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An Extension in Novell Case Ordered. Groan. More Discovery Too.
Tuesday, October 24 2006 @ 06:26 PM EDT

Lordy, lordy, will this SCO litigation never end? Judge Kimball's Order [PDF] on SCO's Motion for Expedited Stay or Continuance is just now on Pacer, and he has granted in part and denied in part.

I doubt SCO expected to get the part about postponing the hearing on Novell's motion for preliminary injunction until after the IBM case is decided. I think they ask for the moon when all they want is a handful of stars, and they usually get them that way, too. First the court denies the moon request, and then it partially grants the handful of stars. Over and over, we've seen that.

And indeed SCO's request to stay until after IBM is decided was denied. Kimball in fact says the Novell case probably should go first, and with "little delay," so when he asked the parties at the SCO v IBM hearing today which case they thought should go first, I guess he just wanted to hear what they told him. He already had his own opinion, evidently, and it matches what IBM told him at the hearing, so I think we can presume what his decision will be on that.

But I'm afraid he did grant SCO some more time. His reasoning is, to me, a bit circular. He says SCO lost some time to respond to Novell's motion for preliminary injunction because it filed the motion to stay, and so they should have a little more time. Hmm. I guess SCO, by that logic, can create its own time delays at will by just filing motions as needed. It's not a huge delay, though. They have until December 11. Oral argument will be on January 23, 2007 at 3 PM.

Here come the stars: SCO asked for more time to respond to Novell's recent discovery requests and an extension of the fact discovery deadline, and in this SCO was successful. That means they get to do more discovery. Yes, friends, their favorite pastime. Judge Kimball's reasoning, however, on this is not without a foundation. He notes, and I'm sure he's correct, that while discovery has been going on a long time, both sides probably were a little bit not full-steam-ahead while Novell's motion to stay claims subject to arbitration was being considered and then decided. I see his logic on this point, actually, painful though it is. Here's why.

Remember when SCO pointed out that in arbitration discovery is quite different? SCO would most naturally tend to hold back a bit until they knew where the various claims were headed. And neither side would be doing discovery with their whole hearts on some claims if they thought they'd be fully decided in the arbitration. So until they had Kimball's ruling on that issue, it was hard for the two teams to strategize, and both would be inclined to be conservative. So Kimball is just being absolutely fair, as he seems always to try to be. I think we can give credence to what Chris Brown said about the hearing too, that he got the impression Kimball was inclined to be more lenient with SCO than Judge Wells. And this is the exact outcome that Lamlaw pointed to in the October 19 article, in which he also explains a bit about constructive trusts.

What is the bottom line? SCO gets sixty days to respond to Novell's discovery requests, and the fact discovery cutoff will now be February 1. That affects the rest of the pretrial deadlines, naturally, so Judge Kimball asks the parties to provide him with a new schedule for his consideration, and he tells them two dates he expects to see on the schedule, March 14 for dispositive motions and September 17, 2007 as the new trial date. Even with the extensions, as you can see, this case, now that it's actually moving, is moving faster than the IBM litigation did. But for those of us who feel SCO is bringing nuisance litigation, it feels like it's slow as cold molasses.

There is also a hearing set in the IBM case. Here's the notation on Pacer:

10/24/2006 843 - NOTICE OF HEARING ON MOTION re: 695 MOTION to Strike Allegations in Excess of the Final Disclosures: Motion Hearing set for 11/15/2006 10:30 AM in Room 220 before Magistrate Judge Brooke C. Wells. (jwd, ) (Entered: 10/24/2006)










Civil Case No. 2:04CV139DAK

This matter is before the court on The SCO Group, Inc.'s Motion for Expedited Stay or Continuance to Respond to Novell's Motion for Partial Summary Judgment or Preliminary Injunction and to Extend Fact Discovery. Defendant Novell, Inc., filed an opposition to the motion and SCO informed the court that the motion could be submitted on the parties' written submissions.

SCO's motion asks the court to stay any briefing or hearing on Novell's Motion for Partial Summary Judgment or Preliminary Injunction until after the end of the trial in the SCO v. IBM litigation or, in the alternative, to grant SCO an extension of ninety days to file its opposition to Novell's motion. SCO's motion also asks the court to grant it ninety days to respond to recent requests promulgated by Novell and to extend the fact discovery deadline currently set for November 1, 2006, for six months.

With respect to Novell's pending Motion for Partial Summary Judgment or Preliminary Injunction, the court believes that the motion should be considered with little delay. Although


Novell's counterclaims were recently added, at least some discovery relevant to the motion has already occurred. SCO does not identify the specific discovery it needs to respond to the motion and has not filed a formal motion under Federal Rule of Civil Procedure 56(f). SCO asserts that Novell is not entitled to a preliminary injunction on the claims because they have delayed in asserting them. Whether there has been a delay in asserting the claim, however, goes more to the propriety of granting the motion, not to whether it should be briefed and decided.

Furthermore, SCO's argument that it should not have to respond to Novell's motion while it is responding to the summary judgment motions and preparing for trial in the SCO v. IBM case is without merit. SCO chose to bring both actions and plaintiffs are under an obligation to move their cases forward. There is no basis for staying or continuing this case because of SCO's own litigation strategy. And, in fact, the legal claims asserted in each case actually suggest that this case should be decided before the IBM case. The court concludes, therefore, that there is no basis for significantly delaying the briefing or decision on Novell's pending motion.

The court does, however, recognize that SCO's response to Novell's motion has been delayed as a result of this motion to stay. The court, therefore, grants SCO an extension to oppose Novell's motion until December 11, 2006. Novell will then have until January 8, 2007 to file a reply in support of its motion, and the court will hold oral argument on the motion on January 23, 2007, at 3:00 p.m.

With respect to SCO's request for an extension of time for it to respond to Novell's recently propounded discovery and an extension of the fact discovery deadline, the court concludes that an extension is appropriate. Novell claims that it will be prejudiced by an


extension of the fact discovery period. But answering additional discovery does not constitute prejudice. Although the deadline has been in place for a year, both parties undoubtedly delayed their discovery efforts during the pendency of Novell's motion to stay pending the SuSE arbitration. Therefore, the court grants SCO sixty days from the date of this Order to respond to Novell's current discovery requests and extends the fact discovery deadline to February 1, 2007.

Because the extension of the fact discovery deadline will impact the remaining pre-trial and trial deadlines in this case, the existing deadlines and trial date are vacated. The court requests that the parties submit a new scheduling order including pre-trial deadlines that are consistent with a new dispositive motion deadline of March 14, 2007, and a new trial date of September 17, 2007.

DATED this 24th day of October, 2007.


United States District Judge


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