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Summary Judgment Motions: Where the Rubber Hits the Road on Evidence Production
Wednesday, September 27 2006 @ 02:36 AM EDT

Now that IBM has filed motions for summary judgment regarding all of SCO's claims, it's obvious what one purpose of filing such motions would be -- to win without having to bother with a trial. But since winning 100% of all the summary judgment motions you file would probably put your firm in the Guinness Book of World Records, what else might be the benefit of filing them?

Ask yourself: What is the most annoying aspect to this case so far? I hear you say, the fact that SCO has been unwilling or unable to be specific. And that is a secondary purpose of filing summary judgment motions. I was reminded of this by an email from Marbux, and I asked if I could share it with you. He agreed I could, so here's his explanation, which I'm sure will help you to understand that win or lose, IBM comes out ahead. But I'll let him explain.


Pam, as you are writing about the flood of dispositive motions just filed, you might consider prominently linking to the Federal Rules of Civil Procedure and Rules of Evidence in each article so folks have them handy. They should lead to further discussion of the issues involved; at least some readers will be checking rules cited in the briefs. (As to the Rules of Evidence, recall that a motion for summary judgment must be opposed with evidence that would be admissible at trial. There undoubtedly will be resort to the Rules of Evidence in the briefs.

It might also be good to remind folks of a few key points about the summary judgment process:

1. Summary judgment briefing is where the rubber hits the road on production of evidence. Whether IBM wins its motions or not, SCO must finally identify enough of its evidence to demonstrate a genuine dispute over material facts. So regardless of winning its motions, IBM wins valuable discovery through these motions.

2. Summary judgment briefing also forces SCO to end its shifting of positions and commit to its best theories of the case.

3. From here on out, the court's processing of the case is largely about winnowing insubstantial claims and defenses and about determining the admissibility of proffered evidence. That winnowing process will continue until entry of final judgment and through the appellate process if an appeal is taken.

4. Once the dispositive motions are briefed and the parties can evaluate their likely outcome, the case preparation specialists will take more of a back seat role to the lawyers who will actually conduct the trial. When the legal teams have a good sense of what they have left to work with (assuming the case is not thrown out entirely), it is time for the trial specialists to begin coming up to speed and choreographing their trial presentations.

5. There will be more procedural motions, even during and after trial. But the case has turned a corner. The discovery war is largely done, although minor discovery may be granted even during the trial to address newly discovered evidence or evidence that was not disclosed in discovery. The lawsuit is now about whittling down the other side's case and preparing for trial.

The particular rule that applies to summary judgments in the FRCP is Rule 56, which reads in part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

And you can see the winnowing process in Rule 56(d):

(d) Case Not Fully Adjudicated on Motion.

If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

One way or another, we could be seeing SCO's case getting smaller, even if it survives some of the motions. You may also wish to review Nolo's definition of summary judgment, as well as 'Lectric Law Library's more detailed explanation. TechLawJournal's definition ties in with what Marbux wrote:

A motion for summary judgment can be granted to resolve disputes involving legal interpretation, but not disputes regarding material facts. Summary judgment, generally, is a pre-trial remedy sought where, based upon facts not in dispute, and an application of the law to those facts, a party is entitled to a judgment on a claim. The judge cannot decide disputed facts in a summary judgment proceeding. If any facts material to a claim are disputed, then summary judgment cannot be granted on that claim.

So, both sides have to present facts. That means if IBM alleges in a motion for summary judgment that the sky is blue, with a declaration attached by an expert on sky coloration, SCO has to prove that it isn't blue, with facts. If it stays silent, or presents insufficient facts to disprove or at least bring into dispute IBM's assertion, the sky *is* blue, as far as the court is concerned in ruling on that motion, because IBM asserted it as a fact, with its evidence, and SCO didn't dispute it. So it's a material fact not in dispute. Facts not in dispute can be decided by the judge and need not go to trial by jury.

And SCO can't just say, "The sky is not blue." It has to *prove* it isn't blue. Now think what that means for SCO that IBM has written in its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement (10th Counterclaim) [PDF]: "None of the System V Code is protectable by copyright." Can you imagine how much work it will take for the SCO legal team to show a genuine dispute over a material fact on that issue?

So by filing all these motions, IBM is forcing SCO to cough up whatever facts it thinks it has to present its best argument. FUD won't do. It's specificity or bust. SCO needs to supersize its specificity pronto, or they can lose everything. Neat, huh?

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