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To read comments to this article, go here
Novell moves to strike SCO's late filing - 2 expert reports
Thursday, May 31 2007 @ 03:10 PM EDT

This just in: SCO just filed yesterday a sealed supplemental declaration, long after the deadline, and here comes Novell's response:
  • 352 - Novell's Motion to Strike Supplemental Declaration of Mark F. James Attaching Expert Reports and Declarations
  • 353 - Memorandum in Support

I don't think Novell was pleased that SCO filed something 60 pages long the day before a hearing. Novell not only hasn't had a chance to read it properly, it has no chance to respond. It says it had no warning. It is asking the court to strike James' supplemental declaration and all that goes with it. I take this as SCO telegraphing that it was worried it would lose at today's hearing and so threw more evidence in, even late, even oddly, because they don't know what else to do. Novell implies something more deliberative.

Here are the grounds Novell is asking the court to strike it:

Despite the fact that SCOís opposition materials to Novellís April 20, 2007 summary judgment motions were due on May 18, 2007, SCO submitted the Supplemental Declaration of Mark F. James today, May 30, 2007, in support of its oppositions to Novellís motions. The declaration, attaching new evidence in the form of two expert reports, is untimely under the Federal Rules of Civil Procedure, the Local Rules of this Court, and the partiesí agreed-upon briefing schedule for Novellís motions. Accordingly, it should be stricken.

Once more, here they go. It's the same old, same old. You get delay, no matter what you do. So, call before you leave to attend the hearing. It could be delayed. Or, you may get to see the parties duke it out live in the courtroom.

The memorandum fleshes it out a bit, and remember this was written yesterday:

The court will hear argument on Novell's four motions for summary judgment tomorrow. The motions have been fully briefed. SCO's opposition materials were due on May 18, 2007, and Novell's reply materials were due on May 25, 2007.

Nevertheless, at the close of business today, May 30, 2007 -- and on the eve of the scheduled hearing -- SCO submitted a Supplemental Declaration of Mark F. James (filed under seal on 5/30/07, see PACER NO. 351) (the "James Declaration") in support of its opposition to Novell's motions. The James Declaration attaches over 60 pages of expert reports from Christine Botosan and Gary Pisano to which Novell has not had any opportunity to respond. SCO provided no warning to Novell that it would be submitting this new evidence on the eve of the hearing, and has not provided any excuse for why the expert reports were not filed along with its May 18th opposition papers. Indeed, SCO did submit conclusory declarations from Drs. Pisano and Botosan with its original opposition papers. SCO's new and belated expert reports should now be stricken as untimely under the Federal Rules of Civil Procedure and the Local Rules of this Court.

So, it not only was filed yesterday, on the eve of the hearing, it was filed at the *close* of the day, after normal business hours. But if they thought by doing so that they'd catch Novell's lawyers off guard with no ability to respond, they were mistaken. Novell cites case law. I'm just guessing here, but they probably have long ago researched all the dirty tricks that can be imagined, just for a rainy day like this.

The federal rule in question is Rule 6(b), which says that you have to ask for permission to file late and present a reasonable excuse. "We wanted to sandbag Novell" isn't going to be sufficient. The local rule is DUCivR. 5-1(c) which requires all filings be made at least 2 days before any scheduled hearing.

Here's the full Pacer entry:

05/30/2007 - 351 - NOTICE OF CONVENTIONAL FILING of Supplemental Declaration of Mark F. James filed by Counter Defendant SCO Group, Plaintiff SCO Group re [308] Sealed Document (James, Mark) (Entered: 05/30/2007)

05/30/2007 - 352 - MOTION to Strike Supplemental Declaration of Mark F. James Attaching Expert Reports and Declarations filed by Defendant Novell, Inc.. Motions referred to Brooke C. Wells.(Sneddon, Heather) (Entered: 05/30/2007)

05/30/2007 - 353 - MEMORANDUM in Support re 352 MOTION to Strike Supplemental Declaration of Mark F. James Attaching Expert Reports and Declarations filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A - Leviton v. Nicor)(Sneddon, Heather) (Entered: 05/30/2007)


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