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SCO's View of Its Motion for Reconsideration
Tuesday, December 19 2006 @ 12:47 PM EST

Bob Mims got SCO's attorney Brent Hatch to speak. So we get to hear what they think their motion for reconsideration is about:
Utah's SCO Group has asked a federal judge to reconsider striking most of the claims from its $5 billion, Linux-related lawsuit against IBM.

But they don't want anyone to know why.

Attorneys for the Lindon-based software company, which claims IBM illegally leaked SCO-owned Unix programming code into the freely-distributed Linux operating system, filed supporting documents for their reconsideration motion under seal this week.

"Largely, SCO wants to show some new evidence and cites some technical problems in the decision to be fixed. I can't really discuss more because [documents are under seal]," SCO attorney Brent Hatch said Thursday.

IBM, which has steadfastly declined to comment on developments in the suit, had no comment.

So, SCO has swung around and is trying again for its Perry Mason moment. You know, the one that Magistrate Judge Brooke Wells characterized as almost like hiding the evidence until the 11th hour to try to gain an unfair advantage. I told you I thought they'd try something like this. The court has already informed SCO that the motion as filed is deficient and must be redone.

And while courts are always inclined to take seriously any pertinent new evidence, in this case, the apparent game playing has hurt their chances. The issue in the order they'd like reconsidered was whether they'd met a deadline. They didn't.

So, now they offer "new" evidence. Had they presented the new evidence straightforwardly, it could have been introduced long ago; as it is, having tried already to slip evidence in through the back door, after the deadline, and quietly via vague references that the court found insufficient (and in experts reports, the subject of another SCO motion for reconsideration of another IBM motion SCO lost that same week), it is hard to view the new attempt as anything but another run at getting the same evidence in underhandedly after the discovery door slammed shut. As Mims points out, because of the redaction, who knows if it's the same evidence or actually something new? Well, IBM will know. And that's how we'll find out eventually.

Sometimes tricks work in litigation, sadly; but once your reputation has been damaged, it's a lot harder to trick a judge.

Here's some information about F.R.C.P. Rule 60, which is about newly discovered evidence, not that I personally believe that is what this likely is, but here's the rule on it:

Rule 60. Relief from Judgment or Order

(a) Clerical Mistakes.

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc.

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

I marked the parts that seem to apply to SCO. Note that newly discovered evidence is by motion, not a request for reconsideration. Note the next Rule also, Rule 61:

Rule 61. Harmless Error

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

In the notes on Rule 60, it explains a bit what the rules are for:

Subdivision (b).

When promulgated, the rules contained a number of provisions, including those found in Rule 60(b), describing the practice by a motion to obtain relief from judgments, and these rules, coupled with the reservation in Rule 60(b) of the right to entertain a new action to relieve a party from a judgment, were generally supposed to cover the field....

The reconstruction of Rule 60(b) has for one of its purposes a clarification of this situation. Two types of procedure to obtain relief from judgments are specified in the rules as it is proposed to amend them. One procedure is by motion in the court and in the action in which the judgment was rendered. The other procedure is by a new or independent action to obtain relief from a judgment, which action may or may not be begun in the court which rendered the judgment. Various rules, such as the one dealing with a motion for new trial and for amendment of judgments, Rule 59, ... and one for judgment notwithstanding the verdict, Rule 50(b), and including the provisions of Rule 60(b) as amended, prescribe the various types of cases in which the practice by motion is permitted. In each case there is a limit upon the time within which resort to a motion is permitted, and this time limit may not be enlarged under Rule 6(b). If the right to make a motion is lost by the expiration of the time limits fixed in these rules, the only other procedural remedy is by a new or independent action to set aside a judgment upon those principles which have heretofore been applied in such an action. ...

To illustrate the operation of the amendment, it will be noted that under Rule 59(b) as it now stands, without amendment, a motion for new trial on the ground of newly discovered evidence is permitted within ten days after the entry of the judgment, or after that time upon leave of the court. It is proposed to amend Rule 59(b) by providing that under that rule a motion for new trial shall be served not later than ten days after the entry of the judgment, whatever the ground be for the motion, whether error by the court or newly discovered evidence. On the other hand, one of the purposes of the bill of review in equity was to afford relief on the ground of newly discovered evidence long after the entry of the judgment. Therefore, to permit relief by a motion similar to that heretofore obtained on bill of review. Rule 60(b) as amended permits an application for relief to be made by motion, on the ground of newly discovered evidence, within one year after judgment. Such a motion under Rule 60(b) does not affect the finality of the judgment, but a motion under Rule 59, made within 10 days, does affect finality and the running of the time for appeal.

So, SCO is in effect asking for relief, based on "newly discovered" evidence. I think that is why they have been asked to refile as a new motion. But is it newly discovered? Or previously hidden? That will be Judge Kimball's job, to parse out which it is, and he has to give SCO a fair hearing. I know he will, but he doesn't miss much. I also don't expect the ultimate outcome to depend at all on this particular motion or the "newly discovered" evidence. But it could have some effect on a later appeal, so it will be addressed by the court with seriousness of purpose, whether or not it's just another SCO sleight-of-hand.


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