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Two Letters to the Red Hat Judge - He Said, She Said, and a Reality Check
Friday, July 08 2005 @ 06:28 AM EDT

Again, the parties in Red Hat v. SCO have filed their 90-day status reports in Delaware. Here are both letters, first SCO's [PDF] and then Red Hat's [PDF]. The last letters were back in April, if you want to compare.

I hope Chief Judge Sue Robinson has a sense of humor. And the capacity for moral indignation.

As usual, the parties cover the same ground but tell it in their own special way. SCO stresses the parts that favor them, as usual. Their letter is dated July 6, so they mention IBM's big win on July 1, but without calling it a big win, or any win at all, despite Judge Dale Kimball denying SCO's Motion to Amend 3rd Amended Complaint (IBM's Opposition Memorandum.) It's listed first very matter-of-factly under "Pending Motions," but of course, it's no longer pending. That is likely just an honest mistake. Probably an earlier draft used that heading, and then when the order was filed and entered, SCO brought the text up-to-date, but forgot about the header. Red Hat doesn't mention it at all, but their letter is dated June 30, so they didn't know about it yet. Then SCO elaborates in the next section of their letter. But the way they tell it, they make it sound like IBM lost that motion. They didn't. SCO lost.

My point is this: SCO has been telling the media what a great victory they had when their motion to compel the deposition of Sam Palmisano was granted, for a grand total of 4 hours. I wouldn't characterize that as a significant matter, let alone a victory. But I don't see them spinning it that way in the letter, nor do they mention the limits on how much time they can have with him, although that was part of the order too. They say nothing about that. When does SCO downplay victories? It surely isn't because they don't know how to spin.

So why the difference between the story to the judge and the media spin, which some have swallowed whole? Maybe SCO doesn't really view it as such a victory after all? Or maybe they know the judge, as opposed to the media, who don't know the law, would laugh at such a characterization?

There was one assertion in SCO's letter that registered high on my baloney meter, and when I went to check, I confirmed the accuracy of the reading. It has to do with sealed documents and why SCO filed so many -- they actually filed one more than IBM, as Groklaw earlier documented, after IBM was publicly accused of oversealing and I did a count. Now, after Groklaw's math, the story has shifted. The new line from SCO is that they sealed documents because IBM insisted. I decided to take a look and see if that appears to be true or not. Let me show you what I found, but first let's go over the other elements in the letter.

They tell the judge with a note of triumph, or the pretense of it, that IBM has to turn over all non-public Linux contributions, according to Judge Brooke Wells' discovery order. They subtly mention Wells' later reduction of the number of programmers whose files must be poked through and turned over -- from 3,000 to only 100 IBM employees -- which happened because IBM filed a Motion to Reconsideration of the January 18, 2005 Order Re SCO's Renewed Motion to Compel -- but they don't call it a reduction at all, or even a change. They say the judge "(re)ordered IBM to produce 'the programmer's notes, design documents, white papers, comments and notes, contact information, specific changes made to code, and all relevant non-privileged documents from the files of the 100 individuals who made the most contributions and changes to AIX and Dynix.'" What can one do with folks like that? They make it sound like IBM lost the Motion for Reconsideration. They didn't. But the order was, according to SCO, a confirmation of her earlier order. In what alternate universe? Of course, they surely don't tell Judge Robinson that Judge Wells acknowledged that she had not been fully informed when she filed her original order. That might lead to questions about SCO's version of the story. There is an ominous hint that after they get the files and papers from those 100, they'll ask for more.

Of course they will. SCO has become addicted to discovery. They don't want this ever to stop. Happily, Judge Kimball doesn't feel that way, and he has now set a cutoff date, at which point discovery will finally, really and truly, be over. Is SCO's dream that Wells will let them do all 3,000 but 100 at a time? Read the order for yourself, and hold up SCO's characterization of it right next to it. See if there's a match.

Non-public contributions again. Other than rejected code, what is there to turn over? How could rejected code possibly matter? What damages could there be? Please see How the Kernel Development Process Works, by kernel contributor Greg Kroah-Hartman, who explains how it works, with comments by Andrew Morton, who confirms the process. If SCO is dreaming of massive non-public Linux contributions to turn up in discovery, they will be disappointed. Linux is all written in public.

And you'll enjoy SCO's account of Novell. One line: that Novell's motion to dismiss was denied:

On June 27, 2005, Judge Kimball denied Novell's second motion to dismiss SCO's complaint, which alleges that Novell slandered SCO's title to the UNIX and UnixWare copyrights.

Doesn't that sound like Judge Kimball is buying SCO's story? You'd have to read Red Hat's version to find out why he said he couldn't grant Novell's motion, and there is no hint in the Order that he was buying anything SCO was selling about copyright ownership, just that he thought of one issue that is a question of fact, not law, so he couldn't decide it by motion prior to discovery and that SCO's pleadings were adequate.

If you wish to know about AutoZone's allegation that SCO behaved improperly in filing their Report regarding the limited discovery, you need to read about it in Red Hat's letter, because SCO says nothing at all about that case. Don't they want Judge Robinson to know they decided not to seek a preliminary injunction?

It's a riot. It had me rolling my eyes. But getting back to the baloney reading, here's what SCO claimed:

On May 27, 2005, the parties submitted reports identifying documents they believed could be unsealed. IBM's report identified numerous documents that SCO had filed under seal only because they referenced or were materials that IBM had insisted were confidential even after SCO had repeatedly complained that they did not contain any sensitive information.

Reading that, you'd get the impression that SCO was chomping at the bit, ready and eager to unseal many documents; in fact, the charge is that IBM has been obstructing free and open discovery.

So, what happened after the judge's order asking the parties to look and see if anything could be unsealed? I went to look on the docket sheet, to see how many documents each party has unsealed or redacted since the order was filed and entered.

It was on April 28, 2005 that Judge Kimball ruled on the G2 motions, denying their motion to intervene and motion to unseal court files. This is number 438 on the docket sheet. Beginning on May 4, IBM immediately began unsealing and redacting, and they have now filed so many, Judge Kimball ended up asking the parties not to overwhelm the court clerk and just to notify the clerk of the numbers in question on unsealed documents instead of refiling the documents. What about SCO? What has it done since the order freed them from the restraints it claims IBM had placed on them? Here's the docket sheet, and I've marked in blue text which party filed the unsealed or redacted documents:

  • 05/04/2005 - #442
    REDACTION to [406] Sealed Document entitled: Memorandum in Opposition to SCOs Motion to Compel IBM to Produce Samuel J. Palmisano for Deposition by Defendant International Business Machines Corporation . (blk, ) (Entered: 05/05/2005)

  • 05/04/2005 - #443
    REDACTION to [332] Declaration of Irving Wladawsky-Berger by Defendant International Business Machines Corporation . (blk, ) (Entered: 05/05/2005)

  • 05/04/2005 - #444
    REDACTION to [304] Sealed Document entitled: Opposition to SCOs Supplemental Memorandum Regarding Discovery by Defendant International Business Machines Corporation . (blk, ) (Entered: 05/05/2005)

  • 05/04/2005 - #445
    REDACTION to [334] Declaration of Andrew Bonzani by Defendant International Business Machines Corporation . (blk, ) (Entered: 05/05/2005)

  • 05/04/2005 - #446
    REDACTION to [331] Declaration of Alec S. Berman by Defendant International Business Machines Corporation . (blk, ) (Entered: 05/05/2005)

  • 05/04/2005 - #447
    REDACTION to [407] Sealed Document entitled: Sur-reply Memorandum in Further Opposition to SCOs Motion for Leave to File a Third Amended Complaint by Defendant International Business Machines Corporation . (Attachments: # 1exhibits a-m# 2 # 3 # 4)(blk, ) (Entered: 05/05/2005)

  • 05/04/2005 - #448
    REDACTION to [333] Declaration of Samuel J. Palmisano by Defendant International Business Machines Corporation . (blk, ) (Entered: 05/05/2005)

  • 05/27/2005 - #449
    NOTICE of regarding unsealing of documents pursuant to 4/28/05 order by International Business Machines Corporation re438 Order, (blk, ) (Entered: 05/31/2005)

  • 05/27/2005 - #450
    STATUS REPORT in compliance with the courts 4/28/05 Order regarding the unsealing of documents by SCO Group. (blk, ) (Entered: 05/31/2005)

  • 06/03/2005 -#451
    SCOs UPDATED REPORT in compliance with the Courts 4/28/05 order regarding the unsealing of documents by SCO Group. (blk, ) (Entered: 06/07/2005)

  • 06/16/2005 - #452
    NOTICE of Unsealing by SCO Group (blk, ) (Entered: 06/20/2005)

  • 06/20/2005 - #453
    REDACTION to [271] Memorandum in Support of Motion by Defendant International Business Machines Corporation . (blk, ) (Entered: 06/27/2005)

  • 06/20/2005 - #454
    REDACTION to [230] Sealed Document/Memo in Support by Defendant International Business Machines Corporation . (Attachments: # 1 # 2)(blk, ) (Entered: 06/27/2005)

  • 06/20/2005 - #455
    REDACTION to [257] Reply Memorandum/Reply to Response to Motion by Defendant International Business Machines Corporation . (blk, ) (Entered: 06/27/2005)

  • 06/20/2005 - #456
    REDACTION to [252] Sealed Document/Declaration of Brian W. Kernighan by Defendant International Business Machines Corporation . (blk, ) (Entered: 06/27/2005)

  • 06/20/2005 - #457
    REDACTION to [227] Declaration of Todd M. Shaughnessy, [228] Exhibits by Defendant International Business Machines Corporation . (blk, ) (Entered: 06/27/2005)

  • 06/20/2005 - #458
    REDACTION to [239] Sealed Document, [238] Exhibits, [237] Declaration of Amy F. Sorenson by Defendant International Business Machines Corporation . (blk, ) (Entered: 06/27/2005)

  • 06/20/2005 - #459
    REDACTION to [250] Reply Declaration of Todd M. Shaughnessy, [251] Exhibits by Defendant International Business Machines Corporation . NOTE: Document is oversized, therefore it is not scanned into an electronic image and is stored in the clerks office for viewing. (blk, ) (Entered: 06/27/2005)

  • 06/20/2005 - #460
    REDACTION to Exhibits re: [239] Sealed Document, [238] Exhibits, [237] Declaration of Amy F. Sorenson by Defendant International Business Machines Corporation . NOTE: Document is oversized, therefore it is not scanned into an electronic image and is stored in the clerks office for viewing. (blk, ) (Entered: 06/27/2005)
  • 06/20/2005 - #461
    REDACTION to [241] Sealed Document/Memo in Support by Defendant International Business Machines Corporation . NOTE: Document is oversized, therefore it is not scanned into an electronic image and is stored in the clerks office for viewing. (blk, ) (Entered: 06/27/2005)

  • 06/20/2005 - #462
    REDACTION to Exhibits vol 1 [227] Declaration, [228] Exhibits by Defendant International Business Machines Corporation . NOTE: Document is oversized, therefore it is not scanned into an electronic image and is stored in the clerks office for viewing. (blk, ) (Entered: 06/27/2005)

  • 06/20/2005 - #463
    REDACTION to Exhibits Vol 2 [227] Declaration, [228] Exhibits by Defendant International Business Machines Corporation . NOTE: Document is oversized, therefore it is not scanned into an electronic image and is stored in the clerks office for viewing. (blk, ) (Entered: 06/27/2005)
  • 06/20/2005 - #464
    REDACTION to Exhibit Vol 3 [227] Declaration, [228] Exhibits by Defendant International Business Machines Corporation . NOTE: Document is oversized, therefore it is not scanned into an electronic image and is stored in the clerks office for viewing. (blk, ) (Entered: 06/27/2005)

  • 06/27/2005 - #465
    REDACTION/Unsealed filing to [337] Sealed Document/Memo in Opposition by Defendant International Business Machines Corporation . (blk, ) (Entered: 06/29/2005)

As you can see, in fact you can't miss it since I've emphasized it in colored text, it's only IBM that we find on the docket sheet filing *any* redacted and unsealed documents. SCO didn't file anything listed on the docket sheet. Nothing. Now, that is not proof positive of who wanted what, but it is a big hint that maybe there is some more baloney being placed on the judge's table. So, weigh SCO's account for yourself. I sincerely hope Judge Robinson does the same, so that when the stay is lifted, she will know how to measure what she hears from SCO.

Here are the letters:

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

MORRIS, NICHOLS, ARSHT & TUNNELL
[letterhead]

July 6, 2005

BY ELECTRONIC FILING

The Honorable Sue L. Robinson, Chief Judge
United States District Court
[address]

RE: Red Hat, Inc. v. The SCO Group, Inc., C.A. No. 03-772-SLR

Dear Chief Judge Robinson:

Pursuant to this Court's April 6, 2004 Order, SCO respectfully submits this 90-day status report to apprise the Court of events that have transpired since our last update (on April 4, 2005) in SCO v. IBM, Case No. 03-0294 (DAK), and SCO v. Novell, Case No. 04-139, which are currently pending before the Honorable Dale A. Kimball in the United States District Court for the District of Utah.

Pending Motions

On July 1, 2005, Judge Kimball granted SCO's Motion to Compel IBM to Produce Samuel J. Palmisano for Deposition, denied SCO's Motion for Leave to File a Third Amended Complaint, granted IBM's Motion for Entry of Order Limiting the Scope of Its Ninth Counterclaim, and set forth an Amended Scheduling Order with a trial date of February 26, 2007. SCO's December 23, 2004 Renewed Motion to Compel Discovery is still pending before the Court.

IBM's Motion for Reconsideration of the January 18, 2005 Order

As reported in our last update, IBM asked the Court to reconsider the portion of its January 18, 2005 Order requiring IBM to produce programmer-contribution information for the 3,000 individuals who made the most contributions and changes to the development of AIX and Dynix. In its motion papers, IBM also attempted to limit its other discovery obligations by arguing that it was not required to produce information concerning its Linux contributions. On April 19, 2005, United States Magistrate Judge Brooke Wells (re)ordered IBM to produce "the programmer's notes, design documents, white papers, comments and notes, contact information, specific changes made to code, and all relevant non-privileged documents from the files of the 100 individuals who made the most contributions and changes to AIX and Dynix." Order (4/19/05) at 4. Judge Wells contemplates that this preliminary production "will provide a basis for SCO to compare what is in the files of individual developers, versus what is contained in other materials produced by IBM," so that SCO can identify, "in accordance with IBM's representation," additional developers from whose files SCO would like the same discovery. Id. at 4-5.

As to IBM's attempt to limit its other discovery obligations, Judge Wells stated that "prior orders make it clear that IBM is to provide ALL non-public Linux contribution information." Id. at 5 (emphasis in original).

G2's Motion to Intervene and Order Re Unsealing of Documents

On April 28, 2005, the Court denied G2's Motion to Intervene and Motion to Unseal Court's File. However, to "minimize the risk of over-designating confidential documents," Judge Kimball ordered the parties to review previously filed documents and notify the Court "as to which documents the parties agree may be unsealed." Order (4/28/05) at 1-2.

On May 27, 2005, the parties submitted reports identifying documents they believed could be unsealed. IBM's report identified numerous documents that SCO had filed under seal only because they referenced or were materials that IBM had insisted were confidential even after SCO had repeatedly complained that they did not contain any sensitive information.

Novell's Second Motion to Dismiss

On June 27, 2005, Judge Kimball denied Novell's second motion to dismiss SCO's complaint, which alleges that Novell slandered SCO's title to the UNIX and UnixWare copyrights.

SCO will submit its next 90-day update to the Court by October 3, 2005.

Respectfully,

/s/ Leslie A. Polizoti (#4299)

LAP/dal

cc: Peter T. Dalleo, Clerk (By Hand)
Josy W. Ingersoll, Esquire (By Hand)
William F. Lee, Esquire (By Fax)
Edward Normand, Esquire (By Fax)


Young Conaway Stargatt & Taylor, LLP
[letterhead]

June 30, 2005

BY ELECTRONIC FILING

The Honorable Sue L. Robinson
Chief Judge
[address]

RE: Red Hat, Inc. v. The SCO Group, Inc.
Civil Action No. 03-772-SLR

Dear Judge Robinson:

Pursuant to the Court's April 6, 2004 Order requesting a quarterly report on the status of various related litigation matters, Red Hat, Inc. submits this letter as an update to its previous letter, dated April 1, 2005. Although Red Hat is not a party to these other related cases, Red Hat offers the following summary based upon publicly available information.

1. SCO Group, Inc. v. International Business Machines Corp.

The court held a hearing on April 21, 2005 to address various outstanding motions, including a motion to intervene filed by third party G2 Computer Intelligence, Inc. ("G2"), IBM's motion for entry of an order limiting the scope of its ninth counterclaim, and discovery motions. By order dated April 28, 2005, the court denied the motion filed by G2 to intervene for the purpose of challenging the confidential designation of documents. The remaining motions are still pending.

2. SCO Group, Inc. v. AutoZone, Inc.

As set forth in Red Hat's April 1, 2005 letter, this case was stayed subject to a limited period of discovery that ended in mid-May on the issue of preliminary injunctive relief. SCO did not file a motion for preliminary injunction, but instead filed a report that attached "relevant sections of pertinent documents" obtained in the limited discovery period. SCO's report asserts that this limited discovery establishes Autozone's liability for copying and using SCO's proprietary code, but concedes that preliminary injunctive relief is not necessary at this time. Autozone filed a response challenging the propriety of SCO's report both procedurally and on the merits.

3. SCO v. Novell, Inc.

On May 25, 2005, a hearing was held on Novell's motion to dismiss. Novell's principal arguments are that: (1) it cannot be liable for slander of title because it has a legal privilege to make a good-faith assertion of a rival property claim; and (2) SCO cannot show that Novell acted with malice. The court concluded that the question whether Novell had a legal privilege depends on whether SCO pled malice and that the amended complaint met the pleading standard. The court further held that Novell's motion should be denied because the question whether there has been excessive publication -- which would defeat application of the asserted privilege -- is a question of fact.

Respectfully submitted,

[signature of John W. Shaw]
John W. Shaw #3362

JWS:cg
cc: Clerk of the Court (by hand delivery/electronic filing)
Jack B. Blumenthal, Esquire (by hand delivery & electronic filing)
Stephen N. Zack, Esquire (by e-mail)
Mark G. Matuschak, Esquire (by e-mail)
Michelle D. Miller, Esquire (by e-mail)


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