SCO's 56(f) Motion re Contract Claims - as text

Thursday, December 02 2004 @ 11:06 AM EST

Contributed by: PJ

Here is SCO's Rule 56(f) Motion In Further Opposition To IBM'S Motion For Summary Judgment On SCO'S Contract Claims as text, thanks to Steve Martin. This is where SCO pleads for more time to do discovery before the court rules on IBM's motion for partial summary judgment on the contract claims. Specifically they would like to do depositions of those "responsible for accessing SCO's password-protected website", among others.

So, I gather they made this scurrilous charge of hacking against IBM so they can use it to buy more time to do depositions. I suppose next they'll have the evil IBM "hackers" arrested, thrown into the deepest dungeon, and will pull out their tongues if they don't confess. Boiling oil might be good too. The rack? Nah. Off with their heads. I believe that is how it works in Alice's Wonderland.

They are certainly inventive. I guess it's true what Mark Twain wrote: "The realization that one is to be hanged in the morning concentrates the mind wonderfully."

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address, phone]
[fax]

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

Stephen N. Zack (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 SUMMARY JUDGMENT ON
SCO'S CONTRACT CLAIMS

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO") hereby moves the Court for an Order denying or continuing consideration of Defendant/Counterclaim-Plaintiff International Business Machines Corporation's ("IBM") Motion for Summary Judgment on SCO's Contract Claims pursuant to Federal Rule of Civil Procedure 56(f). SCO's Motion is based on the following grounds:

As set forth in detail in SCO's Opposition Memorandum and accompanying declarations, there remains significant, relevant discovery in this case that bears directly on the issues raised in IBM's Motion. This discovery includes, among other things, depositions of several witnesses whose declarations IBM has submitted with its Motion; depositions of participants in the negotiations of the 1995 Asset Purchase Agreement between Novell and SCO and of the October 1996 Amendment No. 2 thereto; depositions of IBM employees responsible for accessing SCO's password-protected website; and a review a documents only recently made available to SCO. Although the law and record evidence developed to date are sufficient to require the denial of IBM's Motion, the Motion should further be denied because SCO has not had an opportunity to make full discovery.

This Motion is supported by the declarations of Edward Normand and Michael Davidson and SCO's Memorandum in Opposition to IBM's Motion for Summary Judgment on SCO's Contract Claims.

Dated this 30th day of November, 2004

[signature]
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver, Esq. (admitted pro hac vice)
Stephen N. Zack (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)

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 SUMMARY JUDGMENT ON SCO'S CONTRACT CLAIMS was served on Defendant International Business Machines Corporation by first class mail on the 30th day of November, 2004, as follows:

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

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

Donald J. Rosenberg, Esq.
[address]

____[signature]____

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