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IBM Redacted Reply Memo to Strike Sontag's Declarations - as text
Monday, September 27 2004 @ 01:22 AM EDT

Here is IBM's Redacted Reply Memorandum in Support of Motion to Strike the July 12, 2004 and August 26, 2004 Declarations of Christopher Sontag as text.

This document is useful because it demonstrates a very important legal skill, namely researching cases. Take a look at the footnotes, and you'll see what I mean. For that reason, I have collected all the cases and will post them separately, eventually, after I post some text versions of other legal documents we're a bit behind on. If any of you who are lawyers wish to beat me to the punch and want to explain the cases and how IBM used them, please go ahead.

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

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,

-against-

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

     Defendant/Counterclaim-Plaintiff

___________________

IBM'S REDACTED REPLY MEMORANDUM
IN SUPPORT OF MOTION TO STRIKE
THE JULY 12, 2004 AND AUGUST 26, 2004
DECLARATIONS OF CHRISTOPHER SONTAG

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 Reply Memorandum in Support of its Motion to Strike the July 12, 2004 and August 26, 2004 Declarations of Christopher Sontag, submitted by Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO") in support of its Memorandum Regarding Discovery.

Preliminary Statement

Rather than address the issues raised by IBM's motion to strike the July 12, 2004 Declaration of Christopher Sontag, SCO's opposition is devoted almost entirely to a rehashing of its arguments as to why SCO believes it is entitled to extensive additional discovery from IBM and why such discovery imposes no burden on IBM. SCO has briefed and IBM has responded to these same arguments several times before, and we will not repeat ourselves again here.

The few pages of SCO's brief addressed to the issue at hand -- the admissibility of Mr. Sontag's declaration -- fail to offer any proper basis for the Court to consider Mr. Sontag's self-serving opinion testimony concerning IBM's internal CMVC software control system. SCO cannot show that Mr. Sontag has personal knowledge of CMVC, because he has none. SCO's attempt to correct this inadequacy by submitting another declaration from Mr. Sontag, dated August 26, 2004, is futile. As with his first declaration, Mr. Sontag's new declaration is plainly not based on personal knowledge of IBM's CMVC system. Instead, it is based on "information" from unnamed "reliable sources" and mere conjecture about how CMVC "should" function. Both of Mr. Sontag's declarations should therefore be stricken from the record.

Argument

BOTH OF MR. SONTAG'S DECLARATIONS SHOULD BE STRICKEN

A. Mr. Sontag Does Not Have Personal Knowledge Of IBM's CMVC System

As is plain on their face, neither of Mr. Sontag's declarations establishes that Mr. Sontag has first-hand knowledge of IBM's CMVC system and can therefore offer competent fact testimony regarding the operation of CMVC and the supposed ease with which IBM could produce data from CMVC. In order to salvage the declarations, SCO argues in its opposition brief that the declarations are in fact based on personal knowledge because (1) Mr. Sontag claims to be familiar with source code control systems used at two companies other than IBM; and (2) Mr. Sontag has reviewed a few documents describing variations of IBM's CMVC system. Neither of these arguments withstands scrutiny.

First, Mr. Sontag's alleged knowledge concerning source code control systems used by his former employers does not equate to personal knowledge of the operation of IBM's CMVC system. Cf. Curtis v. Okla. City Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1219 (10th Cir. 1998) (affirming exclusion of testimony of plaintiff's former supervisor where, even though the supervisor had knowledge of plaintiff's work habits in his prior position, he had "no personal knowledge of the specific facts or issues involved in this case and therefore could not testify whether Plaintiff was competent in or willfully neglected his current duties"). As an initial matter, although Mr. Sontag claims to be "familiar" with the systems used by his previous employers (8/26/04 Sontag Decl. ¶¶ 13, 14), he does not even name those systems or describe how those systems operated. In fact, Mr. Sontag does not claim even to have ever used such systems in the course of his employment. Instead, he claims only to have "implement[ed] . . . procedures using the source control system" and to have "led the evaluation and selection process of the source control and source management system that was used by the development team", (Id PP 13-14.) In any case, Mr. Sontag's claimed familiarity with other companies' source code systems at most means that he has personal knowledge sufficient to testify as to those systems, not IBM's CMVC system. Here, Mr. Sontag's speculation as to how IBM's CMVC system "should" operate is not proper fact testimony. See Malek v. Martin Marietta Corp., 859 F.Supp. 458, 460 (D. Kan. l994) ("It is the plaintiff's personal knowledge, and not his beliefs, opinions, rumors or speculation, that are admissible at trial and the proper subject of any affidavit"). 1

Second, Mr. Sontag's review (and misunderstanding) of a few selected documents describing variations of IBM's CMVC system is insufficient to imbue Mr. Sontag with personal knowledge about CMVC. Just because Mr. Sontag claims to have read a few documents about CMVC does not mean that he has personal knowledge of CMVC and is therefore qualified to testify under oath concerning CMVC's operation and the burden involved in producing materials from CMVC. If that were true, any witness would be able to give sworn testimony about anything that that witness ever read in a newspaper article, a book or in any other publication. That makes no sense and is inconsistent with the rules of evidence. 2

Both of Mr. Sontag's declarations should therefore be stricken from the record, as they are not based on personal knowledge.

B. Mr Sontag Has Not Been Offered As An Expert.

As SCO concedes that it has not offered Mr. Sontag as an expert qualified to provide opinion testimony regarding CMVC, there is no basis for the Court to consider Mr. Sontag's testimony on this ground either. Moreover, SCO's belated suggestion that Mr. Sontag is at any rate qualified to provide expert testimony regarding CMVC is misguided.

Rule 702 provides that "a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise". Fed. R. Evid. 702. A party seeking to introduce expert testimony bears "the burden of demonstrating to the district court that [the purported expert is] qualified to render an expert opinion". Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001). Mr. Sontag's four-paragraph biographical statement attached to his August 26, 2004 declaration and the list of undergraduate computer science courses he enrolled in are inadequate to show that Mr. Sontag has the requisite technical expertise to offer opinion testimony regarding the operation of source control systems generally, and IBM's CMVC system in particular. See Broadcourt Capital Corp. v. Summa Med. Corp., 972 F.2d 1183, 1194 (10th Cir. 1992) (affirming finding that an attorney's "general experience and education did not qualify the witness as an expert in the securities area", even though the attorney "had some education and training in the field" and had had experience "representing clients in the area of securities law").

Nor is Mr. Sontag's conclusory statement that he has "had experience in source control and source control management systems, similar to IBM's CMVC system" sufficient to demonstrate any special expertise that would make him competent to provide expert testimony on this issue. See TK-7 Corp. v. Estate of Ihsan Barbouti, 993 F.2d 722, 728 (10th Cir. 1993) (affirming rejection of proffered expert testimony where the witness' experience in marketing and selling fuel additives in Israel was "insufficient to qualify [the witness] as an expert to express an opinion predicting sales in Venezuela"). Indeed, as noted above, Mr. Sontag fails even to name the alleged systems he is familiar with and does not even claim to have personally used any of these systems.

REDACTED

C. The Entire Sontag Declaration Should Be Stricken.

As a fall-back position, SCO contends that the court should not strike Mr. Sontag's entire testimony, but only those portions of his declarations that are flawed. SCO misses the point. As Mr. Sontag has no personal knowledge of the subject matter of his declarations, and is not offered by SCO as an expert witness, the entirety of Mr. Sontag's declarations are inadmissible and should be stricken. Indeed, SCO makes no effort even to point to specific paragraphs of Mr. Sontag's declarations that it contends should not be stricken. 3

SCO further asks in its opposition brief that the court "split [the Sontag Declaration] into two parts: documents and testimony". (SCO Opp. at 3.) Even if the documents appended to Mr. Sontag's declarations were admitted, however, SCO's (and Mr. Sontag's) characterizations of those documents should not be countenanced. For example, in its opposition brief (at 5-6), SCO misrepresents both the plain language of Exhibit B to Mr. Sontag's declaration and the extent of the source code already produced by IBM. The statement in Exhibit B that "you can re-create exactly any previous release of your application", even if true, does not advance SCO's position. IBM has already produced to SCO the source code for all releases of AIX since 1999. That is not what SCO is now seeking. Instead, SCO seeks all iterations of source code (estimated to consist of more than approximately 2 billion lines of code) that ever existed between each of these releases, whether or not any of these iterations was ever incorporated into an actual release. Nowhere do any of the documents purportedly reviewed by Mr. Sontag state that producing such materials from CMVC is a simple task. To the contrary, as IBM has explained in its oppositions to SCO's Memorandum Regarding Discovery and its "Renewed" Motion to Compel, producing such materials from CVMC is a complicated and time-consuming project that IBM should not have to undertake in light of SCO's failure time and again to demonstrate the relevance of such materials to the claims in this case.


Conclusion

For the foregoing reasons, IBM respectfully requests that the Court strike the Declarations of Christopher Sontag, dated July 12, 2004 and August 26, 2004, submitted in support of SCO's Reply Memorandum Regarding Discovery.


DATED this 7th day of September, 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. Marriot

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


1 Nor are the opinions offered by Mr. Sontag as to the workings of CMVC and IBM's burden in producing from CMVC the voluminous material requested by SCO "rationally based on the perception of the witness". Fed. R. Evid. 701 (emphasis added); see Gardner v Chrysler Corp., 89 F.3d 729, 737 (10th Cir. 1996); Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991) ("[I]nferences and opinions must be grounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience."); PAS Communications, Inc. v. Sprint Corp., 139 F. Supp. 2d 1149, 1181-82 (D. Kan. 2001) (lay opinion testimony is inadmissible unless it is "grounded in observation or other first-hand personal experience").

2 None of the cases cited by SCO supports its position. Fla. Farm Bureau Mutual Insurance Co. v. B & B Miller Farms Inc., No. 87-1021-C, 1991 WL 201188, at *10-11 (D. Kan. Sept. 17, 1991), addressed the types of information that expert witnesses may properly rely on to form expert opinions, and does not in any way diminish the requirement that lay witnesses testify only as to facts within their personal knowledge. In Fenstermacher v. Telelect, Inc., 21 F.3d 1121 (Table), 1994 WL 118046 (10th Cir. Mar. 28, 1994), the Tenth Circuit, in affirming the trial court's admission of certain testimony, "emphasize[d] that the witnesses ... testified only as to what they actually observed at the time of the accident and what they actually observed during the reenactment. At no point did they proffer testimony not based on their personal observations". Id at *6 (emphases in original.) In both Visser and Kloepfer v. Honda Motor Co., 898 F.2d at 1459 (10th Cir. 1990), the courts rejected the proffered testimony. See Visser, 924 F.2d at 659 (rejecting, as "amateur psychoanalysis" and not based on personal knowledge, affiants' testimony that defendant's CEO was motivated by age discrimination in firing plaintiff); Kloepfer, 898 F.2d at 1459 (affirming striking of statements by the plaintiff that she would have obeyed a safety warning if the vehicle had included such a warning, since such a statement was "speculative" and not rationally based on the perception of the witness). Finally, in In re Tex. E. Transmission Corp. PCB Contamination Ins. Coverage Litig., 87O F. Supp. 1293, 1304 (E.D.Pa. 1992), the declarant was found to have personal knowledge of his own company's historical policies and practices where he had reviewed the company's corporate documents and discussed the events with other senior executives at the company during the course of his employment. That is far different from the instant situation, where Mr. Sontag, a SCO employee, purports to have acquired personal knowledge of IBM's internal source control system solely through his review of a few documents discovered during litigation.

3 SCO wrongly contends that because the declaration of Joan Thomas submitted by IBM does not specify each paragraph of Mr. Sontag's first declaration that contains false statements of fact, all the paragraphs not specifically criticized by Ms. Thomas should be admitted. IBM has not moved to strike Mr. Sontag's declarations because they are factually incorrect (although they are). Ms. Thomas' declaration was intended only to clarify for the record the true operation of CMVC, not to challenge and correct every last one of Mr Sontag's misstatements. Here, Mr. Sontag's declarations should be stricken in their entirety because SCO fails to show (because it cannot) that Mr. Sontag either has personal knowledge of CMVC or is a qualified expert.


CERTIFICATE OF SERVICE

I hereby certify that on the 7th day of September, 2004, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

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

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

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

_____[signature]_____
Amy F. Sorenson


  


IBM Redacted Reply Memo to Strike Sontag's Declarations - as text | 297 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here Please
Authored by: RyanEpps on Monday, September 27 2004 @ 02:34 AM EDT
Place corrections here.

[ Reply to This | # ]

Off Topic
Authored by: RyanEpps on Monday, September 27 2004 @ 02:37 AM EDT
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 | # ]

IBM Standard Reply
Authored by: RyanEpps on Monday, September 27 2004 @ 02:46 AM EDT
As usual IBM's reply is professional and to the point. I'm really looking
forward to wading through the SCOX garbage that should be showing up soon.

[ Reply to This | # ]

A clear distiction between "releases" and "versions" -- is this a first?
Authored by: Anonymous on Monday, September 27 2004 @ 02:58 AM EDT
I noticed the following bit in the middle of the last paragraph of section C:
The statement in Exhibit B that "you can re-create exactly any previous release of your application", even if true, does not advance SCO's position. IBM has already produced to SCO the source code for all releases of AIX since l999. That is not what SCO is now seeking. Instead, SCO seeks all iterations of source code (estimated to consist of more than approximately 2 billion lines of code) that ever existed between each of these releases, whether or not any of these iterations was ever incorporated into an actual release.
I know that this particular distinction between "releases of a product" and "versions of a file" has been stated quite a number of times in comments here on Groklaw, to the point where it seemed almost obvious to us regulars when looking at the documents. However, this is the first time that I recall seeing it stated nearly so plainly and concisely in an IBM filing. Is this actually new, or did I just miss it before?

[ Reply to This | # ]

Isn't it a shame...
Authored by: Anonymous on Monday, September 27 2004 @ 03:41 AM EDT
...that IBM prepares their legal documents only for the court instead of for use
as press releases. They read so much better than SCO's...

[ Reply to This | # ]

IBM Redacted Reply Memo to Strike Sontag's Declarations - as text
Authored by: Anonymous on Monday, September 27 2004 @ 03:57 AM EDT

Sarcasm, I love it:

Mr. Sontag's four-paragraph biographical statement attached to his August 26, 2004 declaration and the list of undergraduate computer science courses he enrolled in are inadequate to show that Mr. Sontag has the requisite technical expertise to offer opinion testimony regarding the operation of source control systems generally, and IBM's CMVC system in particular.

They put him down like a insignificant dork with an unfounded opinion. He probably is, but still... Some recent IBM documents seem to indicate that they're genuinely getting irritated about SCO's behavior in this suite :-)

[ Reply to This | # ]

IBM Redacted Reply Memo to Strike Sontag's Declarations - as text
Authored by: Anonymous on Monday, September 27 2004 @ 04:24 AM EDT
The inevitable question....

How long will it be before the judge rules on this motion?

I can't wait to read the headlines "Sontag's evidence is inadmissable"
etc etc.

I'm not sure how many motions have been raised on this 1 motion - strike
Sontag's declaration, but I am hoping there is no more!

[ Reply to This | # ]

Roughly translated means...
Authored by: senectus on Monday, September 27 2004 @ 04:31 AM EDT
This:
As a fall-back position, SCO contends that the court should not strike Mr. Sontag's entire testimony, but only those portions of his declarations that are flawed. SCO misses the point. As Mr. Sontag has no personal knowledge of the subject matter of his declarations, and is not offered by SCO as an expert witness, the entirety of Mr. Sontag's declarations are inadmissible and should be stricken.
Roughly translated means :
Mr Sontag's opinion has the same value as a post on slashdot.org by an anonymous coward (Troll).
Nice work IBM :-D

[ Reply to This | # ]

IBM Redacted Reply Memo to Strike Sontag's Declarations - as text
Authored by: Kai on Monday, September 27 2004 @ 07:25 AM EDT
On ya IBM, go for the jugular ! >:-D

When the trial eventually gets here, it should be a site to see - I hope SCO end
up crawling out, beaten to a pulp and dropping with blood.

---
Another (Western) Australian who is interested.

[ Reply to This | # ]

Non-lawyers can read
Authored by: Thomas Frayne on Monday, September 27 2004 @ 10:41 AM EDT
and lawyers can make mistakes (witness SCOG's lawyers). You should not limit
your request for explanations of the cases to lawyers. Any mistakes in the
explanations, whether by lawyers or non-lawyers, will be quickly corrected.

[ Reply to This | # ]

SCO tricked everybody
Authored by: k12linux on Monday, September 27 2004 @ 11:16 AM EDT
I just figured it out. SCO is actually part of a huge conspiracy to keep Linux in the news and further it's advancement in the computer industry. They are also attempting to keep other parties from sueing over Linux in the future. (After all, if SCO is crushed it doesn't give much incentive to others to do the same thing.)

The head guys at SCO, realizing that they were just about of a job anyhow as sales dropped, are working with IBM to further Linux's adoption. Their pay-off is the money they get from selling stock at inflated prices as well as knowing their favorite OS (Linux) will continue to live and grow.

The tip off is how bad of a job the lawyers are doing in this case for SCO considering the millions of $ they are getting paid.

How else do they appear to completely ignore tips from the judge and his clerk posted on the court's website? And offer only non-expert experts?

Also, how do you cite several cases in your argument just to have IBM point out that every one of them actually show the OPPOSITE of what you are arguing? lol

</tinfoilHat> (Ok, so I don't actually belive this. It's just amazing to me to see SCO and SCO legal making so many mistakes in this case.)

---
- SCO is trying to save a sinking ship by drilling holes in it. -- k12linux

[ Reply to This | # ]

SCOX continuing to fall in moderate to average today...
Authored by: Groklaw Lurker on Monday, September 27 2004 @ 01:17 PM EDT
SCOX last at $3.33 in moderate to normal trading today, continuing it's downward
trend - no doubt to the glee of the holders of the still sizeable short
interests in this stock.

Evidently the short interests expect further lows before taking their profits
and thus likely elevating the value yet again. Apart from these still upcoming
fluctuations, SCOX will continue it's overall trend downwards I expect through
the end of the year.

GL

[ Reply to This | # ]

IBM Redacted Reply Memo to Strike Sontag's Declarations - as text
Authored by: kbwojo on Monday, September 27 2004 @ 01:17 PM EDT
According to this link, SCO is either holding information from the court or making false claims on their website in order to get people to buy a license.

17. How can SCO expect me to purchase a license when its case with IBM hasn’t been resolved yet? What if SCO loses its case against IBM? Will it reimburse Linux customers who purchased a SCO IP License?
Some Linux users have the misunderstanding that the SCO IP License hinges on the outcome of the SCO vs. IBM case. If that case were completely removed, Linux end users would still need to purchase a license from SCO to use the SCO IP found in Linux. The IBM case surrounds misuse of derivative works of SCO UNIX. It does not change the fact that line-by-line SCO IP code is found in Linux. The copied code includes copyrighted headers and other proprietary UNIX source code.

[ Reply to This | # ]

New case law for SCO to use
Authored by: Anonymous on Monday, September 27 2004 @ 05:31 PM EDT
Since SCO is having trouble finding case law to cite I would like to offer two
cases which they can cite to bolster their legal arguments. The first case has
to do with the admissability of evidence.

There was once a family that had a very sick baby during the worst part of the
very harsh winter of 1691/92. The mother was still recovering from childbirth
so most of the care for the baby was done by a teenage daughter and a young
woman slave who was a Carib Indian purchased in the West Indies. The Carib
woman made some medicine for the baby using an old Carib recipe but the baby
died despite her best efforts. During the period of beravement that followed the
teenage daughter accused the slave of killing the baby with a magic spell. This
became a formal charge that went to court. The presiding judge was the father
of the teenage girl and the dead baby. The Carib slave woman was executed for
witchcraft.

The teenage girl talked about the case with her cousin. Soon the two girls
realized that an old woman had cast a spell over them. They testified against
the old woman in court, same presiding judge, and the old woman was executed
for witchcraft.

The neighbors were so grateful for the girls' efforts that they formed a witch
hunt in the girls' honor. This witch hunt was highly successful and they tried
and executed every witch that they found, probably about 18 in number. Even
today you can't find any witches in Salem, Massachusetts.

I think that SCO should use the Salem witch trials as a precedent on the rules
of the admissibility of evidence. They could use it as a precedent to admit
testimony by Darl the delusional daughter.

By coincidence, Massachussetts has also produced a case that is very relevent to
the SCO problems with expert witnesses. I would like to introduce the SCO
lawyers to Katy, age 9, who is an expert on jump rope songs. Her testimony will
be:

"Lizzie Borden, skip, took an axe, skip
and gave her mother, skip, forty whacks, skip
and when she was through, skip
she gave her father, skip, forty two, skip
one, skip, two, skip, three, skip . . ."

Katy's affidavit presents the problem to the SCO legal team that they will have
to add a woman lawyer. Very few male lawyers are capable of skipping rope up to
forty two while presenting Katy's affidavit. Reaching forty two is very
important as other Groklaw posters have noted that forty two is the answer to
all questions.


--------------
Steve Stites

[ Reply to This | # ]

SCO should hire a lawyer to read
Authored by: Anonymous on Monday, September 27 2004 @ 07:43 PM EDT
through their legal filings before they send them to the court house.

Even before IBM complained, the non lawyers on this site wonderred how Sontag
could claim to have personal knowledge of life as an IBM programmer.

[ Reply to This | # ]

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