IP-WARS.NET || Memorandum attaching and in support of IBM's proposed scheduling order

Memorandum attaching and in support of IBM's proposed scheduling order - OCR

By pgk, Section Legal Documents
Posted on Wed Mar 30th, 2005 at 23:49:24 EST

Br3n pointed out SCO vs IBM document 426 on pacer. (Who was told by Frank Sorenson of Tuxrocks, so (as seems to be a constant requirement) thanks to Frank)

As normal check that original PDF if in any doubt.

It's got most of the standard stuff e.g. repeating that SCO still haven't revealed the code in question etc.

IBM uses the phrase " Allegedly Misused Material " 8 (eight) times in the pretty short document.

Also footnote 5, might result in a bit more speculation as to SCO's proposed third amended complaint.

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
15 West South Temple, Suite 1200
Salt Lake City, Utah 84101-1004

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019

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.

MEMORANDUM ATTACHING AND IN
SUPPORT OF IBM'S PROPOSED
SCHEDULING ORDER

(ORAL ARGUMENT REQUESTED)

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Pursuant to the Court's January 18, 2005 Order, defendant/counterclaim-plaintiff International Business Machines Corporation ("IBM") respectfully submits this memorandum attaching and in support of its proposed scheduling order.

Preliminary Statement

      In its January 18 Order, the Court directed the parties to meet and confer and to submit a proposed scheduling order on or before March 25, 2005. The parties met and conferred and reached agreement on elements of a proposed schedule.[1] Because the parties have been unable to agree in all respects, however, they are submitting competing scheduling proposals. We respectfully submit that the Court should enter IBM's proposed scheduling order, attached as Exhibit A, as the final scheduling order in the case.[2]
      SCO objects to only one substantive feature of IBM's proposal: that the Court set deadlines for both parties to disclose the particulars of their claims (first by an interim deadline and then by a final deadline) before the close of all fact discovery. IBM proposes that the parties disclose the precise contours of their claims at a time when they will be able to take discovery with respect to those claims and properly prepare them for trial. SCO, by contrast, insists on a schedule that would allow it to keep IBM in the dark about its claims and deny IBM the right to prepare its defenses to those claims. SCO's proposal, if accepted, would result in further unnecessary disputes and delay.
      IBM objects to three of the provisions SCO seeks to include in the scheduling order. SCO seeks to include provisions that would (1) foreclose IBM's motion for reconsideration without substantive review by the Court; (2) re-open the pleadings more than one year after expiration of the deadline for amending pleadings; and (3) require the parties and the Court to participate in monthly status conferences - on no particular subject - that would merely invite unnecessary disputes. There is no need for the provisions SCO proposes. In fact, they would operate merely to short circuit existing orders and procedures that are already in place. SCO's proposed provisions should not be included in the scheduling order.

Argument

I.   THE COURT SHOULD ENTER A SCHEDULING ORDER IMPOSING A DEADLINE FOR THE PARTIES TO IDENTIFY ALLEGEDLY MISUSED MATERIAL.
      From the beginning of this litigation, IBM has endeavored to learn the specific identity of the material (including source code, methods, concepts and so on) that IBM is alleged to have misused. To that end, IBM has met and conferred with SCO and filed two motions to compel, resulting in discovery orders requiring SCO to disclose its alleged evidence. Yet, as the Court recognized in its February 9 Order, SCO has failed to adduce any evidence that IBM has infringed SCO's alleged copyrights. (See 2/9/05 Memorandum Decision and Order at 10 ("it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities").) That is so despite SCO's repeated public statements that it has mountains of evidence of IBM's alleged misconduct. (Id. at 8-9 (listing certain of SCO's public statements about its alleged evidence))
      As a result, IBM has long been concerned that, absent a final, court-imposed deadline for the parties specifically to identify the materials they contend one another misused (the "Allegedly Misused Material"), SCO will not disclose the identity of the Allegedly Misused Material until it is too late for IBM to prepare a defense with respect to that material. SCO reinforced our concern by refusing to agree to a schedule that would require either an interim or a final disclosure of the Allegedly Misused Material. Although the parties met and conferred regarding their respective proposals, SCO did not offer a reason for its objection to IBM's proposal. There is not, we submit, any good reason for not imposing firm deadlines, in advance of the close of all fact discovery, for the parties to disclose the Allegedly Misused Material. [3]
      If and when SCO properly identifies the Allegedly Misused Material, IBM will obviously need to take discovery with respect to that material. For example, if SCO were to identify Linux code that it contends is derived from AIX, Dynix, or UNIX System V and was improperly contributed to Linux, then IBM would need to take discovery to determine the facts relating to the code in question, including but not limited to (i) who wrote the code, when, how, and why, (ii) whether and to what extent it is in the public domain and (iii) whether and to what extent it is protectable by contract or copyright. Unless the Court imposes a deadline by which the parties must identify the Allegedly Misused Material, then they may not learn the identity of the material they are alleged to have misused until after the close of fact discovery and potentially even expert discovery when it would be too late to prepare a defense to claims relating to the material.
      Under IBM's proposal, the parties would be required specifically to identify the Allegedly Misused Material on a staged basis before the close of all discovery.[4] Specifically, IBM proposes an interim deadline of June 11, 2005, by which the parties would identify the Allegedly Misused Material known to them as of that date, and a final deadline of August 11, 2005, by which the parties would identify any and all material that the other party is alleged to have misused. All fact discovery would close on August 11, 2005, except as to defenses to claims relating to the Allegedly Misused Material. The only fact discovery that would be permitted thereafter would be fact discovery relating to defenses to claims relating to the Allegedly Misused Material. No party could contend that another party misused material not identified by the August 11 deadline; no expert could opine as to the misuse of material not identified by the deadline.
      Imposing an interim deadline, as IBM's proposal does, allows the parties to undertake discovery relating the Allegedly Misused Material as soon as possible, without having to wait until the final deadline for disclosing Allegedly Misused Material. There is no reason to defer discovery relating to the parties' defenses, which cannot reasonably be undertaken until the
      Allegedly Misused Material has been identified, any longer than necessary. Imposing a final deadline, before the close of all fact discovery, for the parties to disclose all of the Allegedly Misused Material, ensures that the parties learn what each other's case is about at a time when they can take fact discovery necessary to prepare a defense. If the Court does not impose a real deadline by which the parties must disclose the Allegedly Misused Material and then allow discovery with respect to the material disclosed, then IBM will remain in the dark as to the particulars of SCO's claims and be denied the opportunity to take discovery regarding the material that IBM is alleged to have misused.
      Moreover, requiring the parties to disclose the Allegedly Misused Material before the close of all fact discovery will allow the parties to engage in meaningful expert discovery and refine the issues in dispute for summary adjudication. The parties may or may not require the assistance of experts to identify the material they contend one another misused. If they do, then their experts can assist them in making their disclosures. Expert discovery is not the time, however, for identifying the Allegedly Misused Material. It should be done in advance of expert reports so that the parties' experts can focus on what is really in dispute. It would make no sense, and would plainly be unfair, to allow either party to identify the Allegedly Misused Material for the first time by way of the report of one of its experts.
      In sum, the Court should set deadlines for both parties to disclose the particulars of their claims (first by an interim deadline and then by a final deadline) before the close of all fact discovery. It is difficult to imagine how such a requirement could prejudice SCO, particularly since SCO has been ordered (twice) to provide this information to IBM.

II.    THE PROVISIONS SCO SEEKS TO INSERT INTO THE SCHEDULE ARE EITHER UNNECESSARY OR INAPPROPRIATE.
      As stated, SCO's proposal includes three provisions not included in IBM's proposal. Those provisions seek to (1) deny IBM the relief sought by its motion for reconsideration of the Court's January 18 Order; (2) re-open the pleadings more than one year after the expiration of the deadline for amending pleadings; and (3) require monthly status conferences -- on no particular subject -- that would merely encourage unnecessary disputes. None of these provisions is either necessary or appropriate.
      First, SCO includes in its proposal a provision requiring IBM to complete on or before May 3, 2005 production of the discovery ordered by the Court on January 18, 2005. There is already an order in place requiring IBM to complete that production (insofar as it is not the subject of IBM's motion for reconsideration) by May 3, 2005. (See 3/17/05 Order Re IBM's Motion for 45-Day Extension to Comply with 1/18/05 Order.) There is therefore no reason for the scheduling order to address the issue as well. SCO failed to offer any reason for this redundant provision during the parties' meet-and-confer; we assume, however, that SCO seeks this provision solely to secure an order requiring IBM to produce the discovery at issue in IBM's motion for reconsideration. The Court already has addressed that issue as well, however. In its March 17, 2005, order, the Court expressly ruled that "IBM shall not be required to produce [the discovery at issue on its motion for reconsideration] until the Court has ruled on that motion". (Id.) Accordingly, there is no reason for the scheduling order to include a provision requiring IBM to complete production of the discovery required by the January 18 Order on or before May 3, 2005.
      Second, SCO seizes upon the Court's request that the parties submit a new scheduling order as an opportunity to reopen the pleadings. The deadline for amending the pleadings passed more than one year ago, without any request by SCO to extend it. Yet SCO proposes that the parties be allowed until June 17, 2005, to submit new pleadings. In an Order dated June 10, 2004, the Court ruled that it would not change the scheduling order in the case "absent extremely compelling circumstances". There is no reason - and certainly there are not extremely compelling circumstances -- for the Court to reopen the deadline for amending the pleadings.
      That is especially so since SCO clearly seeks this adjustment solely as a means to gain an advantage in connection with its pending -- and untimely -- motion for leave to file an amended complaint.[5] At this stage, the case should be getting smaller, not bigger.
      Third, SCO seeks to require the Court and the parties to participate in monthly status conferences. During the parties' meet-and-confer, SCO offered no valid reason for including such a requirement. IBM is willing to participate in status conferences if the Court believes they are necessary, but we respectfully submit there is no reason for monthly status conferences. If SCO wishes to bring an issue to the Court's attention, it can do so by filing an appropriate motion after satisfying its obligation to meet and confer with IBM. Requiring the parties to participate in monthly status conferences would merely invite unnecessary disputes. Indeed, we believe, respectfully, that a monthly status conference would multiply not decrease discovery issues   inviting the parties to raise issues with the Court without first properly propounding discovery requests, conferring in good faith regarding disagreements, and submitting appropriate briefing.

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court enter IBM's proposed schedule as the final scheduling order in the case.

DATED this 25th day of March, 2005.

Footnotes

[1] During several lengthy phone conversations, local counsel for IBM and local counsel for SCO discussed each of the scheduling deadlines, making clear they would need to confer with their respective co-counsel before finally agreeing. Local counsel reached a tentative agreement on everything other than the four issues addressed in this memorandum. Local counsel for IBM then contacted counsel for SCO and informed him that these tentative deadlines were acceptable to IBM. This afternoon, counsel for SCO informed us that SCO would not agree to these tentative deadlines. The proposed scheduling order submitted herewith includes the tentative deadlines, and though we do not know what SCO finds objectionable about them, they represent a compromise and we respectfully submit they are reasonable.

[2] In the event the Court were to deny IBM's motion for reconsideration of the January 18 Order and require IBM to provide discovery from the files of thousands of individuals or to grant SCO's motion to amend its complaint yet again and allow SCO to expand the case, IBM's proposed schedule would obviously have to be modified. In such circumstances, the proposed deadlines would need to be extended.

[3] IBM's proposal imposes a reciprocal disclosure obligation. We are not suggesting that the Court impose on SCO an obligation that would not also be imposed on IBM. The reason SCO is uninterested in IBM being required to disclose the material it alleges SCO has misused is that IBM has already done so with great particularity.

[4] For this purpose, the Allegedly Misused Material must be identified by version, file and line of code. For example, to the extent a party contends the other party has infringed its copyrights, the accusing party must identify and match up the allegedly infringing and allegedly infringed material by version, file and line of code. To the extent a party contends that the other party has breached its contractual obligations by contributing code to Linux, the accusing party must identify the material alleged to have been contributed improperly by version, file and line of code, and to the extent the allegedly contributed material is not Unix System V code, but is any sense alleged to have been based on or resulted from Unix System V code, the version, file and line of Unix System V code from which the allegedly contributed material is alleged to derive or result.

[5] As is explained in IBM's opposition to SCO's motion to amend, if SCO wishes to bring the claim it seeks to assert against IBM, then it can seek to assert the claim in the Court in which it is contractually bound to proceed (a New York court).

< Breaking News! (223 comments) | Memorandum in support of SCO's proposed scheduling order - OCR (13 comments) >

Memorandum attaching and in support of IBM's proposed scheduling order - OCR | 12 comments (11 topical, 1 editorial, 2 hidden)

And here are the scheduling orders (4.33 / 6) (#2)
by fudisbad on Thu Mar 31st, 2005 at 07:59:50 EST
(User Info)

IBM's Proposed Amended Scheduling Order
SCO's Proposed Amended Scheduling Order

Unfortunately SCO's website is the only place we can get them at the current moment.

Dates specified by SCO (some have been left out):

03 May 2005 - IBM's complete production of discovery pursuant to doc #377
17 Jun 2005 - Amendments to pleadings
28 Oct 2005 - Fact discovery closes
Monthly discovery conferences held on first Monday of each month up to 28 Oct 2005
24 Feb 2006 - Expert discovery closes
06 Mar 2006 - Deadline for filing dispositive motions
26 Jun 2006 - Final pre-trial conference
Any time after that - jury trial

Dates specified by IBM (some have been left out):

10 Jun 2005 - All parties to disclose and produce Allegedly Misused Material
11 Aug 2005 - Fact discovery closes except for discovery re: Allegedly Misused Material
11 Nov 2005 - Fact discovery closes
10 Mar 2006 - Expert discovery closes
24 Mar 2006 - Deadline for filing dispositive motions
26 Jun 2006 (or later) - Final pre-trial conference
Any time after that - jury trial

Nice to know that they roughly agree on some things. However, the argument is about the dates relating to the Allegedly Misused Material, which is "the SysV (or whatever it is now) allegedly copied into AIX, Dynix and/or Linux" cannot be agreed on. It's sad to realise that SCO are only revealing their claims in a month or two's time.

We all know that it doesn't exist, though. Like Blepp's briefcase, the 10-K, the 10-Q and the millions of lines of code.

Darl McBride, show your evidence!
Back a stock scam, buy SCOXE!

Re: Memorandum attaching and in support of IBM's p (3.85 / 7) (#7)
by William Jolitz (William@unlisted.email.address) on Wed Apr 6th, 2005 at 12:54:52 EST
(User Info) http://william.telemuse.net/

The point of this current tussle is to establish the scope of the case. The teams may have had an elaborate strategy, but the point is to get the ball down the field.

For SCO, they've exhausted the judges' patience - very dangerous. For IBM, its a chess game where they don't want a wrong move.

It gets down to telling the story, line by line, like in "Source Code Secrets The Basic Kernel", for the judge. If you don't have the time or venue to tell the story, it won't be heard, you won't win.

The first step is the schedule. SCO also wants as many times at bat to save the bacon.

What's truely astonishing to me is how far SCO's gone to depending on discovery here. Their "hail mary" bet appears to be that IBM was inept/cynical, and that will let them make the story as they see fit. So I don't see a grand long range strategy, just a fast and vicious court fight that depends on something that happened many years back.

Link not working for me. by AncientBrit, 04/06/2005 13:29:38 EST (3.60 / 5)

Re: Memorandum attaching and in support of IBM's p (3.50 / 4) (#3)
by br3n on Fri Apr 1st, 2005 at 09:42:36 EST
(User Info)

<5] As is explained in IBM's opposition to SCO's motion to amend, if SCO wishes to bring the claim it seeks to assert against IBM, then it can seek to assert the claim in the Court in which it is contractually bound to proceed (a New York court).>

on yahoo some very interesting things about the monterey contract have turned up.it has to be litigated in new york and no jury.limitations on the liability amount(a little confused here)but very interesting .maybe this was the target all along with a hope to bring this case up so they could avoid a judge in new york?
hiding the facts till too late so the judge would say well since we are here already we might as well settle this too?
sigh
the farther along we get the more confusing it is?

br3n

Re: Memorandum attaching and in support of IBM's p by JCausey, 04/01/2005 10:41:26 EST (3.80 / 5)

Re: Memorandum attaching and in support of IBM's p by ColonelZen, 04/01/2005 11:36:58 EST (3.83 / 6)
Re: Memorandum attaching and in support of IBM's p by br3n, 04/01/2005 11:10:02 EST (3.50 / 4)

Bye bye spambot (1.00 / 2) (#11)
by Potential Recruit on Mon Nov 27th, 2006 at 14:17:51 EST

This used to be a spambot post that is flooding the site. Due to volume, I had to resort to this while I work to block access by these bots. My apologies - thanks for your patience.

Jeff

Bye bye spambot (none / 0) (#12)
by Potential Recruit on Tue Nov 28th, 2006 at 13:02:04 EST

This used to be a spambot post that is flooding the site. Due to volume, I had to resort to this while I work to block access by these bots. My apologies - thanks for your patience.

Jeff

Memorandum attaching and in support of IBM's proposed scheduling order - OCR | 12 comments (11 topical, 1 editorial, 2 hidden)

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