SCO Motion to Bifurcate in IBM case.

Saturday, March 27 2004 @ 12:53 PM EST

Contributed by: PJ

SCO has filed a Motion to Bifurcate in the IBM case. The documents are not available yet, but the court filing is recorded on Pacer and it looks like this:

119 - Acceptance of service of Subpoena Duces Tecum as to IBM 3/25/04
120 - Motion by SCO Grp to bifurcate
121 - Memorandum by SCO Group in support of [120-1] motion to bifurcate
122 - Notice of service of Subpoenas Duces Tecum by IBM Inc

What is so funny is just this morning, I got an email from one of the attorneys who explain this case to me behind the scenes and here is what he wrote:

"I'm waiting for the Motion to Bifurcate. I'm sure SCO wants to split its hopeless claims from its less hopeless claims."

From the message, you can get what a motion to bifurcate is. The reasons for asking to bifurcate vary, but usually it's because you hope that if you settle one issue, you won't have to litigate the rest, or it will direct the rest in a way you would like. We'll have to wait to see the actual document to understand what their argument is.

If you wish to see a case where the judge said no to a Motion to Bifurcate, here you go. The judge in that case said that he could grant such a motion "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy" but he declined on the grounds that while the issue they asked to be bifurcated could be decisive, it should be presented as a summary judgment motion instead, because it was just a matter of law, not of disputed facts needing to be established in a trial. So from that, you can see that one reason for putting in a motion to bifurcate is if you think one part of your case can win, and if it does, you don't need to try the rest. In this case, that seems unlikely to be the motive, since it's hard to see what part of SCO's case would qualify for such a hope. But, again, this is just to explain motions to bifurcate and to show that the decision is the judge's to make. We really need to wait and see what they are specifically seeking to bifurcate.

Meanwhile, the order granting IBM the stipulated time until the 26th to answer SCO's Second Amended Complaint has been signed by Judge Kimball. We haven't seen Judge Wells now for a while, not since the discovery order, and I'm beginning to wonder if we will see her again or if Kimball has decided to step in.