Judge Dale Kimball has rejected Lindon, Utah-based SCO appeal against Magistrate Judge Brooke Wells’ June 2006 order that ruled that SCO’s failure to disclose its evidence against inexcusable and prejudicial against IBM.
The court finds that SCO failed to comply with the court’s previous discovery-related orders and… that SCO acted willfully, wrote Judge Kimball in response to SCO’s objections to Wells’ order.
He also noted 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.
IBM had asked the court to throw out 198 of the 293 items SCO filed with the court in January, arguing that they did not contain enough detail for IBM to respond. Wells agreed to toss out 187 of them, and chastised SCO for willfully hiding its evidence from IBM.
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, wrote Judge Wells in one of the most critical moments of this three-and-a-half-year case. 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 ‘it’s in there somewhere, you figure it out’, she added.
In the view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put ‘all the evidence… on the table’, she added.
Despite SCO’s protestations, Judge Kimball has now affirmed that opinion, and has also suggested that SCO’s case against Novell Inc to decide ownership of the Unix copyrights should proceed ahead of the IBM case.
The case against IBM was initially set to go to trial in February but has been delayed following the recent filing of multiple dispositive motions to support IBM’s request for summary judgment.
It appears that judicial economy and the interest of all the parties will be best served by trying the Novell case – set to begin on September 17, 2007 – prior to [the IBM case], wrote Kimball. After deciding the pending dispositive motions in this case, and after deciding the dispositive motions in Novell, which should be fully briefed in May 2007, the court will set a trial date for any remaining claims in this action.
SCO is suing Novell after the Waltham, Massachusetts-based company disputed its claims to be the Unix Systems V copyright holder. The two court cases are closely intertwined and are both being heard by US District Court Judge Dale Kimball. A ruling in either company’s favor could have serious implications on the IBM case.
In September IBM filed four motions that would dismiss all of SCO’s breach of contract claims against it, as well as two motions to confirm its counterclaims, while October saw Novell file a motion for a partial summary judgment that it is entitled to 95% of SCO’s intellectual property license revenue.
