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Another twist in SCO v Novell - stipulated delay on objecting to 26(a)(3) lists
Wednesday, August 08 2007 @ 10:01 PM EDT

There's a stipulated delay on objecting to one another's pretrial lists just filed in SCO v. Novell. Whatever it was that the parties have been arguing about that they hinted to the judge they thought they could work out, well, I guess not. Surprise. Here is the filing, Stipulation and (Proposed) Order Extending Pre-Trial Rule 26(a)(3) Disclosure Objections [PDF] and the Proposed Order [PDF]. Also the court has approved [PDF] Eric Acker's addition to the Novell team.

Now, if you look at the pretrial schedule on our Novell Timeline page or check the latest schedule ordered [PDF], you won't find a deadline set for objections to disclosure lists. That's because normally you don't see it happen, in my experience. Who fights about the other side's witness and document lists?

I told you I smelled motion practice in the air when SCO and Novell both mentioned some ongoing disputes. I don't wish to assume it's SCO, just because it usually is SCO finding something to fight about that delays everything, but for a company that tells the media how eager it is to have its day in court, it sure does drag its little feet.

So something is up, very possibly related to the dispute about discovery that Novell told the court about in its last filing:

Novell notes that: SCO recently produced over 1,000 pages of third-party production SCO claims is relevant to this litigation; expert discovery is not complete; the parties have various evidentiary and summary judgment motions pending; and the parties are continuing to meet and confer regarding certain outstanding discovery issues. Novell therefore reserves the right to supplement or otherwise modify these disclosures.

Maybe SCO slipped one important document into that pile of 1,000 hoping it wouldn't be noticed. Or maybe Novell intends to object to 1,000 new documents after fact discovery is supposedly over. Most law firms would.

Or maybe it's about that footnote in SCO's last filing about somebody allegedly having waived attorney-client privilege on documents Novell listed as privileged:

In a letter dated June 28, 2007, counsel for SCO informed counsel for Novell that it has waived the attorney-client privilege with respect to many documents listed as entries on Novell's privilege logs, including documents that Novell produced in redacted form and documents that Novell has withheld entirely. With respect to most of these documents, the parties appear to be in disagreement as to whether there has been any waiver and, if so, the extent of its scope and the potential relevance of the referenced documents, but the parties are continuing to meet and confer on the issue. SCO reserves the right to supplement the information provided in its Pretrial Disclosures with any additional documents that Novell has improperly redacted or withheld based on its privilege objection, as well as with the names and contact information of any other witnesses identified through any such documents.

On the other hand, it could be something completely unrelated. We'll just have to wait and see. But if you are planning to attend the trial, you'd best stay tuned, in case there is another change in the schedule.

This all reminds me of something I keep forgetting to mention. I've seen some comments that Boies Schiller are fabulous lawyers when it comes to stretching cases out by means of various procedural delays. Not to detract from the honor you wish to bestow on them for their obvious skills which I guess you first observed in the IBM litigation, but the truth is all lawyers know how to do it. Really. If that's all you want, any lawyer knows how. Getting one to agree to actually do it is another issue, of course.

Procedural delays are not that hard, particularly if you have a patient judge. But even if you don't, you can drag things out quite a lot. Remember that dispute in Florida Boies got into about landscaping? Is that even over yet? It went on for about a decade, and it wasn't even about intellectual property, just a gardening contract. I seem to remember they went through 9 judges in 9 years, and at some point Boies was ordered off the case. Last I heard, the gardener Boies' client was fighting won a ruling that his legal fees were to be paid by the opposing party, Amy Habie. That was last December. Wait, the New York Times says it all began in 1996, so it's more than a decade. Boies writes about the Habie v. Habie divorce/custody case in his book Courting Justice, if you read it. But the nearly eternal dispute was about a contract later. Believe it or not, it was covered in Lawn and Landscape Magazine at one point back in 2004:

The Palm Beach landscaping company represented and partly owned by celebrity lawyer David Boies has racked up its fourth and fifth contempt of court citations, plus $81,000 in damages and fines, for "willfully, deliberately and repeatedly" violating court orders in an eight-year legal battle.

Nical of Palm Beach Inc. and co-owner Amy Habie -- Boies' employee, client, business partner and close friend -- also face the prospect of paying more than $1 million in legal fees, costs and compensation to the owners of a rival company, Scott Lewis Gardening & Trimming Inc....

Each accused the other of breaching the sale contract, and Habie sued when Lewis went back into business with a competing company.

They agreed to a settlement in 1998, but have been in court ever since over claims of violations. Nical has lost 11 appeals of adverse rulings but kept the litigation alive through the efforts of Boies and numerous other lawyers from his firm and firms brought in by Boies, Schiller & Flexner.

I guess the landscaping magazine covered it because the poor guy Lewis was a landscaper who didn't have the means to pay millions to fight in court for a decade, nor did he have a lawyer friend willing to donate services, so he was not able to afford to pay legal fees after a while and had to defend himself pro se, so it was a big deal when the court ordered that his legal expenses should be paid.

My point is simply that there are always ways of stretching things out and you don't have to be a genius to do it, just a lawyer. But you sure can make some judges mad if it's egregious in their eyes, and if they get mad enough, they can find ways to make you pay for it, one way or another. The reason for that is delays can cost money.

None of this is about SCO v. Novell, where there have been very few delays, if you think about it, and this one is stipulated. I'm just explaining how it all can work, so you won't imagine that delays are hard to achieve.

Here's the schedule now from the latest Order:

(a) The parties shall file and serve their respective Rule 26(a)(3) Pretrial Disclosures by August 2, 2007.

(b) A Final Pretrial Order shall be entered by August 9, 2007.

(c) The parties shall file and serve any Proposed Jury Instructions by August 16, 2007.

(d) The Special Attorney Conference and Settlement Conference shall be held on August 21, 2007.

(e) The parties shall file and serve any motions in limine by August 22, 2007.

(f) Any oppositions to motions in limine shall be filed and served by August 29, 2007.

(g) Any Daubert hearing (subject to the Court's agreement to conduct one) shall be held on September 11, 2007.

(h) A Final Pretrial Conference shall be held on September 11, 2007.

(i) The trial of this action shall commence on September 17, 2007.

And of course, to this the parties have now added their deadline for objections to each others' Rule 26(a)(3) pretrial disclosures. So that's the current schedule, maybe not so much carved in stone.

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