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SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text.
Wednesday, November 26 2003 @ 09:46 PM EST

Here is PLAINTIFF SCO'S MEMORANDUM IN OPPOSITION TO IBM'S SECOND MOTION TO COMPEL DISCOVERY as text. Be aware that the original is missing footnote 5. It jumps from 4 to 6. Just letting you know so you won't think it's a mistake on our part. I want to thank everyone who worked hard to get this ready, especially Palle Raabjerg , Steve Martin (a little bird says his wife helped too, so thanks to Mrs. Martin too), and madbad rabbit. As always, it's a community effort. PDF is here.

*************************************************

Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone, etc.]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
David K. Markarian (admitted pro hac vice)
BOIES, SHILLER & FLEXNER LLP
[address, phone, etc.]

Attorneys for Plaintiff


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION


THE SCO GROUP,
Plaintiff,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant

PLAINTIFF SCO'S MEMORANDUM
IN OPPOSITION TO IBM'S
SECOND MOTION TO COMPEL
DISCOVERY
Case No. 2:03CV0294DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells


Plaintiff, The SCO Group, Inc. ("SCO"), files its Memorandum of Law in Opposition to Defendant International Business Machines Corporation's ("IBM") Second Motion to Compel Discovery and in support states:

I. IBM Failed To Meet and Confer in Good Faith Before Filing its Motion to Compel

IBM's motion to compel fails to comply with this Court's strict procedural requirement of conferring in good faith to attempt to resolve the discovery dispute without court intervention. Rule 37-1(a) of this Court's local rules specifically requires reasonable efforts to reach agreement with the opposing party on the matters set forth in the motion, and to set forth a specific recitation of time, date and place of, and the identity of all counsel involved in such efforts. Without that, "the court will not entertain any discovery motion." IBM has ignores this procedural requirement.

IBM, according to its "Certificate of Compliance with Rule 37(a)(a)(A)", attached hereto as Appendix "A", admits that it has never discussed Interrogatories 12 and 13 with SCO's counsel. Specifically, IBM states that "[c]ounsel for the parties did not specifically discuss Interrogatory nos. 12 and 13 because, at that time, SCO had not yet answered these interrogatories." Id. at pp.2-3. Having never discussed the two interrogatories, it is clear that no effort to resolve the issue occurred before IBM filed its second motion to compel. Based on the lack of compliance, IBM's motion should not be entertained by this court. See Rule 37-1(a).

IBM seeks to excuse its lack of compliance with the Rule by claiming that consultation occurred long ago with regard to three interrogatory answers from a prior set of discovery (Defendant's First Set of Interrogatories) that were incorporated in the latest answers. IBM's attempt to bootstrap failed efforts to resolve an earlier discovery dispute as purported good faith efforts to resolve this subsequent discovery issue should be rejected.

First, since the time of those earlier discussions, SCO has voluntarily supplemented and revised its prior answers to the relevant interrogatories. As a result, IBM's concerns or criticisms directed to the original answers to the earlier interrogatories cannot be considered a good faith conference when the answers to Interrogatories 12 and 13 incorporate SCO's revised and supplemental responses to the earlier interrogatories.

Second, IBM's instant motion to compel raises issues beyond interrogatories 12 and 13 of Defendant's Second Set of Interrogatories, for which IBM also did not comply with the meet confer provisions of DUCivR 37-1. For example, IBM's motion also raises SCO's purported "fail[ure] to produce to IBM important categories of documents that it could have produced months ago." Id. at p. 2, attached as Appendix "A". Although not referenced in IBM's certificate, a conversation took place in which each side asked for the production of certain documents on a more expedited basis. The top of both parties' list of documents desired from the other was the production of source code. Although SCO had produced millions of lines of requested source code, IBM complained of the format in which it had received code. Despite the fact that IBM received code in exactly the format it requested (at great expense to SCO), SCO also agreed to provide the code in the newly requested format. In fact, since the time of that request, SCO has sent scores of CDs containing the requested source code i the format requested by IBM. In return, IBM has yet to provide a single line of requested source code.

SCO has provided the requested information. When IBM has specified additional information sought or asked for already produced information in a different format, SCO has consistently agreed to supplement its discovery and, in fact, has supplemented its discovery. IBM's second motion to compel is procedurally defective based upon the wholesale failure to comply with this Court's Rule 37-1(a) requirement and can be denied on that basis alone. Beyond these procedural infirmities, as discussed below, IBM's motion to compel is substantively flawed and can also be denied based on that basis.

II. SCO's Ability to Answer Certain Discovery Has Been Thwarted By IBM's Failure to Provide Source Code in Response to Discovery Requests

To understand why certain portions of IBM's Interrogatories 12 and 13 are objectionable and why SCO's current responses are entirely adequate, the questions must be placed in context. As detailed in SCO's Complaint, this case essentially arises from the contractual relationship between SCO and IBM and Sequent (now part of IBM and hereinafter collectively referred to as IBM), which were1 licensees of SCO's UNIX System V source code ("UNIX"). IBM utilized its license for UNIX to develop AIX, which is IBM's "own version of UNIX," and to develop Dynix, which is Sequent's version of UNIX. As a licensee, IBM agreed to certain restrictions upon its use of UNIX, most notably that modifications and derivatives thereof (i.e. AIX and Dynix) would be used solely for IBM's internal business purposes, would be maintained in confidence, and would not be disposed of in whole or in part2. IBM has publicly admitted that contrary to these clear limitations on the use of UNIX, AIX and Dynix, it contributed AIX and Dynix into Linux, the free and publicly available operating system that IBM has heavily supported, both financially and technologically. By doing so, IBM has unquestionably breached its many contractual obligations with SCO. In contravention of its license, IBM has embarked upon a plan to support, strengthen, and improve Linux. IBM's efforts include its contribution of confidential and protected materials into the Linux 2.4 and 2.5 kernels (in lay terms, the "brain" of the operating system) to make money by providing support and services to corporate users of Linux. IBM's plan not only allows it to generate billions in Linux related revenues from providing support and services to users of Linux, but also to weaken the position of other competitors such as SCO, which provide mission critical operating systems to the world's largest corporations.

Against this backdrop, SCO provided detailed interrogatory answers that specify the source code files that contain the information that IBM and Sequent agreed to maintain as confidential and proprietary. Stripped of legalese, the two interrogatories in question here request SCO to identify:

  1. All source code and other material in Linux to which SCO has rights, and how such material is derived from UNIX, and

  2. Whether and how IBM has infringed those rights, and

  3. Whether SCO itself has distributed the code or material SCO claims IBM has infringed.

SCO made two entirely appropriate objections to the interrogatories and then otherwise responded.

Largely because this is a case arising out of IBM's misconduct, SCO objected to identifying materials in Linux in which SCO has separate rights unrelated to IBM. For example, IBM has essentially claimed that SCO has shown third parties IBM's code contributions to Linux that SCO claims was placed in Linux in violation of its rights. To the contrary, it has been widely reported that such revealed code was placed in Linux not by IBM, but by another company, SGI. SCO need not produce SGI code that SGI placed in violation of its licenses with SCO. Such information is entirely unrelated to IBM's violations of its particular license agreements.

With the question properly framed, SCO's revised and supplemented response to Interrogatory 1 fully answers the question to the best of SCO's ability at this time.3 The revised and supplemental answers are attached hereto as Appendix "B". Without repeating the entire 16 page answer, SCO more than adequately identifies offending IBM materials in Linux.

The other objection raised by SCO that necessarily limited its response is IBM's failure to timely produce documents More detailed answers to these questions lie, in large part, in the documents, code, and other materials developed by IBM and Sequent, which IBM and Sequent agreed would be kept confidential, and which IBM has yet to produce. As a result, the full range of what IBM illegally contributed and how it did so are known only to IBM, and SCO remains unable to craft further responses until SCO obtains that information from IBM.

A brief example of documents requested by SCO on June 24, 2003, which are yet to be produced (and are therefore outstanding for four months), highlight the difficulties caused by IBM failing to timely produce documents in a technically involved case such as this one:

  1. All versions or iterations of AIX source code, modifications, methods and/or derivative works from May 1999 to the present.

  2. All versions or iterations of Sequent Dynix source code, modifications, methods and/or derivative works from January 1999 to the present.

  3. All contributions made without confidentiality restrictions by IBM or anyone under its control including, but not limited to, source code, binary code, derivative works, methods, and modifications to Open Source Development Lab, Linus Torvalds, Red Hat or any other entity.

  4. All documents concerning any UNIX source code, derivative works, modifications or methods disclosed by IBM to any third party or to the public.

  5. All documents concerning any AIX source code, derivative works, modifications or methods disclosed by IBM to any third party or to the public.

  6. All documents concerning any Sequent Dynix source code, derivative works, modifications or methods disclosed by IBM to any third party or to the public.

  7. All documents concerning any UNIX source code, derivative works, modifications or methods found in Linux, open source, or the public domain.

  8. All documents concerning any AIX source code, derivative works, modifications or methods found in Linux, open source, or the public domain.

  9. All documents concerning any Sequent Dynix source code, derivative works, modifications or methods found in Linux, open source, or the public domain.

  10. All documents concerning any contributions to Linux or to open source made by IBM and/or Sequent.

  11. All documents concerning export controls for any UNIX source code, derivative works, modifications or methods contributed to open source, including all portions of AIX and Dynix and their derivative works, modifications, or methods.

  12. All documents concerning IBM's contributions to development of the 2.4 and 2.5 Linux Kernel.4

Meaningful supplemental interrogatory answers can only follow IBM's production of the foregoing materials and the subsequent careful and time consuming review of the documents by counsel and qualified experts. SCO has already identified nearly 600 files of code improperly contributed by IBM. IBM's refusal to respond to properly put discovery requests to identify its own contributions to Linux thwarts SCO's ability to determine whether further supplementation is necessary. When IBM finally responds o the outstanding discovery requests, SCO will have the critical information it needs to identify any additional offending violations by IBM.

Beyond the propriety of the foregoing objections, by adopting its revised and supplemental answers to Interrogatories 1, 2 and 4, SCO's substantive answers fairly respond to Interrogatories 12 and 13. IBM's representations to this Court about the perceived deficiencies in SCO's answers arise from IBM's attachment of, and apparent reliance upon, SCO's initial response to IBM's First Set of Interrogatories and Request for Production of Documents. SCO did not incorporate those initial answers. Rather, as noted above, SCO voluntarily revised and supplemented its answers and incorporated those supplemental answers in response to Interrogatories 12 and 13. SCO's supplemental responses, which have been ignored by IBM, are attached hereto as Appendix "B".

SCO's revised and supplemental responses (Appendix "B") to interrogatories 1, 2 and 4, which are adopted in response to Interrogatories 12 and 13, serve to inform IBM of:

  1. What trade secrets and/or confidential and proprietary information SCO alleges IBM misappropriated;

  2. The information SCO alleges IBM was to keep secret and confidential and did not;

  3. The methods used by IBM to create derivative works based on UNIX;

  4. The identity of entities and individuals having had access to confidential information; and

  5. How and when IBM infringed and misappropriated SCO's trade secrets and/or confidential and proprietary information.

The two dozen pages of information setting forth this information in these interrogatory responses is more than adequate compliance with SCO's discovery obligations in light of IBM's lack of concomitant compliance with its own discovery obligations.

III. SCO Has Produced Documents and Continues to Produce Requested Documents

IBM's motion abruptly shifts focus to complain about a perceived deficiency in SCO's track record of document production. This portion of the motion is likewise without basis. SCO has produced over one hundred CDs containing literally millions of pages of documents to IBM over the past several months and has done so pursuant to documented agreements to provide the massive production of documents on an ongoing and "rolling" basis. Moreover, unlike IBM, SCO has been producing documents as they are kept in the ordinary course of business.

When the actual state of production is viewed, it becomes readily apparent that SCO is taking its discovery obligations very seriously and in compliance with the Federal Rules of Civil Procedure. For example, IBM claims that the nearly 1 million pages of source code already produced by SCO were produced in an "unusable" form -- essentially because it was in human readable form, rather than in machine readable form. This statement, however, ignores that IBM's precise request in this regard was for "human readable code". See Defendant IBM's First Set of Interrogatories and First Request for Production of Documents, page 20, paragraph 18, attached as Appendix "C". Specifically, the instructions in IBM's discovery requests dictate that "source code shall mean the human readable form of a computer program written in the original and preferred form for human inspection...' SCO went to great expense to comply and produced the code in "human readable form," i.e. paper form. After that production, IBM changed its mind and gave SCO contrary verbal instructions. Based on IBM's representation that it likewise was going to provide its code in the alternative format, SCO then spent additional time and money to provide the code as newly requested. Since that time, SCO has produced dozens and dozens of CDs containing the source code in the format requested by IBM. IBM, on the other hand, has yet to produce a single line of source code in any format. By any objective standard, SCO has clearly complied with its discovery obligations.

IBM's remaining criticisms of SCO's production likewise wither when compared to what has actually occurred. For example, IBM's oft repeated complaint that it has not been given access to the improperly contributed code SCO has shown to others ignores that such code was not IBM code, but the code improperly contributed to non-IBM entities. Likewise, IBM's request for files for certain individuals and for more recent source code agreements ignores that IBM was told that such documents were next in the rolling production after SCO first produced the source code in the new format requested by IBM.6 That source code production is nearly complete and it is expected that the files in question will be produced over the course of the next few weeks. In short, SCO's production of over 100 CDs worth of information dwarfs IBM's limited production of 18 CDs worth of documents.

CONCLUSION

IBM has failed to comply with DUCivR 37-1 to meet and confer and to set forth a specific recitation of time, date and place of, and the identity of all counsel involved in such efforts. On that basis, the motion should be denied. The motion also fails because SCO has fully answered the interrogatories. As detailed above, before IBM filed its motion SCO had been producing the requested documents and continues to do so pursuant to an agreement between the parties to do a rolling production. Additionally, IBM's own conduct has precluded more detailed discovery responses. For the foregoing reasons, SCO respectfully requests that this Court deny IBM's second Motion to Compel.

DATED this 24th day of November, 2003.

Respectfully submitted,

By: [signature]
____________________________________
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES SCHILLER & FLEXNER, LLP
Stephen N. Zack
Mark J. Heise
David K. Markarian

Counsel for Plaintiff/Counterclaim Defendant


1 Based upon the violations of those licensee agreements by IBM, both companies have been sent letters terminating their license and demanding that all source code be returned or destroyed. IBM has failed to do so.

2 As set forth in the Software Agreement executed by IBM and attached to the Amended Complaint as Exhibit A, IBM agreed, for example, that UNIX would be used solely for its own internal business purposes (2.01), that it would not use the code for others or allow its use by others (2.05), and that it would maintain the code in confidence (7.06). Similarly, IBM further agreed it would not sell or otherwise dispose of UNIX in whole or in part (7.10). Most significantly, IBM also agreed that any modifications or derivative works of UNIX prepared by IBM would be treated by IBM "as part of the original Software Product." (2.01). Thus, all of the foregoing restrictions on UNIX also apply equally to any modifications or derivative works created by IBM.

3 As detailed below, IBM only referred to and attached SCO's original answers to interrogatories to its Motion to Compel. The revised and supplemental answers greatly detail the confidential information that IBM improperly used. This apparent reliance upon the superseded original answers highlights the need for a good faith conference in advance of filing a motion to compel.

4 These are just a few (of many) examples to illustrate the point.

6 IBM makes the unfounded allegation that because legacy licenses and related correspondence was stored on an imaging system, the production of those documents could have occurred in July when SCO filed its formal response to discovery. This is wrong. The fact that the documents were on an imaging system, as opposed to in a filing cabinet, does not mean that they could be produced without first reviewing them for responsiveness and for privilege. They now have been reviewed and were produced months ago.


  


SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text. | 92 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text.
Authored by: brenda banks on Wednesday, November 26 2003 @ 10:49 PM EST
me thinks IBM'S lawyers are really going to sock it to sco for this
want to try to play games
we can show you games like you havent heard of
hehehe


---
br3n

[ Reply to This | # ]

The appendices would be very interesting.
Authored by: Dark on Wednesday, November 26 2003 @ 11:16 PM EST
Look what SCO claims is in Appendix B: their exact claims about what's in Linux
and how it got there. Unfortunately they weren't scanned by the court :( Is it
possible for someone in Utah to go there and scan them?

[ Reply to This | # ]

SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text.
Authored by: PJP on Wednesday, November 26 2003 @ 11:42 PM EST
Here again, SCO basically says that it has no clue what IBM supposedly did to
infringe its contractual agreements with SCO. This seems strange since SCO has
the source code which it claims added to Linux, and it has the Linux source
code, so it should be able to make the determination without IBM's help.

So it seems that they are essentially saying that there is no direct transfer of
System V code into Linux (otherwise they would be able to specify what it is),
but rather that their claim concerns purely derivative works based upon System V
code (plus any other code that SCO may have provided to IBM).

As has been stared before, this looks more and more like SCO is now putting all
its eggs into the basket of derivative works - where derivative as they define
it means any new code which may have been added to their original base, even if
that code could be "standalone" in its own right and does not depend
upon SCO code ina any fundamental way.

I suppose in a way this fits in with their view of how the GPL works - that it
is a tar baby to which anything and anyone sticks if they come into contact -
seems SCO contracts are like that too.


One question for the lawyers out there - the US constitution has provisions
(Amendment V) that no-one is orced to provide evidence to incrimiate themselves.
Does this apply in civil cases too ? If so, there is a simple answer for SCO's
request for IBM to produce evidence to incrimiate itself.

[ Reply to This | # ]

SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text.
Authored by: Ed Freesmeyer on Thursday, November 27 2003 @ 12:05 AM EST
Does anyone else read this as "please incriminate yourself for us so we can have a case" ? (this is from SCO's reiteration of documents requested on 24 June that IBM has not answered yet) (emphasis is mine with particular emphasis on item # 7):

7. All documents concerning any UNIX source code, derivative works, modifications or methods found in Linux, open source, or the public domain.

8. All documents concerning any AIX source code, derivative works, modifications or methods found in Linux, open source, or the public domain.

9. All documents concerning any Sequent Dynix source code, derivative works, modifications or methods found in Linux, open source, or the public domain.

I'm not surprised that IBM has not responded to these requests. Is IBM really expected to respond to something like this (and does this imply self-incrimination) ?

IANAL, and do not understand why the court or IBM have not objected to this phrasing already. I assume line 7 is actually a mistaken reference to the SCO Sys V source code (in the new tradition of IBM court filings) since SCO does not own "UNIX". I can also see where IBM would have a hard time finding "UNIX" source code to provide if this is not a mistake on SCO's part since AFIK there is no such critter.

Happy Thanksgiving to all Yanks who celebrate this holiday - and especially to PJ for her great work on this site.

Ed Freesmeyer

[ Reply to This | # ]

Where is SCO's Appendix B
Authored by: Thomas Frayne on Thursday, November 27 2003 @ 12:42 AM EST
In its memorandum, SCO claims:

----------------------------------------------------
SCO's revised and supplemental responses (Appendix "B") to
interrogatories 1, 2 and 4, which are adopted in response to Interrogatories 12
and 13, serve to inform IBM of:

1. What trade secrets and/or confidential and proprietary information SCO
alleges IBM misappropriated;
2. The information SCO alleges IBM was to keep secret and confidential and
did not;
3. The methods used by IBM to create derivative works based on UNIX;
4. The identity of entities and individuals having had access to confidential
information; and
5. How and when IBM infringed and misappropriated SCO's trade secrets and/or
confidential and proprietary information.

The two dozen pages of information setting forth this information in these
interrogatory responses is more than adequate compliance with SCO's discovery
obligations in light of IBM's lack of concomitant compliance with its own
discovery obligations.
------------------------------------------------------

If SCO really did fully specify this information in Appendix B, IBM should now
have the basic information it needs: a precise statement of just what SCO claims
IBM did wrong. If not, IBM will have to respond with a clear statement of just
what is wrong with Appendix B. If we can see it, we might be able to help
writing that statement.

Where is Appendix B? Is it public? Has anyone on GrokLaw seen it?

[ Reply to This | # ]

IBM response SCO'S MEMORANDUM before 12/5
Authored by: Thomas Frayne on Thursday, November 27 2003 @ 01:00 AM EST
If IBM doesn't respond to this memorandum before 12/5, perhaps the judge won't
want to hear oral arguments concerning IBM's second motion to compel on 12/5.


It might be better if IBM can produce its response quickly, especially if it can
demolish SCO's statement that Appendix B fully specifies SCO's claims against
IBM.

[ Reply to This | # ]

OT: Boies Basted in Black Backing
Authored by: Tim Ransom on Thursday, November 27 2003 @ 01:15 AM EST
Dashing Dave is representing Conrad Black of Hollinger, an odious gas giant with a thesaurus who gave up his Canadian citizenship so he could wear pajamas in public and have people call him 'Lord'.
At any rate, in an art icle in the local paper, Boies gets characterized in an unflattering light.
A sample:
'The case for Black will increasingly be made in weeks to come by Boies not an altogether promising circumstance for the client. Boies made his reputation with his prosecutorial duties in the Microsoft Corp. anti-trust case. But he was unable to win Napster's fight against the music industry. At Tyco, it was Boies who told the world about Dennis Kozlowski's $15,000 (U.S.) umbrella stand. But the thorough audit Tyco commissioned him to perform at the troubled firm overlooked at least $300 million (U.S.) in accounting irregularities that later came to light. And it was Boies who helped bungle Al Gore's efforts to secure Florida in 2000, by counselling him to seek recounts in only selected, heavily Democrat, counties. The gambit played into the hands of a George W. Bush team bent on depicting Gore as a sore loser. Most observers believe Gore would have carried Florida in a statewide recount that was fair to both parties.'
Thanks again,
Tim Ransom

[ Reply to This | # ]

Don't let them define your words
Authored by: rjamestaylor on Thursday, November 27 2003 @ 02:24 AM EST
..."human readable code". See Defendant IBM's First Set of Interrogatories and First Request for Production of Documents, page 20, paragraph 18, attached as Appendix "C". Specifically, the instructions in IBM's discovery requests dictate that "source code shall mean the human readable form of a computer program written in the original and preferred form for human inspection...' SCO went to great expense to comply and produced the code in "human readable form," i.e. paper form.
When telling a lie, tell it boldly. IBM asked for source code in original and preferred form for human inspection. SCO performed the equivalent of sending unwrapped pennies to the IRS: printed rheams of code. But printed pages have not been the original and preferred method of human inspection of source code since the punch tape -- and UNIX was a major reason behind this with its incredible text processing tools that made on-line text processing a pleasure. Anyway, SCO is trying to play on the courts technical ignorance by placing the emphasis on "form" instead of "code" in IBM's request.

IBM was requesting source code and not machine code, A.K.A. compiled binary executibles.

SCO's attempt at a fast one was trying to define IBM's phrase "human readable form" to "paper form" using the little Latin leftover "i.e." IBM was not demanding paper but it was specifically requesting uncompiled source code.

SCO knows this and is feigning righteous indignation trying to bamboolze the court in to agreeing that the fraternity prank styled "compliance" with IBM's request was fulfilled.

Redefining terms. Great way to win debates. I still recall the High School CCX debate resolution from 1982: "Resolved: The US should significantly curtail its arm sales to other countries." My debate partner and I made 3 cases:

  • Banning AIM-9L missile sales to the Saudis
  • Stopping the export of torture weapons to brutal regimes (they're made in, no joke, Savage, MN).
  • Reducing the number of prosthetics exported
Yes, that last one was our squirrel case. Our opponent would have to either argue that it was inappropriate to reduce the availability of prothetics, esp. replacement arms and hands, to countries without the infrastructure to properly care for their recipients, or argue that our definition of the term "arm sales" was not correct. Only idiots would accept our definition and start arguing our case on the merits. More subtlely the second case was also based on a favorable definition of torture weapons as arm sales. It was truly hard to argue against this case unless you argued the definition, as defending torture instruments is not easy (but, like nuclear holocaust, almost anything could be seen as adventageous in debate context (thank you, Malthus!)).

I look forward to IBM's response!

---
SCO delenda est! Salt their fields!

[ Reply to This | # ]

Two very different yardsticks
Authored by: Anonymous on Thursday, November 27 2003 @ 02:41 AM EST
I'm amazed by the 2 hugely different yardsticks being used in this document:

On the one hand SCO doesn't need to identify "all source code and other material in Linux to which SCO has rights, and how such material is derived from UNIX" because not all would be attributable to IBM and it makes this information (in their opinion) unrelated to this case. Since they don't need to identify all, they don't identify any (!?) (it isn't that IBM is complaining that SGI's allegedly improper contributions are missing, it is that no evidence has been identified at all). Do they want to waste everybody's time and have IBM resubmit their request as "all source code and other material in Linux to which SCO has rights and SCO believes IBM has improperly contributed, and how such material is derived from UNIX". If rephrasing is necessary, I hope the judge can handle this at the beginning of the hearing on the 5th and then move on to the real issue without further delay.

On the other hand they demand that IBM produce, for example, "all versions or iterations of AIX source code, modifications, methods and/or derivative works from May 1999 to the present". This is bound to contain a huge amount of information unrelated to this case (it could very well be all unrelated to it if there's no infringement...)

It is simply too unbalanced. I believe some of IBM's arguments are already pointing to principles of equitability and how SCO blatantly ignores them. If anything the balance should be tipped towards IBM, they have the right to know the details of what they're being accused of, SCOX has no right to know anything until they can provide a reasonable evidence of wrongdoing.

MyPersonalOpinion

[ Reply to This | # ]

SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text.
Authored by: tazer on Thursday, November 27 2003 @ 04:11 AM EST
"For example, IBM has essentially claimed that SCO has shown third parties
IBM's code contributions to Linux that SCO claims was placed in Linux in
violation of its rights. To the contrary, it has been widely reported that such
revealed code was placed in Linux not by IBM, but by another company, SGI. SCO
need not produce SGI code that SGI placed in violation of its licenses with SCO.
Such information is entirely unrelated to IBM's violations of its particular
license agreements."

Here, SCO is trying to skirt the NDA issue, by giving the SCOForum code
revelation example. Did DiDio ever dispute the authenticity of the code she saw
under the NDA? I don't think so.

[ Reply to This | # ]

SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text.
Authored by: tazer on Thursday, November 27 2003 @ 04:20 AM EST
"SCO has produced over one hundred CDs containing literally millions of
pages of documents to IBM over the past several months"

Yes your honor, SCO spent tens of thousands of dollars and countless man hours
printing out all of the computer files that were requested. Furthermore, we
kindly scanned them back into a computer and converted them into PDF files. As
you may well know, PDF is the industry standard document format for enterprise
organizations. SCO fully intends to take pictures of said CD, scan them into a
computer and convert them into PDF's, print them back out on a color laserjet,
then have a Navajo chief look at the resulting pictures, then take a picture of
the Navajo chief, scan that picture into a computer, convert it to PDF and print
it out on a 9-pin dot matrix printer. Clearly SCO has gone to great lengths to
appease IBM's requests.

[ Reply to This | # ]

SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text.
Authored by: tazer on Thursday, November 27 2003 @ 04:28 AM EST
"In short, SCO's production of over 100 CDs worth of information dwarfs
IBM's limited production of 18 CDs worth of documents."

This lawsuit was brought to you by the letter 'G' and the number '2'.

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SCO's Mission Critical OS
Authored by: pjcm on Thursday, November 27 2003 @ 04:35 AM EST
#include IANAL.h

SCO at it again?

IBM's plan not only allows it to generate billions in Linux related revenues from providing support and services to users of Linux, but also to weaken the position of other competitors such as SCO, which provide mission critical operating systems to the world's largest corporations.

Does anyone know where a SCO OS is used in a mission critical system? My thoughts are they may only be able to show other competitors who are compromised in this way, but I suppose it depends on the definition of a companies mission?

Just a thought. IANAL Paddy

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Fundamental Claim?
Authored by: Anonymous on Thursday, November 27 2003 @ 07:14 AM EST
I found it strange that nobody has remarked on the following:

As a licensee, IBM agreed to certain restrictions upon its use of UNIX, most notably that modifications and derivatives thereof (i.e. AIX and Dynix) would be used solely for IBM's internal business purposes, would be maintained in confidence, and would not be disposed of in whole or in part2.

IBM has publicly admitted that contrary to these clear limitations on the use of UNIX, AIX and Dynix, it contributed AIX and Dynix into Linux, the free and publicly available operating system that IBM has heavily supported, both financially and technologically.

These two sentences follow one another, I just separated here for emphasis. Now, these "clear" limitations are forfeited by Ammendment X, and where previously clarified to mean something else anyway. But that is the crux of the whole SCO argument, and they couldn't have stated it clearer if they said "Hey, all your sources are belong to us!". :-)

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SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text.
Authored by: Anonymous on Thursday, November 27 2003 @ 07:21 AM EST
"All documents concerning any AIX source code, derivative works,
modifications or methods disclosed by IBM to any third party or to the
public."

The first two things that spring to mind are 'fishing expedition' and 'trade
secrets'.

Am I correct in thinking that overbroad requests for documents are considered
bad, and that this is the first time they've asked for something this broad?
In fact, has SCO ever actually mentioned that Dynix/AIX were the problems? They
just seemed to concentrate on Linux first.

If I was to put my tinfoil hat on again, I'd be slightly concerned that Linux
was a smokescreen to produce a slight 'guilt by association' if they do find
anything in AIX/Dynix that can be argued in court.

D

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Mark J. Heise (admitted pro hac vice)
Authored by: Anonymous on Thursday, November 27 2003 @ 07:27 AM EST
Drink is the only vice I am admitting to. What does this mean? To me it sounds like he just can't kick the habit of being a professional hacker!
Alan.

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Pot calling the kettle...
Authored by: phrostie on Thursday, November 27 2003 @ 09:11 AM EST
" IBM's motion to compel fails to comply with this Court's
strict procedural requirement of conferring in good faith
to attempt to resolve the discovery dispute without court
intervention. Rule 37-1(a) of this Court's local rules
specifically requires reasonable efforts to reach
agreement with the opposing party on the matters set forth
in the motion, and to set forth a specific recitation of
time, date and place of, and the identity of all counsel
involved in such efforts. Without that, "the court will
not entertain any discovery motion." IBM has ignores this
procedural requirement. "

Would this be like SCO's refusal to work with the Linux
kernel developers to identify any proprietary code and
remove it?


---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux

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Compare SCO/IBM to SCO/Red Hat
Authored by: Anonymous on Thursday, November 27 2003 @ 09:40 AM EST
It's interesting to compare what SCO is saying in the IBM suit to what it's saying here:
Largely because this is a case arising out of IBM's misconduct, SCO objected to identifying materials in Linux in which SCO has separate rights unrelated to IBM.
Memorandum in Opposition to 2nd Motion to Compel Discovery, 11/24/03
The reality is that the previously filed SCO v. IBM case pending in Utah governs many of the issues in this case, which certainly justifies staying or transferring this cause.
Consolidated reply, 10/24/03

Well, if 'many' of the issues in the Red Hat case will be governed by the IBM case, just what issues might they be? If SCO thinks the IBM case treats only IBM's contributions to the Linux kernel, and if SCO is only claiming contractual rights to those contributions, then what in the world can the IBM case have to to with the Red Hat case?

It seems that SCO's PR campaign of speaking out of both sides of its mouth, which succeeds so brilliantly when talking to the financial press, is infecting its legal briefs. Hopefully the federal judges will examine SCO's arguments a little more closely than the analysts and financial reporters have done.

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SCO is sheating
Authored by: Anonymous on Thursday, November 27 2003 @ 10:02 AM EST
SCOG is claming that IBM did not follow Rule 37...
IBM, according to its "Certificate of Compliance with Rule 37(a)(a)(A)", attached hereto as Appendix "A", admits that it has never discussed Interrogatories 12 and 13 with SCO's counsel.
But IBM only asked for interrogatories 1-9. ...
IBM has filed this motion to compel complete answers to Interrogatory Nos. 1-9.
So although the are (maybe) telling the truth, it is not the full truth. Marc

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Rule 11
Authored by: overshoot on Thursday, November 27 2003 @ 11:14 AM EST
Moreover, unlike IBM, SCO has been producing documents as they are kept in the ordinary course of business.

No foolin'? SCO programmers use PDF bitmap images of source code "in the ordinary course of business?" That must be some compiler they have!

IBM, on the other hand, has yet to produce a single line of source code in any format.

I could of course be mistaken, but doesn't IBM have signed receipts for several hundred thousand pages worth of AIX source?

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SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text.
Authored by: Anonymous on Thursday, November 27 2003 @ 01:15 PM EST
I think it's mischaractering SCO's case to say that Sequient/Dynix is the meat
of it. It's more accurate to say that they mounted a shotgun attack, and of the
dozens of pellets fired into a crowd of bystanders, this is the only one that
hasn't [YET] been surgically removed (with great fanfare and publicity) from an
innocent victim's hide. Note that they have been totally reliant on responses
to press reports to even identify the victims!

It is probably fair to say that the reason so much of this case was presented in
the media first was that SCO itself, because of its complete ignorance of all of
computer science (both public lore and secret knowledge) that they were forced
to rely on feedback from their press reports as their credibility-check. Hence
the fine line walked about information revealed: too much information given out,
and their claims will be shredded like wheat. Too little, and they will be left
intact -- ready to be turned into postdigested breakfast cereal in full view of
a judge with a queasy stomach.

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Only the slimiest lawyers
Authored by: Anonymous on Friday, November 28 2003 @ 06:43 PM EST
> To the contrary, it has been widely reported that such revealed code was
placed in Linux not by IBM, but by another company, SGI.

Only the slimiest lawyers could have contrived this. SCO claimed for months to
have "proof", then they so obviously shrouded the truth, and now
they are basically saying that, in the first place, they deliberately placed
FALSE information so that they could later refer to it in court as "code
[that] was placed in Linux not by IBM, but by another company"! WTF!
You can be sure that, except for Groklaw and efforts of the community, they
wouldn't be saying that now if the truth had not been shoved down their
collective throats.

This smacks so highly of CONTEMPT, that I hope the judge throws these buffoons
in the slammer as a holiday gift. Maybe after a few days in jail together,
their stories will align a bit better too.

I'm willing to put up $5 for a jar of Vaseline to help their days in the
"pokey" go more smoothly ;-)

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