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Volume I List of IBM's Declarations in Support of PSJ on Breach of Contract Claims - as text
Friday, September 24 2004 @ 07:53 AM EDT

Here, to make sure our collection is complete, is Volume I of the list of declarations IBM submitted in support of its Motion for Partial Summary Judgment on Breach of Contract Claims as text, officially called Defendant/Counterclaim-Plaintiff IBM's Declarations in Support of Motion for Partial Summary Judgment on Breach of Contract Claims. We have Volume II as text already.

Just to keep it all straight, this isn't in connection with the motions already heard on September 15. These will be discussed in the future, on December 9, when this motion on breach of contract claims is argued, as you can see by number 262 on Groklaw's IBM Timeline page, where pending and undecided matters are in red. We are still working on transcribing all the declarations. We also have a new page, explaining what Groklaw's mission is and briefly listing and explaining the resources Groklaw offers, with links, so new visitors can readily find their way around. It's now a permanent link called Mission, on the left.

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

SNELL & WILMER L.L.P.
Alan L.Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson

[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 DECLARATIONS IN SUPPORT OF
MOTION FOR PARTIAL SUMMARY
JUDGMENT ON BREACH OF
CONTRACT CLAIMS

VOLUME I OF II

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 the following declarations, attached hereto at Tabs A-E, in support of its Motion for Partial Summary Judgment on Plaintiff/Counterclaim Defendant The SCO Group, Inc.'s ("SCO") breach of contract claims (SCO's First, Second, Third, and Fourth Causes of Action):

A. Declaration of Kathleen Bennett, executed August 5, 2004.

B. Declaration of Thomas L. Cronan, III, executed July 29, 2004.

C. Declaration of Randall Davis, executed August 13, 2004.

D. Declaration of Michael J. Defazio, executed October 3, 2003.

E. Declaration of David W. Frasure, executed March 28, 2004.

DATED this 13 Th day of August, 2004.

SNELL & WILMER L.L.P.

__[signature]____
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 13th 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]

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

_____[signature]______
Amy F. Sorenson


  


Volume I List of IBM's Declarations in Support of PSJ on Breach of Contract Claims - as text | 171 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Literary Critics and Other Trolls Here
Authored by: Anonymous on Friday, September 24 2004 @ 08:54 AM EDT
Also off-topic topics.

[ Reply to This | # ]

Asking me for admin passwd?
Authored by: Anonymous on Friday, September 24 2004 @ 09:01 AM EDT
Clicking on the link to volume II, I'm asked to authenticate. Normal?

[ Reply to This | # ]

Off Topic - but funny
Authored by: fieldsls on Friday, September 24 2004 @ 09:06 AM EDT
Humorix has a very amusing article titled "SCO Still Has Programmers On Its Payroll!". In it SCO has developed a game for SCO Unix to simulate their battle against IBM. Imagine The Sims in court. You can tell the author is definitely a Groklaw reader by the Nazgul and other references.

[ Reply to This | # ]

Volume I List of IBM's Declarations in Support of PSJ on Breach of Contract Claims - as text
Authored by: Anonymous on Friday, September 24 2004 @ 09:06 AM EDT
You might consider a re-org of the links on the left. I had to stare at them for
15 seconds before I saw the mission link. But then, I'm having a bad day.

[ Reply to This | # ]

New Mission Statement is Great
Authored by: Scorpio on Friday, September 24 2004 @ 09:07 AM EDT
I don't see an O/T element yet, but I want to be among the first to say the new
Mission statement is both well written and clear as to what is the purpose of
Growlaw.

Congratulations on a super job, PJ.

[ Reply to This | # ]

Corrections here please
Authored by: Anonymous on Friday, September 24 2004 @ 09:21 AM EDT
Please reply to this message with information regarding errors or typos in the story.

[ Reply to This | # ]

New Links and Off-Topic [OT] Discussions Here Please
Authored by: Anonymous on Friday, September 24 2004 @ 09:23 AM EDT
Please reply to this message with new links of interest to Groklaw readers. This makes it easy to find them.

If posting a link to an article on the World Wide Web, please try to use the HTML Formatted mode and make it easy to click on a link and follow it directly to the article of interest by using an Anchor tag.
  <a href="http://example.url/">visible text</a>

This is also the place to start discussions unrelated to the topic(s) of the original story.

Please choose new and appropriate titles for unrelated topics.

[ Reply to This | # ]

Creative Commons Version Two License
Authored by: Anonymous on Friday, September 24 2004 @ 09:28 AM EDT
I see that Groklaw is now using the CC-2.0 licenses.
CC-1.0 didn't have an upgrade clause.
How have all the old comments and third party articles been been upgraded to
CC-2.0?

[ Reply to This | # ]

Off-topic--Missing Important SCO document
Authored by: marbux on Friday, September 24 2004 @ 12:53 PM EDT
According to footnote 2 in SCO's response to IBM's motion for summary judgment on CC 10 (No. 206):

SCO also attaches, in the Addendum hereto, a chart detailing which paragraphs of IBM’s Statement SCO disputes, and where SCO’s response is addressed in this Memorandum.
The addendum isn't included in the PDF in the Legal Docs section. You can find it in Tuxrocks.com's copy Tuxrocks.com's copy.

It's really impossible to decipher what SCO claims to genuinely dispute without the addendum. I suggest that Groklaw replicate Tuxrocks' copy.

Also, was that SCO reply brief never transcribed to text? I can't find it as text.

[ Reply to This | # ]

SCOX in decline again in spite of...
Authored by: Groklaw Lurker on Friday, September 24 2004 @ 12:55 PM EDT
the huge buy yesterday just before the close of trading that caused a
significant jump in the per share price. Now at $3.47 and trending lower as
Baystar sells off its substantial holdings.

GL

[ Reply to This | # ]

BAYSTAR NOW DUMPING THEIR STOCK
Authored by: Anonymous on Friday, September 24 2004 @ 03:31 PM EDT
.

[ Reply to This | # ]

Summary Judgement Standards.
Authored by: Anonymous on Friday, September 24 2004 @ 04:32 PM EDT
I suppose I'm a touch confused.
I understand that IBM has accumulated a stack of declarations a mile high
saying that the contract didn't say what TSG says it does, but is any of that
really relevant to a summary judgment decision? I was under the impression that
a Summary Judgment was based on a matter of law, and not fact matters. It seems
to me that IBM has produced a pile of statements and testimony that might
certainly sway a jury, but that none of this raises a point of law on which the
judge can decide. If IBM had produced a pile of case law and said that as a
matter of settled law TSG's interpretation was baloney, that would be one thing,
but the statements of witnesses are against fact matters i.e. what the
participants thought the contract meant, which is properly before a jury, not a
judge. Given the testimony I've read here I have no doubt IBM will win, but does
the testimony actually matter for the determination of the legal interpretation
that a judge decides.
Similarly I question if the judge can find for IBM on its summary request for a
declaration of non-infringement. If their is infringement it's up to a jury to
decide, for a judge to decide it before all the evidence has been gathered and
final briefs have been prepared really does seem premature. IBM seems to be
saying that TSG has to make its case now, before the trial, without full
disclosure. SCO has produced 300 lines of code (as I read it) so there appears
to be a difference of fact. Sure TSG's case may be pure garbage and all the
lines might be invalid, but isn't that a fact decision for a jury to decide
rather then a law decision for a judge? IBM seems to be saying look we have
proof that that isn't copying, but it seem to me that the judge should say
"Probably true, but that's not a point of law for me to decide, that's a
fact interpretation for a jury to decide." I don't want to throw a wet
blanket on the proceedings, but I don't understand where I'm wrong either. Are
their any lawyers around who want to set me straight?

[ Reply to This | # ]
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