Redaction of SCO's first memo on Novell's SJ/PI motion now available

Alpaca Petrofsky

Friday evening (January 12), SCO finally filed a redacted version of
the memo it filed a month ago on Novell's motion for partial summary
judgment or a preliminary injunction. See:






See below for some correspondence about this redaction.

This will probably be the first summary judgment motion heard in any
of the SCOsource cases since September 2004.

It's not clear to me when exactly the motion will be heard. In Judge
Kimball's October 24 order (dkt #162), he wrote on page 2 that "the
court will hold oral argument on the motion on January 23, 2007, at
3:00 p.m.". However, no separate hearing notice has been issued, and
thus the hearing is not in the court's electronic calendar. Also, I
think SCO's subsequent filing of a cross-motion (#180) might make the
January 23 date problematic. The Federal and Utah rules don't mention
cross-motions, but I believe a motion and its cross-motion are
normally heard together, and that the cross-motion is briefed as a
full motion, with opposition and reply briefs. That's how the motion
and cross-motion at the September 2004 hearing were handled. Novell's
reply brief on its summary judgment / preliminary injunction motion
did not mention SCO's cross-motion, and I believe Novell has until
January 16 (per DUCivR 56-1(b) and FRCivP 6(e)) to file a separate
opposition brief to the cross-motion if it desires. SCO would then
have until February 2 to file a reply.

I'm guessing there will be at least two SCO conference calls between
now and the entry of any summary judgments or injunctions. SCO's
year-end call is next week, and its Q1 results are due March 15.
Judge Kimball has never ruled on a dispositive motion in either case
before mulling it over for at least a month (and usually much longer)
after the hearing. The next summary judgment hearing in the IBM case
isn't until March 1, and for the reasons I discussed in the previous
paragraph, I think the Novell hearing might not occur until late
February.

Much of scofacts.org is six months out-of-date now, but I hope to get
most of it caught up in the next few days. The one page I've been
keeping up-to-date is the short interest table:


-al

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Date: Thu, 11 Jan 2007 10:53:23 -0800
From: Al Petrofsky <>
To: "Blake Stowell, public relations" <>
CC: "Bert Young, CFO"
"Brent Hatch, counsel for SCO Group"
"Michael Jacobs, counsel for Novell"
"Maureen O'Gara", "Charles Babcock"
"Bob Mims"
Subject: Can you redact your sealed response to Novell? (Re: SCO Group v. Novell, 2:04-cv-139, Dist. of Utah)

Dear Mr. Stowell:

I see there's a hearing coming up on January 23 (per Order #162) on a
dispositive motion by Novell (dkt #147) that, if granted in full,
would be rather disastrous for SCO.

Novell has filed public redacted versions (dkt #148 and #198) of its
sealed memoranda (dkt #155 and #205) on the motion. The latter memo
states that a SCO bankruptcy is "imminent".

Unfortunately, SCO's memo (dkt #183, filed December 12) is sealed, and
no public redaction has been filed. I notice that you have already
felt the need to make some public response to inquiries about Novell's
memoranda:



SCO spokesman Blake Stowell said Tuesday Novell's assertions "jump
to incorrect conclusions."

It would be nice for people to be able to read at least some of SCO's
side of the story on this issue. Do you think you could persuade
SCO's legal team to file a redacted version of memo #183 as soon as
possible?

As you recall, in the SCO v. IBM case (2:03-cv-294), the news media
brought a motion about the lack of publicly available court documents,
and as a result, the court entered an order (dkt #438 in SCO v. IBM)
that required the parties to file public redacted versions of all
dispositive motion memoranda in that case.

I hope that no similar third-party action will be required in the
Novell case, especially when it clearly seems to be in SCO's own
interest to get its arguments out to the public.

Thank you for your consideration.


Yours truly,

Al Petrofsky

------

Date: Thu, 11 Jan 2007 11:00:11 -0800
From: Al Petrofsky <>
To: "Blake Stowell, public relations" <>
CC: "Darl McBride, CEO", "Bert Young, CFO"
Subject: P.S.

P.S. I was glad to see that California and BYU both won their bowl
games this year, so no singing will be required on the conference
call. I'll keep practicing my singing anyway, just in case the Golden
Bears should ever fail.

------

Date: Thu, 11 Jan 2007 12:27:53 -0800
From: Blake Stowell <>
To: "Al Petrofsky" <>
Subject: Re: P.S.

You're a good sport Al. I was happy to see a different outcome for BYU at
this year's Las Vegas bowl. :-)
___
Sent with SnapperMail


------

Date: Fri, 12 Jan 2007 22:52:04 -0800
From: Al Petrofsky <>
To: "Blake Stowell, public relations" <>
CC: "Bert Young, CFO",
"Brent Hatch, counsel for SCO Group",
"Michael Jacobs, counsel for Novell",
"Maureen O'Gara", "Charles Babcock",
"Bob Mims"
Subject: Re: Can you redact your sealed response to Novell? (Re: SCO Group v. Novell, 2:04-cv-139, Dist. of Utah)

Thank you for filing a public redacted version of the memo this
evening. I've made it freely available here:






I notice that these files only contain scanned images and no
machine-readable and searchable text. That's certainly better than
nothing, but I hope, going forward, that all parties will strive to
comply with the court's requirement that text PDFs be filed:

District Of Utah CM/ECF Administrative Procedures, Section II.C.3:

Whenever technically feasible, all documents electronically filed
in the system must be prepared as "text PDF" documents converted to
PDF format electronically and not by scanning.



I realize that there are pitfalls that can make it non-trivial to
create properly-redacted text PDFs, and that these pitfalls have in
fact arisen in filings made by both parties in the SCO v. IBM case
(see note 1 below). However, I also know that SCO and Novell have
both successfully created redactions in text PDF form (e.g. Novell's
dkt #198 in this case and SCO's dkt #724 in the IBM case), and I am
confident that you can continue to do so, as the court's procedures
require.

Thank you again for filing the redacted memo.


Yours truly,

Al Petrofsky


Note 1: IBM filed a declaration in April (dkt #672) in which the
redacted portions were easily recoverable. That incident was
discussed on Judge Nuffer's blog and in the court's newsletter:





In December, also in the SCO v. IBM case, SCO made similar errors in
two redacted memoranda it filed (dkt #907 and #908).