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SCO Responds to IBM Motion for Expedited Briefing/Hearing
Monday, June 12 2006 @ 09:55 PM EDT

SCO has moved a knight in this experts reports chess game they are playing with IBM, a complicated knight move, and they stay completely in character. They have filed a Memorandum in Response to IBM's Request for Expedited Briefing and Hearing [PDF]. Our thanks to Steve Martin for the text and HTML.

Both IBM's Request for Expedited Briefing and Hearing and their Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final Disclosures are here. SCO discusses both. IBM, in its Request for Expedited Briefing and Hearing, asked to speed things up, so SCO cunningly says, fine with us. Give us ten days and then give IBM only three.

Sounds fair to them.

I'll explain what I think is going on, and why I smiled when I saw that suggestion. It's a little bit complex, involving the local rules of the court, but I'll try to make it clear.

SCO's proposed schedule would, as the memorandum says, "leave the motion fully briefed a week before IBM's outside request of an expedited hearing date of June 30, 2006." Normally the local rules require that motions be fully briefed only two days before a motion is heard, not a week:

(b) Filing Time Requirements.

Unless otherwise directed by the court, all documents pertaining to a court proceeding must be filed with the clerk a minimum of two (2) business days before the scheduled proceeding.

So, to SCO it seems a wonderful idea to cut IBM down to only three days, followed by a week of dead air, instead of granting IBM more days to respond. They are also counting time, by my reckoning, not by when IBM served the motion, June 8, but rather they seem to be beginning their count on June 9, the day they tell the court they received it, because if I count ten days from June 8, I don't reach the date SCO is setting for their response, June 19. But motions are counted from when they are served, not when they are received. So, as far as I can make out, they are trying for an extra day, saying they will get 10 but really getting 11. Like I say, I find it all hilarious. They really must be trying to win the Meanest Law Firm in the World award. They would like as much time as possible and they want IBM to have the least possible.

SCO also claims that IBM's Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final Disclosures, is a dispositive motion, in that they claim it will "dismiss one of SCO's claims regarding copyright infringement." Very clever, except -- as they fervently told Judge Kimball once -- they don't have a copyright infringement claim in the litigation yet, except for the one about AIX distribution after the "termination" of IBM's license, unless the judge allows a new one in. (The normal procedure for adding a claim is to petition the court for leave to amend your complaint.) That is precisely what IBM is disputing, SCO's right to add new claims through the back door via their experts, after discovery is over. If this was all planned out by SCO long ago to give IBM the least possible amount of time to respond, they probably have their response written already. Meanwhile, SCO pretends to be cooperating, while giving IBM only three days to respond to what SCO claims is a dispositive motion.

By labeling it a dispositive motion, SCO gets to be clever with the math. SCO says that with dispositive motions, they normally get thirty days, according to local rules. It's true that on a motion for summary judgment, you do get 30 days:

b) Length and Fact Statement of Summary Judgment Memoranda; Filing Times.

A motion for summary judgment and the supporting memorandum must clearly identify itself in the case caption and introduction. The memorandum in support of a motion for summary judgment must begin with a section that contains a concise statement of material facts as to which movant contends no genuine issue exists. The facts must be numbered and refer with particularity to those portions of the record on which movant relies. Memoranda supporting or opposing a motion for summary judgment must not exceed twenty-five (25) pages in length, exclusive of face sheet, table of contents, statements of issues and facts, and exhibits. A memorandum opposing a motion for summary judgment must be filed within thirty (30) days after service of the motion or within such extended time as allowed by the court. A reply memorandum to such opposing memorandum may be filed at the discretion of the movant within ten (10) days after service of the opposing memorandum. A reply memorandum must be limited to rebuttal of matters raised in the opposing memorandum and must not exceed ten (10) pages. No additional memoranda will be considered without leave of court.

The problem with this argument is that IBM didn't file a summary judgment motion. If you look at IBM's motion, you will see that it was not a summary judgment motion, wasn't identified or composed as one, and so far as I know, it's too soon to file one. I expect SCO will be arguing exactly that when they do file their memorandum in opposition. They will likely also claim it is deficient as a summary judgment motion and thus should be denied, and because IBM didn't compose it as a summary judgment motion or intend it to be one, that wouldn't be surprising. It could only be a motion for summary judgment, so far as I know, if IBM was talking about a claim already in play, not one merely impliedly proposed to enter through the back door for the first time by means of expert reports. That motion is about whether or not SCO should be allowed to enter these claims or whether it's a violation of the scheduling order. A motion about that wouldn't, to my mind, be a summary judgment issue. Just so convoluted. Of course, we haven't seen the experts reports so it's hard to be completely sure of what all is happening, but I see enough to be smiling at the parts I can see.

On a normal motion, you don't get 30 days. Here's what you normally get:

A memorandum opposing a motion must be filed within fifteen (15) days after service of the motion or within such extended time as allowed by the court. A reply memorandum may be filed at the discretion of the movant within seven (7) days after service of the memorandum opposing the motion.

So, let's do the math. Normally SCO would have 15 days to respond to IBM's motion, and then IBM would have seven to respond. If it were a dispositive motion, SCO'd get 30 days and IBM would have ten. SCO is now offering to cut their time down to 10 days (or 11), which is plenty of time, and give IBM 3. Three days is not sufficient, in my view, most particularly if it were a dispositive motion. And then both sides, according to SCO's lopsided scheduling, would sit around doing nothing but twiddling thumbs for a week, with the hearing on the 30th:

Accordingly, SCO respectfully submits that, rather than affording SCO thirty days to respond to IBM's motion (the number of days allowed by the Court's rules for opposing a dispositive motion), the Court enter an Order affording SCO ten days (until June 19) to oppose the motion and IBM three days (until June 22) to file a reply, which would leave the motion fully briefed a week before IBM's outside request of an expedited hearing date of June 30, 2006.

So as I see it, SCO is pretending to cut itself back from 30 all the way back to only 10, ha ha. But really it's only 15 to ten. Or 11. Meanwhile, they are cutting IBM from 10 all the way back to 3 (or 7 to 3). No matter how you slice and dice it, it's hardly fair. I enjoy, I must say, watching this chess game. Ultimately nothing the lawyers do can save SCO, in my view. But they are giving it their all. The underlying theme is a little sad. I gather they know they can't win without tricks. I think they should know by now they can't win, period. And I expect we'll be hearing from IBM plenty on all this.

By calling it a dispositive motion, SCO is indicating to the court that only Judge Kimball can decide this motion. Magistrate Judges, by the rules, can't normally rule on dispositive motions. Evidently SCO believes it will have better luck with him getting new claims into the litigation this way. They must think Judge Wells is not likely to be as easily bypassed. I think they underestimate Judge Kimball but I agree he is less likely to be absolutely furious at them for this latest gambit.

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

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

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

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

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

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
RESPONSE TO IBM'S REQUEST FOR
EXPEDITED BRIEFING AND
HEARING

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

Plaintiff, The SCO Group, Inc. ("SCO"), respectfully submits this memorandum in response to the Request for Expedited Briefing and Hearing filed by Defendant, International Business Machines Corporation ("IBM"), on June 8, 2006.

IBM seeks expedited briefing on its motion (filed on June 8 and received by SCO on June

1

9) asking at least that the Court strike certain portions of three of SCO's expert reports and in effect dismiss one of SCO's claims relating to IBM's alleged copyright infringement. However styled, the motion is a dispositive one. In addition, SCO agrees that expedited resolution of the issues raised in IBM's motion is appropriate at this stage of the litigation, and therefore does not oppose IBM's request for expedited briefing. With respect to IBM's request for expedition, to clarify the current schedule, the Court is advised that one day before IBM filed its motion, SCO agreed to IBM's request for a 30-day extension to file responsive expert reports.

Accordingly, SCO respectfully submits that, rather than affording SCO thirty days to respond to IBM's motion (the number of days allowed by the Court's rules for opposing a dispositive motion), the Court enter an Order affording SCO ten days (until June 19) to oppose the motion and IBM three days (until June 22) to file a reply, which would leave the motion fully briefed a week before IBM's outside request of an expedited hearing date of June 30, 2006.

DATED this 12th day of June, 2006

By: /s/ Brent O. Hatch

HATCH JAMES & DODGE
Brent O. Hatch
Mark F. James

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

Attorneys for Plaintiff

2

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Memorandum in Response to IBM's Request for Expedited Briefing and Hearing was served on Defendant International Business Machines Corporation on the 12th day of June, 2005, by CM/ECF to the following:

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

Donald J. Rosenberg, Esq.
[address]

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

/s/ Brent O. Hatch

3


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