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To read comments to this article, go here
IBM Asks the Court to Throw Out SCO's Entire Case on Summary Judgment
Monday, September 25 2006 @ 09:23 PM EDT

Both sides in SCO v. IBM have filed motions for summary judgment. To be precise, SCO has filed one for partial summary judgment (which I'll have up in a minute or two) and IBM has filed several motions for summary judgment, one for each of SCO's claims and two more for good measure on two of IBM's counterclaims. In other words, it is asking the court to throw out SCO's entire case, and to grant it judgment on two counterclaims without even going to trial on those two.

We find out because SCO has filed a notice of conventional filing [PDF] of exhibits to its partial summary judgment motion. It's too long to file electronically, so we'll have to wait to read them, but most of them we have already. And it's obvious from the list of exhibits what it's about, namely what they likely feel is their strongest claim, if not their only hope, their third cause of action for breach of contract relating to Sequent. [ Update: There are more filings showing up on Pacer now, including two SCO motions for summary judgment on some of IBM's counterclaims, 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th.]

IBM has filed motions, plural, as we can tell from a motion [PDF] they filed asking for "leave to file up to three additional declarations in support of IBM's motions for summary judgment." There is also a Proposed Order [PDF]. So we are off and running.

Update 2: Here you are, the rest of the filings:

Whew. Love the last one. Hahahaha. After I digest it all, I'll explain anything needing explanation.

We also get a definitive answer to our long-ago question as to whether September 25 was the deadline to begin to file summary judgment motions or the cutoff. IBM says, "The Court's deadline for filing summary judgment motions is today, September 25, 2006, and IBM is filing motions addressing each of the claims brought by Plaintiff/Counterclaim Defendant The SCO Group, Inc. ("SCO"), as well as two of IBM's counterclaims against SCO." They didn't get back a couple of signed declarations in time, and that is why they have to ask for permission to include them. So that means yesterday was the cutoff to file any summary judgments. And that means apparently SCO has only one, while IBM is asking the court to throw out all of SCO's claims on summary judgment.

What does that mean? That if IBM were to prevail on all its motions (of course that is a rare event indeed) then the only thing left to bring to a jury would be IBM's counterclaims. That has to be SCO's worst nightmare. That would mean the only questions for the jury to decide, if they found for IBM on the rest of IBM's counterclaims, would be how bad was SCO and how much do they owe IBM?

Update 3:SCOX chart, down 18.75%, closing at 1.69.

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

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

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

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

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

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.

__________________________________

NOTICE OF CONVENTIONAL
FILING OF EXHIBITS TO SCO'S
MEMORANDUM IN SUPPORT OF
SCO'S MOTION FOR PARTIAL
SUMMARY ON SCO'S THIRD CAUSE
OF ACTION FOR BREACH OF
CONTRACT

Case No. 2:03CV0294DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

PLEASE TAKE NOTICE THAT Plaintiff has conventionally filed the original and two copies of the following documents:

1. AT&T - Sequent Software Agreement.

2. AT&T - Sequent Sublicensing Agreement.

3. David Frasure Deposition Transcript (6/8/04) at 178.

4. David Frasure BSD Deposition Transcript (12/8/92) at 113, 121.

5. Geoffrey Green Deposition Transcript (11/15/04) at 113, 130-31.

6. Burt Levine Deposition Transcript (1/19/05) at 38, 40-41, 47, 268.

7. Otis Wilson Deposition Transcript (8/25/06) at 120.

8. David Rodgers Deposition Transcript (6/10/04) at 27, 31-32, 138.

9. Roger Swanson Deposition Transcript (1/17/06) at 52, 82.

10. Thomas Cronan Deposition Transcript (12/14/04) at 40.

11. Jeffrey Mobley Deposition Transcript (1/24/06) at 50.

12. Edward Kennedy Deposition Transcript (3/3/06) at 192.

13. Declaration of Ira Kistenberg (11/12/04) 5.

14. Michael DeFazio Deposition Transcript (1/13/05) at 223.

15. Declaration of Mitzi Bond (11/4/04) 11(e).

16. Letter from Roger Swanson to Ira Kistenberg, dated May 14, 1987 (1710097859).

17. William Sandve Deposition Transcript (11/19/04) at 11.

18. Report of SCO Expert Marc Rochkind (5/19/06).

19. Rebuttal Report of SCO Expert Marc Rochkind (8/28/06).

2

20. Rebuttal Report of SCO Expert Tom Cargill (8/28/06).

These documents have not been filed electronically because:

___ it cannot be converted to electronic format

_X_ the electronic file size of this material exceeds 2 megabytes (MB)

___ the Court by order has excused electronic filing

_X_ it is exempt from electronic filing pursuant to F(4)(e) of the ECF Policy & Procedures Manual (sealed document)

These documents have been served conventionally on all parties. DATED this 25th day of July, 2006.

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

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

By: /s/ Brent O. Hatch
Counsel for The SCO Group, Inc.

3

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing was served on Defendant International Business Machines Corporation on the 25th day of September, 2006, 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

4

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

_________________________________________

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.

________________________________________

IBM'S MOTION FOR LEAVE TO FILE
ADDITIONAL DECLARATIONS IN
SUPPORT OF MOTIONS FOR
SUMMARY JUDGMENT

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

________________________________________

Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits this motion for leave to file up to three additional declarations in support of IBM's motions for summary judgment by no later than September 29, 2006.

The Court's deadline for filing summary judgment motions is today, September 25, 2006, and IBM is filing motions addressing each of the claims brought by Plaintiff/Counterclaim Defendant The SCO Group, Inc. ("SCO"), as well as two of IBM's counterclaims against SCO. Counsel for IBM had hoped to have by today signed copies of two additional declarations in support of those motions. Due to various logistical issues, counsel for IBM was unable to obtain the signed declarations today. Those declarations reinforce points made by other declarants and the submission of them would not affect the substance of IBM's arguments in its summary judgment motions. They would be filed well in advance of SCO's deadline for responding to IBM's motions, and therefore not prejudice SCO in any way. We therefore respectfully request that the Court grant IBM leave to file up to two additional declarations in support of its summary judgment motions by no later than this Friday, September 29, 2006.

DATED this 25th day of September, 2006.

SNELL & WILMER L.L.P.

/s/ Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

2

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Alec S. Berman
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

3

CERTIFICATE OF SERVICE

I hereby certify that on the 25th day of September, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

and by U.S. Mail, postage pre-paid to:

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

/s/ Todd M. Shaughnessy

4

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651) Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

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.

________________________________________

[PROPOSED]
ORDER GRANTING IBM'S MOTION
FOR LEAVE TO FILE ADDITIONAL
DECLARATIONS IN SUPPORT OF
MOTIONS FOR SUMMARY JUDGMENT

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

________________________________________

Based upon Defendant/Counterclaim-Plaintiff International Business Machines Corporation's ("IBM") Motion for Leave to File Additional Declarations in Support of its Motions for Summary Judgment, and for good cause appearing thereon,

IT IS HEREBY ORDERED that IBM may file up to three additional declarations in support of IBM's motions for summary judgment by no later than September 29, 2006.

DATED this ____ day of September, 2006.

BY THE COURT

____________________________
Dale A. Kimball
United States District Court Judge

2

CERTIFICATE OF SERVICE

I hereby certify that on the 25th day of September, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

and by U.S. Mail, postage pre-paid to:

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

/s/ Todd M. Shaughnessy

3


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