Portions of SCO's Expert Reports Stricken

rm69990 writes "A day after Judge Dale Kimball reaffirmed Judge Wells' order tossing most of SCO's case, Judge Wells has stricken large portions of SCO's expert reports, stating that SCO was trying to do an end-run around IBM. As IBM put it in its motion papers, SCO will not be allowed to 'litigate by ambush.' This motion was regarding SCO's expert reports, where SCO attempted to insert new evidence after discovery had ended via their expert reports. Wells' ruled directly from the bench, and finished by telling SCO to 'take it up with Judge Kimball' if they had a problem. This really hasn't been a good week for SCO."

Re:This has been going on for years

[Scarblac]

Well, they've just about decided what evidence there is; now they're going to decide which issues can be decided immediately (because there's no disputes on factual matters on them), and which issues need to go to court. That's for the next few months. It's likely that all of SCO's claims will be thrown out before then, but there will be IBM counter claims that probably will go to trial.

However, there's also a case Novell-SCO, and since in it Novell claims that it still holds the copyright over some things (like, say, SysV Unix) that SCO claims copyright of in the IBM case, that case will go first.

That trial is at the moment expected to start about September 2007-ish.

Re:Total hypo, but what if you were SCO?

[UnknowingFool]

What if you were being taken advantage of by a large company and all you had at your disposal was the courts to protect yourself with.

Are you being serious? SCO initiated this lawsuit and several other lawsuits. From the beginning, IBM (and others) have tried to work with SCO to avoid a suit. Lawsuits are expensive and most companies try to avoid them as much as possible. SCO has refused. In this case, IBM has asked from the beginning the details of SCO's grievances against them. SCO has been as evasive as they possibly can be. But there is a limit to this and the judges have called them on it

Then, when the trial began the company kept hemming and hawing and you wound up at the end of the discovery phase with nothing but your own claims. Then after the discovery phase ends, the company dumps a ton of documents on you, too much to go through in a reasonable amount of time and the judge isn't willing to give you the time to go through it.

From the beginning SCO has stated it had a mountain of evidence. But they wanted everything IBM had. When it came time for them to produce what IBM wanted, they has refused to produce any of it until after three orders. When it did produce it, it was inadequate as IBM warned them. Then they go to the judge trying to explain their vagueness. The judge didn't buy it.

But I don't like the idea that the wheels of justice need to roll so fast that any and all evidence may be thrown out because it doesn't meet some arbitrary deadline.

Three years is quite a long time for discovery. SCO asked and received extensions to the original deadline. Plus discovery is not then time when you should start your case. Discovery should be used to cement your case. SCO was hoping to find any hint of wrong doing basically because it had nothing in the beginning. If you go up against IBM, you better be prepared with evidence before you file a lawsuit.

Maybe a partial answer why SCOX must keep trying

[KokorHekkus]

IANAL etc.

Part of the Lanham Act (http://en.wikipedia.org/wiki/Lanham_Act [wikipedia.org]) is often used when a company claims their business been hurt by false or misleading statements. There are 3 things that must be proved by the company that claims the damage: 1) there was a false or misleading statement made, 2) the statement was used in commercial advertising or promotion and 3) and the statement creates a likelihood of harm to the plaintiff.

Now looking at how SCOX has kept shooting it's mouth of in the early phases of the case I'd say that 2) and 3) are pretty self-evident for those who have followed the development of this case. 2) because SCOX made a lot of loud statements during their Road Shows (which they only made to market themselves) that never materialized. 3) can most likely be proved just by reading what market analysts wrote based on SCOX:s statements and the initial soaring of SCOX value.

So the only way to weaken the Lanham Act accusations from IBM is to weaken 1). If something, just any little thing, does survive into the trial itself it might give SCOX the chance to argue that the other statements were made in some kind of good faith. So they try to wriggle anything in sideways, under or over that can help them to do that. Because if they don't then it will look very bleak for them when Lanham Act part of trial starts.

Re:This has been going on for years

[Crasoum]

A speeding ticket is an infraction of the law (albiet a minor one). As it is, it is indeed a criminal trial. However, you are correct that you can have a jury in both a criminal and civil court.

Re:Total hypo, but what if you were SCO?

[rbanffy]

All they had to do was to find in the Linux kernel source-tree fragments of code that were equal or very similar to the ones present in Unix. Just in case, try to find them in the GNU tools.

IIRC they could also have requested the Dynix and AIX sources and source history.

If you have the suspicion someone wronged you, you can usually point to what they did, how and when.

The fact that they couldn't do it in a couple years is proof enough they have no case at all. The fact that they repeatedly stated they had such evidence while they knew they had nothing is libel. Since it is reasonable to assume they did it with the purpose of manipulating the market is far worse.

Re:This has been going on for years

[timmarhy]

i believe there's a quote from IBM managment "the skies over utah will be black with lawyers before this is over"

Re:This has been going on for years

[bstone]

So far, SCO has shown 326 lines of code after over three years of discovery, and those are questionable at best (coming from standards that SCO participated in writing like ELF, or coming from IBM home-grown code like JFS). In June, the judge gave one of my favorite quotes from the case.

SCO's arguments are akin to SCO telling IBM sorry we are not going to tell you what you did wrong because you already know. SCO received substantial code from IBM pursuant to the court's orders as mentioned supra. Further, SCO brought this action against IBM and under the Federal Rules, and the court's orders, SCO was required to disclose in detail what it feels IBM misappropriated. Given the amount of code that SCO has received in discovery the court finds it inexcusable that SCO is in essence still not placing all the details on the table.Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that "you know what you stole I'm not telling." Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say "its in there somewhere, you figure it out."

Now, after discovery is over, when they were told that ALL of their claims had to be stated by the end of discovery, SCO claims in their expert reports that virtually the whole of Linux is at issue. Since discovery is over, that would mean that IBM could not gather any new evidence to refute the claims. This is NOT how the system works. Normally, you state your claims, both sides have a chance through discovery to determine the evidence, that evidence is presented, experts review the evidence and report on it, then you go to trial.

In this case, SCO claimed they didn't KNOW what their claims were and they wouldn't know until after discovery. That in itself seems to put IBM at a disadvantage. At the end of discovery, they had 326 lines and some nebulous claims with no evidence (which were thrown out in the ruling in June). Now, in the "expert reports" which are supposed to examine the evidence on the table, SCO adds a raft of claims for which they still present no evidence.

Given that over three years ago, they claimed to have a suitcase stuffed with "millions of lines" of "stolen" code, it's rather surprising that they didn't present it as part of their case, even after repeated admonishments from the judges to show some evidence. You'd almost think they didn't actually have a case.