Here are the most recent letters to the judge in SCO v AutoZone, first AutoZone's [PDF] and then SCO's [PDF], as text, thanks to Steve Martin. We are catching up on the text of the letters in Red Hat v. SCO also, and we'll have them next.
Once again, you see that the two sides tell the same story very differently. The most obvious example is how they each tell the story of IBM's voluntary offer to drop its patent claims in SCO v. IBM to get that case moving along, after SCO petitioned the court for 25 more depositions.
AutoZone tells that part of the story:
On September 6, 2005, SCO also filed a motion to increase the number of depositions available to each side by 25. SCO claimed these additional depositions were needed in light of the expansion of the scope of the case (in particular, IBM's patent counterclaims). IBM opposed the motion to increase the number depositions. In an effort to expedite resolution of the case, IBM agreed to dismiss its patent counterclaims.
On October 7, 2005, the court denied SCO's motion to compel and increased the number of depositions available to both parties by 10. On October 10, 2005, the court issued an order dismissing IBM's patent counterclaims with prejudice.
SCO writes, with uncharacteristic economy:
On October 10, 2005, the Court dismissed IBM's three patent-infringement counterclaims with prejudice.
That's it. That is all they wrote about it. See what I mean? It is true, as far as it goes, but how far does it go? Is it the complete, accurate picture? One of SCO's lawyers, Ted Normand, once complimented me on my attention to detail, which I appreciated. But the truth is, this case has greatly heightened my natural tendency to notice detail, because one must. Otherwise, you could be misled as to what is going on.
Here's another example. SCO tells the judge that on October 7, 2005, the judge in SCO v. IBM "postponed ruling, pending re-briefing, on SCO's December 23, 2004 Renewed Motion to Compel seeking Linux-related documents from IBM senior executives ..." But does that match the wording from the Order [PDF]? Let's look:
1. In an Order dated January 18, 2005, the Court withheld decision regarding the production of documents from certain executives pending full briefing by the parties. Due to a docketing error, the issue was not scheduled for hearing upon the close of the parties' briefing.
2. Substantial discovery has been provided since SCO filed its Renewed Motion to Compel Discovery (Docket No. 366) in December 2004 and Judge Kimball has issued an order concerning the deposition of Samuel Palmisano, IBM's C.E.O.; and
3. Given the possibility that some discovery provided by IBM may address the concerns raised by SCO in the pending motion, SCO shall withdraw the pending motion and file a new motion removing any items from the motion which may have been provided by IBM in the intervening time.
Accordingly, it is HEREBY ORDERED that SCO shall file a new motion with the Court, no later than October 21, 2005, removing any items from the motion which may have been provided by IBM in the intervening time. IBM may oppose such motion and SCO may reply. The new motion will be heard with IBM's Motion to Compel Production of Documents on SCO's Privilege Log (Docket No. 514) on December 20, 2005 at 10:00 a.m., courtroom to be determined.
So looking carefully at the details, do you not see that while it's true that in January the court postponed ruling on the December 2004 motion, in October, in contrast, the court ruled that SCO was to *withdraw* that motion and file a new one from scratch? Perhaps SCO needs a paralegal with an eye for detail? (Um. No. Thanks loads.)
Of course, if SCO told it thataway, they'd have to admit to an error (at least) in obeying the order, since in fact they filed, not a new motion, as ordered, but essentially the old motion as a "New Renewed" [PDF] motion, claiming IBM hadn't turned over anything at all in the meantime. IBM refuted that assertion, telling the court it had turned over more than a million pages of documents since SCO filed its December 23, 2004 motion, including documents concerning IBM's Linux strategy, documents concerning the development of Linux, and other Linux-related documents. SCO's response was that it didn't get what it was looking for.
What are they looking for? A case, maybe? Or are they working up to a Perry Mason moment, when they will pretend to find something they have had in hand from the beginning? If the latter, it would be yet another bending of the rules, to put it kindly.
(Alston & Bird LLP letterhead)
October 14, 2005
Via Overnight UPS
The Honorable Robert C. Jones
U.S. District Judge
U.S. District Court, District of Nevada
Re: The SCO Group, Inc. v. AutoZone, Inc. CV-S-04-0237-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)
On August 1, 2005, the court granted IBM's motion to narrow the scope of its
ninth counterclaim. This counterclaim was for a declaratory judgment that IBM's
reproduction, improvement, and distribution of AIX and Dynix did not infringe SCO's
copyrights. The court agreed that IBM was allowed to narrow the scope of this
counterclaim to only cover infringements based on allegations that IBM breached its
license agreements with AT&T. SCO alleges that it owns these license agreements, that
it has terminated them, and that IBM's continued reproduction, improvement, and
distribution of AIX and Dynix thus infringes SCO's copyrights.
On September 6, 2005, SCO filed a motion to compel IBM's production of all
documents concerning IBM's development work for Linux with respect to contributions
that IBM has made to Linux. IBM opposed on the grounds that the court had specifically
ruled that IBM did not have to produce all of this "development documentation," but that
IBM only had to produce its actual contributions to Linux.
On September 6, 2005, SCO also filed a motion to increase the number of
depositions available to each side by 25. SCO claimed these additional depositions were
needed in light of the expansion of the scope of the case (in particular, IBM's patent
counterclaims). IBM opposed the motion to increase the number depositions. In an
effort to expedite resolution of the case, IBM agreed to dismiss its patent counterclaims.
On October 7, 2005, the court denied SCO's motion to compel and increased the
number of depositions available to both parties by 10. On October 10, 2005, the court
issued an order dismissing IBM's patent counterclaims with prejudice.
2. The SCO Group, Inc. v. Novell, Inc., Case No. 2:04-CV-00139 (D. Utah)
Novell filed its answer and counterclaims on July 29, 2005. Novell denies that it
transferred any copyrights regarding UNIX to SCO under the Asset Purchase Agreement.
Novell asserted seven counterclaims, including slander of title, breach of contract, unjust
enrichment, and a declaratory judgment regarding its rights and duties under the Asset Purchase
Agreement. In addition, Novell asserted its rights to its share of fees that SCO
had obtained under its "SCOsource" licensing program. Novell's asserted share of these
fees amounts to 95% of all fees that SCO has obtained, including that share of
approximately $34 million that SCO received from Microsoft Corporation and Sun
Microsystems under the SCOsource licensing program. In an answer filed on September
12, 2005, SCO denied the allegations of Novell's counterclaims.
No scheduling order or discovery plan is publicly available for the case.
3. Red Hat, Inc. v. The SCO Group, Inc., Case No. 03-772-SLR (D. Del.)
As reported previously, the District of Delaware on April 6, 2004 ordered this
case stayed pending resolution of the IBM and Novell cases. Accordingly, there is no
activity to report in the case.
Very truly yours,
Douglas L. Bridges
cc: Stanley W. Parry, Esq. (via facsimile)
David S. Stone, Esq. (via facsimile)
(Curran & Parry letterhead)
October 19, 2005
VIA HAND DELIVERY
The Honorable Robert C. Jones
United States District Judge
District of Nevada
Re: The SCO Group, Inc. v. AutoZone, Inc., CV-S-04-0237-RCJ-LRL
Dear Judge Jones:
Pursuant to this Court's August 6, 2004 Order, The SCO Group, Inc. ("SCO") respectfully
submits this 90-day status report to apprise the Court of events that have transpired since our last
update (on July 18, 2005) in certain other actions.
1. The SCO Group, Inc. v. International Business Machines Corporation
Case No. 2:03CV0294 DAK (D. Utah)
Dismissal of IBM Counterclaims
On October 10, 2005, the Court dismissed IBM's three patent-infringement counterclaims
with prejudice. In addition, on August 1, 2005, the Court granted IBM's Motion to Narrow the Scope
of its Ninth Counterclaim.
On October 7, 2005, the Court postponed ruling, pending re-briefing, on SCO's December
23, 2004 Renewed Motion to Compel seeking Linux-related documents from IBM senior executives;
denied in part SCO's Renewed Motion to Compel dated September 6, 2005, ordering IBM to
produce materials from twenty Linux developers identified by SCO; granted in part SCO's motion
for leave to take additional depositions; and denied IBM's request to lengthen its additional
On September 26, 2005, IBM filed its Motion to Compel Production of Documents on SCO's
Privilege Log, alleging that SCO withheld "hundreds" of documents based on the privilege claims
of its predecessors in interest.
2. The SCO Group, Inc. v. Novell, Inc., Case No. 2:04CV00139 (D. Utah)
On July 29, 2005, Novell filed its Answer and Counterclaims, asserting seven counterclaims.
Contrary to the language of the Asset Purchase Agreement ("APA"), the intent of the parties to the
APA, and Novell's own conduct during the more than seven years that followed the APA's signing,
Novell now alleges that it did not transfer the copyrights to UNIX and that it retained the right to take
actions (such as waive SCO's claims against IBM) that may destroy the value of the UNIX business
for which SCO's predecessor paid over $100 million in consideration.
On September 12, 2005, SCO filed its Answer to Novell's Counterclaims. Among other
things, SCO set forth facts refuting the assertion that SCO contacted Novell in 2002 to ask for the
transfer of the UNIX copyrights.
3. Red Hat, Inc. v. The SCO Group, Inc., Case No. 03-772-SLR (D. Del)
As Your Honor knows, the Court in the Red Hat case has stayed that case sua sponte.
Since our last letter to this Court, the parties in that case have submitted additional 90-day progress
reports to the Court.
SCO will submit its next 90-day update to this Court by January 16, 2006.
CURRAN & PARRY
Stanley W. Parry, Esq.
cc: James Pisanelli, Esq. (via hand-delivery)
David S. Stone, Esq. (via facsimile)