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
SCO's Memorandum in Support of Renewed Motion to Compel - as text
Monday, July 12 2004 @ 11:07 AM EDT

Here is SCO's MEMORANDUM IN SUPPORT OF PLAINTIFF'S RENEWED MOTION TO COMPEL as text. You can also read Judge Kimball's Order, giving them permission to file this overlength memorandum.

This is an odd document, from where I'm sitting, meaning I'm not privy to all the inner workings of what is going on. They seem to me to be asking for things the court didn't order (like unfettered access to IBM's Configuration Management Version Control) and then painting it that IBM failed to produce what the court didn't order, or they are asking for things that IBM has already told them they don't have, like emails from IBM executives like Wladawsky-Berger to the company saying, "Hey everyone, don't forget our Linux Strategy is to destroy SCO's business and violate all our licenses in every way possible and I'm putting this in an email, which I will carefully preserve forever, so they can sue us later and win".

Most sophisticated companies nowadays have email policies and don't retain even key business records emails, let alone bombs like SCO seems to want to find, and if they've ever been sued in the past or have read about companies being forced to turn over all email, they really don't retain them, unless they are a financial house and are required to by law for designated periods, or they have already been sued. Microsoft, for example, says it has a company policy for management of email. At least they have one now, post the embarrassing emails that showed up in the antitrust case.

This study says only 35% of all firms do retain business email. Lotus Notes is even set up so you tell the application how long you wish to retain email. So the odds of any such smoking email existing are virtually nil, even if one ever did. If you were a business, and you knew there were SCO types in the world who might throw a dart on a map and sue you someday for no apparent reason, would you have your employees retain every last stupid email for years and years and years? Or would you have a policy or habit of just deleting whatever wasn't needed on a periodic basis? And then, years later, when a SCOtype shows up asking for your email, you honestly don't have it. They will then tell the judge you are a liar, being SCOtypes, but if you honestly don't have any email to turn over, you honestly don't have any email to turn over. Name calling won't change that.

Even when there is no official email policy, humans vary in their tastes and habits. I have a relative who deletes all email every day, unless it is something truly vital. He's a very neat person in all areas of his life. And then there are other executives who just don't use email in the first place. They don't trust it. I know lots of lawyers who won't. I've heard President Bush won't use email. David Boies himself has been reported in the media to be a guy who, at least up until 2000, didn't use email. And there are executives who used to use email, but due to spam decided it isn't worth it and gave it up.

But no, SCO is positive those emails exist and they insist they must have them or a sworn statement that they don't exist. They are calling IBM liars, just not in so many words. There is a singular lack of courtesy in this document.

Perhaps SCO is playing to the peanut gallery, the media, hoping to look tough and threatening, like in the good old days when every threat made the stock go to the moon. Or maybe the true purpose is in footnote 9 -- they have to portray IBM as not turning things over so they can block IBM's summary judgment by claiming they need more time to do discovery.

All they can get is more time, but as Bogey's last request -- to be married to "the little lady" -- before being hanged in "The African Queen" demonstrates, sometimes time is enough. You could get lucky. The ship could suddenly be torpedoed and you find yourself swimming happily away, just you and Katherine Hepburn, while all the bad guys on the boat with you sink like stones into the deep. Wait. That's just a movie. That doesn't happen in real life. Sorry, SCO.

You will see in the first sentence of this document that SCO is filing the Memorandum pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure:

"(2) Sanctions by Court in Which Action Is Pending.

"If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

(E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination.

"In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust."

So, as you can see, there are sanctions for not obeying a discovery order, naturally, but the law is written for law-breakers, and by lawyers, who weren't born yesterday, so it's written in such a way that the judge can penalize either side, SCO for bringing a Rule 37 motion if it ends up being denied, or IBM if the judge believes SCO's tale of woe, or both, or nobody, as you can see in the Expenses and Sanctions section of Rule 37, 37(a)(4).

A big thank you this time to Totosplatz, eddsouza, Rich Clark, Devin Randall, iceworm, and eggplant37 for so quickly doing the text version and then the HTML.

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

Brent O. Hatch (5715)
HATCH, JAMES & DODGE, PC
(address, phone & fax)

Robert Silver, Esq. (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER, LLP
(address, phone & fax)

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER, LLP
(address, phone & fax)

Attorneys for Plaintiff The SCO Group, Inc.

____________________________

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.

___________________________________

MEMORANDUM IN SUPPORT OF
PLAINTIFF'S RENEWED MOTION
TO COMPEL

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

___________________________________

Plaintiff, The SCO Group, Inc. ("SCO") files this Memorandum in Support of its Renewed Motion to Compel pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure.

I. IBM HAS FAILED TO PRODUCE ORDERED DISCOVERY

On June 24, 2003, SCO propounded its First Requests for Production of Documents and First Set of Interrogatories to IBM (collectively, the "SCO Discovery"). These requests sought the basic elements of discovery, such as the identity of potential witnesses, basic agreements, source code and relevant correspondence. [1] IBM served its responses to the SCO Discovery in August 2003. IBM interposed numerous objections that led to a lengthy meet-and-confer process, which produced continuing disagreement, but also an agreement by IBM to make a further production. After months went by, however, IBM did not provide additional discovery responses, forcing SCO to move to compel to obtain basic foundational discovery ("SCO's Motion").

This Court heard argument on SCO's Motion on February 6, 2004, and on March 3, 2004, entered its Order Regarding SCO's Motion to Compel Discovery ("March 3rd Order" (attached as Exhibit "A")). Granting SCO's Motion in part, this Court ordered IBM, among other things, to:

(1) "provide further responses to SCO's interrogatory numbers two, five and eleven. [2] These responses are to include relevant information from all sources including [IBM's] top level management" (March 3rd Order ¶ 5);

(2) provide "documents and materials generated by, and in possession of employees that have been and that are currently involved in the Linux project. 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." (March 3rd Order ¶ 3); and

(3) "properly identify . . . 1000 of the most important prospective trial witnesses as agreed upon" from IBM's list of 7,200 potential witnesses (March 3rd Order ¶ 6).

IBM has failed to provide the responses as required by the March 3rd Order. As set forth below, this Court should direct IBM to immediately comply with the Court's prior Order.

A. IBM has Not Produced Documents from its Top Level Management.

In response to the Court's March 3rd Order, IBM represented that it had produced "all non-privileged responsive documents, including those from the files of Sam Palmisano and Irving Wladawsky-Berger." [3] In fact, IBM produced only limited documents from Mr. Palmisano's files, no documents from Mr. Wladawsky-Berger's files, and no documents from individual members of the Board of Directors.

As to Mr. Palmisano, IBM has produced an extremely limited set of materials, but clearly not all relevant responsive information. For example, IBM did not produce any substantive e-mails from Mr. Palmisano's files. Mr. Palmisano is the former Senior Vice President in charge of IBM's server business, and is now IBM's Chief Executive Officer and Chairman of the Board. IBM has publicly proclaimed Mr. Palmisano as the person who spearheaded IBM's strategy to shift towards Linux as IBM's operating system of choice. Mr. Palmisano is the head of one of the most powerful computer companies in the world, and the notion that he does not regularly use e-mail simply strains credulity. Mr. Palmisano should have hundreds or thousands of e-mails (both sent and received) directly related to the IBM Linux initiative for which he is now famous.[4]

Yet IBM has not produced a single substantive e-mail from the files of Mr. Palmisano. Instead, IBM's production from Mr. Palmisano's files is comprised of PowerPoint presentations and a few "Linux Strategy Updates." Conspicuously absent, however, is anything specific to Mr. Palmisano himself: any e-mails, notes, memos, correspondence, or other documents authored, edited, or received by Mr. Palmisano.[5] Such a void is inexplicable, given that Mr. Palmisano is credited as the primary person behind IBM's drive towards Linux and was publicly identified as the mastermind behind IBM's monumental shift in corporate strategy.

Even worse, IBM has failed to provide any documents from the files of Mr. Wladawsky-Berger, allegedly IBM's "Linux czar", see New York Times article, p.3 (attached as Exhibit "D"), stating by letter dated April 26, 2004 (attached as Exhibit "E") that no responsive documents were found. That means that IBM has not been able to locate a single e-mail, letter, hand-written note, diary or calendar entry, memo or other document responsive to SCO's discovery requests from its "Linux czar" about Linux. The same New York Times article cited above describes Mr. Wladawsky-Berger as having sent e-mails to top technology executives regarding the rise of Linux. The statements in the article cannot be reconciled with IBM's representations to this Court and SCO that no such documents exist. SCO should not have to move to compel, two times, to obtain such basic documents and information.

In addition to its failure to provide Court ordered discovery regarding the two individuals described above, IBM has not produced any documents from its Board of Directors. After IBM demanded that SCO retrieve documents from all of SCO's top officers and directors, SCO promptly provided the requested discovery. IBM failed to do the same. SCO raised IBM's failure with the court and, and the Court ordered IBM to produce the documents from top management, which clearly includes its Board. IBM has failed to produce those relevant documents.

IBM has also failed to produce any of the requested Board minutes, Board packages, or other materials - all of which fall within the parameters of this Court's March 3rd Order requiring production from IBM management. Instead, IBM has offered a mere 29 pages from its Board of Directors' files, implying that this is the entirety of responsive discovery from the Board. If that implication were correct, it would mean that IBM has effectuated a massive multi-billion dollar world-wide business plan without IBM's Board addressing the matter even once, so as to generate even a single set of Board minutes. Although it is theoretically possible that a Board as distinguished as IBM's never discussed an initiative that IBM told the world was as important as its Linux initiative apparently is, the more reasonable conclusion is just the opposite.

Accordingly, SCO respectfully asks the Court to order IBM to comply with the March 3rd Order by providing the full files of Palmisano, Wladawsky-Berger, IBM's Board, including Board minutes, Board packages, and other relevant Board materials, and all other documents relevant to SCO's requests that this Court previously Ordered be produced, and that SCO originally requested on June 24, 2003. Alternatively, if IBM continues to take the position that no responsive documents exist, the Court should order IBM to provide certifications from Palmisano, Wladawsky-Berger, and the members of IBM's Board, stating that they have no relevant e-mail files, Board minutes, Board packages, or other Board materials that address issues relevant to this case.

B. IBM Failed Properly to Supplement Interrogatory Number 5.

Again in response to SCO's Motion to Compel, the Court ordered IBM to "provide further responses to SCO's interrogatory numbers two, five and eleven." Ex. A, March 3rd Order at ¶ 5. SCO's Interrogatory 5 sought the identity of "IBM or Sequent personnel that work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux, specifying for each person their precise contributions to each." Rather than providing the requested information, IBM referred SCO to its earlier produced list of approximately 7,200 names (with no identification of who these individuals were, what they worked on, when they worked for IBM, or their contact information) [6]and stated that, to the extent readily determinable, the contributions of these persons can be discerned in the cases of AIX and Dynix in the "products themselves." See IBM's Second Supplemental Responses and Objections to SCO's First Set of Interrogatories at 6 (attached as Exhibit "F"). That statement is not accurate and is not in compliance with the Court's Order which required IBM to respond fully to Interrogatory 5.[7]

AIX, contrary to IBM's representations, does not contain information identifying the contributions of the thousands of persons listed in IBM's answers. A representative file of AIX code proves this point. See AIX file (filed under seal as Exhibit "G"). Neither this file, nor any of the thousands of AIX files reviewed by SCO, specifies the contributions of any of the 7,200 named individuals. In fact, the AIX product does not appear to identify any of the authors of the code, much less what each person contributed.

IBM is fully capable of producing the requested information in a readily accessible format. Indeed, IBM stores all of the information regarding the precise contributions of each person to AIX in a system known as Configuration Management Version Control ("CMVC").[8] IBM has not provided SCO access to CMVC or to the information contained therein. IBM's refusal to provide this basic information severely prejudices SCO's prosecution of its claims and SCO's defense of IBM's counterclaims. [9] Had IBM properly answered this request a year ago, when required, SCO would have known the precise contributions of each person to AIX, which in turn would have allowed SCO to take depositions of significant authors of AIX, which in turn would have provided direct evidence relating to the heart of the claims at issue in this case.[10] Since IBM now has twice not complied with its discovery obligations, SCO asks the Court to order IBM to give SCO full access the CMVC system so SCO finally can derive the requested information.

IBM's claim that SCO can find the contributions of individuals to Dynix by looking at Dynix files is also inaccurate. While, AIX does not provide any information about the precise contributions of individuals, Dynix provides extremely limited information, but not enough to comply with the March 3rd Order and be fully responsive to SCO's interrogatories. Attached is a file from Dynix that again illuminates the deficiency in IBM's response. See Dynix file (filed under seal as Exhibit "H"). As shown by this representative file, the precise contributions of each person to Dynix are not set forth. For example, on page 1, under the heading for the most recent revision, Revision 1.38, it simply states, "[a]dded code to help to trace RC_RDPROTECT() and RC_RDUNPROTECT() code", which was done by "rem". This does not indicate who "rem" is, or what code "rem" added, deleted, or revised, or how he or she specifically contributed to Dynix.

A recent deposition of a former Sequent employee, David Rodgers, confirms that it is impossible to determine the requested information in Interrogatory 5 by simple reference to the Dynix code itself. Mr. Rodgers testified that identifying individuals' precise contributions to a project solely by reviewing the code is subject to the happenstance of whether a particular engineer was following protocol that day by including their name as an author or contributor. See Deposition of David Rodgers at pp. 118-120 (filed under seal as Exhibit "I").[11] To avoid this problem, Sequent maintained a system like IBM's CMVC that allows one to identify the precise contributions of each individual. That system is known inside Sequent (now part of IBM) as the Revision Control System ("RCS"). Id. Although both MCVC and RCS are specifically designed to keep track of who made changes to projects and what those changes were, IBM has not given SCO access to CMVC or RCS or to the information contained therein. Access to CMVC and RCS would provide the most efficient means for determining who worked on AIX and Dynix and what their contributions were. IBM admits that it uses CMVC and RCS for precisely that purpose. See IBM's CMVC Introduction Manual (filed under seal as Exhibit "J").

Although SCO has been seeking the information for more than a year, IBM now contends turning over information from the CMVC system would be burdensome as it could take "weeks" to get SCO the AIX information similar to that contained on CMVS. See IBM's Response to Memorandum re: Discovery at 17-19, dated June 23, 2004. [12] That is a peculiar argument as IBM has not hesitated from litigating these meritless discovery disputes for months. Had IBM spent the same amount of time gathering the information that it has now spent litigating its meritless discovery disputes, this motion would have been unnecessary. Of course, IBM makes no claim that it would be burdensome to allow SCO access to CMVC so SCO could perform its own searches.[13]

SCO should not have to renew its motion to compel to secure compliance with this Court's March 3rd Order. To ensure that SCO receives the information to which it is entitled, IBM should be ordered to give SCO unfettered access to CMVC and RCS, which systems are clearly relevant to SCO's claims, to SCO's defense of IBM's counterclaims, and to SCO's discovery requests.

C. IBM Has Failed to Produce Witness Contact Information.

In its March 3rd Order, the Court specifically required "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." March 3rd Order at ¶ 6. In its declaration proclaiming its complete compliance with this Court's March 3rd Order, IBM represented to the Court that it would "provide contact information for additional names as SCO requests such information, up to a total of 1,000 names." Declaration of Todd Shaughnessy at p. 4. IBM has failed to abide by the terms of the Court's Order and IBM's certification. Consistent with the March 3rd Order, SCO asked IBM to identify 134 individuals for which IBM possessed contact information.[14] IBM refused. SCO therefore seeks the Court's assistance in requiring IBM to comply with the March 3rd Order and the representations in IBM's certification and provide the requested contact information.

There is no good faith basis for IBM's refusal to provide this information, particularly when IBM identified these same individuals as witnesses from whom it had retrieved documents to support its case. It is rather incongruous to claim that these people have relevant information when IBM wants to collect it, but are not when SCO wants to find out what they know.[15] Despite the Court's Order to produce this contact information, IBM again refused, raising new arguments as to why it should not have to produce information in its possession. Given that the Court has already spoken on this matter, SCO respectfully suggests such arguments are simply the furtherance of dilatory tactics. SCO should not be forced to engage in an ongoing letter writing campaign to obtain valid discovery. IBM should provide all last known contact information for the 134 individuals referenced by SCO in its letters to IBM (see Exhibits K and L) and all future identified witnesses, as previously ordered by the Court.

II.IBM'S ONGOING PATTERN OF DISCOVERY ABUSE

Over one year ago, SCO served its discovery requests on IBM. Because those requests came early in the case, they sought the most basic types of discovery - the elements on which further discovery would be based and without which further discovery could not effectively proceed (e.g., names of witnesses, contact information, etc.). IBM's responses to these simple, foundational requests were incomplete and in many instances simply non-existent. SCO sought to resolve the matter with IBM, but found that this effort only resulted in further delay, ultimately leaving SCO no other option but to move to compel IBM to respond. On March 3, 2004, this Court granted SCO's motion and ordered IBM to comply, requiring IBM to provide specified discovery that IBM had refused to provide and to also supplement its deficient responses.

IBM, to date, has still failed to comply with the Court's Order. Over one year after propounding discovery requests of the most basic type, SCO has been forced to move to compel production not once, but twice, simply to secure discovery that IBM should have provided at the outset and that this Court has already expressly ordered.[16]

Until SCO receives from IBM the basic discovery requested, which the Federal Rules contemplate will occur at the outset of the case, SCO remains severely handicapped in that it cannot use such initial discovery as the basis for more targeted discovery. Discovery battles are common in civil litigation. The pattern evidenced here is not. IBM contends in virtually every paper it files that SCO has no case, and that SCO seeks simply to achieve delay. But a defendant confident that its adversary has no case -- and that wanted to avoid delay - would not force two separate motions to compel the most basic initial discovery (indeed that contemplated by Rule 26 should be produced without request) guaranteeing extraordinary delay, waste of judicial resources, and an unwarranted obstruction of a plaintiff's ability to develop its case. A defendant confident that its adversary has no case would not take every conceivable measure to ensure that it withheld even the addresses of its planned or potential trial witnesses, preventing its adversary from testing the defendant's case as the Federal Rules and this Court's Order explicitly require.[17] A defendant confident that its adversary had no case would not seriously contend that the CEO of one of the world's most prominent computer companies never used e-mail regarding what the company describes as a major strategic initiative towards Linux (from which it now receives billions per year in revenue), or that the company's Board never discussed that initiative.

A defendant with any confidence in its own case would never do any of these things or take equally indefensible steps that would block the ability of any plaintiff from developing its case under the framework of the Federal Rules. It is even more unlikely that a defendant with confidence in its case would do all of these things and at the same time try to convince the Court, as IBM did here, to close fact discovery within 44 business days by double tracking depositions before relevant document production has even been made to the plaintiff (and also adding 14 new counterclaims to a schedule that did not and could not have contemplated or made room to accommodate them).18 IBM did not prevail with that argument. [19]

IBM's conduct as set forth herein is just another part of IBM's overall strategy to hinder and delay SCO's prosecution of its claim. For example, as the Court is aware, IBM insisted on an accelerated deposition schedule and further insisted that there was "logic" to taking the first few depositions it had scheduled before it produced relevant discovery. At those depositions IBM attempted to "sandbag" SCO by making extensive use of affidavits it had obtained months earlier but which it never provided to SCO.[20] When SCO made a motion regarding this litigation by surprise tactic, IBM argued it should not have to provide before the depositions, declarations in its possession that it planned to use in the depositions. This Court rejected IBM's argument.

These are not the positions of a defendent that believes that its adversary has no case. These are extraordinary positions - positions calculated to ensure that even a plaintiff with a very strong case faces every possible hurdle and impediment. If IBM continues to fight its discovery obligations at every stage of discovery, either injustice will result or the case will go on forever. SCO seeks relief from the Court that will put an end to this extraordinary pattern so this case can proceed expeditiously. SCO has filed this renewed motion requesting that the court again order IBM to respond completely and properly to SCO's discovery requests as previously ordered by this Court.

III. Conclusion

Based upon the foregoing, SCO respectfully requests that the Court order IBM to provide immediate and complete responses to the SCO Discovery, including but not limited to full access to IBM's CMVC and RCS, full and complete production from top officers and directors at IBM, full and complete information regarding IBM's listed witnesses, and such other remedies the Court deems appropriate.

DATED this 6th day of July, 2004.

______signature__________
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stephen N. Zack
Mark J. Heise

Counsel for Plaintiff/Counterclaim defendant


[1] This is the type of information that IBM would be required to voluntarily produce pursuant to Fed.R.Civ.P. 26(a)(1). IBM's obligation to provide the same information with specificity is not relieved simply because the requests for that information come in the form of formal discovery requests.

[2] This reference to Interrogatory 11 apparently was a scrivener's error. At the time, SCO had propounded only five interrogatories. The Order presumably was intended to require a complete response to either Request for Production 11 or Interrogatory 4, which is the other interrogatory specifically addressed in SCO's original Motion to Compel.

[3] Judge Wells ordered IBM to provide an "affidavit detailing [its] efforts in complying with [the March 3rd] order and a "statement that [IBM's] answers and materials provided are given to the best of [their] parties' knowledge and are complete, detailed and thorough." (Ex. A, March 3rd Order at 6) On April 20, 2004, IBM submitted the Declaration of Todd M. Shaughnessy so certifying and the statement cited above is found in Mr. Shaughnessy's Declaration. As discussed herein, IBM's purported compliance with the Court's Order was not complete.

[4] The involvement of Messrs. Palmisano and Wladawsky-Berger in IBM's "ambitious Linux strategy" are well known. Attached is a sampling of quotes from news articles addressing the involvement and otherwise reporting the extensive involvement of these men in IBM's Linux initiative. See Exhibit "C."

[5] One e-mail was produced, but it is simply a request from Mr. Palmisano for someone to print a document.

[6] SCO believes this response by IBM can fairly be characterized as an abusive discovery response not designed to further the resolution of the case, but to obfuscate.

[7] IBM repeated this non-response response in the certification required by the Court's March 3rd Order. SeeEx. B, Declaration of Todd M. Shaughnessy at ¶ 4.

[8] This point was briefed in detail in SCO's Memorandum Regarding Discovery filed on May 28, 2004, at 15-16.

[9] What makes this all the more extraordinary is that IBM, having blocked discovery of this basic information for a full year, is now moving for summary judgment on a declaratory copyright claim that it only recently introduced into the case on March 29, 2004. The information sought in Interrogatory 5 is obviously relevant to SCO's defense of that counterclaim. IBM is blocking SCO's access to the facts while at the same time asking the District Court to find that there are no facts in dispute. In addition, IBM, to support its summary judgment motion, is now asking the District Court to disregard SCO's explanation of its need for more information even though IBM has refused to obey this Court's express directives.

[10] This is the type of information relevant to IBM's use of SCO material in breach of its contractual obligations. Evidence of breach requires a different factual inquiry than that under copyright laws. IBM has consistently endeavored to confuse the two in order to avoid discovery relevant to the contract claims.

[11] Q: Well, if I were to look at Dynix code, for example, how would I be able to determine the modifications of the System V semaphores that now appear in Dynix code?

A: The simplest answer is I don't know. The more complicated answer is if the software developer was being a good boy that day, they would have commented it.

Q: If I am trying to determine all of the instances of modifications, meaning either new or adaptations, in Dynix that came from System V and a developer was not being a good boy that day, how would I go about determining anything else that was modified or - modified from System V? (Objection to form omitted)

A: First, I would say that it would be an extremely difficult assignment because the modifications would have taken place over an extended period of time by many people. An approach that I would adopt if I were given that assignment is to see if I could recover the RCS logs. Sequent, like many companies, maintain[s] a source code system called RCS, and I would attempt to recover from some archival storage medium the RCS logs.

[12] IBM did not raise this "burden"argument in its brief, at the hearing that resulted in the March 3rd Order or in its certificate of compliance filed with the Court. IBM, however, makes no claim of burden concerning access to its RCS system for Dynix information.

[13] Even if IBM were correct in asserting that allowing SCO access to CMVS would take "weeks" (and that "burden" may be overstated) that is not a significant discovery burden when placed in the context of other burdens routinely born in cases significantly less complex than this one, and much less of a discovery burden than SCO has repeatedly born in this case. Moreover, IBM is aware, access to CMVS is needed by SCO for many purposes, not only for the identification of individuals sought in interrogatory 5. That storage system may well illustrate the extent of the dependence of IBM's program designers on proprietary Unix material, a matter that IBM has itself placed in issue with its recent counterclaims (on which it is now actually moving for summary judgment while simultaneously resisting discovery requests).

[14] SCO's request for information on 49 of the individuals was communicated by letter from Mark Heise to Peter Ligh, dated April 20, 2004 (attached as Exhibit "K"). At about that same time, IBM named 85 additional witnesses in IBM's Second Supplemental Responses and Objections to SCO's First Set of Interrogatories dated April 19, 2004. IBM, however, decided not to provide the contact information for the witnesses that were not current or former IBM employees, even though it possessed the information. SCO requested IBM to remedy its noncompliance and provide the contact information for these 85 additional witnesses by letter to IBM's counsel dated June 4, 2004. See letter from Mark Heise to Peter Ligh (attached as Exhibit "L"). By letter dated June 9, 2004, IBM claimed it was excused from producing the information because none of the individuals identified are presently affiliated with IBM. See letter from Peter Ligh to Mark Heise (attached as Exhibit "M"). In response, SCO pointed out that it was only seeking information that IBM had in its possession. Letter from Mark Heise to Peter Ligh, dated June 15, 2004 (attached as Exhibit "N"). IBM responded by claiming the request of SCO was now "unclear" and suggested that the contact information in its possession might be work product. Letter from Peter Ligh to Mark Heise, dated June 16, 2004 (attached as Exhibit "O"). Not wanting to engage in further protracted discussions, which simply work to delay IBM's production of the Court-ordered information, SCO simply noticed that IBM is under orders to provide this information and SCO expects IBM to comply. Letter from Mark Heise to Peter Ligh, dated July 6, 2004 (attached as Exhibit "P").

[15] The failure to provide identification information is not only a violation of the March 3rd Order, but is violative of Rule 26(a)(1) as well. Rule 26(a)(1) requires that a party provide "without awaiting a discovery request . . . the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information." Fed. R. Civ. P. 26(a)(1)(A)(emphasis supplied). Rule 26(e) requires that this information be supplemented to the extent necessary to keep it complete and up to date. Fed. R. Civ. P. 26(e).

[16] IBM will no doubt argue that part of the delay is due to the Magistrate's stay of discovery for three months. IBM continually attempts to recast the Magistrate's stay in a manner that places the blame for the stay on SCO when the Magistrate clearly had simply ordered SCO to go first, stating that it was "essential to get the ball rolling in this circumstance." Transcript of Hearing, December 5, 2003 at 5-6 (attached as Exhibit "Q"). The March 3rd Order also states that IBM must produce documents that it failed to produce. None of this answers why now, months after the stay has ended, IBM still has not provided SCO with basic discovery and has not otherwise complied with the Court's Order.

[17] A defendant confident that its adversary had no case would not delay for nearly a year before providing even a single version of AIX - a program at the center of the case - a version which IBM did not and could not dispute it was obliged to provide, and a version IBM did not produce until the Court ordered its production.

[18] See IBM's Memorandum in Opposition to SCO's Motion to Amend the Scheduling Order at 8 ("IBM believes that the current schedule provides sufficient time to complete discovery on both SCO's claims and IBM's counterclaims well in advance of the anticipated trial date.")

[19] If IBM's history of ignoring discovery obligations and Court orders continues, the Court will be forced to confront the same trial scheduling issues that were the subject of the hearing on June 8, 2004.

[20] Of note, IBM's plan backfired when its first and lead witness turned out to have had multiple insurance fraud convictions, drawing into question the veracity of his testimony.


CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, hereby certifies that a true and correct copy of it MEMORANDUM IN SUPPORT OF PLAINTIFF'S RENEWED MOTION TO COMPEL was served on Defendant International Business Machines Corporation on this 6th day of July, 2004, as follows:

BY HAND DELIVERY:

Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]

BY U.S. MAIL:

Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address}

Donald J. Rosenberg, Esq.
[address]

_______[signature]________


  


SCO's Memorandum in Support of Renewed Motion to Compel - as text | 254 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Mistakes and typos here please
Authored by: Anonymous on Monday, July 12 2004 @ 01:42 PM EDT

[ Reply to This | # ]

OT and other links here please
Authored by: Anonymous on Monday, July 12 2004 @ 01:43 PM EDT

[ Reply to This | # ]

SCO's Memorandum in Support of Renewed Motion to Compel - as text
Authored by: Baldy on Monday, July 12 2004 @ 01:47 PM EDT
All I can say is

I look forward to seeing IBM's reply to this

And thanks to all those who did the typing.

[ Reply to This | # ]

Is there any hope that...
Authored by: Anonymous on Monday, July 12 2004 @ 01:52 PM EDT
...SCO will be punished, or more importantly the major players at SCO, for this
obvious abuse of the legal system concurrently going on in multiple states?

Will IBM dig deeper to exact punishment on the pupeteers bholding the strings?
As this case has worn on, I've become more and more sickened by this patently
obvious abuse of the legal system. SCO and it's masters are taking advantage of
a system that is inherently fair in it's process so as to not punish someone
unfairly, however they are using this system to try and punish others
unfairly...bah!

[ Reply to This | # ]

SCO's Memorandum in Support of Renewed Motion to Compel - as text
Authored by: Latesigner on Monday, July 12 2004 @ 01:52 PM EDT
So the judge can hang them for bringing this ?
I'm looking foreward to it.

[ Reply to This | # ]

The dishonesty of SCO
Authored by: Anonymous on Monday, July 12 2004 @ 01:55 PM EDT
This document of lies by SCO is obviously not meant to be taken seriously as a
legal document, but rather it is to be used as a means to legally slander IBM.

SCO has refused to provide the evidence asked for by the courts.

IBM needs tp think about civil slander suits against the documented lies of the
known liars at SCO.

gnutechguy99

[ Reply to This | # ]

SCO's Memorandum in Support of Renewed Motion to Compel - as text
Authored by: mossc on Monday, July 12 2004 @ 02:01 PM EDT
footnote 10
"This is the type of information relevant to IBM's use of SCO material in
breach of its contractual obligations. Evidence of breach requires a different
factual inquiry than that under copyright laws. IBM has consistently endeavored
to confuse the two in order to avoid discovery relevant to the contract
claims."

I'm stunned. I think TSG is using the tactic of accussing their opponents of
everything that they are guilty of.
Then when they say the same thing about TSG it sounds like it is just a petty
name calling instead of an accusation based on fact and court record.

Unfortunately for them the judges were party to the initial filings.....

[ Reply to This | # ]

They're lying about the record and even the court orders
Authored by: Anonymous on Monday, July 12 2004 @ 02:07 PM EDT
SCO MISREPRESENTING COURT ORDER, RE:INTERROGATORY 5

From SCO's motion
Again in response to SCO's Motion to Compel, the Court ordered IBM to "provide further responses to SCO's interrogatory numbers two, five and eleven." Ex. A, March 3rd Order at ¶ 5. SCO's Interrogatory 5 sought the identity of "IBM or Sequent personnel that work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux, specifying for each person their precise contributions to each." Rather than providing the requested information, IBM referred SCO to its earlier produced list of approximately 7,200 names (with no identification of who these individuals were, what they worked on, when they worked for IBM, or their contact information) [6]and stated that, to the extent readily determinable, the contributions of these persons can be discerned in the cases of AIX and Dynix in the "products themselves." See IBM's Second Supplemental Responses and Objections to SCO's First Set of Interrogatories at 6 (attached as Exhibit "F"). That statement is not accurate and is not in compliance with the Court's Order which required IBM to respond fully to Interrogatory 5.[7]


Well let's see what the court actually ordered about interrogatory 5:

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.


Hmm, it does say (as SCO says) that IBM was ordered to "respond fully to Interrogatory 5"



SCO MISREPRESENTING RECORD REGARDING REQUIRED IBM PRODUCTION

What about this one, where SCO says IBM should have identified the contributions to AIX of all authors:

IBM is fully capable of producing the requested information in a readily accessible format. Indeed, IBM stores all of the information regarding the precise contributions of each person to AIX in a system known as Configuration Management Version Control ("CMVC").[8] IBM has not provided SCO access to CMVC or to the information contained therein. IBM's refusal to provide this basic information severely prejudices SCO's prosecution of its claims and SCO's defense of IBM's counterclaims. [9] Had IBM properly answered this request a year ago, when required, SCO would have known the precise contributions of each person to AIX, which in turn would have allowed SCO to take depositions of significant authors of AIX, which in turn would have provided direct evidence relating to the heart of the claims at issue in this case.[10] Since IBM now has twice not complied with its discovery obligations, SCO asks the Court to order IBM to give SCO full access the CMVC system so SCO finally can derive the requested information.

If you remember SCO's motion to compel discovery, IBM was objecting to identifying all contributions on the grounds that SCO should first identify the particular areas at issue.

Here's what IBM said in opposition to SCO's motion to compel discovery (IBM 79):

SCO's request that IBM identify the precise contribution that each of these thousands of employees made to AIX or Dynix (over the decades of their development), however, is overly broad and unduly burdensome. AIX and Dynix are complex software programs, comprised of a myriad of files and individual lines of code, and parsing out exactly which individuals did what to every piece of code in the programs is a huge undertaking. It makes no sense to require IBM to chronicle the history of every line of code in AIX and Dynix, when very little (if any) of it will ever have anything to do with case. What makes sense, we submit, is for SCO to identify the particular lines of AIX or Dynix source code that IBM is alleged to have misused and for IBM then to provide SCO with the development history of that code to the extent possible.

...

IBM is not required to undertake a broad and burdensome effort to collect documents and information that may or may not be relevant to the case. See Leucadia, Inc. v. Applied Extrusion Techs., Inc., 755 F.Supp. 635, 637 (D. Del. 1991) (granting defendant's motion to postpone discovery until after defendant concluded its discovery regarding plaintiff's alleged trade secrets). [3] Nevertheless, IBM has proceeded with discovery as best it can based upon our understanding of SCO's allegations. Indeed, we have already collected and produced a significant quantity of documents and volume of information responsive to Document Request No. 11 and Interrogatory No. 5. [4]

IBM should therefore not be required to make any further disclosures of this kind until SCO provides specifics about its case. A party may only obtain discovery that is relevant to the claims or defenses in a lawsuit. See Fed. R. Civ. P. 26(b)(1). The only way to determine whether the information SCO seeks is relevant to this case -- and therefore subject to discovery -- is for SCO to do for IBM what it has long been doing for third parties: disclose its supposed evidence and tell us in a meaningful way what its claims are about. It is not possible properly to determine what is fairly discoverable without knowing more specifically what trade secrets or confidential information is at issue. Requiring IBM to provide the discovery SCO seeks would not only be unduly burdensome but it would also be counter to sound principles of case management, which require SCO first to define the scope of the case.

And what did Magistrate Judge Wells think about this argument?

In the transcript (IBM 89):

THE COURT: Before we do that, Mr. McBride, you know, tell me why the rulings in the cases of Utah Medical Products, decided, you know, from this District Court and the Leucadia versus Applied Extrusion Technologies case, decided out of the District of Delaware, should not apply to this circumstance which indicates that the burden is on the plaintiff to prove the existence of the trade secrets assuming that that's part of it, all right, and that it is appropriate to postpone discovery in those circumstances until such time as the plaintiffs have acknowledged what the trade secrets may be, and otherwise this Court cannot determine, as the other party cannot determine, what is relevant as to future discovery.

MR. MCBRIDE: Thank you. Yes. I will, Your Honor.

THE COURT: None of us know.

... MR. MARRIOTT: Sure, Your Honor.

Unless the Court wishes, I won't respond in full to SCO's motion to compel IBM except, Your Honor, to say this, IBM has produced what amounts to the equivalent of more than a million pages of paper. We have not refused to provide discovery. We have said the discovery must be tailored to the allegations in the complaint. We've provided the discovery that we think can fairly be provided in view of their allegations. We have provided Dynix code as of last night. We would have provided it earlier, Your Honor, but for the third party notice process that's required. We intend to provide AIX code to them. We intend to provide the code when the process of third party notification is compete.

[ Reply to This | # ]

SCO's Memorandum
Authored by: the_flatlander on Monday, July 12 2004 @ 02:30 PM EDT
I have to say, the SCOundrels put me in mind of OJ Simpson, tirelessly scouring
every golf course around LA for the *real* killer.

How many memos to or from members of the Board of Directors do you suppose
contain copyrighted source code?

Sam probably sent whole copies of Unixware out to his programmers to copy into
Linux. (Odd, though that none of it wound up there, in Linux, eh?)

The Flatlander

Remind me again, please, what are the SCOundrels suing IBM for?

[ Reply to This | # ]

SCO's Memorandum in Support of Renewed Motion to Compel - as text
Authored by: Anonymous on Monday, July 12 2004 @ 02:45 PM EDT
The tone of the Judge's order seemed sympathetic to SCO. Is the wording just
leaglese or is there a reason to be nervous that something in SCO's memo is
giving the Judge pause??

[ Reply to This | # ]

I vote for footnote #9
Authored by: Anonymous on Monday, July 12 2004 @ 02:50 PM EDT
I think PJ is probably right, this is an attempt by SCO (a rambling one at that)
to get the court not to grant the motion for summary judgement by claiming as
they do in footnote 9 that they are being denied discovery critical to their
defense of IBM's counterclaim. That is a flat out argument to the judge that
they will pull up at the MSJ hearing, I guarantee it.

The bottom line is that SCO can mischaracterize what Wells' ordered all they
want, Kimball isn't stupid, he can read the prior orders for himself. He doesn't
care about name calling and all of this IBM bashing. What he cares about is
whether SCO has any legitimate argument regarding IBM's alleged failure to
produce documents. SCO has been on the receiving end of this type of complaint
already, they know the drill. They are going to have to do some fast talking at
the next hearing to justify this. No doubt IBM has all their ducks in a row.

IBM struck well with their motion for summary judgement, thanks to SCO opening
the door. SCO has already said that there is no claim before the court that IBM
has illegally contributed any of UNIX System V into Linux and no claim of
misappropriation of trade secrets or copyright violations stemming from use and
modification of Linux in general. The MSJ is appropriate because SCO keeps
stating publicly that IBM infringed on all of this code but won't make that
assertion directly in court. IBM seeks a remedy from SCO's public FUD.

You watch. After IBM gets a summary judgement regarding their contributions to
Linux, I'll bet SCO is given leave to ammend their complaint to include a direct
charge of infringement, and when they fail to do it, IBM will then sue SCO to
get an injunction to stop SCO from 1) Suing IBM end users and 2) making any more
public statements regarding IBM's alleged illegal Linux contributions.

And SCO will fight this kicking and screaming all the way.

[ Reply to This | # ]

  • Injunctions - Authored by: sjf on Monday, July 12 2004 @ 03:03 PM EDT
Delay, Delay, Delay
Authored by: Upholder on Monday, July 12 2004 @ 02:55 PM EDT
[19] If IBM's history of ignoring discovery obligations and Court orders continues, the Court will be forced to confront the same trial scheduling issues that were the subject of the hearing on June 8, 2004.

(whine mode on) But juuuudge.. if you don't make them give us what we neeeeed, we're going to have to ask for more time to whine at the court to get you to make them give us what we neeeeed!

[ Reply to This | # ]

At this point, why should IBM provide anything?
Authored by: Anonymous on Monday, July 12 2004 @ 03:07 PM EDT
I can't understand why the court is giving scox any IBM source at this point. It
seems to me, that before IBM is required to submit anything, scox should prove
that scox has a prima-facia case.

Scox should be asked for the specific evidence that scox had *before* scox filed
the case. If scox did not have any evidence, then the case should be dismissed.


Linux is opensource. There is no reason that I can see, that scox hasn't been
asked to produce the exact lines of linux source code which are supposed to be
infringing. Do that first, then start into the ibm source code.

Clearly, scox can go on fishing expeditions forever. Why should the courts allow
this? After 16 months, shouldn't scox be compeled to prove that there is any
merrit to scox's case at all?

Giving scox IBM's source *now* seems to putting the cart before the horse. It
seems to me that scox should *first* provide IBM with line by line
specifications of exactly what scox thinks is infringing. Then, if scox has any
case at all, it should be decided exactly what scox needs from IBM.

If nothing else, the present method is grossly inefficent. Why do all the
research *before* it's determined whether scox even has a prima-facia case?

Besides, isn't the court supposed to demand evidence, and not allow fishing
expeditions? Isn't the court supposed to ensure that one party doesn't have to
make the case for the other party?

Don't get me wrong. I have nothing against scox being given access to ibm source
code. But, when you sue a company, aren't you supposed to have some kernel of
evidence to begin with? If I sue a company because I slipped and fell, wouldn't
I have to at least prove that I was injured? And, if I filed the lawsuit,
wouldn't I have to prove that *before* I demanded months of expensive research
from the defendant?

[ Reply to This | # ]

Microsoft in Peril?
Authored by: Anonymous on Monday, July 12 2004 @ 03:25 PM EDT
If judge grants access to IBM Version Control System, then any lawsuit by Linux
authors ,or any other project, against Microsoft can use this as a precedence
and have access to all Microsoft files in their Version control system (which
they have used since beginning of Win2k.)

So this would be a blessing in disguise....

[ Reply to This | # ]

Are we missing something here?
Authored by: Anonymous on Monday, July 12 2004 @ 03:47 PM EDT
I am becoming increasingly puzzeled over this case.

As I presently understand the non copyright issues here this is a contract
dispute between IBM and SCO. SCO claim thier SOFTWARE PRODUCT (SysV) encompases
all derivative works based upon it and that in addition IBM were bound by thier
contract not to divulge any of the SOFTWARE PRODUCT code to anyone. This I
understand to be the basis of the trade secrets claim.

And that this case has made in in the door is because of the side letter - which
under court proceedings allows parol evidence (material outside the writing) to
be included.

++++++++++++++++++++++++

To review the situation again

In effect SCO claim that IBM and Sequent both agreed to work for AT&T as
part of their contract to use the SOFTWARE PRODUCT. The consideration on the
part of AT&T was that IBM and Sequent could use the SOFTWARE PRODUCT.

In addition to effectively working for hire IBM and Sequent agreed to licence
the use of the SOFTWARE PRODUCT. It is this contract that allows SCO (sucessors
in interest to AT&T) to lay claim to all of IBM's work since 1995 on SysV
and related products - to wit Aix and Dynix.

The royalty buyout that IBM concluded only relieved IBM of the need to pay
further licence fees but did not relieve IBM of the obligation to work for
Novell for no further consideration.

In addition to donating all the copyrights to the IBM created code to AT&T,
IBM has bound its sucessors to this contract. This in addition means that IBM
releasing the new code to anyone else is a breach of the contract because of the
requirement in the contract to keep secret those thing that should be kept
secret.

According to this contract then IBM and Sequent have been working effectively as
SCO employees/contractors since 1995. IBM are in breach of their contract
because they have released SCO owned code to third parties and released trade
secrets (the code itself) again to third parties.

Because of the side letter parol evidence is needed to establish exactly waht
the contract meant originally. Hence the need for the depositions etc.

+++++++++++++++++++

Now needless to say I have more than a few problems with this.

Firstly the consideration on the part of AT&T and it sucessors seesm to be
highly inequitable. In return for pemission to use the SOFTWARE PRODUCT IBM et
al are bound in perpetuity to donate code to AT&T. And have to pay for the
priviledge. Tricky one that. Wonder if the court will uphold it. Hmm.

Secondly based on the premises of the above paragraph, the uniform comercial
code (UCC) requires a contract that cannot be fulfilled in less than one year to
be reduced to writing. Strange - I missed that in the contract.

Thirdly in general what one creates is one's own copyright - the main exceptions
being works for hire. Unless the contract can be intrepreted to be a contract
for hire, IBMs own code is IBM's.

That is unless there is a 204 assignment. There have been no 204 assignments
produced to date by SCO. Given this one must assume that SCO have understood the
AT&T contract to be one for hire and that somewhere in the provisions it is
stated that IBM (and Sequent) have agreed to work for AT&T without fee for
perpeuity as part of the price for using the SysV code. (See the above
paragraph)

IBM and Sequent by conviently forgetting to mention this in 1995 are in clear
breach of the obligations to the SEC and their shareholders.

+++++++++++++++++++++

What would a "reasonable man" make of this?

Comercial cases are on the "balance of probability" - not "beyond
all reasonable doubt".

First IBM and Sequent essentially sell themselves to AT&T without telling
anyone. And no one realises this for almost 10 years. All the AT&T, IBM,
Sequent and Novell lawyers missed this. All the SEC officials missed this. The
shareholders missed this. The stock market analysts et al missed this deal. That
*is* curious.

Is it *just* possible that that contract never really said that?

That the contract just said that IBM & Sequent could use the SysV code in
return for a licence fee and could study the code asa long as the SysV code
itself was kept secret from non employees/contractors. And that the royalty
buyout as essentially the end of the matter as far as IBM were concerned -
except for the secrecy bit which still stands.

And that IBM own thier own code. And that it is IBM owned code that has been
contributed to Linux? And that AT&T, Novell, Sequent & IBMs lawyers were
not wrong. And the shareholders were not wrong. And the SEC were not wrong.

And is it possible that just maybe SCO is the one who is wrong - because their
lawyers have forgotten their contract law?

+++++++++++++++++++

Or is it I myself who has it all totally wrong here?

--

MadScientist

[ Reply to This | # ]

A few things stood out...
Authored by: Anonymous on Monday, July 12 2004 @ 03:50 PM EDT

Does SCO seriously think that every single line of code is going to be slavishly documented and complete with design specs in the header of the file using, say, the "$Log$" variable that RCS uses? Or whatever the equivalent is under CVS or IBM's chosen package. If so, well, then software will be unaffordable for anyone except, perhaps, the U.S. military. There's a reason that hammers cost $900, you know, and it's the documentation.

I found it humorous that SCO and their legal team find it "incredulous" that Sam Palisamo does have any emails. I know a few president's of companies and most of them don't use email. A good number of them don't even have computers on their desks. ("That's why I have a secretary.")

Did IBM really just hand over a list of individual's names? Or did they have actual their last known address (as known to H.R.) included with it. Even if they did, I wouldn't be surprised if SCO's team would whine and moan about that. As an aside, I just went through a training exercise at work and, at the end, I was asked to provide my internet email address. I used the short version -- lastname + first initial -- since it was easier for most people to type in than the full name with underscores version. I was sent a follow-up email (the irony) asking to verify the email address that I used because they couldn't match up the email address with the training roster that they were working from. Must have been incredibly difficult for them since I am the only person with my name in the entire 15,000 employee roster. Now imagine if someone was actually tasked with finding someone who might not even work for a company any more. Why their tiny little minds would explode.

Curiouser and curiouser...


[ Reply to This | # ]

Email policies and retention
Authored by: Anonymous on Monday, July 12 2004 @ 03:51 PM EDT
I'll agree that a smart corporation sets up a retention policy that protects it
from harm. But I don't think you really understand how widely those policies are
despised.

Email retention policies basically constitute a memory-hole; they're a way of
saying to employees: "You know those documents you've been using to build
working concensus between far-flung colleagues? Throw them away! And don't take
notes! After 90 days, we don't care what you remember!"

Well, guess what! We've still got jobs to do 90 days later, and a lot of the
time they require answers to questions that were asked, oh, say, 6 months ago.

Everyplace I've worked in the last 7 years has had a retention policy of 90 days
or less. And I've never made the slightest move to comply. Nor, to the best of
my knowledge, has anyone I've ever worked with.

My point? To argue that the retention policy ought to constitute prima facie
cause to deny a discovery motion is kind of like saying "he said everybody
there always does it this way, so we'll take their word for it." The
existence of a policy does not in any way constitute evidence that the policy is
in any way complied with.

There's email out there, trust me. And if the evidence they're looking for is
anywhere, it's in the un-purged spool or offline archive of some lead-developer
or architect. And they know it.

That's not to say that the *evidence* is there. But if it is there, that's where
it will be.

[ Reply to This | # ]

SCO's Memorandum in Support of Renewed Motion to Compel - as text
Authored by: gstovall on Monday, July 12 2004 @ 04:03 PM EDT
If I remember correctly, President Bush was a big fan of email before he was
elected and used it quite a lot, but he announced after the election that his
legal team had advised him that it was not a good idea for a president use
email, given the tendency for it to hang around far too long, and he regretfully
gave it up.

[ Reply to This | # ]

Unfettered access to CMVS? Ridiculous!
Authored by: GLJason on Monday, July 12 2004 @ 04:05 PM EDT
Has there EVER been a court case where as part of discovery one side was ordered
to let the other come in and rifle through their filing cabinets looking for
things? I didn't think so. That is basically what SCOX is requesting. Just
because it is easy to do does not mean that it needs to be done. AIX isn't the
only thing in there, the main database I believe has all software that IBM works
on, including OS/2, Websphere, VisualAge development environment, compilers,
countless Java files, mainframe operating systems and code, etc... IBM has
already produced hundreds of millions of lines of code, all that was in 232
releases of AIX (most of it heavily duplicated I would guess though from one
version to the next).
<p>
That said, I don't really know why it would be all that difficult to take all
those files in those 232 versions and dump <i>their</i> entire CMVS
history to disk for SCO to look at.

[ Reply to This | # ]

SCO's Memorandum in Support of Renewed Motion to Compel - as text
Authored by: Anonymous on Monday, July 12 2004 @ 04:14 PM EDT
OK, probably a silly question (but this is TSG after all).

It seems fairly clear that the discovery questions this motion relates to are concerned with the Trade Secrets allegation.

That has been dropped.

So why are they allowed to go on with the relevant questions ?

[ Reply to This | # ]

SCO's Memorandum in Support of Renewed Motion to Compel - as text
Authored by: Anonymous on Monday, July 12 2004 @ 04:14 PM EDT
OK, probably a silly question (but this is TSG after all).

It seems fairly clear that the discovery questions this motion relates to are concerned with the Trade Secrets allegation.

That has been dropped.

So why are they allowed to go on with the relevant questions ?

[ Reply to This | # ]

Blame IBM for delay?
Authored by: Anonymous on Monday, July 12 2004 @ 04:17 PM EDT
Interesting how one of the last points made in the memorandum is the claim that
part of IBM's "strategy to hinder and delay SCO's prosecution of its
claim" was that it insisted on an "accelerated deposition
schedule". If I remember correctly, IBM was simply seeking to schedule its
depositions in order to finish by the time given in the original scheduling
order. It's hard to believe SCO is proposing that attempting to keep activities
on track with regards to the existing schedule could be construed as attempting
to delay the case.

They then appear to express indignation that IBM went ahead with some
depositions before giving SCO everything they wanted in discovery. Apparently in
SCO's view, discovery that doesn't match its own glacial pace of investigation
is bad because it hinders and delays its prosecution of the case.

There's also the inconsistency, pointed out by another reader in an earlier
article, that SCO seems to claim at different times that either depositions must
wait for discovery to occur, or that discovery must wait until depositions can
be done. They claim here that it is unreasonable for IBM to begin depositions
before answering all SCO's discovery requests, and have given lack of discovery
as an excuse for not starting their own round of depositions. In their Rule
56(f) motion, SCO admits that much discovery has been on hold pending the
results of depositions they are pleading for time to perform. They further have
stated that discovery requests from IBM for specific information about alleged
Unix to Linux copying cannot be honored until IBM gives them the material they
need first.

SCO's view of proper discovery has only one possible path consistent with their
statements: (1) defendent asks for specific instances of the wrongs they are
accused of committing, (2) plaintiff says the defendent must first hand over all
documents in their possession even remotely related to the case, (3) plaintiff
gets to pick through all discovery evidence before even having to decide on a
course for further discovery, (4) defendent's depositions must wait until
plaintiff has had time to sort through all the discovery material provided by
defendent, (5) plaintiff takes its time to select from among hundreds of
possible deposition targets and deposes a few, (6) defendent gets to depose
witnesses only after plaintiff has been fully briefed on what they might be
asking, (7) plaintiff gets to seek further time for obtaining discovery evidence
needed to prove their case, (8) only at the end does plaintiff have to provide
defendent with specific examples of what they have been charged with. No wonder
SCO appears so indignant at IBM's conduct to date. It's so unfair!

[ Reply to This | # ]

Digital Millennium Competition Avoidance (DMCA)
Authored by: Anonymous on Monday, July 12 2004 @ 04:37 PM EDT


http://www.corante.com/importance/archives/004926.html

exactly what the title
implies and a website (above) dedicated to exposing this

Idontdowindows

[ Reply to This | # ]

OT: SCO claims
Authored by: Pat Pending on Monday, July 12 2004 @ 05:10 PM EDT
ownership of the potato salad, having provided the condiments last year.
"We bought a 5 lb bag of salt from Sifto, and these godless commies have
the audacity to add salt to their potato salad and pretend it's theirs! Raged a
zinc-nosed Chris Sontag at the annual Lindon LDS barbecue.
"Not only that, they are giving the recipe away online, seriously
undercutting the proprietary
imperitave to create potato salad.", said Sontag. "who is gonna pay
25
cents a plate when they can make it themselves?"
After a brief struggle with Edna Smith, a retired grandmother who routinely
shares recipes with anyone who asks, Sontag lost his grip in the slick
Tupperware
container the offending salad was contained in and fell to the ground.
Instantly, SCO head council and Sontag's three-legged race partner David Boies
told him not to move, called an ambulance on his cell and had Ms Smith
arrested.
Film at 11.

---
Thanks again,

[ Reply to This | # ]

Microsoft's Defense...
Authored by: Trithemius on Monday, July 12 2004 @ 07:18 PM EDT
... except that they don't have many millions left with which to buy their way
out of losing battles and avoiding any admission of wrongdoing ...

[ Reply to This | # ]

SCO lying about court orders regarding product of executive documents
Authored by: Anonymous on Monday, July 12 2004 @ 08:04 PM EDT
SCO NEVER FILED A MOTION TO COMPEL FOR EXECUTIVE DOCUMENTS

SCO now likes to represent the executive/board documents were the subject of SCO's motion to compel, for example:

After months went by, however, IBM did not provide additional discovery responses, forcing SCO to move to compel to obtain basic foundational discovery ("SCO's Motion").


SCO's current representation is false.

From the Magistrate Judge Well's March 3rd court order

[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.



SCO ASKED FOR THE LINUX STRATEGY DOCUMENTS AT ORAL ARGUMENTS

See above, plus following from February 6th hearing

MR. HEISE: What we have gotten from IBM is working its way up the ladder, despite the fact that on October 28th and other occasions I have spoken with representatives of IBM and said we want the documents and materials from Sam Palmisano, from Irving Wladawsky-Berger, the key executives that are intimately involved in the Linux project.

In our reply memo in support of this Motion to Compel, we in fact provided an article from the New York Times where Mr. Palmisano is identified as the leader of moving IBM into the Linux movement. Mr. Wladawsky-Berger is a core, critical person and they are not mentioned in any of their interrogatory answers and we have gotten no documents from them.


WHAT THE COURT ACTUALLY ORDERED

From the Magistrate Judge Well's March 3rd court order

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.

...

[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.

Notice in particular that point 3 in particular how the "ambitious Linux strategy" is given in reference to a particular New York Times article. [And how the court justifies the possible relevance by referring to source code (show in bold above)].

SCO never requested, and the court never ordered, that IBM produce all documents about IBM's Linux activities in general. In fact the court ordered a very narrow and specific production by IBM, relating to source code and the New York Times article.

SCO however, by very careful selective quoting of the court order imply the court ordered something different:



(2) provide "documents and materials generated by, and in possession of employees that have been and that are currently involved in the Linux project. 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." (March 3rd Order ¶ 3); and


Notice how SCO's purported quoting of the court order, never admits that "ambitious Linux strategy" was related to a specific N.Y. Times article. When SCO cite this part of the court order: SCO just chop the limitation out of the court's order completely!

In fact, SCO now wants to read the order as requiring IBM to produce anything about Linux by anybody who works for IBM, especially IBM management. That is clearly not what the court ordered.

(And of course if you read IBM-139.pdf, IBM merely said they had obeyed the court order, not that they had obeyed SCO's new and false interpretation of it).


NOW BASED ON THIS LIE... SCO CLAIMS IBM FAILED TO COMPLY

In response to the Court's March 3rd Order, IBM represented that it had produced "all non-privileged responsive documents, including those from the files of Sam Palmisano and Irving Wladawsky-Berger." [3] In fact, IBM produced only limited documents from Mr. Palmisano's files, no documents from Mr. Wladawsky-Berger's files, and no documents from individual members of the Board of Directors.
Not too surprising that there are few documents to produce: consider that the court order was specifically related to documents about the specific NY Times article
As to Mr. Palmisano, IBM has produced an extremely limited set of materials, but clearly not all relevant responsive information. For example, IBM did not produce any substantive e-mails from Mr. Palmisano's files. Mr. Palmisano is the former Senior Vice President in charge of IBM's server business, and is now IBM's Chief Executive Officer and Chairman of the Board. IBM has publicly proclaimed Mr. Palmisano as the person who spearheaded IBM's strategy to shift towards Linux as IBM's operating system of choice. Mr. Palmisano is the head of one of the most powerful computer companies in the world, and the notion that he does not regularly use e-mail simply strains credulity. Mr. Palmisano should have hundreds or thousands of e-mails (both sent and received) directly related to the IBM Linux initiative for which he is now famous.[4]
Not too surprising that there are few documents to produce: consider that the court order was specifically related to documents about the specific NY Times article.

IBM have construed the request broadly and apparently included some additional Linux strategy documents.

All those other emails by Mr Palmisano are not what IBM was ordered to produce.

Yet IBM has not produced a single substantive e-mail from the files of Mr. Palmisano. Instead, IBM's production from Mr. Palmisano's files is comprised of PowerPoint presentations and a few "Linux Strategy Updates." Conspicuously absent, however, is anything specific to Mr. Palmisano himself: any e-mails, notes, memos, correspondence, or other documents authored, edited, or received by Mr. Palmisano.[5] Such a void is inexplicable, given that Mr. Palmisano is credited as the primary person behind IBM's drive towards Linux and was publicly identified as the mastermind behind IBM's monumental shift in corporate strategy.

SCO requested and the court ordered IBM to produce materials related to the NY Times article. It sounds like IBM have produced exactly that, and maybe also searched for additional Linux strategy documents.
Even worse, IBM has failed to provide any documents from the files of Mr. Wladawsky-Berger, allegedly IBM's "Linux czar", see New York Times article, p.3 (attached as Exhibit "D"), stating by letter dated April 26, 2004 (attached as Exhibit "E") that no responsive documents were found. That means that IBM has not been able to locate a single e-mail, letter, hand-written note, diary or calendar entry, memo or other document responsive to SCO's discovery requests from its "Linux czar" about Linux. The same New York Times article cited above describes Mr. Wladawsky-Berger as having sent e-mails to top technology executives regarding the rise of Linux. The statements in the article cannot be reconciled with IBM's representations to this Court and SCO that no such documents exist. SCO should not have to move to compel, two times, to obtain such basic documents and information.

SCO never moved to compel the first time (or ever until their "renewed motion") - see above - from Magistrate Judge Wells: "Although not part of SCO's official written motion, SCO raised these discovery issues at oral argument"

And Mr Wladawsky-Berger probably had no involvement in the NY Times article etc.

etc etc



Note to all, Twas him, that Quatermass fellow again

[ Reply to This | # ]

Another miracle
Authored by: gups on Monday, July 12 2004 @ 08:27 PM EDT
By the time SCO realizes its futile attempt to make IBM come up with
incriminating evidence against itself doesn't work, we will probably see
someone emerging from the SCO camp proclaiming the miraculous discovery of a
phantom e-mail written by some IBM top executive that reveals IBM's intention to
destroy SCO's business. Very much like the way that guy found a million lines
of infringing code in a briefcase somewhere in Europe a while back.

But of course, just like everything else, SCO will not show that to anyone
neither.

[ Reply to This | # ]

SCO's Memorandum in Support of Renewed Motion to Compel - as text
Authored by: beserker on Monday, July 12 2004 @ 08:27 PM EDT
setenv IANAL "Y"

I gather from other posts that SCOG will need to describe
their discovery process and how it will lead to the evidence they're after. The
only basis for this actually working is if their questionable notion of
copyright derivation is valid. In order for them to go down this path does the
judge need to rule on whether this premise is legally valid? Clearing up this
little issue would probably decide the case but as IANAL I haven't got any idea
how much leeway the judge has on ruling about these sorts of things vs letting
it slide until later.

[ Reply to This | # ]

SCO playing tricks about witness contact info - the whole memo is garbage
Authored by: Anonymous on Monday, July 12 2004 @ 08:29 PM EDT
SCO says this about the missing contact information, I draw your attention to the two emphasis added parts:
In its March 3rd Order, the Court specifically required "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." March 3rd Order at ¶ 6. In its declaration proclaiming its complete compliance with this Court's March 3rd Order, IBM represented to the Court that it would "provide contact information for additional names as SCO requests such information, up to a total of 1,000 names." Declaration of Todd Shaughnessy at p. 4. IBM has failed to abide by the terms of the Court's Order and IBM's certification. Consistent with the March 3rd Order, SCO asked IBM to identify 134 individuals for which IBM possessed contact information.[14] IBM refused. SCO therefore seeks the Court's assistance in requiring IBM to comply with the March 3rd Order and the representations in IBM's certification and provide the requested contact information.

...

SCO's request for information on 49 of the individuals was communicated by letter from Mark Heise to Peter Ligh, dated April 20, 2004 (attached as Exhibit "K"). At about that same time, IBM named 85 additional witnesses in IBM's Second Supplemental Responses and Objections to SCO's First Set of Interrogatories dated April 19, 2004. IBM, however, decided not to provide the contact information for the witnesses that were not current or former IBM employees, even though it possessed the information. SCO requested IBM to remedy its noncompliance and provide the contact information for these 85 additional witnesses by letter to IBM's counsel dated June 4, 2004. See letter from Mark Heise to Peter Ligh (attached as Exhibit "L"). By letter dated June 9, 2004, IBM claimed it was excused from producing the information because none of the individuals identified are presently affiliated with IBM. See letter from Peter Ligh to Mark Heise (attached as Exhibit "M"). In response, SCO pointed out that it was only seeking information that IBM had in its possession. Letter from Mark Heise to Peter Ligh, dated June 15, 2004 (attached as Exhibit "N"). IBM responded by claiming the request of SCO was now "unclear" and suggested that the contact information in its possession might be work product. Letter from Peter Ligh to Mark Heise, dated June 16, 2004 (attached as Exhibit "O"). Not wanting to engage in further protracted discussions, which simply work to delay IBM's production of the Court-ordered information, SCO simply noticed that IBM is under orders to provide this information and SCO expects IBM to comply. Letter from Mark Heise to Peter Ligh, dated July 6, 2004 (attached as Exhibit "P").


Quoting from IBM's declaration (emphasis added):

...On March 26, 2004, SCO informed IBM that it wished to have contact information for all persons listed on Attachment E to IBM's answers to SCO's first set of interrogatories as well as for 81 additional persons listed by SCO. ... Of the 81 additional persons listed by SCO only 32 of them (not including persons already appearing on Attachment E) were listed in IBM's answers to SCO's interrogatories Nos. 4 and 5.


So SCO is saying we want contact information to these 81 witnesses. 32 of the 81 are IBM witness. Give us, SCO, the contact information for all 81.

Now IBM gave the contact information for the 32 IBM witnesses.

But SCO is disatisified because 81-32 = 49 witnesses don't appear in IBM's list of contact information.

As said above, those 49 are witnesses chosen by SCO and do not appear in IBM's responses.

These 49 of course correspond to SCO's 49 in footnote 14.

In other words, SCO is complaining, at least as far as these 49 witnesses are concerned, that IBM isn't providing contact information for SCO's witnesses!

Next we get to the second bold section from SCO's footnote 14. Notice this language: "provide the contact information for these 85 additional witnesses by letter to IBM's counsel dated June 4, 2004"

Notice here the witnesses here are identified by letter to IBM. They may not IBM's witnesses (to be charitable to SCO they may be names chosen from a previous IBM list).

Again SCO appear possible that SCO is complaining that IBM is not providing contact information for SCO witnesses.

At the very least SCO is not being entirely truthful about the 49. (And they may or may not be being truthful about the other 85 either).



Note to all, Twas him, that Quatermass fellow again

P.S.
This post, when added to my previous 2 posts in this story about "ambitious Linux strategy", and SCO lying about the order and the record, pretty much makes a clean sweep of this entire memo.

It's *ALL* bogus. SCO aren't actually seeking any of this stuff. They are simply seeking to harass IBM, and to try to find an artificial reason for the court to say IBM hasn't complied with the March 3rd order. It's *ALL* garbage and made-up-outrage SCO-moving-the-goalposts complaints.

[ Reply to This | # ]

Go Fish!
Authored by: CustomDesigned on Monday, July 12 2004 @ 08:44 PM EDT
I am picturing a custom "Go Fish!" card deck. It has sets like
"Incriminating Email" and "Unix source in Linux". The email
set has four different incriminating emails, etc. This would be a lot of work
to flesh out with enoughs sets and instances to be playable - so the idea is
free. I'll buy one when your done.

[ Reply to This | # ]

IBMs response to SCO's Memorandum in Support of Renewed Motion to Compel - as text
Authored by: rsteinmetz70112 on Monday, July 12 2004 @ 08:47 PM EDT
When does IBM have to respond to this?

I can hardly wait it's going to be fun reading.

I wonder if IBM will file for an over length reply, seems it might take two or
three hundred pages to respond to the thing fully.

[ Reply to This | # ]

The psychology of SCO2
Authored by: Anonymous on Monday, July 12 2004 @ 09:46 PM EDT
A defendant confident that its adversary had no case would not delay for nearly a year before providing even a single version of AIX - a program at the center of the case - a version which IBM did not and could not dispute it was obliged to provide, and a version IBM did not produce until the Court ordered its production.

As if SCO2 were requesting a single version of AIX... SCO2 requested everything, and everything is overly broad and wildly irrelevant. It's interesting, in a train-accident kind of way, to see how SCO2 twists this. It's amusing to see the grammatical gyrations as SCO2 switches from a generic defendant (as if SCO2 possesses the omniscience to make this claim) at the beginning of the first sentence to a narrowly pinpointing IBM at the end of the sentence.

I think a more likely statement is that any defendant asked to provide egregiously excessive discovery would seek judicial mitigation and delay pending an order. SCO2's assertion that it can divine from IBM's behavior that it must not be confident therefore is little more than wishful thinking -- wishing that any who read the document draw the same conclusion without inspecting the flow of (il)logic. The dear reader's interpretations may vary, of course, and there might be other possibilities -- for example, just giving SCO2 what it wants without a fight might set a precedent for further inane discovery requests.

But this claim by SCO2 begs the question: What would a condident plaintiff do when asked to simply identify what it claims to own -- delay and obfuscate, or come out and show the evidence with specificity?

Dear reader is invited to draw the obvious conclusion.

[ Reply to This | # ]

Don't worry about SCO filing for a motion for an injunction - judge is closing the door on SCO
Authored by: Anonymous on Monday, July 12 2004 @ 09:52 PM EDT
However, he will give SCO a chance to file a motion for a preliminary injunction to be in effect during the stay, and he will allow one round of discovery to facilitate such a motion.

That is, if SCO believes that it will be irreparably harmed during the stay, it may ask for an order that, during the stay, AutoZone is not to engage in whatever the harmful activity is. SCO will have thirty days to propound any discovery requests (interrogatories, document requests, or depositions) that are necessary for its preliminary injunction motion, and AutoZone will have thirty days to respond to them.

SCO argued that Autozone should not be granted a stay, because other SCO would be irreparably harmed.

By the judge argue (i.e. " file a motion for a preliminary injunction"), SCO have the opportunity to avoid any irreparable harm that they alleged is occuring

To actually get (as opposed to argue for) the injunction, SCO have to demonstrate a likelihood of success on the merits, and irreparable harm.

They are unlikely to be able to do either. They can't demonstrate success on the merits, they have no evidence. They can't demonstrate irreparable harm (SCO have so far argued they should just be presumed to be suffering irreparable harm).

If SCO file a motion for a preliminary injunction, it's the usual garbage, and the motion is denied. Then it nails SCO down, as they can't complain about the stay being unfair because of "irreparable harm".

If SCO don't file a motion for a preliminary injunction, then they have just validated the stay as not causing demonstrable "irreparable harm".

Either way, this allowance for SCO will close the door on SCO arguing the stay.

Why would the court allow a separate motion and argument about "irreparable harm" and a preliminary injunction? Answer because if the court were just to rule now, it would be a sua sponte, i.e. without a full briefing. A sua sponte ruling is likely to be more challengeable than a fully briefed argument.

In short, by allowing a brief argument on "irreparable harm" and a preliminary injunction, the court is allowing SCO an opportunity to show it can't demonstrate either, rather than merely assuming this is the case. And this nails the stay much firmer in place, than not allowing the brief argument

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

What more do they need on the Linux claims?
Authored by: brentdax on Monday, July 12 2004 @ 10:34 PM EDT
[9] What makes this all the more extraordinary is that IBM, having blocked discovery of this basic information for a full year, is now moving for summary judgment on a declaratory copyright claim that it only recently introduced into the case on March 29, 2004. The information sought in Interrogatory 5 is obviously relevant to SCO's defense of that counterclaim.

They have the System V code. They have the AIX and Dynix code. They have the Linux code. Why do they think they need more to figure out if any of the Linux code came from the other OSes?

[ Reply to This | # ]

fn. 11 reveals ignorance of code reuse
Authored by: gdeinsta on Monday, July 12 2004 @ 11:29 PM EDT

Footnote 11 reveals an assumption that you can somehow take a line or two from one program and just drop it in another, maybe with cosmetic changes. This is nonsense. Here's the text:

[11] Q: Well, if I were to look at Dynix code, for example, how would I be able to determine the modifications of the System V semaphores that now appear in Dynix code?

A: The simplest answer is I don't know. The more complicated answer is if the software developer was being a good boy that day, they would have commented it.

Q: If I am trying to determine all of the instances of modifications, meaning either new or adaptations, in Dynix that came from System V and a developer was not being a good boy that day, how would I go about determining anything else that was modified or - modified from System V? (Objection to form omitted)

In reality you can't incorporate snippets of another program, because it just won't fit into the structure of your program. It won't even compile. If you are going to incorporate code from another program it has to be at least at the level of a source file (and you will still have to make changes to make it work in the environment of your program). But there isn't much point to incorporating just one module, it is generally easier to write the same functionality from scratch. More often you incorporate a complete subsystem consisting of anywhere from a few to dozens of source files. And then the copying is obvious because big chunks of source code are identical.

Note - the above is true for code written in C, which is the language of all the source code in this case. Code written in other languages displays different reuse characteristics.

[ Reply to This | # ]

OT: Interview with Stallman
Authored by: Pat Pending on Tuesday, July 13 2004 @ 12:25 AM EDT
Here

'When someone says to you: "you can have this nice package of software, but only if you first sign a promise you will not share it with anyone else", you are being asked to betray the rest of humanity.'

---
Thanks again,

[ Reply to This | # ]

SCO's Memorandum in Support of Renewed Motion to Compel - as text
Authored by: Anonymous on Tuesday, July 13 2004 @ 01:17 AM EDT
If the do any defense work they may be required under ITAR rules to keep any
emails relating to that work.. my company does and in consequence files EVERY
email ever sent to anyone for 5 years..

[ Reply to This | # ]

SCO's Memorandum in Support of Novell. Amended complaint filed
Authored by: jdg on Tuesday, July 13 2004 @ 03:27 AM EDT
Yahoo SCOX message 153533

From TuxRocks.com

"31 - SCO's Amended Complaint, filed 7/9/2004"

The document itself is not yet available but hopefully soon will be..


---
SCO is trying to appropriate the "commons"; don't let them [IANAL]

[ Reply to This | # ]

Autozone; How can you have a stay *and* an injunction?
Authored by: Anonymous on Tuesday, July 13 2004 @ 03:32 AM EDT
Wouldn’t it be unfair to the defendent to have both a stay and an injunction?

Suppose, for the argument that the injunction would be granted. Then that only
shows a likelihood that they will prevail in the real trial. If you'd have a
stay at the same time then Autozone might have to wait years before they get to
properly defend themselves.

Or is this the judge’s way of saying. Go away, I won't grant it anyway?

Sander.


[ Reply to This | # ]

Confused: Why is discovery needed?
Authored by: Anonymous on Tuesday, July 13 2004 @ 03:43 AM EDT
I am getting confused. I am sure that I have read that SCO are now claiming that
this is simply a contract case because IBM continued to ship AIX after their
irrevocable license was revoked by SCO. And they said that to the court.

So what's all this compelling to see source code? Surely, source code is
entirely irrelevant to the contract dispute before the court? I'm sure that IBM
won't deny continuing to ship AIX, or that AIX contains licensed code.

Can IBM point out to the judge that the year long discovery that has already
taken place is ample time for SCO to have establised that AIX is still shipping,
and that SCO are now using the contract dispute discovery to both delay
resolution AND to go fishing for a evidence of a copyright violation that is
explicitly stated by SCO as NOT part of this case? I don't think think using
discovery to extract evidence for a new and different lawsuit is legal.

[ Reply to This | # ]

Is the BBC a division of M$?
Authored by: Anonymous on Tuesday, July 13 2004 @ 08:18 AM EDT
THe BBC web site has this piece on the delayed release of the Windows XP service
pack two. OK that is news.

http://news.bbc.co.uk/1/hi/technology/3889353.stm

On this page is the link below. This is advertising.

http://www.microsoft.com/windowsxp/default.mspx

What is the connection between the BBC & M$? Why are the BBC in Microsoft's
pocket? Can anyone tell me? Does anybody at the BBC read Groklaw?

[ Reply to This | # ]

This is going to blow up in SCOs face
Authored by: Anonymous on Tuesday, July 13 2004 @ 09:09 AM EDT
With SCO twisting and mis-representing facts, what they have done is leave it up
to the judge's opinion on a great many minor discovery issues as to who meant
what and who complied properly with what order, or didn't. Rather than being
clear, SCO is still trying to create this legal cloud of confusion in the hopes
that the court will make a mistake.

The court system isn't going to tolerate much more delaying methinks, it's been
over a year and were still in phase 1 of discovery (at least SCO is). With all
of this crap they spew in their memo to the court, it sounds a lot like there
will never be an end to this until IBM turns over what SCO wants, even though
the court already said IBM doesn't have to do that.

If SCO was truly interested in judicial efficiency and not wasting the court's
time, they would have appealed the original oder by wells regarding this matter
rather than take this wishy washy approach to threatening the court with more
delay unless they get their wish.

[ Reply to This | # ]

Summary - Opposition to PSJ
Authored by: moogy on Tuesday, July 13 2004 @ 11:59 AM EDT
Ignoring all the hand waving and phoney issues, I come
up with the following summary of their position...

Your honor, we know we promised the court we'd add
copyright infringement to the case but we never did.

We have shown dozens of people examples of line-for-line
copying of SysV code into Linux under NDAs but never
provided those purported examples in discovery.

We have executives traveling the world with examples of
line-for-line copyright infringement in their briefcases,
but never provided those to IBM nor the court.

We subsequently have told the court most clearly in
filings that we do not make any copyright infringemnet
claims against IBM.

So, your honor, we strongly protest that you might grant
IBM a partial summary judgment that they are not infringing
our copyrights! It would be a great injustice to us!

"the whole world is watching"

---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win -Gandhi

[ 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 )