IBM's Memorandum in Opposition to SCO's Motion to Amend the Scheduling Order

Tuesday, May 18 2004 @ 01:02 PM EDT

Contributed by: PJ

IBM has filed its Memorandum in Opposition to SCO's Motion to Amend the Scheduling Order. Here is how the Preliminary Statement begins:

"SCO commenced this litigation in March 2003, more than a year ago. Trial is currently scheduled for April 2005, nearly one year from now. Yet, due entirely to delays occasioned by SCO's own discovery misconduct, SCO now seeks a nine-month extension of the fact discovery deadline to May 2005, and a five-month extension of the trial date, to September 2005. There is no 'good cause' for such an extension, especially in light of SCO's failure to diligently proceed with discovery. Fed. R. Civ. P. 16(b)."

You can read the federal Rules of Civil Procedure, and specifically Rule 16, which governs scheduling here, and you will note that it says "A schedule shall not be modified except upon a showing of good cause and by leave of the district judge . . ." Of course, IBM can only request. In real life, judges seem to have a lot of freedom to modify the schedule for "good cause" according to their lights.

Here is an interesting tidbit, indicating that SCO still has not identified what UNIX System V code we are talking about. Did they deep dive into AIX and come up with nothing but seaweed?

"More than a year after it filed suit, however, despite repeated requests from IBM and in disregard of two Court orders, SCO still refuses to identify the specific code from UNIX System V that IBM is claimed to have misused, either in violation of IBM's licenses for UNIX System V with SCO's alleged predecessor-in-interest, AT&T, or the UNIX System V copyrights SCO claims to have been assigned."

If that is what this means, and it seems to be, that might explain why SCO is so desirous of dragging its heels. I phrased it more delicately than IBM, who state that SCO is conducting a campaign "to create fear, uncertainty and doubt in the marketplace about Linux in general, and IBM's products in particular":

"It is plain from SCO's conduct during discovery that SCO seeks to stall the prosecution of this action for as long as possible, in furtherance of this improper scheme. Indeed, SCO's CEO has claimed he is content to let this lawsuit 'drag on', based on the theory that SCO is entitled to 'nearly one billion dollars [in damages] per week.' SCO already claims it is entitled to up to $50 billion in damages.

Since this suit began in March 2003, SCO has publicly touted its evidence of IBM's alleged miscondut, but has resisted disclosing the supposed evidence to IBM. . . . In contrast to its public assertions, SCO's conduct during discovery reflects a remarkable pattern of delay and obfuscation. For example, when SCO first commenced this case in March 2003, which SCO announced in the media with much fanfare, the centerpiece of its case was a claim for the misappropriation of trade secrets. After IBM pressed SCO to identify exactly which trade secrets IBM was alleged to have misappropriated, SCO consistently refused to identify any such trade secrets, even after being ordered to do so by the Court. At last conceding that it could not identify any trade secrets, SCO finally abandoned the claim, but only in March 2004 after dragging out the claim for a full year."

IBM sees a similar pattern now in the foot-dragging over identifying allegedly infringing code. And our friend Mr. Blepp appears on page 5:

"In a revealing interview, a SCO Vice President recently stated that SCO's strategy in this case is not to 'put everything on the table at the start, but instead [to] bring out arguments and evidence piece by piece.'"

The reference is, of course, to the "Linux Hunter SCO Puts Everything On the Line" article in Spiegel Online, April 13, 2004, which Groklaw published a translation of that same day, thanks to an alert Groklaw reader, who spotted the interview with Mr. Blepp. IBM adds that there is plenty of time to do the depositions, which process has begun, so long as SCO cooperates. The document discovery is about done, they say. And as for SCO's argument that it needs a delay because the Court stayed discovery for three months, IBM points out the stay resulted from SCO's lack of cooperation in the discovery process. It then argues that that hardly constitutes "good cause".

SCO argued that it needs more time because IBM entered counterclaims, but IBM responds by pointing out that they had entered most of those counterclaims in September of 2003, "nearly a year before fact discovery was scheduled to close." Let's get this show on the road, IBM says. IBM says they have provided all discovery items requested, and there is plenty of time to meet the scheduling order's requirements with room to spare. Adding 9 months to the fact discovery schedule has only one purpose, they write:

"The only purpose SCO's proposed schedule serves is SCO's own improper goal of maintaining fear, uncertainty and doubt in the marketplace concerning Linux and IBM's (and many others') products."

If the judge does extend, IBM suggests a two-month extension, which would not require an extension of the trial date. SCO's proposed extension of fact discovery would mean that discovery in this case would last for more than two full years. That is obviously ridiculous in a case where SCO publicly claimed to have in hand all the evidence it needed even before discovery began.

Besides, the new counterclaim for a declaration of noninfringement with respect to IBM's Linux activities was hardly an "expansion" of the case, considering SCO has been accusing IBM of copyright infringement not only in the media but also in a court hearing in December, when it said it would be filing such a claim. In any case, no discovery on this point is needed. IBM's motion can be decided already on "undisputed facts in the current record", they assert. IBM then, in footnote 11, uses SCO's contradictory words in the Red Hat case against it:

"Indeed, when Red Hat, Inc. filed a complaint seeking a declaration of non-infringement of SCO's purported copyrights based on Red Hat's use and distribution of Linux in August 2003, SCO moved to dismiss the claim in part because '[t]he infringement . . . issues Red Hat seeks to adjudicate . . . are currently before U.S. District Judge Dale A. Kimball in the SCO v. IBM Case pending in Utah Federal District Court.'"

They got their stay, IBM points out. They can hardly now argue that copyright infringement is enlarging the scope of the IBM case. IBM requests that the Court deny SCO's motion:

"IBM believes that discovery in this case should be conducted according to the schedule to which the parties agreed almost a year ago. In fact, as we will lay out in forthcoming submissions most (if not all) of the claims in the suit can be resolved on summary judgment without more discovery."

You can see that IBM is salivating to get to trial and accusing SCO, on the other hand, of asking for unnecessary delay.

Your mom was right. It doesn't pay to tell lies.