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More Legal Dueling Over Discovery
Thursday, December 04 2003 @ 11:36 PM EST

There are new legal documents filed in Utah, one by SCO and one by IBM, as the duel over discovery continues. I haven't read them yet myself, but a little birdie tells me Groklaw is mentioned in IBM's document on page 8. They quote from our transcript of the most recent teleconference. That means our work is useful. And that our work is now part of computer history. If anyone would like to help transcribe the latest, it's time to start your engines.


  


More Legal Dueling Over Discovery | 163 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
More Legal Dueling Over Discovery
Authored by: WhiteFang on Thursday, December 04 2003 @ 11:48 PM EST
I'm heading for bed - something you should be doing yourself PJ! ;-)

But for everyone whom does these conversions to text, thank you very, very much.
I, for one, appreciate your efforts.

Go Community!

[ Reply to This | # ]

More Legal Dueling Over Discovery
Authored by: stevem on Thursday, December 04 2003 @ 11:53 PM EST
Page 2 actually.

I wonder if this is a very subtle way of expanding a Judge's access to more
"other" information than that which they would only et via the
court. Esp as the link as given would also provide all the bits down the side.

Interesting...


- SteveM

[ Reply to This | # ]

link to PDF
Authored by: Anonymous on Thursday, December 04 2003 @ 11:54 PM EST
http://sco.tuxrocks.com/Docs/IBM/Doc-86.pdf

Ouch.

[ Reply to This | # ]

Friday's Dream Scenario
Authored by: webster on Thursday, December 04 2003 @ 11:58 PM EST
Here is my ideal order and pronouncement by the court on Friday:

1. It is unthinkable that the Plaintiff would have brought this suit with
these specific claims without knowing precisely what business methods, files
and lines of code caused them offense.

2. The Plaintiff has one week to provide that which it must have had when it
first stepped down this path of litigation.

3. The disclosures will be complete and in whatever reasonable form required
by the Defendant (IBM). Discovery will be open with no confidentiality. The
Court
will protect the Plaintiff's intellectual property. Since what is being
disclosed is already open and available in Linux, it will cause the Plaintiff
little prejudice.

4. Defendant shall prepare a bill for its legal fees generated by attempts to
obtain this basic discovery and the Motions to Compel Discovery. These should
be presented to the Court in one week also.

Half of this wouldn't be bad.

[ Reply to This | # ]

More Legal Dueling Over Discovery
Authored by: Anonymous on Friday, December 05 2003 @ 12:22 AM EST
You know, after reading these filings, there is a distinct difference in style.
The IBM one used SCOs own words, made in public, against them (which makes IBMs
silence all the more important). SCOs however, comes across as whining to me.

The other thing I thought about. I did some work at IBM RTP doing RF for AIX
(thankfully, I didn't have access to the OS level code), and I couldn't
imagine being called up after 5 or 10 years and being asked about my
contributions. And then to say it is not burdensome, but say that IBM has to
provide not only a list of the people, but current contact information. Between
that, and SCO saying that IBM already knows what the lawsuit is about, but
looking back at the complaint, it just mentions breach of contract and copying
code. How do you prepare to enter the court room and defend against a vaporous
claim like that. Do you wait for the first day, let SCO present it's side,
then call for a delay? I don't think so. SCO seems to be forgetting that they
have the burden of proof to show their case, and that IBM has every right to
defend themselves against it, and the only way to do that is to know what is
going to be presented.

Oh well, time for bed. Hope the judge can weed his way through this tomorrow.

MEH

[ Reply to This | # ]

Some pretty meaty stuff
Authored by: Anonymous on Friday, December 05 2003 @ 12:26 AM EST
I like the end of the second paragraph on page 6:
Specifically, IBM has alleged that SCO has, among other things, violated the Lanham Act by misrepresenting its ownership rights in Linux, tortiously interferred with IBM's prospective economic relations by making false and misleading statements to IBM's prospective customers concerning Linux, and engaged in unfair and deceptive trade practices by publishing false and disparaging statements about Linux. As it has used the spectre of all its supposed rights in Linux to create uncertainty in the marketplace concerning Linux, SCO cannot deny IBM's discovery of SCO's rights to Linux. IBM is entitled to know all of the Linux code SCO has a right to, regardless of whether the code was contributed by IBM.

[ Reply to This | # ]

Sorry Carly
Authored by: jtsteward on Friday, December 05 2003 @ 12:26 AM EST
And now
With all due apologies to Carly Simon

We can never know about the days to come
But we think about them anyway
And I wonder what Darl is going to say now
Or just chasing after SCO's final day.

Anticipation, Anticipation
Is making me late
Is keeping me waiting

And I tell you how easy it is to hate SCO with you
And how right PJ's Groklaw feels to me.
But I posted those words just late last night
When I was thinking about how right Friday might be.

Anticipation, Anticipation
Is making me late
Is keeping me waiting

And tomorrow we cannot be in chambers together
I'm no lawyer, I don't know the legal way
So I'll try to see into SCO's case right now
And all night here at Groklaw, 'cause these are the good old days.



[ Reply to This | # ]

Page 2 *and* page 8!
Authored by: hbo on Friday, December 05 2003 @ 12:32 AM EST
What a validation for your efforts here! (As if millions of hits hadn't given you a clue already 8)

---
"Even if you are on the right track, you'll get run over if you just sit there" - Will Rogers

[ Reply to This | # ]

Transcription
Authored by: Anonymous on Friday, December 05 2003 @ 12:34 AM EST
How do we help? Should we send you email or ...?

[ Reply to This | # ]

  • Tip jar - Authored by: mitphd on Friday, December 05 2003 @ 01:13 PM EST
Of course our work is useful
Authored by: Scriptwriter on Friday, December 05 2003 @ 12:55 AM EST
We knew it all the time

but . . .

now we know that IBM knows it, too.

That by itself makes it worthwhile.

What needs to be transcribed? The PDF files?

[ Reply to This | # ]

More Legal Dueling Over Discovery
Authored by: rgmoore on Friday, December 05 2003 @ 12:58 AM EST

Just in case anyone was still wondering whether IBM's legal team reads Groklaw, they included the following footnote:

SCO Press Conference, Nov. 18, 2003, transcripts available at http://www.groklaw.net/article.php?s tory=20031119011337666

That's quite a validation for the good work that people here have been doing.

---
Behind every sleazy lawyer, there's a sleazy client.

[ Reply to This | # ]

OCRs
Authored by: rand on Friday, December 05 2003 @ 01:01 AM EST
I'm working on preliminary OCRs and will post them here as follow-ups to this
post.

If you want to work on one, stake a claim by posting a follow-up to the OCR,
then post the completed page to the thread that follows this one.

It takes about 5 minutes per page ot run the OCR, so the pages will be appearing
somewhat sporadically.

---
IANAL, etc.

[ Reply to This | # ]

POST COMPLETED PAGES HERE
Authored by: rand on Friday, December 05 2003 @ 01:03 AM EST


---
IANAL, etc.

[ Reply to This | # ]

Ho Ho my Holiday Word!
Authored by: mojotoad on Friday, December 05 2003 @ 01:07 AM EST
My new favorite word, from the IBM document: tortiously.

Any etymologists out there care to comment on possible relationships, deliberate
or otherwise, with "tortuously"?

This adverb might actually be as common as vanilla ice cream in legal circles.
But that's part of what I love about groklaw and the gushload of legal arcana
I've been learning of late...(excuse me...had to dab the corners of my mouth
after another tasty bite out of the lexicon).

Cheers,
Matt

[ Reply to This | # ]

Innovative grammar from SCO
Authored by: Anonymous on Friday, December 05 2003 @ 01:09 AM EST
"IBM may be reluctant to plainly identify who and how it violated its
obligations to SCO, [...]"

[ Reply to This | # ]

A nearly OT procedural question. Someone?
Authored by: Anonymous on Friday, December 05 2003 @ 01:13 AM EST
Does the judge give extra credit for proper grammer, spelling, and punctuation?
Conversely, how about taking away credit for gramatical errors, spelling errors,
or punctuational errors?

Has anyone else noticed that IBM's documents seem far more polished and
complete than SCO's? I guess partial ownership of a potential multi-billion
dollar judgement doesn't buy the same quality help it used to...

[ Reply to This | # ]

Finally!
Authored by: kev31mc on Friday, December 05 2003 @ 01:32 AM EST
Glad to see IBM finally use the public statements made by the SCOrons
against them. I bet the SCO legal team was thrilled to see some of those
quotes included to bolster IBM's argument that SCO is try to stall the
progess of the procedings.

-kevin

[ Reply to This | # ]

  • Finally! - Authored by: pogson on Friday, December 05 2003 @ 07:56 AM EST
Ok... IBM is pissed...
Authored by: Beyonder on Friday, December 05 2003 @ 01:40 AM EST
IBMs tone seems to have changed big time in this one, at least, that's what I
got when I read it. majorly pissed.

SCO must have a death-wish. Actually, that makes perfect sense, they've been
struggling for a buy-out, for something, anything... but IBM is just gonna crush
them, painfully...

oh my, tomorrows (todays?) court meeting is gonna be fun.
I bet SCO doesn't show up, or tries to stall again...
Maybe they'll tell truth and plead "insanity" :)

Uh, SCO, how many times do we have to tell you -
Do NOT taunt happy-fun-ball ! sheesh!

[ Reply to This | # ]

More Subpoenas!
Authored by: Newsome on Friday, December 05 2003 @ 01:46 AM EST
Inside PACER, it now shows two more documents (which we don't have yet):

#85: Certificate of service re: Subpoenas Duces Tecum upon Northrop Grumman Corp; Sun Microsystems, Inc.; Schwartz Communications, Inc. for the production of documents by 12/16/03 by Intl Bus Mach Inc (blk)

#87: Declaration of Todd M. Shaughnessy Re: [68-1] motion to compel discovery (blk) [Entry date 12/04/03]

I looked up what a Subpoena Duces Tecum meant:

A writ or process of the same kind as the subpoena ad testificandum, including a clause requiring the witness to bring with him and produce to the court, books, papers, etc., in his hands, tending to elucidate the matter in issue.

So, it looks like someone has to bring relevant papers and testify about something. Could be interesting. Number 87 is actually mentioned in IBM's Reply Memorandum in Support of their Second Motion to Compel Discovery, and looks like it'll contain a statement from Mr. Shaughnessy that SCO is being "difficult."

---
Frank Sorenson

[ Reply to This | # ]

More Legal Dueling Over Discovery
Authored by: Alex on Friday, December 05 2003 @ 01:46 AM EST

I think I understand what's going on here. IBM is telling SCO to "get it
off the web." The problem for SCO is that if they (for example) download a
compressed version of the LKML archives, then they will have to notice that they
are mentioned in those archives too.

At that point, IBM can say, "Hey, you guys should know all about that fine
fellow Chris Hellwig - after all, you downloaded the archives. So why are you
suing us over his contributions? After all, Hellwig and all those other Caldera
and SCO contributors worked for you."

At which point the judge presumeably says, "Hey, that's right," and
dismisses SCO's case.

So SCO ABSOLUTELY CAN'T download the Linux Kernel archives, AND THEY KNOW IT.
That's why they're resisting the idea that they should get the information off
the web.

I hate to say it, but that's good lawyering.

Alex

---
Destroying SCO one bozon at a time

[ Reply to This | # ]

More Legal Dueling Over Discovery
Authored by: Anonymous on Friday, December 05 2003 @ 01:47 AM EST
... borders on the frivolous ...

Boies & Heise managed to piss of IBM's attorneys pretty good. I don't
think that word is used a lot in legal briefs (maybe against the client, but
rarely against the attorneys).

[ Reply to This | # ]

More Legal Dueling Over Discovery
Authored by: MyPersonalOpinio on Friday, December 05 2003 @ 01:58 AM EST
Ah, I loved the sweet flavor in this filing from IBM after the poisonous taste from the "manifesto"! "SCO's assertion that it produced the source code for its computer programs on paper at IBM's direction borders on the frivolous, and is a plain misrepresentation of IBM's document requests". Nice way to put it indeed!

I only see one minor flaw:

It is undisputable that SCO has and can readily provide the information that IBM seeks. Indeed, SCO has proclaimed repeatedly for months that it knows the "misappropriated code" that is in Linux. According to SCO, it has done a deep dive into Linux [and] compared the source code with Unix every which way but Tuesday", and is prepared to present its evidence "in the courtroom".1

Why is it undisputable? Further down, "To the extent that [SCO's] public statements are to be believed", IBM shows they are well aware of the potential lack of truth in public statements from SCO.

Maybe it is a typo and IBM meant indisputed instead of indisputable?

In any case, big congratulations to everybody doing the transcripts and to PJ for her work, not just research and compelling writing but directing the collective effort.

[ Reply to This | # ]

More Legal Dueling Over Discovery
Authored by: Anonymous on Friday, December 05 2003 @ 01:59 AM EST
On page 9 of IBM's submission, they mentioned that SCO produced one million
pages of source. What does that mean? Is that SCO's listing of infringing
code? If not, then what is it?

[ Reply to This | # ]

IBM brief page 2
Authored by: rjamestaylor on Friday, December 05 2003 @ 02:03 AM EST
Defendant/Counterclaim-Plaintiff International Business Machines Corporation
(“IBM”) respectfully submits this Reply Memorandum in Support of its Second
Motion to Compel Discovery from Plaintiff/Counterclaim-Defendent The SCO Group,
Inc. (“SCO”).

Preliminary Statement

IBM filed this motion to obtain discovery that is fundamental to the case.
Specifically, IBM asks that SCO be compelled to (1) identify with specificity
the Linux code (by file and line of code) that SCO has rights to, how (if at
all) IBM is alleged to have infringed SCO's rights, and whether SCO has made
any such code available to the public, and (2) produce documents responsive to
requests made more than five months ago, including SCO's supposed evidence of
wrongdoing by IBM.
It is indisputable that SCO has and can readily provide the information IBM
seeks. Indeed, SCO has proclaimed repeatedly for months that it knows the
“misappropriated code” that is in Linux. According to SCO, it has “done a deep
dive into Linux [and] compared the source code with Unix every which way but
Tuesday”, and is prepared to present its evidence “in the courtroom”. 1
Yet SCO refuses to provide this information to IBM. In fact, SCO continues to
attempt to delay these proceedings, which it commenced, by arguing (albeit
without support) that this motion is premature. As explained below, SCO's
arguments as to why is should not



1 SCO Press Conference, Nov. 18, 2003, transcript available at
http://www.groklaw.net/article.php?story=20031119011337666; Michael S. Mimoso,
SCO: No choice but to go after Linux, Search Enterprise Linux.com, Oct. 8, 2003,
available at
http://searchenterpriselinux.techtarget.com/qna/0,289202,sid39_gci931259,00.html
.

276876.1

---
SCO delenda est! Salt their fields!

[ Reply to This | # ]

Can Heise et al do this?
Authored by: gdeinsta on Friday, December 05 2003 @ 02:21 AM EST

SCO's motion says:

The evidence adduced from this discovery is likely to identify evidence of infringement and/or contract violations by IBM by improper contribution of such items to Linux. Stated differently, by receiving all versions and iterations of AIX and Dynix, SCO will have evidence of IBM's development of Linux in violation of its contractual and legal obligations.

(emphasis added). But just a few days ago tcranbrook posted a link to an article explaining the test used in the 10th circuit to tell whether work X derives from work Y. This test had nothing at all to do with the history of how the work was produced. So how can SCO's lawyer claim to need the history of AIX and Dynix in order to find copyright violations? Surely the history is irrelevant? Besides I thought they had stated explicitly that this wasn't about copyright?

[ Reply to This | # ]

My personal favorite
Authored by: Anonymous on Friday, December 05 2003 @ 02:28 AM EST
On page 2 (numeric page 2, it's the 4th page in the document) of the SCO
response, we see the following quote:

"The reality is that IBM, like SCO, has agreed to produce the source code
on CDs in a format that is readable by machines (i.e. not just Tagged Image File
Format (TIFF) images). To do this, the source code is taken from a tape drive
or from CDs and then copied onto a CD for production."

So, if SCO agreed to produce the source code on CD in a machine readable
format... what precisely was their excuse for not doing so when they dumped a
million pages of paper on IBM?

[ Reply to This | # ]

Nitpick on IBM
Authored by: Anonymous on Friday, December 05 2003 @ 02:35 AM EST
"As SCO can is well aware, "human readable" source code is
written and stored in _electronic_ form (i.e., on computers, diskettes, CDs or
the like)"

Hate to tell ya, IBM, but neither diskettes nor CDs are electronic :)

[ Reply to This | # ]

First 6 pages of IBM motion as text
Authored by: toddfrench on Friday, December 05 2003 @ 03:49 AM EST

Here are the first 6 pages of the IBM motion as text. I'll get the
rest done tonight.


SNELL & WILMER L.L.P
Alan L. Sullivan (3152)
Todd M. Shaugnessy (6651)
15 West South Temple, Suite 1200
Salt Lake City, Utah, 84101-1004
Telephone: (801 257-1900
Facsimilie: (801) 257-1800

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriot (7572)
Worldwide Plaza
825 Eighth Ave.
New York, NY 10019
Telephone: (212) 474-1000

Attorneys for Defandant/Couterclaim-Plantiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.
Plantiff/Counterclaim- IBM'S REPLY
MEMORANDUM IN
Defandant, SUPPORT OF SECOND
MOTION TO
COMPEL DISCOVERY
vs.
Civil No. 2:03cv0294
INTERNATIONAL BUSINESS
MACHINES CORPORATION, Honorable Dale A. Kimball

Magistrate Judge Brooke Wells
Defandant/Counterclaim-
Plaintiff.










Defandant/Couterclaim-Plaintiff International Business
Machines Corporation
(?IBM?) respectfully submits this Reply Memorandum in Support
of its Second Motion to Compel Discovery from
Plaintiff/Counterclaim-Defendant The SCO Group, INC (?SCO?)/

Preliminary Statement
IBM filed this motion to obtain discovery that is fundamental
to the case.
Specifiacally, IBM asks that SCO be compelled to (1) Identify
with Specificity the Linux code (by file and line of code) that SCO
has rights to, how (if at all) IBM is alleged to have infringed
SCO's rights, and whether SCO has made any such code
available to the public, and (2) produce documents responsive
to requests made more than five months ago, including SCO's
supposed evidence of wrongdoing by IBM.
It is indisputable that SCO has and can readily provide the
indormation IBM seeks.
Indeed, SCO has proclaimed repeatedly for months that it knows
the ?misappropriated code? that is in Linux. According to SCO,
it
has ?done a deep dive into Linux [and] compared the source
code with Unix every which way but Tuesday?, and is prepared
to present its evidence ?in the courtroom?.1
Yet SCO refuses to provide this information to IBM. In fact,
SCO continues to attempt to delay these proceedings, which it
commenced, by arguing (albiet without support) that this motion
is premature. As explained below, SCO's arguments as to why it
should not presently be required to answer IBM's iterrogatories
and produce responsive documents are meritless.

ARGUMENT
I.IBM HAS MADE REASONABLE EFFORTS TO RESOLVE
DISCOVERY DISPUTES WITH SCO, TO NO AVAIL.
Contray to SCO's assertations, IBM did not fail properly to meet
and confer with SCO before filing this motion. As discussed in
the accompanying declaration of Todd M. Shaugnessy, IBM has
made more than reasonable efforts to confer with SCO regarding
the discovery disputes before the Court. IBM and SCO
exchanged numerous letters and e-mails and participated in
several telephone conferences, and the parties could not reach
agreement on any of the issues on which IBM has moved.
Although IBM did not confer with SCO specifiacally regarding
Interrogatory Nos. 12 and 13, any such effort would have been
futile. SCO's reponses to these two interrogatories merely
?incorporate[] its answers? to IBM's first set of discovery
requests.
(Exhibit A, attached to IBM's Memorandum in Support of Second
Motion to Compel Discovery (?Opening Br.?).) The parties had
already conderred at length about those answers, and they are
the subject of IBM's first motion to compel, there was no reason
to believe that any further discussion between the parties would
have been productive.2
Since the same fundamental impasse between the parties
existed with respect to IBM's first and second discovery reguests,
we believed it was most efficient to present both isssues to the
Court at the same time. There is no reason why this Court
should not address IBM's second motion to compel now. See,
e.g., Reidy v. Runyon, 169 F.R.D. 486, 491 (E.D.N.Y. 1997)
(noting that Rule 37(a)(2)(A) does not prevent courts from
addressing merits of discovery motions when ?the exigencies of
time require speedy action? and ?compromise is unlikely to be
achieved?); accord Land Ocean Logistics, Inc. v. Aqua Gulf
Corp., 181 F.R.D. 229, 235-36 (W.D.N.Y. 1998). In fact, we
understood the Court, at the initial conference with the parties, to
express a preference for dealing with all of SCO's answers to
IBM's discovery requests at the same time,3

Notably, notwithstanding SCO's contention that IBM failed
adequately to meet and confer before filing this motion, SCO
does not assert that IBM's concerns could have been resolved
by further discussion between the parties. Indeed, SCO makes
perfectly clear in its opposition brief that it does not intend to
provide IBM with the information it is seeking in this motion.


II. SCO SHOULD BE COMPELLED TO RESPOND TO IBM'S
INTERROGATORY NUMBERS 12 AND 13
SCO argues that it should not be compelled to respond
to IBM's discovery requests because: (1) SCO's supplemental
responses to IBM's Interrogatory Nos. 1, 2 and 4 ?fairly respond?
to Interrogatory Nos. 12 and 13; (2) SCO should not have to
identify all of the code in Linux that it has rights to; and (3) SCO
requires additional discovery from IBM before it can provide
more specific answers.4 Each of these arguments is without
merit.
First, SCO's Supplemental Responses to Interrogatory Nos.
1, 2 and 4 do not ?fairly respond? to Interrogatory Nos. 12 and 13.
(Opp'n Br. At 6.) We laid out in detail the reasons why SCO's
supplemental responses to IBM's first discovery requests are
deficient in IBM's reply Memorandum and Addendum in Support
of its First Motion to Compel Discovery. Rather than repeat
those arguments here, we incorporate them by reference.
Moreover, as discussed in our opening brief in support of
this second motion to compel (at 5-9), SCO's supplemental
responses are also specifiacally deficient as to Interrogatory
Nos. 12 and 135 Interrogatory Nos. 12 and 13 call for different
information than do Interrogatory Nos. 1, 2 and 4, and it is not
sufficient for SCO to simply rest on its answers to Interrogatory
Nos. 1, 2 and 4. Nowhere in any of its responses does SCO
ever: (1) identify with specificity (by file and line of code) (a) all
source code and other material in Linux to which SCO has rights
and (b) the nature of its rights, (2) how (if at all) IBM has infringed
SCO's rights, and (3) whether, and under what circumstances,
SCO has itself ever made any of the material available to the
public. SCO should therefore be compelled to provide this
information, which is expressly requested by Interrogatory Nos.
12 and 13, immediately.
Second, SCO's objections to identifying all of the code in
Linux that it has rights to is similarly baseless. SCO does
not-because it cannot-even attempt to explain why IBM's
requests are not relevant, apart from remarking that this case
arises ?out of IBM's misconduct?. (Opp'n Br at 4.) As Discussed
in IBM's opening brief (at 6-7), SCO ignores the fact that IBM has
asserted counterclaims against SCO related to SCO's
misconduct. Specifically, IBM has alleged that among other
things, violated the Lanham Act by misrepersenting its
ownership rights in Linux, tortiously interfered with IBM's
prospective customers concerning Linux, and engaged in unfair
and deceptive trade practices by publishing false and
disparaging statements about Linux. As it has used the specter
of all its supposed rights in Linux to create uncertainty in the
marketplace concerning linux, SCO cannot deny IBM discovery
of SCO's rights to Linux.




[ Reply to This | # ]

Full text of IBM motion
Authored by: toddfrench on Friday, December 05 2003 @ 05:47 AM EST
PAGE 1

SNELL & WILMER L.L.P
Alan L. Sullivan (3152)
Todd M. Shaugnessy (6651)
15 West South Temple, Suite 1200
Salt Lake City, Utah, 84101-1004
Telephone: (801 257-1900
Facsimilie: (801) 257-1800

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriot (7572)
Worldwide Plaza
825 Eighth Ave.
New York, NY 10019
Telephone: (212) 474-1000

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.
Plaintiff/Counterclaim- IBM'S REPLY
MEMORANDUM IN
Defendant, SUPPORT OF SECOND
MOTION TO
COMPEL DISCOVERY
vs.
Civil No. 2:03cv0294
INTERNATIONAL BUSINESS
MACHINES CORPORATION, Honorable Dale A. Kimball

Magistrate Judge Brooke Wells
Defendant/Counterclaim-
Plaintiff.


PAGE 2
Defendant/Counterclaim-Plaintiff International Business
Machines Corporation
(?IBM?) respectfully submits this Reply Memorandum in Support
of its Second Motion to Compel Discovery from
Plaintiff/Counterclaim-Defendant The SCO Group, INC (?SCO?)/

Preliminary Statement
IBM filed this motion to obtain discovery that is fundamental
to the case.
Specifically, IBM asks that SCO be compelled to (1) Identify with
Specificity the Linux code (by file and line of code) that SCO has
rights to, how (if at all) IBM is alleged to have infringed SCO's
rights, and whether SCO has made any such code available to
the public, and (2) produce documents responsive to requests
made more than five months ago, including SCO's supposed
evidence of wrongdoing by IBM.
It is indisputable that SCO has and can readily provide the
information IBM seeks.
Indeed, SCO has proclaimed repeatedly for months that it knows
the ?misappropriated code? that is in Linux. According to SCO,
it
has ?done a deep dive into Linux [and] compared the source
code with Unix every which way but Tuesday?, and is prepared
to present its evidence ?in the courtroom?.1
Yet SCO refuses to provide this information to IBM. In fact,
SCO continues to attempt to delay these proceedings, which it
commenced, by arguing (albeit without support) that this motion
is premature. As explained below, SCO's arguments as to why it
should not

PAGE 3

presently be required to answer IBM's interrogatories and
produce responsive documents are meritless.

ARGUMENT
I.IBM HAS MADE REASONABLE EFFORTS TO RESOLVE
DISCOVERY DISPUTES WITH SCO, TO NO AVAIL.
Contrary to SCO's assertions, IBM did not fail properly to meet
and confer with SCO before filing this motion. As discussed in
the accompanying declaration of Todd M. Shaugnessy, IBM has
made more than reasonable efforts to confer with SCO regarding
the discovery disputes before the Court. IBM and SCO
exchanged numerous letters and e-mails and participated in
several telephone conferences, and the parties could not reach
agreement on any of the issues on which IBM has moved.
Although IBM did not confer with SCO specifically regarding
Interrogatory Nos. 12 and 13, any such effort would have been
futile. SCO's responses to these two interrogatories merely
?incorporate[] its answers? to IBM's first set of discovery
requests.
(Exhibit A, attached to IBM's Memorandum in Support of Second
Motion to Compel Discovery (?Opening Br.?).) The parties had
already conferred at length about those answers, and they are
the subject of IBM's first motion to compel, there was no reason
to believe that any further discussion between the parties would
have been productive.2

PAGE 4

Since the same fundamental impasse between the parties
existed with respect to IBM's first and second discovery requests,
we believed it was most efficient to present both issues to the
Court at the same time. There is no reason why this Court
should not address IBM's second motion to compel now. See,
e.g., Reidy v. Runyon, 169 F.R.D. 486, 491 (E.D.N.Y. 1997)
(noting that Rule 37(a)(2)(A) does not prevent courts from
addressing merits of discovery motions when ?the exigencies of
time require speedy action? and ?compromise is unlikely to be
achieved?); accord Land Ocean Logistics, Inc. v. Aqua Gulf
Corp., 181 F.R.D. 229, 235-36 (W.D.N.Y. 1998). In fact, we
understood the Court, at the initial conference with the parties, to
express a preference for dealing with all of SCO's answers to
IBM's discovery requests at the same time,3

Notably, notwithstanding SCO's contention that IBM failed
adequately to meet and confer before filing this motion, SCO
does not assert that IBM's concerns could have been resolved
by further discussion between the parties. Indeed, SCO makes
perfectly clear in its opposition brief that it does not intend to
provide IBM with the information it is seeking in this motion.

PAGE 5

II. SCO SHOULD BE COMPELLED TO RESPOND TO IBM'S
INTERROGATORY NUMBERS 12 AND 13
SCO argues that it should not be compelled to respond
to IBM's discovery requests because: (1) SCO's supplemental
responses to IBM's Interrogatory Nos. 1, 2 and 4 ?fairly respond?
to Interrogatory Nos. 12 and 13; (2) SCO should not have to
identify all of the code in Linux that it has rights to; and (3) SCO
requires additional discovery from IBM before it can provide
more specific answers.4 Each of these arguments is without
merit.
First, SCO's Supplemental Responses to Interrogatory Nos.
1, 2 and 4 do not ?fairly respond? to Interrogatory Nos. 12 and
13.
(Opp'n Br. At 6.) We laid out in detail the reasons why SCO's
supplemental responses to IBM's first discovery requests are
deficient in IBM's reply Memorandum and Addendum in Support
of its First Motion to Compel Discovery. Rather than repeat
those arguments here, we incorporate them by reference.
Moreover, as discussed in our opening brief in support of
this second motion to compel (at 5-9), SCO's supplemental
responses are also specifically deficient as to Interrogatory Nos.
12 and 135 Interrogatory Nos. 12 and 13 call for different
information than do

PAGE 6

Interrogatory Nos. 1, 2 and 4, and it is not sufficient for SCO to
simply rest on its answers to Interrogatory Nos. 1, 2 and 4.
Nowhere in any of its responses does SCO ever: (1) identify with
specificity (by file and line of code) (a) all source code and other
material in Linux to which SCO has rights and (b) the nature of
its rights, (2) how (if at all) IBM has infringed SCO's rights, and
(3) whether, and under what circumstances, SCO has itself ever
made any of the material available to the public. SCO should
therefore be compelled to provide this information, which is
expressly requested by Interrogatory Nos. 12 and 13,
immediately.
Second, SCO's objections to identifying all of the code in
Linux that it has rights to is similarly baseless. SCO does
not-because it cannot-even attempt to explain why IBM's
requests are not relevant, apart from remarking that this case
arises ?out of IBM's misconduct?. (Opp'n Br at 4.) As Discussed
in IBM's opening brief (at 6-7), SCO ignores the fact that IBM has
asserted counterclaims against SCO related to SCO's
misconduct. Specifically, IBM has alleged that among other
things, violated the Lanham Act by misrepresenting its
ownership rights in Linux, tortuously interfered with IBM's
prospective customers concerning Linux, and engaged in unfair
and deceptive trade practices by publishing false and
disparaging statements about Linux. As it has used the specter
of all its supposed rights in Linux to create uncertainty in the
marketplace concerning Linux, SCO cannot deny IBM discovery
of SCO's rights to Linux.

PAGE 7

IBM is entitled to know all of the Linux code SCO has a right to,
regardless of whether the code was contributed by IBM.

Third, SCO's claims that it requires discovery from IBM to
respond in detail to IBM's discovery requests is just an attempt at
misdirection. 6 SCO has been publicly touting its knowledge of
?improperly contributed? code and/or methods since this case
was first filed. For Example:

SCO Senior Vice President Chris Sontag said in May 2003: ?We
will actually be providing some of the evidence [of ?improperly
contributed? code] next month to various industry analysts,
respected press people and other industry leaders so that they
don't have to take our word for it of wait until we show some of
that evidence in court. We will actually be showing the code,
and the basis for why we have made the allegations that we
have.? Patrick Thibodeau, Q&A: SCO's Chris Sontag on Linux,
Unix, and Brewing Legal Fights, ComputerWorld, May 29, 2003,
Available at
http://www.computerworld.com/softwaretopics/os/Linux/story/0,10801,81613,00.html


In June 2003, SCO's CEO Darl McBride said SCO had ?turned a
group of programmers loose?we had three teams from different
disciplines busting down.... the different code bases of System V,
[IBM's} AIX and Linux. And it was in that process of going
through the deep dive of what exactly is in all of these code
bases that we came up with these more substantial problems.?
David Becker, Why SCO Decided to Take IBM to Court, CNET
News.com, June 16, 2003, available at
http://news.com.com/2008-1082_3-1017308.html
In October 2003, Sontag said: ?This [code shown at SCO Forum
in August 2003] was one example of misappropriated code that
went into Linux. I would characterize it as the tip of the iceberg...
I think we are saving are very best examples for the courtroom,
where we will ultimately have to try our case.? Michael S.
Mimoso, SCO: No choice but to go after Linux, Search Enterprise
Linux.com, Oct. 8, 2003, available at
http://searchenterpriselinux.techtarget.com/qna/0,289202,sid39_gci931259,00.html


PAGE 8

Just two weeks ago, on November 18, 2003, Sontag similarly
said: ?We've identified a lot of different things. Early on when we
filed against IBM, people wanted us to show the code, even
thought we're fighting a legal case and that's where it's
appropriately vetted... There are other literal copyright
infringements that we have not publicly provided, we'll save
those for court. But there are over one million lines of code that
we have identified that are derivative works by IBM and Sequent
that have been contributed into Linux...? Barbara Darrow, CRN
Interview: SCO's Darl McBride and Chris Sontag, CRN.com, Nov
18, 2003, available at
http://crn.channelsupersearch.com/news/crn/46153.asp
At a press conference that same day, McBride said: ?[W]e've
gone in, we've done a deep dive into Linux, we've compared the
source code of Linux with UNIX every which way but Tuesday?.
He added, that, ?by the way, we have shared the code in
question there with IBM under the litigation even?they know
what we're talking about over there?. SCO Press Conference,
Nov. 18, 2003, transcript available at
http://www.groklaw.net/article.php?story=20031119011337666.

To the extent that its public statements are to be believed, SCO
has already preformed a detailed review of Linux, knows (as it
obviously must) what rights it has in Linux, and is able to
disclose its alleged ?evidence?7 SCO does not need any
discovery from IBM to provide this information. Indeed SCO
claims (inaccurately) to have already ?shared the code in
question there with IBM?. Accordingly, there is no reason why
SCO should be allowed to continue withholding this information
from IBM.

PAGE 9

III.SCO SHOULD BE COMPELLED TO PRODUCE
DOCUMENTS RESPONSIVE TO IBM'S DOCUMENT
REQUESTS.
SCO's reason's for not producing responsive documents
undeniably within its possession are unconvincing. As an initial
matter, SCO's attempt to sidestep its public statements about the
analyses it has preformed on Linux, and the resulting source
code it has identified, by claiming such analyses pertain only to
?non-IBM entities? is misguided. Any analyses that SCO has
preformed of supposed infringing code in Linux are relevant to
this case (indeed, particularly analyses that find ?improper
contributions? only from ?non-IBM entities?) are responsive to
IBM's document requests and should be produced.
SCO's additional excuse for its failure timely to produce
documents responsive to IBM's document requests?that has
been occupied with producing source for its computer programs
to IBM?is disingenuous. The delay created by SCO's having to
produce source code to IBM in two different formats is entirely of
SCO's own making. Knowing full well that IBM would need its
source code in electronic form so that proper analyses?such as
those SCO itself claims to have preformed?could be conducted,
SCO instead conducted, SCO instead produced the source code
on one million pages of paper, a format that does not facilitate
any analysis of that code.8 The only reason for SCO's
production of code on paper was, we believe, to stall the

PAGE 10

progress of these proceedings while giving the (false)
impression of being forthcoming in its discovery responses.
Indeed, SCO has publicly stated it is content to let the lawsuit
?drag on? on the theory that it is entitled to ?nearly one billion
dollars [in damages] per week?. Annabelle Bouard, Darl
McBride Interview, 01net.com, Oct. 22, 2003, available at
http://www.01net.com/article/220196.html (translated from
French).

SCO has had more that five months to produce documents,
but has by its own admission not yet produced numerous
categories of documents that are responsive to IBM's document
requests. SCO should be compelled to produce these additional
responsive documents in its possession without further delay.

Conclusion

For the foregoing reasons, IBM respectfully requests that the
court issue and Order compelling SCO to immediately respond
to IBM's Interrogatory Nos. 12 and 13 with specificity and in
detail and to respond to IBM's document requests.


FOOTNOTES

1 SCO Press Conference, Nov, 18 2003, transcript available at
http://www.groklaw.net/article.php?story=20031119011337666;
Michael S, Mimoso, SCO: No choice but to go after Linux,
Search Enterprise Linux.com, Oct. 8, 2003, available at
http://searchenterpriselinux.techtarget.com/qna/0,289202,sid39_gci931259,00.html


2 SCO asserts in its opposition brief that it ?voluntarily revised
and supplemented? its answers to IBM's first discovery requests.
(SCO's memorandum in Opposition to IBM's Second Motion to
Compel Discovery (?Opp'n Br.?), at 7.) What SCO fails to say,
however, is that its supplemental responses were served only
after IBM filed its first motion to compel, and in conjunction with
the filing of SCO's brief in opposition of that motion, In any event,
as discussed in detail in IBM's Reply Memorandum and
Addendum in Support of its First Motion to Compel, SCO's
supplemental responses remain deficient.

3 This motion could not have come as a surprise to SCO. After
the Court flagged the issue of SCO's responses to Interrogatory
Nos. 12 and 13 at the October 31, 2003 scheduling conference,
IBM noted in its Reply Memorandum in Support of its First Motion
to Compel Discovery (at 5 n. 2) that it would shortly be filing this
second motion to compel responses to Interrogatory Nos. 12 and
13. At no time before IBM filed this motion did SCO advise us
that it thought the motion was unnecessary.

4 As a preface to its argument, SCO claims to put IBM's requests
in ?context? by once again setting forth SCO's interpretation of
the contractual relationship between IBM and SCO's
predecessors relating to Unix. As we have said before, we
disagree with SCO's construction of the relevant contractual
obligations.

5 SCO asserts that IBM has ignored SCO's supplemental
responses to IBM's first discovery requests and focuses instead
only on SCO's initial responses. That is incorrect. IBM's Reply
Brief and Addendum in Support of its First Motion to Compel
Discovery are addressed entirely to SCO's supplemental
responses. Moreover, we specifically discussed deficiencies of
SCO's supplemental responses in our opening brief in support of
this second motion to compel. (See Opening Br. At 6 (noting the
inadequacy of SCO's identification of the 591 files in unidentified
versions of Linux that may or may not contain code over which
SCO is asserting rights).)

6 IBM has explained in its opposition to SCO's motion to compel
why SCO's discovery requests are irrelevant, overly broad and
unduly burdensome, particularly in light of SCO's continuing
failure to tell IBM what is really at issue in this case.

7 SCO attempts to disavow its various public statements and
disclosures by claiming its analyses of ?improperly contributed?
Linux code relate to ?non-IBM entities? and need not be
identified in this case. (Opp'n Br. At 4, 9.) Not only is this
contradicted by what SCO has said publicly, but it is also
besides the point. As noted above, IBM is entitled to discovery of
SCO's rights to Linux, even if they derive from contributions of
others.

8 SCO's assertation that it produced the source code for its
computer programs on paper at IBM's direction borders on the
frivolous, and is a plain misrepresentation of IBM's document
requests. (Opposition Br. At 7-8.) IBM has never instructed SCO
to produce the source code on paper, and SCO never inquired
of IBM whether it wanted the source code to be produced on
paper. Rather IBM asked in its document requests that SCO
produce ?source code?, which was defined as the ?human
readable form of a computer program?. ?Human readable
form?
means code that is written in a programming language
understood by humans, as distinguished from ?machine
readable? ?object code?, which is comprised entirely of 1s and
0s. See, e.g., Websters New World Computer Dictionary at 258,
350 (10th ed. 2003) defining ?source code? as ?the typed
program instructions that programmers write before the program
is compiled or interpreted into machine language instructions
the computer can execute? ?and object code? as ?the machine
readable instructions created by a compiler or interpreter from
source code?.) As SCO is well aware, ?human readable?
source
code is written and stored in electronic form (i.e., on computers,
diskettes, Cds or the like), and not on paper. Moreover, SCO
has argued in support of its own motion to compel that it has
known ?from the beginning of the case, that it would be
necessary [for the parties] to run various code comparisons?.
(SCO's Memorandum in Support of Its Motion to Compel, 1t 5.)
SCO knows that such comparisons cannot be run using paper
printouts of source code.

[ Reply to This | # ]

This just in.....SCO press release
Authored by: Anonymous on Friday, December 05 2003 @ 08:17 AM EST
Friday December 5, 8:01 am ET

LINDON, Utah, Dec. 5 /PRNewswire-FirstCall/ -- The SCO Group, Inc. (Nasdaq: SCOX
- News), a leading provider of Unix based solutions, announced today that its
earnings release and investor conference call previously scheduled for December
8, 2003 at 9:00 am Mountain Standard Time, will be moved to December 22, 2003 at
9:00 am Mountain Standard Time in order for the Company to finalize the
accounting treatment for its recent $50 million Series A Convertible Preferred
Stock transaction. The Company is in the process of performing a valuation of
the conversion feature associated with the Series A Convertible Preferred Stock.
The Company will utilize the services of an outside advisor to assist the
Company in its valuation of the conversion feature.

http://biz.yahoo.com/prnews/031205/laf021_1.html

[ Reply to This | # ]

More Legal Dueling Over Discovery
Authored by: tazer on Friday, December 05 2003 @ 09:16 AM EST
So does this make GrokLaw a distributed law research/analysis site? Kind of
like SETI and distributed computing?

---
SCO -->Santa Cruz Operation ->Tarantella
SCOG ->The SCO Group -------->Caldera

[ Reply to This | # ]

[META] Coordinating transcriptions
Authored by: Anonymous on Friday, December 05 2003 @ 09:41 AM EST
There looks to be quite a lot of duplication of effort on transcribing the court
filings. Perhaps someone could set up a "wiki"
(http://en2.wikipedia.org/wiki/Wiki_software) so we could collaboratively edit
them?

[ Reply to This | # ]

full OCR converts as text and htm here
Authored by: Beyonder on Friday, December 05 2003 @ 10:52 AM EST
I've run it through my own stuff, and posted the text and html versions of the
output online to one of my webpages.
it's online as http://nexus.vrx.net/sco
you'll see the doc-84 and doc-86 as text and html there.
I did some typechecking, but I also kept the extraneous pages.

it only takes about 3-5 seconds for it to convert the entire document this way.
I wanted to see how accurate it is before attempting other newer ones.

[ Reply to This | # ]

More Legal Dueling Over Discovery
Authored by: KBellve on Friday, December 05 2003 @ 11:25 AM EST

I believe Groklaw was used more than the actual reference shown on Page 8.

I believe IBM is using Groklaw to check quotes, then using original article.

They quote the french article, translated. This was posted on Groklaw and my
guess is that IBM got it here.

Good work PJ.

[ Reply to This | # ]

My question....
Authored by: Budgreen on Friday, December 05 2003 @ 12:20 PM EST
Would be about all the links in the filing..


1.) Will someone in the cour system check these?
2.) Is it possible that the Judge(s) would look into Groklaw
3.) Could sco cry foul for a judge looking at such things?



---
Hutz: Well, your Honor, we've got plenty of hearsay and conjecture, those are
*kinds* of evidence.

[ Reply to This | # ]

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