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To read comments to this article, go here
Want to see a *real* spoliation motion?
Thursday, September 28 2006 @ 01:04 PM EDT

We've now read SCO's spoliation motion and memo in support, the redacted parts anyway. As you probably observed, if IBM did anything at all, it has to fit into the small redacted portion on page three, along with any and all evidence, because nothing that we can read points to any event or any evidence of it.

Further, there is no effort that I can see to tie the "offense" to any cases or legal argument. Instead, SCO seems to cite cases saying that a finding of bad faith is required in order to impose an adverse inference jury instruction. Then they launch into a discussion of cases they characterize as not requiring a finding of bad faith "for other sanctions," which seems pretty irrelevant. Maybe they just hope the judge will decide to sanction IBM for not doing anything wrong.

Snort.

If they have proof problems so serious on the central part of their case that they want a spoliation of evidence ruling and an adverse inference instruction, one would think that the factual part of the brief would be much, much longer and the briefing of the law far more detailed. It is a bit bewildering, unless it's just trying to answer Judge Brooke Wells' order tossing out their proposed evidence for lack of specificity. I guess this is SCO saying, well, it's not our fault. They threw the evidence out, and that's why we can't point to specific version, line and file. But whatever IBM allegedly threw out, if they actually did, it can't have been much, if you can fit it in a couple of paragraphs. Or is this just for FUD purposes, to convince investors they're still in the game? It's puzzling otherwise.

In short, this doesn't seem to be a typical spoliation motion. To show you what I mean, I got the Burst v. Microsoft spoliation motion [PDF] for you. Now *that* is a spoliation motion. Note the careful detailing of fact after fact, filling 60 pages, and the link drawn between the evidence they present and the cases they cite. Then read SCO's handiwork again. Contrast the two, and you'll be snorting too. It's certainly in character for SCO to ask the court to let them win a point without having to prove anything, but the odds of this gambit being successful seem low.


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