Posted on 02/22/2006 5:44:59 AM PST by ShadowAce
SCO WAS taken out behind the woodshed by Intel a few days ago in one of the more unfriendly court filings in a long and extremely unfriendly case. The 64K question is not what happened, that is more than adequately documented on Groklaw, the real question is why SCO, or its attorneys got so stupid.
The short story for those not reading along with PJ, Darl and the gang is this, SCO faced a discovery cutoff in late January, and by all accounts had little or no evidence as the curtains were being drawn. It was desperate for an extension to keep on fishing, or as some suggest, to keep the FUD cloud hanging over Linux. Either way, SCO wanted more time.
The way it shot for was to spring three surprise last minute requests for depositions along with requests for mountains of documents. They asked Oracle, Intel and The Open Group(TOG) for complex documents, witnesses, and the kitchen sink with between a day and two weeks' notice. They asked Oracle to produce such things as "Documents concerning the identification of all versions of all Oracle software products that Oracle certified for operation on any version of any UNIX-based operating system, including but not limited to UnixWare, OpenServer, AIX, HPUX, Irix, Dynix, and Linux, since January 1, 1995 "
Oracle was the lucky one - it got eight days to dig this stuff up and find experts on the topic, Intel got less than a day.
To make matters worse, the requests were 'defective' in the legal sense of the word. They had multiple, obvious, and significant errors in them, so bad a first year law student might be embarrassed at the effort. It did this not once, but three times, all with distinct and mostly different errors. It makes no sense on the surface.
One possible explanation is simple, to buy more time - SCO wanted the documents to be ignored. Legally, if you make an error like it did, the receiving party can just wad the request up, throw it in the trash, and go on with their life. Not being a lawyer, I don't know the threshold for what constitutes an error grievous enough to merit the circular file, but an educated guess would be somewhere north of a typo.
So, if you want to make them ignore it, you don't put in subtle errors, you put in huge whopping errors, and you put in lots of them. Make them blatant enough that you can't miss them even if you are freshly returning from lobotomy surgery, and to top it off, send them to the wrong addresses. SCO did just that, and so if this theory is correct, wanted to make these things so over the top bad that when the recipients were done laughing, the trash can was the only place they could end up.
The brilliant master plan was the requests would sink beneath the waves, and never be heard of again. SCO could then go to the Utah judge (none of the deposed-to-be were in Utah), and beg for an extension due to unnamed conspiracies, alien invasion, or whatever it's claiming today. As long as SCO didn't drag any of the three aforementioned parties into it, there would be no one to deny their version. Their version turned out to be that SCO had properly and timely served all three, and all three had simply not shown up for the deposition and had not responded in any way.
The problem with such a 'cunning plan to take over the world Pinky' was that Intel was responsible, as were Oracle and TOG. As one person described it to me, the job of a lawyer is to keep you from doing stupid things to yourself. Intel, being responsible, felt it had to respond to the subpoena even if it knew it was badly broken. It needed to file a response, to defend its good name after SCO told the judge in Utah that Intel and the others were properly and timely noticed and ignored the subpoenas.
So, SCO appear to have made a big gamble. As long as no one looked at the fine print, and no one spoke up, it stood a chance of succeeding. Intel put a Cheneyesque level of buckshot into that theory, and it hit the ground faster than a campaign donor. This was the worst-case nightmare for the SCO legal team, and the timing only compounded the problems.
If you look at when SCO filed its time request, it was filed on the morning of January 27, the cutoff day for discovery. It made it in the nick of time. If you read it, it goes on to say that people failed to show, and the dog ran away or something. It is, taken as a standalone document, a masterful work, a tear-jerker, but according to Intel, "unfair and untrue".
If you look at the Intel filing, you will see a direct and total contradiction of SCO's version of events, now on the record in Utah.
SCO went out on a limb, hoping and praying that no one would call it, set up everything so it could, should, and by all non-legal assessments, would be ignored. It was wrong, and now is caught with its pants around its ankles. That's one theory.
Oracle, Intel and TOG have all weighed in on the subject to one degree or another, and their descriptions of events directly contradict SCO's filing. SCO has to face the judge and do some awfully fancy footwork in explaining this. All three of the other parties have dated and untimely subpoenas with multiple other deficiencies to back their side of the case, so the SCO dance will likely be a bit frantic, and they have quickly filed a reply, although it's under seal.
We will know what happens soon enough -- the hearing on the subject is set for February 24, and it is sure to be a good one. µ
It's a conspiracy to drive up the market price of popcorn.
SCO's lawyers are either the worst or they are so damn good that no one can see their long-term master plan.
SCO's main product appears to be lawsuits.
Thius whole operation was a speculative attempt to capture the rights to linux with whicch to go an a blackmail and lawsuit tear against many wealthy entities in the tech and communication world. The lawsuit was probably designed to get out-of-court settlements. When IBM et al showed they were in it for the long haul, the speculators should have cut their losses and dropped it.
Long-term master plan? I think I know what it is. I think that since they were handed the majority ownership of the company, they are just looting it. This is all just a scam on SCO by their lawyers.
My theory is that SCO was trying to irritate the judge into making intemperate remarks similar to those made by the judge in the Microsoft antitrust case, thus laying groundwork for an appeal on the grounds of bias (since that's pretty much their only hope of getting another bite at this rotten apple). Unfortunately for them, the judge has bent over backwards to give them a chance to present their case on its merits, if they can come up with any.
The author is grasping for metaphors, and came up with a forced, unfunny, and inapt one. What are we supposed to conclude from that phrasing? That Intel accidentally fired on SCO's tactic, but it was not a direct hit, and therefore SCO's attempt is still alive? Dropping such a gratuitous and silly comment into this article makes Mr. Demerjian, the author, look foolish...
Oracle, Intel and TOG have all weighed in on the subject to one degree or another...
I don't think I ever saw a response from The Open Group, or its subpoena... were these published somewhere and I just missed 'em??
I haven't seen anything either.
Did you see this? The part about Sun paying SCO for expanded rights to the source code (so they could open-source Solaris) looks real interesting. As Sun was an existing customer, it seems to me that Novell really is entitled to 95% of that money.
SCO lost on both the motion to compel and to take the depositions. However on the motion to compel it was without prejudice to refile. Judge Wells was VERY emphatic in her denial of SCO's motion on the depositions. I will write more when I get home. The hearing was 2 hours long.
Stay loose... more details coming.
I guess you can only push a judge so far with shady legal antics. If SCO's lawyers have any intelligence at all, they'd know to stop the games and play it straight from now on. OTOH, I had thought they'd get the hint the last time they got slammed, but I was wrong then.
Time to go read Groklaw again it appears....thanks!
Brent points out that Intel (based on Intel's motion) indicated they were aware of SCO's attempts in this matter since November. Wells asks "Did you say you were aware of your desire to depose Intel since November?". Brent answers "Yes".
[Intel's attorney Anthony] Marks... said that subpoena in November was for a different subject, for specific documents, which Intel responded to 45 days or more ago. He says that SCO's assertions "were offensive to (him)."
Oh yeah. SCO got severely spanked. But the funniest revelation was this one:
Shortly into the second portion of the hearing, while Darl was busy Googling and talking to Mark James, Judge Wells asked him to be quiet, that she knows he wants to talk (presumedly to Mark James), but to just pay attention.
That, and the complaint that IBM gave them "too much" information. When the hearing transcript comes out, there are going to be some real gems in there. ;-)
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