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To read comments to this article, go here
A Red Hat Teleconference - Judge Asks, What's Taking So Long?
Monday, March 27 2006 @ 11:00 PM EST

Here's the transcript of a January 24 teleconference between the parties in Red Hat v. SCO and Judge Sue Robinson, the judge assigned to the case. If it ever gets off the runway.

To those of you who wondered if it is normal for a lawsuit to take as long as SCO v. IBM has, the answer is no. This is not normal. The proof is in this transcript, where the judge herself remarks on her surprise it is taking so long to get to trial. When she stayed the case, she indicates, she figured it'd be over by now. She calls the pace of the litigation glacially slow, as a matter of fact.

And that's about all she knows about the case. You'll see why Red Hat doesn't much fuss over reports they send her now. This judge doesn't have this case on her front burner. And she doesn't have the file before her.

She doesn't remember how the case got stayed (she stayed it herself sua sponte, meaning it was her own idea), and she doesn't remember if anyone was unhappy about the stay, so she doesn't recall that Red Hat filed a request for her to reconsider and she turned them down a full year and a day later, speaking of glacial. No wonder Red Hat is in no particular rush any more to go before this judge. Of course, if the case was immediately before her, I'm sure Judge Robinson would give it more attention than she is now, but it's still a bit unsettling to read how little this judge is paying attention.

She called the teleconference to ask the parties what is taking so long, and first the SCO attorney dances as fast as he can, telling her how Judge Kimball is holding them tightly to the schedule and malarky like that, not mentioning all the delays SCO has asked for and gotten, and then when she gives Red Hat a chance to express a desire for more speed, Red Hat declines to do so, saying, in effect, having waited two years, they feel a bit differently now than at the beginning when they opposed the stay. After waiting two years, at this point it is easier to let IBM haul the water up the hill on its own broad shoulders. That should make it easy for this judge to get it, even if she never pays close attention.

I'd expect that Red Hat felt in this teleconference the way you would if you called the doctor telling him you were having chest pains and he greeted you when you walked in by saying, "So, I hear you have a problem with a hangnail." It doesn't inspire confidence as to the future.

She ends by telling the parties that if the trial gets put off even one week, she wants someone to tell her, and then she'll ramp it up in Delaware.

If she remembers what she said, they were probably thinking. I long ago concluded that they need more judges in Delaware.

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

IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF DELAWARE

_____________

RED HAT INC.,

Plaintiff,

vs.

THE SCO GROUP,

Defendant

________

CIVIL ACTION

NO. 03-772 (SLR)

_________

Wilmington, Delaware
Tuesday, January 24, 2006
10:05 o'clock, a.m.
*** Telephone Conference

BEFORE: HONORABLE SUE L. ROBINSON, Chief Judge

________

APPEARANCES:

YOUNG CONAWAY STARGATT & TAYLOR, LLP
BY: JOSY W. INGERSOLL, ESQ.

-and-

WILMER CUTLER PICKERING HALE AND DORR
BY: MARK G. MATUSCHAK, ESQ. and
MICHELLE D. MILLER, ESQ.
(Boston, Massachusetts)

Counsel for Plaintiff

Valerie J. Gunning
Official Court Reporter

APPEARANCES (Continued):

MORRIS, NICHOLS, ARSHT & TUNNELL.
BY: JACK B. BLUMENFELD, ESQ.

-and-

BOIES, SCHILLER & FLEXNER
BY: MAURICIO GONZALEZ, ESQ.
(Miami, Florida)

Counsel for Defendant

___________

PROCEEDINGS

(REPORTER'S NOTE: The following telephone telephone conference was held in chambers beginning at 10:05 a. m.)

THE COURT: Good morning, counsel. This is Judge Robinson and Valerie is here as our court reporter. As always, it would be helpful if you identified yourselves by name each time you spoke so that our record is clear.

The reason I -- I wanted to get you all on the line, I've been getting your status reports. It wouldn't appear as though the case is moving very quickly. In fact,

2

glacial might be the name for it. And I think I had put our case here, I had stayed it because I had an expectation that the case out West would be moving more quickly and that it made more sense for us to wait. But I'm getting a little concerned because the case has been around. It's a '03 case and we're now into '06.

So could someone fill me in on what's factually happening out there and whether there's any expectation that you are going to get to trial and a resolution within the next, I don't know, whatever.

When is it scheduled to happen here?

MR. GONZALEZ: Your Honor, this is Mauricio Gonzalez for the SCO Group.

According to the scheduling order that's now in effect, we're scheduled to go to trial in February 2007, and Judge Kimball has been pretty, pretty solid in keeping us to that schedule, so from our point of view, we would expect to go to trial on that date, barring any other unusual occurrences, of course.

THE COURT: All right. And I can't recall, it has been long enough, whether this was a contested stay or whether there's someone who's not particularly happy with the fact this case is moving so slowly.

MR. MATUSCHAK: Your Honor, it's Mark Matuschak for Red Hat.

3

Initially, I think the Court ordered the stay sua sponte and we did it on behalf of Red Hat. As the Court indicated, that was a couple years ago, I believe, had opposed the entry of the stay. You know, we're in a slightly different position I think today since we're two years down the path, waiting for the IBM case to resolve.

MR. GONZALEZ: Did somebody --

MR. MATUSCHAK: No. We're still here.

THE COURT: All right. I guess I just wanted to make sure that you all were confident that this case was going to resolve. I mean, we're still more than a year a from a trial date.

MR. GONZALEZ: Your Honor, Mauricio Gonzalez again.

THE COURT: Yes?

MR. GONZALEZ: Our fact discovery deadline on our claims is this Friday, and then we have a March discovery deadline in the IBM case on defenses to claims. And then the Court contemplates that in July we would have dispositive motions and then again in February would be the trial, and the Court has really, you know, gone out of its way to prevent anything that would delay that schedule, so, again, we've come a long way and I think now that we really have the trial in sight, I think it makes sense to keep things as they've been with the Red Hat case.

4

THE COURT: All right all right. Well, I'm willing to stay the course, but if that trial date gets moved even a week, someone needs to let me know, and I'm going to ramp this thing up because this is an old case that I get to report to Washington because I've got an old case on my docket.

MR. GONZALEZ: Sure.

THE COURT: And that never makes me happy when I've got matters to report that I have no control over.

MR. GONZALEZ: Sure.

THE COURT: All right. All right. Thank you very much for your time, counsel. Good-bye now.

(Counsel respond, "Thank you, your Honor.")

(Telephone conference concluded at 10:12 a.m.)

______________

[Certification of court reporter.]

5


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