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More IBM-SCO Love Letters Re Discovery
Friday, July 30 2004 @ 07:06 AM EDT

Here you will see lawyers handling discovery when there is not much trust left in the air. They are deep into the chess match here, in mid-game, with all the complexity that implies. SCO tries to muscle IBM and fails. And we know what eventually happened. SCO filed a motion to compel to try to muscle IBM some more, asking the court to make IBM give them what they want. At issue is, exactly what is IBM obligated to turn over? A cynical observer might add that it's really about trying to block IBM's partial summary judgment motion, by making it seem there is lots more discovery still to be done and that IBM is "stalling" on turning over what SCO needs.

SCO's Renewed Motion to Compel Discovery [text], with its Memorandum in Support [text], was the outgrowth of the letters. SCO has asked the court in their motion to make IBM turn over what they asked for in the letters, and more than they asked for in these letters, which were attached by SCO as exhibits to that motion. IBM has yet to respond to that motion. The due date for that filing is August 4. Note that the June 9 letter from IBM to SCO indicates that Ransom Love and the directors of Canopy Group are among those SCO is seeking contact information for. If SCO's characterizations in the letters are accurate, and that is a big if, it would indicate that IBM intends to call them as witnesses at trial.

The PDFs of the letters are linked to at the beginning of each letter. You will notice from the dates that this is not the complete exchange of love letters between them. These are just the ones that ended up as SCO exhibits.

My favorite letter is the last IBM letter, where they say in effect, "Oh, on that material you asked us to produce that we are not required to produce, we note you never gave us the equivalent. So, how about we both produce that category of material to each other at the same time? What day would be convenient for a mutual transfer?" SCO's reply is, "Um. Forget it. No more letters. We're going to the judge." Note they did *not* say, "Oh, fine. Mutual transfer it is. How about we do lunch and I'll give you our attorney work product and you can give me yours?" Attorneys don't have to turn over attorney work product in discovery, and SCO references this letter exchange in its footnote 14 in its Memorandum in Support, which makes it possible to compare their characterization of the exchange with the letters themselves:

"[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')."

We see here SCO's position. We haven't yet heard IBM's side. What is at issue, though, is how to define what it is IBM is supposed to turn over. Obviously the parties don't agree. No one outside the discovery process can really know precisely what is going on and who is right and who is wrong, although it's clear to me that SCO's description of the letters doesn't match my impression. When the parties can't agree on discovery, at some point, somebody has to intervene. That's what judges are for.

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

[193-K.pdf]

[Boies, Schiller Letterhead]

April 20, 2004

Via Facsimile

Peter Ligh
Cravath Swaine & Moore LLP
[address]

Re: The SCO Group v. IBM

Dear Peter:

I received your letter dated April 19, 2004, in which you enclosed some of the contact information for the witnesses listed by IBM in its Answers to Interrogatories. You, however, attempt to justify not providing contact information for many of the witnesses I requested because they were not listed on attachments B through E. This is not a valid justification for refusing to provide such information.

Please be advised that these folks are identified by IBM as witnesses from whom IBM has provided documents. It is incongruous to provide documents from persons but then claim such persons are not witnesses in the case merely because IBM has failed to list them on Attachments B through E (although they clearly should be listed on attachments B through E).

Please let me know if you are willing to provide this information or whether we need to pursue this matter further with the Court.

Very truly yours,

Mark J. Heise

MJH/vb


[193-E.pdf]

[Cravath, Swaine Letterhead]

April 26, 2004

SCO v. IBM; IBM v. SCO

Dear Mark:

I write in response to your letter of April 22, 2004.

First, the files of Irving Wladawsky-Berger were searched and reviewed, but did not contain any responsive documents. Second, responsive documents from the files of other IBM senior executives are indicated on the source logs accompanying our document production. For example, Nick Bowen's documents can be found at bates numbers 1710088236-1710088650, 181031656-181031836, 181516101-181518248, 1910016418-1910017768, 1910021192-1910021542, 1910040040-1910040989, and 1910042024-1910042025; Paul Horn's documents can be found at bates numbers 1710091268-1710091416, 181518249-181518403, and 181585414-181585435; and Steven Mills' documents can be found at bates numbers 181668093-181670566. In addition, responsive documents from the Board of Directors' files can be found at bates numbers 1710137805-1710137834.

Very truly yours,

Peter Ligh

Mark Heise, Esq.
Boies, Schiller & Flexner LLP
[address]

BY FAX


[193-L.pdf]

[Boies Schiller Letterhead]

June 4, 2004

Via Facsimile

Peter Ligh
Cravath Swaine & Moore LLP
[address]

Re: The SCO Group v. IBM

Dear Peter:

After our repeated objections about IBM's failure to properly identify witnesses, I would have thought that your April 19 response would have remedied the situation. Apparently, you have chosen not to do so in any of your filings. As a result, enclosed please find a list of additional individuals for whom IBM must provide the address, phone number and any other contact information. These individuals are from Exhibit A on IBM's supplemental production made pursuant to the Court's March 3, 2004 Order.

Very truly yours,

Mark J. Heise

MJH/vb
Encls.


[193-M.pdf]

[Cravath Swaine Letterhead]

June 9, 2004

SCO v. IBM; IBM v. SCO

Dear Mark:

I write in response to your letter of June 4, 2004.

None of the persons listed on the attachment to your letter is affiliated with IBM. Current contact information for these persons should be as accessible to SCO as to IBM (if not more accessible to SCO, since the list includes many persons affiliated with SCO, such as SCO's former CEO and directors of The Canopy Group, Inc., SCO's largest shareholder).

Very truly yours,

Peter Ligh

Mark Heise, Esq.
Boies, Schiller & Flexner LLP
[address]

BY FAX


[193-N.pdf]

[Boies, Schiller Letterhead]

June 15, 2004

Via Facsimile

Peter Ligh
Cravath Swaine & Moore LLP
[address]

Re: The SCO Group v. IBM

Dear Peter:

In response to your letter dated June 11 in which you refuse to provide contact information for witnesses identified by IBM in its April 19 disclosure, please note that we are not asking for any SCO employees. Moreover, SCO is only asking for contact information that IBM has for the identified witnesses. If IBM has in its possession this information and SCO does not, then your statement that it is just as easy for SCO to get this information is incorrect. Thus, please let me know by the end of the day on June 16 whether IBM will be providing the contact information for the people identified on my earlier attachment for whom IBM has the relevant information.

If IBM refuses to provide contact information that IBM possesses, then we will have no choice but to bring this matter before Judge Wells. We hope such action is unnecessary. Thank you for your prompt attention to this matter.

Very truly yours,

Mark J. Heise

MJH/vb


[193-O.pdf]

[Cravath, Swaine Letterhead]

June 16, 2004

SCO v. IBM; IBM v. SCO

Dear Mark:

I write in response to your letter of June 15, 2004.

It is not clear to us what information you seek. Is it your position that the parties should exchange third-party contact information that has been discovered through the work of counsel for the parties? SCO itself does not appear to have provided such information in its answers to IBM's Interrogatory No. 10. If that is your position, what date do you propose for a simultaneous exchange of the information?

Very truly yours,

Peter Ligh

Mark Heise, esq.
Boies, Schiller & Flexner LLP
[address]

BY FAX


[193-P.pdf]

[Boies, Schiller Letterhead]

July 6, 2004

Via Facsimile

Peter Ligh
Cravath Swaine & Moore LLP
[address]

Re: The SCO Group v. IBM

Dear Peter:

I write in response to your recent letter concerning IBM's obligation to provide contact information for the witnesses listed by IBM. In response to your question about SCO's position, it is simple and straightforward. SCO wants IBM to comply with the Court's Order. Over one year ago, SCO served five interrogatories seeking basic information in this case, including the identity of pertinent witnesses. In response, IBM listed over 7,000 potential witnesses -- obviously a vastly over-inclusive list designed to effectively withhold rather than provide the information IBM was obliged to produce. At the same time, IBM failed to provide the required contact information. SCO followed up and asked for this information, but IBM again refused to provide it. As a result, in November 2003, SCO was forced to file a motion to compel seeking, among other items, the necessary contact information. IBM continued to resist production.

On March 3, 2004, the Court issued its Order on the nearly one year old discovery requests. The Court ordered IBM, among other things, to provide the contact information for prospective trial witnesses -- the exact information requested by SCO that IBM had refused to provide for nearly a year. Pursuant to that Court Order, on March 26, 2004, SCO again requested information for selected witnesses. Remarkably, IBM still refused to provide information for 49 of those witnesses and continues that practice as to a significant number of other witnesses. Likewise, again pursuant to the Court order, SCO thereafter provided another list of 85 witnesses taken from IBM's second supplemental responses to IBM's first set of interrogatories and requested the appropriate contact information. IBM again has failed to provide the required information that is needed to prepare for trial.

Given the number of requests SCO has made and IBM's refusal to respond -- even when ordered to do so by the Court -- we have come to the unavoidable conclusion that IBM is not going to provide the required contact information. SCO cannot further participate or be drawn into the kind of letter writing exchange that has only led to more than a year of refusals to produce the most basic discovery.

Very truly yours,

Mark J. Heise

MJH/vb


  


More IBM-SCO Love Letters Re Discovery | 199 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
More IBM-SCO Love Letters Re Discovery
Authored by: entre on Friday, July 30 2004 @ 07:16 AM EDT
This will not be a good day for SCO longs with this quality of work from IBM.

[ Reply to This | # ]

Corrections Here (if any!)
Authored by: bbaston on Friday, July 30 2004 @ 07:27 AM EDT
Help Pamela!

---
Ben
-------------
IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,

[ Reply to This | # ]

OT and Links here
Authored by: bbaston on Friday, July 30 2004 @ 07:29 AM EDT
This section's been good lately!

---
Ben
-------------
IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,

[ Reply to This | # ]

IBM-SCO Love Letters have an attitude
Authored by: bbaston on Friday, July 30 2004 @ 07:54 AM EDT
Heise in last letter:

"Given the number of requests SCO has made and IBM's refusal to respond --
even when ordered to do so by the Court -- we have come to the unavoidable
conclusion that IBM is not going to provide the required contact information.
SCO cannot further participate or be drawn into the kind of letter writing
exchange that has only led to more than a year of refusals to produce the most
basic discovery."

rather ignores IBM's offer to mutually exchange further discovery. My concern is
Heise positioning the SCO side for success in being granted an appeal,
especially since I do not recall a previous "we give up on this"
exchange from SCO.

I hope the court will realize that Heise is responding to IBM's Peter Ligh
exchange offer by ignoring it:

"Is it your position that the parties should exchange third-party contact
information that has been discovered through the work of counsel for the
parties? SCO itself does not appear to have provided such information in its
answers to IBM's Interrogatory No. 10. If that is your position, what date do
you propose for a simultaneous exchange of the information?"

Could these "no response to discovery" exchanges from SCO take on a
life of their own even if IBM's request for judgement is granted? Is SCO
attempting to set up IBM for a series of "we give up" responses that
may not be obviously silly to the appeals judges?

---
Ben
-------------
IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,

[ Reply to This | # ]

Proverbs 29:9
Authored by: CustomDesigned on Friday, July 30 2004 @ 07:56 AM EDT
If a wise man contendeth with a foolish man, whether he rage or laugh, there is no rest.
I was reminded of the SCO case while reading this yesterday.

[ Reply to This | # ]

More IBM-SCO Love Letters Re Discovery
Authored by: kbwojo on Friday, July 30 2004 @ 08:46 AM EDT
I noticed a few things reading the July 6th letter.

On March 3, 2004, the Court issued its Order on the nearly one year old discovery requests. The Court ordered IBM, among other things, to provide the contact information for prospective trial witnesses

As I interpret the order, IBM was ordered to give full contact information on 1000 prospective trial witnesses agreed upon by SCO and IBM, not just the ones SCO wants.

Likewise, again pursuant to the Court order, SCO thereafter provided another list of 85 witnesses taken from IBM's second supplemental responses.

The supplemental response was filed for on April 19, 2004 and is not covered by the March 3rd order. The March 3rd order covered the original 7200 witnesses that IBM had named. It looks like once again that SCO is trying to play games with the court orders and hoping no one notices.

[ Reply to This | # ]

More IBM-SCO Love Letters Re Discovery
Authored by: belzecue on Friday, July 30 2004 @ 09:02 AM EDT
One paragraph replies from IBM. Darn. Mark, I guess you didn't get to waste
anybody's time except your own. I did enjoy your sturm und drang show, though.
Positively Shakespearean.

While you're writing these long-winded, pointless letters to your adversaries,
IBM's counsel prefers to spend its time productively... like figuring out the
next five turns in this legal chess match, since they already have twenty up
their sleeve.

Thank you, Mark, for being the blustering wind caught in IBM's sail.

[ Reply to This | # ]

Seems disingenuous to me.
Authored by: Anonymous on Friday, July 30 2004 @ 09:12 AM EDT
Does SCO really want the contact information for these 85 people? I doubt it.
SCO wants to force IBM to comply with SCO's interpretation of the court
order, or (more likely) to paint IBM as unwilling to provide discovery. If SCO
was actually interested in the information it's requesting, it could find it
much more quickly and much more cheaply on its own. For example,
switchboard.com gave me an address for one Ransom Love living in Utah in
about 3 seconds.

If SCO really needs contact information for these 85 people, it should simply
find them itself and make a big deal to the court about how IBM was
uncooperative and how SCO had to do extra work because of it.

[ Reply to This | # ]

Compare
Authored by: Anonymous on Friday, July 30 2004 @ 09:51 AM EDT
Compare:

(1) SCO's letter
Please be advised that these folks are identified by IBM as witnesses from whom IBM has provided documents. It is incongruous to provide documents from persons but then claim such persons are not witnesses in the case merely because IBM has failed to list them on Attachments B through E (although they clearly should be listed on attachments B through E).



To what they asked for before:


(2) http://www.groklaw.net/article.php?story=20031107030725166

SCO's Memo in support of their motion to compel. Note that they seek address information for attachments B, C, D (emphasized below)
Interrogatory No. 4

Identify all persons who have or had access to UNIX source code, AIX source code and Dynix source code, including derivative works, modifications, and methods. For each such person, set forth precisely the materials to which he or she had access.

IBM's Response:

In addition to the foregoing general objections, IBM objects specifically to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to admissible evidence. IBM also objects to this Interrogatory on the grounds that the phrase "derivative works, modifications, and/or methods," as used in this Interrogatory, is vague, ambiguous, and unintelligible. IBM further objects to this Interrogatory as overbroad to the extent it seeks the identification of "all" persons who have had access to the subject source code and information. Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM provides the following, based upon a reasonable search of IBM's records: a list of persons (including current and former IBM employees, IBM contractors and employees of IBM vendors) who may have or may have had access either to AIX source code or to AIX change and fix records (Attachment B); a list of persons at IBM who may have current access to Dynix code (Attachment C); and a list of persons (current and former IBM employees) who may have or may have had access to Unix System V source code (Attachment D). IBM's First Supplemental Responses and Objections to SCO's First Set of Interrogatories [emphasis added].

Deficiency:

IBM's response is inadequate because it fails to provide information sufficient to evaluate the list of names it provided. Attachment B is an alphabetical list of over seven thousand names, without more. IBM needs to provide the same level of detail, including contact information, about the persons identified in Attachment B as is contained in Attachment A to the extent such information is in IBM's possession, custody or control. Without such information, Plaintiff cannot meaningfully evaluate the identities of the approximately 7,000 persons listed in Attachment B. Attachment D suffers from the same deficiency as Attachment B -- that is, the same level of detail provided in Attachment A should also be provided in Attachment D, to the extent such information is in IBM's possession or control. Attachment C suffers from the same deficiency as Attachments B and D, but also has an additional deficiency in that it is limited to current IBM employees. IBM merged with Sequent Computer Company in or about 1999-2000. Therefore, it has in its possession, custody or control the business records of Sequent and should be able to fully respond to this interrogatory. Plaintiff is entitled to discovery that discloses the identity of all current and former IBM / Sequent employees who had access to Dynix.
In the same document, a bit further down Attachment E is explained:
Interrogatory No. 5

Identify all 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.

IBM's Response:

In addition to the forgoing general objections, IBM objects specifically to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to admissible evidence. IBM also objects to this Interrogatory on the grounds that the phrase "derivative works, modifications, and/or methods," as used in this Interrogatory, is vague, ambiguous, and unintelligible. IBM further objects to this Interrogatory as overbroad to the extent it seeks the identification of "all" persons who have worked on developing the subject source code and information. Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM provides the following, based upon a reasonable search of IBM records: a list of persons (including current and former IBM employees, IBM contractors and employees of IBM vendors) who may have or may have had access either to AIX source code or to AIX change and fix records (Attachment B); a list of persons at IBM who may have current access to Dynix code (Attachment C); and a list of persons (including current and former IBM employees) who may have made contributions to Linux (Attachment E). IBM's First Supplemental Responses and Objections to SCO's First Set of Interrogatories.

Deficiency:

This interrogatory did not request IBM to list persons who had access to source code, as did Interrogatory No. 4, but rather those who "work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux." The lists may overlap to the extent, for example, that someone who is developing code for AIX would necessarily have access to some AIX source code, but it does not necessarily follow that all persons who had access to AIX source code actually worked on its development. Since the lists are, by definition, not coextensive, Attachments B and C are deficient.

Attachment B is a list of approximately seven thousand names, in alphabetical order. IBM describes this list as containing the names of persons "who may or may have had access" to AIX source code. It says nothing about the files to which they contributed, nor does it provide any contact information. Attachment C is a list of fifty-one names, in alphabetical order. IBM describes this list as containing the names of persons "who may have current access to Dynix code." It says nothing about the files to which they contributed, nor does it provide any contact information. Attachment E, although closer to the mark, is also deficient. It lists the names of approximately two hundred and sixty persons, also in alphabetical order, "who may have made contributions to Linux." (emphasis added). The list does not specify to which files these persons contributed, if any, nor does it provide any contact information.

The referenced attachments provide no other information than the names themselves. They are not responsive to the most important part of the interrogatory, and as such they are nearly useless as a starting point for further discovery.



Compare also:


(1) SCO's letter

On March 3, 2004, the Court issued its Order on the nearly one year old discovery requests. The Court ordered IBM, among other things, to provide the contact information for prospective trial witnesses -- the exact information requested by SCO that IBM had refused to provide for nearly a year. Pursuant to that Court Order, on March 26, 2004, SCO again requested information for selected witnesses. Remarkably, IBM still refused to provide information for 49 of those witnesses and continues that practice as to a significant number of other witnesses. Likewise, again pursuant to the Court order, SCO thereafter provided another list of 85 witnesses taken from IBM's second supplemental responses to IBM's first set of interrogatories and requested the appropriate contact information. IBM again has failed to provide the required information that is needed to prepare for trial.



(2) To what the court ordered

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


Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Comment by discovery experts?
Authored by: sphealey on Friday, July 30 2004 @ 10:03 AM EDT
Could someone familar with discovery disputes comment on how this will appear to
the judges? I am told that judges in general despise arguments over discovery
and come down hard on any party they see as obstructing.

From a layman's point of view, it appears that IBM is the obstructing party
here. Is there some key language or rule of civil procedure that makes it
evident that that is not the case?

sPh

[ Reply to This | # ]

Yes it's urgent - look at the dates
Authored by: Anonymous on Friday, July 30 2004 @ 10:08 AM EDT
Yes SCO desparately needs this information

Look at the dates....

IBM says they are willing to provide the information on June 16th, and wants to
arrange a swap

So, SCO, desparately needing the information as it does, does what you would
expect: wait three weeks, ignore IBM's offer, and file a renewed motion to
compel discovery.

</sarcasm>

And by one of those bizarre coincidences, SCO's renewed motion to compel
discovery coincides with SCO's rule 56f opposition to IBM's PSJ motion, and is
referenced therein.

[ Reply to This | # ]

SCO continues to admit it has no evidence
Authored by: Anonymous on Friday, July 30 2004 @ 11:51 AM EDT

If you have evidence, you don't need more discovery.

I think IBM just agreed to another delay so that their
attorneys could have a vacation with their wives and
kids before school starts.

Maybe Novell will file for summary judgment next week.

[ Reply to This | # ]

OT: SCO name change to USL - effect on depositions etc
Authored by: Anonymous on Friday, July 30 2004 @ 12:29 PM EDT
Okay SCO tried to register USL as a trademark, and Stowell hinted they may
change their company name.

Imagine the effect on interpreting the depositions (that have already occurred)

e.g. Witness X might have said something like "USL may have those rights,
but they gave them away."

or

e.g. Witness Y might have said "USL agreed to settle the BSD case because
of...."

or

e.g. Witness Z might say "I don't think USL objected to the ELF
standard."

etc (not to mention any USL copyright notices in BSD etc)



Now SCO will retrospectively re-interpret Witness X's or Y's statement to be
about them (even though the statement was intended to be about the real USL).
And thus will claim, either superior knowledge to witness X or Y or Z's
statement.

Or perhaps some witness conceded that USL had certain rights, and now SCO want
to claim the witness meant that they had these rights, (whereas the witness
meant the real USL)

[ Reply to This | # ]

Subpoena dodging
Authored by: Anonymous on Friday, July 30 2004 @ 12:59 PM EDT
<tinfoil-hat>

If SCO knows which of the SCO/Canopy associates that IBM has contact info for,

It knows only these ones need to dodge a subpoena, and the rest need not worry

</tinfoil-hat>

[ Reply to This | # ]

  • Scary - Authored by: Adam B on Friday, July 30 2004 @ 02:48 PM EDT
    • Scary - Authored by: stuart_b on Friday, July 30 2004 @ 07:02 PM EDT
More IBM-SCO Love Letters Re Discovery
Authored by: Anonymous on Friday, July 30 2004 @ 02:56 PM EDT
"Over one year ago, SCO served five interrogatories seeking basic information in this case, including the identity of pertinent witnesses. In response, IBM listed over 7,000 potential witnesses -- obviously a vastly over-inclusive list designed to effectively withhold rather than provide the information IBM was obliged to produce."

Interesting logic... IBM produces an "over-inclusive" list that is designed to withhold information.

Is it me, or does this sound contradictory?

[ Reply to This | # ]

OT: How bad could this possibly be?
Authored by: Adam B on Friday, July 30 2004 @ 03:50 PM EDT
It's kind of hollow words that we are not showing code, because we have shown examples and if we keep showing it, they'll just take that out and say 'no harm no foul.' That doesn't solve the problem. -- Chris Sontag

Here's an interesting line of reasoning...suppose SCO is found to own the copyrights they allege. Suppose IBM did dump this code into linux. Is Chris even right?

Well, yes and no. Yes he is right that Everyone Who Uses Linux in the Whole Wide World is liable. Yes, even though they did not know they were infringing.

But how much? Well, in SCOs (and I mean the actual SCO here) heyday, their profits hovered around $5 million. So, four years of around $5 mil, throw in a 100% growth over 4 years (25% per year is awesome for a company that size), and you get $25 million. But 92% of that was attributable to the OpenServer revenue, which Tarantella retained the rights to, so we are down to $2 million dollars.

Well, two million dollars is still a lot, though, recoverable from every person in the whole world. But a clever reader of the court notes surrounding the US copyright code will note that:

4. Where the infringements of one work were committed by a single infringer acting individually, a single award of statutory damages would be made. Similarly, where the work was infringed by two or more joint tortfeasors, the bill would make them jointly and severally liable for an amount in the $250 to $10,000 range. However, where separate infringements for which two or more defendants are not jointly liable are joined in the same action, separate awards of statutory damages would be appropriate.

Well, it's pretty clear that Everyone in the Whole Wide World who uses Linux, since they're all using the same product distributed from the same source by the same people, are jointly liable. Now, ignore the part about the monetary amounts -- those are statutory damages which SCO would certainly not seek, as innocence of intent can reduce those to $100 or so per incident of infringement (and yes, the code specifically states that infringements of multiple elements in a compilation, such as UNIX Sys V, do not count as multiple incidents of infringement). They would be seeking loss of profits, and gains by the infringers (which, due to the language of the statute, would be zero).

So, by my math, they are entitled to have everyone who uses Linux to get together and pay them a total of $2M. Innocence of intent easily gets us out of paying their court costs (thank goodness), and they might be entitled to an injunction against using or distributing Linux until their code is ripped out.

Where is the hole in my logic / casework?! I know it has to be there, or we wouldn't be sweating bullets even at the beginning of this whole thing. We would have just chipped in a nickel, done some coding, and gone home. Where is that $5B per minute or whatever coming from? Someone help me understand our enemy.

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More IBM-SCO Love Letters Re Discovery
Authored by: Anonymous on Friday, July 30 2004 @ 06:14 PM EDT
Wow, SCO actually has the cheek to claim they need time to get contact info for
Canopy Group execs.

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These letters show TSG making mountains out of questionable requests
Authored by: Anonymous on Saturday, July 31 2004 @ 12:00 AM EDT
TSG is making a big deal of contact information. Meanwhile, TSG hopes
people forget that TSG provided no proof of copyright violations in Linux.

Maybe the judge will weigh IBM's refusal to do TSG's lawyers' work as
equivalent to TSG having no evidence. Nah!

The TSG lawyers are paid BIG bucks to do this whiny kind of legal work.
McBride will pocket his many millions. The TSG lawyers will split up even
more millions than McBride grabs. And McBride's friends will get their
percent of the action.

Do they care about software when they're raking in money?

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"SCO (USL)"
Authored by: jog on Saturday, July 31 2004 @ 01:31 AM EDT
SCO referes to itself as "(USL)"!
Use the search function at sco.com for "usl"
Okay so it's only parenthetically but it
may be a hint.

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Heisie's arguments are rational?
Authored by: mobrien_12 on Saturday, July 31 2004 @ 01:54 AM EDT
I read the letters and I start to think, "ok so what's so wrong with
Heisie's request?" If IBM already had the contact information for the 7000
witnesses, it doens't really cost much to give it to SCOG, even if they could
get it themselves.

It goes on and on and on and I'm starting to think Heisie's right.

But then IBM finally says that they will do it, but expect the same in return.


Heisie replys with a temper tantrum and says he'll go to the Magistrate and ask
her to compel the information, rather than play nice and give the same kind of
discovery he asks for.

This doesn't make sense to me. Am I missing something?



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