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To read comments to this article, go here
You Guessed It -- SCO Asks Leave to Respond to Davis' Rebuttal
Thursday, May 04 2006 @ 03:17 PM EDT

Do you remember the scene in the movie where the hero is confronted with a bad guy menacingly flashing a sword around and around like a baton-twirler, and the hero just pulls out a gun and shoots him dead?

That was the first thing that came to my mind when I saw SCO had filed a motion to strike [PDF] portions of the Randall Davis Rebuttal Declaration or -- and here we come to the real desire -- for leave to respond!! What else? Many of you predicted they would ask for that, and they have. I think it's a lot of elaborate prancing about for nothing, because IBM ... well, you can finish that sentence for me.

To tell you the truth, I wouldn't mind a bit if they got to respond. The more they have to talk about their empty list, the better I like it, because more details spill out.

The grounds? Well, their Memorandum in Support of Motion to Strike Portions of the Rebuttal Declaration of Randall Davis or for Leave to Respond to the Rebuttal Declaration [PDF] tells us that after SCO's expert, Marc Rochkind, seemed to opine about the law in his declaration -- remember him implying that the judge was wrong and despite her order to do so, he didn't have to provide file, line and version? -- they are shocked, shocked that Mr. Davis included "legal arguments" in his:

Given leave to file a further declaration of Randall Davis in response to the declaration of Marc Rochkind in support of SCO’s opposition to IBM’s motion, IBM has used Davis’s supplemental declaration as an occasion to make many new (and incorrect) arguments, including legal arguments that Davis, a computer scientist, is in no position to make.

As you know, SCO's lawyers are known for scrupulous attention to the rules. What Davis actually said, however, was simply that he was relying on explanations provided to him by IBM's lawyers:

50. I am not a legal expert, and do not pretend to be an authority on the meaning of the term “willfully” for purposes of a court’s deciding whether a party should be limited in submitting evidence in support of its claims. In responding to Mr. Rochkind’s assertion, however, I rely on the definition of the term used in the cases provided by counsel for IBM...

In the Argument section beginning on page 2, SCO claims Davis misinterpreted their contract claims.

Um. Hmm.

If so, might it be because SCO keeps making us all guess what their claims are? You think? And the section ends with their worst worry: that they've been accused of willfully refusing to provide line, file and version. Willful is a very strong word in courtrooms. That's what is really worrying them, and they are absolutely right to worry. So they'd like the court to either strike the parts of Mr. Davis' Rebuttal Declaration they don't like or give them an opportunity to answer.

They condemn "IBM’s efforts to use its motion to obtain a merits determination on the scope of specificity required for actionable technological disclosures of a method or concept or other know-how..."

I think I speak for all of us when I say I believe the entire world would like nothing better than for somebody to finally find some kind of rule that will force SCO to be specific at last.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

SCO'S MOTION TO STRIKE
PORTIONS OF THE REBUTTAL
DECLARATION OF RANDALL
DAVIS OR FOR LEAVE TO
RESPOND TO THE REBUTTAL
DECLARATION

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

1

Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves the Court for an order Striking Portions of the Rebuttal Declaration of Randall Davis or for leave to file a response to the Rebuttal Declaration, regarding the motion of Defendant, IBM, to limit SCO’s claims relating to misused material.

On April 14, 2006, this Court allowed IBM to submit a supplemental declaration from Randall Davis in response to the Declaration of Marc Rochkind. The Court stated that the supplemental declaration should respond only to the Rochkind Declaration, and counsel for IBM confirmed. IBM now has submitted a supplemental, 22-page Davis declaration (much longer than the original Davis declaration and Rochkind Declaration combined) and included numerous new points not addressed in the Rochkind Declaration. These inappropriate arguments, which are identified in the accompanying supporting Memorandum, should be struck and disregarded, or else SCO should be permitted to respond to them.

DATED this 4th day of May, 2006.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By__/s/ Brent O. Hatch____
Counsel for The SCO Group, Inc.

2

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that on this 4th day of May, 2006, a true and correct copy of the foregoing memorandum was served on Defendant, IBM by serving its counsel of record through the CM/ECG system or otherwise by U.S. mail, on the 4th day of May, 2006, to: of April, 2006, by U.S. Mail to:

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Jennifer M. Daniels, Esq.
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

___/s/__Brent O. Hatch_________

3


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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

SCO'S MEMORANDUM IN SUPPORT
OF MOTION TO STRIKE PORTIONS
OF THE REBUTTAL DECLARATION
OF RANDALL DAVIS OR FOR
LEAVE TO RESPOND TO THE
REBUTTAL DECLARATION

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

1

Plaintiff, The SCO Group, Inc. (“SCO”), respectfully submits this memorandum in support of SCO’s Motion to Strike Portions of the Rebuttal Declaration of Randall Davis or for leave to file a response to the Rebuttal Declaration, regarding the motion of Defendant, IBM, to limit SCO’s claims relating to misused material.

Background

Given leave to file a further declaration of Randall Davis in response to the declaration of Marc Rochkind in support of SCO’s opposition to IBM’s motion, IBM has used Davis’s supplemental declaration as an occasion to make many new (and incorrect) arguments, including legal arguments that Davis, a computer scientist, is in no position to make.

After IBM submitted a declaration from Davis with its reply, SCO submitted a responsive Declaration of Marc Rochkind. On April 14, 2006, this Court heard argument on IBM’s motion and allowed IBM to submit a responsive declaration from Davis. The Court said the supplemental declaration should respond only to the Rochkind Declaration, and counsel for IBM confirmed. On April 28, IBM submitted a 22-page Davis declaration (much longer than the original Davis declaration and Rochkind Declaration combined) and included numerous new points not addressed in the Rochkind Declaration. These inappropriate arguments should be struck and disregarded, or else SCO should be permitted to respond to them.

Argument

Davis raises new issues that do not respond to any analysis in the Rochkind Declaration:
A. Davis now offers legal analysis that misinterprets the nature of SCO’s claims for breach of contract and therefore improperly bases his analysis on that misinterpretation (¶¶ 8-9);

2

B. Davis ventures to interpret SCO’s document requests with respect to the nature of information requested from IBM and offer opinions as to how that relates to the instant motion (¶¶ 19, 34);

C. Davis now opines (inappropriately) on the supposed meaning and significance of testimony from a SCO deponent (¶ 33);

D. Davis now purports to analyze earlier orders of this Court, which neither requires or is assisted by Davis’s field of expertise (¶¶ 15-17); 1

E. Davis now purports to substantively evaluate certain individual additional Items from SCO’s December Report (¶¶ 27-28, 30, 36, 45-46); and

F. Relying on new legal cases that IBM failed to cite previously, and to which SCO has never had the opportunity to respond, Davis now reaches a legal conclusion based on SCO’s alleged state of mind that SCO “willfully” failed to provide version, file and line information (¶¶ 50-54, 58).

This declaration is a blatant and improper attempt by IBM to present yet further legal arguments on their discovery sanction motion – arguments that, in fact, underscore IBM’s efforts to use its motion to obtain a merits determination on the scope of specificity required for actionable technological disclosures of a method or concept or other know-how and confirm that Davis and IBM are capable of undertaking such a merits analysis (however improper and incorrect) even as to the very disclosure (Item 146) that they previously featured as supposedly insufficient information for them to evaluate (e.g., ¶ 45). SCO submits that the above portions of the motion

3

should be stricken and disregarded, or else SCO should be permitted to respond to the Davis declaration.

Conclusion

SCO respectfully requests, for the reasons set forth above, that the Court strike the foregoing portions of the Rebuttal Declaration of Randall Davis, or else give SCO leave to file a response to Davis’s declaration.

DATED this 4th day of May, 2006.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By__/s/ Brent O. Hatch____
Counsel for The SCO Group, Inc.


1Davis also seeks to obfuscate the issue by citing earlier orders about IBM’s improper source code contributions to Linux rather than the July 2005 Order requiring SCO "to Identify with Specificity All Allegedly Misused Material." IBM thus now seeks to treat the earlier orders as if this Court had identified evidence that SCO ultimately would have to present to support its claims and theory of damages – a decision this Court plainly did not reach (even putting aside the controlling July 2005 Order). The text of the earlier orders show that they did not relate to improperly disclosed methods and concepts, which were identified with specificity in SCO’s December Report by identifying the very "smoking gun" communication that disclosed the method or concept.

4

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing memorandum was served on Defendant IBM by serving its counsel of record through the CM/ECG system or otherwise by U.S. Mail, on the 4th day of May, 2006, to: of April, 2006, by U.S. Mail to:

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Jennifer M. Daniels, Esq.
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

___/s/__Brent O. Hatch_________

5


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