SCO Motion Granted by Judge Kimball --Feb. 4, 2004 Is Filing Deadline

Tuesday, September 30 2003 @ 04:43 PM EDT

Contributed by: PJ

Our fabulous Frank Sorenson ran to the courthouse and got the papers for us. Judge Kimball signed the Order saying that SCO has until Feb. 4, 2004 "to file any amended pleadings or add parties to this action".

So it's a fait accompli, or as we say in the US, a done deal. Here's the pdf of the signed order.

I have SCO's Motion for Enlargement. Basically, their argument was that they didn't have enough time to meet the original deadline and do discovery. Because IBM just filed new counterclaims, they argue, they need time now to do discovery and if the discovery process comes up with new information, they might want to amend their pleadings or add parties. They can't say that would happen now, but if they are forced to meet the current deadline, they'd amend without the discovery process and conceivably miss that opportunity.

Their basis for asking for the time delay in paraphrased detail:

1. Discovery isn't finished, and the original time schedule presumed it would be by now; IBM hasn't provided, they say, what they asked for. SCO has "been providing discovery" they say in footnote 1, but the rest of the footnote says that actually they won't be providing tens of thousands of more documents until "early next week". Translation: we haven't provided everything either.

2. "...other circumstances have drastically changed... Specifically, IBM recently has filed an eleven count counterclaim, including four separate claims of patent infringement." This means time is needed for more discovery. During discovery, it could happen that there would arise the need to add parties, depending on what is learned, or to amend SCO's pleadings. Further SCO didn't yet file its answer to IBM's counterclaims, and the deadline for that is October 1.

3. SCO requested time to enlarge, but IBM refused.

4. Prejudice will be suffered by SCO if it is forced to amend its pleadings without the benefit of further discovery.

So, that's their argument, and the judge said yes. Please note that no new parties are mentioned by name. In fact, they are saying they might add parties or amend, but they won't know until discovery is finished. See why I never leap to conclusions until I see the actual papers? It's a good rule to live by. The pdf is available.