In novel writing, they call it foreshadowing. You know, where a character shows up in the narrative and early on says or does something that lets you know what the character is going to be like or the role he or she will play?
G2 Computer Intelligence, Inc., Ms. O'Gara to you, was asked by IBM if they'd grant them a month to answer G2's motion to intervene and unseal the court's files, from December 20 to January 20. G2 said no. They'd only grant them until January 7. When G2 refused to grant the longer extension, IBM filed a motion [PDF], asking the judge to grant them the time they felt they needed. Then G2 not only opposed the motion [PDF], it got together with SCO's lawyers and put together a joint stipulation [PDF] agreeing to January 7 as the date for SCO to respond to G2's petition.
So SCO is in a big hurry too, now. Whatever it is these two want revealed, they want it pronto. When, in this entire saga, has SCO ever asked to go faster? Or since when do they volunteer to work over Christmas? Remember last year? And for that matter, since when does SCO ask for less secrecy?
The judge granted IBM's motion [PDF] so January 20 is the due date, despite the SCO-G2 alliance. And here are all four documents as text, so you can follow the story.
What a surprise. G2 and SCO working together.
IBM's stated reason for asking for more time, aside from the holidays, was that G2 is seeking to unseal all the documents in the case, "including those attached to the summary judgment motions now in the process of being briefed," meaning IBM is still working on them, specifically one which is due on January 14. So IBM asked to be able to respond to G2's request after that, so they could address their motion in one document, instead of "in piecemeal fashion".
What are the odds of any judge, or for that matter any law firm, saying no to that? It's kind of unusual for a law firm to decline a first request for an extension. And another thing I noticed. David Boies was listed on G2's Certificate of Service. How often do we see his name on anything? And I saw on the Order's Certificate of Service that there were actually two sheets, the first showing that G2's attorneys went to the court to pick up their copy in person. All in all, everything reeks of urgency and a real interest in this seemingly unimportant matter. There has to be a story here somewhere, and in time we'll find out why this side show seems so vital to SCO and G2.
When you consider all the times SCO's has been granted a delay, they had to know he was likely to grant this very reasonable request. Judge Kimball lives in a state that allows certain prisoners leave from the prison to go home for Christmas with their families, for heaven's sake. How likely was it that he'd force IBM to work through the holiday? Perhaps that's why SCO and G2 got together to do the stipulation, because they likely knew the odds were against G2 prevailing.
So what is the foreshadowing part? Read G2's Opposition to IBM's motion. Imagine you are Judge Kimball reading it. What do you think he thought of their strident and over-the-top arguments? ("real damage comes with delay" . . . "an entire month late" . . . "G2 is entitled to have its motion heard promptly") Or them opposing such a motion in the first place, when they haven't yet even been granted permission to participate, and there is a rather major holiday going on during that "entire month"? Think he can size up who this party is that wishes to step in the middle of this litigation on behalf of "the public" or what they are going to be like to deal with? This urgency speaks of a deeper motive than just the words on the page. What harm? To whom? And SCO's attorneys, working under a cap on their fees, thought it was important enough to write a stipulation. Every legal document costs the client something.
If you were Judge Kimball, would you look forward to G2's participation? I'm not predicting what he'll do, by any means, with respect to G2's motion, but I think I can imagine how he feels. I imagine he feels exactly the way *you* feel when you read this document. Ever get an email from a really obnoxious, demanding, antagonistic person? How did you feel? Does your brain not instantly see what it will be like dealing with such a person and don't you immediately want to escape to the Seychelles Islands or Malta or someplace in a galaxy far, far away from them? Or better, send them there?
Seeing SCO and G2 stipulate to January 7, presumably to try to influence Judge Kimball to grant the January 7 date, tells me SCO is not going oppose G2's motion to intervene.
That's what I believe novelists call understatement.
**********************
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
Peter H. Donaldson (9642)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
_____________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
____________________________
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant/Counterclaim-Plaintiff.
____________________________
IBM'S EX PARTE MOTION FOR
EXTENSION OF TIME TO FILE
MEMORANDUM IN RESPONSE TO G2
COMPUTER INTELLIGENCE, INC'S
MOTION TO INTERVENE AND MOTION
TO UNSEAL COURT'S FILE
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
____________________________
International Business Machines Corporation ("IBM") respectfully moves the Court for a 30-day extension of time in which to respond to G2 Computer Intelligence, Inc.'s ("G2") Motion to Intervene and Motion to Unseal Court's File (Docket No. 340-1) (the "Motion"). IBM seeks to move the deadline from December 20, 2004 until January 20, 2005.
G2's Motion seeks to unseal all documents in this case, including those attached to the summary judgment motions now in process of being briefed. IBM's reply memoranda supporting its motions for summary judgment are currently due on January 14, 2005. IBM would like to be able to address all documents attached in summary judgment briefing at once, not in piecemeal fashion. Counsel for IBM contacted counsel for G2 to request a 30-day extension based on these concerns as well as on the holiday schedule, but G2 would only agree to grant an extension until January 7, 2005, well short of the 30 days requested. G2's offer does not address IBM's desire to address all relevant documents at once.
Based on the foregoing, IBM respectfully requests that the Court extend the deadline to respond to G2's motion 30 days until January 19, 2005.
DATED this 20th day of December, 2004.
SNELL & WILMER L.L.P.
___[signature]___
Alan L. Sullivan
Todd M. Shaughnessy
Amy Sorenson
Peter H. Donaldson
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
Of counsel:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
CERTIFICATE OF SERVICE
I hereby certify that on the ___ day of December, 2004, a true and correct copy of the foregoing was delivered by hand to the following:
Michael P. O'Brien
Andrew H. Stone
JONES WALDO HOLBROOK & McDONOUGH PC
[address]
and was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE, P.C.
[address]Stephen N. Zack
Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER LLP
[address]Robert Silver
BOIES SCHILLER & FLEXNER LLP
[address]_____[signature]___
Michael P. O'Brien (USB #4894)
Andrew H. Stone (USB #4921)
JONES WALDO HOLBROOK & McDONOUGH PC
[address, telephone]
Attorneys for G2 Computer Intelligence, Inc.
IN THE UNITED STATES DISTRICT COURT
STATE OF UTAH, CENTRAL DIVISION
_______________________________________
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff,
vs.
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation,
Defendant.
_______________________________________
G2 COMPUTER INTELLIGENCE
INC.'S RESPONSE TO IBM'S EX
PARTE MOTION FOR EXTENSION
OF TIME TO FILE MEMORANDUM
IN RESPONSE TO G2 COMPUTER
INTELLIGENCE, INC.'S MOTION TO
INTERVENE AND MOTION TO
UNSEAL THE COURT'S FILE
Civil No. 03CV0294
Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells
_______________________________________
G2 Computer Intelligence, Inc. ("G2") submits the following memorandum in response to IBM's Ex Parte Motion For Extension of Time. G2 objects to a further extension beyond that which G2 agreed to, until January 7, 2005.
Further extension is unreasonable. IBM's desire to await response until it files its latest papers is of no avail. G2's motion contemplates ongoing responsibilities of the parties in this matter to justify the sealing of any document filed with the Court. It is no less efficient to justify filings sealed to date now, rather than wait for those to be filed next month. This responsibility is not onerous; the protective order in this case obligates counsel to have a "good faith" basis for designating materials confidential in the first instance. And IBM certainly has the legal resources to have responded to G2's motion in a timely manner, much less an entire month late.
While counsel for G2 believes in accommodating reasonable requests for extension, it has done so in this instance; counsel consented to a nearly three week delay. There are no real efficiencies in waiting, but real damage comes with delay. G2 is entitled to have its motion heard promptly, without being tied to IBM's briefing on its motion for summary judgment. Morever, the public is entitled to review nonproprietary matters that are filed under seal in this action promptly. Accordingly, G2 respectfully requests that the Court deny the ex parte application for extension beyond January 7, 2005 and require delivery of IBM's response on G2 by close of business on that day.
Dated this 21st day of December, 2004.
JONES WALDO HOLBROOK & McDONOUGH PC
By: ___[signature]______
Michael P. O'Brien
Andrew H. Stone
Attorneys for G2 Computer Intelligence, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 21st day of December, 2004, I caused a true and correct copy of the foregoing to be mailed, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
Hatch, James & Dodge, P.C.
[address]David Boies
Boies, Schiller & Flexner LLP
[address]Stephen N. Zack
Mark J. Heise
Boies, Schiller & Flexner LLP
[address]Todd Shaughnessy
Snell & Wilmer LLP
[address]Advid Marriott
Cravath, Swaine & Moore LLP
[address]Donald J. Rosenberg
[address]____[signature]______
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH JAMES & DODGE
[address, phone, fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES SCHILLER & FLEXNER
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
BOIES SCHILLER & FLEXNER
[address, phone, fax]
Attorneys for Plaintiff The SCO Group
_______________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_______________________
THE SCO GROUP, INC.
Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant.
_________________________
JOINT STIPULATION TO EXTEND
TIME FOR SCO TO FILE REPLY TO
G2 COMPUTER INTELLIGENCE,
INC.'S MOTION TO INTERVENE
AND MOTION TO UNSEAL COURT'S
FILES
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
__________________________
Plaintiff The SCO Group ("SCO"), by and through counsel, and movant G2 Computer Intelligence, Inc. ("G2"), by and through counsel, hereby stipulate that SCO may have through January 7, 2004 in which to file a response to G2's November 30, 2004 Motion to Intervene and Motion to Unseal Court Records ("G2's Motion"). In the event that the Court grants Defendant IBM additional time beyond January 7, 2004 to reply to G2's Motion, SCO's response shall be due on the same day as IBM's response.
DATED this 20th day of December, 2004.
By: ____[signature]______
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver, Esq. (admitted pro hac vice)
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
Attorneys for The SCO Group, Inc.
By: ___[signature]___
JONES WALDO HOLBROOK & McDONOUGH PC
Michael P. O'Brien
Andrew H. Stone
Attorneys for G2 Computer Intelligence, Inc.
I hereby certify that I caused a true and correct copy of JOINT STIPULATION TO EXTEND TIME FOR SCO TO FILE REPLY TO G2 COMPUTER INTELLIGENCE, INC.'S MOTION TO INTERVENE AND MOTION TO UNSEAL COURT'S FILES to be served on International Business Machines Corporation on this 20th day of December, 2004, by placing it in U.S. mail, postage prepaid, to the following:
Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]Donald J. Rosenberg, Esq.
[address]Alan L. Sullivan, Esq.
Snell & Wilmer L.L.P.
[address]Attorneys for Defendant/Counterclaim-Plaintiff IBM Corp.
By: ___[signature]____
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
Peter H. Donaldson (9642)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
_________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
________________________________
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant/Counterclaim-Plaintiff.
_________________________________
ORDER GRANTING
DEFENDANT/COUNTERCLAIM
PLAINTIFF IBM'S EX PARTE MOTION
FOR EXTENSION OF TIME TO FILE
MEMORANDUM IN RESPONSE TO G2
COMPUTER INTELLIGENCE, INC'S
MOTION TO INTERVENE AND
MOTION TO UNSEAL COURT'S FILE
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
_________________________________
Based upon Defendant/Counterclaim-Plaintiff International Business Machines Corporation's ("IBM") Ex Parte Motion for Extension of Time to File Memorandum in Response to G2 Computer Intelligence, Inc's Motion to Intervene and Motion to Unseal Court's File, and for good cause appearing thereon,
IT IS HEREBY ORDERED that IBM may file its Memorandum in Response to G2 Computer Intelligence, Inc's Motion to Intervene and Motion to Unseal Court's File on or before January 20, 2005.
DATED this 21st day of December, 2004.
BY THE COURT:
___[signature]______
Honorable Dale A. Kimball
U.S. District Court Judge
CERTIFICATE OF SERVICE
I hereby certify that on the ___ day of December, 2004, a true and correct copy of the foregoing was delivered by hand to the following:
Michael P. O'Brien
Andrew H. Stone
JONES WALDO HOLBROOK & McDONOUGH PC
[address]
and was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE, P.C.
[address]Stephen N. Zack
Mark J. Heise
BOIES SCHILLER & FLEXNER LLP
[address]Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]___[signature]____
United States District Court
for the
District of Utah
December 21, 2004
* * CERTIFICATE OF SERVICE OF CLERK * *
Re: 2:03-cv-00294
True and correct copies of the attached were either mailed, faxed or emailed by the clerk to the following:
following:
Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]Frederick S. Frei, Esq.
ANDREWS KURTH
[address]Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]Mr. Alan L Sullivan, Esq.
SNELL & WILMER LLP
[address]Todd M. Shaghnessy, Esq.
SNELL & WILMER LLP
[address]Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]Mr. Kevin P McBride, Esq.
[address]Robert Silver, Esq.
BOIES SCHILLER & FLEXNER
[address]Stuart H. Singer, Esq.
BOIES SCHILLER & FLEXNER
[address]Mr. David W. Scofield, Esq.
PETERS SCOFIELD PRICE
[address]Mr. Michael P O'Brien, Esq.
JONES WALDO HOLBROOK & MCDONOUGH
[address]