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The SCO Group Inc. lost its first hearing before the U.S. District Court in Utah in its suit against IBM Corp. on Dec. 5, but company officials dismissed this setback as having little importance.
A magistrate of the U.S. District Court in Utah told SCO it has 30 days to respond to IBMs demands for details about the Linux code SCO claims encroaches on its intellectual property.
“This hearing was the equivalent of the coin toss at the beginning of the game,” said Blake Stowell, director of public relations with Lindon, Utah-based SCO. “IBM won the coin toss, so we had to provide our evidence first. They will have to provide their evidence at the start of the second half.”
Not all observers agree. Dan Kusnetzky, IDC vice president for system software research, commented, “It is a big deal. SCO has been pursuing litigation by public relations. They have even threatened to sue Linux-using end-users without showing any facts. Now, SCO is finally being forced by the courts to produce some evidence for its intellectual-property claims.”
John Ferrell, a founding partner of 40-attorney, Palo Alto, Calif.-based law firm Carr & Ferrell LLP, said he concurs. “The judge has instructed SCO to show its cards: SCO, what Linux-related code do you own, and specifically what code do you believe IBM has infringed?
“Motions to compel discovery are quite common,” Ferrell added. “In part because producing discovery is expensive and in part because no one wants to be the first to undress.”
Ferrell continued, “A fundamental rule in civil litigation is that you cant hide the ball. Disputes are settled by giving both parties a clear view of all of the pertinent facts. This isnt a Perry Mason mystery where everyone is clueless until the last witness on the stand breaks down crying.”
Courtroom drama or not, some observers have wondered why SCO used local attorney Kevin McBride (brother of SCO CEO Darl McBride) instead of its famous and high-priced law firm Boies, Schiller and Flexner. Stowell explained, “It wasnt an issue of billing. It was more a question of availability. This was a part of the case that our company chose to use Kevin McBride for. He has been working on the case along with our other firms since the start, so it made sense to use him here, too. He was there along with Brent Hatch from the firm of Hatch, Johnson and Dodge.”
For those Linux partisans who hope that SCO may have been discouraged by this twist in its legal struggle, Stowell closed, “This doesnt provide anyone with an early indication of what the end result of the trial will be.” SCO will fight on.
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