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SCO Denied Again In Court 204

Posted by Zonk
from the can't-they-catch-a-break dept.
CDWalton writes "Groklaw has the latest in the SCO v. IBM case. Judge Wells denied SCO the opportunity to get depositions from involved parties after the date she had specified as the cutoff for those activities." From the article: "Brent Hatch started out talking about the request to take the depositions of Intel, Oracle, and The Open Group. Judge Wells brought up her October 12, 2005 order and said that depositions MUST be completed by the cutoff date. That any that cannot be taken by that date must be forgone. Brent stated that they properly noticed the depositions before the cutoff date and that they were not taken for reasons outside his, or his client's, control ... Judge Wells asked if the subpeonas were defective in some manner. Hatch: Yes, they were."
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SCO Denied Again In Court

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  • by bogaboga (793279) on Saturday February 25, 2006 @02:16PM (#14801012)
    I am wondering:

    Why do cases like SCO vs IBM take too long to resolve? Are inefficiencies in the justice system to take part of the blame?

    • by Odensgatan15 (898128) on Saturday February 25, 2006 @02:25PM (#14801049)
      Because lawyers get paid by the hour. That's why.
    • by FatRatBastard (7583) on Saturday February 25, 2006 @02:25PM (#14801053) Homepage
      For just the reasons laid out in the story: SCO have been dragging their feet every step of the way.
      • by killjoe (766577) on Saturday February 25, 2006 @03:07PM (#14801236)
        I think the fact that SCO is able to drag it's feet is result of the inefficiency of the system. SCO has so far not been asked to make a specific accusation yet for gods sake. They have changed their complaint mid stream too. How is that not inefficient?

        SCO started out this case by making a copyright violation accusation. Nobody is the court system said "which copyright, when and how?". During the pre-trial phase (more then two years!!!!!) they dropped that complaint and went on to other complaints.

        Why hasn't anybody asked SCO what bits of unix they own, what pieces SCO alleges Ibm stole. They still haven't said what IBM stole form them.

        Finally. Novell claims they own UNIX, not SCO. SHouldn't that case be settled first? If SCO does not own unix then this whole case has been a wasted time.
        • by mordors9 (665662) on Saturday February 25, 2006 @04:15PM (#14801471)
          Their ability to drag their feet is not really an inefficiency in the system. The delays are perhaps abuses of the system. The system itself will run as efficiently as the parties want it to. Given willing and cooperative parties, justice can be dispensed very quickly. In this case, SCO doesn't want to move the case forward as they know it is a loser. They seem to be hoping that they can keep hanging around long enough that someone will pay them off to go away and they can declare victory. They don't seem to be willing to read the tea leaves here as it seems clear that IBM is not going to bite.
          • And at what point do judges deal out barretry charges? Isn't it against the law to sue for the sake of suing?
            • Welcome to America.... if trial lawyers could not sue unless the other party could actually be shown to be negligent to people with some intelligence, they would all starve to death. Look at the millions they collected on the breast implant cases. Yet there was never a single scientific study that could show a connection between the implants and their conditions.
          • Once again this point out a defect in the system. A losing party should not be allowed to drag out the proceedings hoping to force the opposition to spend money.

            in a better justice system there would be severe punishments to discourage this kind of behavior.
            • A losing party should not be allowed to drag out the proceedings hoping to force the opposition to spend money.

              You are assuming that SCO is the losing party, but the case has not yet been tried. The jury trial isn't scheduled to begin until next February.

              The system is deliberately set up to allow both SCO and IBM to file crossclaims, bring in parties that are necessary for full resolution of all the issues, and conduct thorough discovery. It emphasizes thoroughness over speed.

              It is expensive and tim

          • The case is basically SCO's business plan right now. As long as it is in contention, SCO employees continue to receive salary. As long as it seems possible they might win, they can raise money to pay those salaries, either by direct investment or by shadow investment via Linux license purchases.

            It seems more and more likely they will lose the case, and when they do it's all over. So naturally they will seek every possible way to extend the trial. If they were confident in their ability to win they would be
          • Given willing and cooperative parties, justice can be dispensed very quickly. In this case, SCO doesn't want to move the case forward as they know it is a loser.

            OTOH, most of SCO's case will be thrown out by the judge at IBM's behest about ten minutes after discovery closes. This part'll be quick.
        • You are incorrect. (Score:5, Informative)

          by schon (31600) on Saturday February 25, 2006 @04:29PM (#14801501)
          SCO has so far not been asked to make a specific accusation yet for gods sake.

          You are incorrect. SCOX has been not only been "asked", but they have beeb ORDERED to specify what their allegations are, on *THREE* separate occasions. They've failed to do so (while claiming they have) each and every time.

          The last time they did it, they filed everything under seal, so that nobody besides IBM can point out that they've failed again (and yes, IBM has pointed it out to the court - out of the 294 items that SCOX filed, IBM has said that only one (yes, *ONE*) is "specific" enough for the court, but that one doesn't actually identify anything that IBM did.

          Why hasn't anybody asked SCO what bits of unix they own, what pieces SCO alleges Ibm stole.

          Again, they did (and not just "asked", but *ordered*, by a federal judge.)

          They still haven't said what IBM stole form them.

          This bit is correct, but that doesn't mean that nobody has "asked".
          • So the judge orders Sco to produce something. SCO claims it did but it hasn't. After two years of slogging through the joke-that-is-the-us-court-system why hasn't the judge either a) slapped SCO silly for not obeying her orders or b) thrown the case out?

            • why hasn't the judge either a) slapped SCO silly for not obeying her orders or b) thrown the case out?

              Because that's what SCOX wants. They want her (or Kimball) to pull a Judge Jackson so that they can drag it out even more in the appeals court.

              SCOX is gaming the system, but they're near the end of their rope. From the attitude Wells displayed in the court yesterday, it's pretty clear that SCOX has used up all of the "benefit of the doubt" they had.
              • SCO is going to appeal no matter what. Yes the appeal will be granted no matter what this judge says or does. It's almost always granted.

                The entire system is a joke. The should have ruled from the bench five days into the case and let it go to appeals where it's going to end up anyway.
          • Some people think that the main reason why both the judges and IBM are being so patient is that they want absolutely no excuse for SCO to appeal. I'm pretty sure that everybody involved knows just how weak SCO's case is.
            From groklaw notes:
            Judge Wells also asked SCO if they have found, after all the discovery provided by IBM, any evidence of source-code misappropriation by IBM or do they need more.
            I got a good laugh out of that.
        • It depends on how you define efficiency. The federal rules of civil procedure were designed to encourage adjudication of cases on the merits. The reason SCO has survived so far in court is that their allegations are seen as sufficient to state some sort of claim. What that claim is just isn't relevant at this early stage; the discovery process, which they're in the middle of now, is what will shape the nature of their claim.

          If this seems inefficient, consider the following hypothetical: you sue Bob for stea
    • by temojen (678985) on Saturday February 25, 2006 @02:28PM (#14801064) Journal
      Asside from the fact that judges work on several cases at the same time, so they have to schedule things, there are HUGE amounts of documents involved in a case like this.
    • by v1 (525388) on Saturday February 25, 2006 @02:35PM (#14801095) Homepage Journal
      The legal system is full of loopholes, extensions, exceptions, and other silly rules that are designed to cover up for inadequecies in other laws. This helps to give everyone a fair chance by providing an abundance of opportunities to get justice, but as a result, the cockroaches that are running from the light have plenty of dark corners to hide for awhile. It usually delays the inevetable, but in some cases if they stall for time long enough it can work out in their favor. Though it also can mean the farther you lift the hammer in the air, the harder it hits when at last it lands. I'm looking forward to SCO getting "nailed". It will be entertaining to watch their entire world suddenly collapse in on itself under the weight of justice, as the last of their shoddy bracing gives way at once.

    • by TubeSteak (669689) on Saturday February 25, 2006 @02:36PM (#14801102) Journal
      Cases like SCO v IBM take such a very long time to resolve for several reasons.

      1. The case is complicated. They're dealing with a web of contracts and code dating back decades.

      2. Judges give everyone lots of time for *discovery* to minimize opportunities for appealing the decision later on. It'd be a massive waste if they spent years litigating a case, only to get it overturned during appeal because of something that would have only added a week to the discovery process.

      3. IBM hasn't been pushing for an accelerated time table because of #2. IBm, like the Judge, doesn't want to win & then have to spend another 10 years in Appeals Courts.

      So... no, I don't think you can blame inefficiencies. Or if there are inefficiencies, they are left in place in order to avoid greater inefficiencies.

      SCO's lawyers have fucked up this case in so many ways that the Judge is beginning to seriously lose patience. I'm actually quite amazed that the Judge has given them so much slack up till this point.
      • I'm actually quite amazed that the Judge has given them so much slack up till this point.

        The more slack; the more rope to hang themselves.

      • by Jacco de Leeuw (4646) on Saturday February 25, 2006 @03:20PM (#14801284) Homepage
        So, to sum it all up.

        The good news: IBM is spending one billion dollar on Linux. The bad news: it is all going to their lawyers...
        • I don't really see the downside there.
        • Law firms will now invest large sums in Linux companies, in the hope that they'll get more business.
        • IBM can afford it more than SCO can. And in the long term, Linux has become more visible. In the longer term, IBM willing the case may do a lot for the legitimacy of linux and/or its licenses, particular if IBM and various linux license holders decide to fire back. Having a big company like IBM outright support Linux is hardly a bad thing, reputation-wise.
        • The good news: IBM is spending one billion dollar on Linux. The bad news: it is all going to their lawyers...

          Probably not. IBM's lawyers are likely on retainer.
      • This may all be correct, but it gives a plaintiff way much too leeway for nuisance lawsuits.
        I think there should be a requirement that you have to bring some evidence at the beginning of the lawsuit, else the court can just throw out your case. In that case, SCO vs. IBM would have been a lot shorter ;-)
      • The case is complicated.

        It wouldn't be, if SCO had a leg to stand on. Since they don't, it's in their best interest to delay and dissemble as much as possible. Their strategy from the beginning was just to get IBM to make a business decision to pay them off to save the cost of litigation.

        I've got to hand it to IBM's management for doing the right thing, here. If companies routinely went to court when they were hit with a litigation lottery scheme, there'd be a lot less abuse in our legal system.

        -jcr
    • by slavemowgli (585321) on Saturday February 25, 2006 @02:42PM (#14801132) Homepage
      Not really. The problem with cases like this is that there's one party involved (SCO, in this case) that is not actually interested in a quick resolution - or any resolution at all. Quite the opposite, actually; SCO has been and still is trying everything it can to stall the trial as much as possible, and it will continue to do so in the future.

      The reason for this is that they're ultimately paid by M$ (and maybe Sun) to create trouble - the whole trial is just a vehicle for FUD, meant to create doubt in middle and high management whether Linux is "safe" to use. Attacks from a technical perspective didn't work, so now they're trying to spread legal FUD - the same thing they've already done with patents and the like, too. The judge is probably well aware of all this, but the court still has to assume good faith and act as if the case potentially has merit.

      It's not clear to me how to deal with problems like this without also adversely affecting those who actually *do* have a good reason to sue and who *are* interested in a quick resolution (where it's possible).
      • Not really. The problem with cases like this is that there's one party involved (SCO, in this case) that is not actually interested in a quick resolution - or any resolution at all

        The truth is that other party, IBM, also wants to strech this out even longer than SCO does, in order to bankrupt them. That's why IBM has loaded up the case with stupid patent claims, investigations into Microsoft, fights over old AIX source code and a bunch of other stuff which prevents a quick resolution.

        IBM is representing IBM
      • by Stripe7 (571267) on Saturday February 25, 2006 @03:20PM (#14801282)
        What looks really interesting the IBM supoena's to HP, M$, SUN and Baystar. When the house of cards SCO builds finally gets blown away, will it reveal itself as a FUD campaign by those 4? If so does it open up those companies for lawsuits by IBM, RedHat, etc..?
    • Since these cases are so large and complex, extra time is needed to make sure all sides get their fair day in court and the judgment is accurate afterwards.
    • Why does software take so long to build? I mean, how hard can it be?
    • Scox requested, and got, complete code to every revision of AIX, released in the last 20 years.

      The request makes no sense. Scox doesn't own AIX, in fact scox doesn't own sysV. And even if scox did, the AIX code has nothing to do with scox's accusations. These accusations are nothing but assertions on scox's part, after three years, and three court orders, scox has not provided a shread of evidence.

      When scox first requested the AIX revisions, Wells only gave scox five years worth. Scox whined and whined; and
  • that Groklaw cheerfully accepts donations. PJ, we are not worthy.
    • that Groklaw cheerfully accepts donations...

      ...from IBM, RedHat, Novel...

      • PJ has said, many times, so as to be legaly liable for the accuracy of her statements, that she gets no support from any of the litigants in this mess. IBM flatly said it in a court document, very much legaly resposible for the accuracy of their statement. PJ is not getting any money from IBM.

        She does, however, every once in a while, get a PayPal donation from me. She gets my support becuase she is so classy, honest, open, and well documented in her handling of... well, your sort...

  • by LennyDotCom (26658) <Lenny@lenny.com> on Saturday February 25, 2006 @02:21PM (#14801030) Homepage Journal
    I have been watching SCO's stock price for over a year. It goes from about $4.25 to $3.80 and goes back and forth every few days. Somebody is probably making big bucks buying and selling every few days.
  • Can anyone tell me what the article is talking about? Tried reading it, but I just don't understand...
    • Re:IANAL, so...... (Score:3, Insightful)

      by HermanAB (661181)
      The gist of it:
      "Magistrate Wells supposes that the court orders and rules are for no other purpose than to be broken."

      Essentially, SCO asked for information and IBM responded with a deluge of 340,000 documents. SCO is unable to process the information and the magistrate is getting annoyed.
      • by temojen (678985)
        The judge is getting annoyed that she made a court order in October that all discovery must be done by febuary, but SCO is asking for an extension because they (probablly intentionally) screwed up.
      • Essentially, SCO asked for information and IBM responded with a deluge of 340,000 documents.

        I just want to point out that from what I've read SCO asked for almost every piece of information on everything related to Unix/AIX and Linux dating back decades. If they're unable to process it, it is because they got exactly what they asked for.
        • It's the old, "Be careful what you ask for" routine.

          For instance, a while back, the government was asking Google for a bunch of search result data to prove their dubious claims about online pornography intentionally invading non-pornographic searches.

          I kinda wanted to see them deliver a semi-trailer full of paper with search results in 8pt font on front and back and say "Here you go!"
      • SCO continually asks for more and more without looking at what they have.
    • Re:IANAL, so...... (Score:2, Informative)

      by mck9 (713554)
      Judge Wells had set a deadline for the close of discovery, i.e. the process whereby the litigants can ask each other -- or third parties -- for disclosures of information via documents, depositions, and the like. There are certain exception to this deadline but they don't apply here.

      SCO waited till the last minute to subpoena Intel, Oracle, and The Open Group, demanding that they provide witnesses for depositions. Besides being needlessly delayed, these subpoenas were procedurally defective in almost ever
      • by rewinn (647614) on Saturday February 25, 2006 @04:45PM (#14801557) Homepage

        From the article:

        1. "...the January 12th subpoena was defective in both substance and service." The subpoena is a document compelling the other side to show up at a deposition with certain documents, ready to talk about certain topics. Its substance was basically its content, what it was intended to communicate. The service is the procedure by which the document creator gives it to the target person (organization) in a legally effective way. The judge says the subpoena was defective in both characteristics, so it's not legally binding.

        2. "...That even had it not been defective it provided inadequate notice and time.
        Judges like to give 2nd reasons, when available, for their decisions, out of meticulousness (which is a good thing in a judge) or desire to forestall appeals (not a bad thing). Here, the judge is saying that even if she was wrong about point #1, the subpoena is no good because it didn't fulfill legal requirements as to the amount of time before the deposition that the subpoena has to be delivered, and warning (notice) about the content of the deposition. Ideally, depositions are not supposed to be occasions for surprising witnesses with weird questions, but a Search For The Truth, so witnesses are supposed to be given fair notice & time to prepare.

        3. "[the judge's] October 12th orders were clear, not subject to unilateral decisions to violate."
        TRANSLATED: the judge is really, really pissed. SCO's lawyers are giving totally bogus arguments, in her evaluation, which not only needlessly delays this particular case, but also strikes at the integrity of the entire judicial process.

        It appears from this article that SCO believes its only hope would seem to be to bait the judge into saying or doing something stupid, like Judge Jackson in the Microsoft case a few years back.

  • by Flying pig (925874) on Saturday February 25, 2006 @02:39PM (#14801117)
    Submitted: that on the evidence of the SCO case, the USPTO should review its ban on claims to have developed perpetual motion machines. The SCO share price oscillates continuously without the input of external energy, and the air emerging from the case is at a higher temperature than the input air, showing that energy is continuously being extracted.

    Although this is not directly related to the SCO case, which is about copyright and licensing rather than patents, it could be argued that the decision of the USPTO to award patents based on software or business processes has created the conditions in which legally based perpetual motion machines are feasible.

    • Submitted: that on the evidence of the SCO case, the USPTO should review its ban on claims to have developed perpetual motion machines.

      Unless memory serves me even worse than usual today, your premise is false. You can file a patent on a perpetual motion machine if you choose -- but to do so, you have to submit a working model to the PTO with the application.

      Note that at one time, submitting a working model was required for all patent applications. They removed this requirement for other patents, bu

      • You can file a patent on a perpetual motion machine if you choose -- but to do so, you have to submit a working model to the PTO with the application.

        Presumably, then, they'll only award the patent once they're satisfied it works. So if someone did submit a patent for a perpetual motion machine that actually worked, he'd have to sit around until the end of the universe to be granted his patent.

        From this we can assume that perpetual motion machines are effectively exempt from patent protection. No wonder n
    • The SCO share price oscillates continuously without the input of external energy

      Nope, it's getting lots of external energy in the form of checks from the Evil Empire.

      -jcr
  • at the shareholder's expense. When this is over, and if/when SCO loses, there's going to be a shareholder lawsuit. I guaaraannnteee it! Which will mean the death of SCO as we know it. Sure, it'll come back somehow, restructured and all, but it'll be a eunuch.
  • by Anonymous Coward
    Am I to understand that the "events beyond the control" of SCO that lead to the delay was that... SCO messed up their paperwork?

    The fact that SCO considers inability to do their paperwork correctly an "event beyond their control" is rather telling I think.
    • Re:So wait... wait (Score:2, Informative)

      by mck9 (713554)
      The events beyond SCO's control were that the parties failed to respond as requested to subpoenas that were vague, overbroad, contradictory, untimely, fatally defective in various other procedural respects, and hence not binding on anyone.

      However Judge Wells said that the subpoenas would have been untimely even if they had been flawless in other respects. The supoenaed parties would not have had time to respond appropriately.

      Or as Linus put it once: even in some alternate universe in which SCO were right,
  • by AaronW (33736) on Saturday February 25, 2006 @03:21PM (#14801289) Homepage
    Apparently Darl McBride will be giving a keynote speach at the Moscow Interop show in June. How the hell could anyone consider him for a kenote speach unless it's to throw stuff at him. Article on Yahoo at http://biz.yahoo.com/prnews/060215/law019.html?.v= 44 [yahoo.com].

    -Aaron
  • Judge Wells told Darl to be quiet!! He was there, and he was talking to one of SCO's lawyers. Shortly into the second portion of the hearing, while Darl was busy Googling and talking to Mark James, Judge Wells asked him to be quiet, that she knows he wants to talk (presumedly to Mark James), but to just pay attention.

    SLAPPED DOWN!
  • by Animats (122034) on Saturday February 25, 2006 @03:34PM (#14801346) Homepage
    SCO is having a teleconference [yahoo.com] at noon Eastern time on Monday, February 27, 2006. That's when they get to explain this latest loss to analysts. This should be entertaining.

    Toll Free within North America: (800) 481-7713
    Toll call: (719) 457-2730
    Passcode to enter call: 7134691

  • I had a really insightful comment, but I'm still hung up on the giant beavers story from earlier.
  • by jafac (1449) on Saturday February 25, 2006 @04:17PM (#14801475) Homepage
    Jesus jiminy cricket on a rocket-powered pogo stick!

    Why aren't these SCO assholes and their coconspirators behind bars already?

    This is ridiculous! - Since this SCO thing started, Martha Stewart traded stocks, got indicted, lied to investigators, got tried, found guilty, sentanced, finished her sentence, and returned to public life, and they can't even get this worthless SCO thing through depositions so they can decide it needs to be tossed out of court?

    And they wonder why people think the court system is broken in this country.
    • by jd (1658)
      The judge is going over the case with a fine tooth comb, making absolutely certain everything is 1000% in order, every i dotted, every t crossed, every aspect examined. I would guess she's aware that Microsoft has abused the wording of previous legal decisions against them in order to carry on with assorted malpractices and she would likely want to avoid that. Further, a case like this WILL go to appeal, and she presumably wants to make utterly certain that such an appeal will fail, utterly. Finally, I woul
      • I cannot imagine that this case will go on appeal.

        SCO's deal with Boise & Schiller (or whatever the name of the lawfirm is) was a one time payment of stock & cash for representation. I doubt it requires representation at an appeal, and there's no way they'll be able to pay for an appeal.
  • Kent Brockman here. For insight into this latest development and commentary on the impact on SCO we cross to our correspondent, Nelson Muntz. Nelson?

    Ha-ha!

    Thanks Nelson. I, for one, welcome our humor-bearing SCO lawyers.

  • Lawyers shouldn't be allowed to make a career of abusing our Justice system with actions they know are meritless, but which might exploit an error by the court. After three rulings by a judge that they have done so, they should be barred from practicing law until after completing the qualifying requirements again: lawschool and licensing exam.

    The people pay for the machine they're abusing, but they get paid to abuse it. I'd also like to see a state directory of lawyers, with their "batting average", their p
  • I'm kinda serious about it: How realistic is it for us to buy SCO?

    Imagine this farce finally coming to an end with no options left for SCO. There will be a shareholder lawsuit. Stock will plummet somewhere around then and SCO be dirt cheap. We should be able to get 51 percent together if SCO cost something like 20 cents per share or something. No?

    How many SCO shares are there? How does this stock market thing work in detail in the US?

    Imagine buying SCO and turning it into some neat community run open source
    • I'm kinda serious about it: How realistic is it for us to buy SCO?

      If you buy shares of SCO, you are helping to alleviate the losses of the assholes who are playing the litigation lottery.

      If you want the SCO name and internet domains, just buy them from the recievers who will eventually be appointed by the bankruptcy court.

      -jcr
    • Aside from the correctness of the other guy that replied to this...

      SCOX has 21M shares outstanding. In order to avoid massive shareholder lawsuits when you decided not to increase the value of the company, you would need to purchase all of the shares and take the company private. At your recommended price point of $0.20 per share, you would still need USD $4,200,000.

      Not worth it, if you ask me.

      --S (IANA financial advisor or stock expert).
  • I'm pretty sure (based on earlier Groklaw coverage of these attempted depositions) that the things SCO was asking for included information on dealings between the other parties and... the companies to which they claim to be successors in interest - the old SCO, Caldera, etc.

    Information which, as the successor in interest to those companies, they really ought to have filed somewhere.

    Oops.

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