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IBM's Memo in Opposition to SCO's "Renewed" Motion to Compel
Sunday, August 08 2004 @ 05:43 AM EDT

Here is IBM's answer to all the discovery accusations from SCO in their Renewed Motion to Compel, their Memorandum in Opposition to SCO's "Renewed" Motion to Compel. Note the quotation marks. A renewed motion normally means you are asking the court once again to force the other side to give you what the court earlier ordered they should or the other side represented to the court they would provide but then failed to produce.

That's not the case here. Here, IBM says, they have complied with the Court's Order of March 3, 2004 in all respects, so it's ridiculous to call it a "renewed" motion. This "renewed" motion, they tell the court, has been filed by SCO in the apparent hope of simply further delaying discovery and resolution of the summary adjudication IBM is requesting on its 10th counterclaim.

You can see a Renewed Motion to Compel and a supporting Memorandum by Boies and the DOJ in the US v. Microsoft trial, by the way. There, in a hearing, Microsoft's attorneys said that they were surprised that one issue was in the original motion to compel, because they were working with the other side voluntarily and would continue to do so. The judge accepted that. Later, when the US side didn't get what it thought was promised, they brought a Renewed Motion to Compel. I'm starting to wonder if the Boies team had that template in the office and cynically pulled it out to toss it in to the SCO case just to try to achieve a delay. That might explain why it has so little to do with anything IBM actually has done. You'll see some similarities in Boies' request and SCO's, if you read it, including asking for unfettered access to Microsoft's database.

Anyway, IBM points out that there is no justification for a "renewed" motion, because they are in full compliance with the one order from Judge Wells. IBM then carefully and methodically lays out all SCO's little tricks they believe SCO is using to make IBM look bad to the judge and to the world.

First, they point out, SCO is asking for the same things that the court already said IBM didn't have to produce, like all the code that ever was, even code that has absolutely nothing to do with this case. SCO, like a shark that tries to take a bite, then swims away and then circles back around from a different angle, is now back, asking the court in a new guise for the same thing it asked for before and was refused. It's a renewal of their persistent efforts to get code that isn't relevant to the lawsuit, which the court already ruled IBM didn't have to produce. They call that "discovery abuse" on IBM's part?

Second, SCO has already filed a Memorandum Regarding Discovery, asking for the same code this "Renewed" Motion to Compel is asking for. IBM responded. But before SCO replied, it filed this new "renewed" motion, asking for the same code all over again, before the Memo Re Discovery was fully briefed, let alone decided by the judge. In the footnotes, 1 and 2, IBM implies that this is all a bogus, phoney deal. This motion was filed, they point out, the day before it filed its opposition to IBM's motion for summary judgment on its 10th counterclaim. In its opposition papers, SCO then said IBM's motion should be denied, among other reasons, because SCO had a motion to compel pending before the court. Come on, IBM is saying. How obvious is it that SCO is just trying to avoid losing the motion for summary judgment, any way they can and is desperate to try to postpone judgment?

Third, as for the items that SCO says IBM was "ordered" to turn over, the court told IBM to turn over only what IBM had already volunteered to provide to SCO, but which SCO had refused to accept, turning to the court with a motion to compel instead. All SCO got was what IBM had already offered, and as for the court's order, IBM complied with the order promptly, so this motion is just grandstanding. SCO seems to be playing to the crowd outside the courtroom, IBM says.

Here is what SCO is now asking for:

  • the code this court said IBM didn't have to produce;
  • documents from IBM executives IBM has already said don't exist;
  • contact information for witnesses the Court didn't require IBM to produce

IBM has already turned over everything it is "obligated or should be required to produce". Therefore, the "renewed" motion to compel should be denied:

"SCO appears to have filed this motion merely to prolong discovery unnecessarily (by making IBM gather and produce masses of irrelevant information and information that SCO could discover on its own with little effort) and to forestall the adjudication of IBM's pending motion for summary judgment on its Tenth Counterclaim. Indeed, SCO filed this motion without conferring with IBM as required under DUCivR 37-1(a) and Fed. R. Civ. P. 37(a)(2)(A), presumably because SCO knew the issues it raises could easily have been resolved by the parties without involvement of the Court."

Fourth, regarding IBM's alleged "refusal" to produce all source code for AIX and Dynix, allegations which plastered the headlines all over the world, IBM says with some indignation that, in truth, they turned over everything they were supposed to:

"Despite SCO's request (in its original motion to compel) that IBM be ordered to produce all source code files for its AIX and Dynix operating systems, the Court ordered in its March 3, 2004 Order, only that IBM provide 'the releases of AIX and Dynix consisting of "about 232" products as was represented by Mr. Marriott at the February 6, 2004 hearing'. (3/3/04 Order at II.1.) IBM produced all of these releases of AIX and Dynix well in advance of the April 19, 2004 deadline set by the Court.

"In this 'renewed' motion to compel, however, SCO asserts that IBM failed to comply with this Court's Order and engaged in 'discovery abuse' by not producing the very source code files the Court held IBM did not have to produce. SCO's argument is frivolous. The Court rejected SCO's original motion seeking this information. Indeed, the Court specifically provided in its Order that it would 'consider ordering IBM to produce more code from AIX and Dynix' only if SCO submitted additional briefing to the Court that would 'include, with specificity, and to the extent possible, identification of additional files SCO requests and the reasons for such requests'. (3/3/04 Order at II.1.)

"SCO purportedly invoked this very procedure in filing its Memorandum Regarding Discovery on May 28, 2004 requesting the production of all source code (rather than just specific files) maintained by IBM for its AIX and Dynix programs in its internal 'CMVC' and 'RCS' databases."

As we know, SCO has problems with specificity.

Fifth, SCO's original and equally unnecessary motion to compel, the one in November of 2003, was about Interrogatories 2, 4 and 5. SCO asked for the following:

  • A list of names and addresses of everyone with knowledge about any issues of this lawsuit, with the subject matter the witness has knowledge about
  • A list identifying all persons who have or had access to UNIX, AIX and Dynix source code, including all derivative works, modifications and methods, with precise listing of materials each had access to
  • A list of IBM or Sequent personnel that work or worked on development for AIX, Dynix and Linux, listing their contributions.

IBM provided responses, but SCO complained that senior executives should be on the list for Interrogatory 2 and that they didn't get addresses for 4 and 5. The court directed IBM to provide such, and it did. The list of 7,200 individuals didn't satisfy SCO, because they wanted for each name the precise contributions to AIX, Dynix and Linux.

But SCO's claim doesn't match this unreasonable request. They are complaining about contributions to Linux, not code IBM developed for AIX and did not contribute to Linux. As for what each IBM person donated to Linux, it's publicly available information which the court told SCO to go dig up itself. For the rest, there really is no way to figure out who did what and we are talking about 2 billion lines of source code, most of which isn't relevant to this case. (PJ aside: so much for proprietary software being better than Linux because "unknown" parties contribute code to Linux and proprietary software is carefully tracked and monitored.)

Sixth, as for the accusation that IBM is filtering documents of executives, that is simply untrue. They looked, they found, they turned over. There isn't anything else to turn over, so there is nothing for the court to order IBM to do. And furthermore, SCO paints a false picture in saying it has been forced to move to compel "two times" to get these documents. The original motion to compel filed by SCO had to do with three (2,3 and 11) of the 52 requests from SCO's 1st Request for the Production of Documents, all of them asking for code, not documents. The motion didn't ask for compelled production of documents of executives. Then their next move was to complain at the hearing in February that IBM had failed to turn over documents responsive to requests in SCO's 2nd Set of Document Requests, which they had only served on IBM the day before the Court stayed further discovery of IBM. If SCO didn't have them on February 6 at the hearing, it was because the stay was still in effect.

In any case, SCO isn't entitled to "the full files" of IBM executives, which it now is clamoring for, in IBM's opinion. Not every document in the files, even if it says Linux somewhere on it, has to do with the issues in this case. The request is overbroad. SCO identified what it said was relevant, and IBM turned over documents in response. IBM shouldn't have to turn over documents SCO never asked for in any of its document requests and which have no relevance to the issues here.

Seventh, on the matter of contact information, originally IBM turned over the 7,200 names and SCO complained about needing contact info for each one. IBM objected to the request as being overbroad, and the court obviously agreed, ordering them to turn over contact information for 1,000 individuals, as agreed upon by IBM and SCO. Of course, getting the parties to agree to a list has been a problem. IBM wrote to SCO asking who it wanted on the list of 1,000 individuals from the list of 7,200. SCO instead decided to make up its own list of anyone it wanted, whether they were on the 7,200 list or not, and indeed whether they had ever even been identified by IBM, including people IBM doesn't have contact information for. SCO asked for contact info not for the 1,000 from the 7200 list, but for some on a list of third-party witnesses identified by IBM in response to Interrogatory 2, such as Ransom Love and Bryan Sparks. They even asked for contact information for a current SCO employee. Surely SCO already has that. IBM has no contact info on these, other than what they could find in the course of an investigation which SCO could just as easily do for itself. Try the phone book.

SCO hasn't turned over the equivalent information to IBM. So IBM has an idea. How about we *both* help each other out and we'll give SCO what information we have, and SCO can do the same? They don't think SCO is entitled to what it is asking for, but to move past this "silly dispute" IBM says it is hereby turning over all the info it found in places like the phone book, and they formally ask the judge to so order that SCO do the same in return and turn over contact information in the possession of SCO or SCO's counsel for each of the witnesses identified by SCO in response to IBM's interrogatories, including third-party witnesses, and "each of the persons from whom SCO has produced documents but didn't identify in its interrogatory responses."

I believe SCO will be sorry it ever asked for this material. This is what I meant the other day when I said that IBM has had it with SCO. If SCO causes them to be annoyed with endless discovery work, it will try to see to it that SCO suffers the same fate. IBM has neatly boomeranged SCO's whining to the judge back against them. Remember the IBM letter to SCO, saying OK, what day shall we each turn over all that you are asking for? And SCO writing back, Forget it. We'll go to the judge. They did and I'm sure they are sorry now. Because IBM has accomplished something else. It has provided the judge with a clear picture of the game afoot here. The last time the parties argued about discovery delays, it was in June before Judge Kimball, who wasn't there for most of the discovery story. Now, they are back before Judge Wells, and it isn't so hard for her to know who is being truthful about past events. To order SCO to produce all that IBM is requesting would not normally be something you'd expect a judge to do. But because SCO made such a fuss about demanding the same from IBM, and IBM turned over what they asked for, how can she now refuse? Even if she does, she will know now what she is dealing with here, if she doesn't already.

Footnote 15 is quite interesting too. Remember the order from Judge Wells about turning over witness declarations prior to depositions? IBM presents the judge here with some case law showing that such declarations are work product, not required to be produced in discovery. Now, while the judge is free to disagree with the cases, they show that IBM was not acting unreasonably in not turning over work product. No one can justly accuse IBM of failing to turn over the declaration, or "sandbagging" SCO, since they had a good faith basis for thinking they were not supposed to turn over that document, based on case law.

And then IBM says something particularly noteworthy, that "simply because a witness's testimony is unfavorable for SCO does not mean that SCO has been 'sandbagged'." The witness they were discussing, we know from the June hearing, was David Frasure, who was an AT&T employee with knowledge of the contracts. Presumably, he would be in a position to testify as to the intent of the parties signing the contract, particularly with respect to derivative works. I gather his testimony was favorable to IBM, not SCO, judging from this footnote.

Frasure was also deposed in the BSDi case, as you can see from a footnote in the linked-to BSDi Memorandum of Law filed in that case. It's a fascinating document, if only because of the wave of deja vu you will feel on reading it. Here is their description of what USL was up to back then:

"In short, with this motion, USL seeks to exclude a legitimate competitor from the marketplace by attempting to invoke a nonexistent copyright, by relying on commonly used industry standards as evidence of copying, and by falsely claiming generally known information as its trade secrets."

Sound familiar?

Eighth, from day one, SCO has not been impeded in any way from deposing whoever it wishes. IBM's contributors to Linux are publicly listed. Nothing blocked them from deposing those people, except perhaps their own desire to delay. Yet they have not deposed them, and now they would like a delay so they can. By the way, I collected SCO's discovery delays in this article, if you are curious.

Ninth, it's really SCO who is delaying discovery, IBM states. They still have not told us, despite two court orders to do so, what UNIX System V code Linux allegedly copies. They told this story to the media and even in the Red Hat court, but where is the specificity to back up the charge that SCO is aware of "significant instances of line-for-line and 'substantially similar' copying of code from System V into Linux? If they are aware of it, why don't they produce it in discovery here? For that matter, they haven't produced the reports of all those deep-diving MIT guys and the other two teams they told the world about and that IBM has asked them to produce in discovery.

Tenth, worse, SCO has been instructing third parties subpoenaed by IBM not to produce documents to IBM until after SCO can review them first, IBM alleges. And they told S2 Consulting to withhold documents subpoenaed by IBM, claiming attorney-client privilege and the work product immunity, which IBM believes is inappropriate, as well as causing delay. This, I am positive, we'll be hearing more about in the future.

And finally, to show how it is SCO delaying, not IBM, they remind the judge that it was SCO that moved to prevent depositions that had been set up a month earlier just three days before they were due to occur.

This current motion, IBM sums up, is more of the same. They just want to keep IBM busy gathering "unnecessary and irrelevant discovery" and delay some more. So for all these reasons, they ask that the motion be denied.


  


IBM's Memo in Opposition to SCO's "Renewed" Motion to Compel | 216 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: ~tv~ on Sunday, August 08 2004 @ 06:16 AM EDT
.

[ Reply to This | # ]

OT and links here
Authored by: ~tv~ on Sunday, August 08 2004 @ 06:17 AM EDT
.

[ Reply to This | # ]

IBM's Memo in Opposition to SCO's "Renewed" Motion to Compel
Authored by: venn on Sunday, August 08 2004 @ 06:17 AM EDT
Shouldn't there be a link to the relevant document ('IBM's Memo in Opposition to
SCO's "Renewed" Motion to Compel' as pdf) in this story?

[ Reply to This | # ]

I'm looking forward to Judge Wells' response.
Authored by: mobrien_12 on Sunday, August 08 2004 @ 07:01 AM EDT
Alot of this seemed to be the same kinds of things that had been discussed here
on Groklaw, with some other new things.

When Judge Wells goes over SCO's motion, and this document, do you think she
will be amused?

[ Reply to This | # ]

IBM's Memo in Opposition to SCO's "Renewed" Motion to Compel
Authored by: fjaffe on Sunday, August 08 2004 @ 07:12 AM EDT
Here is their description of what USL was up to back then:
"In short, with this motion, USL seeks to exclude a legitimate competitor from the marketplace by attempting to invoke a nonexistent copyright, by relying on commonly used industry standards as evidence of copying, and by falsely claiming generally known information as its trade secrets."
Ahh... I finally understand why SCOX wants to trademark UNIX System Laboratories. Thanks PJ

[ Reply to This | # ]

Summary
Authored by: lifewish on Sunday, August 08 2004 @ 08:14 AM EDT
Am I right that this would be a reasonably accurate summary of the ten points in
the article?

1) The judge already told you we don't have to produce this stuff.
2) Quit with the legal bombardment already. You're not being very subtle about
trying to delay things.
3) We weren't ordered to turn this stuff over. Quit grandstanding.
4) We're not refusing to turn stuff over; you're just not being specific enough.
And quit playing to the media.
5) The stuff you're complaining about wasn't even what you originally asked us
for.
6) We're not filtering documents; we gave you everything you had a right to.
7) We can't give you details on these people cos some of them don't even work
for us. Oh, and quit whining about the witness testimony.
8) If it's so important to depose these people you were perfectly capable of
deposing some of them on day one.
9) Hold on, isn't there some stuff you owe us? Like what actual evidence you
have?
10) You're the ones slowing things down and being obstructive. Go take a hike.

Apologies for overuse of the word "stuff" :)

---

------------------
"Diplomacy: the art of saying 'Nice doggy' until you can find a stick" - Wynn
Catlin

[ Reply to This | # ]

I bet this doesn't make mainstream tech-pop-media news
Authored by: Anonymous on Sunday, August 08 2004 @ 08:55 AM EDT
Go to news.google.com and enter "sco". When scox accuses ibm of
delaying, it's headline news all over the place. When ibm demolishes scox's
claims, you can only find it mentioned on groklaw, tuxrocks, or lamlaw.

[ Reply to This | # ]

Obstruction of justice?
Authored by: OmniGeek on Sunday, August 08 2004 @ 09:01 AM EDT
...SCO has been instructing third parties subpoenaed by IBM not to produce documents to IBM until after SCO can review them first, IBM alleges. And they told S2 Consulting to withhold documents subpoenaed by IBM...

Isn't this the kind of thing that, in a criminal case, got Martha Stuart thrown in jail for "obstruction of justice"? Does this behavior create a realistic possibility of sanctions or worse for SCO and/or its counsel?

It seems to me that interfering with the subpoena process and advising third parties to withhold subpoenaed evidence is likely to be illegal, aside from making the judge go ballistic. Can anyone comment on that prospect?

---
My strength is as the strength of ten men, for I am wired to the eyeballs on espresso.

[ Reply to This | # ]

S2 Consulting et. al.
Authored by: rsteinmetz70112 on Sunday, August 08 2004 @ 09:18 AM EDT
For me the most fascinating part is about S2 Consulting and others SCOG has
purportedly told to withhold discovery from IBM. That is very interesting and
dangerous for SCOG.

I don't know if Mike Anderer is an attorney, unless he is he has no privilege,
and may not have it anyway with regard to meetings he had with people like
Baystar or Microsoft, depending on the circumstances. SCO appears to be claiming
that Mr. Anderer was acting as SCOG'c council. I wonder how that came about? Why
did SCOG insert themselves into this certainly Mr. Anderer, if he was acting as
an attorney could inform IBM of the privliege. I guess IBM could be reporting
that SCOG asserted that privlege through Mr. Anderer.

They also mention other actions SCOG has taken to hinder discovery like asking
third parties to allow SCOG to review anything before it is turned over to IBM.
I wonder who those parties are?

IBM had previously mentioned Baystar, and discussions with them regarding a
subpoena. It seems IBM is actively trying to find out about the money trail and
SCOG is resisting.

I think we might soon see a flurry of motions from IBM to compel third parties
to comply with subpoenas, although it is certainly possible that these issues
have been resolved and are being recounted here to provide the court a sense of
what has been going on.

It would be interesting to know more about these things, if only to gage how
well the SCOG support system is hanging together. Baystar is certainly taking a
step back and I gather Mr. Anderer is not that thrilled, I seem to recall a
dispute about his fee.

By the way my spell checker does not have Mr. Anderer's name in it an offers
Panderer instead. It seemed amusing to me so I though you might like to know.

---
Rsteinmetz

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

[ Reply to This | # ]

Wikipedia artical on SCO-Linux
Authored by: Anonymous on Sunday, August 08 2004 @ 10:00 AM EDT
The article on Wikipedia covering the SCO-Linux Warsis fleshing out nicely. But there is still lots that need coverage. Please visit it and add corrections and new material as you can. Remember that Wikipedia is likely to become a permanent and predominate reference on the net, so this article will be a major and widely read referrence source in the future. And the Groklaw readers are probably the most knowledgable bunch of folks about the topic around (except perhaps the IBM lawyers, and they ain't talking in public). Please help us get it right.

[ Reply to This | # ]

Good memo
Authored by: jbeadle on Sunday, August 08 2004 @ 10:04 AM EDT
Posted before under a different article/thread, but it fits here
pretty OK, too...

===========================================

Todd Shaughnessy: "OK. We'll play."

SCO: "Woops..."

Heh, heh, heh,

-jb

[ Reply to This | # ]

IBM's Memo in Opposition to SCO's "Renewed" Motion to Compel
Authored by: wwwest on Sunday, August 08 2004 @ 10:21 AM EDT
OK. This quote shows something about why SCO wants the USL trademark:
"In short, with this motion, USL seeks to exclude a legitimate competitor
from
the marketplace by attempting to invoke a nonexistent copyright, by relying
on commonly used industry standards as evidence of copying, and by falsely
claiming generally known information as its trade secrets."

They obviously think that USL was just like SCO so they should have the
trademark, right? Or maybe the caffeine hasn't started working yet.

---
Creative spelling and grammer, copyright 2004. May use with persimmons.

[ Reply to This | # ]

Where are the golden tonsils?
Authored by: Anonymous on Sunday, August 08 2004 @ 12:04 PM EDT
It's not looking great for SCOX & Boise was promised obscene amounts of
money, so where is he in their our of need?

Or will the courts again fail to enforce their orders instructing SCOX to
produce some evidence for their claims with specificity letting this farce drag

on for another 6 months?

[ Reply to This | # ]

TSG's misdirection & poisoning the well
Authored by: Anonymous on Sunday, August 08 2004 @ 12:07 PM EDT
TSG is actually attempting to direct public, jurist, and future appeals
court attention away from the simple and obvious fact that TSG has no
evidence...the fact that Linux is clean of infringing code...the fact that
good FOSS developers are way ahead of TSG's obsolete flavors of ATT
UNIX...the fact TSG bundles FOSS code in their current products.

TSG is guilty of all the discovery subterfuges that they accuse IBM of
committing. TSG lawyers are lying through their teeth, and you can
bet they will repeat all their past lies to a jury. I wonder how a judge
reacts to TSG putting words in their mouth while rewriting the history
of the judge's orders.

TSG lawyers think they are real sharp, but their strategies and tactics
prove they are just brother rats. I hope there is real justice for all of
them. I am betting the legal system is sharper than the rats.

[ Reply to This | # ]

A Warm Welcome to Groklaw's New Readers!
Authored by: StLawrence on Sunday, August 08 2004 @ 12:22 PM EDT
Very nice article, PJ. Thank you for your analysis & distillation.

And it is especially timely at the beginning of the week following SCO Forum,
at which SCO was kind enough to promote Groklaw with such vigor. I'm sure
SCO's repeated mention of Groklaw will drive many new visitors to the site,
where they can read, contemplate, and reach their own conclusions.

So here's a hearty "Welcome!" to the Groklaw newbies, and a
well-deserved "Thank You" to SCO for all the free Groklaw advertising.

[ Reply to This | # ]

IBM's Memo in Opposition to SCO's "Renewed" Motion to Compel
Authored by: Anonymous on Sunday, August 08 2004 @ 03:09 PM EDT
For that matter, they haven't produced the reports of all those deep-diving MIT guys and the other two teams they told the world about and that IBM has asked them to produce in discovery.

IBM has hinted that it is possible the code comparisons were never done. If SCO never produces any records, then IBM could get a summary judgement on that as it relates to the Lanthan Act and other counterclaims.

Boy, wouldn't that be something. The headlines would tell everyone that the entire SCO attack on Linux was a fraud from the beginning

[ Reply to This | # ]

Bold prediction
Authored by: reuben on Sunday, August 08 2004 @ 04:14 PM EDT

SCO's "renewed" motion to compel is scheduled to be heard on September 2. IBM's request for partial summary judgement doesn't come up at that hearing. IBM doesn't have any pending motions to compel. Instead, it has chosen to use SCO's failures in discovery as part of the basis for its summary judgement request. Therefore, only discovery from IBM is relevant at the September 2 hearing.

Now IBM has lots of arguments for why SCO's requests and demands are silly and unjustified. However, asking for silly and unnecessary things is in itself unlikely to incur any kind of sanctions unless the behavior continues after the judge warns the party to stop. Therefore, the worst (for SCO) that's likely to happen on September 2 is that SCO doesn't get everything it's asking for. However, I expect that IBM is capable and could reasonably be asked to provide some specific, targeted, relevant information from its revision control system and notes. Judge Wells did state before that she would consider ordering IBM to produce more AIX history, so it's not out of the question for SCO to get a little bit more. It seems likely that something like this will happen:

Judge: You want contact information for your own employees?? Are you serious?
SCO: (Mumble mumble complex case mumble scrivener's error mumble) Tracing the history of source code is hard, so we need development notes and intermediate versions.
IBM: What SCO is asking for is overly burdensome, and most of it wouldn't be relevant. We can't come up with all of that.
SCO: There is likely to be some relevant information in CMVC, and there's no good reason why we should be denied that information. That would be severely prejudicial to our case.
Judge: IBM, what can you provide from CMVC?
IBM: We can provide revisions and notes related to particular files and sections of code, from specified time periods.
Judge: SCO has 30 days to construct a list of specific queries for information in CMVC, specifying files and years of interest.

I think that SCO will get something along these lines. IBM won't get anything because it's not asking for anything at this hearing, besides the incidental request for SCO to provide it third-party contact information. Clearly nobody cares much about that anyway. The new order for CMVC information from IBM really could be an obstacle to IBM's motion for partial summary judgement, because such a motion won't be granted unless there's really no possibility of new relevant information coming up.

Of course, SCO would then present such a ruling as a complete validation of its entire discovery song and dance. They will say the judge has agreed that IBM hasn't provided everything it should, and that this proves it's IBM that is delaying the case. Why would they do that unless they had something to hide? Our claims must be legitimate!

At this point it will be quite clear to the judge what is going on, but I don't see any immediate negative consequences for SCO.

IANAL, etc.

[ Reply to This | # ]

The Discovery Hearing - What's a SCO to do?
Authored by: webster on Sunday, August 08 2004 @ 04:43 PM EDT
SCOfolk and their lawyers are concerned and relieved. They are concerned
because they continue to be confounded by a total lack of specific evidence.
They have a desperate need to specify some lines of code that pass the laugh
test. They can't even specify lines for their tenuous derivative claim.

They are concerned because the discovery and derivative gambits are being
truncated. Time is running out. They can't even produce a lying IBM turncoat
to say she snuck some code into linux.

They are concerned because past is prologue. They are going back before Judge
Wells. Her wont is to read all the filings carefully, come into court, say what
she thinks, and challenge the moving party to change her mind. She makes her
decision promptly and then has a party draft her order. She has already heard
and read SCO arguments about needing all IBM code before many times and rejected
it. The judge may forbid them to even discuss this. The IBM position is so
utterly simple and reasonable: "What lines of code were stolen? We need
to know so all can tell what is relevant, and so we can defend ourselves."
It is hard to refute this position.

SCO must also be concerned because IBM has postured themselves as patient,
reasonable and accommodating in the discovery process. Now IBM slams them with
suggestions of misconduct. The Judge, should she be so inclined, has reason to
get very nasty with SCO. First of all they are not perceived to have complied
with repeated orders to compel and they are now accused of misconduct. No doubt
the lawyer selected to argue this hearing is practicing her stiff upper lip, as
well as her misinterpretation skills so she can boldly go where the judge has
forbidden. Confidentially, if it were up to her she would waive the hearing and
submit on the pleadings.

SCO has to be concerned because if they pull any tricky motions out of their
sleeves to incorporate into the hearing, IBM will do the same with potentially
devastating motions. They don't want to continue to be on the wrong side of any
compulsions, protections, or sanctions. It is hard to trumpet such orders as
victories to the press.

Their ultimate concern is being taken at their word at this point. They have
certified their steps to comply with discovery. They declare they have complied
with discovery. They have said things that this case is not about like trade
secrets and copyright. They say they can not specify lines without IBM help.
What all this amounts to is that they can not specify any code. What they
refuse to say is that they can't specify any code. Not even the code they had
in mind when they filed the suit! IBM says "Say it. It is spelled
U-N-C-L-E." The Discovery hearing may obviate the need for the PSJ hearing
in September. (!?)

At last SCOfolk are a bit relieved. Something possibly dispositive is on the
horizon. The court could actualy do something to put them and this case out of
thier misery. They would then be free to go on with the rest of their lives in
relative anonymity.

---
webster

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IBM's Memo in Opposition to SCO's "Renewed" Motion to Compel
Authored by: marbux on Sunday, August 08 2004 @ 07:11 PM EDT


IBM's opening argument hasn't been discussed in this thread, from what I've read so far. It shouldn't be ignored. IBM opens its brief by arguing that the SCO discovery motion should be denied because SCO's lawyers haven't stated in its motion papers that they made a good faith effort to resolve the issues of the motion through consultation with IBM's lawyers before they filed the motion. IBM also points out that such a statement is required by local rules of court.

Such rules are fairly, if not completely, uniform in federal district courts, and merely restate what is required by the Federal Rules of Civil Procedure. Under Fed.R.Civ.P. 37(a)(2), "[t]he [discovery] motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action" (emphasis added). It's within the magistrate's discretion to overlook the missing certification, but don't be suprised if the motion is denied on that basis.

In some districts, the rule is so inflexibly enforced that upon receipt the clerk's office will examine each discovery motion to determine whether it contains the required certification, and if not, the clerk will deny the motion without the judge ever seeing the motion. (If I recall correctly, the Nevada federal court in Las Vegas had that policy when I tried a major case there some 12 years ago.) I don't know the Utah district court's policy on certifications, but in my experience in many federal courts, any party who ignores the requirement is simply asking for trouble.

The certification requirement is far from trivial. The entire scheme of civil discovery in the federal courts rests on the expectation that discovery will for the most part be accomplished informally and cooperatively by consultation among counsel, a policy oft discussed in the multitude of published discovery rulings. If you study Rule 37 carefully, you'll notice a system of incentives designed to punish parties who bother the court with discovery motions unnecessarily, including attorney fee awards. Busy judges truly do not want to be bothered by petty bickering over discovery. Particularly in a case such as this, where discovery cooperation has broken down, it wouldn't be surprising to see Judge Wells cracking down.

The record seems fairly clear from some of the correspondence among counsel that there were in fact a few prefiling communications on the issues of the motion, but it's equally clear that SCO was more concerned with getting the discovery motion filed (to create a barrier to IBM's motion for partial summary judgment) than it was concerned with good faith consultation. So it's an appropriate situation for enforcement of the rule.

Also of note: It's a good defense to a request for an award of discovery motion attorney fees if "the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action." Fed.R.Civ.P. 37(a)(4)(A).

I suspect that the Nazgul decided the SCO motion is a likely candidate to get tossed for want of the required certification, and even if not tossed, they could help insulate IBM from an attorney fee award by raising that issue. The argument offers Judge Wells an easy out from ruling on a series of far more complicated issues raised by the SCO motion. Moreover, denying the motion on such grounds would have the practical effect of postponing a decision on a refiled discovery motion until after IBM's motion for partial summary judgment is decided. So it's no suprise that this is the Nazgul's leading argument.

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IBM's Memo in Opposition to SCO's "Renewed" Motion to Compel
Authored by: Stoneshop on Monday, August 09 2004 @ 05:57 AM EDT
"In short, with this motion, USL seeks to exclude a legitimate competitor from the marketplace by attempting to invoke a nonexistent copyright, by relying on commonly used industry standards as evidence of copying, and by falsely claiming generally known information as its trade secrets."

Aha. So that's why SCOG wants to assume USL's name.

---
Rik
IANALJLMOY


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How long is a piece of string?
Authored by: Anonymous on Monday, August 09 2004 @ 10:16 AM EDT
I'm sure we'll find the definitive answer to that in the Sontag declaration.

If Chris Sontag can know how long it'll take for IBM to copy their version
control system onto DVDs so precisely, he must know so many other things -
maybe he can tell us whether big endian or little endian is correct.

-gopi.

"Endian little hate we" - VirtualPC development team

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IBM's Memo in Opposition to SCO's "Renewed" Motion to Compel
Authored by: jim Reiter on Monday, August 09 2004 @ 07:31 PM EDT
Is the reason SCO has no copyright claims against Linux is
because it released Linux under the GPL?

[ Reply to This | # ]

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