12/18/2006 - 900 - NOTICE OF DEFICIENCY re 897 Request. The document was filed as a request and would be better filed as a motion. The court asks the filer of the original document to file the pleading again. The new pleading will receive a new document number on the docket. (jmr ) (Entered: 12/18/2006)

SCO must do more work. Two can play procedural rules games, eh?

I'm frankly puzzled, because SCO did file their request as a motion, at least they titled it a Motion for Reconsideration, so I can't yet tell you what the deficiency is. It is possible the court made a mistake, but it is also possible the court noticed SCO forgot to dot an I or cross a T somehow. The rules of procedure, which are the rules by which a court conducts civil litigation, are very detailed. Here's IBM's earlier and successful Motion for Reconsideration. Maybe one of you eagle eyes can spot a difference. Presumably the court has told SCO what it needs to correct with specificity. Or then again, maybe it is leaving it up to SCO to find the problem in that mountain of procedural rules? Just joking.

SCO is in a difficult spot. The more it tries to annoy IBM by drawing this process out, the more it simultaneously annoys the court. Its motion for reconsideration stated that the grounds for the motion were that the rules of procedure did not justify Judge Kimball's order. So perhaps now the court has decided to notice and insist on all the rules of procedure in the minutest detail. And no one will know the rules better than the judge, who also has the power to enforce them.

Update: I think Groklaw member AJWM may have put his finger on at least one problem, namely that the filing moved for reconsideration, but also "seeks leave to reopen four depositions of IBM programmers." That's an entirely unrelated request, having nothing to do with Judge Kimball's prior order.

Update 2: Here are SCO's Motion for Reconsideration of November 29th Order [PDF] and the Redacted Memorandum in Support [PDF], as text. My thanks to Steve Martin for doing the HTML on the Memo and to Chad for the memo. Marbux notices some other problems. Update 3: See the next article for what I found in my research. I think the issue is what kind of motion, based on Rule 60.

I'm still researching, but here is what marbux thinks:

Rule 60 provides the constraints on a motion for reconsideration of an order, along with other rules imposing more general requirements. Rule 7 - Rule 7(b) states in relevant part:

An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.

Other than the request to reopen four depositions, the SCO motion does not specify the relief requested and it does not "state with particularity the grounds therefor" other than a bare statement that providing a URL for two discovery items was sufficiently specific and a vague statement that expert reports are somehow relevant to the request. There is in effect just a generalized request that the court reconsider a particular ruling without explaining the grounds for the request and without identifying the portions of the ruling that SCO wants to be reconsidered.

It is not a proper motion. You have to tell a judge what relief you are after and you have to do more than say "read these four expert reports then reconsider your ruling." A motion that particularizes neither the relief sought nor the grounds therefor does not qualify as a motion and therefore is an improper communication with the court. It is only a request.

Consider it this way. SCO asked the judge to reconsider. If the judge wanted to be a smart aleck, he could write back, "Okay, I've granted your request and I have reconsidered," but not say a word more. SCO won its request. So what? Were SCO to write back and say, "what did you decide after you reconsidered," the judge could say, "you didn't ask me that; if you want to know, you'll have to file a motion."

What the court is saying with this notice is "don't plan to file an appeal based on that bit of trash. I'm not going to go hunting through the huge record of that ruling plus four new expert reports unless you tell me precisely which needles you want me to look at and where they are."

It's all about specificity.

Here's the text.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Robert Silver (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Steven N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

__________________________________

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.

_________________________________

MOTION FOR RECONSIDERATION
OF NOVEMBER 29TH ORDER

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

________________________________

Plaintiff, The SCO Group, Inc., by and through undersigned counsel, moves for reconsideration of this Court's Order dated November 29, 2006, which affirmed in total the Magistrate Judge's Order of June 28, 2006, wherein the Magistrate Judge struck 187 technology disclosures from the case. SCO respectfully submits that the rules of procedure do not support such a result under the circumstances of this case.

SCO also seeks leave to reopen four depositions of IBM programmers, each reopened deposition not to exceed two hours, for the purpose of exploring an evidentiary issue important to IBM's Motion.

Last, the December Submission did comply with the required level of specificity by providing a URL address on which numerous patches – all of which indicate file, version and line – at the Tab linked to Items 279 and 280.

For the foregoing reasons, SCO prays that this Court will reconsider its Order of November 29, 2006, and grant relief as requested above.

DATED this 13th day of December, 2006.

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

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By ___[signature]___
Counsel for The SCO Group, Inc.

2

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing SCO's MOTION FOR RECONSIDERATION was served on Defendant/Counterclaim-Plaintiff, International Business Machines Corporation, on this 13th day of December, 2006, via electronic mail (by agreement of the parties) to the following:

David Marriott, Esq. (email)
Cravath, Swaine & Moore LLP
[address]

Todd Shaughnessy, Esq. (email)
Snell & Wilmer LLP
[address]

___[signature]____

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[Address]
[Telephone]
[Facsimile]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]

Attorneys for The SCO Group, Inc.

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.

REDACTED MEMORANDUM IN SUPPORT OF MOTION FOR RECONSIDERATION OF NOVEMBER 29th ORDER Case No. 2:03CV0294DAK Honorable Dale A. Kimball Magistrate Judge Brooke C . Wells

Plaintiff, The SCO Group, Inc., by and through undersigned counsel, submits this Memorandum in Support of its Motion for Reconsideration of this Court's Order dated November 29, 2006, which affirmed in total the Magistrate Judge's Order of June 28, 2006, wherein the Magistrate Judge struck 187 technology disclosures from the case. SCO respectfully submits that the rules of

1

procedure do not support such a result under the circumstances of this case. In order to prevent manifest injustice to SCO, reconsideration is appropriate on each of the grounds set forth below.

On reconsideration, relief may be appropriate "where the court has misapprehended the facts, a party's position, or the controlling law." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Motions to reconsider are generally analyzed under the test established for Rule 59(e) motions to amend a judgment, provided that such motion is filed within ten days of the order for which movant seeks reconsideration. See id.; see also Phelps v. Hamilton, 122 F.3d 1309, 1323-24 (10th Cir. 1997); Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991) (observing that arguments that the district court misapplied the law or misunderstood a party's position are properly raised in a Rule 59(e) motion). There are three bases on which relief may be granted: (1) an intervening change in the controlling law; (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. SCO respectfully requests that this Court reconsider the Order to allow for consideration of new evidence not in the original record and to prevent manifest injustice.

Each Item or combination of Items stricken from SCO's case comprises a basis on which a jury could find IBM liable for SCO's losses. By precluding SCO from presenting these claims to a jury, the effect of the Order is tantamount to partial dismissal. "Before imposing dismissal as a sanction, a district court should ordinarily evaluate the following factors on the record: '(1) the degree of actual prejudice to the [other party]; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.'" Gripe v. City of Enid, 312 F.3d 1184, 1187 (10th Cir. 2002) (quoted in Procter &

2

Gamble Co. v. Haugen, 427 F.3d 727, 738 (10th Cir. 2005) (identifying these as the "Ehrenhaus factors").

This Court stated its intent to undertake a de novo review, but it was in fact deferential to the Magistrate Judge, noting her "educated position" to evaluate discovery-related issues. The opinion of this Court affirming her Order is expressed in a single paragraph. De novo review requires that the actual underlying testimony relevant to an issue be considered. See Gee v. Estes, 829 F.2d 1005, 1008 (10th Cir. 1987). The Tenth Circuit has instructed:

When objections are made to the magistrate's factual findings based on conflicting testimony or evidence, both § 636(b)(1) and Article III of the United States Constitution require de novo review. The constitutional safeguards, as established by Congress and interpreted by the courts, are such that an appellate court must be satisfied that a district judge has exercised his nondelegable authority by considering the actual testimony, and not merely by reviewing the magistrate's report and recommendations.

Furthermore, while here no evidentiary hearing was held either by the Magistrate Judge or by the District Court, (although SCO requested one) there are factual issues and evidence underlying the decisions. This motion for reconsideration seeks consideration of evidence beyond what was present in the record before the Magistrate Judge. Now that this case has been removed from the trial schedule to allow for consideration of summary judgment motions and for the Novell trial to proceed first, there is no compelling time restraint which precludes pursuing the avenues discussed below. SCO specifically asserts three bases for relief from the Order.

3

1. The Order Should Not Have Been Entered Before All Expert Reports Were Filed

Proper consideration of the expert reports through either an additional round of briefing or an evidentiary hearing would give the Court the benefit of the substantial work that has gone into this issue by technology experts in considering (or in this case, reconsidering) the necessity and propriety of the Order striking claims.

2. New Evidence Would Likely Be Available Through Several Additional Depositions of IBM Programmers

The Magistrate Judge and this Court denied SCO's request for an evidentiary hearing on the factual issues presented in IBM's motion. Discovery of fact witnesses was closed prior to the

4

first hearing before the Magistrate Judge on IBM's Motion. Due to the summary judgment schedule and the Novell trial, this case has now been removed from the trial calendar. SCO seeks leave to reopen four depositions of IBM programmers, each reopened deposition not to exceed two hours, for the purpose of exploring an evidentiary issue important to IBM's Motion.

IBM, as the Court is aware, contends that SCO's technology disclosures are fatally defective by failing to have specific version, file and line coordinates for all technology items. These items are largely methods and concepts that IBM programmers disclosed from the Dynix operating system, which is a derivative of UNIX System V subject to the restrictions on use and disclosure contained in the Agreements at issue in this case. These witnesses, such as Timothy Wright, Rick Lindsley, Gerrit Huizenga, and Jack Vogel, should be asked whether they know the coordinates in Dynix for the technology items they disclosed to the Linux community. If they do, that is proof IBM is not prejudiced by any omission in the SCO submission. If they do not know these coordinates for disclosures they made from Dynix, perhaps they could explain how SCO knows or should know that information but they do not.

Reopening these depositions for this purpose would cause no prejudice to any party, given the current time schedule and very modest expenditures of time and money. (If the Court subsequently concludes that this was not beneficial, it can award the expenses incurred by IBM in connection with such depositions.) We submit that such supplementary testimony is likely to expose the central flaw at the heart of IBM's motion — that the information (version, file and line) of stricken technology items is either not known to the individuals to disclosed such technology (and thus not reasonably known to SCO), or, in fact, is already known to IBM, who cannot then possibly sustain a claim of prejudice justifying striking these items from SCO's case. See, e.g., Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir. 1988) (finding abuse of

5

discretion where district court dismissed claims for unintentional mistake not resulting in any actual prejudice).

3. At a Minimum, the Court Should Reconsider a Limited Number of the Stricken Items

While SCO believes the Order should be reconsidered in its entirety, in the alternative, SCO requests that the Court reconsider the following list of Items. These Items have not been specifically mentioned in either the Magistrate Judge's Order or in this Court's Order. SCO maintains that if the Court were to examine them individually, it would be satisfied that the identifying information provided by SCO is consistent with SCO's discovery obligations and sufficient to inform IBM as to the nature of the disclosure. An explanation of how each item was identified in the December Submission, which SCO contends was sufficient information to notify IBM of the nature of the disclosure, is also found on the following table:

REDACTED

6

REDACTED

As noted above, the December Submission did comply with the required level of specificity by providing a URL address on which numerous patches — all of which indicate file, version and line — at the Tab linked to Items 279 and 280. The nature of these Items and the manner in which they were identified in the December Submission is explained further in the

7

Expert Report of Marc Rochkind.³ The Magistrate Judge accepted the contrary representation of Randall Davis in his declaration, without the benefit of either an evidentiary hearing to determine what weight to afford his statement, or affording SCO an opportunity to present a responsive declaration.

CONCLUSION

For the foregoing reasons, SCO prays that this Court will reconsider its Order of November 29, 2006, and grant relief as requested above.

DATED this 13^th day of December, 2006.

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

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By (signature)
Counsel for The SCO Group, Inc.

8

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing SCO's MEMORANDUM IN SUPPORT OF MOTION FOR RECONSIDERATION was served on Defendant/Counterclaim-Plaintiff, International Business Machines Corporation, on this 13^th day of December, 2006, via electronic mail (by agreement of the parties) to the following:

David Marriott, Esq. ([email address])
Cravath, Swaine & Moore
[address]

Todd Shaughnessy, Esq. ([email address])
Snell & Wilmer LLP
[address]

By (signature)

9

EXHIBIT A

FILED UNDER
SEAL

10

(1) SCO had filed initial reports prepared by its experts prior to entry of the Magistrate Judge's Order. However, two additional sets of reports were exchanged after the Order of June 28.

(Back to the main text)

(3) For the Court's convenience, SCO has attached hereto only those pages specifically relevant to Items 279 and 280 as "Exhibit A."

(Back to the main text)