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To read comments to this article, go here
SCO's "BiPolar" Objections
Friday, July 21 2006 @ 02:30 PM EDT

I had a friend years ago. Not a really close friend, but a friend. She was one of the nicest people in the world, with a great sense of humor and just a lot of fun. Until she went off her meds, which she did periodically because she didn't like the way they made her feel. When off the necessary lithium, she would tell people horrible things about her husband, which we all believed. At first. She never had any proof, but we were all friends, right? You believe a friend. And she was so incredibly upset about his alleged infidelity and various other things that I naturally felt for her. She was so convincing in her indignation and hurt.

After a while, though, I began to notice a few details that weren't matching up with what I could see with my own eyes. She went to counseling, and I noticed from her stories and complaints that the counsel she got never seemed to support her side, much to her distress. She then began to tell some wild stories about the counselor too. That's when I started to really wonder. When I began to express doubts about a detail here or there, basically trying to help her get in tune with the counsel I realized by now she was being given, thinking maybe that was the best help I could give instead of reinforcing her unwillingness to accept it, she began telling the neighbors how awful I was.

It's sad but true that it wasn't until she began telling whoppers about me that I realized she had been telling whoppers about her husband, who in the end not only turned out to be nearly a saint but who took her back after she ran off for a while and treated her with real fellow feeling and love.

I thought of her today, when I started getting emails about a story SCO is now telling about allegedly destroyed evidence, told by the same "reporter" who told us in 2004, if you recall, that SCO had this hot, hot claim about Project Monterey and how SCO was going to trim IBM's sails for using SYSV4 on Power. Remember all that? I told you when the story first broke that it was going nowhere.

Well, you know how it turned out. It went nowhere. It was just a wild and untrue story that maybe helped the stock to shoot up, I can't recall, but the court didn't buy it. It was not a hot, hot new claim. It was a dud. Just like I told you. Does Forbes ever get anything right when it comes to SCO or Linux or Open Source?

By the way, when SCO tried to tell this same new story about destroyed evidence to the judge at the last hearing, she told them the matter wasn't properly before her and SCO's lawyer, Stuart Singer, said SCO would respect that:

THE COURT: That may or may not be true, but that isn't before me today.

MR. SINGER: Well, Your Honor, we think it relates --

THE COURT: That issue is not before me. The question is whether SCO is in compliance with the Court orders and whether or not it was a willful withholding, etc. So, I would prefer not to go into issues that are not before the Court.

MR. SINGER: Your Honor, we will respect that and move on to a subsequent issue. We think that it relates to the overall environment in which the motion is made.

That was then. This is now. To criticize her now for not handling a matter not properly before her is pretty low. Kind of reminds me of my friend talking against her counselor. Why bring up such scurrilous stuff in a forum where it isn't proper? I don't know, but could it have to do with the peanut gallery? Say, how's that stock doing today? I need to take a look near the end of the day and then again tomorrow. And when does SCO finally get it that the problem is not the court, not Linux, not IBM, not Groklaw ... that the problem is within?

You'd think SCO was already facing enough Lanham Act charges, for accusing IBM in public of things it seems unable to prove. They may be relying on the fact that you can't usually be sued for libel if you say something in court filings. But there is a limit to that, as I understand it. I recall reading about a case where the lawyers sent the court filings to the media, and that was enough to lose the protection. Here SCO's lawyer is giving interviews. It seems reckless to me.

Of course, if we believe SCO is making things up, in a bipolar, desperate kind of way, perhaps some patience is in order (I know. I'm just kidding), but this unsupported charge, which SCO said at the hearing IBM had said it didn't believe was true, comes from... well, shall we just say that one is wise not to listen to little boys who have cried wolf once too often? Remember the mountain of code IBM had allegedly put into Linux that Darl McBride said they'd already discovered, had in hand, and didn't even need to do discovery over? Where is it? What happened to that mountain? No. Really. Where is it? Did it melt? Or crash into the sea? Did SCO talk about that missing mountain in Appendix A [PDF]? I must have missed it, if it did.

As for all the rest of the yowls of pain from SCO in its Redacted Objections (somehow the wildest and most outrageous claims about IBM always seem to be the ones SCO wants to get out there), I'll spell it out as clearly as I can. The issue is and was simply this: did SCO comply with the court's orders by the deadline? That's it. The court ruled that in certain items it didn't and in others it did. End of story. All the rest is just so much pixie dust. Or perhaps I should call it PIPE Fairy dust?

I've collected some material that will help you to understand the legal maneurvering going on. First of all, you may have noticed on page 3 of SCO's Redacted Objections, that they are asking for a de novo review:

SCO sets forth in detail below the relevant background to the Order and then a detailed analysis of each of the foregoing points. SCO makes its objections under Fed. R. Civ. P. 72(b) and seeks a de novo review of the Magistrate Judge's ruling because, as IBM's motion requested, the Magistrate Judge dismissed many claims, which clearly has the effect of a dispositive ruling in this litigation.

This is one of those times when it's a matter of defining one's terms. Technically, the judge didn't dismiss any claims, unless they were claims already in the case, something I haven't seen SCO prove, and IBM's position was that SCO is trying to introduce new claims through the back door. It all looks to me, too, like stuff they would now like to add at the 11th hour that they certainly could have added to the case, with evidence, if they had done it in time. But this was about sanctions for not obeying orders. Wells clearly stated in her Order that it was not a decision regarding the merits. Judge Wells presented her statutory authority to sanction for violating three orders of the court. I guess SCO would like a judicial universe where you can play tricks and get away with it.

So you can get the subtlety of what SCO is trying for, here is FRCP 72b:

Rule 72. Magistrate Judges; Pretrial Orders
(a) Nondispositive Matters.

A magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred to hear and determine shall promptly conduct such proceedings as are required and when appropriate enter into the record a written order setting forth the disposition of the matter. Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made. The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.

(b) Dispositive Motions and Prisoner Petitions.

A magistrate judge assigned without consent of the parties to hear a pretrial matter dispositive of a claim or defense of a party or a prisoner petition challenging the conditions of confinement shall promptly conduct such proceedings as are required. A record shall be made of all evidentiary proceedings before the magistrate judge, and a record may be made of such other proceedings as the magistrate judge deems necessary. The magistrate judge shall enter into the record a recommendation for disposition of the matter, including proposed findings of fact when appropriate. The clerk shall forthwith mail copies to all parties.

A party objecting to the recommended disposition of the matter shall promptly arrange for the transcription of the record, or portions of it as all parties may agree upon or the magistrate judge deems sufficient, unless the district judge otherwise directs. Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 10 days after being served with a copy thereof. The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

SCO is arguing that the court should follow the second process for dispositive matters. Here's a snip of a ruling in another case that explains de novo review, and why SCO wants it to be that way:

We are not wedded to the lower court's rationale but may affirm the order of dismissal on any ground made manifest by the record. See Gabriel v. Preble, 396 F.3d 10, 12 (1st Cir. 2005).

A bit more on the why:

[1] Once a pretrial matter is referred to a magistrate and an appeal is taken from a ruling by that magistrate, the subject matter of that ruling is to be categorized under Fed.R.Civ.P. 72 as either "dispositive" or "nondispositive" for purposes of the standard of review to be exercised by the district judge. If the motion at issue is nondispositive then a district court is to disturb the magistrate's order only if it is shown that the ruling is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). If, on the other hand, the motion ruled upon is found to be dispositive, then the district court is to conduct a de novo review of that decision. Fed.R.Civ.P. 72(b).

Get it now? SCO hates the Order, because it's curtains for them, essentially, in my view anyway, if the Order stands. If it is a nondispositive ruling, then Kimball can only overturn it on the grounds that it is "clearly erroneous or contrary to law." In my opinion it is neither. I think SCO thinks that too, so they are trying for dispositive, so Kimball can listen to the evidence and decide on his own, starting fresh, without having to give any credence at all to Wells' Order. That is what this tempest in a teapot is about. Here's what else SCO wants, and can get if the Order is ruled dispositive:

(b) Objections to Magistrate Judge’s Orders, Reports, and Recommendations.

(1) Nondispositive Matter - 28 U.S.C. § 636 (b)(1)(A). When a pretrial matter not dispositive of a claim or defense of a party is referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A), the magistrate judge shall conduct such proceedings as are required and when appropriate enter a written order setting forth its ruling on the matter.

A party shall serve and file any objections to such order within ten (10) days after being served with a copy of the magistrate judge’s order, unless a different time period is set by the magistrate or district judge. A party waives his or her right to assign as error any defect in the magistrate judge’s order to which a timely objection has not been filed. A party may respond to another party’s objections within ten (10) days after being served with a copy thereof. The district court to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the order found to be clearly erroneous or contrary to law. The district court may also consider sua sponte any order found to be clearly erroneous or contrary to law. [Fed. R. Civ. P. 72(a)].

(2) Dispositive Matters - 28 U.S.C. § 636(b)(1)(B). When a pretrial matter dispositive of a claim or defense of a party, a post-trial motion for attorney fees, or a prisoner petition is referred to a magistrate judge without consent of the parties pursuant to 28 U.S.C. § 636(b)(1)(B), the magistrate judge shall conduct such proceedings as required. The magistrate judge shall enter a recommendation for disposition of the matter, including proposed findings of fact when appropriate.

A party objecting to the recommended disposition of the matter shall serve and file specific, written objections to the proposed findings and recommendations within ten (10) days after being served with a copy of the magistrate judge’s report and recommendation. A party may respond to another party’s objections within ten (10) days after being served with a copy thereof. The district judge to whom the case is assigned shall make a de novo determination of any portion of the magistrate judge’s recommended disposition to which specific objection has been made. The district court may also consider sua sponte any portion of the proposed disposition. The district judge may accept, reject, or modify the recommended disposition, receive further evidence, or recommit the matter to the magistrate judge with directions.

That's why SCO says the judge should have done Findings and all that blah blah. But here's the problem SCO faces with FRCP 72(a). The orders it has been found disobeying... well, they failed to object, and here's the problem now for them:

Fed.R.Civ.P. 72(a) provides that a party who fails to file a written objection to a magistrate judge's nondispositive order within ten days of receiving a copy "may not thereafter assign as error a defect" in the order. 28 U.S.C. § 636(b)(1) provides that any party "may serve and file written objections to such proposed findings and recommendations as provided by rules of court" within ten days of receiving a copy of the order. Several courts have held that a party must comply with this statutory provision in order to preserve a claim of error. See, e.g., Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir. 1997)("[i]n this circuit, as in others, a party 'may' file objections within ten days or he may not, as he chooses, but he 'shall' do so if he wishes further consideration."). When Fed.R.Civ.P. 72(a) or 28 U.S.C. § 636(b)(1) is operative, its requirement must be satisfied in order for a party to preserve a claim of error on appeal, even where Evidence Rule 103(a) would not require a subsequent objection or offer of proof.

It's simply too late for SCO to object to the three earlier orders, so all they can do, other than give up, is to claim that this was a dispositive motion and we all need to drag this SCO agony out a little longer before they wave the white flag, or have it waved for them. All the rhetoric is about trying to convince Kimball and the public that they are still in the game, that they still have a case, when I think they have to know by now that in a truly just and decent world, this case would never have been brought in the first place. And it's to preserve the matter for appeal.

Groan. They probably will drag us through that too. This is, after all, a case not founded in reality, as best as I can make out. If I'm right, could somebody please hand SCO some lithium before it destroys itself? This is getting painful to watch.


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