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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)
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?
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.
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!
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.
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!
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
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.
If you've kept up with GrokLaw PJ has talked about the OSRM situation. She dislikes what SCO is doing in the ethical/moral sense, she's not a techie. Since she left OSRM she's had many job offers and I recall she recently took one. PJ is a very good journalist and solid paralegal. I wish Groklaw had been around during the M$ anti-trust case.
Actually, as a person following this case, the thing that is sealed, and that O'Gara is filing to have unsealed (digression: I've not read the motion, so I can't say exactly what she's asking to have unsealed. But given her past writings on the subject I pretty sure I know what she's after), is an internal IBM memo that SCO contends shows evidence of IBM fraud in their dealings with oldSCO's project to port unixware to itanium. IBM claims to have provided the memo on accident, and that it is a privledged document that should not have been given to SCO. SCO basically agrees that it's not admisible evidence, but touts it as evidence that they need more discovery before IBM's summary judgement motions should be heard.
I'm all for open records, but in this case I don't want the seal to be lifted, and here's why.
SCO has been chomping at the bit to release this letter. They have made many references to it in their filings. They even read bits of the letter *aloud* in open court - the judge has since ordered that the transcript be sealed. But there were journalists there, and O'Gara (even though she was not there) has basically reported what was said --- despite the fact that SCO basically violated a court order when they read it.
This whole sorry business seems like a SCO orchestrated attempt to try and make IBM look bad, and I'm wholeheartedly against it. SCO's misconduct should not be rewarded; the seal should not be lifted.
You say
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.
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.
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.)
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?