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IBM and SCO Stipulate to Extensions of Time to Respond
Friday, October 20 2006 @ 06:37 PM EDT

The parties in SCO v. IBM have agreed to a moderate extension of time to file certain documents. Here's the Stipulation [PDF] and the proposed order.

SCO has been telling the court in SCO v. Novell that it would like a stay in regard to Novell's motion for preliminary injunction, or in the alternative significantly more time, and one reason it offered is that it is very busy in the IBM case:

Fourth, in furtherance of its admitted cooperation and joint-defense agreement with IBM in litigating against SCO (which is itself a subject of SCO's claims against IBM), Novell has evidently timed its Motion to interfere with SCO's response to the six (6) motions for summary judgment that IBM filed against SCO on September 25, 2006. The IBM summary judgment motions comprise more than 400 pages of briefs and more than 600 exhibits, totaling over 50,000 pages of documents. SCO's response is due on October 25, 2006. Novell's motion, which concerns agreements entered in 2003, and which Novell asserted in counterclaims in July 2005 and again in April 2006, is seemingly timed to interfere with SCO's ability to respond to these IBM motions, and to prepare for trial in the IBM action. The stay SCO seeks would permit SCO properly to respond to IBM's multiple, voluminous and document-intensive motions for summary judgment. The additional time would not remotely prejudice Novell, which waited years to file its instant Motion, and therefore should not be heard to argue that its Motion warrants immediate resolution.

Well, now it doesn't have that worry any more. October 25 is no longer the deadline. SCO likely has been telling IBM's lawyers the same thing, that the dual track is too much and IBM hit it with an avalanche. Which is true. It did. In any case, there is now a stipulation which principally benefits SCO, as I doubt IBM desperately needs extensions of time to the degree SCO does, simply because IBM has filed more summary judgment motions that SCO must answer than the other way around. Then there are the 597 IBM exhibits attached, all of which SCO must read and try to rebut in some fashion. Yes. 597. Good luck with that.

So now the parties have more time to respond to the summary judgment motions and everything else, but it isn't a huge extension.

What it looks like to me is that IBM agreed to extensions in return for this stipulated sentence: "The parties stipulate that they will not seek any further extensions of the deadline for memoranda in opposition to the pending summary judgment motions." In case that was worrying you, too, now you know. This is it. No major delays are going to happen because of the IBM summary judgment motions.

Also, SCO has filed conventionally a motion for a protective order with exhibits to keep some personal information about one of its experts, Dr. Jeffrey Leitzinger, private. His report is #259 on the Greatest Hits list, under seal of course. However, if you look at that new chart, you'll see that it is listed as referenced in IBM's Memorandum in Support of its Motion for Summary Judgment on SCO's Unfair Competition Claim [PDF], (UC. Br. 12, 17, 29), and if you read those paragraphs, you get an idea of what his testimony is. Here's paragraph 12, for example:

SCO alleges that "[b]ecause IBM has been developing its plan to replace UnixWare support with Linux support, and because it knew SCO had dedicated its entire enterprise resources to the IBM/UnixWare joint relationship, IBM had a fiduciary obligation to inform SCO of its Linux-related planse long before its Linux public announcement in December 1999." (Ex. 33 at Interrogatory Response No. 7.) In fact, IBM made a public announcement of its intention to support Linux at LinuxWorld in March 1999. (Ex. 21 at 4; Ex. 259 at 38.)

It seems SCO's expert noticed the March 1999 event. You see, just because you hire an expert, there is no guarantee the expert will say only what helps you, and of course, that is how it should be.

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

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.

________________________________

STIPULATION AND JOINT MOTION
FOR EXTENSION OF TIME

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

The parties, through their counsel of record, hereby stipulate and jointly move the Court for an Order enlarging deadlines as follows:

Both parties' memoranda in opposition to the pending motions for summary judgment, currently due October 25, 2006, shall be due no later than November 1, 2006;

IBM's memorandum in opposition to SCO's motion for relief re spoliation, currently due October 25, 2006, shall be due no later than November 1, 2006;

Both parties' reply memoranda in support of the pending motions for summary judgment, currently due November 24, 2006, shall be due no later than December 8, 2006;

SCO's reply memorandum in support of its motion for relief re spoliation shall be due no later than November 24, 2006; and

Both parties' response to all outstanding requests for admission shall be due no later than November 8, 2006.

The parties stipulate that they will not seek any further extensions of the deadline for memoranda in opposition to the pending summary judgment motions. The parties submit concurrently herewith a proposed Order confirming these deadlines.

DATED this 18th day of October, 2006.

SNELL & WILMER L.L.P.
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott

By___/s/ Todd M. Shaughnessy
Counsel for Defendant International
Business Machines Corporation

2

DATED this 18th day of October, 2006.

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

BOIES, SCHILLER & FLEXNER LLP
Edward Normand

By___/s/ Edward Normand
Counsel for Plaintiff
(e-filed with authorization from counsel)

3

CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of October, 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]

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

/s/ Todd M. Shaughnessy

4


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