Here's SCO's Reply Memorandum in Further Support of SCO's Motion for Leave to File the Declaration of Marc Rochkind [PDF]. Of course, we already know from Friday's hearing that the motion was granted and the declaration will be allowed, although the IBM motion it is responding to hasn't been ruled on yet.
But I think this document is well worth reading, for two reasons: first, it gives us a more detailed look at what SCO probably said at the recent hearing on April 14, because this is the overview, and second, when I read it, I think I have discerned the strategy behind this motion and the odd way it was served. With attorneys, there are usually several tactical levels going on at once. So I'll give you my theory on what I think the subplot was and what SCO may have been trying for, and why it didn't work. Our thanks go to Steve Martin for the HTML.
A Little Background
For context, here's IBM's side, its opposition to SCO's motion [PDF] for leave to file the Marc Rochkind declaration, which was a piggyback motion, responding tactically to IBM's motion to limit SCO's claims. When IBM filed that motion, it said that because SCO had failed to provide sufficient specificity, most of its listed claims should be thrown out. "According to SCO," IBM wrote in its motion, "IBM improperly 'dumped' Unix System V, AIX and Dynix into Linux." IBM said the deadline had come and gone, and SCO still had not provided sufficient specificity to back up its claims. Enough is enough, as IBM put it, and since SCO had refused to cough up sufficient specificity to support the bulk of the items on the list, or even to let IBM know what the claims were so they could defend themselves, SCO's vaguest claims shouldn't be allowed to go forward.
SCO responded with a memorandum in opposition, filed under seal, so it was only at the hearing that we found out what they had said. David Marriott said at the hearing that SCO's position was that it had too provided sufficient specificity. That wasn't what IBM expected, evidently. It would take some gall, frankly, to stand on that dime, given all the blanks on SCO's list of supposedly infringed materials if you are thinking in terms of line by line infringement. At that point, what should IBM do? Lawsuits are not like kiddie playground arguments, "Did not," "Did too," "Did not," etc. You don't want a motion to be he said, he said. If it is, you just might lose your motion. Remember that if the other side can raise just one fact in dispute, your motion will fail. So when IBM filed its Reply Memorandum, it attached an expert's opinion, the Randall Davis Declaration [PDF], stating that in the expert's estimation, SCO had not provided sufficient specificity. At that point, IBM was likely to win the motion, I'd say. And worse from SCO's point of view, it had no further opportunity to speak in the normal course. The motion was fully briefed.
SCO Mails Its Motion
Of course, BS&F are not dummies, unfortunately, so they must have realized the danger and they came up with the idea of filing the motion for leave to answer IBM's expert with one of its own. So far, so good. All fair and square. As I've said many times, litigation is like chess, but with people, so strategy is key and part of the way you are supposed to function.
But notice the next steps, because they are quintessential SCO in my book. They didn't just file a motion like a man, straightforwardly. Remember when SCO wanted to subpoena Intel, how they called and emailed them? With this motion, they didn't call or email IBM to let them know about the motion. SCO served its motion on IBM at the very last possible moment, and they mailed it by snail mail, which is called that for a reason, instead of email, fax or personal service. You'll notice in this filing, they tell what they did in the footnote, after IBM had complained to the court that SCO hadn't sent them the motion and IBM learned about it only from a notice from the court:
As to service, counsel for SCO mailed the motion and declaration from Utah on Monday, so that IBM's counsel would receive the materials in Utah on Tuesday. In similar manner, IBM mailed its reply brief and declarations last week, as well as its opposition brief yesterday, to counsel for SCO.
I'll pretend I don't know they know this, and I'll just explain for them the difference. SCO was filing a motion that IBM had no reason to expect would be filed, on the eve of a hearing on its related motion. SCO knew that IBM would file a Reply Memorandum, because they always happen, and they surely anticipated that IBM would answer their claim of having provided specificity, likely with an expert, because that would be a normal thing to do next. What SCO did was not in the normal course of events. Friday was the hearing, and here is SCO, filing a motion by snail mail on Monday.
They say they mailed it on Monday, so IBM would get it in Utah on Tuesday.
Heh heh. Right. Tell that to your credit card company. Seriously, when was the last time you paid a bill by U.S. mail on a Monday when you wanted it to be there without fail on a Tuesday? Of course, as anyone with a bit of life experience could have predicted, it didn't get there even by Wednesday, when IBM filed its opposition to the motion, after finding out about it not from SCO but from a court notice. That might indicate that SCO not only mailed it on Monday, but really late in the day on Monday. I would love to see the time stamp on the envelope. Anyway, this was my first hint that something was up. I think it's fair to conclude despite SCO's wide-eyed innocent routine that SCO very much didn't want IBM to get adequate notice of their motion.
Here's what I suspect SCO might have been hoping for: that IBM wouldn't get the motion until too late to submit anything on paper in response, or at least wouldn't have time to answer effectively -- no time to research, for example -- so that IBM would enter the hearing at a real disadvantage. Then SCO could try to sweet talk Judge Wells into letting them file the declaration. And here's the crucial piece. In their dreams, I think they might have been hoping they'd get the declaration accepted without IBM getting an opportunity to respond at all. If that had happened, IBM's motion was doomed, because SCO's expert would be raising a brand new issue, regarding methods and concepts, and without a response from IBM, there you go -- a fact in dispute. Just what the doctor ordered to save SCO's neck.
Actually, they don't sweet talk Judge Wells so much as bad mouth IBM and whine about not getting what they need in discovery, but it surely does work sometimes, Wells being so determined to be fair, as if this were a normal lawsuit. And sure enough, their motion is all about that meanie IBM and whining that IBM attached the Randall Davis Declaration with its Reply Memorandum instead of attaching it to the original motion. They do have a point. I wish IBM had submitted it with the motion myself. Perhaps they do too, now. But their explanation that it didn't occur to them they'd need it, given the nature of SCO's lack of specificity also makes perfect sense. It was only when SCO boldly claimed it had provided specificity that they realized they needed an expert to reject that assertion.
So, the whining, to my eyes, was cover, a kind of inverted projection. SCO was accusing IBM of doing what I think SCO was trying for itself. Cynics might say that both sides were using strategy, and no doubt that's true. Lawyers are supposed to strategize. But there's an important difference, which Marriott pointed out when Judge Wells asked him about not filing the Davis Declaration until its Reply. SCO's expert is raising a new issue, methods and concepts, rather than responding directly to Randall Davis' and IBM's assertions of lack of specific lines, files and versions of infringing code by providing some. You are not supposed to bring up a new issue if the other side isn't going to be permitted by the rules to respond. Davis didn't bring up anything new, merely corroborated IBM's position, which SCO could have argued against at the hearing. It's an important distinction.
For that matter, you aren't supposed to wait until discovery is over to bring up your theory of the case. It makes it impossible for the other side to do proper discovery or get their experts to evaluate the right things.
Bringing up methods and concepts at the eleventh hour seems to have taken Judge Wells by surprise, judging from our eyewitness's report of the hearing. She appears to be a simple, good-hearted person, simple in the best sense of the word, an individual who takes people at face value but looks for the good. She reminds me of the scripture that says to be grown-up in your thinking, but childlike about evil. Children take people at face value and they don't expect badness, because they are trusting and inexperienced, which is why parents have to explain about candy from strangers. It's a lovely quality to be uncontaminated by deep knowledge of badness, but it probably doesn't help her to get the full SCO picture, to anticipate SCO's next moves, or to fully see what is going on in her courtroom.
So Wells was surprised, apparently. I hope, frankly, it's a breakthrough moment, much as I hate to see simple, nice folks become complex. I, on the other hand, wasn't surprised at all, having gotten my PhD in SCO long ago, and because outside the courtroom, SCOfolk have made it very clear that in the end, they'd pull this methods and concepts stuff out of their hat and hope it won for them. I think they hope to extend copyright law, actually, in addition to their contract claims about methods and concepts.
Now perhaps you can understand the significance of IBM's Marriott saying at the hearing that IBM wouldn't be harmed by the SCO expert's declaration being filed, so long as IBM had an opportunity to respond. I think he saw the SCO strategy too, and blocked it. Bottom line? Had SCO been successful in getting the declaration of Marc Rochkind accepted without IBM being given a chance to respond, IBM would likely have lost its motion, because then there would have been a material fact in dispute, and no way for IBM to counter with an effective answer.
Well, all's well that ends well, they say. IBM will have its opportunity to answer, and I've no doubt they'll put their all into it. The judge took matters under advisement, and no doubt she'll be waiting for Professor Davis' response before ruling on IBM's motion to limit SCO's claims.
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.,
SCO'S REPLY MEMORANDUM IN
FURTHER SUPPORT OF SCO'S
MOTION FOR LEAVE TO FILE THE
DECLARATION OF MARC
(ORAL ARGUMENT REQUESTED)
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
Plaintiff, The SCO Group, Inc. ("SCO"), respectfully submits this reply memorandum in
further support of SCO's Motion for Leave to File the Declaration of Marc Rochkind in
connection with the motion of Defendant, International Business Machines, Inc. ("IBM"), to
limit the scope of SCO's claims.
IBM's brief in opposition to SCO's Motion serves only to underscore the improper
advantage that IBM sought to secure for itself by waiting until its reply brief to file the
declaration of its purported expert, and the absence of any valid basis on which to object to the
receipt of a responsive declaration from Marc Rochkind.
In its opening brief in support of its motion to limit the scope of SCO's claims, IBM
argued that SCO's December 2005 Report (the "Report") failed to provide adequate specificity
for IBM to address the disclosures in the Report. IBM did not support that argument with any
expert testimony. Considering that omission, and regarding IBM's motion as one that on its face
did not purport to depend on any expert testimony, SCO filed an opposition memorandum that
also did not cite any expert testimony. In its reply brief, IBM made the same argument as in its
opening memorandum — namely, that the Report supposedly failed to provide adequate
specificity — but this time, IBM sought to support that argument with purported expert testimony.
Given that IBM waited until its reply to file an expert declaration, there is no legitimate basis for
an objection by IBM to SCO's filing of a responsive declaration that rebuts the "expert" points
that IBM's purported expert sought to make, for the first time, on reply.
IBM has filed a heated but unavailing opposition memorandum. IBM first says (at 2) that
the only reason it submitted the declaration in reply was "to rebut SCO's assertions (in its
opposition papers) that SCO provided the specificity required by the Court." IBM's assertion
that SCO had not provided requisite specificity was the heart of its initial argument and if it were
going to base that position on expert testimony, IBM should have tendered that testimony with
its initial motion. IBM should hardly be heard to complain about a responsive declaration when
IBM elected to wait to a reply to file supporting expert testimony. Indeed, the federal courts
have criticized such tactics. See, e.g., Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000);
Headrick v. Rockwell Int'l Corp., 24 F.3d 272, 1278 (10th Cir. 1994); see also Polycast Tech.
Corp. v. Uniroyal, Inc., 792 F. Supp. 244, 269 (S.D.N.Y. 1992).
If IBM wanted to try to "substantiate" its arguments about supposed lack of specificity,
the "time for doing so" was in its opening memorandum; there was "absolutely no reason" IBM
could not have — and, indeed, should not have — submitted its purported expert testimony then;
and by definition IBM "should have known" that SCO would oppose the motion with the
argument that the Report does provide sufficient specificity. These points, all ones that IBM
makes in its response, apply to IBM's own filing of its reply declaration.
The argument (at 2) that SCO "should have known IBM would submit a declaration to
rebut any false assertions of compliance" is specious. Why should SCO have made such an
assumption when IBM did not file a declaration in support of its initial brief? IBM further
argues (at 2), referring to its purported expert, that "If SCO believes Professor Davis erred in his
analysis, it can point the Court to the information which IBM contends is missing at the hearing."
The same could be said of IBM. IBM simply cannot have it both ways — either the matter is
appropriate for expert testimony, from both sides, or it is not.
IBM finally argues (at 2-3) that the submission of SCO's expert report will cause "further
delay," and that SCO allegedly failed to serve IBM with the motion and attached declaration.
IBM's own conduct belies the first argument: IBM itself sought and obtained from SCO a two-
week extension to file its reply brief — and, as it turns out (and unbeknownst to SCO when IBM
requested the extension), to prepare and file the purported expert declaration. SCO would have
been within its rights to ask for delay in order to have its expert prepare a responsive declaration,
but did not do so precisely so as to avoid any issue about delaying the proceeding. As for delay
from this point forward, it is curious that IBM believes it is entitled to further time to review and
respond to SCO's expert declaration while at the same time professing that SCO had no such
right regarding IBM's expert declaration. If IBM wanted such an opportunity, it should have
filed its expert declaration with its initial motion.1
At bottom, fairness demands that SCO have the right to have the Court consider its
responsive expert declaration to the declaration that IBM filed only in reply.
SCO respectfully requests, for the foregoing reasons, that the Court grant SCO's Motion
for Leave to File Declaration of Marc Rochkind in connection with IBM's motion to limit the
scope of SCO's claims.
DATED this 13th day of April, 2006.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Stuart H. Singer
Stephen N. Zack
By (signature of Mark James)
Counsel for The SCO Group, Inc.
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the
foregoing Reply Memorandum in Further Support of SCO's Motion for Leave to File
Declaration of Marc Rochkind in connection with the Motion of Defendant, International
Business Machines, Inc. ("IBM"), to limit the scope of SCO's claims was served by facsimile
and first-class mail on Defendant International Business Machines Corporation on the 13th day
of April, 2006, by U.S. Mail to:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
Donald J. Rosenberg, Esq.
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
As to service, counsel for SCO mailed the motion and declaration from Utah on
Monday, so that IBM's counsel would receive the materials in Utah on Tuesday. In similar
manner, IBM mailed its reply brief and declarations last week, as well as its opposition brief
yesterday, to counsel for SCO.