SCO's Rule 56(f) Motion -- as text

Sunday, July 11 2004 @ 05:39 PM EDT

Contributed by: PJ

Here is SCO's 56(f) Motion in Further Opposition to IBM's Motion for Partial Summary Judgment as text. The PDF is here and discussion is going on here. We are working on obtaining the exhibits. Meanwhile, tuxrocks.com has begun compiling a list of what the exhibits are, from the documents already in hand. There are a lot of them, all paper exhibits. Groan. The John Harrop declaration is available on SCO's website. We will wait for the official court copy to put it on Groklaw.

Thanks go, once again, as always, to Steve Martin for the work of turning this document into text, as a convenience for all of us but especially for those visually-impaired among us, who rely on plain text. How pleasant it is doing Groklaw, and getting to see the lovely qualities the volunteers show. Thank you, everyone, for pitching in.

**************************

Brent O. Hatch (5715)
HATCH, JAMES & DODGE, PC
[address, phone, fax]

Robert Silver, Esq. (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


THE SCO GROUP, INC.

Plaintiff/Counterclaim-
Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-
Plaintiff.
THE SCO GROUP'S RULE 56(f)
MOTION IN FURTHER
OPPOSITION TO IBM'S MOTION
FOR PARTIAL SUMMARY
JUDGMENT

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO") hereby moves the Court for an Order denying Defendant/Counterclaim-Plaintiff International Business Machines Corporation's ("IBM") Motion for Partial Summary Judgment or, alternatively, for an Order continuing consideration of IBM's Motion until sufficient discovery has been conducted. SCO's Rule 56(f) Motion is based on the following grounds:

As set forth in SCO Memorandum and accompanying declarations, SCO has not had sufficient time since IBM filed its counterclaims to analyze the million lines of Linux source code, to compare it to UNIX source code, and to trace the genealogy, ownership, registration and licensing of that code. SCO has also not received discovery essential to oppose IBM's motion, nor even basic discovery that would permit SCO simply to efficiently identify targets for future, focused discovery and efficient investigation of facts to oppose IBM's motion. Without such basic discovery, SCO's investigation for non-literal copying would be made much slower and more inefficient than would otherwise be necessary. SCO has not even been given the basic, Court-ordered discovery on which SCO has now been required to renew a motion to compel necessary to permit SCO to build and prioritize its investigation of non-literal copying into Linux.

This Motion is supported by the Rule 56(f) Declaration of John K. Harrop, the declarations of Christopher Sontag and Sandeep Gumpta and SCO's Memorandum in Opposition to IBM's Motion for Partial Summary Judgment and in Support of SCO's Rule 56(f) Motion.

Dated this 8th Day of July, 2004.

[signature of Brent Hatch]
HATCH, JAMES & DODGE, P.C.
Brent 0. Hatch (5715)
Mark F. James
[address, phone, fax]

Robert Silver, Esq. (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Counsel for Plaintiff/Counterclaim-Defendant

Frederick S. Frei (admitted pro hac vice)
Aldo Noto (admitted pro hac vice)
John K. Harrop (admitted pro hac vice)
ANDREWS KURTH LLP
[address, phone, fax]

Of Counsel


CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, hereby certifies that a true and correct copy of THE SCO GROUP'S RULE 56(f) MOTION IN FURTHER OPPOSITION TO IBM'S MOTION FOR PARTIAL SUMMARY JUDGMENT served on Defendant International Business Machines Corporation on this 9th day of July, 2004, as follows:

BY HAND DELIVERY:

Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]

BY U.S. MAIL:

Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address}

Donald J. Rosenberg, Esq.
[address]

_______[signature]________

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