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Friday's Interim Deadline - What Not to Expect
Monday, October 24 2005 @ 11:46 PM EDT

As you know, Friday is an interim deadline for the parties in SCO v. IBM to lay their cards on the table in discovery regarding allegedly infringed code. Or more specifically, as you can see on the IBM Timeline page, it's listed as the "Interim Deadline for Parties to Disclose with Specificity All Allegedly Misused Material Identified to Date and to Update Interrogatory Responses Accordingly." The very thought of SCO having to disclose anything with specificity at last has us all drooling, I know, and I've seen some high hopes that finally SCO will have to present its evidence and reveal to the world what code is allegedly infringed by IBM.

Wait a second, guys. This is The SCO Group we are talking about here. SCO's middle name is delay.

If you are a long-time reader of Groklaw, you've got to know by now that the way it is in the books isn't the way it really is in real life. That is why lawyers have to be trained even after they graduate from law school, to actually find out how to be lawyers. There's book knowledge, and then there is practical experience. They overlap, of course, but here, we need to focus not on what the scheduling order proclaims will happen, but instead let's consider what is likely to happen in real life.

So what can we realistically expect to happen on Friday? I asked Marbux, and the short answer is probably not much as far as seeing any evidence is concerned. Whatever the court sees won't be for our eyes, for starters. Then there is litigation strategy. As you know, this is an *interim* deadline, not the final deadline, which doesn't roll around until December 22, and knowing SCO as well as we do, do you think they will wait for the final deadline, perchance, to reveal any really good stuff? Marbux says this as far as the interrogatories:

I'm expecting answers to interrogatories would for the most part be a few tidbits, accompanied with essays about reserving the right to supplement and amend responses later, etc. And I'd expect a lot of SCO wastebaskets being emptied for a big document dump, so the SCO lawyers can talk about what a tremendous amount of information they have already produced, that they spent billions of manhours working on it, etc. I expect the Swiss cheese strategy for discovery, i.e., IBM asked for Swiss cheese, and SCO will produce the holes on Friday, with promises to deliver the rest of the cheese later.

So that is what he thinks is likely, but keep in mind SCO has other options, if they yearn for more delay. For one annoying possibility, they could ignore the deadline and wait for IBM to file a motion to rectify the situation. That isn't likely because we wouldn't be the only ones annoyed. Judges aren't so keen on parties disobeying court orders.

But they could maybe file a last-minute motion to modify the scheduling order, I suppose, despite Judge Wells' firm words on the subject at the hearing October 7. SCO doesn't always pay close attention, I've noticed, to what Judge Wells tells them. The way they garbled her previous discovery orders was a sketch, although Judge Wells didn't seem to find it so funny.

A last-minute motion. That's the ticket. SCO could once again suddenly "discover" new evidence that IBM really, really, this time we really mean it, stole SCO's sneakers. Then they could ask for time to do discovery on this new "outrageous IBM misconduct" that SCO just found out about by reading graffiti on a bathroom wall someplace. Eureka! Evidence at long last! Email Forbes right away! I can see their headline now in my mind's eye: Maybe, Just Maybe, SCO Can Pin IBM To the Wall, they can trumpet. Ah, the excitement! Ah, the FUD! Ah, the good olde days. Ah, the stock price.

Maybe then SCO could get some delay, while the motion gets run through the legal pasta maker, and when it's spaghetti, *then* SCO coughs up the evidence, or at least a bit of same.

Normally, I'd venture to say such a strategy would be unlikely, because it would also make a judge mad, but with those wild and crazy SCO guys, so creative and bold, who knows? They don't seem to care.

You are supposed to comply with a judge's order. If you don't like the order and can't comply, you are supposed to file a motion far enough in advance that the motion can be heard and ruled on in time for you to comply with the deadline if your motion fails. With the deadline being Friday, that's not possible at this late hour. Hmm. Maybe an emergency ex parte motion? Wake the Judge up. Who cares if it's 3 AM? SCO needs a hearing right away on this emergency graffiti evidence.

All right. I'm getting silly. Judges in Utah are more laid back than in, say, New York City, I've noticed, so SCO could almost pull something like this off, I'm thinking, with no sanctions, too. But if they were to take such risks, it'd be about the December 22nd deadline, not this one on Friday, I believe.

Anyway, the point is, I don't want you to expect much of anything to happen on Friday. This isn't the big moment we've been waiting for, I don't think, knowing SCO as I do. It *is* coming, though... and they are certainly free to surprise me.


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