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SCO Reacts to IBM's Proposed Scheduling Order
Saturday, April 02 2005 @ 01:04 PM EST

SCO has now submitted a memorandum [PDF] explaining their side of the scheduling order dispute they are having with IBM. They take pot shots at IBM's Memorandum in Support of their proposed schedule and try to persuade the court that their proposed schedule is better.

What it is really all about, as you will see, is that Judge Brooke Wells' discovery order was, in IBM's view, unfair to IBM, and by a motion for reconsideration, it seeks redress. SCO would like to retain the tilt in their favor, naturally.

So both sides are talking about their proposed scheduling order promoting fair and efficient progress of the case, but what it really is all about is who gets a leg up, that little bit of an edge that can make all the difference. SCO claims they are not seeking any litigation advantage, but why wouldn't they be doing that? It's what lawyers do. They claim IBM is seeking such an advantage. That's how the system works. The parties fight for what they want, but the judge tries to find the fair and equitable way. Pretending that isn't what they are doing isn't going to fool the judge, I wouldn't think. It seems obvious.

SCO denies, in footnote 2, there ever was a tentative agreement reached and then broken by SCO, as IBM claimed in its proposed schedule. I'm not sure why they think the judge will find that more appealing, since her direction was that the parties come up with an agreement together. Clearly that is impossible, so the judge will have to wade into the mud puddle and figure things out here herself.

Here's a list of the disagreements SCO feels exist:

  • They can't agree on what the likely outcome will be on IBM's motion for reconsideration. SCO would like to schedule with the presumption that it will be denied and IBM will comply by May 3. IBM naturally assumes the court might just rule in their favor and would like to allow time for that.

  • SCO wants a new deadline for parties to amend their pleadings. That's no doubt because they want the court to give them another shot at trying to pin something on IBM, the new copyright allegation they'd like to add. IBM would like the court to abide by its earlier order that no further amendments would be allowed barring exceptional, compelling circumstances. But SCO points out that the court already decided that they needed a new scheduling order, so why is it a stretch to include amending the pleadings in the new schedule? They argue that IBM's Motion for Entry of Judgment Limiting Scope of IBM's Ninth Counterclaim is effectively a motion to amend too. SCO's motion to amend is not untimely, they argue, because they filed it as soon as they found out about "IBM's misuse of SCO's code, based on Project Monterey documents that IBM first turned over in discovery." SCO plans on propose still more amendments to its complaint, they tell the judge, so it makes sense to set a new deadline to allow for that. That's what discovery is for. They have a point there. It is normal to amend pleadings based on what you find out in discovery. But two years and counting... at some point, there has to be a cutoff. The only question is whether the judge feels that point has been reached or not.

  • SCO wants monthly status conferences to resolve "discovery disputes that may arise" -- in short, they would like a solution to a problem that has not yet arisen, but they extrapolate from the past and would like to foreclose the kinds of problems that have presented themselves in the past. Frankly, I think they want this because of the legal cap on fees. It is cheaper to show up one day in court a month to discuss discovery issues than to do the full motion practice first and then show up for oral argument.

  • SCO wants expert reports exchanged in a certain sequence, which IBM would prefer be different. SCO says IBM has no reason for such a reschedule, but I seem to recall IBM said that SCO wanted discovery to end and then the experts exchange reports, thus blocking IBM from doing discovery on matters raised in the reports. Here is how IBM described it in their proposed scheduling memorandum:

    SCO, by contrast, insists on a schedule that would allow it to keep IBM in the dark about its claims and deny IBM the right to prepare its defenses to those claims. SCO's proposal, if accepted, would result in further unnecessary disputes and delay.

    IBM objects to three of the provisions SCO seeks to include in the scheduling order. SCO seeks to include provisions that would (1) foreclose IBM's motion for reconsideration without substantive review by the Court; (2) re-open the pleadings more than one year after expiration of the deadline for amending pleadings; and (3) require the parties and the Court to participate in monthly status conferences -- on no particular subject -- that would merely invite unnecessary disputes. . . .

    SCO reinforced our concern by refusing to agree to a schedule that would require either an interim or a final disclosure of the Allegedly Misused Material."

    Another factor, I suspect, is that SCO knows that IBM plans on bringing their summary judgment motions back to the court, as soon as discovery is done.

  • SCO says they want earlier deadlines for fact discovery, expert reports, expert discovery and dispositive motions than IBM. I expect this relates to the same issue IBM has on the expert reports scheduling process. They want to be able to do discovery, once SCO finally tells them what this is all about, if they ever do. I gather they feel SCO would like to do the reveal only after it is too late for IBM to do any further discovery.
  • Then on page 3, we get to the nub of the thing. SCO says that IBM, under its proposal, will only provide some discovery by May 3, due to its motion to reconsider. That's not fair to SCO, they claim, because then SCO must meet interim and final disclosure and discovery deadlines by June 10 and August 11. After that, IBM would get a full 3 months unilaterally to complete discovery on its defenses to SCO's claims. That, they allege, is unfair and unreasonable. SCO wants a discovery deadline of October 28, "with expert discovery to follow".

The problem has arisen because the Wells Order was, at least as far as IBM is concerned, unfair to them. SCO would like to keep things tipped their way, naturally. And IBM is trying to redress the balance, with SCO kicking and screaming on each point. IBM, by bringing its motion for reconsideration, sets up a situation where SCO feels it now will have a time advantage. So they are trying to make sure IBM doesn't get the benefit of Judge Kimball's willingness to let IBM file its motion. On such little issues, ultimate winners and losers are decided sometimes. And SCO is clearly worried they won't have time to sift through all the code they fought so long to get. Be careful what you wish for, my mom always says.

Seeking an advantage is, of course, exactly what SCO's attorneys are supposed to do. If a judge makes a mistake in your favor, you tell the judge what a well-reasoned opinion it was, as SCO does here in this memorandum. But IBM appears solidly convinced that a mistake was made, and from what I see, they've decided to let the court know that they'd like some fairness in their direction now.

There is one very telling paragraph. SCO, as usual, trash talks IBM throughout their memorandum, accusing IBM of intransigence in discovery. IBM, in its proposed schedule, asked the Court for a firm deadline by which SCO must tell IBM at last what IBM is supposed to have done wrong with the code by "version, file, and line of code." SCO very much does not want that to happen. Rather, they say IBM must use interrogatories, and SCO can supplement them, piece by piece as they come across things in reviewing the code. SCO claims it isn't the one dragging its feet, and repeatedly slurs IBM, pointing the finger at them instead, but here is a moment of obvious clarity. IBM wants a day by which SCO has to present some proof, some evidence IBM can respond to with particularity at last, and SCO, rather than readily agreeing, dances around trying to avoid having to put its cards on the table.

We've reached the two-year anniversary, and we still don't know exactly what SCO's beef is. And it's *IBM* who is "intransigent"?!?

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