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IBM Responds to SCO's Motion Asking for Reconsideration ~pj
Saturday, May 25 2013 @ 03:30 AM EDT

IBM has filed its response [PDF] to SCO's motion asking for reconsideration of the Court's order denying SCO's motion to reopen the SCO v. IBM case. I have it as text for you.

IBM tells Judge David Nuffer that it doesn't oppose reopening the case at all -- in fact it says it should happen. IBM has a proposed outline on how to proceed thereafter. Its plan differs from SCO's.

Rather than deciding all the still pending summary judgment motions filed five years ago immediately, IBM suggests a process that goes like this: First, toss out all the claims that the SCO v. Novell final judgment made moot, the ones SCO concedes are foreclosed. That would be almost all of them. I believe all that's left, if it is still viable, which I doubt, is SCO's unfair competition claim regarding Project Monterey and its tortious interference claim alleging that IBM interfered with SCO’s market and business relationships. At least that's what SCO listed the first time it tried to reopen this case.

After that, IBM suggests it file a motion for summary judgment regarding its position on the impact of the Novell judgment, and if the court agrees, "it will be unnecessary for the Court to decide a number of the pending summary judgment motions to resolve these claims." If not, the parties will need to come up with a scheduling order, because there will likely be a need for further briefing, in that the pending summary judgment motions were filed years ago, and "the body of relevant case law has grown."

The Novell judgment, IBM further points out -- and this is the part that reveals why IBM doesn't mind a bit if the case is reopened -- did not resolve all of IBM's counterclaims:

For example, while the Novell Judgment strengthens IBM’s counterclaims concerning SCO’s campaign to create fear, uncertainty and doubt about IBM’s products and services, it does not completely resolve all of those claims. Thus, the Court will need to address certain of the pending motions, which may also require supplemental briefing and argument.
IBM doesn't mention it here, but I recall that there is a counterclaim of copyright infringement related to the GPL. So a scheduling order is going to have to happen in any case. And finally, if SCO elects to pursue other matters it has mentioned before, the Court may need to decide those issues. IBM attaches as Exhibit A its 2011 filing, "IBM’s Memorandum Responding to SCO’s Request to Reopen", filed in response to an earlier attempt by SCO to reopen the case, and it suggests that the court proceed as described in that filing. That's also where SCO's other matters it may or may not elect to pursue are found, in paragraph 12, essentially some pending motions for reconsiderations of earlier judges' decisions that went against SCO.

The filing:

05/24/2013 - 1111 - RESPONSE to Motion re 1110 MOTION for Reconsideration of the Court's Order Denying Motion to Reopen the Case re 1109 Order on Motion to Reopen Case, Order on Motion for Hearing, Memorandum Decision filed by Defendant International Business Machines Corporation, Counter Claimant International Business Machines Corporation. (Attachments: # 1 Exhibit A - IBM's Memorandum Responding to SCO's Request to Reopen)(Sorenson, Amy) (Entered: 05/24/2013)

We, of course, have Exhibit A already, because we covered it when IBM filed it in 2011, and you can read it as text here. SCO's motion that IBM was responding to is here. That was back when SCO wanted to be able to go ahead with its claims, or claims it claims it still has, but keep IBM from pursuing its counterclaims. You know, the very ones IBM appears rather eager to get into with SCO now. The court didn't go for that.

I don't think SCO is going to enjoy this part of its saga. I'm puzzled as to why it even wants to go forward, frankly, but no doubt they have some aces, or what they imagine are aces, up their sleeve. Their trolls showed up on cue here at Groklaw, I noticed, as soon as SCO filed. So the gang's all in place.

Here's the part that IBM highlights, paragraph 12, about SCO's other issues it may elect to raise, and I've inserted links to where you can find each document:

12. Both Judge Kimball (to whom this case was initially assigned) and Magistrate Judge Wells entered a series of orders callng SCO's claims into question and materiaily limiting SCO's case. SCO challenged these rulings in motions/objections that are fully briefed: (1) SCO's Motion for Reconsideration of the November 29, 2006 Order (Doc. # 894); (2) SCO's Objections to the Magistrate Judge's Order on IBM's Motion to Confine (Doc. # 899); (3) SCO's Motion to Amend its December 2005 Submission (Doc. # 913); (4) SCO's Motion for Reconsideration by the Magistrate Court of the Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence (Doc. # 986); and (5) SCO's Objections to the Magistrate Court's Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence (Doc. # 995).
SCOfolk told the media at the time that its motion for reconsideration, #894, was based on "new evidence". To this day, we don't know for sure what it is, because the motion was sealed, as was the memorandum in support, but the redacted version for the public is here. Perhaps we'll finally find out what is in the redacted parts. I gather SCO hopes it is a Perry Mason moment, but truthfully, I followed the case closely enough that I think I know what the redacted portions say, and I can't see why it would be new. It's rather arguments and evidence in support that SCO thought of after the judge's decision that it could have and should have said before but didn't, kind of like you and I do after an argument, when you think of what you wish you had said instead of what you did say. That's not the legal definition of new evidence. New evidence means you just discovered it, not you just remembered it.

Mostly all the SCO motions were about things that the SCO lawyers thought the judges did wrong, but in my view it was more like this: SCO misbehaved, the court ruled, trying to ambush IBM with a legal theory of the case that it hid until discovery was over, and as a punishment, SCO was not allowed to pursue its "methods and concepts" theories of infringement. Then the lawyers started coming up with motion after motion, trying to undo the damage they'd brought on themselves. That's how I saw it, anyway, and all the nitpicking of the judges' decisions to me are just how to cross the river SCO needs to cross. That's why IBM writes that SCO *may* elect to bring up all this old hash again, but then again, it may not.

My money says they will, in that there's no other reason that I can see to want to reopen the case. It's SCO's only hope. I can't see how the Project Monterey claims survive reality, in that SCO wasn't a signatory to that contract, so it doesn't have standing to complain, and even if it did, the statute of limitations is long over. Plus, as IBM pointed out the last time SCO tried to reopen this case, the contract was broken by Santa Cruz, not IBM, when it sold its business to Caldera.

SCO may elect to try again for those still-pending motions to be looked at again by this new judge, who doesn't know SCO as well as we do or the previous judges handling the case did. And anyway, when does SCO not try again? And again? And again? But the part that I don't understand is why those old motions would even matter now that SCO has been ruled not the owner of the Unix copyrights. I guess I'd have to go back and review everything to figure out what might still be on the table related to those motions. But from memory, I don't see anything worth pursuing that wasn't killed off or maimed by the Novell judgment. If you recall, Novell not only was ruled the owner of the copyrights SCO had claimed to own, it was ruled able to cancel any contract complaints SCO might have wanted to raise.

To tell you the truth, I'm kind of looking forward to this case being reopened, I realized as I was doing the IBM filing as text and saw all the old lawyers' names again after all this time and remembered the IBM style of litigation, which I enjoy watching very much. I never saw any better in my life than David Marriott, who is still on the team, I see. I can't imagine SCO wanting to reopen all this unless it has some plan, so it will be interesting to get all loose ends tied off and the story finally reach The End. Do you realize this case has been going on for ten years and two months?

Here is the IBM response, then, as text:

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
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.

________________

IBM’S MEMORANDUM RESPONDING TO
SCO’S REQUEST FOR RECONSIDERATION

Civil No. 2:03-CV-0294-DN

Honorable David Nuffer

Defendant/Counterclaim-Plaintiff International Business Machines Corporation (“IBM”) respectfully submits this memorandum in response to the request of The SCO Group, Inc. (“SCO”) (n/k/a TSG Group, Inc.) for reconsideration (Docket No. 1110) of the Court’s order denying SCO’s motion to reopen the case (Docket No. 1109).

Argument

1. IBM does not oppose reopening this case, as a final judgment has been entered against SCO in the Novell Litigation (see SCO Group, Inc. v. Novell, Case No. 2:04-cv-139; The SCO Group, Inc. v. Novell, Inc., 439 Fed. Appx. 688 (10th Cir. 2011) (“the Novell Judgment”)), the bankruptcy stay has been lifted (see Docket No. 1110 at Ex. B), and the Court may now proceed to adjudicate all of the claims in suit.

2. However, IBM takes a different view from SCO as to how the Court should proceed when the case is reopened. Rather than undertake immediately to decide the numerous outstanding motions, we respectfully submit that the Court should proceed as is described in IBM’s Memorandum Responding to SCO’s Request to Reopen, filed November 21, 2011 (Docket No. 1100), which is attached hereto as Exhibit A.

3. Specifically, when the case is reopened, IBM believes the Court should first dismiss the claims that SCO concedes are foreclosed as a result of the Novell Litigation. SCO admits that at least five (and perhaps six) of its claims against IBM, and part of another of its claims, are foreclosed by the Novell Judgment. (See Ex. A ¶¶ 28-29 for a fuller discussion.)

4. Because the parties disagree as to the effect of the Novell Litigation on other claims, IBM proposes to make a motion for summary judgment addressing the impact of the Novell Judgment on all remaining claims (including IBM’s counterclaims). If we are correct

1

about the impact of the Novell Judgment, it will be unnecessary for the Court to decide a number of the pending summary judgment motions to resolve these claims.

5. Once the Court has determined the effect of the Novell Judgment, we propose the Court require the parties to submit a scheduling order to govern the balance of this action. If the Court were to deny the summary judgment motion that IBM proposes to make concerning the impact of the Novell Judgment, then it would be necessary for the Court to wade into the pending summary judgment motions concerning those claims. But before doing so, it will likely be advisable (depending in part on the nature of the Court’s ruling as to the scope of the Novell Judgment) for the parties to supplement the existing briefing, and the Court may want to hear additional argument. Not only does the Novell Judgment affect these claims in important respects, but also the pending motions were made nearly five years ago and the body of relevant case law has grown.

6. Even if the Court were to grant IBM’s proposed summary judgment motion (as to the impact of the Novell Judgment) in its entirety, we believe it will make sense for the parties to submit a proposed scheduling order based upon that decision. While the Novell Judgment had a significant impact on the claims and counterclaims in this case, it did not resolve all of IBM’s counterclaims. For example, while the Novell Judgment strengthens IBM’s counterclaims concerning SCO’s campaign to create fear, uncertainty and doubt about IBM’s products and services, it does not completely resolve all of those claims. Thus, the Court will need to address certain of the pending motions, which may also require supplemental briefing and argument.

2

7. Depending on what remains in the case following the Court’s ruling concerning the impact of the Novell Judgment, and the pending summary judgment motions, the Court may also need to decide certain other motions/objections (see Ex. A ¶ 12) in the event SCO elects to pursue them.

Conclusion

For the foregoing reasons, IBM respectfully submits that the Court should re-open the case and proceed as outlined above.

DATED this 24th of May 2013.

SNELL & WILMER L.L.P.

/s/ Amy F. Sorenson
Alan L. Sullivan
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

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