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Caldera Government The Courts IBM News

Portions of SCO's Expert Reports Stricken 170

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."
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Portions of SCO's Expert Reports Stricken

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  • by linuxgurugamer ( 917289 ) on Friday December 01, 2006 @07:42AM (#17063538) Homepage
    What arbitrary deadline? SCO has had YEARS to provide all the evidence they wanted to. They deliberitely waited until after discovery had ended before providing the so-called "expert evidence". The courts have bent over backwards trying to accomodate SCO, and all that happened was that SCO tried to take advantage of the court. There are rules that everyone has to follow. SCO didn't follow those rules.
  • by Kjella ( 173770 ) on Friday December 01, 2006 @07:42AM (#17063540) Homepage
    They've had plenty of time. They've gone out publicly and said all this evidence was clear. They asked for a kazillion documents from IBM, which is a fishing expedition and not a directed discovery. The only reason SCO hasn't brought their case to trial is that they have no case to bring to trial. They've had every opportunity to present their evidence, and the discovery phase is there for good reason so you can't keep pulling rabbits out of the hat during trial.
  • by Scarblac ( 122480 ) <> on Friday December 01, 2006 @07:42AM (#17063542) Homepage

    Still, that deadline was about three and a half years into the case, it's not exactly been fast. And they're the plaintiffs, not the defendants - aren't they supposed to know what their actual claims are _before_ sueing somebody?

    Eventually there has to be a deadline. SCO decides to sneak in some extra, really vague claims after that in hopes that IBM didn't have time to organize a proper defence, but well, they've had far too many deadline extensions already. Final means final.

  • by harrythefish ( 1028136 ) on Friday December 01, 2006 @07:43AM (#17063550)
    Yeah. Poor SCO. If only they had been given more time by the judge. Society will feel a great loss at their departure. All that's needed next is to throw out the bonkers patenting system for IP and maybe talented and hardworking software writers can work in whatever way suits them and be rewarded appropriately.
  • by Detritus ( 11846 ) on Friday December 01, 2006 @07:49AM (#17063580) Homepage
    The wheels of justice make the NASA crawler-transporter look like a hot rod. Judges are supposed to set and enforce deadlines. Justice delayed is justice denied.
  • by MathFox ( 686808 ) on Friday December 01, 2006 @07:51AM (#17063594)
    SCO was repeatedly asked by IBM to specify what IBM did wrong, has been ordered to specify what IBM did wrong by a judge and tried to wiggle around this obligation for three years. SCO got quite some information from IBM over the years. Now the deadline has passed, SCO tries to slip in some new accusations. The judge says "No, you can't do that" on request of IBM. It would be unfair to defend against last-minute accusations without having an opportunity to collect the data you need to defend yourself.
  • by kfg ( 145172 ) on Friday December 01, 2006 @07:53AM (#17063606)
    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.

    That wasn't an analogy. That was an argument.

    You haven't been paying attention. SCO has spent the past few years jiggering the deadlines and what they file when with regards to them. They aren't the victim here; here too they are the villian and both IBM and the judge are just getting plenty sick and tired of their overt; and abusive, legal gaming.

  • by Eivind ( 15695 ) <> on Friday December 01, 2006 @07:58AM (#17063656) Homepage
    It's worse than that, actually.

    You're rigth, SCO is *still* after several years trying to add more evidence and more claims. By having expert-testimony (which is supposed to *explain* the claims and the evidence) contain claims that aren't there in the final disposition.

    So, ok, SCO still, after being ordered repeatedly to put all the evidence on the table for literally *years* don't have all the evidence they claim to posess on the table.

    But worse: They also *still* don't want to commit to exactly what it is that they are even *claiming* that IBM did.

    In effect, several years after the trial started, SCO is still at: "You did something wrong, but we refuse to state in specific terms *what* you did wrong, we also refuse to provide any evidence that you *did* infact do the things we claim."

    It's impossible to defend oneself if one doesn't even know precisely what the accusations are. "Structure and organization" ain't specific. No more than "breaking some law" would be.

    It's beyond ridicolous. They've been given enough rope at this point. It's nice to see the judges are starting to tigthen up -- this particular attempt at redefinind the claims was turned down flat.

  • by Airline_Sickness_Bag ( 111686 ) on Friday December 01, 2006 @08:30AM (#17063822)
    2. It will probably never go to trial. SCO's goal is to get IBM to settle.
                IBM's goal is probably either to get SCO to drop, get the judge to drop,
                or failing that to settle for as little as possible while retaining the
                right to continue to do business as usual.

    IBM doesn't want to settle - they want to leave a smoking crator to be an example for the next idiot that tries to scam them.
  • by kg4czo ( 516374 ) on Friday December 01, 2006 @08:55AM (#17063976)
    Actually, I've had the displeasure of working with Unixware for the last 6 years now. It is a heaping pile of horse dung.

    We recently moved our main transaction processing server to Suse Linux from Unixware. (yeah, I know, evil deal with M$ doesn't mean anything in this company) The difference is astounding! They actually found bottlenecks that were undetectable before, due to the inefficiency of Unixware, and many of the memory leaks vanished. As well, the same hardware that would have have only lasted maybe 6 month to a year under Unixware, will now serve us for a few more years yet.

    I'd say that Unixware needs to be burned, pissed on, and burned again, then pissed on again for the piece of shit that it really is. You'd be hard pressed to convince me that Linux, in anyway, would be benefited by copying code from any SCO product.
  • by couchslug ( 175151 ) on Friday December 01, 2006 @08:58AM (#17063996)
    SCO will continue to serve its purpose for a while.
    When a land mine explodes, you don't consider the mine a failure because it was destroyed in the process. :)
  • SCO's strategy (Score:5, Insightful)

    by Anonymous Coward on Friday December 01, 2006 @09:05AM (#17064056)
    Novell and IBM have both filed for summary judgements on SCO's claims and on many of their own counter claims. If the judge grants that then a jury trial isn't needed. The judge can do that if the case can be decided entirely on the basis of law. In other words, there are no disputed facts.

    An example of something that could be decided as a matter of law would be whether Novell transferred any copyrights to Santa Cruz and whether they then passed on to SCO. The judge could simply read the contracts and rule that the ownership of the copyrights had not changed hands; no need for a jury.

    SCO's only hope is to get their case in front of a jury and that hope is based on being able to confuse the jury and get a verdict that they don't deserve.

    When discovery closed, SCO had not dredged up anything that could serve as a disputed fact. What they did put before the court was mostly pitched out by Judge Wells because it was not nearly specific enough. It was like: Shop keeper "He stole something from my store."
    Cop "What did he steal?"
    Shop keeper "Something; it was in the catalog."
    Cop "How do you know he stole it?"
    Shop keeper "He was in the same city."
    If you haven't been following this sorry mess, you'll think the above scenario is exaggerated. It isn't.

    In order to get something past the judges and before the jury SCO tried to sneak some stuff in via the expert reports. Unlike the rest of us (who have to stick to facts), experts are allowed to give opinions to the court. SCO was hoping that they could sneak in some opinions that would make it look like there were some disputed facts. Then they would get their jury trial.

    Notice also the judges' strategy. They aren't allowed to tell SCO that they are full of crap. They have to assume that SCO is acting in good faith. Thus, when judge Wells threw out most of SCO's evidence, she did it on the basis that they willfully withheld evidence. They said they had evidence and they didn't present it so they must have withheld it. Of course, we all know that SCO never had any evidence. Similarly, we know that the expert reports were just embarassingly bad. I feel sorry for the experts.
  • by overnight_failure ( 1032886 ) on Friday December 01, 2006 @09:17AM (#17064138)
    Good faith won't save SCO wrt the Lanham act as the privilege only covers statements made to the court, not to the press.
  • by Moraelin ( 679338 ) on Friday December 01, 2006 @09:54AM (#17064422) Journal
    It's been IBM's policy for _decades_ to never create a "we give in to extortion" precedent. Because the instance they pay off one leech with a dodgy claim (either settling, or by buying the company, i.e., giving someone good money for their worthless shares), they've just painted a huge bullseye on themselves. That would be the day when a thousand other leeches sue IBM to get some money too.

    IBM is a big rich target, and there are entirely too many people whose sole business plan is frivolous litigation. And anyone with lots of money is a natural target. It's like putting a sign on your porch saying "I have a big pile of gold in my basement". Someone will take it as a personal challenge to take it from you. And if you give in to the first guy who comes over and says "I'll sue you if you don't give me some of that gold", tomorrow you'll find a big queue of people at your door who want some too. It's not a precedent you want to set.

    So settling frivolous claims is _not_ what IBM wants, and it's never been what it wanted. What it wants is the equivalent of a bunch of skulls on spikes, with a sign saying "these are the last guys who tried to extort us."

    And I have to wonder what have Darl and the gang been thinking. It's been common knowledge for ages, complete with such mental images like "IBM's lawyers are like the Nazgul" or "IBM can darken the sky with its lawyers". So I can't really imagine someone genuinely thinking, "I know! surely one more try is all it takes! They'll certainly do the stupid thing _this_ time!"

    Even assuming that Darl were actually _that_ stupid and disconnected from reality, you have to wonder about everyone else involved. Like the investors that funded this stupid charge of the light brigade. What were _those_ thinking?

    Cue conspiracy theories about MS paying off Darl to create FUD even if SCO loses the lawsuit.

    Then again, maybe Hanlon's Razor does apply, after all: Never attribute to malice, that which is adequately explained by stupidity.
  • by hey! ( 33014 ) on Friday December 01, 2006 @10:41AM (#17064940) Homepage Journal
    It isn't just the difficulty of responding to last minute accusations that makes trying to sneak new ones in unfair; after all the legal system doesn't generally balk at stretching things out if it thinks it will get a better result.

    The fairness problem is that if the plaintiff can add new claims at anytime he pleases, he can move the goal posts at will whenver the defendant gets close to them, at little cost to himself and great cost to the defendant. Successful defense would become impossible; either you'd lose outright, or be forced to settle on terms favorable to the plaintiff.
  • by Scarblac ( 122480 ) <> on Friday December 01, 2006 @10:41AM (#17064942) Homepage
    If that's true, it would have been of some use to SCO if:
    • SCO actually held any UNIX copyrights
    • SCO could show that that Linux code was in fact copied from IRIX, instead of having some common source
    • The fact that SCO would hold some Unix copyrights would mean that they also had control over any additions by IRIX
    • The open source community hadn't asked SCO for specificality right away, so they could have removed any infringing code
    • SCO hadn't been distributing Linux itself, under the GPL, for years even after starting this law suit
    • They had sued Irix instead of IBM
    • They hadn't given indemnification contracts for this sort of thing years before
    • Et cetera, et cetera, et cetera
  • by AK Marc ( 707885 ) on Friday December 01, 2006 @11:10AM (#17065460)
    How is this a good thing? Someone (I'll include a company as a person for this discussion) can, without merit, take another person to court, without basis, without proof, without even a specific claim, and tie up resources for years. How exactly is this a good thing? People claim "this is a win for IBM" or some such. The only win for IBM (and the rest of us) is if the process ended long ago with a dismissal with prejudice. It's too far along for anything to be a "win" for anyone. It's just a matter of how much is lost. The courts apparently have the duty of allowing those willing to spend money to harrass anyone they want for years and years. The only think that might approximate a win is if every lawyer that ever worked for SCO on this case was disbarred for work on a bad-faith lawsuit. Except, in practice, lawyers are hardly ever disbarred for anything other than getting convicted for a felony. Acting in bad faith is a reason to disbar in most (all?) places. I'd like to see that enforced sometime, starting with this case.
  • by Interfacer ( 560564 ) on Friday December 01, 2006 @11:24AM (#17065662)
    You seem to be suffering from severe delusion.

    - most likely, there will be NO people going to jail. Just because YOU have a vested interest does not make this case any different from 1 megacorp suing another
    - lawyers are NEVER punished for trying a case on someone else's behalf (as long as they don't do anything actually illegal). this case is not anywhere near as emotionally charged as the trial of Ted bundy, Timothy McVeigh, or that hijacker that did not -factually- hijack a plane.
    - lawyers like SCO's generally have more than enough work offers, and they charge more per hour than I per day, and I am an expensive consultant. The fact that they represented SCO does not hurt them in the least.
    - the fact that SCO gets beaten at every turn is NO a fault of their lawyers. SCO has a shitty case, and the lawyers have to work with what they got. they do the best they can, and they should. you'd expect the same from your lawyer, no?

    In a far more realistic scenario
    - IBM takes this all the way and SCO loses big.
    - IBM's counter claims will maybe turn out in their advantage, but maybe not.
    - SCO will try to appeal, but this will most likely not have a result because -unlike you- the judges involved kept their cool and did everything by the book, no matter how trivial and dull the issue at hand.
    - SCO will dwindle away and die. Not because they are evil, but simpy because they alienated their remaining customers, did not invest in developing new technology, and have a gigantic lawyer bill to pay. The latter largely because the SCO lawyers had sense enough to demand payment, instead of a large percentage of a possible settlement.
  • by Anonymous Coward on Friday December 01, 2006 @11:37AM (#17065902)
    Keep in mind that SCO has to deal with Novell first. If Novell wins, I think they bust SCO before IBM gets a chance to bust them. In that case, any IP that SCO may have would probably need to be sold to pay Novell the licensing revenue that it claims should have been given to it in the first place.
  • SCO and Confusion (Score:2, Insightful)

    by mythras ( 997054 ) on Friday December 01, 2006 @12:31PM (#17066940)
    I mean, the old Mark Twain saying fits best: A man who tells the truth, has to remember nothing.

    Each day that this drags out is one more day for them to confuse their stories, forget facts, change facts entirely, build up judge resentment, and basically undermine their case. Here is hoping that IBM does leave them a smoking crater, and then provides the blueprint for success to others who might be targets for such lawsuits. (Novell-MS vs Red Hat comes to mind.)
  • Not likely (Score:3, Insightful)

    by Tony ( 765 ) * on Friday December 01, 2006 @12:54PM (#17067418) Journal
    Judge Kimball did a de novo review, meaning the review was excessively thorough. This pretty much indicates that any appeal attempt will merely result in the review of Judge Kimball's work, noting that SCO has no new issues on appeal, and expediting the whole process against SCO.

    Note, I'm not a lawyer. This is all the reading I get from Groklaw [], which has been following the case since the beginning. If you don't frequent Groklaw, you might want to, if you are interested in the SCO case at all.
  • by mikael ( 484 ) on Friday December 01, 2006 @01:53PM (#17068696)
    The Linux MACE ethernet driver (used on the SGI O2) is substantially the same as that in IRIX. Right down to the logic flow and variable names, especially in the PHY probe code. There's even a comment about loading in PHY errata; that reference appears only in the IRIX source code.

    Perhaps both drivers are based on the same sample implementation provided by the Ethernet board maker?
    Or from the same specification document file? It's rare to see a device driver written completely from scratch. More often than not, there is always some form of template/empty framework that is used, either by using a generic null driver, or by scooping out the contents of an existing driver.

    Though, companies usually require staff to reference where particular blocks of source code have come from
    (register specifications.

"Oh my! An `inflammatory attitude' in alt.flame? Never heard of such a thing..." -- Allen Gwinn, allen@sulaco.Sigma.COM