Finally!
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| Author | Content |
|---|---|
| TPuffin Jun 29, 2006 4:02 PM EDT |
I was very gratified to read this. I particularly liked how she used so much of SCO's own arguments against them, as it should be when they double-speak and backtrack so much. |
| grouch Jun 29, 2006 6:28 PM EDT |
TPuffin: Someone pointed this out in a Groklaw comment: "Judge Hands IBM a Small Win Against SCO By Sean Michael Kerner " http://www.internetnews.com/dev-news/article.php/3617241 That's not a tongue-in-cheek article, either. Maybe Jupitermedia would *like* for IBM's motion to strike to be a "minor battle". |
| dinotrac Jun 29, 2006 10:26 PM EDT |
grouch: Small, minor, major, etc is all in the eye of the beholder. In essence, SCO has lost its fishing license. It's case, with a few clearly drawn exceptions, has been limited to the claims substantiated by reference to Linux source code. SCO is required to tell IBM what it's complaining about. The court has told SCO that it can not pursue any claims that it has refused orders to properly specify. The order would seem much more important if IBM had been completely (instead of only partly) denied - that would amount to a federal court telling a plaintiff to fish at will. That would be significant news -- not to mention the basis for a good appeal. |
| grouch Jun 29, 2006 10:34 PM EDT |
dinotrac: It is major in that it eliminates 2/3 of what SCOG hoped to take to trial. It is also major in that it has taken over 3 years to determine what the case is about. To characterize the 39 page ruling (with 128 footnotes) as "minor", as Sean Michael Kerner does, one would have to either be cheering for SCOG or oblivious to the history of the proceedings. |
| dinotrac Jun 29, 2006 10:50 PM EDT |
grouch: The length of the ruling has nothing to do with its importance. It would mean the same thing if it had been written in a single paragraph. The judge went into a lot of detail because the SCO attorneys have been such royal jerks. I don't know how much SCO actually hoped to take to trial, and neither do you. All we know is what they put in their pre-trial motions. It's not at all uncommon to see lawyers try to jockey a judge. It could be a major ruling if SCO's lawyers actually have the specific source code to back up their claims and forfeited those claims by misreading the judge. My guess would be that's not the case. At the cost of these lawyers, I certainly would hope that isn't the case. More likely, SCO included a number of claims that it couldn't substantiate, hoping that discovery would fill in the gaps. Now, with IBM having provided reams of discovery materials, those claims have been taken away. |
| grouch Jun 29, 2006 10:59 PM EDT |
dinotrac: I don't know what you mean by "lost its fishing license" and the references to discovery materials, since this has nothing to do with discovery, other than the close thereof. I suggest you visit http://www.groklaw.net/staticpages/index.php?page=2003101616... to refresh your memory of the case as it stands now. |
| dinotrac Jun 29, 2006 11:39 PM EDT |
grouch: I suggest you read the order. It has everything to do with discovery. SCO's claims were denied as a sanction for refusing to comply with interrogatories. Interrogatories are a form of discovery. More than that, the denied claims may have been based on SCO's assessment of what might come out in discovery. It's a matter of "What we know we know" + "What we think we know" + "Wouldn't it be great if it turned out to be true". The first category (what we know we know) can be supported very specifically at an early stage. The second category can be fleshed out with the help of information from reasonably specific discovery requests. The third? Well, that's called fishing. At any rate, I think I'm at the end of my insomnia (stupid dog for waking me up at 1:00 am), so I'm signing off. |
| Sander_Marechal Jun 30, 2006 3:45 AM EDT |
Dinotrac: I have to agree with grouch (as a habitual groklaw reader myself). This motion was more about SCO trying to redefine what specificity was needed for their final disclosures. There's another motion running at the moment wherein IBM states that the SCO expert reports try to introduce new/expanded claim and would like them stricken. That's much more a revocation of a fishing license than this motion I think. See http://www.groklaw.net/article.php?story=20060608225433263 |
| dinotrac Jun 30, 2006 6:22 AM EDT |
sander.... Ummmm..... A. I was talking about the Judge's order, not IBM's motion B. The disclosures ARE discovery! |
| grouch Jun 30, 2006 8:59 AM EDT |
dinotrac: No. This is not about discovery. It is about IBM's Motion to Limit SCO's Claims Relating to Allegedly Misused Material, docket # 619. The only relationship to discovery that it has is that fact discovery is over. Here is Davis' chart: http://edge-op.org/files/IBM-657-B.html |
| dinotrac Jun 30, 2006 9:06 AM EDT |
grouch: I will not argue this any more. The order is in plain english for anyone who cares to read it. |
| grouch Jun 30, 2006 8:00 PM EDT |
dinotrac: Very well, from the plain English of the Order: "This matter is before the court on Defendant/CounterclaimPlaintiff International Business Machines Corporation's (IBM) Motion to Limit The SCO Group Inc.'s (SCO) Claims Relating to Allegedly Misused Material. A hearing on IBM's motion was held on April 14, 2006. At the hearing, SCO sought leave to file the declaration of Marc Rochkind. The court granted SCO's request and out of a sense of fairness gave IBM 10 business days to respond to the Rochkind declaration because this was originally IBM's motion. The court has throughly considered the relevant law, expert declarations, the parties' memoranda, and has reviewed the 198 items at issue in this motion. During a recent hearing this court stated, Obviously what I don't want is either side to use information that has been withheld in support of a summary judgment motion or in support of their case at trial, all evidence need[s] to be on the table for the other party to analyze and take a look at. After the evidence is "on the table" then the fact finder will be able to determine the merits of both SCO's and IBM's claims and counterclaims. The current motion focuses on the interpretation of the court's prior orders and exactly what evidence should have been provided pursuant to these orders. The sanction IBM seeks precluding SCO from using certain alleged misappropriated items because of a lack of specificity - is very serious. As outlined in greater detail below, the court finds that SCO has failed in part to meet the level of specificity required by this court's orders and the order entered by Judge Kimball. It is also apparent that SCO in some instances failed to meet the level of specificity it required of IBM. Further, this failure was willful under case law and prejudicial to IBM. Therefore, the court GRANTS IBM's Motion to Limit SCO's Claims Relating to Allegedly Misused Material in PART." IBM, motion, claims, specificity, orders. SCOG received almost all of the fishing licenses they asked for, even in the face of very well reasoned objections by IBM. They were permitted broad discovery, yet they still failed to specify by version, file and line, exactly what they claim IBM misused. SCOG's claims were denied, not because of IBM's Interrogatories, but, to repeat the plain English of the Judge's Order, "the court finds that SCO has failed in part to meet the level of specificity required by this court's orders and the order entered by Judge Kimball. It is also apparent that SCO in some instances failed to meet the level of specificity it required of IBM. Further, this failure was willful under case law and prejudicial to IBM." |
| dinotrac Jun 30, 2006 8:19 PM EDT |
Grouch - Did you actually read and understand any of the stuff I said in earlier posts? |
| grouch Jun 30, 2006 9:37 PM EDT |
dinotrac: You tell me if I misinterpreted: The ruling was characterized as "a small win" by Kerner. I suggested Jupitermedia may wish it was small. You talked about the eye of the beholder. Fine. You and Kerner can consider it a minor ruling, while nearly everyone else, including Blake Stowell, consider it a major setback for SCOG. You said SCO has lost its fishing license. A fishing license or expedition, as it relates to litigation, generally implies seeking the universe from an opponent in discovery in order to find a wrong-doing. SCOG has already been fishing. Among the mountains of information they received were 'the releases of AIX and Dynix consisting of "about 232 products"'. There was 17 GB of Dynix RCS. This order did not deal with that. It dealt with SCOG's lack of specificity in its claims. You then mentioned claims and specificity, but followed that with a dismissal of the ruling's importance or significance as news. I'm sure IBM thinks it is significant, since they've been trying to nail down what the case is about for 3 years. Your next comment again refers to SCOG's fishing. This is puzzling because these claims were presented right at the deadline, after all the fishing had completed. The only way your comment would make sense is if SCOG had been sitting on the list of allegedly misused material for 3 years, and then presented it in spite of finding no code during discovery to match up with the claims. Next you say that SCOG was sanctioned over interrogatories and that these are part of discovery. The Order says they were sanctioned for willful non-compliance with court orders. I stand by my comments. I say that Kerner's characterization of the ruling as a "small win" by IBM is bizarre, to the point of suggesting a pro-SCOG slant to the report; that this ruling is major and significant as news, in context with what has been going on in the case for over 3 years; that this ruling is not about discovery, but rather about SCOG's lack of specificity concerning what they claim IBM did wrong, incredibly, in spite of 3 court orders telling SCOG how specific they had to be by 2005-12-22. Very likely, the amount of source code made available to SCOG during discovery was considered by Judge Wells as she composed her Order, but the basis of the Order is that, without something specific to point to that is alleged to have been misused by IBM, IBM would be "left to guess as to SCO's claim[s]." |
| dinotrac Jul 01, 2006 4:17 AM EDT |
OK grouch, I will try to make this as simple and as clear as possible: You: You and Kerner can consider it a minor ruling, while nearly everyone else, including Blake Stowell, consider it a major setback for SCOG. Me: I don't know how much SCO actually hoped to take to trial, and neither do you. All we know is what they put in their pre-trial motions. It's not at all uncommon to see lawyers try to jockey a judge. It could be a major ruling if SCO's lawyers actually have the specific source code to back up their claims and forfeited those claims by misreading the judge. I'm not sure which part of this gives you trouble. I thought the english was pretty simple. Let me try again. Let's start with "actually hoped to take to trial" -- This will shock you grouch, but, believe or not, some lawyers actually try to game the system!!! I know that's hard to imagine from a profession that everybody respects so much, but it's true. Every lawyer filing a complaint includes some claims that are weaker and less substantiated than others. Every lawyer filing a complaint knows that some of those claims may get dismissed before going to trial. So, I believe that the degree of setback to SCO depends on how much they actually expected to get past the motions and discovery phase. You are free to disagree, but it is a reasonable basis for evaluating the order. On to "I don't know" That means there are things that nobody has told me. In this case, SCO's lawyers have not shared their strategy with me. I could be very wrong, but I'll bet they haven't shared their strategy with you or with any of the commentators giving their opinions. Now, a part that seems you serious trouble: "It could be a major ruling." Gosh!! That's what others were saying!! I said they would be right IF the judge's order actually took something away from SCO that they had actually hoped to get. That is, something that didn't count as bonus points. Me again: My guess would be that's not the case. At the cost of these lawyers, I certainly would hope that isn't the case. More likely, SCO included a number of claims that it couldn't substantiate, hoping that discovery would fill in the gaps. The word "guess": That's me reiterating that I don't know the SCO team's strategy. It should have been clear by now that I am not trying to get into anybody's head. "I certainly would hope" Here's where my past gets in the way. Having actually practiced a little while as a lawyer, I tend to believe that most lawyers are pretty smart. I've seen lawyers do some very stupid things, but, by and large, they're a pretty smart group. SCO's lawyers are not a bunch of low-dollar fly-by-nights. They should know what it takes to get something into trial and they should understand the role of a federal judge. I am presuming that they know these things and simply didn't have the evidence to back up the claims that were lopped off. An aside: The 2/3 of the case thing -- You sure do have a thing for quantity. Legal cases are not simply a matter of piling up arguments. Quality matters. Think of it this way -- Imagine you are going into battle with 15,000 troops. 5,000 of those are Delta Force with the latest automatic weapons, surveillance, communications, etc. They have rocket launchers, artillery pieces, whatever else they may need. The other 10,000 are barefoot old men and young boys with sharpened sticks and slings. The enemy has scattered the ground with broken glass, pottery shards, tacks, sharp stones, and scorpions. The Delta Force is unaffected, but the old men and young boys can't go on. Your operation is hurt, but is it crippled? You: this has nothing to do with discovery, other than the close thereof. Pretty amazing thing for you to say since the claims were stricken as a sanction for SCO's refusal to comply with IBM's discovery requests: The court (quoting an earlier statement); Obviously what I don't want is either side to use information that has been withheld in support of a summary judgment motion or in support of their case at trial, all evidence need[s] to be on the table for the other party to analyze and take a look at. The court again: The current motion focuses on the interpretation of the court's prior orders and exactly what evidence should have been provided pursuant to these orders. The court is saying that the order is primarily about (that 's what they mean by focuses) what SCO should have provided to IBM in response to discovery. From the discussion in the order: In October 2003 IBM filed its first Motion to Compel Discovery. 26 In the motion IBM sought an order from the court compelling SCO to "respond fully to IBM's First Set of Interrogatories and First Request for Production of Documents Shortly after SCO filed its First Motion to Compel, IBM filed its Second Motion to Compel Discovery on November 6, 2003. In this motion IBM sought to compel SCO to fully answer IBM's second set of interrogatories and to produce certain agreed upon documents. On December 5, 2003 ... [t]he court ordered SCO: 1. To respond fully and in detail to Interrogatory Nos. 1-9 as stated in IBM's First Set of Interrogatories. 2. To respond fully and in detail to Interrogatory Nos. 12 and 13 as stated in IBM's Second Set of Interrogatories. 4. To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. 6. If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom they were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance. And, getting to what immediately led up to IBM's motion: On October 21, 2005 pursuant to this court's request SCO filed a Renewed Motion to Compel Discovery. ... On December 20, 2005 this court granted in part SCO's renewed motion. Finally, on February 24, 2006 the court denied without prejudice SCO's most recent Motion to Compel. SCO was given 30 days to file a more concise and detailed motion but did not do so In a nutshell, from the order The sanction IBM seeks precluding SCO from using certain alleged misappropriated items because of a lack of specificity - is very serious. As outlined in greater detail below, the court finds that SCO has failed in part to meet the level of specificity required by this court's orders and the order entered by Judge Kimball... Accordingly, based on the delays that would arise from SCO’s lack of specificity, and the burden this places on IBM at such a late stage in this litigation, the court finds that IBM is prejudiced by the lack of specificity in SCO’s disclosures. Here's a hint: disclosures = discovery. |
| grouch Jul 01, 2006 10:31 AM EDT |
dinotrac: >"OK grouch, I will try to make this as simple and as clear as possible" No need. The Judge was simple and clear in the ruling. She said it's about IBM's Motion and SCO's willful failure to comply with court orders. |
| dinotrac Jul 01, 2006 10:47 AM EDT |
grouch: >No need. The Judge was simple and clear in the ruling. She said it's about IBM's Motion and SCO's willful failure to comply with court orders. Precisely. IBM's motion to seek sanctions for SCO's failure to comply with the court's orders that SCO respond fully and properly to IBM's discovery requests. Why you have spent so much effort arguing otherwise is completely beyond me. |
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