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IBM's Motion to Strike Sontag Declaration & Memo in Support - as PDF and text
Saturday, August 07 2004 @ 12:18 AM EDT

It's no more Mr. Nice Guy. IBM obviously has had it with SCO's maneuvers, and they have decided to respond in kind. SCO, in the last blizzard of motions, used every technical detail, every possible angle, with the result that IBM had to answer silly legal papers. So, now they give SCO not one inch. You want to play like this, they seem to be saying? Very well. We know how.

In IBM's Motion to Strike the Declaration of Christopher Sontag and the Memorandum in Support of Motion to Strike the Declaration of Christopher Sontag, IBM tells the court that Sontag's Declaration is legally deficient. He isn't established as an expert witness, and he certainly has no personal knowledge of IBM's software management and revision control system, CMVC, so all of his conjectures are legally inadmissable, either as an expert or as a lay person with personal knowledge. Or in plain English, he doesn't know what he is talking about.

Now, does IBM know that SCO can next draw up a supplementary declaration of some kind, and establish Sontag's credentials, if he has any, to keep the Declaration in play? Yes, they know that they can try that. So it seems to me that they are saying to SCO, you are forcing us to answer unnecessary motions. Let's *both* get busy answering things that decent, normal lawyering makes unnecessary. That way the legal expense will be equalized. You make us pay. We make you pay. You harrass us. We will harrass you. Note they also request oral argument on this motion and request it be at the same time as argument on SCO's Memorandum Regarding Discovery and its "Renewed" Motion to Compel.

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



SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

______________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_______________________

DEFENDANT/COUNTERCLAIM-PLAINTIFF IBM'S MOTION TO STRIKE
THE DECLARATION OF CHRISTOPHER SONTAG

(ORAL ARGUMENT REQUESTED)

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

________________________

Pursuant to DUCivR 7-1(a) and Federal Rules of Evidence 602, 701, and 702, Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits this Motion to Strike the July 12, 2004 Declaration of Christopher Sontag ("Sontag Decl."), submitted by Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO") in support of its Reply Memorandum Regarding Discovery. IBM respectfully submits that the Court should strike the Sontag Declaration for at least the following reasons:

1. The Sontag Declaration contains extensive testimony about an IBM-owned and IBM-operated tool, Configuration Management Version Control ("CMVC"), a software management and revision control system. In particular, the Sontag Declaration offers testimony about the operation of CMVC and sets forth opinions regarding how IBM should search in and compile information from CMVC.

2. The Sontage Declaration contains no testimony at all, however, showing that Sontag has any personal knowledge of CMVC, or of revision control systems tools generally. (See Sontag Decl. ¶ 1.)

3. The Sontag Declaration also contains no information whatsoever about Mr. Sontag's responsibilities, training, education, or work history, much less information sufficient to qualify him as an expert in the fields of computer science, operating system development, revision control systems, or discovery or litigation support in any of these areas. (Id.)

4. Because SCO has failed to show that Mr. Sontag either has personal knowledge of the matters in his declaration or is qualified as an expert witness by means of his experience or education, IBM respectfully requests that the Court strike his declaration and exclude it from consideration in ruling upon SCO's Memorandum Regarding Discovery and its "Renewed" Motion to Compel.

IBM also respectfully requests oral argument on this motion, and that such argument be heard at the same time as argument on SCO's Memorandum Regarding Discovery and its Renewed Motion to Compel. This motion is further supported by the memorandum of points and authorities submitted herewith, by the June 23, 2004 and August 4, 2004 declarations of Joan Thomas, IBM's Program Director for AIX, HPC Program Manager, and pSeries Software Development Operations, and by such argument as shall be presented at hearing.

DATED this 4th day of August, 2004.

SNELL & WILMER L.L.P.

_[signature]_____
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff International
Business Machines Corporation


CERTIFICATE OF SERVICE

I hereby certify that on the 4th day of August, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, FL]

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address, NY]

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

______________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_______________________

DEFENDANT/COUNTERCLAIM-PLAINTIFF IBM'S MEMORANDUM IN SUPPORT OF MOTION TO STRIKE
THE DECLARATION OF CHRISTOPHER SONTAG

(ORAL ARGUMENT REQUESTED)

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

________________________

Defendant/Counterclaim Plaintiff International Business Machines Corporation ("IBM") respectfully submits this Memorandum in Support of its Motion to Strike the Declaration of Christopher Sontag, dated July 12, 2004, submitted by Plaintiff/Counterclaim Defendant The SCO Group, Inc. ("SCO") in support of its Memorandum Regarding Discovery.

Preliminary Statement

In support of its Memorandum Regarding Discovery, SCO has submitted (in reply) the Declaration of Christopher Sontag (hereinafter "Sontag Decl."), which purports to describe in great detail the operation of IBM's internal source code control system -- known as Configuration Management Version Control ("CMVC") -- and the manner in which materials can be produced from IBM's system. Not surprisingly, however, Mr. Sontag, a SCO employee, does not have (and does not even attempt to claim any) personal knowledge concerning CMVC. Nor has Mr. Sontag been qualified as an expert competent to testify on any of the specialized fields of knowledge upon which he opines at length. Instead, Mr. Sontag's declaration consists entirely of improper speculation and argument (and is replete with inaccuracies) and should be stricken from the record.

Argument

A. The Court Should Strike the Sontag Declaration Because It Fails to Show Personal Knowledge.

The Court should strike Mr. Sontag's declaration because he fails to show any personal knowledge of the subject matter of his testimony. It is well-established that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed. R. Evid. 602; see Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541-42 (10th Cir. 1995). Moreover, a lay witness's testimony "in the form of opinions or inferences is limited to those opinions or inferences which are . . . rationally based on the perception of the witness." Fed. R. Evid. 701; see Gardner v. Chrysler Corpo., 89 F.3d 729, 737 (10th Cir. 1996). Thus, a lay witness's opinion testimony is not admissable if it is not "grounded in observation or other first-hand experience." See PAS Communications, Inc. v. Sprint Corp., 139 F.Supp. 2d 1149, 1181-82 (D. Kan. 2001).

Here, Mr. Sontag has submitted a sworn declaration expounding at length about IBM's CMVC system in particular and source code revision control systems generally, all in support of his personal opinion that IBM has "exaggerate[d]" the burden it would face if ordered to produce all the source code for AIX and Dynix/ptx going back twenty years, as SCO seeks both in its Memorandum Regarding Discovery and its recently-filed "Renewed" Motion to Compel. (Sontag Decl. ¶ 11.) Mr. Sontag's declaration, however, contains no statement showing he is personally familiar with IBM's CMVC system or even source code revision control systems at all. Mr. Sontag -- a SCO employee -- plainly has no personal knowledge of the subject matter of his testimony. Indeed, he instead claims to base his declaration in part on information from unnamed "reliable sources" and on "information and belief". (Sontag Decl. ¶ 1.) This is improper and Mr. Sontag's declaration should be stricken on this ground alone.

Mr. Sontag's lack of personal knowledge is further reflected by the content of his declaration, which is riddled with inaccuracies and false assumptions concerning CMVC. As IBM has described to this Court, IBM uses CMVC to provide shared access to source code files used in the development of various IBM products, to track changes made to source code files used in the development of various IBM products, to track changes made to source code files, and to ensure that only properly authorized individuals have access to such files. (6/23/04 Declaration of Joan Thomas ¶ 6, attached as Exhibit A to IBM's Opposition to SCO's Memorandum Regarding Discovery.) Although CMVC has been used in AIX development since 1991, the system also is used by many other areas inside of IBM for the development of other, unrelated products. (Id. ¶ 5.) CMVC keeps track of hundreds of thousands of source code files, containing billions of lines of code, whether or not they end up in an actual version or release of AIX, or in any of the other hundreds of IBM products for which it is used. (Id. ¶ 6.)

In his declaration, Mr. Sontag argues, among other things, that IBM has used a "bottom up" approach in describing the significant burden associated with searching for and compiling the information SCO seeks from CMVC, and that IBM can and should use a "top down" approach instead, which he defines as "simply . . . look[ing] up . . . AIX file names by the name 'AIX.'" (Sontag Decl. ¶ 18.) Mr. Sontag assures the Court that his proposed "top down" method for the use of IBM's system "will not only work, but will be sufficient and is the most time- and labor-efficient means for IBM to collect the CMVC information SCO requires," that IBM's AIX directories are "easily recognizable" in CMVC, and that "producing the materials SCO requests . . . should not take more than a few weeks." (Id. ¶ ¶ 3, 11-19, 22, & 23.) Even setting aside the fact that he has no personal knowledge of the operation of CMVC, Mr. Sontag's conjecture regarding his proposed "top-down" approach is simply wrong, as set forth in the accompanying Declaration of Joan Thomas. (See, e.g., 8/4/04 Declaration of Joan Thomas ¶ ¶ 7-8) ("Contrary to Mr. Sontag's assumptions, there is no directory or subdirectory name in CMVC that contains the word 'AIX'. Even the names of the files themselves do not usually contain the word 'AIX.' . . . [D]etermining which components in CMVC are part of the AIX operating system is a time-consuming process that requires engineers intimately knowledgeable about the AIX operating system and about CMVC to engage in a time-consuming, multi-step process to extract the source code files that are part of the AIX operating system from the tens of thousands of other source code files that are not part of the operating system.")

Mr. Sontag's declaration accordingly should be stricken in its entirety. Mr. Sontag has introduced no evidence "sufficient to support a finding that the witness has personal knowledge" of the subject matter of his declaration. Fed. R. Evid. 602. Moreover, the opinions stated throughout his declaration (and the conclusion SCO would have this Court draw -- that IBM's burden in producing all of the source code ever created for AIX and Dynix in the past two decades is insubstantial -- is not only not "rationally based on the perception of the witness," it simply cannot have been "perceived" by this witness at all. Fed. R. Evid. 701 (emphasis added). In fact, as discussed, Mr. Sontag's opinions are based on false assumptions as to the operation of IBM's CMVC system.

B. The Court Also Should Strike the Sontag Declaration Because It Does Not Qualify As Admissable "Expert" Opinion Testimony.

SCO also has not laid any foundation to offer Mr. Sontag as an "expert" witness, which might otherwise excuse his failure to show personal knowledge. In the Tenth Circuit, as elsewhere, lay witnesses are not permitted to "express an opinion as to matters . . . which require the special skill and knowledge of an expert witness." Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979); 374 F.3d 917, 929 (10th Cir. 2004). "A holding to the contrary would encourage [parties] to offer all kinds of specialized opinions without pausing first properly to establish the required qualifications of their witnesses." United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997). "When the subject matter of proffered testimony constitutes 'scientific, technical, or other specialized knowledge,'" a witness must be qualified as an expert under Rule 702. Telebank, 374 F.3d at 929. The field of computer science in particular "is precisely the type of 'specialized knowledge' governed by Rule 702." Hilgraeve Corp. v. McAfee Assoc. Inc., 70 F. Supp. 2d 738, 755 (E.D. Mich. 1999) (citations omitted), vacated on other grounds, 224 F.3d 1349 (Fed. Cir. 2000).

Mr. Sontag's declaration states only that he is one of SCO's Senior Vice Presidents and its General Manager. It contains no information whatsoever about his responsibilities, training, education, or work history, much less information sufficient to qualify him as an expert in the fields of computer science, operating system development, revision control systems, or discovery or litigation support in any of these areas. As discussed above, despite this silence, Mr. Sontag offers numerous opinions in his declaration, ranging from an (incorrect) theory of CMVC's structure, to the exact length of time (two days) it should take IBM to copy the materials from CMVC onto DVDs, to the claim that IBM "exaggerates the burden it faces" associated with producing the billions of lines of AIX and Dynix source code SCO requests. (Sontag Decl. at ¶ ¶ 11, 20-30, 34.) Mr. Sontag (since he has no personal knowledge) is not permitted to offer the numerous opinions, inferences, and analogies he draws and discusses at length in his declaration, without establishing that he is a qualified expert witness competent to testify to these matters. As he makes no such attempt, Mr. Sontag's opinions should be disregarded.

Whether as a lay or an expert witness, therefore, Mr. Sontag's testimony is not competent evidence, and his declaration should be excluded in its entirety.

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court strike the Declaration of Christopher Sontag submitted in support of SCO's Reply Memorandum Regarding Discovery and not consider it in ruling on that memorandum and on SCO's "Renewed" Motion to Compel.

DATED this 4th day of August, 2004.

SNELL & WILMER L.L.P.

_[signature]_____
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff International
Business Machines Corporation


CERTIFICATE OF SERVICE

I hereby certify that on the 4th day of August, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch (w/ exhibits)
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack (w/ exhibits)
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, FL]

Robert Silver (w/ exhibits)
BOIES, SCHILLER & FLEXNER LLP
[address, NY]


  


IBM's Motion to Strike Sontag Declaration & Memo in Support - as PDF and text | 213 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
IBM's Motion to Strike Sontag Declaration & Memo in Support - as PDF and text TYPOS HERE
Authored by: entre on Saturday, August 07 2004 @ 01:22 AM EDT
Place typos HERE

[ Reply to This | # ]

OT here
Authored by: Anonymous on Saturday, August 07 2004 @ 01:26 AM EDT
comedy, etc

[ Reply to This | # ]

IBM's Motion to Strike Sontag Declaration & Memo in Support - as PDF and text
Authored by: lstandage on Saturday, August 07 2004 @ 01:36 AM EDT
To quote Data in Star Trek: Insurrection:

"Saddle up, lock and load!"

---
with IANAL;
use IANAL;

[ Reply to This | # ]

IBM's Motion to Strike Sontag Declaration & Memo in Support - as PDF and text
Authored by: farhill on Saturday, August 07 2004 @ 02:13 AM EDT
This seems like more than tit-for-tat lawyer bickering to me. IBM has a reasonable complaint that Sontag is making broad claims on a topic which he most likely has no clue (a pattern among SCO execs...) Sontags background: http://thescogroup.com/ company/execs/csontag.html seems to be entirely in management. That kind of management is not at all related to Source Code Management (SCM).

I was in charge of SCM for some commercial products of modest size and age compared to what IBM must have, and even they tended to be pretty hairy.

Think about how many changes in the underlying system/file formats/policies must have happened in an SCM system 20 years old ? Never mind how many ugly hacks were put in to smooth over those transitions. Now think about trying to extract every revision related to AIX and dynix (which was aquired, and so must have been imported at some point from some other system) in some sensible form. If CMVC is particulary nice and well managed, IBM might be overstating the difficulty, but Sontag certainly isn't in a position to make a sworn statement on that.

[ Reply to This | # ]

Bridge
Authored by: Mysjkin on Saturday, August 07 2004 @ 02:23 AM EDT
Trolls under here, please.

M.

[ Reply to This | # ]

  • Help! - Authored by: Anonymous on Saturday, August 07 2004 @ 03:33 AM EDT
    • Help! - Authored by: Anonymous on Saturday, August 07 2004 @ 03:48 AM EDT
    • Help! - Authored by: jog on Saturday, August 07 2004 @ 03:48 AM EDT
      • Help! - Authored by: Anonymous on Saturday, August 07 2004 @ 01:22 PM EDT
    • Help! - Authored by: Mysjkin on Saturday, August 07 2004 @ 03:51 AM EDT
      • Bad link - Authored by: johan on Saturday, August 07 2004 @ 10:08 AM EDT
        • Bad link - Authored by: Anonymous on Saturday, August 07 2004 @ 10:58 AM EDT
        • Bad link - Authored by: Mysjkin on Saturday, August 07 2004 @ 12:52 PM EDT
      • Help! - Authored by: Anonymous on Saturday, August 07 2004 @ 12:21 PM EDT
    • Help! - Authored by: archonix on Saturday, August 07 2004 @ 06:20 AM EDT
    • Help! - Authored by: Anonymous on Saturday, August 07 2004 @ 10:50 AM EDT
      • Help! - Authored by: Anonymous on Saturday, August 07 2004 @ 12:01 PM EDT
        • Help! - Authored by: red floyd on Saturday, August 07 2004 @ 11:46 PM EDT
      • Help! - Authored by: oldgreybeard on Saturday, August 07 2004 @ 12:41 PM EDT
      • Help! - Authored by: swengr on Saturday, August 07 2004 @ 07:17 PM EDT
        • Help! - Authored by: Anonymous on Tuesday, August 10 2004 @ 03:05 AM EDT
IBM's Motion to Strike Sontag Declaration & Memo in Support - as PDF and text
Authored by: Anonymous on Saturday, August 07 2004 @ 02:38 AM EDT
Beautiful. Short, sweet and directly to the point.

If you never thought you could write a brief and wanted to learn, this is a
great place to read great legal writing.

Thanks.

[ Reply to This | # ]

I think IBM just said...
Authored by: Anonymous on Saturday, August 07 2004 @ 02:49 AM EDT
"The courtesy that we extend to lying lawyers does not extend to vice
presidents and other amateurs!"

[ Reply to This | # ]

OT: orgon accumulators, earth raydiation protection and SCO sueing in Germany?
Authored by: Gerhard on Saturday, August 07 2004 @ 03:04 AM EDT

In its report on the latest Lyons Tale, German computer magazine CT http://www.heise.de/newstick er/meldung/49827 claims in the last two sentences that there are pending lawsuits for comparison of SCO and sellers of earth radiation protection and orgon accumulators. There is no reference given. I could not google anything usefull. Does somebody know what this is about?

[ Reply to This | # ]

IBM should have made it clear....
Authored by: Franki on Saturday, August 07 2004 @ 03:17 AM EDT
I'm of the "opinion" that IBM should have made it clear that their
code revision software was designed more to allow the pulling out of the
"latest" revision of software, which of course they did and already
supplied to SCO..

CVS software wasn't really designed to do what SCO apparently wants IBM to do..
It would be possible, even reasonably easy on a much smaller, younger code base
then AIX/Dynix, but it would be a total mess to try and pull out 20 years of
code snippets, most of which would overlap to some degree and give SCO a reason
to ask for another years delay.

I thought at first that maybe IBM should do exactly what sontag asked, send
them any file with the chars AIX in it.. that might amount to a couple of
thousand files. but then I realised that SCO would then claim that IBM was
"hiding" the rest of it.

IBM have to fight this, it would be stupid of them not to.


rgds

Franki

---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86

[ Reply to This | # ]

IBM's Motion to Strike Sontag Declaration & Memo in Support - as PDF and text
Authored by: Anonymous on Saturday, August 07 2004 @ 05:30 AM EDT
Not wanting to support SCO:

Are IBM really wanting us to believe that they have no way of telling which
files in their Revision Control System are for AIX (or any other of their
products)? It this was true, why in the hell would they use it?

[ Reply to This | # ]

IBM's Motion to Strike Sontag Declaration & Memo in Support - as PDF and text
Authored by: Anonymous on Saturday, August 07 2004 @ 07:12 AM EDT
Next time SCO will come up that they own IBM's version control tool and IBM uses
it without license.

[ Reply to This | # ]

IBM should have Harrop striken too
Authored by: _Arthur on Saturday, August 07 2004 @ 07:30 AM EDT
IBM should motion to have parts of the Harrop Affidavit striken out.

In a wide part of his affidavit, Harrop merely raise the possibility that some
hypothetical IBM programmer or Linux contributor might testify they had
knowledge of UNIX prior writing code for AIX or Linux....

That's not even hearsay; that's heaping conjecture upon conjecture.
Such ramblings have no place into Affidavits.

_Arthur

[ Reply to This | # ]

Start of a pattern?
Authored by: PeteS on Saturday, August 07 2004 @ 07:32 AM EDT
A little while ago, DCC Moved to strike SCO testimony of William Broderick

It seems to be clear that IBM is now laying a foundation (well, the Nazgul are) that few, if any, of SCOX statements are to be believed by the court.

How delicious

PeteS

---
Today's subliminal thought is:

[ Reply to This | # ]

Unfair to IBM + reverse engineered Sontag declaration
Authored by: Anonymous on Saturday, August 07 2004 @ 07:58 AM EDT
I think the article is unfair to IBM

IMHO IBM is moving to strike the Sontag declaration for what I believe are
perfectly good reasons. He lacks personal knowledge and isn't an established
expert. It is unfair to IBM to say they are filing an unnecessary motion as
some form of retaliation for SCO's blizzard of discovery motions.

We haven't seen his declaration, but we have a pretty good idea what he says
because of IBM-199, IBM-206 and IBM-213. In the declaration, among other things
he says that IBM can use a different searching method (what he characterizes as
"top down" instead of "bottom up"), that the searching
method will only take a few weeks to produce, and that IBM can convert CVMC to
DVDs in 2 days. How could he know any of this?

What's more Sontag says his declaration is not based on personal knowledge, but
is based on "information and belief", and unnamed "reliable
sources". Again same point, lack of personal knowledge and not expert
status (he even appears to be telling the court that!)

Here is my 3rd attempt to reverse engineer the Sontag declaration (this and 2
previous versions have been posted in a previous story). Please remember we
haven't seen the declaration of the alleged "facts" in the
declaration, so my reverse engineered points are the points that the alleged
facts supposedly support, rather than the facts themselves (which is what the
declaration would presumably contain). Remember also I have tried to summarize
some of the points from the memos, so don't read too much into the language or
exact wording. And errors are of course possible.

Quatermass
IANAL IMHO etc

Sontag
======
General: SCO seeks discovery the most important contributions made ot Linux
(IBM-206: Discovery to Determine Identities of Contributors and Contributions to
Linux)

1. Declaration is based on unnamed "reliable sources" and on
"information and belief" (IBM-213 pp3)

3.
AIX directories in CVMC are "easily recognizable" and that
"producing the materials that SCO requests... should not take more than a
few weeks". (IBM-213 pp4)

4.-23. Comparing Linux and Unix is hard without roadmaps. 66,000X58,000
comparisons for initial review would take 25,000 man years. Following initial
review, SCO must conduct a second level review which is also lengthy. (IBM 206:
Comparison of Source Code)

4. Linux contains approximately 8,750 individual files and 4 million lines of
code, in the kernel alone. (IBM-206 14).

4. Many individuals familiar with Linux recognize that source code therein may
infringe SCO's copyrights. (IBM 206: Recognition of Potentially Infringing
Material in Linux)

6. Without access to the evolution of AIX and Dynix, SCO could not answer which
lines of code in UNIX System V, IBM's contributions to Linux, via AIX and Dynix,
are derived. (IBM-206 59).

8. IBM's CC 10 amounts to a request for, among other things, a
clean bill of health for the entirety of Linux - including each of its
approximately 8,750 individual files and 4 million lines of code in the kernel
alone. (IBM-206 40).

10.-20.
Automated search tools are limited. After locating similar blocks of code manual
review must be done. A manual review is only possible if each version of the
code can be reviewed to follow changes from one version to the next. (IBM-199
Harrop 94)

11.
It should take IBM two days to copy CMVC info onto DVD. IBM "exaggerates
the burden it faces". (IBM-213 pp6).

11.-19.
AIX directories in CVMC are "easily recognizable" and that
"producing the materials that SCO requests... should not take more than a
few weeks". (IBM-213 pp4)

14.-23.
Comparing Linux and UNIX is hard. SCO has made educated guesses about what to
compare (e.g. files with similar names, components with similar functionality).
The comparisons done are only a very small fraction of the total number of
comparisons that could be made. (IBM-199 Harrop 95)

15.
Comparing Linux and UNIX is hard. It's easier if they trace the history of AIX
and Dynix, compare that to UNIX, then the matches found could suggest areas to
compare between UNIX and Linux. Otherwise the comparison could take 35 man years
to search Linux code for evidence of copying. (IBM-199 Harrop 59)

15.
Comparing UNIX and Linux is hard there are lots of lines. It could take 35 man
years. Automated search tools are limited. SCO and its experts have not sought
to undertake any wholesale comparison of the source code in any two computer
operating systems. (IBM-199 Harrop 93) (IBM-206: Examination of Multiple
Versions of AIX and Dynix)

15.
IBM's CC 10 amounts to a request for, among other things, a
clean bill of health for the entirety of Linux - including each of its
approximately 8,750 individual files and 4 million lines of code in the kernel
alone. (IBM-206 40).

18.
IBM should use a "top down" rather than a "bottom up"
approach to search CVMC for AIX files. The "top down" approach
"will not only work, but will be sufficient and is the most time- and
labor-efficient means for IBM to collect the CMVC information SCO
requires". (IBM-213 pp4)


18.-23.
Comparing UNIX and Linux is hard there are lots of lines. It could take 35 man
years. Automated search tools are limited. SCO and its experts have not sought
to undertake any wholesale comparison of the source code in any two computer
operating systems. (IBM-199 Harrop 93)

20.-30.
It should take IBM two days to copy CMVC info onto DVD. IBM "exaggerates
the burden it faces". (IBM-213 pp6).

22.-23.
AIX directories in CVMC are "easily recognizable" and that
"producing the materials that SCO requests... should not take more than a
few weeks". (IBM-213 pp4)

24.-26.
SCO seeks to depose the persons and entities that contributed source code to
Linux. Such depositions will reduce the extremely time-consuming direct
comparisons of source code that would otherwise be required. (IBM-206:
Depositions of Contributors to Linux Are Essential) (IBM-206: Depositions of
Contributors to Linux)

24.-28.
The depositions of (at least) the principal IBM and Sequent employees
who were permitted to and did access the UNIX software prior to the advent of
AIX and Dynix not only may provide
evidence in support of SCO's claims, but also may permit SCO to identify other
persons who in fact had access to UNIX. That information will, in turn, permit
SCO more reasonably to determine which of the individuals who had access to UNIX
to depose. (IBM-206: Depositions of Persons with Access to UNIX)

24.-28.
IBM has failed to produce the discovery that would allow SCO to depose principal
programmer contributors to streamline the discovery process on issues of
non-literal copying (IBM-206: Comparison of Source Code)

24.-28.
Mr. Russel (of IBM) and other programmers can also identify contributors to the
Linux code and can show the necessary access to AIX and Dynix that these
contributors had. (IBM-206: Depositions of Contributors to Linux)

29.-54.
Comparing Linux and UNIX is hard. It's easier if they trace the history of AIX
and Dynix, compare that to UNIX, then the matches found could suggest areas to
compare between UNIX and Linux. Otherwise the comparison could take 35 man years
to search Linux code for evidence of copying. (IBM-199 Harrop 59) (IBM-206:
Examination of Multiple Versions of AIX and Dynix)

31.-35.
Tracing derivation of SCO owned UNIX code into Linux would be facilitated if SCO
had access to CVMC (IBM-199 Harrop 61) (IBM-206: Examination of Multiple
Versions of AIX and Dynix)

34.
11.
It should take IBM two days to copy CMVC info onto DVD. IBM "exaggerates
the burden it faces". (IBM-213 pp6).

35.-36.
SCO seeks all interim versions, version logs, source code control info for Dynix
and AIX since 1984. (IBM-199 Harrop 60) (IBM-206: Examination of Multiple
Versions of AIX and Dynix)

36.-42.
Examination of lineage of code sequences faces substantial obstacles. (IBM-199
Harrop 65) (IBM-206: Examination of Multiple Versions of AIX and Dynix)

46.-54.
SCO seeks to depose the persons and entities that contributed source code to
Linux. Such depositions will reduce the extremely time-consuming direct
comparisons of source code that would otherwise be required. (IBM-206:
Depositions of Contributors to Linux)

50.-54.
SCO seeks all design documents, whitepapers and programmer notes since 1984.
Design documents also list authors of code whom SCO could depose. (IBM-199
Harrop 63) (IBM-206: Examination of Multiple Versions of AIX and Dynix)

53.
Programming notes list authors of code whom SCO could depose to help SCO
prioritize its search for substantially similar Linux code. (IBM-199 Harrop 64)
(IBM-206: Examination of Multiple Versions of AIX and Dynix)

57.
There is no roadmap that that will allow SCO to trace UNIX code into Linux
(IBM-199 Harrop 41, IBM-206, 12)

57.
There is no list of all Linux contributors. SCO must review Linux change log.
The change log data is incomplete and contains incorrect data, obsolete data,
nicknames. SCO has initiated review and created a partial list of Linux
contributors (IBM-199 Harrop 42, IBM-199 Harrop 51, IBM-206 12)

57. Linux is a computer operating system that was developed through
decentralized contributions of computer code by thousands of developers around
the world (IBM-206 8)

57. Torvalds chooses which third party suggestions to incorporate (IBM-206 10).

57. Torvalds is more likely to know that anybody else who contributed source.
(IBM-206: Depositions of Contributors to Linux Are Essential)

57. Linux development doesn't include any mechanism to ensure that intellectual
property rights, confidentiality, or security were protected. Contributors to
Linux were not required to assign copyrights or guarantee their ownership of
copyright materials contributed. (IBM-206 11).

57.-58.
SCO seeks to depose the persons and entities that contributed source code to
Linux. Such depositions will reduce the extremely time-consuming direct
comparisons of source code that would otherwise be required. (IBM-206:
Depositions of Contributors to Linux Are Essential)

59. SCO believes that depositions of contributors will lead to admissions of
copying (IBM-206: Depositions of Contributors to Linux Are Essential)

59.
SCO seeks to depose the persons and entities that contributed source code to
Linux. Such depositions will reduce the extremely time-consuming direct
comparisons of source code that would otherwise be required. (IBM-206:
Depositions of Contributors to Linux)

73.-75.
SCO seeks to depose the persons and entities that contributed source code to
Linux. Such depositions will reduce the extremely time-consuming direct
comparisons of source code that would otherwise be required. (IBM-206:
Depositions of Contributors to Linux)

Gupta
=====
3.-86.
Substantial similarity of RCU in Linux to a routine in UNIX. Copying of UNIX Sys
V init into Linux 2.6. Substantial similarity of Linux and UNIX ULS routines.
Copying of SCO's System V IPC code into Linux 2.4.20. Copying of SCO's
copyrighted UNIX "header and interfaces" in Linux. Copying of SCO's
ELF codes in Linux. (IBM-199) (IBM-206: Comparison of Source Code)

3.
SCO has identified evidence of literal and non-literal copying of material from
UNIX into Linux. (IBM-206 13)

[ Reply to This | # ]

I love the scare quotes
Authored by: overshoot on Saturday, August 07 2004 @ 08:18 AM EDT
In every single instance where IBM refers to SCOX' "Renewed" motion, including the title of their Motion, IBM uses scare quotes around "Renewed."

Splendid, lovely, wicked attention to detail.

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Basic Question about Revision Control Systems
Authored by: Anonymous on Saturday, August 07 2004 @ 08:29 AM EDT
I am not a software person so this probably sounds dumb but it is probably
relevant to the majoruty of folks so hee it is:

I can see two ways to structure the data file:
One would seem to be the Sontag approach where everything is treed under a
product.
The other approach that seems more usefull to me is to tree under function. If I
tree under function I have the same size, or smaller, data base that contains
code routines that are task oriented so they can be shared among several
programs.

Is the second appoach the most likely?
Does the difference seem to be the source of confusion?

Thanks

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Are SCO's lawyers milking them?
Authored by: QTlurker on Saturday, August 07 2004 @ 11:07 AM EDT
IIRC correctly, SCO's lawyers are compensated by two mechanisms:

1) Boise is entitled to a percentage of SCO's value. Therefore higher stock
prices benefit them.

2) Boise and Hatch Jr are paid by the hour. The Boise rate is discounted, but
still hefty, because of the percentage deal, #1 above.

The lawyers tactics seem to be designed to inflate billing without necessarily
helping their client, SCO. They act like they want to get all of Baystar's and
MS' millions before SCO can squander it. IBM's motion to dismiss is just another
example of planned incompetence. Boise, Silver, or Hatch could have arranged to
dot the i's and crossed the t's on the Sontag Decl before filing, or they could
have hired a reknown expert, or they could have simply chosen another strategy
to rebut IBM.

Who will benefit the most if SCO's discovery request for everything is granted?
Not SCO, most of the info is irrelevent to their case. Just imagine the lawyer's
fee for managing that discovery!

[ Reply to This | # ]

IBM's Motion to Strike Sontag Declaration & Memo in Support - as PDF and text
Authored by: Kaemaril on Saturday, August 07 2004 @ 11:42 AM EDT

simply . . . look[ing] up . . . AIX file names by the name 'AIX'.

Followed by Thomas' declaration that no directory or filename contains the word 'AIX'.

Alas, IBM missed an opportunity here. They should have simply sent a blank bit of paper, with a note saying "We followed your suggested approach, and here are the results" :)

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Sontag's Declaration a few questions.
Authored by: rsteinmetz70112 on Saturday, August 07 2004 @ 11:43 AM EDT
Why is Sontag's declaration sealed? Based on what we know it would not appear to
contain any confidential information.

What is Sontag's history, and qualifications. I bet we could find out with the
resources here. That may shed some light on whether IBM has some deeper reason
for raising his qualifications as an expert.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Are ANY of SCO's affidavits admissible?
Authored by: marbux on Saturday, August 07 2004 @ 11:57 AM EDT


I couldn't find the Christopher Sontag declaration under discussion (perhaps it's under seal?). However, if that declaration was attested using the same form as the two prior Sontag declarations that are posted under Groklaw's "legal documents" web page, it uses a form of attestation that has repeatedly been rejected by the courts.

"The above signed Christopher S. Sontag, being duly sworn upon oath, deposes and says that he has read the above and that the information contained therein is true to the best of his knowledge, information and belief."
April 19, 2004 Declaration of Christopher S. Sontag (emphasis added).

The following are excerpts from a winning memo I wrote and argued in the mid-1980s that resulted in a bench ruling in which the court struck some 40 federal government affidavits and its own answers to intorrogatories submitted in support of its motion for summary judgment. (Caveat, I have not updated the research; however, I doubt very much whether current caselaw is any different. Also, I have done some minor rewrite to bridge omitted portions.)

The problem with affidavits executed in such a form is that they fail the "personal knowledge" standard of Fed.R.Civ.P. 56(e). Londrigan v. Federal Bureau of Investigation, 670 F.2d 1164, 1175 (D.C. Cir. 1981) (when statements in affidavits are not based upon personal knowledge, the trial court errs in not granting a motion to strike); see also Camfield Tires v. Michelin Tire Corp., 719 F.2d 1361, 1367 (8th Cir. 1983) ("a summary judgment motion must be based upon the personal knowledge of the affiant; information and belief is insufficient") (citations omitted).
In fact, Plaintiffs have been unable to find a single published case decision in which "information and belief" affidavits were permitted, despite objection, to form the basis for summary judgment or opposition to summary judgment. Only where the opposing party has not objected to such affidavits may the court consider them. E.g., Community Savings & Loan Ass'n. v. Federal Home Loan Bank Board, 443 F. Supp. 927 (D. Wis. 1978), vacated on other grounds, 600 F.2d 681.
The Ninth Circuit held, in Wallace v. Chappel, 661 F.2d 729, 737 (9th Cir. 1981), that assertions based solely on information or belief are insufficient to withstand a motion for summary judgment. That holding was based in part upon Automatic Radio Manufacturing Co. v. Hazeltine Research, 329 U.S. 827, 831 (1950), where the Court held that such assertions can not support a motion for summary judgment. See also Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1321 (9th Cir. 1981) ("[c]onclusory affidavits that do not affirmatively show personal knowledge of 'specific facts' are insufficient"); Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1254-55 (9th Cir. 1982) (affidavits must be based upon personal knowledge before they are entitled to any weight at all); Cermetek v. Butler Avpak, 573 F.2d 1370, 1377 (9th Cir. 1978) (facts alleged upon "understanding," upon "belief," or upon "information and belief" are insufficient).
The form of affirmation used in Defendants' filings purports to rely upon 28 U.S.C. sec. 1746, which allows for substitution of unsworn declarations under penalty of perjury in lieu of sworn affidavits. That statute, however, does not allow unsworn declarations to be attested "to the best of my knowledge and belief." Instead, under the statute's plain language the declaration must "substantially" comply with the form given by Congress; i.e., the declarant must state that his or her statement unequivocally "is true and correct," without evasive qualifying language. Nothing in section 1746 relieves the declarant from Rule 56(e)'s requirement of personal knowledge. . . . (The sparse legislative history of section 1746 gives no indication that Congress intended to relieve declarants from the Rule 56 requirement of "personal knowledge." If anything, that history suggests that Congress intended reasonably strict compliance with the form given in the statute. See e.g., H. Rep. 94-1616, accompanying P.L. 94-549, at 2; reprinted in 1976 U.S. Code Cong. & Admin. News 5644, 5645 ("If the document is executed within the United States, it must be subscribed to as follows [then quoting statutory language]")(emphasis added)).
Because every statement (including obvious opinion and hearsay) in every defense affidavit and answer to interrogatories is ascribed only to "knowledge and belief," the affiants' use of the word "knowledge" can not be interpreted to mean only "personal" knowledge. The form attested ("knowledge and belief") applies equally to all statements made -- including those obviously based on hearsay, on opinion, and on mere belief -- unless the reader somehow were able to apply different definitions of the "knowledge" to different statements in the affidavits. It is thus impossible to distinguish affiants' personal knowledge from their hearsay, their opinion, their mere beliefs, or their other sources of information. For purposes of the affiants' submission to the penalty of perjury, every factual statement is qualified by the phrase used in the attestation, "to the best of my knowledge and belief."
Those affiants may not so blithely evade the penalties of perjury. That conclusion is unavoidable because the phrase "knowledge and belief" encompasses far more than "personal knowledge," the standard under Rule 56(e). There are many forms of "knowledge," for example, from "personal" to "constructive" to "actual." "Personal knowledge" is only a limited subset of "knowledge." The overriding characteristic of "personal knowledge" is that it is based upon personal observation. The more generalized "knowledge" can come from a variety of sources, including hearsay or opinion of others, and can even be imputed -- correctly or incorrectly -- from the existence of different facts.
Because Defendants' affiants base their statements upon "knowledge and belief," they may be relying upon hearsay or opinion or even basing their facts upon something as amorphous as their individual beliefs. Consequently, it is impossible to determine which of the affiants' statements are based upon personal knowledge and which are based upon impermissible belief, hearsay, or opinion.4/ Because the defense affiants' "knowledge and belief" encompasses both obvious hearsay and other information, their "affidavits" are the hopelessly vague "information and belief" type of statements that invariably have been rejected by the courts.
___________________
4. Plaintiffs' concurrent reply brief to Defendants' motion for summary judgment demonstrates that many statements in Defendants' affidavits are genuinely disputed. It is thus critical to know whether any given statement is based upon admissible personal knowledge or is based only upon inadmissible belief. Restated, when an affiant limits his submission to the penalty of perjury by stating that he did something "to the best of [his or her] knowledge and belief," is he saying he is positive he did it, or is he saying he believes he did it but isn't sure? Unless such ambiguity is recognized and excluded, attestations become a vehicle for lying and subsequent evasion of the consequences of perjury, rather than the required unqualified submission to telling the truth.
I used similar arguments successfully in some 10-15 cases during my career to have affidavits or declarations struck and redrafted with more careful attention to what was "personal knowledge." Judges invariably found the law so clear that they ruled in my favor without written opinion. I doubt very much whether such clear requirements have changed since my retirement.

Can you imagine a witness at trial asked if he or she will tell the truth, the whole truth, and nothing but the truth answering, "I will, but only to the best of my knowledge and belief?" I doubt any lawyer would attempt to defend such a qualification. Yet the rules of summary judgment require that affidavits contain evidence that would be "admissible at trial."

Note that IBM knows the difference. See e.g., May 18, 2004 declaration of Daniel Frye ("I declare under penalty of perjury that the foregoing is true and correct") (using the precise form required by 28 U.S.C. 1746, without improper hedging).

Are any of SCO's affidavits submitted during the entire case valid?

From what I've seen so far, SCO might lose IBM's summary judgment motion simply because SCO's lawyers used the wrong form of attestation in its affidavits. I haven't checked all of SCO's affidavits, but I strongly suspect they all used the same form of attestation. If so, all it would take is an IBM objection on the grounds discussed above. And even assuming SCO resubmitted its affidavits properly attested, might it be enlightening to see what changes SCO's witnesses insist on if they're required to submit--without hedging--to the penalties of perjury? :)

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Motion to strike, Compel motion
Authored by: Thomas Frayne on Saturday, August 07 2004 @ 12:15 PM EDT
Sontag's declaration is in support of #190, SCOG's motion to compel. I have organized IBM's and SCOG's related arguments in PSJ-SCOG-arguments, where I have also started to organize their arguments about the PSJ motion.

I abstracted their summary arguments, and followed with detailed abstractions of their detailed arguments.

[ Reply to This | # ]

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