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Ladies and Gentlemen, SCO v. IBM Is Officially Reopened ~pj
Saturday, June 15 2013 @ 05:46 PM EDT

The Hon. David Nuffer has ruled on the SCO v. IBM motions, granting SCO's motion for reconsideration and reopening the case, which IBM did not object to. Judge Nuffer apologizes to the parties for the error in his previous order refusing to reopen the case. Sounds like a mensch to me. I love it when judges don't pretend something is the lawyers' fault when it's really the judge's fault. He's newly assigned to this case, and it's been going on for over a decade, so he specifically tells the parties not to assume his familiarity, asking them to provide him with enough detail in the various briefs going forward to work with. And he has essentially accepted the IBM suggestions on how to go forward, which SCO did not want to happen. I was fairly confident he would, though, precisely because he's new and he surely needs some time and help from the parties to get up to speed. So it's going to go like this:
1. SCO must file a brief statement identifying the claims it agrees are foreclosed by the SCO v. Novell judgment, the one that found that Novell did not transfer the UNIX copyrights to SCO in 1995. That wiped out all of SCO's claims, IBM asserts; SCO says it has two left.
2. IBM can then object to that list, which I'm sure it will.
3. IBM can then, by July 15, file a new motion for summary judgment on the remaining claims and counterclaims. This is what SCO did *not* want to happen.
4. After that motion is decided, there will be a process and schedule set up for the parties to respond to the court's request that they identify summary judgment motions filed before the current judge was assigned that they still want to be decided, which this judge will then do.
Here's what *won't* happen, what SCO wanted, namely that the old summary judgment motions filed 5 years ago that were stalled all this time by SCO's bankruptcy be ruled on without SCO having to do any more briefing.

Here's what *could* happen: The whole thing could be over after step number 3.

Here's the order:

06/14/2013 - 1115 - ORDER granting 1110 Motion to Reconsider 1109 the court's order denying the 1095 motion to reopen this case. The motion to reconsider is granted, the motion to reopen is granted and the parties are directed to make submissions as stated in the order. (DN) (Entered: 06/14/2013)

Here are all the summary judgment motions still pending. Those are the ones that SCO must go through and decide which are still viable, if any. They believe tortious interference and unfair competition regarding the Project Monterey partnership.

The thing that makes predictions a bit murky is that there are some other motions, aside from the summary judgment motions, that were also not officially decided before SCO filed for bankruptcy that could, in SCO's perfect world, reopen certain matters. I believe they would have been denied, if the prior judge had had time to rule on them. Now? I don't know. There was a SCO motion for reconsideration pending and one objection to an earlier ruling, and a motion to supplement its list of allegedly misused materials. How any of this survives the Novell victory is unknown to me, but SCO are a clever, clever bunch. Here they are, just for completeness:

1 and 2. You can find two of these unresolved SCO motions linked to in this Groklaw article. SCO filed an objection [PDF] to the magistrate judge's order to confine (Nov. 30, 2006, from the bench) and to the presiding judge's order [PDF] upholding the magistrate judge's June 28, 2006 order, limiting SCO's claims to the ones it had laid out and the parties had done discovery on, the order barring SCO from introducing a new methods and concepts claim via SCO expert Marc Rochkind, which I wrote about here and here. In essence, it was a sanction, based on her decision that SCO more or less hid evidence until the 11th hour to try to gain an unfair advantage. If SCO can get that decision lifted, obviously it can go forward full steam ahead. I assume that is the dream. But how they can when they don't own the copyrights is the mystery.

3. And SCO also filed a yet-to-be decided motion to supplement its list of misused material, an alternate way to try to get its new method and concepts claim introduced into the case. Again, I don't see how any of this matters now, unless the game is to try to introduce post-1995 UnixWare copyrights into the case. That's probably it. Of course, that bumps into the same wall that the Marc Rochkind methods and concepts claim crashed into -- it's a bit late now, since discovery ended long ago. SCO didn't list a single UnixWare copyright or any UnixWare materials allegedly infringed, but that's what claiming "new evidence" could end up being about.

4. And SCO filed a motion for reconsideration of the court's ruling denying SCO's claim that IBM was guilty of spoliation of evidence.

What SCO should really ask the court for is a Time Machine, so it can go back in time and do a better job. Actually these motions are asking for exactly that, if you think about it.

You know what? I lived this history in excrutiating detail all through the decade when it was playing out, day after gruesome day, and *I* can't remember everything, even though I wrote articles about every twist and turn. I still have to look it up and try to refresh my recollection. And even then, I worry about whether I got it all right, but those are the motions that are still red on our SCO v. IBM Timeline page, meaning they are still pending. We need to bring that page up to date, I notice. Groan. Who can believe this is still going on?

If I can't remember it all clearly, how in the world can a newly assigned judge be expected to have all the details at his fingertips without briefing? Maybe that's why SCO hoped he'd rule without it. It's not really possible to look closely at SCO's machinations and wish them God speed. That's the one true and reliable statement in this saga, that the closer you look, the less you like what you see.

And here is the text of the order, and I've altered it only in that I've made links to all the docket-numbered filings in the footnotes:

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC.,
Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant.

ORDER REOPENING CASE AND
VACATING PRIOR ORDER

Case No. 2:03-cv-294 DN

District Judge David Nuffer

SCO filed a motion for reconsideration1 of the court's order2 denying its motion to reopen3 this case. IBM does not oppose the motion to reconsider or the motion to reopen the case.4 The order entered denying the motion to reopen is VACATED.5 This motion for reconsideration is therefore GRANTED;6 the motion to reopen is GRANTED;7 and the clerk will reopen the case.

IT IS FURTHER ORDERED:

1. On or before June 24, 2013, SCO shall file a brief statement identifying its claims which it agrees are foreclosed by the Novell judgment and the form of a judgment dismissing

(1)

those claims. The order shall be emailed in word processing format to [email].

2. On or before June 28, 2013, IBM may file any objection to the form of that order.

3. On or before July 15, 2013, IBM may file a new motion for summary judgment limited solely to the effect of the Novell judgment on the remaining claims and counterclaims. The motion shall provide sufficient factual background to understand the claims in this case and the claims and decision in the Novell case without assuming the court has read other documents in this case file or has any knowledge of the claims in the Novell case.

4. After that motion is decided, by a method and on a schedule yet to be determined, the court anticipates the parties will be asked to identify summary judgment motions filed before the case was assigned to this judge which should still be decided and digest and submit pertinent parts of memoranda and supporting materials. These motions will be reactivated on the court docket and would then be resolved by the court.

Dated June 14, 2013.

BY THE COURT:

(signature)

David Nuffer
United States District Judge

(2)

1 Docket no. 1110, filed May 7, 2013.
2 Docket no. 1109, filed April 23, 2013.
3 Docket no. 1095, filed November 4, 2011.
4 Docket no. 1111, filed May 24, 2013.
5 The order was based on a fundamental misunderstanding of the effect of the SCO bankruptcy on this case. As SCO pointed out in its request to submit the motion to reopen (docket no. 1107, filed June 12, 2012) the bankruptcy stay has been entirely lifted as to this case, including SCO's claims and IBM's counterclaims. The court apologizes to the parties for its error and the unnecessary work it has caused the parties..
6 Docket no. 1110, filed May 7, 2013.
7 Docket no. 1095, filed November 4, 2011.

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