IBM and Sequent programmers have made to those operating systems, and to Linux."

However, the Order says:

"Accordingly, IBM is HEREBY ORDERED to provide the above required information for the 3000 individuals who made the most contributions and changes to the development of AIX and Dynix."

SCO has added "and to Linux". It's like I said, if they get an inch, they ask for a mile, and then they complain if IBM doesn't hand over the mile. If IBM doesn't point this out to the judge, I will be amazed. And then I will explode from frustration. So I guess you can tell, I really, really hope they point this out.


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