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The Wells Order to Confine SCO's Claims to and Strike Allegations in Excess of Final Disclosures
Tuesday, December 26 2006 @ 03:39 PM EST

This is the written order from the November 30th hearing in SCO v IBM, where Magistrate Judge Brooke Wells ruled from the bench, granting IBM's motion to confine SCO to whatever evidence they had put on the table by the court-set deadline of December 22, 2005. This is the written order, Order Granting IBM's Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final Disclosures [PDF}.

SCO has already filed objections to it with presiding Judge Kimball, in anticipation of this written order. As you may recall, when Judge Wells issued her order from the bench, she told SCO to take it up with Judge Kimball if it so desired. And so it has.

And you can see why it would want to, in that this order speaks not just to SCO's case, but it is a sanction for misbehavior, and no law firm wants that on its record. I think I may say that this is probably particularly true when one represents a litigious client.

Just so everyone is clear, this isn't the November 29th order, where Judge Kimball upheld Judge Wells' June 28th order tossing out items on SCO's list of allegedly misused materials because IBM said they were not described with the required specificity, by version, file, line, and the court agreed. SCO has also asked Judge Kimball to reconsider his order on that, after he already reviewed Judge Wells' order and affirmed. The court, in turn, has notified SCO its filing is deficient and SCO has to refile.

This is instead the written order from November 30th, the next day, on another IBM motion, and it relates more to some materials SCO tried to introduce via experts reports, like the Marc Rochkind methods and concepts materials. As you can see in the Wells order, it's tossed.

Let me be clear on one point I've seen misunderstood in the media -- none of SCO's claims in its Complaint as filed have been tossed. SCO's Second Amended Complaint, which is the final and operative one, stands as filed, with all the claims intact. SCO's ability to *prove* them is what has been affected, but the claims are still in the case. IBM is working on that, with its various summary judgment motions, at least some of which look to me like a piece of cake, but the court has not yet thrown out any of SCO's claims in its complaint by either of the two orders, just evidence in support and materials introducing new claims by means of a back door, the experts reports, after the discovery deadline.

All of the items tossed by both orders could have been part of the case, if SCO had put them on the table straightforwardly, by the deadline, identified so IBM could know what the issues are, by version, file and line, and had it presented evidence in support of its methods and concepts theory by the deadline. Now, the court has ordered that it is too late:

...SCO may not challenge as misused, by expert testimony or otherwise, any material that SCO has not specifically identified in its Final Disclosures of Material Allegedly Misused by IBM...

As for anything else, not on the list, SCO can't introduce anything new, either:

As to what SCO has not specified as misused, it is the Court's intent that this order shall apply to any and all allegedly misused material, including structures and sequences.

Unless SCO can get this overturned, it's buh-bye methods and concepts. And some of you, I know, will say good riddance. All SCO had to do was play by the rules, and none of this would have happened. Instead, as Judge Wells put it, SCO seemed to be trying to hide materials until the 11th hour, in hopes of gaining an unfair advantage. And that tactic has blown up in SCO's face. She warned both sides at a February 2006 hearing that she didn't want evidence used that had been held back, in words she recalled in her June 28th order:

Obviously what I don't want is either side to use information that has been withheld in support of a summary judgment motion or in support of their case at trial, all evidence need[s] to be on the table for the other party to analyze and take a look at

She meant it. As Judge Kimball just wrote in his order affirming her June 28th order, there is no reason for SCO to be surprised:

The court finds that SCO failed to comply with the court’s previous discovery-related Orders and Rule 26(e), that SCO acted willfully, that SCO’s conduct has resulted in prejudice to IBM, and that this result–the inability of SCO to use the evidence at issue to prove its claims– should come as no surprise to SCO.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

____________________________

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.

___________________________________

ORDER GRANTING IBM'S MOTION TO
CONFINE SCO'S CLAIMS TO, AND
STRIKE ALLEGATIONS IN EXCESS OF,
THE FINAL DISCLOSURES

Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

Defendant and Counterclaim-Plaintiff International Business Machines Corporation's ("IBM's") Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, The Final Disclosures came before the Court for hearing on November 30, 2006. David Marriott appeared for IBM. Brent Hatch appeared for Plaintiff and Counterclaim-Defendant The SCO Group, Inc. ("SCO"). The Court, having considered both parties' papers, having heard argument of counsel, and for good cause appearing,

IT IS HEREBY ORDERED as follows:

1. IBM's motion is granted in full;

2. As provided in the Court's order dated July 1, 2005, the parties' Stipulation re Scheduling Order dated December 7, 2005, this Court's order dated June 28, 2006, and Judge Kimball's order dated November 29, 2006, SCO may not challenge as misused, by expert testimony or otherwise, any material that SCO has not specifically identified in its Final Disclosures of Material Allegedly Misused by IBM (Docket No. 591); and

3. As to what SCO has not specified as misused, it is the Court's intent that this order shall apply to any and all allegedly misused material, including structures and sequences.

DATED this 21st day of December, 2006.

BY THE COURT

___[signaature]___
Brooke C. Wells
Magistrate Judge

2

APPROVED AS TO FORM:

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

BOIES, SCHILLER & FLEXNER LLP
Edward Normand

___/s/ Brent O. Hatch _______________
Counsel for Plaintiff
(e-filed with authorization from counsel)

3

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of December, 2006, a true and correct copy of the foregoing was delivered by email to the following:

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

___/s/ Todd M. Shaughnessy________________

4


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