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SCO Fights for Survival in IBM and in Novell
Thursday, December 14 2006 @ 03:36 AM EST

I barely know how to tell you this, but SCO has filed a motion for reconsideration of Judge Dale Kimball's November 29th Order in SCO v. IBM, the one affirming Magistrate Judge Brooke Wells' June 28th Order. I guess they figure things are so bad now, they have nothing to lose by trying.

Here's the Notice of Conventional Filing [PDF]. Yes. Of course. It's under seal. So is the memorandum in support. Perhaps SCO will grace us with a redacted version in a bit. But in the meanwhile, we are left with our mouths open. Whatever are they thinking?

Delay? You think? Or maybe desperation. This is the order whereby Judge Kimball dismissed SCO's objections to Judge Wells' order which had tossed out most of the items on SCO's list of allegedly misused materials. SCO asked Judge Kimball to do a de novo review, and he did. And after he did, he agreed with Judge Wells and affirmed. And now SCO is asking him to reconsider that ruling. Can you imagine Judge Kimball's feelings, seeing this show up? To say that I am fascinated to find out what basis SCO feels it has to ask him to go through all this again is an understatement.

They have to have some legal basis on which to ask for this relief. As longtimers here will remember from early in 2005, when IBM successfully asked Judge Wells to reconsider an order, "a motion for reconsideration may properly be made to correct clear error or to prevent manifest injustice." So, SCO has to justify this request for reconsideration by demonstrating at least one of those two things. Knowing SCO, they'll claim both.

SCO finds itself in a real pickle. It followed a strategy that failed when both judges ruled against SCO the last week of November. You will recall that on November 30, Judge Wells also ruled from the bench, granting the relief in IBM's motion to confine SCO's claims to whatever SCO had put on the table by the end of discovery. As a result of those two orders, SCO's case shrank to almost nothing in two days, so I can't help but wonder if all the evidence they had kept up their sleeve just landed on Judge Kimball's desk.

They won't describe it like that, of course. Perhaps we'll hear some paralegal just found it in a cabinet or something. The great Salt Lake parted, and after they miraculously walked through to the other side, they tripped on a rock and fell on some new evidence. If Microsoft is pulling SCO's strings, one can't help but wonder if perhaps SCO is supposed to make this whole litigation so endlessly horrible an experience that if and when Microsoft sues some Linux vendor or end user over some stupid patent or other Microsoft got out of the USPTO gumball machine, IBM will be so allergic to lawsuits, it won't have the heart to fight. Or perhaps they are hoping Judge Kimball will make some error, anything at all, that will make it possible to ask for leave to appeal or will enhance their appeal at the end of this case.

Yes, Virginia, there is an end to this case someday. Un bel dei.

One thing you have to say about SCO's legal team: they never give up. And they don't care what anyone thinks of them, not even Judge Kimball, evidently.

Then, in the Novell case, which I'm guessing SCO now wishes it never brought, they are filing motions and exhibits like mad. In particular, they've filed a sealed Memorandum in Opposition to Novell's Motion for Partial Summary Judgment or Preliminary Injunction (that's the one where Novell asked for its money from the 2003 Microsoft and Sun license deals) and in support of SCO's new Cross Motion for Summary Judgment or Partial Summary Judgment on Novell's Third, Sixth, Seventh, Eighth and Ninth Counterclaims [PDF].

Here's why SCO says it is entitled to that relief:

SCO is entitled to summary judgment on Novell's Sixth, Seventh, Eighth and Ninth Counterclaims because the evidence of the parties' intent under the APA and Amendments thereto is undisputed in SCO's favor. In the alternative, SCO is entitled to partial summary judgment on Novell's counterclaims for a constructive trust and/or accounting under its Third, Sixth, Seventh, Eighth and Ninth causes of action on the grounds that Novell cannot satisfy the elements for such relief.

We'll see about that. SCO's memo in support is sealed, so again we'll have to wait for a redacted version. It's a 54-page document, so SCO had to ask for permission to file an overlength document [PDF]. It also needed an extra day to file it, and Novell stipulated [PDF]to allow SCO the time. SCO also got permission [PDF] in SCO v. IBM to file an overlength reply memo in support of its spoliation motion.

I don't think it's an exaggeration to say that SCO is fighting for its life. SCO has almost nothing to lose. What it needs to lose is its reputation with this court, and if nothing else SCO probably hopes Judge Kimball will look at all the arguments and exhibits and conclude that SCO's case wasn't completely frivolous when filed. If it was, and by now Judge Kimball probably has an opinion on that subject, SCO and SCO's lawyers could conceivably be sanctioned and IBM would be awarded damages. So they have a strong motivation to try to reach Judge Kimball on that point. In SCO's perfect world, he becomes so impressed, he rules in their favor on something, anything.

Attached to SCO's cross motion in Novell are 46 sealed paper exhibits. The clerk has placed this note in the Pacer record:

Note: Exhibits are oversized and not attached in the pdf image. The Complete document is retained in the sealed room for access by authorized persons only.

I can only guess, but this could mean they would rather the public never see those exhibits, whatever they are, or it's alternatively possible they just ran out of time and didn't get them scanned in. It's still possible, then, that we'll get a list of some redacted exhibits eventually that we will be allowed to pick up from the court. SCO is seriously stretched thin, between the two cases on two tracks simultaneously running them ragged.

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