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SCO Asks for Delay on the April 21st Hearing and IBM Gets Really, Really Clear
Wednesday, April 13 2005 @ 09:15 AM EDT

There are three new filings in SCO v. IBM, and they are enjoyable to me. First, SCO asks for a delay regarding the April 21st hearing [PDF] on their request to amend their complaint again. This would be the AIX on POWER claim, from what they've leaked to the media. They say their reason for wanting a delay is because they are about to get a ton of code from IBM and maybe they'll find some other things to use to amend the complaint.

Yeah. Right. Or maybe they read Groklaw and figured out, now that I did all the research for them, that they haven't a ghost of a chance of prevailing on that misguided claim, and so now they would like some time to figure out what to try next.

Then IBM has filed their objections to SCO's privilege logs[PDF], and it's hilarious. SCO is claiming privilege on documents and data that originated with other companies, and they even claim privilege over a conversation with an *IBM* employee. And other inanities. Like not listing the names of the attorney involved with claiming attorney privilege. It might not strike you as funny, the way it does me, but I was laughing out loud, and I'm sure IBM's legal team was too, as they drew up this document. Doesn't Boies Schiller have any paralegals? These are fairly basic things. In a privilege log, you are supposed to provide enough information that the court and the other side has a clue what the basis for your claim is. I guess it's in character that SCO tries to keep everyone in the dark instead. If you are not familiar with privilege logs, here's some info for you.

Finally, IBM answers SCO's objections to IBM's scheduling proposal [PDF]. I see a real difference in style post-the-Wells-discovery order. IBM is now being very pointed in its expressions. A child could get it. The gentlemanly reserve is gone.

It opens like this:

In opposition to IBM's proposed scheduling order, SCO offers five reasons why it should be allowed to keep IBM in the dark about SCO's claims and deny IBM the right to prepare its defense to those claims. Putting aside the fact that SCO made no mention of these reasons during the parties' meet-and-confer, none of them bears scrutiny. There is no good reason why this Court should not impose deadlines for the parties to identify the materials they contend one another misused and then allow discovery related specifically to those materials.

It tells the court the discovery she ordered is irrelevant, but it will produce it, and it says that SCO is simply trying to hide the ball -- they believe SCO is angling to keep to itself any specific claim regarding IBM's alleged misdeeds until after discovery is completed, so IBM is kept in the dark and can't defend itself. IBM used to hint, at most, about such mean tricks. Now, they are plainly placing them on the judge's desk. She can't possibly miss their point. They also address SCO's desire to amend the pleadings. SCO filed three complaints already, IBM points out, there was a deadline set, after which the Judge Kimball said there would be no more, absent "extremely compelling circumstances," and SCO missed that deadline -- it came and went a year ago -- and now they do need compelling reasons to amend again, particularly, IBM points out, about activities that SCO has known about for years. (Like AIX on POWER, I presume.)

Further, IBM, in effect, says that SCO lied to the court -- there was, indeed, they say, a tentative agreement that SCO violated at the last minute. Now they're raising issues they never even brought up in the parties' meet-and-confer. That is a no-no.

Here's just one example of the new IBM style:

SCO argues that discovery disputes have taken too long to resolve and proposes a special procedure, including truncated briefing and expedited hearings, to speed things up. . . Putting aside the irony in SCO's proposal,8 SCO fails to establish a need for monthly status conferences.

The footnote 8 takes you to this:

SCO complains about the time it has taken to resolve discovery issues but overlooks the fact that it has repeatedly filed overlength briefs and redundant motions and that its own shortcomings in discovery necessitated two motions to compel, resulted in two orders requiring it to comply with IBM's discovery requests and triggered a stay of discovery. Similarly, SCO proposes that the Court set up a special procedure for dealing with discovery disputes but ignores the fact that the best way to avoid unnecessary discovery disputes is for the parties to identify the Allegedly Misused Material (which SCO seeks so vigorously to avoid doing) and limit discovery to that material.

I see a new policy. Let's call it the scorched earth policy. As for SCO, one Groklaw fan summed it up like this, in an email to me:

SCO wants more delays.... :-)
and if they don't get their way - they threaten more delays :-)

They are an absolute sketch.

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