Judge leaves SCO's case vs. IBM on life support (updated)

Posted November 30, 2006 @ 11:38 AM

by Eric Bangeman



Update

In a hearing held on Thusrday, US Magistrate Judge Brooke C. Wells handed IBM another significant victory in its fight against SCO. Groklaw's eyewitness reports indicate that it was a rough day for SCO, with Judge Wells ruling that the company would not be able to add any further claims to its case beyond what it revealed in its final disclosure. According to one eyewitness, IBM's counsel accused SCO of "sandbagging" when it came to complying with court orders. The judge agreed, directing IBM to draft her order on the case.

The end result is that SCO is left with the evidence generated prior to the close of the discovery period. The company will be unable to introduce new evidence via expert reports, making it difficultif not downright impossibleto introduce baseless new allegations or further change its story.

Original story

On Wednesday, US District Court Judge Dale Kimball upheld a magistrate's ruling that tore the heart out of SCO's case against IBM while also swapping IBM and Novell's places in line when it comes trying the cases.

In July, Magistrate Judge Brooke C. Wells dismissed the evidence supporting 182 of the 294 claims SCO had made against IBM. Predictably, SCO appealed, and Judge Kimball conducted a de novo review (i.e., staring from scratch) that reaffirmed Judge Wells' finding. Judge Kimball has harsh words for SCO in his order: "The court finds that SCO failed to comply with the court's previous discovery-related Orders and Rule 26(e), that SCO acted willfully, that SCO's conduct has resulted in prejudice to IBM, and that this resultthe inability of SCO to use the evidence at issue to prove its claimsshould come as no surprise to SCO."

Judge Kimball also reshuffled SCO's trial dates, moving SCO v. Novell to the front of the line and delaying SCO v. IBM until the Novell case has wrapped up. The reasoning is simple: Novell is claiming ownership of the copyrights related to Unix. If the courts agree with Novell, then what little is left of SCO's case against IBM will collapse, followed shortly thereafter by the collapse of SCO itself.

Novell asserts that when Santa Cruz Operations, the forerunner to the SCO Group, purchased UnixWare back in 1995, Novell retained the copyrights related to the operating system. As the owner of all "patents, copyrights, and trademarks" related to Unix, Novell believes that it is "entitled at its sole discretion, to waive its purported claims against IBM" and other licensees, giving it veto power over any enforcement actions SCO might undertake.

Both rulings are bad news for SCO. Not only has most of what evidence the company has managed to muster in its case against IBM been relegated to the big circular file in the corner, but SCO will now be forced to prove that it has the right to even bring litigation against IBM. If Novell winsand the evidence produced so far appears to strongly support Novell's version of the UnixWare salethere's no basis for SCO v. IBM to go forward. If it does for some reason, SCO will be left to argue a gutted case.

The fat lady may not be singing yet, but she's in the green room practicing her scales. SCO v. Novell is currently scheduled for trial beginning September 17, 2007.

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