Posted on 06/09/2006 5:46:03 PM PDT by Khym Chanur
Yet more stupid lawyer tricks from our good friends at SCO:
Long after the deadline for disclosing its allegations, SCO seeks by indirection to change them. In three of its eight expert reports, SCO alleges the misuse of material nowhere identified in the Final Disclosures, the very purpose of which was to fix the parties' allegations once and for all last year. Indeed, with respect to its allegation that Linux infringes SCO's alleged UNIX copyrights, SCO proffers expert testimony that has no support in the Final Disclosures and, if allowed, would reinvent the case at the eleventh hour. SCO's attempt to change its case not only violates the Court's scheduling order, but it is unduly prejudicial to IBM and the public interest and should not be allowed. SCO's expert reports should be stricken insofar as they make new, previously-undisclosed allegations of misconduct.
...
While we believe the claims lack merit, assembling the evidence necessary to prove they lack merit would require significant additional litigation. And, of course, fact discovery is closed; initial expert reports have been submitted; dispositive motions are forthcoming, and IBM's opposing expert reports are due in a matter of weeks. Thus, there is no way IBM could properly prepare a defense without substantial delay in the proceedings, including deferral of the existing trial date. This unjustifiable delay would itself prejudice IBM and undermine the public interest because it would allow SCO further to perpetuate fear, uncertainty and doubt about IBM, Linux and IBM's products and services.
...
Despite this, three of SCO's May 19, 2006 expert reports, those of Drs. Cargill and Ivie and Mr. Rochkind, significantly exceed the scope of the Final Disclosures -- indeed, Dr. Cargill's report effectively seeks to reinvent the case, introducing both new categories of allegedly misused material and a new theory of recovery which relates to them. The Rochkind and Ivie Reports also exceed the Final Disclosures, adding material never before disclosed by SCO.
...
The bottom line is simple: SCO seeks by its expert reports to sandbag IBM by changing its case. Sandbagging is improper in any context. But this is especially so based on the Court's multiple attempts to force SCO to reveal its claims.
If SCO is allowed to ignore the Court's scheduling order and exceed the scope of the Final Disclosures, IBM will suffer undue and incurable prejudice. As stated, SCO seeks to expand the scope of the case --nearly six months after the deadline for its Final Disclosures, after the close of fact discovery, simultaneous with the filing of initial expert reports, on the eve of the due date of IBM's opposing expert reports and when summary judgment briefs are forthcoming. In fact, IBM has already submitted expert reports addressing the very claims SCO now seeks to change. SCO has spent more than three years developing its theory of infringement and seeks to force IBM to respond to its newly-minted allegations, without the benefit of discovery, in a matter of weeks. If that would not be unfair, nothing would.
Tell SCO to give up. This lawsuit, even if won isn't going to make them the company they NEVER WERE !
The days of fractured flavors of UNIX are becoming less attractive.
Relatively 0ld news. Same 0ld SC0.
Say what you want about Microsoft products, but the worst crashes I've ever had to deal with were Unix crashes.
I'm starting to think SCO employs more lawyers than programmers.
They have to be going somewhere with this. Their lawyers cannot be THAT stupid. Maybe they're trying to build up appeals fodder? Or maybe they're just trying to keep up the FUD for as long as possible, but that would be stupid since the FUD is apparently not working.
Or maybe they really are that stupid.
That's the theory that gets my vote.
> They have to be going somewhere with this.
Yep, back to the future (delay).
> Their lawyers cannot be THAT stupid.
It doesn't have to be stupidity. The BSF firm is likely
well aware that there is no there there in the case, so
they game the legal system for all it's worth.
They also know that if they can get ANYTHING to a jury,
the Kafkaesque folly we've seen so far becomes a real
crapshoot, and IBM may become more willing to buy out
SCO (unlikely, in my opinion, but that seems like what
the original strategy was).
> Maybe they're trying to build up appeals fodder?
They keep trying to trip up and/or piss of a judge
enough to force an appealable response, but so far
the UT judges mostly feed them more rope.
> Or maybe they're just trying to keep up the FUD for
> as long as possible, ...
We may have a winner.
> ... but that would be stupid since the FUD is
> apparently not working.
Certainly not for anyone who is reading the actual
filings and transcripts, not to mention the learned
analysis on groklaw.
SCO hasn't folded yet?
I seem to remember the infamous David Boies was one of SCO's lawyers. What was that you were wondering about stupidity?
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