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SCO's Redaction to Sealed Motion for Reconsideration - Curioser and Curioser
Wednesday, December 20 2006 @ 01:42 AM EST

Somebody is getting confused. Maybe it's me. Maybe it's the clerk. Maybe it's SCO. But SCO has filed a document that is supposedly a redaction of document 894, which is titled on Pacer as "SCO Motion for Reconsideration of November 29th Order", and it's marked "SEALED MOTION". The new filing is called not a redaction of that motion but just Motion for Reconsideration of November 29th Order [PDF, #902]. 902 is described on the docket sheet as being "REDACTION to [894] SEALED Motion". 894 was filed on December 13th. 902 was filed on the 19th. Are you with me so far?

On Monday, we looked at docket number 897, which was filed on the 14th. Pacer says 897 is the "SCO Request for Reconsideration of November 29th Order" (note "request", not "motion"). The court notified SCO on the 18th that this filing, 897, is deficient, because it was "filed as a request and would be better filed as a motion". Now, 897 was filed on December 14th, the day *after* the sealed Motion for Reconsideration, 894.

So, the steps, at least on Pacer, go curiously like this, as far as I can make out:

  • SCO files [894] sealed Motion for Reconsideration (13th)
  • SCO files [897] Request for Reconsideration (14th)
  • Court tells [900] SCO (18th) its request [897] needs to be a motion instead, despite the fact that SCO has already filed a motion [894] the day before the request [897].
  • SCO files [902] a "redacted" version of the supposedly sealed motion [894], but [897], which is the request for reconsideration, and [902], the "redacted" motion, are identical, which means that the request was actually titled a motion.

I give up. From Pacer, it looks like SCO double filed, once as a motion and once as a request. This is starting to remind me of the subpoena that ordered Oracle to have a witness show up without fail for a deposition on January 27 in Oakland, California and the notice of the deposition said to show up on the 27th for the same deposition in Armonk, New York. Remember? Maybe the court gave up too and that is why it asked SCO to file anew and told it how to file, as a motion, not a request. Honestly, that could actually be the simple explanation. In any case, I'm not going to make my brain hurt any more over trying to figure out what SCO is doing. When they refile, I'll turn my brain back on.

Also, the parties wish to take a break themselves, and heaven only knows someone needs a vacation. The parties have stipulated to give each other until January 12th to reply to all the summary judgment motions. The deadline had been December 22.

Here's what the stipulated motion says about the time extension:

The parties, through their counsel of record, hereby stipulate and jointly move the Court for an Order enlarging deadline for both parties to file their respective reply memoranda in further support of the pending motions for summary judgment. The parties respectfully request that the current deadline, December 22, 2006, be extended to January 12, 2007. The parties make this motion with the understanding that the requested extension will not affect the dates set for oral argument on the parties’ motions for summary judgment, and will allow the Court sufficient time to consider the parties’ papers.

This of course mainly benefits SCO, because it has more summary judgment motions to reply to than IBM. And as longtimers will recall, the holidays are very big with SCOfolk. Just kidding around.

Here are all the pertinent Pacer entries, so you can have fun with this puzzle, if you are so inclined. Or, like me, you may wish to just wait and see what SCO files that sticks:

894 - Filed: 12/13/2006
Entered: 12/14/2006
Sealed Motion
Docket Text: SEALED MOTION for Reconsideration of November 29th Order #[884] filed by Plaintiff SCO Group. (blk, )

895 - Filed: 12/13/2006
Entered: 12/14/2006
Sealed Document
Docket Text: **SEALED DOCUMENT** MEMORANDUM IN SUPPORT re [894] SEALED MOTION to Reconsider Order #[884] dated 11/29/06, filed by Plaintiff SCO Group. (blk, )

897 - Filed & Entered: 12/14/2006
Request
Docket Text: REQUEST for Reconsideration of November 29th Order filed by Plaintiff SCO Group. (Hatch, Brent)

898 - Filed & Entered: 12/14/2006
Brief
Docket Text: SUPPORTING MEMORANDUM BRIEF re [897] Request for Reconsideration of November 29th Order filed by Plaintiff SCO Group. (Hatch, Brent)

900 - 12/18/2006 - 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)

901 - Filed & Entered: 12/18/2006
Motion for Extension of Time
Docket Text: Stipulated MOTION for Extension of Time to file reply memoranda in further support of pending motions for summary judgment filed by Defendant International Business Machines Corporation. (Attachments: # (1) Text of Proposed Order)(Shaughnessy, Todd)

902 - Filed & Entered: 12/19/2006
Redacted Document
Docket Text: REDACTION to [894] SEALED MOTION for Reconsideration of November 29th Order by Plaintiff SCO Group. (James, Mark)

I only know one thing as clear as a bell. I'd pay to be a fly on the wall at BS&F. And to give them a hand, I've posted in News Picks an article by a paralegal on how to draft a motion properly, so next time they positively can't miss.

Yes, I'm just kidding around. Maybe they didn't know which was the correct form, a request or a motion, and they worried about missing a deadline, which can happen with a request for reconsideration, which has a short time to file, so they just filed both. That would actually be a smart thing to do in a case like that, I'd say. The worst thing a law firm can do is miss a deadline.

Update: Thanks to Chad, we have it as text now:

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

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)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLOWER. LLP
[address, phone, fax]

Stephen 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.

The grounds for this motion are new evidence previously unavailable, and 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. The Magistrate Judge did not have, at the time she entered the Order striking SCO's claims, the benefit of the expert reports prepared in this action.

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 0. 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]

By____[signature]_____

3


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