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AutoZone Trial Set for August 10, 2010 [Hardy Har] - Updated
Thursday, July 30 2009 @ 09:28 AM EDT

The trial date for AutoZone has been set for August 10, 2010. But I think we can reasonably expect some summary judgment motions from AutoZone long before then.

What the judge has done is administrative. Early on, the judge always sets up a schedule. But you saw in the IBM case, that doesn't at all mean that anyone will stick to the schedule. That trial was originally scheduled for April of 2005, but it hasn't happened yet. In this case, I seriously doubt SCO v. AutoZone will ever go to trial. The judge has also ordered that the case is now referred to a magistrate judge to set up a settlement conference prior to May 31, 2010, which is also in the realm of fantasy. I mean, they might meet, but I don't expect SCO management to ever settle anything. Of course, if SCO gets a trustee in bankruptcy court, that would alter the landscape significantly. Trustees are not known for litigation-at-all-costs fever.

Here's the judge's order, not in a PDF but just a docket reflection of what he ruled in chambers:

07/24/2009 - 103 - MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 7/24/2009. By Deputy Clerk: K. Goetsch.

IT IS ORDERED this case is scheduled for Jury Trial on the stacked calendar of 08/10/2010, at 08:30 AM in LV Courtroom 7D before Judge Robert C. Jones; Calendar Call will be held on 08/04/2010, at 08:30 AM in LV Courtroom 7D before Judge Robert C. Jones.

IT IS FURTHER ORDERED this case shall be referred to the U. S. Magistrate Judge for scheduling of a settlement conference. The deadline to set a Settlement Conference is 05/31/2010.

To the extent the parties seek to extend discovery and/or related deadlines which would effect the trial date, any such request shall include a request to continue the hearings set by this minute order.

(no image attached) (Copies have been distributed pursuant to the NEF - KXG) (Entered: 07/24/2009)

I gather this judge wants this case to get going. So, what happens now? Discovery, only this time both parties get to do discovery. Originally, only SCO got to do some limited discovery specifically related only to the issue of whether it would ask for a preliminary injunction, which it decided not to do. Wise move, considering what discovery demonstrated.

A reader found an interesting ComputerWorld article from 1996, "SCO leading Unix fightback against NT", showing why Santa Cruz decided to merge OpenServer and UnixWare -- to deal with loss of business that was heading to Windows NT:

In April this year market research company IDC predicted Windows NT Server will overtake Unix in total server sales this year....

SCO has announced that mid-1997 it will deliver its new operating system, Gemini, a consolidation of its SCO OpenServer and SCO UnixWare (based on the Unix System V, release 4.2 Unix kernel which it acquired from Novell last year).

If you recall, AutoZone moved to Linux from OpenServer after they said SCO announced it would no longer support OpenServer, and that means that at that time, there was no new code being developed for OpenServer, presumably. And when SCO lost against Novell on the UNIX copyright ownership issue, it put out a statement:
The company is obviously disappointed with the ruling issued last Friday. However, the court clearly determined that SCO owns the copyrights to the technology developed or derived by SCO after Novell transferred the assets to SCO in 1995. This includes the new development in all subsequent versions of UnixWare up through the most current release of UnixWare and substantial portions of SCO UnixWare Gemini 64.
This confirms the point I made the other day that they don't own the older code, even if it's in OpenServer. They'll have to prove they own the copyrights on the COFF and header files they claim were allegedly infringed, even if they could prove infringement. And that's why I really don't expect we'll ever get to a trial in this case.

Update: I see some comments about the trial schedule, expressing annoyance that the judge set the trial date a year off. That is actually not far off for a court. I'll show you why.

And the judge doesn't get to pick any old schedule. Here are the Federal Rules of Civil Procedure [PDF], and you'll notice on page 76 it mentions that each court must have a rule for scheduling trials. So they do. Here are the local Nevada rules [PDF].

If you look on page 46 of the Nevada rules, it mentions the judge getting the parties together for a scheduling conference. The parties here did just have a telephone conference, and probably they did discuss things like discovery. They tell him at that conference what they expect they'll need in the way of discovery, so he can plan out a realistic schedule. And on page 55, you'll see that often there is a stipulated schedule. If not, there is normally, in Nevada, a 180-day period for discovery. But it can be more, if it seems to be needed.

So, why isn't the trial scheduled for 180 days from when AutoZone filed its Answer? Because there's more that has to happen between the end of fact discovery and the trial. If you look at the IBM Timeline page, at the top there is a schedule. The dates kept changing, because of all the delays, but look down the list for the entry that says Close of All Fact Discovery. See how many items come next, before the trial date? Things like:

  • Close of All Remaining Discovery (i.e., Fact Discovery As to Defenses to Any Claim Relating to Allegedly Misused Material); Initial Expert Reports;
  • Opposing Expert Reports;
  • Rebuttal Expert Reports;
  • Final Deadline for Expert Discovery (Expert Discovery Cutoff);
  • Dispositive Motions Summary Judgment Motions;
  • Oppositions to Dispositive Motions Summary Judgment Motions;
  • Reply Briefs on Dispositive Motions (Reply Memoranda);
  • Responses to Requests for Admissions;
  • Rule 26(a)(3) Disclosures;
  • Objections and counter-designations to Rule 26(a)(3) Disclosures;
  • Motions in Limine;
  • Deadline for Exchanging Proposed Jury Instructions;
  • Filing of Proposed Jury instructions;
  • Final Pretrial Conference;
  • Special Attorney Conference and Settlement Conference;
  • Oppositions to Motions in Limine;
  • Reply Briefs on Motions in Limine;
  • 5-week Jury Trial.

See what I mean? The judge has to schedule time for each of these things to happen, and some of them are responsive, meaning the defendant can't file something until the plaintiff does first. So they can't just all file everything on the same day.

Now, if you were watching closely, perhaps you noticed in that list that there was a schedule for a settlement conference? It's near the very end, just before the Oppositions to Motions in Limine and the Reply Briefs on Motions in Limine, followed by the trial. I think that's what the judge in AutoZone is referring to, except in his case he lets the magistrate judge do it. There's a lot to cover between the start of a case and the trial, in other words, and this case has been sitting on the back burner, doing nothing for a long time, so it's essentially just now getting started. Perhaps that will give you more context for why the trial is a year off.

One of the hard parts about being a lawyer is you have to know all the rules, and of course they are not static, so you have to keep checking. That's no doubt one reason why it's necessary to have a local lawyer or firm sign on with any out of state lawyer. You've seen pro hac vice applications by lawyers in several of the cases we've covered. If you look at the Nevada rules beginning on page 25, you'll see all that it means to sign up to represent a client in a state where you don't have a practice. Just thought you might be interested. What I was thinking as I did the list was how much we have covered on Groklaw, and if you were here for the entire ride, you know what each item on the list means. If you were not here for everything, you have a way to figure it all out, by just going down the Timeline pages and reading the corresponding articles.

My overall point is just this: we don't know all the factors that went into the exact date chosen, but when I consider all that has to happen first, it seems quite fast to me to go from the start of discovery to a trial in just a year. If you look at the schedule for the SCO v. Novell litigation, it took a lot more than that to get to trial, and that case was quicker than IBM to hit the milestones on the schedule. The only time a case goes quicker than that is when you have summary judgment motions, as we saw in the DaimlerChrysler case. If you look at that Timeline, you will see that the complaint was filed in March of 2004, and thanks to summary judgment in favor of DaimlerChrysler, it was essentially over by August. That is kind of what I expect will happen here, unless the Novell decision is massively overturned on appeal, perhaps. But this judge already told the parties that he intends to go forward as is, with the Novell judgment in Utah viewed as being the state of the copyright ownership relevant to this litigation. Even an appeal win by SCO, then, unless or until it is final, isn't likely to change his mind, and this case should be done long before that.


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