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Wells Denies SCO's Motion to Strike
Wednesday, May 10 2006 @ 06:27 PM EDT

Judge Brooke Wells has reached a decision on SCO's Motion to Strike Portions of the Rebuttal Declaration of Randall Davis or for Leave to Respond to the Rebuttal Declaration. Here is her Order [PDF]. She has denied SCO's Motion.

You will recall that at the April 14th hearing IBM was granted the opportunity to respond to SCO's expert, Marc Rochkind. SCO then filed its motion, asking to be able to respond to IBM's rebuttal declaration by Dr. Randall Davis. Judge Wells had told them at the hearing that after IBM's response, that would be the last chapter, but SCO, of course, tried anyway.

There is a good reason why courts make transcripts of oral argument at hearings. It keeps people honest.

In SCO's Memorandum in Support of its Motion to Strike, it said the following:

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.

Well, not exactly. Here's what happened at the hearing:

THE COURT: All right. What I am going to allow be submitted -- and, Mr. Marriott, I will allow you to submit a supplemental or a responsive declaration on behalf of Dr. Davis. How long will it take to do that?

MR. MARRIOTT: I'll need to check with him, Your Honor. Is ten days agreeable to the Court?

THE COURT: Ten days would be fine. Now, what effect does that have on the remainder of today's motion?

MR. MARRIOTT: In my mind, it has none, Your Honor, because, as I say, I don't think the declaration, taken as true, has any bearing on this motion.

THE COURT: All right.

MR. MARRIOTT: And I'll explain why.

THE COURT: And, Mr. Singer, I'm going to allow them to respond to that, but that's where it's going to be cut off.

MR. SINGER: I understand the Court's ruling, Your Honor. And the only thing I would ask is -- we haven't seen what's going to be said, and if there's new issues raised, we would hope the Court would entertain, at that time --

THE COURT: Well, I'm assuming that they will limit it, in proper surrebuttal fashion, to those issues raised or addressed in your submission. I don't anticipate that that will be an issue, and so, therefore, I'm going to leave it as stated. They will respond, and that will be it.

MR. SINGER: We understand, Your Honor. Thank you.

MR. MARRIOTT: Thank you.

Unless Mr. Singer saying, "We understand," is a confirmation by IBM, I'd say it was SCO that confirmed that it was not to try to respond to Dr. Davis, no matter what. In a nice touch, Judge Wells reminds SCO that at that same April 14th hearing, SCO raised the issue of responding, and it was told that it wouldn't happen:

During the hearing on April 14 this court explicitly told counsel for SCO that it was going to allow IBM an opportunity to respond. But, "that's where it's going to be cut off."

SCO, in other words, complained to her that IBM went beyond what the court said it could do. Well, she replies, in effect, even if that were true, you're doing the same thing, and she'd like to end it right here, right now. She's perfectly capable of filtering out anything inappropriate in a filing, and if she has questions, she will ask.

She thinks that will be the end of it. We'll see.

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

IN THE UNITED STATES DISTRICT COURT

CENTRAL DIVISION, DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim
Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES
CORP.

Defendant/Counterclaim
Plaintiff.

Case No. 2:03cv00294 DAK

ORDER DENYING SCO's MOTION
TO STRIKE

JUDGE DALE A. KIMBALL

MAGISTRATE JUDGE BROOKE C.
WELLS

On April 14, 2006, this court heard oral argument on IBM's Motion to Limit SCO's claims. During the hearing SCO also sought leave to file the Declaration of Marc Rochkind. The court granted SCO's motion and out of a sense of fairness permitted IBM's expert, Randall Davis, an opportunity to respond. Now in an apparent attempt to escalate the expert wars, SCO seeks to either strike Mr. Davis' rebuttal declaration, or in the alternative, be afforded an opportunity to respond to Mr. Davis latest declaration.1

During the hearing on April 14 this court explicitly told counsel for SCO that it was going to allow IBM an opportunity to respond. But, "that's where it's going to be cut off." Counsel

for SCO represented to the court that he understood the court's ruling but, hoped the court would entertain an opportunity to respond if new issues were raised in the rebuttal declaration. While the court appreciates SCO's concern regarding the alleged inclusion of inappropriate issues into the Davis' declaration, the court is fully capable of parsing out those items that are inappropriately included. Moreover, the court foresees that if it were to grant SCO's motion then doubtless, IBM would need an opportunity to respond followed by SCO requesting another opportunity etc. etc. etc. If the court decides it does need further clarification of the current issues concerning IBM's Motion to Limit SCO's claims it will request such clarification from the parties.

Accordingly, SCO's motion is DENIED.

DATED this 10th day of May, 2006.

BY THE COURT:

____[signature]_______
BROOKE C. WELLS
United States Magistrate Judge


1 See Motion, docket no. 676.

2


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