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Judge Petitioned To Unseal SCO-IBM Court Records
An anonymous reader writes "Groklaw is reporting that Maureen O'Gara has applied to the judge to open all and any filings or transcipts that till now have been sealed by the Utah district court hearing the SCO Group's $5 billion suit against IBM. Groklaw's Pamela Jones notes that 'O'Gara believes the public can't understand the case, because of the sealing' and some of the Groklaw.net members seem to agree that, that since in the U.S. any citizen has a right to review court records in order to monitor the performance of a judge, that O'Gara's 'motion to intervene' will most likely succeed." An anonymous reader writes that Jones last night said of the request "that she is 'of two minds' about the filing: 'I'm crazy wild to read everything. But on the other hand, the court and the parties wouldn't seal things without a reason that seems good to them. I believe in privacy, personally, and I don't think the public has a "right" to know everything.' The legal filing to unseal everything has not yet become available via Pacer."
Sigh. I only came here because Groklaw was all slow. I know why now. *grumble*
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
I, too, am crazy wild to read everything about this case.
I'm of the mind that if it affects me in any way, I should have the right to reviewmy government's decisions.
Just because someone sues you....that doesn't mean that all of your private information and trade secrets should become public information.
Mod points are pointless when you browse at -1.
We still know nothing about what SCO allegeds was stolen. If we knew, the Open Scource community could remove and rewrite offending parts in a few months. (I guess, IANA programmer) Why are people proud that FUD is the only thing they can produce?
I believe a portion of the public (many of whom are here) understand that SCO's case is ridiculous. Really it's just the extent of the ridiculousness that's being sealed off right now.
The part of the public that doesn't understand the case is not going to read these documents anyway. This would however allow experts to analyze the case more effectively, which will in turn benefit the general public's understanding of the case. All in all though, you've got to be in favor of these documents being opened up.
Your tax dollars are also hard at work doing things like fighting terrorism and hunting down child rapists. Perhaps we should publicly publish all of this info as soon as it is available as well?
Have you ever thought that perhaps they have a reason for this? And that maybe even that reason is favoring your hero in this battle? Probably not, but just bringing up the idea.
This may shock you, but it's not all about you. While I'm unable to comment about the particulars of THIS case, there's lots of information that comes up in court that's none of anyone's damn business but the parties involved.
Never confuse volume with power.
If I wanted to make your confidential material public, all I'd need to do is launch a spurious lawsuit and then have a journalist ask for it. Then it's all public knowledge. Courts seal stuff for a reason, and part of the stuff at issue in this case is IBM's proprietary software.
Do your "tax dollars" entitle you to peruse IBM's source code? And do IBM's tax dollars entitle them to peruse yours?
===== Murphy's Law is recursive. =====
The point is that your tax dollars don't entitle you to IBM's trade secrets, or SCO's for that matter.
Just because they have to reveal these things to the judge in order to resolve their dispute doesn't mean that you automatically are entitled to the product of their work.
Hot Damn! It's the Soggy Bottom Boys!
Just because some yahoo sues you, does not mean that everything that can be asked for, from you, should be public.
There should be due process in letting out secrets of parties that have not been criminally convicted. Allowing this would add another form of intimidation for the likes of SCO.
But various new sources have mentioned that Ms. Jones resigned from OSRM because SCO had systematically smeared her participation in that organization. No hard feelings between her and SCO could have crept into any of her announcements about that fine purveyor of THE Unix OS.
SLASHDOT: news for people who can't concentrate on work or have no life at all and got tired of yelling back at the TV.
Some records should be sealed. For instance, if evidence is brought up in a trial that represents a trade secret (the formula for some bizarre compound, for instance) no one needs to be looking at it outside the trial.
The records sealed in the SCO case, of course, probably have nothing to do with anything important and will simply be used to try and smear IBM. I kind of want to see them, but I also realize there's not going to be anything there.
Bother. I am so sick of this case and all the empty threats.
M
I worked at a law firm 4 years ago (in their IT department) and the whole legal system wrt this filing has confused me a lot. I always thought that trials were supposed to be public, but that certainly doesn't seem the case anymore. As of 2000, you had to have some sort of ID or know someone with an ID to get into a courthouse (and if you were coming as a guest of someone with an ID, you had to go through a security check, where as they could just walk in). It seems like most cases you hear about are closed to the public, and occationally the judge will allow some sort of video feed out to the press. It doesn't really bother me all that much because I don't have a huge interest in going and watching a bunch of trials, but I don't ever want to be put in a position where I'm tried for something and nobody is allowed to know anything about the case (as has happened to certain 'enemy combantants' in the last couple of years).
Whatever. It seems like judges are allowed to do whatever they want in their courtroooms, and no other branch of government gets to keep it in check (after all, an appeal judge will support his buddy judge in an appeal of a judicial decision).
In this case, I feel like the information should be made public, mostly because I think it would be great for the public to see that SCO's case is baseless and help clear the name of Linux before decision-makers decide to choose something other than Linux. I also don't see the point of making this case so private, there doesn't seem to be any sort of really good reason to make a case private (strong mafia/mob witness protection type issues, etc.). So, let's hope this filing succeeds.
I would agree with this on the surface...at least for things like National Security Issues, Trade Secrets and other things that do not belong in the public domain. But two things come to mind.
One: This is now a public issue, it has been brought into the courts. There is nothing going on here that should not be in the light of day if someone wants to wade through all the court docs.
Two: At what point does the line get drawn between public disclosure? Some things are obvious. How to make a hydrogen bomb, nope, shouldn't come out even if it is part of court documents. But where does the line end?
Is SCO using the thinking (right or wrong) that this is their proprietary information, therefore the public has no right to it? Wouldn't it be no less proprietary if we could all see it? If they win (blech) then it doesn't matter, we still can't "use" it. If they lose, then well, we can and it doesn't matter either.
Or, are they just using court procedure to hide from the public(media) that their case is weak/strong?
If you are one in a million, then there are six thousand people who are just like you.
you know sometimes I get these funny images in my head. when I read this headline I had to picture a combination of two movie scenes. the first would be when they open the ark in indiana jones and the lost ark. the second would be the ghostbusters II scene when the Scoleri brothers come back for the judge.
as in: judge breaks the seal, evil spirits fly around the room causing peoples faces to melt, but then turning into a ghostly darl in the electric chair. The judge looks scared and says NO... not Darl SCOleri!!! I gave him the chair years ago! (judge's face melts from the evil influence of darl).
*sniff*... sorry I just get a little emotional at the notion of darl getting the electric chair.
Obama is a twitter sock puppet
Many comments here seem to ignore the fact that this is a civil, not criminal, suit. SCO is suing IBM; the only part the government plays is in providing the judge and courtroom. Why should information be released, just because it is involved in a court case? If you could force someone's private information to be leaked to the public merely by suing them for something, the right to privacy would be severely threatened. Is this what we really want?
Your tax dollars became their tax dollars when you paid them. We don't live in a democracy, we live in a republic.
Those dollars pay for a practical version of justice -- through the courts -- not for the right to see whatever you want. Your tax dollars pay for medicare hospital visits across the country, but nobody thinks you're allowed to storm into the hospital and demand medical records for everyone that paid anything but cash.
I'm not dumb enough to think that funding the battling of two hulking companies are the same as somebody's medical records, but in this case, they probably reached an agreement in order to protect trade secrets, privileged communications, and so on.
that's bullshit. my tax dollars hard at work and yet i'm not able to see what's going on?
Go tell that to a rape victim.
I don't respond to AC's.
Here's an extract:
...
SCO: I present to the court exhibit A.
Judge: What is it?
SCO: I present you the penguin, it's not just a penguin, it's an *EVIL* penguin. Look at it's eyes, look at his eyes! the way they look straight through you, as if to say "I'm Evil", look at the way he waddles along in his "oh so innocent" way, but he doesn't fool us, oh no, he doesn't fool SCO
Judge: Get the hell of my court!
unix is made out of PEOPLE... PEOPLE!!
Here's an extract:
...
SCO: I present to the court exhibit A.
Judge: What is it?
SCO: I present you the penguin, it's not just a penguin, it's an *EVIL* penguin. Look at it's eyes, look at his eyes! the way they look straight through you, as if to say "I am a evil penguin", look at the way he waddles along in his "innocent" way, but he doesn't fool us, OH NO! he doesn't fool SCO
Judge: Get the hell out of my court!
The interest of justice is a sufficient incentive to maintain the ability to seal certain court filings by participants in a trial. Reductio ad absurdum: what happens if the provision for sealed documents is done away with? Individuals and companies involved in a suit will be *more likely* to attempt to hide evidence since its disclosure could be damaging to them if made public. The whole idea of discovery in a civil trial is to allow pertinent documents to be made available to the other side. If public disclosure of a document could cost a company or an individual much more than the value of the suit, it is highly likely that said document will conveniently disappear.
In current practice, the parties to a civil suit and the court agree to rules defining what may be kept confidential and then the rules are applied to various filings. Requests to seal are subject to challenge by the other party and the filing party is free to file a redacted version of a document without the portions that are subject to being sealed (e.g., leave out the formula for the "secret sauce" but leave in the rules for disclosing it, licensing it, etc.). This works for me.
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
that's bullshit. my tax dollars hard at work and yet i'm not able to see what's going on?
First, IANAL.
There has to be a balance. If parties believe that certain sensitive details, particularly trade secrets, will not be protected, then they are discouraged from using the courts as a method to remedy differences. That creates a barrier to access to the justice system.
Every time there's an anti-immigrant proposition in California where schools or hospitals or whatever are required to report illegal immigrants, the opposition's argument in debate and court is that creates a barrier to access to vital services.
You'll hear it again when someone tries to cap lawyer's contingency fees, set up a loser-pays law, etc. It creates a barrier to access for aggrieved parties who can't afford to risk their life savings on a law suit against a megacorporation.
None of this means immigrants couldn't go to the doctor or poor people couldn't go to court, but it does mean that it would create such risks as to discourage them from availing themselves of our medical system or justice system when they really need it most.
Providing reasonable access is a big thing in the American consciousness. It's an egalitarian concept since most of the laws that create barriers to access create them for the poor and disenfranchised.
But let's also consider the defendant in a trial too. If a defendant's proprietary information is exposed in discovery, does the public have a right to that information? The defendant was dragged into court, and now they'll lose valuable IP even if they eventually win? It wouldn't be moral, ethical, or "justice" if that happened.
OTOH, high profile cases that end in settlements where neither party admits fault and the details of the settlement are sealed... RRRGGGHHH! Those bug the heck out of me. But if the settlement is out of court and both parties drop their claim, the public doesn't really have a right to know anymore as it's become a private matter.
- Greg
Start a happiness pandemic
Recently, courts have taken to imposing publication bans (Read: You've got a right to know, but to exercise it, you'll have to line up for a seat in person, not send your representative, the press), or to sealing documents at the request of either counsel.
I'm of the opinion that, in all but the rarest of cases, the public's right to know what sort of justice is being done in their name trumps parties' desire for secrecy.
I'd like to see the details of all settlements made public, none of this crap about parties using our courts to compel counterparties to agree to secret settlements.
Everybody's a libertarian 'till their neighbour's becomes a crack house.
If we wanted more transparency in the world...
/.
they could start by unsealing the usernames of all these anonymous cowards on
M
would you be so good as to post your last seven tax returns, your drivers liscense, and the titles to any cars and property you own? I know that my tax dollars were used to process those documents, and I have a right to know.
Wasn't IBM required to divulge a substantial part of their source code? That alone is reason enough to leave a lot of the discovery material sealed.
BTW.. Remember this is Maureen O'Gara.. She hasn't exactly proven herself to be a friend of Open Source . I'm not exactly sure what she wants out of this.
I don't think she was saying people don't have the right to pursue information, just that not all information should be made public. I took it to mean that whether or not the records should be released depends on the nature of the information that caused them to be sealed in the first place.
She is just saying that certain information should remain private. The public does not have a right to access all types of information. Do I have a right to know your SSN? Or view your medical records? No. That is privileged information that need not be divulged for public review.
While that example is only valid in an individual sense, the same reasoning can be applied to a corporate setting. If the court discussed information that is within the rights of SCO and/or IBM to retain as private, the public does not have an implicit right to demand access to that. If on the other hand someone just wants to hide the skeletons in the closet, then perhaps more public proceedings are called for.
PJ 'blogs' the facts, albeit sometimes with a fierce preserve for open source, but nevertheless, the FACTS.
The other news sites 'report' what they decide is 'news', and that 'news' can be swayed by whatever/whoever is paying them to say it.
I have been a posting member of Groklaw for ages now, and I damn well trust an ex-paralegal to investigate and 'blog' the truth, rather than any news reporter ANYTIME.
PJ has done the world of 'IANAL' geeks proud - and I would even say without a doubt without PJ and her blog, the SCO FUD would have worked and we would all be in the shit.
Get the Windows source code entered as evidence, then get it unsealed, same as this case.
Sometimes confidentiality is necessary.
Sometimes confidentiality is timely
Perhaps what we're really missing is a review process to determine what needs no sealing, what can be unsealed post-trial, what remains sealed through the appeals process, and what should remain trade secret.
The living have better things to do than to continue hating the dead.
Groklaw accused Maureen O'Gara of lying about the court proceedings a while back, so I guess now we'll find out what really happened.
More specifically, Pam Jones on Groklaw pointed out that what Maureen O'Gara said happened either (a) did not happen, or (b) happened behind a screen so that no one in the audience could see it, and that (c) the transcript was sealed, so that O'Gara could not have found out what was said from the transcript. Finally, (d) what O'Gara says happened contradicts other things that the audience did see.
This does not mean that O'Gara was necessarily wrong, but it does mean that either the other people in the audience weren't paying atention, or O'Gara was provided with information that she shouldn't have been provided with, or O'Gara simply made it up.
Your second paragraph is taken completely out of context. Jones is, and says so, happy about seeing more documents become unsealed:
What Pam was laughing at was the "extra" information in the request that the judge is likely not to take very well. Such as telling the judge, in the request, what the significance of the case is.
Jerry
Groklaw appears to be slow, so here's relevant portions of the article you linked to:
=====
A Bit of the Blarney -- or Worse? -- About "Lost" Code
Saturday, October 23 2004 @ 03:38 PM EDT
It used to be funny pointing out mistakes in reporters' stories.
But when a reporter prints something that isn't just misinformed but hurtfully inaccurate, I think it's more serious. As you likely know, Maureen O'Gara printed a story about what allegedly was said in the last court hearing between IBM and SCO. That, in and of itself, is ethically problematic, to me, since the court ordered the transcript sealed. The source of her "information" would be whom, would you guess?
It wouldn't surprise me if IBM follows up on that aspect of the matter. I would.
Groklaw had eyewitnesses at the hearing. None of them reports seeing Ms. O'Gara there. Furthermore, none of them heard what she "reports" about IBM supposedly claiming not to be able to find code it was supposed to turn over. Let me repeat that. IBM never said anything like that, according to our eyewitnesses. I absolutely can tell you that the O'Gara story does not match what they heard. They also told me that the screen was placed in such a way that no one in the audience could see it. How then does Ms. O'Gara know what was shown on the screen?
Nor does it make any sense. For starters, IBM said at the hearing that they have produced all the code they have been ordered to produce to date. They have produced all released versions of AIX which they were told to turn over. That isn't even in dispute. The hearing was about whether IBM should now be required to produce more code, now that SCO couldn't find any infringing code in the millions of lines it already received. The judge hasn't decided that issue. Second, SCO's Third Amended Complaint has not yet, to my knowledge, been accepted by the court. Even if we posit that it will be, IBM has not yet even answered it, let alone been found in violation of anything having to do with it or even been accused of such.
I therefore conclude that Ms. O'Gara has been provided with some misinformation, or she has decided to spread a bit of the Blarney sua sponte.
=====
Linuxgram part of G2News and claims to "broken most of the key stories in Linux since it was started several years ago." Her version of "news" includes stuff like this tidbit where she breathlessly reports that some guy -- shown two pieces of code with no background or research (and under a non-disclosure agreement no reputable journalist would sign) -- declares them to be the same. That and numerous similar examples show that her "inside information" is obvious; she's sucking up to SCO by spinning the story their way. In return, they give her "inside information" -- which amounts to trivia like this; who they hired for a lawyer or how much they plan to charge for SCOSource -- so she can claim an exclusive story. This isn't journalism, it's pandering.
Kind of reminds me of the old Daily Show slogan, "When news breaks, we fix it."
Except for O'Gara it's more like, "When no news breaks, we invent some."
===== Murphy's Law is recursive. =====
Its really funny that you people should mention rape victims considering the sort of public humiliation they tend to go through should they successfully press charges.
A Pirate and a Puritan look the same on a balance sheet.
On the otherhand, SCO *does* have a very good track record at stalling their various court cases and launching off on tangents that ultimately lead nowhere but consume yet more time. So, suppose the have Maureen ask for the records, what's likely to happen next? Presumably the judge will have to consult with SCO and IBM's lawyers, time will pass, but they quite likely are going to end up giving her the response "no". So, unless things are very definite, Maureen can now ask for just some of the records to be disclosed. The judge then (she hopes) goes back to the lawyers and lengthy arguments ensue about which documents each side should, or should not, disclose.
Also, I wonder if there is anything more that coincidence behind the fact that this should come to light so soon after SCO received a setback in its legal proceedings. Funnily enough, SCO just had its motion to stay the Daimler-Chrysler case until after the conclusion of the IBM case denied... I find it very interesting that this should be announced just one day after SCO lost the ability to use the IBM cases as a brake in another of its lawsuits.
UNIX? They're not even circumcised! Savages!
Its really funny that you people should mention rape victims considering the sort of public humiliation they tend to go through should they successfully press charges.
That's my point. Sometimes privacy is a good thing in regards to court cases.
I don't respond to AC's.
Second: PJ states that she is torn on this current issue. She would love to be able to read all the documents (including the ~35 that are sealed out of 2-300 that have been filed), but she also sees that merely having someone file a malicious court case shouldn't automatically remove all your right to privacy.
Third: Groklaw isn't just about the facts, and nothing but the facts; it's also about analysis of the facts. But the cool thing about Groklaw is that the facts are there to support the analysis, and if you can make a case that the same facts support a different interpretation, they will listen. They may not agree, but they will listen.
Fourth: Your particular quote has a context, which you didn't provide. The context is that O'Gara stated, "SCO's suit claims IBM improperly incorporated aspects of SCO's Unix operating system in Linux. If proved, it could derail the Linux market and take the open source movement down with it." Well, that statement is in a PR release about filing a motion, not in the motion itself. It also has the problem of not stating how, exactly, even if the Linux kernel goes down in the SCO lawsuits, it will take the whole open source movement with it. OS is much more than the Linux kernel; it's also Apache and gcc and BSD and...
But the point of PJ's comment is that the SCO lawsuits seem almost designed to damage the open source movement, by spreading as much FUD as possible for as long as possible. Note the absense of any concrete claims that can be verified, the presense of lots of widely publicised vague claims that can't really be nailed down, and the constant manipulation of the courts to prevent any concrete judgments from being handed down.
PJ's point, then, is that O'Gara's comment shows what the real game is. (Given her other comments, I don't think PJ is very worried about the judge not getting it, however.)
I believe in privacy, personally, and I don't think the public has a "right" to know everything.'
This case is really about Linux, and Linux is written by "the public". As a (small-time) kernel contributor I want to hear the sealed information relating to arguments in a court case that is attempting to damage the reputation of a project that I am a contributing author of.
I believe in privacy, personally, and I don't think the public has a "right" to know everything.'
Companies should never have the same rights as people, they need to be held accountable for their actions. And they wont do that unless business pratices are made open to the public.
Not picking on you per se (since everyone else in this thread is saying the same thing), but I don't think PJ actually accused O'Gara of lying. It's more like the rest of what you said. She reported that what O'Gara said didn't match any of the eyewitness accounts, so clearly somebody was wrong. But whether it was O'Gara who was wrong, or the eyewitnesses, PJ didn't definitely say since she wasn't there. Of course, the implication is clear, but the actual accusation was not directly made, if I recall correctly.
There should be due process in letting out secrets of parties that have not been criminally convicted.
This is an example of that due process in action. The judge is being petitioned to unseal the documents and will decide whether or not to do so.
It's government by the people for the people. The people collectively own the government and all its assets. Public officials are employees of the public and are thus all public servants, stewarts of our money.
The People, with a capital P, is sovereign in the United States of America.
Preambule to the US Constitution:
We the People of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
From Wikipedia
"Piter, too, is dead."
So if I sue your wife claiming she gave me herpes, does that mean that twenty years worth of her medical records should be on the front page of the New York Times? Just because I can't prove we even met doesn't make immune to litiation and discovery. Considering court costs and filing fees, I wouldn't be surprised if the court doesn't make a profit on SCO vs IBM.
Apocalypse Cancelled, Sorry, No Ticket Refunds
This is just FUD, served up as a news story by a person with a very public agenda. I am sure that Maureen does not expect to see the evidence. She just wants to make a lot of noise about it.
How come Slashdot never gets Slashdotted?
Do your "tax dollars" entitle you to peruse IBM's source code? And do IBM's tax dollars entitle them to peruse yours?
No, the GPL does.
Haec merda tauri est. Ceterum censeo Carthaginem esse delendam.
According to this ip-wars.net story, this 13-page pdf of images is the motion to intervene. A comment at ip-wars contains a text transcription.
With the possible exception of the O.J. trial, this must be the most embarrassing court case the U.S. has had to suffer through in front of an international audience. It took the German legal system, what, a week to bitch-slap SCO? And they didn't even dare try any of this crap in countries like Britain.
So just what will it take for an American judge to finally throw this whole pile out? Why does SCO get to spread rumors that hurt the business of RedHat, IBM, and Novell for months and months without one single bit of hard evidence? This is not a game, it is about real money that is being lost because of FUD, real damage to product images and real smears to reputations. Just why does the judge get to wait forever to get something, anything done?
If P.J. has convinced anybody of anything, it is that the rest of the democratic countries can thank heaven that they are not stuck with the 18th Century anachronism we Americans pretend is a real, functioning legal system. Care to hazard a guess how much the lawyers have made on this already?
I am sorry, but that is the most ignorant answer I have seen in a long time. And rated "insightful"...
The big question is - who would you entrust with the responsibility to judge what is important, what is not "good" for the public? I consider myself an extremely honest person, yet I would not entrust myself with the discrimanatory power to decide what should and what shouldn't be open to the public.
"power corrupts, and absolute power corrupts absolutely"
You will learn (hopefully) the truth of this saying with age.
The whole point here is exactly this: Openness. It is the only thing that works. It does impede some progress in certain cases, but it is the only thing that ensures us against corruption, which WILL come if we dont have checks in place...
-TN
> I believe in privacy, personally, and I don't think the public has a "right" to know everything.'
Oh, that's just silly.
These are publicly traded companies wrangling over copyright and licensing details. The sealed material doesn't contain "private" stuff that would truly deserve to be kept private (like personal medical records and such). It most likely just contains details about their business operations, contractual matters, and so forth.
If a company has trade secrets, and those secrets end up in court documents, then I guess the company wasn't careful enough now, was it? They should be more careful next time. (I'm reminded of Scientology v. Fishman here.) Companies are abstract legal entities that don't deserve "privacy" like people do. Companies have something much better than privacy -- they have highly-paid lawyers looking out for their interests. If those lawyers screw up and end up releasing "sensitive" information, then I, for one, am not going to shed a single tear.
First off, there is a balance between the right to privacy and the right to know.
Secondly, hasn't it occurred to anyone that SCO has been asking for an awful lot of company confidential material from IBM? With "awful lot" I mean to the point of being rediculous and apparently completely irrelevant to the case itself.
Given the ease by which bits of confidential information appears to make it into the public (like the reading out of IBM data in court despite a judge's order to stop it) I would, as IBM, feel rather concerned - these are, after all, their business secrets. And sorry, you *don't* have a right to know those. Otherwise go and ask Microsoft for the same, they're in court more often AFAIK.
I agree you/me/planet ought to have full access to court proceedings, but I think SCO is demonstrating quite clearly how this can potentially be abused. Given the origin of some of their financial backing I guess it's imported expertise.
Now, back to the journo, I have no idea what her motive is, but I remain unconvinced this has anything to do with real journalism.
Disclaimer: all of this IMHO, and IANAL etc..
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