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Novell Sends a Letter to Judge Kimball
Tuesday, November 14 2006 @ 11:55 PM EST

Here's something a little different. Novell has sent a letter to Judge Dale Kimball, with a suggestion. The suggestion is that he not decide which case should go first, SCO v. Novell or SCO v. IBM, until after dispositive motions are decided in both cases.

Novell's letter shows what prompted it -- SCO and IBM have sent two letters to the judge, one on October 27 and another on October 31, both about trial timing. We don't have those letters, but it seems SCO has done a 180 and is now asking the court to *advance* the Novell trial date, which Novell points out is "diametrically opposed to their relief SCO just sought and was in part granted."

You'll remember that SCO had asked that the Novell case be put on hold until after IBM was decided, in their Motion for an Expedited Stay or Continuance. Novell opposed that idea. The judge didn't grant that request for a stay, but he did give them more time for discovery, set March 14 for dispositive motions, and put off the trial date until September 17, 2007. He also indicated he thought the Novell case should probably go first. Now SCO has changed its mind and instead of wanting a stay in the Novell case, suddenly it wants to speed it up instead.

What does it all mean? I can't say for sure, because we don't have the other letters. But when you see a party suddenly shifting strategies in the middle of the stream and heading back in the opposite direction, it usually means they are afraid of drowning. Something may have turned up in discovery, making SCO want to cut discovery short after all. Novell has just filed a motion to compel discovery, after all, which might be related. Then there is the arbitration, the X factor. And certainly another interpretation could be that Novell doesn't expect much to be left on the table regarding the ownership of the copyrights after their dispositive motions are decided, in which case having Novell go first loses its rationale. If IBM wins first, clearly that helps Novell's case. And vice versa, so IBM would like Novell to go first, and Novell normally might like the opposite. In this case, it prefers to reserve its vote until after the air clears and everyone knows what issues are to be decided at trial.

I don't think SCO at this point knows what it wants. Novell's lawyers seem to have SCO in a terrible tizzy.

Novell's suggestion is that what makes sense is to think in terms of "the proper sequencing of issues for trial, not which case's trial should precede the other." The argument is that he decide based on issues remaining after dispositive motions are decided in both cases, because until then, no one, including Kimball, knows what issues will be left to be decided. That is, of course, correct. So, since the dispositive motions haven't been decided, and in the case of Novell aren't even before him yet, Novell suggests postponing a decision on which trial goes first until after he knows which issues are left on the table. Meanwhile, why not pencil in September 17 for both cases, and then address the order once the picture is clearer?

As you will remember from the October 24th hearing in SCO v. IBM, the IBM trial date has been postponed from February of 2007 because there was no way to get the summary judgment motions heard in time for that date to be realistic, and both sides were asked by the judge to get together and come up with a new schedule. Novell here suggests a date of September for both cases, so that dispositive motions can first clarify the issues.

Here are the Notice of Filing [PDF] and the letter [PDF] so you can read them for yourselves and draw your own conclusions, even if, like me, you decide there is no way to really know what it means for sure until more hints are revealed in future documents, which will certainly happen.

But to help us figure it out, here's the section from the transcript of the October hearing in SCO v. IBM, at which Judge Kimball asked both sides if they had an opinion as to which case should go first (I'll be posting the complete transcript shortly):

THE COURT: Here's another thing I want to get your quick reaction to. Novell isn't here, but you both know there's another case. Is there an argument that that case ought to be tried first, at least from you two folks? I'm not asking Novell that. They are not here -- or it is not here. Do you have a reaction to that question?

MR. SINGER: My immediate reaction would be that the IBM case should come first, that the contract claims shouldn't be affected by the issues there. The copyright claim on which IBM is seeking a declaratory judgment, and we simply have a similar copyright claim, that is affected by the question of whether or not those copyrights were transferred from Novell to SCO. That issue is one which is -- if that was decided adversely to us would moot out that aspect of this case.

THE COURT: Do you have a comment?

MR. MARRIOTT: I do, Your Honor. There is, I think, an excellent argument that the trial of that matter should come first because there are issues, as Your Honor well knows, there that would dispose entirely of causes of action and claims in the IBM case. Just by way of example: The ownership of the copyrights is an issue in those cases. If it's found in that case that Novell, not SCO, owns the copyrights, that cleans up -- a lot of IBM's motion for declaration of non-infringement of Linux, for example disappears.

THE COURT: "Cleans up" is your phrase, not Mr. Singer's?

MR. MARRIOTT:I suspect that's right, Judge.

MR. SINGER: Absolutely.

MR. MARRIOTT: A second issue is that in IBM's motion for summary judgment on its contract claims, we have argued and believe that Novell has, by way of the rights it has under its asset purchase agreement with Santa Cruz, the predecessor of the Park [sic] Corporation of SCO, has the right to waive the alleged violations of the contract, and that issue is another issue raised in the Novell matter and, if decided in favor of Novell, would preclude relief sought here.

MR. SINGER: Well, that's an issue that we think is relevant to the IBM matter but not really to the Novell matter. That is being litigated -- it concerns Novell, but it is being litigated in the IBM case because the claims Novell has purported to exercise the right to waive are claims against IBM that are relevant here. They are not relevant to the claims between SCO and Novell.

MR. MARRIOTT: I agree it's an issue here. I think it's also an issue there.

THE COURT: All right. Thank you both. Thank you all. We'll be in recess on this matter.

MR. SINGER: Thank you, Your Honor.

THE COURT: I'll hear from the two of you in a few days.

As you can see, SCO said that Novell should go last. So after that hearing, there has been a big change in SCO's preference. And now Novell, who wasn't represented at the hearing, wishes to add its two cents. And while it does so, it has the opportunity to make sure the judge is aware that SCO is saying opposite things in a very short time frame. Why do that? Well, for one thing, you kind of let the judge know that if he gives in to SCO's every whim, accepting at face value all their arguments as being sincere and true, you might just end up unfair to the other side, which just spent time and money -- lawyer time isn't free -- arguing against SCO's fervent wish to do the opposite of what it now fervently is telling the court it wishes to do after all.

The big piece that is missing for us onlookers is: why has SCO changed its mind?

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