Now we're getting down to something that seems like some substantive activity in SCO v. IBM at last. At least hints of some. Discovery has felt endless in this case, and now, with the December 22 deadline looming for SCO, the parties have begun to figure out the What's Next part. There is more discovery of a different sort ahead, but the Search for the Holy Grail of allegedly infringed code is over soon.
So, after that, what happens? For starters, SCO and IBM have stipulated to lifting the restriction on how many requests for admission each side can have. It's now set at 25, as you can see in the original Scheduling Order [PDF] dated June 20, 2003 by the Magistrate then assigned, Judge Nuffer. The parties tell the court that isn't enough after all:
The parties have since determined that 25 requests for admission is insufficient to address the issues in this case, and therefore respectfully request that the Court enter an order, in the form submitted herewith, eliminating the limit on the number of requests for admission.
So far as I know, there has been only one such request so far, by SCO. At least, I see only one on Pacer's list. Both parties have also filed some sealed documents, and IBM has filed a redacted version of its Reply Memorandum in Support of Motion to Compel Production of Documents on SCO's Privilege Log [PDF], but I'll write about that separately. If anyone could please do a transcript, that would be lovely. If you can, please leave a comment that you are doing it, or whatever part of it you can do, and then send me the results, with a note as to whether you want credit or not, and if so, by handle or name. Thank you.
Finally, the parties have filed a Stipulation Re Scheduling Order [PDF], in which they agree to some grounds rules for discovery post the December 22 deadline. On page three, they have agreed that "neither party", in this case presumably meaning mainly SCO, can use post-Dec. 22 discovery to keep looking for infringing materials. Phew.
Now, getting back to the request for admissions: what is that? Law Dictionary, Second Edition, by Steven H. Gifis, defines it in a civil context like this:
In civil procedure, a request for an admission is a pretrial discovery device by which one party asks another for a positive affirmation or denial of a material fact or allegation at issue.
It's covered by Federal Rules of Civil Procedure, Rule 36. So the parties are presumably starting to narrow the issues, getting ready for trial.
But it's sort of like an airplane. It doesn't just take off in the hangar. First, the mechanics look it over, and put in the fuel, and it's cleaned and supplied. Then passengers and crew board, and then it taxies to the end of the runway waiting its turn, finally it starts taking on speed as it goes down the runway, and finally, it's airborne. We've been stuck in the mechanics-look-it-over part forevah.
Knowing Groklaw, I'm sure there will be an expert who will tell me that isn't the precise order, but it's just an analogy, to help you grasp a complex legal process. There's a difference here though. With an airplane, it's mostly a matter of adding things. With litigation, it's the opposite. The real purpose, or a chief purpose anyway, of discovery is to narrow the issues, to figure out what facts and allegations survive the discovery process. So I take this joint motion as a pleasant reminder that discovery is not eternal and we're moving on.
Here's how Rule 36 reads:
Rule 36. Requests for Admission
(a) Request for Admission.
A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Without leave of court or written stipulation, requests for admission may not be served before the time specified in Rule 26(d).
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing, subject to Rule 29, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
(b) Effect of Admission.
Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provision of Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.
A lawyer on Findlaw explains in plain English in a divorce context how a request for admissions works:
(2) Request for Admissions are points or facts that an opposing party wants you to "admit" but you may "deny" if the request is not true.
Your response of sworn written answers or your response of "admit" or "deny" must be filed with the court no later than thirty (30) days from the date the questions or requests themselves were received by your attorney. ...
You must answer these questions or request for admissions. If you don't, you may be sanctioned by the Judge. This sanctioning could include striking part of your side of the lawsuit or a monetary fine, you and/or your witnesses may not be allowed to testify, you may not be able to bring out certain evidence at trial, or you may lose everything you wanted to accomplish in this lawsuit....
In the case of admissions, if you wanted to deny the request, because it was not true or accurate, but did not do it timely, it will be taken as an admission, or true.
Will you object to these answers or requests for admissions? There may be grounds to object to certain questions or requests for admissions. However, that should not stop you from drafting your answers and responses. When appropriate, your attorney will file objections at the same time your answers or responses are filed with the court.
Here's a blank form [PDF] showing the general idea. And here's a sample form from California, just to give you the idea. And here's a real one from a DOJ case in Iowa.
More on point, here's a recent Utah case, Raiser v. Utah County, No. 04-4019, 6/1/2005, D. Utah, where a pro se party failed to respond to a request for admission within the 30-day limit and came within a hair of losing his chance to present his case entirely, as a result:
Rule 36(a) provides that "[a] party may serve upon any other party a written request for the admission" of the truth of certain matters. If the receiving party fails to respond to the request within 30 days, or within such other time as the court may allow, the matter is deemed admitted. Id.
Once a matter is admitted, it "is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Fed. R. Civ. P. 36(b). The court may permit such withdrawal or amendment "when  the presentation of the merits of the action will be subserved thereby and  the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits."
The appeals court allowed the guy his day in court, mainly because he was only two weeks late, and the other side suffered no prejudice. Fed.R.Civ.P. 36(b) provides that amending admissions should be granted if it would promote presentation of the case on the merits, unless the opposing party shows that it would be prejudiced. In other words, it's hard to lose fundamental rights due to clerical errors, but really, never go to court without a lawyer, if you can help it. You won't know all the procedural rules and you are bound to goof. On the other hand, had this been a law firm instead of a pro se litigant, the court might not have been quite so lenient. The lower courts were not interested in the guy's arguments at all.
Prejudice in this context means that if the other side relies on what it believes it must prove and what it doesn't need to, based on the other party's admissions, if later it all suddenly changes, and the party that admitted something as true, or failed to answer with the same effect, decides to amend the admission and deny the truth of something after all, the other side finds it has to prove things it thought it wasn't going to have to prove. This can leave that party suddenly scrambling to find evidence and witnesses, who may not remember facts any more as clearly as they might have earlier in time. That could be prejudicial, so the court has to weigh such things. Basically, the court tries to be fair and to prevent gamesmanship.
Here's an earlier Utah case, where the court explains all that. Paralegals usually draw up requests for admissions, as you can see from this random resume. If you want to delve deeper, here are the Notes to Rule 36, about changes to it over the years.
What does it mean that the parties in SCO v. IBM want unlimited numbers of request for admissions? That this is a complex case, with loads of documents going back decades in some cases. Neither side wants to have to prove that a document they both know is valid is valid. Unless there is an admission, it will have to be painstakingly proven, fact by fact, document by document. So by having the parties admit to what can be admitted, it reduces what needs to be proven at trial. So the narrowing of the case has begun, and we may get a more normal progression finally.
Of course, as you may have observed, either side can object to a request for admissions, or move to object that the other side didn't admit sufficiently, so there are plenty of opportunities for motion practice fun a la SCO. We're not on the runway yet, so don't get impatient. And some serious lawyering is ahead, on both sides, I'm sure.
Speaking of SCO, it seems they filed something (#566 and 567) and then realized they goofed, so they quickly filed two motions to seal them, which the Court quickly did.
Here's the Pacer information:
566 - Filed: 12/06/2005 Entered: 12/07/2005
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re  MOTION to Compel Discovery filed by Plaintiff SCO Group. (blk, )
567 - Filed:12/06/2005 Entered: 12/07/2005
Memorandum (NOT to motion)
Docket Text: Reply Memorandum in support of  Objections filed by Plaintiff SCO Group. (blk, )
568 -Filed & Entered: 12/07/2005
Motion to Seal
Docket Text: MOTION to Seal re  Reply Memorandum/Reply to Response to Motion filed by Plaintiff SCO Group. (blk, )
569 - Filed & Entered: 12/07/2005
Motion to Seal
Docket Text: MOTION to Seal re  Memorandum (NOT to motion) filed by Plaintiff SCO Group. (blk, )
570 - Filed: 12/07/2005; Entered: 12/09/2005
Stipulation - Docket Text: STIPULATION RE: Scheduling Order by International Business Machines Corporation. (blk, )
571 - 12/08/2005 **SEALED DOCUMENT** IBMs Reply Memorandum in Support of
514 MOTION to Compel production of documents on SCO's privilege log
filed by Defendant International Business Machines Corporation. (blk, )
572 - 12/08/2005 REDACTION to  Sealed Document: IBM's Reply
Memorandum in Support of Motion to Compel Production of Documents on
SCO' Privilege Log by Defendant International Business Machines
Corporation. (blk, ) (Entered: 12/09/2005)
573 - 12/08/2005 **SEALED DOCUMENT** DECLARATION of Todd M. Shaughnessy in
Support of Reply Memorandum in Support of Motion to Compel. RE 572
Redacted Document,  Sealed Document filed by Defendant
International Business Machines Corporation. (blk, ) (Entered: 12/09/2005)
574 - 12/08/2005 STIPULATION & MOTION for entry of order eliminating the
numerical limit on requests for admission contained in the Scheduling
Order entered by Magistrate Judge Nuffer on 6/20/03 filed by Defendant
International Business Machines Corporation. (blk, ) Modified on
12/9/2005 (blk, ). (Entered: 12/09/2005)