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To read comments to this article, go here
SCO's Latest Letter to the Red Hat Judge, as text - Updated: RH's too
Thursday, July 06 2006 @ 10:09 PM EDT

Here you go, SCO's latest creative writing exercise, its regular 90-day progress letter to the Red Hat judge [PDF]. It leaves out all pertinent details about Judge Brooke Wells' recent withering Order, merely stating that IBM's motion to limit SCO's claims was granted in part. The judge certainly won't have a clue that SCO just suffered a significant setback, unless she reads it in the funny papers. SCO doesn't let the judge know which part was granted and which was not. Nor does it connect the dots for her regarding the implications of that Order to the filed experts' reports. (By the way, there is a corrected Order [PDF] on Pacer, correcting a typo in the original.)

But what this letter does do is give us a new piece of information. SCO has filed its Answer to SUSE's Request for Arbitration with the International Chamber of Commerce International Court of Arbitration in Paris as of June 27.

Ah! to be in Paris, and a fly on *that* wall!

Update: Red Hat's is available too, and it follows the text of SCO's letter. The Red Hat letter just prior to this one is here, if you like to follow the narrative closely.

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

[Morris, Nichols, Arsht & Tunnell letterhead]

LESLIE A. POLIZOTI
[phone, Fax, email]

July 5, 2006

BY ELECTRONIC FILING

The Honorable Sue L. Robinson, Chief Judge
United States District Court
[address]

Re: Red Hat, Inc. v. The SCO Group, Inc., C.A. No. 03-772-SLR

Dear Chief Judge Robinson:

Pursuant to this Court's April 6, 2004 Order, SCO respectfully submits this ninety-day status report to apprise the Court of events occurring since our last update (on April 3, 2006) in SCO v. IBM, Case No. 2:03CV294 (DAK), which is pending before the Honorable Dale A. Kimball in the United States District Court for the District of Utah.

IBM's Discovery Motion

On June 28, 2006, after full briefing and oral argument on IBM's motion to limit SCO's claims related to allegedly misused material, the Court granted the motion in part.

On May 19, 2006, the parties served their respective expert reports. On June 8, IBM filed a Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final Disclosures, arguing that SCO's reports identified allegedly misused material not identified in SCO's Final Disclosures. In its opposition brief filed on June 19, SCO countered that its Final Disclosures fully complied with the Court's orders and its expert reports properly set forth evidence and analysis without expanding the scope of the case. IBM filed its reply brief on June 26, but the Court has not set a hearing date for this motion.

SCO v. Novell Case

On April 10, 2006, Novell filed its Answer and Counterclaims to SCO's Second Amended Complaint, restating its counterclaim with changes. SCO filed its reply to the restated counterclaims on May 1, 2006.

1

The Honorable Sue L. Robinson
July 5, 2006
Page 2

On April 10, Novell also filed its Motion for a More Definite Statement of SCO's Unfair Competition Cause of Action, arguing that SCO must identify the specific unfair-competition laws that Novell has allegedly violated. In its opposition filed on May 26, SCO argued that its unfair-competition claim meets the pleading requirements of the Federal Rules, which also do not require that SCO specify statutory provisions or advance a legal theory for its claim.

On April 10, Novell also filed a Motion to Stay Claims Raising Issues Subject to Arbitration. Novell argued that SCO's claims are arbitrable pursuant to certain 2002 UnitedLinux contracts among SCO, SuSE (a wholly owned subsidiary of Novell since 2004), and other Linux distributors. In its opposition filed on May 26, SCO argued that Novell had waived any right to a stay because (among other things) it had twice moved to dismiss SCO's original claim, obtained almost all discovery from SCO on the claims and defenses at issue, expanded the scope of the case by introducing seven counterclaims, and answered SCO's Second Amended Complaint. SCO also argued that its claims are not arbitrable and that, in any event, the Court should deny the motion because even the allegedly arbitrable issues could preclude only a small portion of some of SCO's claims. Novell filed its reply memorandum on June 19, and the Court has scheduled a hearing for July 17.

On April 10, 2006, SuSE filed a Request for Arbitration with the International Chamber of Commerce International Court of Arbitration in Paris. On June 27, 2006, SCO submitted its Answer to that Request.

Respectfully,

/s/ Leslie A. Polizoti

Leslie A. Polizoti (#4299)

cc: Peter T. Dalleo, Clerk (By Hand)
Josy W. Ingersoll, Esquire (By Hand)
William F. Lee, Esquire (By Fax)
Edward Normand, Esquire (By Fax)
Mauricio A. Gonzalez, Esquire (By Fax)


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

YOUNG CONAWAY STARGATT & TAYLOR, LLP

[address and phone numbers]

June 26, 2006

BY E-FILE

The Honorable Sue L. Robinson
United States District Court
[address]

Re: Red Hat, Inc. v. SCO Group, Inc.
Civil Action No. 03-772-SLR

Dear Chief Judge Robinson:

Pursuant to the Court's April 6, 2004 Order requesting a quarterly report on the status of various related litigation matters, Red Hat, Inc. ("Red Hat") submits this letter as an update to its previous letter, dated March 27, 2006. Although Red Hat is not a party to these other related cases, Red Hat offers the following summary based upon publicly available information.

1. SCO Group, Inc v. International Business Machines Corp.

On April 4, 2006, IBM submitted its reply brief in support of its motion to limit SCO's claims relating to allegedly misused material. The court heard arguments on this motion on April 14, 2006 and took the motion under advisement.

In connection with the same disclosures of allegedly misused material, IBM filed a motion to confine SCO's claims to, and strike allegations in excess of, the final disclosures made by SCO on June 8, 2006, arguing that SCO has attempted to increase the scope of its claims by identifying additional allegedly misused material through its expert reports. SCO, in its opposition brief filed on June 19, 2006, argued that its disclosures fully complied with the court's scheduling order and that its expert reports are consistent with what the court has required.

By an order dated June 2, 2006, the court also extended the time to complete discovery to August 4, 2006.

2. SCO Group, Inc. v. AutoZone. Inc.

Since the filing of our last letter to the Court, no significant activity has occurred in this case.

YOUNG CONAWAY STARGATT & TAYLOR, LLP
The Honorable Sue L. Robinson
June 26, 2006
Page 2

3. SCO v. Novell, Inc.

On April 10, 2006, Novell submitted its answer to SCO's second amended complaint, which included a restatement of its counterclaims that were previously pled on July 29, 2005. SCO answered these counterclaims on May 1, 2006.

On the same date, Novell submitted two motions: (1) a motion to stay claims raising issues subject to arbritration; and (2) a motion for a more definite statement of SCO's unfair competition cause of action. Novell's motion to stay seeks to stay five of the claims asserted in SCO's second amended complaint. Novell asserts that four of these claims are subject to arbitration pursuant to the "UnitedLinux" contracts signed by SCO in May 2002 and that the fifth claim should be stayed becausae it is contingent on the prior four. SCO opposes this motion on the grounds that Novell has waived any right to the requested stay, the claims at issue are not within the purview of the arbitration clause, and non-arbitrable claims should not be stayed pending litigation.

Novell's motion for a more definite statement of SCO's unfair competition cause of action essentially asks SCO to identify the unfair competition laws that it accuses Novell of violating. SCO's opposition argues that a more definite statement is not warranted on the basis that it is not required under the Federal Rules of Civil Procedure to specify statutory provisions or advance a particular legal theory and that it has met the pleading requirements under Fed. R. Civ. P. 8(a).

Respectfully submitted,
[signature of Josy Ingersoll]
Josy W. Ingersoll (No. 1088)

JWI:cg

cc: Clerk of the Court (by CM/ECF and hand delivery)
Mark G. Matuschak, Esquire (by e-mail)
Michelle D. Miller, Esquire (by e-mail)
Stephen N. Zack, Esquire (by e-mail)
Jack B. Blumenfeld, Esquire (by e-mail and e-filing)

2


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