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IBM Attorney Declaration in Support of 2nd Motion to Compel Discovery |
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Sunday, January 11 2004 @ 03:00 AM EST
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This is another one for the legal documents archives. As you know, SCO says it will be turning over their responses to IBM's discovery requests tomorrow, as the court directed. It will then be up to IBM to say if what SCO turns over is sufficient. I have been seeing a lot of expectations about Monday, but personally, I don't expect to know much until the next court date on the 23rd, if SCO is being truthful and actually does turn over significant answers and documents. SCO may have media pronouncements to make, but IBM has to look over what they are given and evaluate it and that takes time. They aren't given to trying this case in the media, so my best guess is that our next event in the IBM matter will be the court hearing. SCO is obligated to provide discovery responses because IBM won both of its Motions to Compel Discovery at the last court hearing on December 5. It wasn't a coin toss as to who goes first in discovery. It was a victory for IBM, one that SCO tried to prevent.
The LinuxWorld article, linked to above, seems to indicate that SCO's motion to compel will be the subject of the upcoming January 23rd hearing: Provided IBM is satisfied with what SCO turns over, SCO expects to be back in court on Friday January 23 pursuing its own motion to compel IBM to turn over its AIX Unix source code to SCO.
If you check on Pacer or on Groklaw's IBM Timeline, you will notice that the judge's order says: SCO is required to provide such answers and documents within thirty days from the date of this order. All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order. The Court will hold a hearing on the forgoing [sic] issues January 23, 2004 at 10:00 a.m.
That says to me that the foregoing issues listed, namely SCO's compliance, will be the first subject matter of the January 23rd hearing, and that SCO's motion can't be heard until after the judge decides that they have fully met their obligations to IBM. Of course, if IBM is satisfied and the judge is too, then SCO's motions to compel will be the next item the judge will address on the 23rd. SCO had wanted their motions to be heard at the same time as IBM's back on December 5, but here is what Judge Wells told SCO that day about their motions: MR. MCBRIDE: So Your Honor is not ruling on our motions at this point in time; is that correct?
THE COURT: No. I'm not ruling on your motions, and that is inherent in my
order that further discovery be postponed.
MR. MCBRIDE: Very good, Your Honor.
THE COURT: We'll address them then.
MR. MCBRIDE: So and we'll, in this next -- the January hearing then we will
address the -- our pending motions as well?
THE COURT: Yes.
MR. MCBRIDE: Thank you, Your Honor.
THE COURT: All right. That's with the assumption that the discovery that
SCO is to complete has been completed, all right, and with the required
specificity. So what my intention is, then, is to then address the motions
of SCO.
MR. MCBRIDE: Just -- I'm just thinking procedurally whether we will have
time to actually brief and agree upon whether we -- the specificity is
required in advance of the hearing or whether we will be doing that at the
hearing.
THE COURT: No. I would think that should be in place prior to the hearing.
If you want a date later than that, that's fine. I don't care.
MR. MCBRIDE: Let's hold that date for the time being, and then if, for
whatever reason, it appears problematic, we'll notify the Court Does that
seem appropriate?
THE COURT: It does.
You only bring a motion to compel if you can't get the other side to voluntarily give you what you feel you need to go forward. When you hit the wall with voluntary compliance, you can ask the judge to intervene and compel it, which is what happened in early December at the last court hearing. This document is part of that IBM victory. If you remember, SCO, in its November 24th Reply Memorandum In Opposition to IBM's 2nd Motion to Compel Discovery, tried to catch IBM on a technicality, arguing that IBM had failed to meet with them to negotiate with SCO before asking the court to compel discovery. This, they said, meant that IBM's motion failed to comply with Rule 37-1(a) of that court's local rules and thus should be denied. Rule 37-1(a) says you are "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". IBM may have done that for other Interrogatories, SCO argued, but in connection with 12 and 13, they didn't. The thing about a lawsuit is, you can't safely not answer, no matter how idiotic the other side's argument is. A curled lip doesn't count as an answer. What sets IBM apart is the meticulous way they answer even the most ridiculous claims. I feel confident that law schools will be using these documents someday to teach students how to litigate. In this case, SCO's point wasn't so totally nonsensical that IBM could safely brush it off. SCO provided the judge a reason to dismiss the motion, if she wanted to do so. It was a reason, but was it reasonable? I admit that when I saw this argument raised, it caused me some concern. It isn't unheard of to lose on a technicality. No doubt IBM gave some real thought to how to handle this issue, as infuriating as it must have been for them, considering they felt it had been almost a year and SCO had yet to even tell them what they were accused of, and because of SCO's taking this partial sentence of theirs out of context to make the argument they made. IBM argued that they had made "more than reasonable efforts" to get the issues resolved without the court's intervention, by means of emails, phone calls, letters, and telephone conferences, but that they couldn't come to any agreement with SCO "on any of the issues" that became the subjects of this, their second motion to compel. In support of that assertion, they attached to their motion an accompanying declaration by Todd M. Shaughnessy, one of the attorneys with their Utah law firm (remember outside counsel needs a local firm to "host" them) and this document is that declaration, which we are now adding to the collection, so it is searchable as text. The PDF is here. In the court rules, it says you are supposed to meet with the other side before you bring a motion to compel. That makes sense, because the court doesn't want you bothering them for something you could get by simply asking the other side to give it to you. SCO claimed that IBM failed to dot that "i" and cross that "t" when they wrote in their
"Certificate of Compliance with Rule 37(a)(a)(A)", part of their motion, that they had not discussed with SCO Interrogatories 12 and 13. They explained it in the certification section, but SCO pulled out this one "admission" and tried to use it. SCO called this requirement a "strict procedural requirement" and since IBM admitted it hadn't followed the proper procedure, according to SCO's reading of the document, their second motion to compel ought to be denied. This is how SCO argued their case on this point: 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 responded by pointing out that they surely tried. This was, after all the second Motion to Compel, so the pattern of intransigence was already clear. They cite some cases, including Reidy v. Runyon, which noted "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." In short, they asked the judge to be reasonable and look at the big picture, not the nit that SCO was pinning its hopes on. What's the use of meeting again if you can clearly see it will be pointless? It's not that often that you will find a procedural nit working for you, actually, except maybe in a speeding ticket case, but SCO was not wrong in giving it a whirl. You use whatever you have. Here is part of what IBM said in answer to SCO:
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. Shaughnessy, 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. As SCO refused to provide adequate responses to IBM's first discovery requests after lengthy discussions between the parties, and again after IBM filed its 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 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.
All motions need to have someone who was involved and knows what happened to provide their testimony, an affidavit, an affirmation, a declaration, to attach to the motion and in support of the motion. In this attorney declaration, Todd M. Shaughnessy states that he was involved in the discussions with SCO and he argues that IBM had been trying to get SCO to cooperate with their discovery requests for some time. Further discussions likely would not be productive. He testifies that there were discussions and emails exchanged, just as the motion states. He was a participant and he testifies to the efforts IBM made to get SCO to cooperate. Anyway, he points out, it is clear asking again wouldn't have worked. SCO had shown the futility of any further discussions without the court's help in two ways, he says: First, SCO knew, from IBM's first Motion to Compel, that they felt SCO's answers to Interrogatories 1, 2 and 4 were inadequate. But in answering IBM's second motion, it "incorporated by reference" those same inadequate responses to Nos. 1, 2 and 4 as their responses to the new interrogatories. "Incorporated by reference" means they told IBM: You know those answers you thought weren't sufficient to answer your questions that led you to file your first Motion to Compel? Those are our same answers to your new questions, too. (As you may recall, Interrogatory No. 12 asked SCO to identify all material in Linux to which it has rights and describe the nature of its rights to that material. Interrogatory No. 13 asked SCO to identify whether IBM has infringed SCO's rights (and if so, how), and whether SCO itself has ever publicly disclosed that code or material (and if so, how)). Second, he says, the proof that further discussions would be pointless is that SCO was still defending its insufficient answers and alleging that their answers were adequate, not saying that they intended to comply. Here he used SCO's own words against them, just as SCO had tried to do to IBM. SCO's reply to IBM's motion ended by saying that the motion should be denied "because SCO has fully answered the interrogatories."
See what we are up against, Your Honor? Shaughnessy argues. If they are telling that to you, Judge, can we not assume they wouldn't tell just us a thing even if we had tried one more time to talk to them in a vain pro forma compliance effort prior to filing our motion? It's a very nice move on IBM's part. The judge was sufficiently convinced by the arguments made that when she entered the courtroom she said: And I find also that it appears to me that if there's
any argument to be made on the failure to confer under Rule 37 that -- that
there has been a good faith effort to comply, but that because we can't get
off the ground because of this circular problem, that I would not find that
a sufficient basis for, you know, further postponing.
Kevin McBride asked if he could try to change her mind, and she said yes, and he did try, but she ended by ruling: At this time, however, I will grant defendant IBM's motion to compel answers
to both sets of interrogatories, and that would include, I think, 12 and 13,
if those are the ones that are questionable. olm , Characterizing all this as a coin toss is not, to me, an accurate description. SCO fought hard to defeat these motions, and by my reading, they lost. Here then is the Declaration, part of what won the day for IBM.
*************************************************************
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]
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 Defendant,
vs.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant/Counterclaim Plaintiff.
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DECLARATION OF TODD M.
SHAUGHNESSY IN SUPPORT OF IBM'S
SECOND MOTION TO COMPEL
DISCOVERY
Civil No. 2:03cv0294
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells
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I, Todd M. Shaughnessy, hereby declare as follows:
1. I am a partner with the law firm of Snell & Wilmer and co-counsel for Defendant/Counterclaim Plaintiff International Business Machines Corporation ('"IBM") in the above-captioned lawsuit.
2. I submit this declaration in further support of IBM's Second Motion to Compel and, specifically, to respond to the contention by Plaintiff/Counterclaim Defendant The SCO Group, Inc. ("SCO") that IBM failed to meet and confer in good faith prior to filing its Second Motion to Compel. SCO's arguments in this regard are set forth at pages 1-2 of Plaintiff SCO's Memorandum in Opposition to IBM's Second Motion to Compel Discovery, dated November 24, 2003.
3. For the reasons explained below, and contrary to the arguments contained in SCO's memorandum, I believe that IBM satisfied its obligation under Federal Rule of Civil Procedure 37(a)(2)(A) and DUCivR 37-1(a) to make a reasonable effort to reach agreement with counsel for SCO on the subject matter of IBM's Second Motion to Compel prior to filing that motion.
4. I was personally involved in the majority of the discussions with counsel for SCO concerning the deficiencies in SCO's responses to IBM's First Set of Interrogatories and First Request for Production of Documents. In that regard, and as conceded in SCO's own Motion to Compel Discovery and Certificate of Compliance with Rule 37(a)(2)(A) dated November 4, 2003, during September and October of 2003, counsel for IBM and counsel for SCO participated in an extended exchange of letters, emails, and telephone conferences concerning each party's discovery responses to date.
5. One topic of extended discussion was SCO's answers to IBM's First Set of Interrogatories. Interrogatory No. 1 seeks the identification of the trade secrets or other confidential/proprietary information contained in Unix System V that form the basis of SCO's lawsuit against IBM; Interrogatory No. 2 asks SCO to identify who had access to this material, the nature and source of those rights, and efforts, if any, by SCO to keep that material confidential; and Interrogatory No. 4 asks SCO to describe each instance in which IBM allegedly misused or misappropriated each item of information identified. In the course of discussions concerning these interrogatories, both orally and in writing, we made it very clear to counsel for SCO exactly what information IBM was seeking and the level of detail that we believe an adequate response requires.
6. SCO failed to supplement adequately its answers to Interrogatory Nos. 1, 2, and 4, and, on October 1, 2003, IBM filed its first Motion to Compel, which is directed at those interrogatories, among others.
7. On or about October 23, 2003, SCO served its objections and responses to IBM's Second Set of Interrogatories and Second Request for production of Documents (a copy is appended as Exhibit A to IBM's Memorandum in Support of Second Motion to Compel Discovery (Nov 6, 2003)). Interrogatory No. 12 of this set sought information concerning the material in Linux (not Unix) to which SCO claims rights and the nature of these rights; Interrogatory No. 13 asks SCO to identify whether it contends IBM has infringed SCO's rights to this material (and, if so, how), and whether SCO itself has ever publicly disclosed that material.
8. SCO's response to Interrogatory Nos. 12 and 13 simply incorporates by reference its responses to Interrogatory Nos. 1, 2, and 4, which are the subject of IBM's first Motion to Compel.
9. Although directed at entirely different issues, Interrogatory Nos. 12 and 13 ask SCO to identify the material in Linux in the same fashion as IBM's earlier interrogatories concerning the material in Unix System V - i.e, by file and line of code.
10. Although I did not specifically confer with counsel for SCO on its answers to Interrogatory Nos. 12 and 13, I believe that doing so was unnecessary, and would have been pointless, for at least the following reasons:
a. SCO has, despite IBM's repeated efforts, refused to identify any material in Unix System V by file and line of code, and has resisted IBM's first Motion to Compel on this topic. Given the position SCO has taken on this topic, I believe it would have been entirely pointless to ask counsel for SCO to provide information by files and lines of code for Interrogatory Nos. 12 and 13.
b. The deficiencies in SCO's answers to Interrogatory Nos. 1, 2 and 4 were the subject of discussion among counsel. In responding to Interrogatory Nos. 12 and 13, SCO does nothing more than incorporate by reference its responses to Interrogatory Nos. 1, 2 and 4 which, at the time, were the subject of IBM's first Motion to Compel. SCO did so knowing that IBM believes those responses were deficient. I believe it would have been pointless for the parties to discuss yet again the deficiencies in SCO's responses to Interrogatory Nos. 1, 2 and 4.
c. SCO's memorandum incorrectly states that counsel for IBM did not confer with counsel for SCO regarding the issue of SCO's failure to produce documents that should be available for review by IBM. This topic was the subject of several emails exchanged between myself and Mark Heise in early- to mid-October, 2003.
11. Finally, although SCO's memorandum criticizes IBM for not conferring on the specific topic of Interrogatory Nos. 12 and 13, notably absent from that discussion is any suggestion that doing so would have caused SCO to voluntarily supplement its answers to these interrogatories. On the contrary, SCO defends it answers and takes the position that they are adequate. Thus, SCO's memorandum itself makes clear that any attempt by IBM to further confer regarding these interrogatories would have been pointless.
I declare under penalty of perjury under the laws of the State of Utah that the foregoing is true and correct.
Dated this 3rd day of December, 2003.
___(signature)__________
Todd M. Shaughnessy, Declarant
CERTIFICATE OF SERVICE
I hereby certify that on the 3rd day of December, 2003, a true and correct copy of the foregoing, was hand delivered to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C. [address]
and was sent by U.S. Mail, postage prepaid, to the following:
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
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Authored by: banjopaterson on Sunday, January 11 2004 @ 03:58 AM EST |
I believe that we can determine a lot from the (predictable) SCO response.
If they give IBM anything, then they will hold a press conference and claim that
they have fully complied with the motion to compel.
If they file an affidavit, then they won't say a thing (as this would adversely
affect their share price).
My tuppence.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 11 2004 @ 05:45 AM EST |
Linux partisans are fond of citing this quote:
Copyrights and
patents are protection against strangers. Contracts are what you use against
parties you have relationships with.
This quote is typically
attributed to Darl McBride, in
Groklaw's Quote Database and elsewhere.
However whenever I have tried to track it to the source, it is attributed to a
prepared statement from SCO, and not specifically to McBride or any other
particular person.
In the interest of nit-picking accuracy: is there any
basis for attributing this quote specifically to Darl McBride?
Scott
McKellar
http://home.swbell.net/mck9/sco/
[ Reply to This | # ]
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Authored by: RK on Sunday, January 11 2004 @ 05:45 AM EST |
In the hearing on
the motion to compel, Judge Wells said "SCO is to file its responses within 30
days of the entry of this order, and if, for some reason, it is in good faith
unable to obtain a particular portion of that, then it must file the appropriate
affidavits ".
"Filing" something sounds to me like sending it to the
court. Is that right, or in this case did filing just mean sending to IBM? Would
that apply to both the discovery responses and the affidavits? If affidavits are
"filed" will we get to see them? How about "responses"? Or would we at least get
to see a description of the sort of thing that has been "filed"? Sorry for so
many questions.
It seems inevitable to me that there will be
affidavits, even if these are supplementing actual responses. Even if SCO had a
case and was being fully cooperative it seems to me it would be only sensible to
file affidavits setting out any limitations, and there would be bound to be
some. Seeing these affidavits would tell us a lot about the nature of the
information they haven't provided. Will we get to see them?[ Reply to This | # ]
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Authored by: jmr on Sunday, January 11 2004 @ 05:49 AM EST |
Normally should be prefered to use:
"Google, SCO in talks to
avoid lawsuit" headline in Mercury
News Tech Ticker is largely misleading.
Instead of:
"Google, SCO in talks to avoid lawsuit" misleading headline
can be found here.
This issue is addressed in many style guides for developing
web contents, including the
W3C horribly long
titled
HTML
Techniques for Web Content Accessibility Guidelines
1.0
Good link text should not be overly general; don't use
"click here." Not only is this phrase device-dependent (it implies a pointing
device) it says nothing about what is to be found if the link if [sic] followed.
Instead of "click here", link text should indicate the nature of the link
target, as in "more information about sea lions" or "text-only version of this
page".
[ Reply to This | # ]
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Authored by: brenda banks on Sunday, January 11 2004 @ 05:59 AM EST |
will an affadavit (sp) show up on pacer if they go that route?
---
br3n[ Reply to This | # ]
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Authored by: leguirerj on Sunday, January 11 2004 @ 06:15 AM EST |
We spent alot of bandwidth discussing Amendment 2 to the APA, but the third
wheel in this triangle has been very silent. Couldn't IBM or Novell ask the old
SCO about copyright transfers from Novell? Couldn't Groklaw? Couldn't the News
Media? The old SCO should have an opinion.[ Reply to This | # ]
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Authored by: Steve Martin on Sunday, January 11 2004 @ 07:49 AM EST |
In reading back over the transcript of the Dec 5th hearing, I noticed this
exchange near the end:
MR. MCBRIDE: Just -- I'm just thinking
procedurally whether we will have
time to actually brief and agree upon whether
we -- the specificity is
required in advance of the hearing or whether we will
be doing that at the
hearing.
THE COURT: No. I would think that should
be in place prior to the hearing.
If you want a date later than that, that's
fine. I don't care.
MR. MCBRIDE: Let's hold that date for the time
being, and then if, for
whatever reason, it appears problematic, we'll
notify the Court. Does that
seem appropriate?
THE COURT: It
does.
(All emphasis added by me)
How likely is it that
SCO could tomorrow "notify the Court" that compliance is going to be
"problematic" and thereby drag this out even more? It's the kind of thing SCO
might like to do, but I wonder just how close to the chopping block that would
put their collective heads.
--- "When I say something, I put my name
next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: smtnet1 on Sunday, January 11 2004 @ 09:36 AM EST |
Since Linux is open source and SCO have made repeated threats to sue Linux users
over the alleged "copied code" in Linux. Is there a case to make the response to
interrogatory 12 public?
INTERROGATORY NO. 12: Please identify, with
specificity (by file and line of code), (a) all source code and other material
in Linux (including but not limited to the Linux kernel, any Linux operating
sytem and any Linux distribution) to which plaintiff has rights; and (b) the
nature of plaintiff's rights, including but not limited to whether and how the
code or other material derives from UNIX.
The source code for Linux is
already open to the public, so the "trade secrets claim" is no good. SCO have
released the Linux kernel under GPL so they really have no reason to prevent
identification of the code (orther than their licensing scam falling
apart).
Are there any lawyers or law students who could find some good case
law for requesting that this information is released against the protective
order.
I am sure IBM will be looking for a way. can we help them?
[ Reply to This | # ]
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Authored by: dmomara on Sunday, January 11 2004 @ 11:24 AM EST |
Reading the 1995 APA, its ammendments and attached schedules and business plan,
I see no termination of obligation on the part of TSG as agent of Novell in
licensing of SVRx source code to pass 100% of any royalties derived therefrom to
Novell, with the return of a 5% fee. Royalty bearing products which have a
termination of such obligation are clearly spelled out in the schedules attached
to the APA and are all associated with UnixWare and the "merged
product" to be developed therefrom as well as any "converted"
SVRx source code licenses. These are described in the APA as "additional
royalties" and are the only ones that are treated in language which
specifies their termination. TSG may be in further breach of the agency
obligation if it has not kept up with monthly reports and may be liable to
Novell if the unconverted SVRx source code royalties.
[ Reply to This | # ]
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Authored by: skidrash on Sunday, January 11 2004 @ 12:09 PM EST |
But I'm almost certain about some things that will be turned over -
Everything contributed by IBM to Linux, and the claim to ownership will be
"under our contracts only SCO is allowed to decide what IBM puts into any
UNIX like system"
and
All the RCU, JFS, SMP, NUMA stuff SCO can find in Linux regardless of author,
and SCO's justification for "owning" it will be that IBM wrote it
originally and by allowing ANYONE to contribute it to Linux, IBM violated the
contracts.
[ Reply to This | # ]
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Authored by: maco on Sunday, January 11 2004 @ 12:21 PM EST |
SCO will claim that
First:
- IBM agreed in its original AT&T contract
that whatever programming and methodology they did in Unix belonged to
AT&T
- that now SCO is rightful owner of that programming and
methodology
- that IBM gave away their
property
Second:
- they have copywright to
headers
- all Linux is compiled using their headers
- QED: all of
Linux is an infringement
- and IBM contributed
thereunto
Line numbers mean nothing. Where they were thinking about
specific examples they got nailed earlier and will not go there again.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 11 2004 @ 12:39 PM EST |
Remember from the Dec. 5th hearing...
"Your Honor, I will proffer to the Court
that we are filing a second
amended complaint that has copyright infringement
claims, and will be
filed within the coming few days or no less than a
week."
Whatever happend to those? [ Reply to This | # ]
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Authored by: rand on Sunday, January 11 2004 @ 01:02 PM EST |
The Rule 37 link of Groklaw's Legal Research page is broken (expired
Google cache, actually).
Here's a working one:
Informal Conference to
Settle Conference Disputes
--- The Wright brothers were not the first
to fly an aircraft...they were the first to LAND an aircraft. (IANAL and
whatever) [ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 11 2004 @ 02:56 PM EST |
Is it true that SCO has to turn over all the "evidence" they have so
far to IBM by tomorrow (the 12th)? In other words, SCO will not be able to
bring any new or suprise evidence to court after tomorrow. Of course, we
believe that IBM's list of items is complete. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 11 2004 @ 04:32 PM EST |
One of the things SCO has to turn over tomorrow is all the records for the three
teams of MIT experts that allegedly did a "deep dive" into the Linux
code early last year.
If this code comparison didn't happen, and a lot of people think it didn't,
then SCO would not have anything to turn over. In that case, IBM could claim
the whole thing was a hoax, and file for summary judgement of its Lantham Act
charges in the countersuit.
Can you imagine the news stories if it turned out that SCO never did the code
comparison? SCO would get roasted. [ Reply to This | # ]
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Authored by: lpletch on Sunday, January 11 2004 @ 04:36 PM EST |
The Linuz A.B.I Homepage
states
The Linux abi is a patch to the linux kernel that allows a
linux system to run foreign binaries.
This was developed and written by
Christoph Hellwig and Joerg Ahrens as a follow on to the iBCS/iBCS2 project
written for the older 2.2.x kernel by Mike Jagdis.
This is a
patch. I take that to mean it is not part of the kernel proper and needs to be
added to the kernel source before compiling.
There is support for:
SCO
OpenServer
SCO OpenDesktop
SCO Unix 3.x
SCO Xenix 386
SCO Xenix
286 (with userspace x286 emul)
SCO UnixWare 7
Caldera OpenUnix 8
SUN
Solaris 2
System V Release 3 (SVR3)
System V Release 4 (SVR4)
Wyse
V/386
ISC Interactive Unix
It looks like these are all older
releases.
Christopher Hellwig has his name all over these files and a lot of
the email addresses are @caldera.de. I havn't checked for similarities with the
ABI's in the recent kernels but it seems to me that the information in these
files would be similar because I doubt if the ABIs have changed that much from
older versions of SYSV. Possibly some additions but no real changes to what is
there.
I know Hellwig no longer works for SCO/Caldera.
I am wondering
why this patch is needed for binary compatibility with older versions of SYSV if
the kernel already has an ABI for current SYSV. Would there be that much
difference.
There are some comments in the source files about where the
information for compatibility came from.
I have no idea if what I said makes
any sense.
[ Reply to This | # ]
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- A quick and meaningless Pole.. - Authored by: RSC on Sunday, January 11 2004 @ 05:08 PM EST
- Christoph Hellwig and Linux A.B.I. - Authored by: kberrien on Sunday, January 11 2004 @ 05:39 PM EST
- Christoph Hellwig and Linux A.B.I. - Authored by: lpletch on Sunday, January 11 2004 @ 05:42 PM EST
- Look at this. - Authored by: Anonymous on Sunday, January 11 2004 @ 06:04 PM EST
- Full ABI specs are here.. - Authored by: Anonymous on Sunday, January 11 2004 @ 06:07 PM EST
- Look at this. - Authored by: Trepalium on Monday, January 12 2004 @ 12:57 AM EST
- Look at this. - Authored by: Anonymous on Monday, January 12 2004 @ 01:24 AM EST
- Again - Authored by: maroberts on Monday, January 12 2004 @ 07:13 AM EST
- Look at this. - Authored by: Anonymous on Monday, January 12 2004 @ 10:26 AM EST
- Look at this. - Authored by: Anonymous on Monday, January 12 2004 @ 01:46 AM EST
- Look at this. - Authored by: Anonymous on Monday, January 12 2004 @ 10:03 AM EST
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Authored by: Sunny Penguin on Sunday, January 11 2004 @ 06:27 PM EST |
SCO has killed it's customer base, it's ISV's, Layed off programmers,
engineers, SCO's software Unixware and Openserver infringe on IBM patents, the
lawsuit seems to be a hopeless cause.
My question is, what the heck are they baseing their future on?
Has Microsoft promised these scum executive jobs?
(no insult intended to scum everywhere)
Are they all going to retire?
Live off the Norda Family Trust?
Can anyone see a future plan?
Is their whole plan based on the stock scam?
---
SCO directly to jail, do not collect two hundred dollars.[ Reply to This | # ]
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- Dumb Question ? - Authored by: Anonymous on Monday, January 12 2004 @ 01:05 AM EST
- Three papers - Authored by: Anonymous on Monday, January 12 2004 @ 08:02 AM EST
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Authored by: belzecue on Sunday, January 11 2004 @ 09:01 PM EST |
What are the chances that SCO go for the 'bury em in paperwork' approach?
I doubt that they could close ALL the loopholes in their case resulting from six
months of stupid theories and statements to the press. Anyway, it's not as if
they are making a real lawsuit here. Delay, delay, delay is still the name of
the game.
I think their best option is to flood IBM with 'specifity' (documents,
cross-referencing, fluff) and hope that IBM request more time beyond Jan 23 to
unravel and debunk it all.
Surely the exit-strategy planning has been going on in tandem with the document
production...[ Reply to This | # ]
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Authored by: pooky on Sunday, January 11 2004 @ 09:40 PM EST |
Anyone want to take bets on what the chances are that IBM will say at the next
hearing they are satisfied with SCOG’s answer? Personally, I’m sure there is
ZERO chance but hey…
-pooky
---
Veni, vidi, velcro.
"I came, I saw, I stuck around."
IANAL, etc...[ Reply to This | # ]
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Authored by: henrik on Sunday, January 11 2004 @ 10:01 PM EST |
This declaration from TMS says in 10(c) that SCO lawyers do not tell the truth.
This is a sworn statement and SCO hasn't opposed it. TMS says that he has
emails as proof. Obviously SCO has filed a paper telling the court a lie in
contrary to what they know.
Is this really what they are allowed to do? Just tell a lie and if it's not
revealed, nothing will happen to you?[ Reply to This | # ]
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Authored by: pooky on Sunday, January 11 2004 @ 10:18 PM EST |
My guess is SCOG will not be able to comply with IBM's request. Part of what
SCOG has claimed publicly is that IBM has contributed IBM developed, "SCOG
owned" features to Linux. SCOG would seem to need the AIX source code to
identify the actual source of the copying if IBM did it, wouldn't it? Since IBM
hasn't given it to them, and won't until SCOG cough's up the evidence, SCOG
is now in a bind. They have already tried to argue that they need the AIX source
code to prove what IBM has done, without it there's no reasonable basis except
a public statement by an IBM exec to infer that IBM has copied anything into
Linux related to AIX.
Is that good enough to base a lawsuit on? :-D
-pooky
---
Veni, vidi, velcro.
"I came, I saw, I stuck around."
IANAL, etc...[ Reply to This | # ]
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Authored by: RealProgrammer on Sunday, January 11 2004 @ 11:20 PM EST |
I just had an epiphany, reading the above comments. The irony is so delicious!
Linux-ABI is a patch to the Linux Kernel to make it use the System V ABI. If
the System V ABI were "copied verbatim" into Linux, then why did
Caldera/SCO have to release a patch to add it?
---
(I'm not a lawyer, but I know right from wrong)[ Reply to This | # ]
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Authored by: RealProgrammer on Sunday, January 11 2004 @ 11:53 PM EST |
If SCO did hire MIT mathematicians to compare the code, then they made a
mistake. The code in question has a very complicated ancestry. It's not
enough to compare UNIX with Linux and say "these bytes match, we own
them". There are also BSD, the POSIX standards, the C standard headers
and libraries, GNU code, Minix, and many other places from which code could be
copied.
Just because things match (either verbatim or by style) doesn't mean one was
copied from the other. Perhaps both come from a common source, or perhaps they
look alike because of their intended function. There are only so many ways to
code a while() loop.
---
(I'm not a lawyer, but I know right from wrong)[ Reply to This | # ]
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Authored by: studog on Monday, January 12 2004 @ 12:15 AM EST |
As of right now, the
SCO Countdown
site lists a little less than 2 hours left
for SCO to comply.
Isn't
tomorrow too late?
...Stu [ Reply to This | # ]
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Authored by: Anonymous on Monday, January 12 2004 @ 12:55 AM EST |
Check out the latest news!
http://www.nytimes.com/2004/01/12/technology/12fund.html?ex=1074488400&en=98
41c4f3c354f9d7&ei=5062&partner=GOOGLE[ Reply to This | # ]
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Authored by: Anonymous on Monday, January 12 2004 @ 01:02 AM EST |
The Court is serious about thirty days and specificity...and she won't give SCO
the last doubtful word. McBride is wiggling like a worm exposed at the end and
the Judge sua sponte disillusions him about addressing SCO Motions if Complete
and Specific Discovery is not forthcoming:
[look at how I can quote their thoughts! You have a foxy db, Ms. J.]
The Official Transcript (Parties' thoughts included)
THE COURT: Counsel, I am ready to rule in this matter. I think it is
essential to get the ball rolling in this circumstance [and get the plaintiff of
its kiester], and I'm convinced
that my initial intended order is appropriate in this case....
...
At this time, however, I will grant defendant IBM's motion to compel
answers.... SCO is to file its responses
within 30 days of the entry of this order, and if, for some reason, it is in
good faith unable to obtain a particular portion of that, then it must file
the appropriate affidavits indicating why it cannot.
[*comment: They can't use the same reasons they used to oppose the discovery
requests.]
....
THE COURT: All right, let me just indicate further that those responses are
to identify, with specificity, the source codes that you are claiming from
the basis for your action. [Or you will lose points and fail the test.]
[*discussion re documents...]
THE COURT: I don't want to take -- perhaps if they're in written form, you
can provide that to Mr. McBride and --
MR. MARRIOTT: I'm happy to do that, Your Honor.
THE COURT: -- the same requirement will be enforced. In the meantime, all
other discovery [*SCO'S] is postponed. And the -- you -- both parties will be
expected to abide by the protective order that is currently in place. I
will set this matter for a hearing.
[*schedule talk]...
THE COURT: All right. Does that give you sufficient time? I am holding you to
the 30 days, [&*emphasis the court.] but if we get this order signed by
Wednesday of next week,
let's make it even the fourth week of January, which is after the 19th. [So you
are actually getting more than thirty days. I'm a nice gal.] Why don't we do
it Friday, then, the 23rd at 10 o'clock, again, and then we will
address the remaining motions of SCO, all right.
MR. MCBRIDE: So Your [bi-assed] Honor is not ruling on our motions at this point
in time; is that correct?
THE COURT: No [sweetie pie]. I'm not ruling on your motions, and that is
inherent [DUH!] in my
order that further discovery be postponed.
MR. MCBRIDE: Very good, Your Honor. [you Blue lovin' hussy!]
THE COURT: We'll address them then. [faaat chance].
MR. MCBRIDE: So [be that way!] and we'll [give us a break!], in this next --
the January hearing then we will
address the -- our pending motions as well? [Please, you got to give us
something. They are essential for our timing to 2005.]
THE COURT: Yes. [ Of course, What's he pulling here?]
MR. MCBRIDE: Thank you, Your Honor. [For the bone. We'll hold you to it.]
[*Next is sua sponte.]
THE COURT: [I better specify and protect the record] All right. That's with
the assumption that the discovery that
SCO is to complete has been completed, all right, and with the required
specificity. So what my intention is, then, is to then address the motions of
SCO. [You twerps! You aren't coming in and saying you're only prepared for
your own motions to compel!]
MR. MCBRIDE: Just -- I'm just thinking procedurally whether we will have
time to actually brief and agree upon whether we -- the [effing] specificity is
required in advance of the hearing or whether we will be doing that at the
hearing. [I'm just an ol' country lawyer.]
THE COURT: No [Stupid, answer and specify]. I would think that should be in
place prior to the hearing.
If you want a date later than that, that's fine. I don't care [You can be hot
toast or warm toast, but burnt just the same].
[The judge knows IBM will take care of the specificity issue, if any, before the
hearing.]
MR. MCBRIDE: Let's hold that date for the time being, and then if, for
whatever reason, it appears problematic, we'll notify the Court Does that
seem appropriate? [I'll ask later. Don't want to give a reason now.]
[*Request for continuance guaranteed by SCO maybe by IBM.]
THE COURT: [Of Course] It does [you slithery desert slimer].
END of TRANSCRIPT
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Authored by: shoden on Monday, January 12 2004 @ 01:54 AM EST |
Wouldn't this be consider idemnifying?
I wonder what Didio will say?
---
S.K.
MR. MCBRIDE: Your Honor, I have a smaller, obviously --[ Reply to This | # ]
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Authored by: Anonymous on Monday, January 12 2004 @ 10:38 AM EST |
"Kevin McBride asked if he could try to change her mind, and she said yes,
and he did try, but she ended by ruling"
I have to admit McBride's provocative style is admireable. Those words, in
contempt of the judge, dare and taunt to say otherwise. They dare and taunt the
judicial system because they are so good at manipulating the system. And
they've been raking in millions instead of fading away quietly but
respectfully. The way they must figure it, Enron and MCI got away with it so
they too have a flying chance.
P.L.[ Reply to This | # ]
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