decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Judge Wells' Order - as text
Wednesday, March 03 2004 @ 07:59 PM EST

Here you go, the order as text. Thanks go to Rand McNatt for the quick transcript.

PDF: http://www.groklaw.net/pdf/IBM-109.pdf

If you see errors, do let us know.

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

IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH
______________________________________
THE SCO GROUP, INC.

Plaintiff,

vs

INTERNATIONAL BUSINESS MACHINES CORP.

Defendant
______________________________________
Case No. 2:03cv00294 DK

ORDER REGARDING SCO'S
MOTION TO COMPEL DISCOVERY
AND IBM'S MOTION TO COMPEL
DISCOVERY
______________________________________

On February 6, 2004, the Court heard arguments regarding SCO Group Incorporated's (SCO) compliance with the court's prior order of December 12, 2003. The Court also heard argument on SCO's Motion to Compel Discovery. SCO was represented by Mark Heise, Brent Hatch and Kevin McBride. International Business Machines Corporation (IBM) was represented by David Marriot, Todd Schaughnessy, Chris Chow, and Amy Sorenson.

The Court having heard argument, having read the parties' memoranda, having considered relevant case law, and finding good cause shown, hereby enters the following Orders:

I. SCO

Plaintiff/Counterclaim-Defendant is hereby ORDERED:

1. To fully comply within 45 days of the entry of this order with the court's previous order dated December 12, 2003. This is to include those items that SCO had difficulty in obtaining prior to the Court's previously ordered deadline of January 12, 2004.

2. As previously ordered, SCO is to provide and identify all specific lines of code that IBM is alleged to have contributed to Linux from either AIX or Dynix. This is to include all lines of code that SCO can identify at this time.

3. SCO is to provide and identify all specific lines of code from Unix System V from which IBM's contributions from AIX and Dynix are alleged to be derived.

4. SCO is to provide and identify with specificity all lines of code in Linux that it claims rights to.

5. SCO is to provide and identify with specificity the lines of code that SCO distributed to other parties. This is to include where appplicable the conditions of release, to whom the code was released, the date and under what circumstances such code was released.

II. IBM

In light of what the court considers SCO's good faith efforts to comply with the Court's prior order, the Court lifts the discovery stay it previously imposed.

Rule 26(b)(1) of the Federal Rules of Civil procedure states in relevant part: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.... The information sought need not be admissible at the trial if the information sought appears to be reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). This rule has been interpreted broadly by the United States Supreme Court. See Oppenheimer Fund, Inc. V. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380 (1978). "[A]t the discovery stage, the concept of revelance should be construed very broadly." Gohler, IRA, et al. v. Wood et al., 162 F.R.D. 691,695 (D. Utah 1995). However, a court may limit discovery where "the discovery sought is ... obtainable from some other source that is more convenient, less burdensome, or less expensive." Fed. R. Civ. P. 26(b)(2)(i). A Court may also limit discovery if "the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(iii).

Based on the Court's decision to lift the discovery stay and because relevance should be construed broadly at the discovery stage, IBM is hereby ORDERED:

1. To provide the releases of AIX and Dynix consisting of "about 232 products" as was represented by Mr. Marriott at the February 6, 2004 hearing. The releases are to be provided within 45 days of the entry of this order. Following the production, SCO is to provide additional memoranda to this Court indicating if and how these files support its position and how they are relevant. The memorandum is to include with specificity, and to the extent possible, identification of additional files SCO requests and the reasons for such requests. The court will then consider ordering IBM to produce more code from AIX and Dynix. See American Medical Systems, Inc. v. National Union Fire Ins. Co., 1999 WL 562738, p. 2-3 (ordering a party to first "procure relevant documents" and then reconsidering the discoverey request for the production of more documents).

2. Pursuant to Rule 26(b), SCO should use its best efforts to obtain discovery from the Linux contributions that are known to the public, including those contributions publically known to be made by IBM. IBM, however, is ordered to provide SCO any and all non-public contributions it has made to Linux.

3. IBM is to provide documents and materials generated by, and in possession of employees that have been and that are currently involved in the Linux project.[1] IBM is to include materials and documents from executives including inter alia, Sam Palmisano and Irving Wladawsky-Berger. Such materials and documents are to include any reports, materials or documents from IBM's "ambitious Linux Strategy." Steve Lohr, A Mainstream Gian[t] Goes Countercultural; I.B.M.'s Embrace of Linux Is a Bet That It Is the Software of the Future, N.Y. Times, March 20, 2000, Business/Financial Desk. The Court finds these materials are relevant because they may contain information regarding the use or alleged misuse of source code by IBM in its contributions to Linux.

5. IBM is ordered to provide further responses to SCO's interrogatory numbers two, five, and eleven. These responses are to include relevant information from all sources including top level management.

6. SCO seeks the proper indentification of approximately 7,200 potential witness[es] identified by IBM. IBM in its memoranda suggested that the parties might be able to reach some sort of agreement as to the most important prospective trial witnesses and then IBM would provide the full contact information for these individuals. The Court orders IBM to properly identify a representative sample of the potential witnesses that is to include a 1000 of the most important prospective trial witnesses as agreed upon by SCO and IBM. Following the production of this information, the Court will consider the need for the proper identification of additional witnesses.

III. Both parties

At the hearing on February 6, 2004, SCO represented that IBM failed to provide source logs that identify how documents were kept in the ordinary course of business pursuant to Rule 34(b). The Court orders both SCO and IBM to provide source logs according to Rule 34(b) for those materials produced in discovery.

Both SCO and IBM are to provide to the court an affidavit detailing their respective efforts in complying with this order. Those affidavits should also contain a statement that the respective answers and materials provided are given to the best of each parties' knowlege and are complete, detailed and thorough.

In light of the Court's order granting SCO's motion to file an amended complaint, and IBM's answer to SCO's second amended complaint, the Court hereby orders:

Both SCO and IBM are to file additional memoranda with the Court addressing the impact, if any, of the second amended complaint and IBM's subsequent answer on IBM's Motion to Strike the 5th, 15th, and 19th Affirmative Defenses asserted by the SCO Group in its Answers to IBM's Amended Counterclaims. Because this is IBM's motion, IBM is to file its intial memoranda with the Court within 60 days of the entry of this order. SCO will then have 15 days to respond to IBM's filing. IBM will have 7 days following SCO's response to file a reply. Following the additional briefing, the Court will contact the parties to schedule a hearing regarding IBM's motion to strike SCO's affirmative defenses.

[1] Although not part of SCO's official written motion, SCO raised these discovery issues at oral argument and also alleged in its written memoranda that IBM failed to adequately respond to interrogatories and document requests that are the subject of these discovery items.

Dated this _3rd_ day of March, 2004.

BY THE COURT:

__[sig: Brooke C. Wells]__
BROOKE C. WELLS
United States Magistrate Judge

_______________________________


** CERTIFICATE OF SERVICE OF CLERK **

Re: 2:03-CV-00294

True and correct copies of the attached were eithere mailed, faxed, or e-mailed by the clerk to the following:

Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]
EMAIL

Stephen Neal Zack, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL

David K. Markarian, Esq.
BOIES SCHILLER & FLEXNER
[address]

Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL

Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]

Thomas G. Rafferty, Esq.
CRAVATH SWAINE & MOORE
[address]

David R. Marriott, Esq.
CRAVATH SWAINE & MOORE
[address]
EMAIL

Mr. Alan L. Sullivan, Esq.
SNELL & WILMER LLP
[address]
EMAIL

Todd M. Shaughnessy, Esq.
SNELL & WILMER LLP
[address]
EMAIL

Amy F. Sorenson, Esq.
SNELL & WILMER LLP
[address]
EMAIL

Mr. Kevin P. McBride, Esq.
[address]


  


Judge Wells' Order - as text | 135 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Judge Wells' Order - as text
Authored by: bobn on Wednesday, March 03 2004 @ 08:28 PM EST
From the order to IBM:
1. To provide the releases of AIX and Dynix consisting of "about 232 products" as was represented by Mr. Marriott at the February 6, 2004 hearing. The releases are to be provided within 45 days of the entry of this order. Following the production, SCO is to provide additional memoranda to the Court indicating if and how these files support its position and how they are relevant.
Is there anything to stop TSG from trying to say "these files show more stuff we own in Linux"? Does the earlier portions of this order prevent that or not?

[ Reply to This | # ]

Judge Wells' Order - as text
Authored by: alisonken1 on Wednesday, March 03 2004 @ 08:28 PM EST
5. SCO is to provide and identify with specificity the lines of code that SCO distributed to other parties. This is to include where appplicable the conditions of release, to whom the code was released, the date and under what circumstances such code was released.

Would this include all of the Linux copies that SCO sold under the GPL?

If I read this right - delicious irony.

---
- Ken
Slackin' since SLS 3.2

global IANAL="I Am Not A Lawyer"

[ Reply to This | # ]

Judge Wells' Order
Authored by: Hygrocybe on Wednesday, March 03 2004 @ 08:30 PM EST
I don't often comment, but I think that it will be almost impossible for SCO to
keep their submission sealed from scrutiny under the auspices of plain and
simple justice. Groklaw has shown that the Linux/UNIX community as a whole can
speedily examine in detail any files SCO claims are their IP,and so far has
demonstrated that SCO is quite wrong. Groklaw contributors go even further and
provide documentary evidence of the true origins of the contested files.

The Groklaw community has much larger numbers of people and intellectual
resources than either IBM or SCO in the sense that perhaps 100's or even 1000's
of relevant people can examine code and provide answers that possibly neither
IBM or SCO can provide.

In this sense, I suspect IBM could be interested in making sure that at least
some of the Groklaw/Linux/UNIX community could examine the contested codes and
show where they originated. The argument that these files cannot be examined by
those who may know the truth about their beginnings, flies in the face of all
natural justice as far as I am concerned and should SCO demand this, it simply
emphasises to me that they are concerned only with perpetuating unpleasant myths
rather than the truth.

---
Blackbutt, Australia

[ Reply to This | # ]

tinfoil hat time
Authored by: Anonymous on Wednesday, March 03 2004 @ 08:31 PM EST
i wonder if SCO knew the order was coming down and decided to file the suits on
the same day to draw attention from their impending loss in court...

[ Reply to This | # ]

Typos
Authored by: bruzie on Wednesday, March 03 2004 @ 08:31 PM EST
1st para: SCO was represneted by Mark Heise -> represented

SCO 1.: order with the corut's previous -> court's

IBM: Rule 26(b)(1) explanation:
"[A]th the discovery stage, -> "[A]t the...
Gohler, IRA, er al. v. Wood er al., -> et al. for both

There may be others, but these stuck out for me during a reading

[ Reply to This | # ]

  • Typos - Authored by: Anonymous on Thursday, March 04 2004 @ 08:54 AM EST
Judge Wells' Order - as text
Authored by: nattt on Wednesday, March 03 2004 @ 08:33 PM EST
Although I agree it's good that SCO have to go first, it would still seem unfair

that IBM have to provide any AIX or Dynix code. It still sounds like it's
allowing SCO to go fishing, and in all essence, irrelevent to a contract case
where it's not that IBM contributed to Linux, but wether contracts allowed
them to contribute, and even then wether such code is code that comes under
such contract. However, SCO are told to name ALL their code in Linux, and
I'm assuming that's wether they thin IBM or anyone else contributed or
allegedly contributed it. I see this as key. I'm guessing that they will fill up

this category with the code that they themselves contributed to Linux...

[ Reply to This | # ]

Dear Judge Wells
Authored by: Anonymous on Wednesday, March 03 2004 @ 08:34 PM EST
Dear Judge Wells

On March 3, 2004, SCO sued AutoZone, claiming that parts of Linux belong to SCO
and that AutoZone used them without authorization. All Linux users are in
danger of being likewise sued.

We would like to remove SCO's code from Linux, but SCO has heretofore refused to
specify which code belongs to them. Fortunately, SCO is under court order to
provide this information to IBM. I am concerned that SCO will ask that this
information be kept confidential. As this information is of vital importance to
Linux users everywhere, I request that that it be made public.

Thank you,
A Linux user

[ Reply to This | # ]

When pushed SCO will say ..
Authored by: pdalton on Wednesday, March 03 2004 @ 08:38 PM EST
1) They claim rights to ALL of Linux (its an "unauthorized version of
Unix", right?)
2) They claim ALL of IBM's contributions come from AIX and DYNIX.
3) They claim IBM's contributions derive from ALL of System V (because they use
the same methods, structures, sequences, typefaces etc.)

When forced to state their claims they will make them as broad as possible.
Can't hurt. Refutation will come at the trial.

[ Reply to This | # ]

OT - PJ, clarification please
Authored by: floyds_void on Wednesday, March 03 2004 @ 08:42 PM EST
As you are probably aware, there is a certain amount of FUD going on that you
`censor' replies that are antithetical to your `designs & purposes', namely
contributed posts that are contrary to your `obvious' bias against SCO.

May I humbly suggest that you post a link on your home page stating plainly how
you moderate the discussions ?? I'd hate to see all your good work become
unfairly discredited because of some gross misunderstanding due to FUD.

[ Reply to This | # ]

Right to correct.
Authored by: kberrien on Wednesday, March 03 2004 @ 08:42 PM EST
>4. SCO is to provide and identify with specificity all lines
>of code in Linux that it claims rights to.

After this discovery is done, could IBM not file a motion that SCO has a burden
to allow correction of any wrong, and ask for lifting of the protective order in
place to allow the community to correct/or not. They could argue that the code
is available to the public, and since we expect there to be little at all, it
could in now way hurt the value of SCO entire IP.

Second question, when is our next IBM deadline. When does the judge hold the
next hearing on compliance?

[ Reply to This | # ]

Judge Wells' Order - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 08:47 PM EST
Typo:

II IBM.

Para 6

contact information for these individulas.

s/b individuals.

[ Reply to This | # ]

7200 witnesses??!!
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:00 PM EST
I guess I missed this the first time around, but...wow. Even if this gets pared
down to 1000 by the time this gets to trial, this case could last 5-10 years, on
the order of the AT&T antitrust case. For SCO, be careful what you ask for,
because you just might get it--in this case, a very long and tortuous court
trial.

One of the things it must be said that SCO did extremely well today is
to virtually erase the news of their miserable quarter: of all the stories on
the company today, the quarterly results were inserted as a footnote to the 'big
news'. A cursory glance at the 8K showed that they burned through $6.5
million this last quarter. At that rate, they will run out of cash in 8-9
quarters. That is, come April 2006, in the middle of witness no. 456 or
thereabouts. I was hoping for a swift verdict for this suit, but in many ways
this may be a much better result, i.e. a long slow painful death as it
hemorrages money to its demise. IBM certainly knows this, and isn't in any hurry
to end this farce any time soon (and just wait as Novell, Red Hat, et al pile
on).

[ Reply to This | # ]

typos in Judge Wells' Order - as text
Authored by: PhilG on Wednesday, March 03 2004 @ 09:07 PM EST
/xxx/yyy/ - change string "xxx" to string "yyy"
/represneted/represented/
/corut's/court's/
/appplicable/applicable/
/form executives/from executives/
/Embrase/Embrace/
/Financila/Financial/
/individulas/individuals/
/intial/initial/
/officiial/official/
/eithere/either/

[ Reply to This | # ]

It's all a farce
Authored by: captainhaddock on Wednesday, March 03 2004 @ 09:20 PM EST
It's all a farce, of course. 45 days from now, SCO will hand in 10 sheets of
loose-leaf and Darl's vacation photos along with a note explaining why they
can't comply for this reason and that reason. "We need to see IBM's code
first waah waah waah."

IBM, on the other hand, will have complied and supplied three truckloads of
documents. Which means SCO gets what they wanted all along. Then, while we wait
for a new discovery compliance date, the still-in-contempt SCO will have several
months to concoct new theories, amend their lawsuit, and brag to the press how
well their case is going and how much infringing code they've found in AIX.

When Judge Wells finally gets around to setting yet another compliance date, SCO
will of course stick with the story that they need to see all IBM code ever
written, not just what was supplied.

Has anyone ever seen a company less interested in moving their own lawsuit
forward than SCO is?

Wells could have put an end to this charade a month ago, but she hasn't. Of
course, she's used to the American justice [sic] system where everything takes
years to decide, and she probably gave up caring decades ago. And since SCO was
never interested in anything more than the PR of an ongoing lawsuit, they
consider the perpetual litigation to be a moral victory. Darl will keep shoving
feathers into his cap and calling them macaroni.

The silver lining is that SCO only has a few quarters left of cash to spend on
litigation. Hopefully they don't get any more large donations from Microsoft and
their ilk, but who knows.

[ Reply to This | # ]

sco keeps going
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:36 PM EST
sco keeps going--the judge obviously feels that sco still has a case. It seems
like all they need to do is come up with a few measily lines. Remember, it is
not what is said in the press that counts here--if there are even a few lines
then sco will have proved it's point and will be given greater latitude. They do
not have to show millions of lines of code they just need to sho enough. Even if
it is ABI -- for the court there is no distinction that the ABIs should not be
considered as evidence. That is what the FOSS group wishes but again the ABI
issue is far from settled in favor of FOSS. I think the fact that the judge
cleared the way for IBM to be required to comply with sco's requests leaves room
for sco to maneuver. I do not think they should win by any sense, but what is
clear to FOSS does not mean anything to the judge. If they (the judge) are fair
and impartial then sco gets to move forward on this, not based on producing a
million lines, but just enough.

This means that they (sco) very well could establish their claims at some point.
Of course, the moment they identify those lines clearly, they will be
rearchitected to not infringe, which is all anybody wants to do. Which is the
way this should have been resolved. Sco damages are limited to only what can be
proven, so providing only a few hundred (or less) lines of code, while allowing
them to move forward will prevent them from collecting maximum damages. On top
of which they will be cut off from any fees they may collect in the future as
the FOSS will do the required work of revising/removing infringing code. In the
interim though, there will be a few more sco licensees. Especially if there
isn't some closure on stopping sco from moving forward to full trial. However,
anyone investing in sco and sco itself are fools if they think they can continue
to collect fees on what is not theirs and that is the main point. If they only
provide a few hundred lines or even thousand, then it is clear that the rest
does not belong to them. And the entitlement train will finally reach the
station and everyone will get off.

We keep hoping for some "law & order" conclusion to this where the
compelling evidence (or lack of evidence) is dramatically presented and the case
is concluded (or dismissed). But it isn't going to happen. Groklaw's impact on
this case is negligible as it keeps going. And it will keep going. So 45 days
from now the two sides will square off again and the judge will make another
assessment, which regardless of their inclination must be based on the merit of
the arguments as presented in relation, not on whether either side lives up to
it's pr. sco will get more time to develop their case and the uncertainty will
hang out their. Why the heck IBM didn't just buy them in the first place I don't
know. How much better is that than this mess. Even if it is cheaper in the end
which I doubt. It is certainly costing linux business for ibm, so it is not just
the court cost. If I were looking at enterprise linux then HP, and Sun have a
lot more appeal even if their indemnification is meaningless--it means something
to me if I have even token protections.

--jfl

sorry this is anonymous. I have enough accounts/passwords--I don't need more.
(ianal, blah blah)

[ Reply to This | # ]

Easter Holidays
Authored by: tgf on Wednesday, March 03 2004 @ 09:42 PM EST
I wonder if SCOG will remember that the Easter Holidays occur within the 45 days, just like the Christmas Holidays did last time?

Seriously, I beg to disagree with the notion that IBM will not give their main response to SCO until the last minute, but this is to do with the other memoranda mentioned in the motion:

In light of the Court's order granting SCO's motion to file an amended complaint, and IBM's answer to SCO's second amended complaint, the Court hereby orders:

Both SCO and IBM are to file additional memoranda with the Court addressing the impact, if any, of the second amended complaint and IBM's subsequent answer on IBM's Motion to Strike the 5th, 15th, and 19th Affirmative Defenses asserted by the SCO Group in its Answers to IBM's Amended Counterclaims. Because this is IBM's motion, IBM is to file its intial memoranda with the Court within 60 days of the entry of this order. SCO will then have 15 days to respond to IBM's filing. IBM will have 7 days following SCO's response to file a reply. Following the additional briefing, the Court will contact the parties to schedule a hearing regarding IBM's motion to strike SCO's affirmative defenses.

Now, I cannot really see why IBM would need or even want their initial 60 days. Surely they could turn that around in 35 days (they've probably already written it anyway). That would reach SCOG just before Easter, but they would have to reply to it only 5 days after the main 45 day deadline. IBM wouldn't have any problem with their 7 day follow-up, whenever SCOG managed to reply.

Meanwhile, IBM would start to really push the discovery information on SCOG around about the Easter Weekend (do you get any public holidays then?), with most of the AIX code just after, eg about the Tuesday.

SCOG would end up so snowed down with paperwork, they wouldn't be able to cope. Not only would thy have their original discovery information, they'd also be trying to amend that with anything they think they might find in AIX, whilst also figuring out what affidavits they need to submit and replying to IBM's new motion.

This could be fun, even if IBM do delay their motion until after the main 45 days.

Tim

---
Oxymoron of the day:
Trusted Computing

[ Reply to This | # ]

OT? SCO uses and sells GCC
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:43 PM EST
Could someone please explain why SCO can continue to use and sell GCC in Open
Server and their other products.

[ Reply to This | # ]

Judge Wells' Order - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 10:27 PM EST
". Pursuant to Rule 26(b), SCO should use its best efforts to obtain
discovery from the Linux contributions that are known to the public, including
those contributions publically known to be made by IBM."

In other words, just go to the Linux source code that you have been saying
publically for a year that you found a million lines of your code in.

[ Reply to This | # ]

Judge Wells' Order - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 10:51 PM EST
"3.SCO is to provide and identify all specific lines of code from Unix
System V from which IBM's contributions from AIX and Dynix are alleged to be
derived."

This is exactly what IBM said in the hearing. SCO said "this is derivative
code" and IBM said "What Unix code is it derived from?"

This means the judge has rejected SCO's definition of derivative code and
accepted IBM's. And that means SCO has in effect already lost its lawsuit,
unless it is able to come up with some more and much better code.

[ Reply to This | # ]

Judge Wells' Order - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 10:54 PM EST
"3. IBM is to provide documents and materials generated by, and in
possession of employees that have been and that are currently involved in the
Linux project."

I have read that IBM has, among other things, 250 programers working full-time
on the kernel. How many semi's full of documents is this going to be for SCO to
look through? And of course, it is quite doubtful they will come up with
anything useful to them at the trial. I wonder if they will even bother to
really look.

[ Reply to This | # ]

Judge Wells' Order - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 11:05 PM EST
The footnote at the bottem, where is it in the body of the text?

[ Reply to This | # ]

Judge Wells' Order - IBM production
Authored by: Anonymous on Wednesday, March 03 2004 @ 11:34 PM EST
A couple of folks here have been disturbed by IBM having to produce requested
AIX and Dynix code at any level. Judge Wells actually, IMO, sped things up at
this juncture by telling IBM to go ahead and produce what IBM said it was ready
to produce anyway. This way, SCOG can not complain that they were not allowed
discovery. Remember, it's a balancing act to speed the trial AND to be fair and
impartial, allowing both sides sufficient latitude as to not appeal any
decision.

Once they've had their dip in the well, so to speak, it'll be interesting to see
what motions for declaratory judgement come forth. IANAL, but I think Judge
Wells actually did "the right thing" here from a legal standpoint,
although I too was not initially happy with the order lifting the stay. If that
had been kept in place, and SCOG _does_ provide the information in discovery,
then there would be yet ANOTHER delay while IBM was given time to provide
discovery responses.

So, all in all, I'd say Judge Wells is on track, and although it may not appear
as such, probably has safely moved this forward rather than creating additional
delay.


...D

[ Reply to This | # ]

IBM's 4th order
Authored by: IMANAL on Thursday, March 04 2004 @ 12:10 AM EST
Am I wrong in seeing the courts' order dripping with sarcasm, requesting
material from IBM's ' "ambitious Linux strategy" '. Yes, they used the
quotes as it was a quote from an article by Steve Lohr in NY Times March 2000.

Where did they get hold of that?! Has that particular article been mentioned by
SCO (or anyone else) in this case before? Or, did they do research on their
own?! If so, is that allowed?

[ Reply to This | # ]

Item #5
Authored by: reuben on Thursday, March 04 2004 @ 12:15 AM EST
Item #5 is terrific: SCO has to identify with specificity exactly to whom they
have revealed the code in question, when, and under what terms. I will be
sorely disappointed if their response doesn't include "User reuben over at
Groklaw, Linux-2.4.21 kernel sources, March 3, 2004, the GPL." SCO must
really think I'm special to give their IP to me for free! They wouldn't do that
for just any anonymous person on the internet, would they? And since they like
me so much, I'm sure they will remember me personally when it's time to fulfill
this order. I can't wait to see my name in the filing!

[ Reply to This | # ]

  • Item #5 - Authored by: gressil on Thursday, March 04 2004 @ 04:41 AM EST
Judge Wells' Order - annotated
Authored by: LionKuntz on Thursday, March 04 2004 @ 04:18 AM EST
The Court having heard argument, having read the parties' memoranda, having considered relevant case law, and finding good cause shown, hereby enters the following Orders:

I. SCO

Plaintiff/Counterclaim-Defendant is hereby ORDERED:

1. To fully comply within 45 days of the entry of this order with the court's previous order dated December 12, 2003. This is to include those items that SCO had difficulty in obtaining prior to the Court's previously ordered deadline of January 12, 2004.

2. As previously ordered, SCO is to provide and identify all specific lines of code that IBM is alleged to have contributed to Linux from either AIX or Dynix. This is to include all lines of code that SCO can identify at this time.

3. SCO is to provide and identify all specific lines of code from Unix System V from which IBM's contributions from AIX and Dynix are alleged to be derived.

Paragraphs 2 & 3: SCO, beginning now, without receipt from IBM of anything before 45 days from now, must identify what is theirs specifically, that they presently know about, that moved from AIX or Dynix to Linux. The judge is asking to see on what evidence they made their lawsuit. What did they know when the suit was filed.

SCO is ordered to identify all specific lines of code in Linux in dispute. What did they know before discovery? On what basis did they file the complaint.



4. SCO is to provide and identify with specificity all lines of code in Linux that it claims rights to.

5. SCO is to provide and identify with specificity the lines of code that SCO distributed to other parties. This is to include where appplicable the conditions of release, to whom the code was released, the date and under what circumstances such code was released.

There is no wiggle-room. SCO, known to the judge as a creator of distributions of Linux, is presumed totally familiar with Linux source code. It should be able to recognize its own "private property".

Further, SCO is known to the judge to have distributed Linux. IBM asked for, and got word-for-word, this order: SCO must identify every line of Linux code it distributed, who the customers were, and what the distribution licence was. There is no wiggle-room. There are two cases: SCO's orginal case, and IBM's countersuit. This order particularly pertains to IBM's discovery rights in its countersuit.



II. IBM In light of what the court considers SCO's good faith efforts to comply with the Court's prior order, the Court lifts the discovery stay it previously imposed.

Unlike partisans for one side or the other, SCO is given the benefit of the doubts over its Christmas Holiday failures. The judge is staying out of the case merits, as we expect any judge to do.



[snip citations]

Based on the Court's decision to lift the discovery stay and because relevance should be construed broadly at the discovery stage, IBM is hereby ORDERED:

1. To provide the releases of AIX and Dynix consisting of "about 232 products" as was represented by Mr. Marriott at the February 6, 2004 hearing. The releases are to be provided within 45 days of the entry of this order. Following the production, SCO is to provide additional memoranda to the Court indicating if and how these files support its position and how they are relevant. The memorandum is to include with specificity, and to the extent possible, identification of additional files SCO requests and the reasons for such requests. The court will then consider ordering IBM to produce more code from AIX and Dynix. See American Medical Systems, Inc. v. National Union Fire Ins. Co., 1999 WL 562738, p. 2-3 (ordering a party to first "procure relevant documents" and then reconsidering the discoverey request for the production of more documents).

Because IBM was generously willing, and unprotesting, about release of the "232 products", the judge gave them to SCO. At any time after production SCO can use them in additional memoranudum, providing incentive for IBM to delay as long as possible, but IBM is bound to their initial 10 working days claim at the earlier hearing, so it does not look "in good faith" for them to delay longer. This gives SCO plenty of time to pour through them and craft responses.

SCO can rush back with the "15th rung of the ladder" from AIX/DYNIX, or the "smoking gun" if it finds it, and SCO can ask for the rest it had asked for. It can ask -- no promises made.



2. Pursuant to Rule 26(b), SCO should use its best efforts to obtain discovery from the Linux contributions that are known to the public, including those contributions publically known to be made by IBM. IBM, however, is ordered to provide SCO any and all non-public contributions it has made to Linux.

SCO has been told the "Open Source" is "Open" -- go look. IBM is told "if Open Source is not as completely Open as advertised, than you better come clean before I find out about it from someplace else".



3. IBM is to provide documents and materials generated by, and in possession of employees that have been and that are currently involved in the Linux project.[1] IBM is to include materials and documents form executives including inter alia, Sam Palisano and Irving Wladawsky-Berger. Such materials and documents are to include any reports, materials or documents from IBM's "Ambitious Linux Strategy." Steve Lohr, A Mainstream Giant Goes Countercultural; I.B.M.'s Embrace of Linux Is a Bet That It Is the Software of the Future, N.Y. Times, March 20, 2000, Business/Financial Desk. The Court finds these materials are relevant because they may contain information regarding the use or alleged misuse of source code by IBM in its contributions to Linux.

Judge is saying "I'd like to read these, fetch me copies. Oh, and xerox copies for SCO too."



5. IBM is ordered to provide further responses to SCO's interrogatory numbers two, five, and eleven. These responses are to include relevant information from all sources including top level management.

6. SCO seeks the proper indentification of approximately 7,200 potential witness[es] identified by IBM. IBM in its memoranda suggested that the parties might be able to reach some sort of agreement as to the most important prospective trial witnesses and then IBM would provide the full contact information for these individulas. The Court orders IBM to properly identify a representative sample of the potential witnesses that is to include a 1000 of the most important prospective trial witnesses as agreed upon by SCO and IBM. Following the production of this information, the Court will consider the need for the proper identification of additional witnesses.

SCO is given this "gift" of one last chance to make a case, if it cannot make one based on open source and its own source code. This is a "show of impartiality", because the judge has informed herself of what the GPL is by now. The order to show lines SCO published in its own Linux distribution is self-evident that the judge is looking for some out-of-the-blue "Butterfield revelation" to make this case interesting. [Butterfield was the Nixon aide who mentioned during congressional hearings, that the president had a secret taping system in the Oval Office -- the famous "Watergate Tapes" that nobody knew about. Somebody blurting out incriminating evidence like that in depositions is what SCO is hoping for, as well as probably a truly bored judge.]



III. Both parties

At the hearing on February 6, 2004, SCO represented that IBM failed to provide source logs that identify how documents were kept in the ordinary course of business pursuant to Rule 34(b). The Court orders both SCO and IBM to provide source logs according to Rule 34(b) for those materials produced in discovery.

Both SCO and IBM are to provide to the court an affidavit detailing their respective efforts in complying with this order. Those affidavits should also contain a statement that the respective answers and materials provided are given to the best of each parties' knowlege and are complete, detailed and thorough.

Affivadits are sworn under oath, and false statements are criminal perjury. Judge is telling the parties, don't play games: there's prison-time ahead for game players. The stakes are high (billions of dollars) -- lawyers too will be more than disbarred for hanky panky.



In light of the Court's order granting SCO's motion to file an amended complaint, and IBM's answer to SCO's second amended complaint, the Court hereby orders:

Purely procedural matter. SCO added copyright violations. IBM posed no objections. Judge added the copyright issue.



Both SCO and IBM are to file additional memoranda with the Court addressing the impact, if any, of the second amended complaint and IBM's subsequent answer on IBM's Motion to Strike the 5th, 15th, and 19th Affirmative Defenses asserted by the SCO Group in its Answers to IBM's Amended Counterclaims. Because this is IBM's motion, IBM is to file its intial memoranda with the Court within 60 days of the entry of this order. SCO will then have 15 days to respond to IBM's filing. IBM will have 7 days following SCO's response to file a reply. Following the additional briefing, the Court will contact the parties to schedule a hearing regarding IBM's motion to strike SCO's affirmative defenses.

IBM countersued SCO. SCO made defences. IBM asked the court to strike these specified defences, having to do with copyrights. SCO added copyrights in its amended complaint, which IBM did not oppose. Judge asks IBM does it still have the original objections, or does IBM want to rewrite them to take into account the new copyright complaints of SCO.



[1] Although not part of SCO's official written motion, SCO raised these discovery issues at oral argument and also alleged in its written memoranda that IBM failed to adequately respond to interrogatories and document requests that are the subject of these discovery items.

Dated this _3rd_ day of March, 2004.

BY THE COURT:

__[sig: Brooke C. Wells]__
BROOKE C. WELLS
United States Magistrate Judge

"[1]" This is a footnote that goes with order numbered 3 to IBM above.


[ Reply to This | # ]

Judge Wells' Order - as text
Authored by: Electric Dragon on Thursday, March 04 2004 @ 05:53 AM EST
The Steve Lohr article mentioned in the order relating to SCO's request for the Palmisano emails can be found here: IBM Goes Countercultural with Linux. It's about how IBM made its decision to become a big Linux supporter. A paragraph that attracted SCO was probably this one:
So IBM would love to drive the profit out of the operating systems business of its rivals -- just as Microsoft did to Netscape, the browser pioneer, by giving browsing software away free. "The operating systems wars of today are the equivalent of the browser wars of a few years ago," said Scott Hebner, an IBM software executive. "The operating system is not where the value is."
which (in SCO's eyes) ties in nicely with SCO's "waaaah waaaaah they've got a better product than us and they're giving it away! Please make them stop!" theory.

[ Reply to This | # ]

Rule 34(b)
Authored by: mossc on Thursday, March 04 2004 @ 08:48 AM EST
At the hearing on February 6, 2004, SCO represented that IBM failed to provide source logs that identify how documents were kept in the ordinary course of business pursuant to Rule 34(b). The Court orders both SCO and IBM to provide source logs according to Rule 34(b) for those materials produced in discovery.

What is rule 34(b)?

Does this mean that TSG/SCO and IBM have to show how they tracked their source code revisions?

seems like this could be a killer point, what happens if TSG/SCO has no good records of file revisions, who it was released to and under what terms?

hard to make any case without good records.

Chuck

[ Reply to This | # ]

  • Rule 34(b) - Authored by: Anonymous on Thursday, March 04 2004 @ 10:12 AM EST
SCOG may have just Butterfielded themselves -- Halloween 10 is out, purportedly a leak from SCOG
Authored by: CnocNaGortini on Thursday, March 04 2004 @ 11:08 AM EST
Just spotted this (yes, I sometimes look at /. too): http://www.opensourc e.org/halloween/halloween10.html: it is introduced by the Halloween editor (ESR?) with

Excuse me, did we say in Halloween IX that Microsoft's under-the-table payoff to SCO for attacking Linux was just eleven million dollars? Turns out we were off by an order of magnitude — it was much, much more than that.

The document below was emailed to me by an anonymous whistleblower inside SCO. He tells me the typos and syntax bobbles were in the original. I cannot certify its authenticity, but I presume that IBM's, Red Hat's, Novell's, AutoZone's, and Daimler-Chryler's lawyers can subpoena the original.

[ Reply to This | # ]

best efforts
Authored by: m_si_M on Thursday, March 04 2004 @ 12:29 PM EST
One question: What are "best efforts" in a legal sense?
It seems to me this is a catch-all clause. On which grounds will be judged if
someone used its best efforts?
If SCO doesn't follow the order, by any reasons it may invent, but says:
"We couldn't comply, because [let's say] we're short of manpower, but used
our best efforts", what would be the consequences?

---
C.S.

[ Reply to This | # ]

I have a doubt...
Authored by: Anonymous on Thursday, March 04 2004 @ 05:45 PM EST
I am not sure that number 5 says what everything seems to think it says. Please
note that in numbers 2-4 the judge clearly uses the word “ALL”. However, in
number 5, that word is missing. It only reads “the code they distributed”.

Couldn’t this be interpreted to mean that SCO only has to show the specific code
that Caldera contributed to the Linux kernel? In other words, couldn’t SCO
simply show whatever they specifically gave to Linus and then subsequently sold
to their customers, and NOT provide anything else in the kernel (which includes
the code in dispute)? I am no lawyer, but I think this order could easily be
interpreted this way, and SCO will still not admit that they have released the
entire kernel under the GPL.

I want to believe that SCO will now have to show that they have been
distributing the entire kernel under the GPL including any alleged infringing
code. But if I can interpret the judge’s order this way, you can bet that Boies
and Company will definitely read it this way and still show the minimum amount
of code possible without admitting anything.

Which means IBM and SCO will have to go through another round of motions and
appeals and other mumbo jumbo and drag this case out forever…

Gary

[ Reply to This | # ]

Judge Wells' Order - as text
Authored by: SRatkowski on Saturday, March 06 2004 @ 12:01 AM EST
I think Items 3 and 4 in the order to SCO will finally, finally nail the coffin shut: they finally have to connect the dots between SysV -> AIX -> Linux in #3, and in #4 they have to fess up to what they claim to own in Linux!!!! We will at last be able to see what they have been smoking, and get the hounds of history to demonstrate the provenance of the code SCO points to.

---
Reality is for those who can't handle Science Fiction....

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )