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Latest (Sealed) Filing by IBM - Memo in Opp. to SCO's Objections
Tuesday, August 15 2006 @ 11:26 AM EDT

As many of you know, yesterday was the deadline for IBM to file its response to SCO's Objections to Judge Brooke Wells' most recent Order, the one that tossed overboard most of SCO's claims regarding allegedly infringing materals, mainly the ones about methods and concepts.

Whatever they are.

IBM met the deadline, but it filed its Memorandum in Opposition to Magistrate Judge Wells' Order of June 28, 2006 and a Declaration of Todd M. Shaughnessy conventionally (too long), and it's all sealed, as was SCO's. So we'll have to wait in hopes of a redacted version. We already have SCO's redacted Objections.

Here are the docket entries from yesterday, and you'll see that there is also another SCO request to drop an attorney [PDF] from its side, Dan Filor, who is leaving Boise Schiller. This is the third such request that I can recall. Who wouldn't want to leave, after he attended the last hearing, the first time we'd seen him in the case, which is the hearing that resulted in the Order SCO is now objecting to? The request, however, doesn't tell us why he is leaving, just that he's making his exit:

733 - Filed & Entered:   08/14/2006
Motion to Withdraw as Attorney
Docket Text: Plaintiff's MOTION to Withdraw as Attorney Dan Filor filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # (1) Text of Proposed Order)(Hatch, Brent)

734 - Filed & Entered:   08/14/2006
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of IBM's Memorandum in Opposition to SCO's Objections to Magistrate Judge Wells' Order of June 28, 2006 and the Declaration of Todd M. Shaughnessy filed by Defendant International Business Machines Corporation (Sorenson, Amy)

735 - Filed & Entered:   08/14/2006
Motion for Leave to File Excess Pages
Docket Text: Ex Parte (Not Sealed) MOTION for Leave to File Excess Pages in Opposition to SCO's Objections to Magistrate Judge Wells' Order of June 28, 2006 filed by Defendant International Business Machines Corporation. (Attachments: # (1) Text of Proposed Order Granting Motion for Leave to File Overlength Memorandum)(Sorenson, Amy)

So, Dan Filor has left the building. Who wouldn't want to, given a choice, if you really think about it. I stress that we don't know why he's leaving Boies Schiller. It's possible he just found a better job or has health issues or is sick of being a lawyer or is running for office or his significant other has a great job in Timbuktu and he wants to go too... my point is that we don't know the reason. But it is my belief that there isn't a lawyer on the planet who wants this case on his resume.

Of course SCO has gazillions of attorneys left, so many in fact that I guess it's inevitable that one or two would end up having to drop out over such a long litigation. There have probably been many weddings and babies born and divorces by now among the Boies Schiller guys alone since March of 2003. Meanwhile, David Marriott keeps on carrying the flag for IBM. There are support attorneys, of course, but we have not seen the same musical chairs as on the SCO side, where you never know who is going to show up for a hearing.

And IBM , as you see, in answering SCO's honking nearly 55-page Objections, filed 55 of its own, and that means it too must ask for permission to file overlength. Here's that Ex Parte Motion [PDF]. Here's its Notice of Conventional Filing [PDF]. It's 55 pages of argument, not counting the cover page, the index, the list of cases, the introduction, appendices and exhibits. So, transcribers, beware. This one is huge. We'll see how much of it makes it past the censors.Here's what IBM tells the court about the length:

Pursuant to DUCivR 7-1(e), Defendant/Counterclaim-Plaintiff International Business Machines Corporation (“IBM”) respectfully submits this Ex Parte Motion for Leave to File Overlength Memorandum in Opposition to SCO’s Objections to Magistrate Judge Wells’ Order of June 28, 2006, consisting of approximately 55 pages of argument, exclusive of face sheet, table of contents and authorities, preliminary and fact statements, and appendices and exhibits.

With its objections, SCO has submitted an overlength memorandum nearly 55 pages in length which raises a host of detailed issues and complaints spanning nearly the entire history of this case. While IBM has endeavored to respond to the issues in succinct fashion, doing so fully and fairly has necessitated approximately 55 pages of legal argument.

Based on the foregoing, IBM respectfully requests that it be granted leave to file its overlength Memorandum in Opposition to SCO’s Renewed Motion to Compel, consisting of approximately 55 pages of argument.

Does that not whet your appetite, the part about SCO raising "a host of detailed issues and complaints spanning nearly the entire history of this case"? It definitely makes me want to read IBM's response. No doubt one of the matters IBM has responded to in some fashion is the SCO scattershot about alleged spoliation. SCO still has not filed a motion for sanctions regarding missing evidence the way you are supposed to, if you believe there is spoliation of evidence. It said it would file such a motion, but it has not happened yet. Here's what SCO wrote in its redacted Objections:

SCO intends to raise the issue of IBM's spoliation of evidence before this Court at the appropriate time.

Only SCO can explain why the appropriate time to be specific is never now. Could it be because it knows it can't win such a motion? You think? So it is certainly possible that IBM will again just point out that this matter is not yet properly before the court, as Judge Wells told SCO at the last hearing, when it tried to raise it in oral argument. The media went wild with the story SCO told, but they got snookered by some SCO PR, and the court will suffer no such confusion.


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