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SCO seeking trial delay

Each side in Linux suit accuses other of foot-dragging

Published: Wednesday, June 9 2004 6:52 a.m. MDT

The SCO Group wants to push back the trial date of its high-profile lawsuit against International Business Machines Corp. by five months, but IBM says the delay is unwarranted.

During a hearing Tuesday before U.S. District Judge Dale Kimball, each company accused the other of foot-dragging. Brent Hatch, an attorney for Lindon-based SCO, said the litigation has featured "a lot of procedural posturing," "gamesmanship," "a considerable amount of jockeying" and "big-firm games."

Kimball said he would rule in a few days on that and another motion argued Tuesday. The trial is scheduled to begin in April.

SCO's $5 billion lawsuit contends that IBM violated its license with SCO by placing parts of SCO's Unix computer operating system source code into Linux, a freely distributed operating system that is developed and enhanced by contributors worldwide.

IBM has its own Unix version, called AIX. Dynix is another, developed by Sequent Computer Systems, now owned by IBM.

The case is being closely watched by techies worldwide because of potential ramifications to Linux and Microsoft Corp., whose products compete with Linux.

Hatch said IBM attorney David Marriott wants to portray IBM as "as pure as the driven snow," but IBM has drawn the case out by not providing the critical source code SCO needs for its case. Hatch also said IBM had complicated the litigation by filing 14 counterclaims.

"Those are not the actions of anybody who wants to expedite a matter," Hatch said.

While both parties at one time agreed on the April trial start, the schedule should not be "shoved down anyone's throat," Hatch said. Virtually no depositions have occurred so far; patent issues have emerged; and various motions, hearings and orders in the discovery phase have slowed the process, he said.

"The current schedule is unreasonable," Hatch said.

Marriott countered that delays favor SCO because SCO's alleged damages would grow as the time is lengthened. He said SCO also has threatened IBM and other companies with potential litigation if they do not obtain licenses from SCO, thus putting fear and uncertainty into the Linux market.

He said SCO should have anticipated the counterclaims and that SCO has not been proceeding diligently. SCO said from the beginning of the case that it had loads of evidence against IBM, yet has dropped many claims, he said.

Also, during the past year, SCO has not identified a single line of code that IBM is alleged to have misappropriated, Marriott said. That has come despite IBM giving SCO hundreds of millions of lines of source code. SCO recently filed to get IBM to provide source code for AIX and Dynix. The IBM/SCO agreement allowed IBM to use Unix in its own products but prohibited Unix from being transferred outside IBM.

"The notion that IBM has dragged out discovery . . . (is) simply mistaken," he said, noting that IBM would not oppose pushing back the trial by a month.

U.S. Magistrate Brooke Wells is handling the discovery phase. Like Tuesday's activities, several of her hearings have featured each side saying it needed more information from the other before it could give the other the information it wants.

"We don't feel we've gotten all the documents we should've had by now," Hatch told Kimball on Tuesday. He also said that in some cases, IBM provided too much information, citing a request that should have netted 250 names but instead resulted in IBM providing 7,200.

IBM is a big firm and "they know what we're asking for," Hatch said. IBM responded by saying it provided a list complying with the exact wording of the request.

Hatch said SCO needs more time for discovery and depositions. While the company has enough lawyers to do the physical work — IBM attorney Marriott noted that 14 SCO attorneys have filed for appearances — Hatch said SCO still needs certain information from IBM.

Hatch said he expects the two companies to fight every issue as the litigation proceeds. "Magistrate Wells is going to hate our guts, but we're going to be there," he said.

The other motion discussed Tuesday involves SCO's request to split from the main suit three IBM patent counterclaims so they could have their own discovery and trial schedule. SCO argued that the complexity of the patent dispute, which it said was unrelated to the remainder of the case, could confuse jurors.

IBM, meanwhile, contends the split could occur later because no one is sure which claims will advance to trial.


E-mail: bwallace@desnews.com

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