A "surreply" is a supplemental reply to a response to a motion. "Sur" translates as on or over in the sense of supplemental. Taking filings in the order they happen, a party files a motion, the other side files a response (sometimes called an "opposition"), then the party that filed the motion replies. With a surreply, the party that originally filed the motion files a supplemental, second reply. In Federal court, surreplies generally are prohibited by local court rules without the court's permission. Permission is most commonly sought to file a surreply when events happening after the filing of the reply brief make a further brief desirable. For example, when lots of motions are flying, it's not uncommon for one party to insert an argument, often in a footnote, in one of the briefs involving a motion it doesn't really relate to. Filing a surreply (or surresponse for the party opposing the original motion) in such a circumstance allows the party opposing that argument to make sure its counter-argument is considered when the court is deciding the appropriate motion.

In this case, it relates to SCO's Motion For Leave to File Third Amended Complaint and IBM is asking to be able to respond to SCO's Reply Memorandum. So some matters that were sealed are now revealed.

The issue is this: SCO, in its motion, "argued that its proposed amendment was timely because it 'did not know and could not reasonably have determined' that IBM's AIX 5L for Power product contains certain UnixWare/SVR4 source code until SCO received various documents from IBM in discovery in April 2004." However, IBM says, rather than providing all or any facts which might support such a contention in its opening memo, "SCO waited until after IBM showed in its opposition memorandum that SCO had -- or should have had -- such knowledge (which has been publicly available for over three-and-a-half years), only then submitting a declaration from a witness formerly employed at The Santa Cruz Operation, Inc. In the declaration, SCO offers new factual arguments regarding notice, arguments to which IBM necessarily has had no opportunity to respond." So, that is the basis for IBM's motion.

Additionally, G2 has filed its Reply Memorandum in Support of Motion to Intervene and Motion to Unseal Court's Files. It seems unnecessary, if the motive is to be able to follow along. As you can see by IBM's motion, even matters which are sealed end up being talked about, and we find ourselves quite well-informed, all in due time.

And here's the Pacer entry:

388-1 - Filed: 01/28/05 - Entered: 01/31/05 - Ex parte motion for leave to file

Docket Text: Ex parte motion by Intl Bus Mach Inc for leave to file sur-reply brief

As for SCO just discovering that UnixWare/SVR4 code is in AIX for Power, Groklaw earlier presented evidence of it being public knowledge for years, as you can review here and here. And we know they read Groklaw.