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AutoZone Files Another Status Report
Friday, May 27 2005 @ 03:10 AM EDT

Here's AutoZone's status report [PDF] to the judge on how things are going in the other important SCO cases, as the parties were ordered to do. It is dated May 10, 2005, and it was probably very enjoyable to write, because they inform the judge that Judge Dale Kimball wrote some very negative things about SCO's case. There is also a footnote, in which they signify that SCO speaks with forked tongue.

SCO filed their 90-day status report on April 18, so I don't know how these folks are doing their counting, but it is fascinating to read the two documents side by side, because while AutoZone stresses what Kimball found wanting in SCO's case in SCO v. IBM, SCO's letter [PDF] exudes positivity, doesn't mention Kimball's words, and stresses their discovery motions and Judge Wells' order. AutoZone doesn't even mention the Wells discovery order, and so the judge is in the dark that she has modified it since SCO's letter.

Both letters are accurate, so far as they go, but they couldn't tell more different tales. If you put them together, you get a more complete picture. AutoZone's, being later, pokes holes in some of the SCO positivity, letting the judge know, for example, that the G2 motion, which SCO wrote about hopefully, was denied. All the judge wants to know is if anything got decided. What? In SCO litigation? We are dreaming of the day.

If you wish to calculate dates for SCO to file a preliminary injunction, if it chooses to, here's the stipulation to extend discovery an extra 45 days, counting from the date the stipulation and order was entered, and here's [PDF] the judge's order that SCO would have to file its preliminary injunction, if it is going to, 20 days from the close of discovery. Unless this order has been modified, and we just haven't gotten the word, then SCO's deadline is upon them. If they do file, then more discovery happens. Otherwise, it's all stayed. If you wish to review what happened at the hearing, here you go. Essentially, SCO claimed irreparable harm, and so the judge granted them the opportunity to file a preliminary injunction motion, with limited discovery, but otherwise, the case would be stayed. So unless they file, it goes on the back burner with Red Hat.

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

[Alston & Bird letterhead]

May 10, 2005

Via Overnight UPS

The Honorable Robert C. Jones
U.S. District Judge
U.S. District Court, District of Nevada
[address]

Re: The SCO Group, Inc. v. AutoZone, Inc. CV-S-0237-RCJ-LRL

Dear Judge Jones:

Pursuant to the Court's August 6, 2004 Order, AutoZone, Inc. submits this letter to update the Court on the ongoing litigation related to this matter. Although AutoZone is not a party to the other related cases, AutoZone has derived the following information from publicly available sources.

1. The SCO Group, Inc., v. International Business Machines Corporation, Case
No. 2:03-CV-0294 DAK (D. Utah)

a. September 15, 2004 Hearing and Subsequent Rulings

On September 15, 2004, the Utah District Court held a hearing regarding several dispositive motions filed by the parties. On February 8, 2005, the Court issued a memorandum decision and order on the motions.

The first motion involved IBM's tenth counterclaim, in which IBM requests a declaration from the Court that "IBM does not infringe, induce infringement of, or contribute to the infringement of any SCO copyright through its Linux activities. . . ." SCO moved to dismiss this counterclaim on the grounds that it is permissive and that introduction of the counterclaim would unduly complicate the ongoing litigation.1 The Court did not decide whether the counterclaim was permissive or compulsory; however, the Court found that "there is no question that (the counterclaim) overlaps to some extent with the claims brought by SCO." Thus, the court allowed IBM's Tenth Counterclaim to remain because SCO had clearly alleged a copyright infringement claim "[n]otwithstanding SCO's puzzling denial in its briefing that it has not[.]"

The Court next considered IBM's cross-motion for partial summary judgment on its tenth counterclaim. The Court found it "astonishing" that SCO had not offered "any competent evidence" to create a disputed fact regarding SCO's allegations that IBM has infringed SCO's alleged copyrights through IBM's Linux activities. The Court also noted that SCO "chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights." Nevertheless, the Court resisted the "temptation to grant IBM's motion" and held that summary judgment was premature because of ongoing discovery in the case.

Finally, the Court denied without prejudice two IBM motions for summary judgment that had not yet been fully briefed. The court ruled that judicial economy was not being served in the case by entertaining dispositive motions prior to the close of discovery. Thus, the Court denied all pending dispositive motions, and ordered that no dispositive motions may be filed until after the cose of discovery.

b. Other Motions

On October 14, 2004, SCO filed a motion for leave to file an amended complaint. Both the memorandum in support of the motion and the new complaint were filed under seal. After filing a sealed response to the motion to amend, IBM filed a motion for entry of an order clarifying its ninth counterclaim, which seeks a declaration with respect to its UNIX activities. On April 21, 2005, the Court heard oral argument on SCO's motion to amend its complaint, as well as several discovery issues. The Court has not yet issued a ruling on the motions.

On April 26, 2005, the Court heard oral argument on G2 Computer Intelligence Inc.'s ex parte motion to intervene and unseal the court's file. On April 28, 2005, the court denied the motion, but cautioned both parties to be careful in designating documents as confidential.

2. The SCO Group, Inc. v. Novell, Inc., Case No. 2:04-CV-00139 (D. Utah)

On August 6, 2004, Novell filed a motion to dismiss SCO's amended complaint with prejudice. The motion has been fully briefed, and the oral argument is currently scheduled to be heard on May 25, 2005.

3. Red Hat, Inc. v. The SCO Group, Inc., Case No. 03-772-SLR (D. Del.)

As reported previously, the District of Delaware ordered this case stayed sua sponte on April 6, 2004. On April 20, 2004, Red Hat filed a motion for reconsideration of that order. On March 31, 2005, the Court denied Red Hat's motion. Accordingly, this case remains stayed pending resolution of the IBM and Novell cases.

Very truly yours,

___[signature]___
David J. Stewart

DJS:dlb

cc: Stanley W. Parry, Esq. (via facsimile)
David Stone, Esq. (via facsimile)


1

SCO initially claimed that IBM's tenth counterclaim should be denied because the issues would be litigated against AutoZone. After those issues were stayed in this case, SCO argued instead that the counterclaim should be stayed because it was permissive.


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