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The Wells Discovery Ruling - Grants in Part, Denies in Part
Wednesday, January 19 2005 @ 07:03 PM EST

Finally, it has arrived, Judge Brooke Wells' Order on SCO's Motion Re Discovery. It's annoying because she enables more delay, but other than that it is a pretty normal discovery order. SCO doesn't get access to CMVC, they do get more code and they get not all programmers' notes but some. She postpones any decision on production of documents from top managment. Keep in mind, she isn't the trier of fact. That is Judge Kimball. She is the Magistrate, so it's not her job to decide who is right or wrong. Her job is simply to make sure everybody's cards are on the table.

Judges don't get in trouble for ordering more discovery. That's why in hot disputes, they usually do order more discovery. And so IBM will have to go to the expense and take the time to sort through everything and comply. They can go back and explain why they can't do X or Y and ask her to revise her Order, and they could appeal, but why bother? I'm not saying they won't do either, because part of her order is a bit hard to comply with. By what measure, for example, do you decide which of 7,200 individuals are the 3,000 who contributed the most to AIX? That is what IBM will have to figure out. Wells calls that a representative sample, but it's actually almost half, so we must have had different math teachers.

The worst, in my opinion, is that now the schedule for this farce to go to trial, if it ever does, is going to have to be redone. So more delay.

And if you look at page 12 of the order, you will see that Judge Wells doesn't understand the tech arguments, which doesn't ultimately matter, because she isn't the fact-finder here, but it leads to orders like this:

"Finally, the court wishes to note the importance of the code to both parties. SCO has much to gain by showing that any so called homegrown code allegedly within the purview of the contract ended up in Linux. In equal respect, IBM's case will be strengthened tenfold if IBM can show that notwithstanding possible contract protections, homegrown code provided no basis for the code that IBM eventually contributed to Linux. . . . The production of the code, per se, or the evidence it leads to will not only assist the trier of fact but will help both parties adequately prepare their cases. This dual importance is another element which contributes to the court's decision requiring IBM to produce additional source code."

This is the flaw in her thinking, because that isn't at all the case IBM is seeking to argue. Clearly, she doesn't know enough yet about the code to understand why SCO's argument is silly, and so we will all have to suffer through more delays. Well, sadly we can't all be geeks.

It makes me remember that old Jewish joke that I think I first read in Sigmund Freud's "Wit and Its Relation to the Unconscious," that when you're in love, the whole world is Jewish. It's a joke that stemmed from persecution and pogroms, and that is what makes it funny. Well, today is a day when I wish the whole legal world were geeks.

I guess the delay will mean David Boies will get to start to pay out of his own pocket shortly. But from IBM's standpoint, while this is annoying, it doesn't ultimately mean a thing. In the end it will be clear to the court who is who and what is what. Discovery is what it is, and one thing Wells writes is true: by showing all the code and letting SCO look at it all from now to doomsday, if they never find any code that shouldn't have been donated to Linux, which is exactly what has happened so far, we get the matter settled once and for all. So let them look.

The takeaway to me is on page 10, where Wells writes that she is ordering more code so SCO will be blocked from any further arguments about it:

By requiring this, the court seeks to circumvent future complaints by SCO alleging that IBM failed to provide all CMVC and RCS information.

Dream on. Wells' difficulty is that, as she says, she is crediting good faith to both sides. She would like IBM and SCO to both behave with more "candid cooperation". Right.

I've only just had time to skim the Order quickly, but if I had to sum it up in one sentence, it would be: In discovery, the squeaky wheel gets the grease, or as one reader put it, the squeaky weasel.

Both sides are to submit privilege logs and any objections to the opposing parties' privilege logs within 30 days from the entry of this order. Following briefing, the court will hold a hearing on issues involved in SCO's motion, including the Rule 30(b)(6) depositions. IBM is to produce programmer notes, design documents, white papers, comments and notes made by those who did changes to AIX and Sequent, names and contact information, and what changes they made for 3,000 individuals, a "representative sample", of those "who made the most contributions and changes to the development of AIX and Dynix." Then IBM is to file an affidavit explaining how they picked the 3,000. "Once again," Judge Wells writes, "the court seeks to circumvent the rote objection by SCO alleging that they did not get enough information."

I gather we are not the only ones up to here with SCO's endless motions.

The discovery is to be turned over no later than March 18. I don't think we'll see anything from IBM, therefore, much before that date. SCO and IBM are to confer and come up with a new scheduling order by March 25.

Here is the order as text, with thanks to Thomas Frayne for the transcript.

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

IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH

_________________________

THE SCO GROUP INC.

Plaintiff,

vs.

INTERNATIONAL BUSINESS MACHINES
CORP.

Defendant.

____________________

Case No. 2:03cv00294 DAK

ORDER REGARDING SCO'S
RENEWED MOTION TO COMPEL
DISCOVERY

JUDGE DALE A. KIMBALL

MAGISTRATE JUDGE BROOKE C.
WELLS

_____________________________

On October 19, 2004, the court heard arguments regarding SCO Group Incorporated's (SCO) Renewed Motion to Compel Discovery.1

1

See Motion, docket no. 190; Minute entry, docket no. 327. At the hearing, and in an order filed by the court the following day, the court ordered both parties to prepare and exchange privilege logs within 30 days. See Order, docket no. 328. The court also ordered International Business Machines Corp. (IBM) to provide affidavits from the Board of Directors regarding production of all non-privileged documents pertaining to IBM's Linux strategy. SCO's Renewed Motion to Compel was taken under advisement.

Now before the court is SCO's Renewed Motion to Compel. See Docket no. 190. The court has carefully considered the memoranda and other materials submitted by the parties. Additionally, the court has reviewed relevant case law. Now being fully advised, the court renders the following Order.

SCO's Renewed Motion to Compel

As a preliminary matter, the court considers IBM's argument that SCO failed to confer with IBM before filing its motion. Local rule 37-1 requires attorneys to confer and try to resolve discovery disputes before seeking the intervention of the court. See DUCivR 37-1(a); see also Fed. R. Civ. P. 37(a)(2)(A) (requiring certification that the "movant has in good faith

2

conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action"). Failure to properly confer with another party can be a basis for denying a motion to compel. See Haselhorst v. Wal-Mart Stores Inc., 163 F.R.D. 10, 11 (D. Kan. 1995} (denying motion to compel because of plaintiff's counsel's failure to make a "reasonable effort" to meet and confer before filing motion).

IBM argues that "SCO's motion should therefore be denied for" failing to adequately confer before filing its motion. IBM's Mem. in Opp. p. 5. SCO counters, arguing that there is no merit to this claim because the items requested in this motion have previously been requested and are "basic discovery obligations." SCO's Rep. in Supp. p. 17.

Given the background of the dispute between SCO and IBM, previous discovery requests by SCO and court involvement, the court finds there was no need for SCO to confer with IBM prior to filing their Renewed Motion to Compel. Unfortunately, the court seriously doubts that a meet and confer over the present motion would have resulted in anything more than anemic advancement toward resolving the dispute.

Basic Discovery Principles

Rule 26(b)(1) of the Federal Rules of Civil Procedure states in relevant part: "Parties may obtain discovery regarding any

3

matter, not privileged, which is relevant to the subject matter involved in the pending action .... The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. p. 26(b)(l). This rule has been interpreted broadly by the United States Supreme Court. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380 (1978). "[A]t the discovery stage, the concept of relevance should be construed very broadly." Gohler, IRA, et al. v. Wood et al., 162 F.R.D. 691, 695 (D. Utah 1995). However, a court may limit discovery where "the discovery sought is ... obtainable from some other source that is more convenient, less burdensome, or less expensive." Fed. R. Civ. P. 26(b)(2)(i). A court may also limit discovery if "the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b) (2) (iii).

SCO's renewed motion requests the following:

1. All versions of AIX and Dynix/ptx, including the names of individuals who contributed to AIX and Dynix. According to IBM, this additional source code is "roughly two billion lines of code." IBM's Mem. in Opp. p. 7, docket no. 217.

2. Access to revision information including access to IBM's storage systems known as Configuration Management Version Control (CMVC) and Revision Controls System (RCS). See SCO's Renewed

4

Mtn. p. 3, docket no 190; Mem. in Supp. p. 5, docket no. 193. These systems allegedly contain information regarding what changes were made to AIX and Dynix and by whom such changes were made. See id. SCO argues such information is responsive to its discovery requests, is necessary to prosecute its case and to defend against IBM's counterclaims. See id.

SCO also requests all programmer notes, design documents and "white papers." SCO's Reply Mem. Re. Discovery, docket no. 205.

3. Documents from top level management relating to inter alia, IBM's use and strategy behind Linux. See SCO's Mem. in Supp. p. 2.

4. Further supplementation to Interrogatory Number 5, which seeks the identity of "IBM or Sequent personnel that work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux, specifying for each person their precise contributions to each." Id. p. 4 (emphasis in original).

5. Witness contact information that is to include a 1000 of the most important prospective trial witnesses as agreed upon by SCO and IBM." Order dated March 3, 2004, p. 5, docket no. 109.

A. Source Code

Previously, this court ordered IBM to "provide the releases of AIX and Dynix consisting of 'about 232 products.'" Order

5

dated March 3, 2004, p. 4, docket no. 109. Based on the representations before the court it appears that IBM provided these products.

In this same order, the court also provided a means whereby it would "consider ordering IBM to produce more code from AIX and Dynix." Id., see also American Medical systems. Inc. v. National Union Fire Ins. Co. 1999 WL 562738 * 2-3 (E.D. La. 1999) (denying a discovery request as over broad, but not ruling out the possibility of allowing the discovery after a party first "procure[d] relevant documents").

In its second amended complaint SCO alleges that IBM breached the Software Agreement. See SCO's Second Amended Complaint p. 32. Specifically, SCO alleges that IBM received Section 2.01 of the agreement which states:

[a] personal, nontransferable and nonexclusive right to use in the United States each Software Product identified in the one or more Supplements hereto, solely for Licensee's own internal business purposes and solely on or in conjunction with Designated CPU's for such Software Product. Such right to use includes the right to modify such Software Product and to prepare derivative works based on such Software product, provided the resulting materials are treated hereunder as part of the original Software Product.

Id. p. 32-33. (alterations and emphasis in original).

SCO alleges that IBM violated § 2,01 "by, inter alia, using, and assisting others to use, the Software Products (including

6

System V source code, derivative works, documentation related thereto and methods based thereon) for external purposes that are different from, and broader than, IBM"s own internal business purposes." Id. p. 33 {emphasis in original). SCO further alleges that IBM breached other sections of the Software Agreement, the Sublicensing Agreement and other contractual agreements (Sequent License Agreements). See id. p. 33-65; SCO's Second Amended Complaint Cause of Action 1-4.

In contrast to SCO's arguments, IBM has filed for partial summary judgment on SCO's breach of contract claims. See IBM's Mtn. for Partial Summ. Judgment, docket no 225. In short, IBM cites two primary reasons as a basis for granting summary judgment. First, "the AT&T agreements upon which SCO's claims are based do not preclude IBM from using and disclosing source code that is written by IBM and does not include UNIX System V code [i.e. homegrown code]." Id. p. 3. Second, "even if the AT&T agreements could be read to preclude the disclosure of homegrown code, any breach based upon such a reading has been waived by Novell, Inc." Id. IBM's Partial Motion for Summary Judgment on SCO's breach of contract claims is to be heard by Judge Kimball.

From the foregoing, it is clear that the contracts and their interpretations are central to the disputes in this case. In fact, the contract claims may have a more important role in the

7

outcome of this case than the copyright claims. Other courts have determined that "contractual alternatives to copyright may give an owner of computer software more protection than copyright would." Dispatch Automation. Inc. v. Richards, 280 F.3d 1116, 1120 (7th Cir. 2002). The majority of courts have adopted this principle. See, e.g., Bowers v. Baystate Technologies, Inc., 320 F.3d 1317, 1327-28 (Fed. Cir. 2003) (upholding a jury verdict of breach of contract where the contract prohibited "all reverse engineering" of the software, a protection that was "more extensive than copyright protection, which prohibits only certain copying"), ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir. 1995) ("A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create 'exclusive rights.'"); National Car Rental System. Inc. v. Computer Associates Intern., Inc., 991 F.2d 426, 433 (8th Cir. 1993) (concluding that "[a]bsent the parties' agreement" the use restriction on the processing of data for third parties would cease to exist because it was not found within the purview of copyright law); Acorn Structures, Inc. v. Swantz et al., 846 F.2d 923, 925-26 {4th Cir. 1988) (concluding copyright law did not preempt breach of contract claim concerning the ideas underlying the agreement). Accordingly, code belonging to SCO that might otherwise have lacked protection under copyright law may fall

8

within the confines of the contract and be protected.

In opposition, IBM argues that "the vast majority of these source code files are wholly irrelevant to this case (under any theory) because they were not contributed to Linux." IBM's Opp. Mem. p. 9. While the court agrees with IBM that this case concerns code that may have been improperly contributed to Linux, the court disagrees with IBM's narrow interpretation of relevant code. Under a plausible reading of the contract, it is possible that protections and prohibitions exist for code contributed by IBM to Linux. This code that eventually ended up in Linux may not look similar to the code initially provided to IBM under the contract, but if it was based on modifications, elements or derivations that are protected under the contract then it is clearly relevant. In contrast to IBM's argument this protection may even extend to "homegrown" code depending on the interpretation of the contract.

Based upon the possibility of increased protection under the contract and the general principle that "at the discovery stage, the concept of relevance should be construed very broadly," see Gohler, 162 F.R.D. at 695, the court finds that the burden of producing the code SCO seeks is outweighed by the relevancy of such code in the instant dispute.

Accordingly, the court HEREBY ORDERS IBM to provide in a readily accessible format all versions and changes to AIX and

9

Dynix.

In essence, the court is ordering production of the information contained within the CMVC and RCS systems without granting SCO complete access at this time. These systems allegedly contain source code that is outside the scope of the present litigation. Such code is used by IBM during their normal course of business and would not be relevant to the present dispute. Therefore, due to IBM's business interests the court DENIES SCO's request for complete access to the systems at this time. However, if IBM fails to provide ALL AIX and Dynix information, the court will order IBM to allow SCO unfettered access to the CMVC and RCS systems. This production is also to include the approximately "two billion lines of code" as represented by IBM in addition to any other code that is found in the CMVC and RCS systems relating to AIX and Dynix. IBM's Mem. in Opp. p. 7.

IBM is also hereby further ORDERED to file an affidavit specifying the efforts it took to deliver the code from the CMVC and RCS systems. Included in this affidavit should be an attestation to the percentage of AIX and Dynix information found and provided from the CMVC and RCS systems. By requiring this, the court seeks to circumvent future complaints by SCO alleging that IBM failed to provide all CMVC and RCS information.

The good faith efforts of both parties will be necessary in

10

facilitating the production of such a large amount of source code. The foundation of our legal system depends in part upon the cooperation of adversaries who are required by the civil rules to provide information essential in "secur[ing] the just, speedy, and inexpensive determination of every action." Fed. R. Civ. P. 1. Unfortunately though, this standard is often abandoned perhaps in part due to the aggressive adversarial nature of litigation and the large amounts of money involved. Although counsel are expected to protect their client's interests and guard against excessive burdens, such efforts should be tempered with candid cooperation between adversaries. In an ideal world, cooperation would lead to a streamlined discovery process whereby the fact finder could quickly resolve the ultimate issues found in disputes. Such a situation promotes efficient disposition of litigation, which is generally a good thing. Doubtless as the parties are well aware, all cases do not exist in the ideal world. However, this does not excuse counsel from striving to meet this standard.

There have been abundant accusations of stonewalling in this case by both parties. While the court assumes the good faith of all litigants before it, the court, nevertheless, urges both sides to renew their efforts in cooperating with each other. Ultimately, it will be up to the fact finder to resolve the disputes in this case. However, it is important that the

11

adversarial process, as contentious as it may be, not prevent the fact finder from having the right information to resolve the issues in this case.

Finally, the court wishes to note the importance of the code to both parties. SCO has much to gain by showing that any so called homegrown code allegedly within the purview of the contract ended up in Linux. In equal respect, IBM's case will be strengthened tenfold if IBM can show that notwithstanding possible contract protections, homegrown code provided no basis for the code that IBM eventually contributed to Linux. Both sides in this dispute are on the offensive and defensive much like the versatile two-way players from football's storied past. 2 The production of the code, per se, or the evidence it leads to will not only assist the trier of fact but will help both parties adequately prepare their cases. This dual importance is another element which contributes to the court's decision requiring IBM to produce additional source code.

12

B. Documents From Top Level Management

At a hearing held on October 19, 2004, the court ordered both parties to prepare and exchange privilege logs. See Docket no. 327; Order dated October 20, 2004. Additionally, IBM was specifically ordered to "provide affidavits from the Board of Directors, Mr. Palmisano and Mr. Wladawsky-Berger regarding production of all non-privileged documents pertaining to IBM's Linux strategy." Id. p. 1.

On December 23, 2004, SCO filed a Renewed Motion to Compel asking this court to compel IBM to "respond completely and properly to SCO's discovery regarding the files of IBM's executive management and . . . discovery regarding SCO's Rule 30(b)(6) depositions of IBM. SCO's Renewed Motion, p. 2, docket no. 366.

Judge Kimball granted a stipulated extension to IBM allowing them to file their opposition on February 4, 2005. SCO will likely file a reply if they so choose shortly thereafter.

Accordingly, the court finds it necessary to postpone a decision regarding the production of documents from top level management. However, the court HEREBY ORDERS both parties to submit privilege logs and any objections to the opposing parties' privilege logs to the court. These are to be provided to the court within 30 days from the entry of this order. Following

13

briefing, the court will hold a hearing regarding the issues involved in SCO's motion including those concerning the Rule 30(b)(6) depositions.

C. Answers To Interrogatories

SCO requests further answers to Interrogatory 5. See SCO's Mem. in Reply p. 6. Interrogatory 5 seeks "the identities of 'IBM or Sequent personnel that work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux, specifying for each person their precise contributions to each.'" Id. p. 7 (emphasis in original).

In support of its request, SCO points to the importance of possible admissions concerning the contracts. SCO argues that this information is relevant to determinations of

-- admissions concerning the meaning of, and limitations imposed by, the license agreements;
-- admissions regarding IBM's liability for breaching those contracts; and
-- admissions that the development of AIX and Dynix/ptx depended on UNIX System V.

SCO's Rep. Mem. p. 10.

IBM states that "there is no precise way to determine what code of the more than 7,200 individuals identified in response to

14

Interrogatory Nos. 4 and 5 contributed to AIX or Dynix." IBM's Opp. Mem. p. 9.

In direct contrast to IBM's argument is a sworn declaration from an individual familiar with CMVC. Allegedly CMVC is a series of databases that contains within itinter alia, a tracking system that traces all changes to source code, who made those changes, the dates on which they were made, comments related to the changes and other information concerning the specific files of code.

After consideration of the parties' arguments, the court finds that some supplementation to Interrogatory 5 will likely occur from the court's ordering of IBM to produce additional source code. However, the court finds that it is not only the changes to the code that are relevant but also the names and information concerning those individuals who made the changes. This information is relevant in part because some of these individuals may have information concerning IBM's treatment of the contracts. Such witness testimony would assist the trier of fact in interpreting the contract.

Accordingly, IBM is hereby ORDERED to provide programmer's notes, design documents, white papers, the comments and notes made by those who did the changes, the names and contact information of individuals who made changes and what changes they

15

specifically made. Once again, in weighing the burden imposed on IBM with the relevancy of evidence that is not obtainable from other sources, the court finds it appropriate to order the production of this information.

However, IBM is not ordered to provide this information for all 7,200 individuals. See IBM's Opp. Mem. p. 9, fn. 10. Instead, consistent with the court's prior decision concerning witness contact information IBM is to provide a representative sample. Accordingly, IBM is HEREBY ORDERED to provide the above required information for the 3000 individuals who made the most contributions and changes to the development of AIX and Dynix. This limitation does not absolve IBM from the court's requirement to provide all changes to AIX and Dynix. In the court's estimation, it should be easier to show changes to source code than provide the information concerning who made every change to that code. A representative sample of 3000 should provide SCO with enough information to proceed with its case without placing an undue burden oi IBM. Especially, in light of the fact that these 3000 are to be the individuals who contributed the most to the development of AIX and Dynix.

To the extent possible the parties are to agree upon the 3000 designated individuals. However, based on the record before the court it appears that IBM has better access to information regarding who made the most changes or significant contributions

16

to AIX and Dynix. Therefore, IBM is to file an affidavit detailing the process by which the 3000 were chosen. Once again by requiring this, the court seeks to circumvent the rote objection by SCO alleging that they did not get enough information.

D. Witness Contact Information

Previously, this court ordered "IBM to properly identify a representative sample of the potential witnesses that is to include a 1000 of the most important prospective trial witnesses as agreed upon by SCO and IBM." Court's order March 3, 2004 p. 5-6. IBM has provided the information and therefore, this "moots the need[] for further unnecessary litigation . . . over this issue." SCO's Rep. Mem. p. 17.

CONCLUSION

Based on the foregoing, SCO's renewed motion to compel is granted in part and denied in part. The discovery ordered by the court is to be provided no later than March 18, 2005.

The court's decision to grant SCO's motion in part necessitates some modification to the scheduling order. Accordingly, the court hereby STRIKES the current amended scheduling order including the fact discovery deadline of

17

February 11, 2005. The court ORDERS both SCO and IBM to meet and confer regarding a new schedule and to submit a proposed amended scheduling order to the court by March 25, 2005.

DATED this 18th day of January, 2005.

BY THE COURT:

___[signature]____


BROOKE C. WELLS

United States Magistrate Judge

18


1 Initially, SCO's Renewed Motion to Compel was scheduled for oral argument on September 14, 2004. However, prior to the hearing, SCO filed an ex parte motion for leave to file a supplemental memoranda regarding discovery. See Docket no. 245. On September 3, 2004, the court granted SCO's ex parte motion for leave to file a supplemental memoranda regarding discovery. See Docket no. 270. IBM then filed a motion to continue the hearing in order to respond to SCO's supplemental memorandum. Based on the filing of SCO's supplemental memoranda the court struck the first hearing date and allowed both parties time to adequately respond to the issues contained therein. See Order, docket no. 284.

2 Although some modern players are considered "two-way" players, few can match the legendary ironmen from football's past who often played on both offense and defense the entire game. Hall of Famer Mel Hein is the perfect example. This New York Giants' star was one of the most durable players in NFL history. He played 15 seasons going for 60 minutes a game without nearly any rest. Amazingly, he called for a timeout just once in his career. The timeout was used to repair his broken nose. See Biography of Mel Hein, Pro Football Hall of Fame, available at http://www.profootballhof.com/hof/member.jsp?player_id=92.


United States District Court


for the


District of Utah


January 19, 2005


* * CERTIFICATE OF SERVICE OF CLERK * *

Re: 2:03-cv-00294

True and correct copies of the attached were either mailed, faxed or e-mailed by the clerk to the following:

Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]
EMAIL

Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]

Frederick S. Frei, Esq.
ANDREWS KURTH
[address]

Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]
EMAIL

Mr. Alan L Sullivan, Esq.
SNELL & WILMER LLP
[address]
EMAIL

Todd M. Shaughnessy, Esq.
SNELL & WILMER LLP
[address]
EMAIL

Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]


19

EMAIL

Mr. Kevin P McBride, Esq.
[address]
EMAIL

Robert Silver, Esq.
BOIES SCHILLER & FLEXNER
[address]

Stuart H. Singer, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL

Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]
EMAIL

Mr. Michael P O'Brien, Esq.
JONES WALDO HOLBROOK & MCDONOUGH
[address]


  


The Wells Discovery Ruling - Grants in Part, Denies in Part | 516 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The Wells Discovery Ruling - Grants in Part, Denies in Part
Authored by: entre on Wednesday, January 19 2005 @ 07:33 PM EST
About Time

[ Reply to This | # ]

The Wells Discovery Ruling - Grants in Part, Denies in Part
Authored by: Anonymous on Wednesday, January 19 2005 @ 07:41 PM EST
bottom line: SCO 1 / IBM 0

(SCO got more than they dreamed hope for albeit
less than they asked for; but they asked for the
moon, and got a pretty nice asteroid)

[ Reply to This | # ]

The Wells Discovery Ruling - Grants in Part, Denies in Part
Authored by: RK on Wednesday, January 19 2005 @ 07:45 PM EST
Maybe I'm just tired and not thinking straight, but wouldn't the finder of fact
be the Jury rather than Kimball? Kimball will rule on the law, including
applying it to undisputed facts, no?

[ Reply to This | # ]

Corrections here
Authored by: Kevin on Wednesday, January 19 2005 @ 07:47 PM EST
Please put corrections to the article in this thread.

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Off topic postings here
Authored by: Kevin on Wednesday, January 19 2005 @ 07:50 PM EST
Please put off-topic postings in this thread.

No trolls, please!

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Two thoughts.
Authored by: Brian S. on Wednesday, January 19 2005 @ 08:02 PM EST
Judge Wells is trying to snow SCOG under with "evidence".

And sadly, I have to say it, but the rest of the world must move on without waiting for the American Legal System, when dealing with tech issues its slowness is as bad for tech as are the ineficiencies of the US patent system.

Brian S.

[ Reply to This | # ]

OCR'd, char checked, redacted, html
Authored by: Thomas Frayne on Wednesday, January 19 2005 @ 08:13 PM EST
I have OCR'd the court order, corrected character errors, redracted addresses,
and saved as simple format html, which is supposed to be readable by all
browsers.

I am about to forward it to PJ.

[ Reply to This | # ]

  • Good work (eom) - Authored by: Anonymous on Thursday, January 20 2005 @ 06:54 AM EST
SCO now has excuse for unlimited delay
Authored by: Anonymous on Wednesday, January 19 2005 @ 08:20 PM EST
SCO will now be able to obtain unlimited delays because it will always need more
time to study the code. SCO will never finish studying the code; therefore, the
case will never end.

[ Reply to This | # ]

A reason to be concerned?
Authored by: m_si_M on Wednesday, January 19 2005 @ 08:21 PM EST

From the order:

Under a plausible reading of the contract, it is possible that protections and prohibitions exist for code contributed by IBM to Linux. This code that eventually ended up in Linux may not look similar to the code initially provided to IBM under the contract, but if it is based on modifications, elements or derivations that are protected under the contract then it is clearly relevant. In contrast to IBM's argument this protection may even extend to "homegrown" code depending on the interpretation of the contract.

So this possibility has become part of a court order. Is it possible for SCOG's lawyers to present this to a judge (probably at appeal) as (dubious) "proof"? Kind of "Even judge Wells agreed with our point of view"?

[ Reply to This | # ]

OT: AZ-46 - More delay in SCO v AZ
Authored by: Anonymous on Wednesday, January 19 2005 @ 08:28 PM EST
Summary: I can't be bothered to retype. Any errors in the summary are mine

1. SCO have 60 days from date of the new order to conduct relevant party and
non-party discovery

2. If SCO choses to file a motion for preliminary injunction, they have 20 days
from conclusion of discoveyr

3. In the event SCO files a motion for prelim injunction, both parties have 60
days from date of filing to conduct discovery limited to issues raised in prelim
injunction motion, provided however SCO may not conduct discovery during this
period related to AZ's code or AZ's migration to and/or AZ's use of Linux. AZ
then have 20 days from the end of this discovery period to file opposition to
SCO's motion, and then SCO get 11 days to reply

Can't quite read the date, looks 2nd January (??)

4.

[ Reply to This | # ]

Possible trap for IBM - be careful
Authored by: Anonymous on Wednesday, January 19 2005 @ 08:31 PM EST
In addition to all versions and changes to AIX and Dynix, IBM is ordered to
produce an affidavit specifying the efforts it took to deliver the code from
CMVC and RCS systems, including a claim to the percentage of AIX and Dynix
information found.

All I can think is, this better make it seem like producing the code was as
difficult as they claimed it would be when they were arguing that this would be
unduly burdensome.

I mean, if they're like "Yeah, I clicked the File -> Export -> AIX
button and waited a couple days for the CDs to burn." then SCO might push
for sanctions or perjury on whoever said it would be an inhuman task to produce
this stuff.

On the other hand, I guess the judge has already indictated she doesn't believe
the task is too hard, since she ordered them to do it! They should be
careful...

[ Reply to This | # ]

More Canopy IP Fun
Authored by: scott_R on Wednesday, January 19 2005 @ 08:32 PM EST
Here's a nice link, if it hasn't been raised before:

Here

Basically a "former Novell" guy wants to rewrite the Linux kernel to remove all the GPL'd stuff. How he's going to argue this in court is beyond me, especially as his intent seems to be to make it as Linuxy(?) as he can, but license it so only he can sell it (under the guise of the Cherokee Nation, apparently). Naturally, he's got ties to Canopy...

These people give me a headache.

[ Reply to This | # ]

The Wells Discovery Ruling
Authored by: Philip Stephens on Wednesday, January 19 2005 @ 08:35 PM EST
After reading the order, it would seem that Judge Wells felt compelled to let
SCO have all AIX and Dynix code, on the grounds that she cannot rule on the
validity of SCO's interpretation of the contract.

If you ask me, the procedural rules have been completely backwards for this
case. It's patently obvious that if Judge Kimball had been able to issue a
ruling regarding the interpretation of the contract, no lengthy discovery would
have been needed at all, and the case would have been over months ago.

Instead, IBM has to comply with a misguided court order, and SCO gets a chance
to spread more FUD to the press. Who wants to bet that as soon as they've
traced a "likely" path from System V UNIX to AIX/Dynix to Linux,
they'll be trumpeting to the press how they've proven that IBM has stolen their
code?

[ Reply to This | # ]

Incredible broad order
Authored by: DH on Wednesday, January 19 2005 @ 09:15 PM EST
One of the worst sentences of the ruling is this:

"Accordingly, the court HEREBY ORDERS IBM to provide in a readily
accessible format all versions and changes to AIX and Dynix."

She didn't limit this ruling in time (AIX is more than 20 years old and has
roots in older IBM mainframe technology, IBM told the court that older files
arn't in the CMVC) and did not provide a definition of "version". (one
could argue that everytime the files were compiled a new version was build).

Compare this to the previous discovery order, were IBM fought for a resonable
time limit (2 years) and a definition of versions (releses sold/provided? to
customers).

IBM can't compley with this order in a way that SCO won't find something to
complain about, even if IBM spends a fortune on this part discovery, so they
will have to do something else - appeal, delay or settle.

[ Reply to This | # ]

Compliance impossible
Authored by: Christian on Wednesday, January 19 2005 @ 09:16 PM EST
On page 9: "Accordingly, the court HEREBY ORDERS IBM to provide in a readily accessible format _all versions and changes_ to AIX and Dynix."

I believe IBM has already said that they do not have the complete revision history to these products. That information only goes back to a certain date. IBM cannot comply with the order.

Wells is crazy to demand "a readily accessible format" without describing how the parties must agree on the format. I have read here that the CMVC used for AIX is not the commercial version, so it is possible that the CMVC records are not readible by anyone but IBM. To comply, IBM will have to reconstruct the AIX and Dynix trees and history in some other revision control system. That is insane.

[ Reply to This | # ]

Protecting AIX code during discovery
Authored by: Anonymous on Wednesday, January 19 2005 @ 09:23 PM EST
I may have missed it, but I saw nothing that would continue to protect IBM's AIX code from being scavenged by TSCOG folks.

In prior discovery of IBM's AIX code, it was to be released ONLY to outside technoids and the TSCOG legal teams, but not in any way directly to TSCOG employees.

Is this a change or only an oversight (by myself if I missed it or the court if it's not there)?

If I were in IBM's position of having to release not only the source code of their major software, but the test versions and programmers' notes detailing its development, I would want it ensured that folks like those running TSCOG could not use that information elsewhere.

Take care,
Tomas
Comment ©2005 Tomas@TiJiL.org

[ Reply to This | # ]

Nation ruled by FUDsters, not laws...
Authored by: Anonymous on Wednesday, January 19 2005 @ 09:30 PM EST
The way I see it, the judges here are either 1-overworked, 2-incompetent,
3-lazy. I am pretty sure that an excessive workload is to blame here.
Bottomline is that the system is broken. In the limit where the time for rulings
and the number of delays approaches infinity, the rule of law vanishes. The
result is not a nation ruled by laws, but by fudsters.

Anyway, perhaps the fud has no traction anymore and in the end IBM & cie
will prevail and SCO will go bankrupt from lawyer's fees but all this is
pathetic nonetheless. Think about the poor guy or lady that will have to spend
time compiling the information that SCO wants... I hope IBM's health plan will
pay for the prozac.

[ Reply to This | # ]

Prediction: IBM goes on warpath
Authored by: jtsteward on Wednesday, January 19 2005 @ 10:08 PM EST
This will be the last bit of good news SCUMX will see in this case.

I believe this has pushed IBM over the edge.

My guess: there will be a substantial increase in IBM's financial commitment to
making this case end. Expect a ton of filings fighting everything SCO asks for,
a very hard push to get this case to trial, and a extremly aggressive campaign
to PSJ every claim SCO has in this sca^H^H^H case.

Look for IBM to press for sanctions at any chance they get.

Look for a big, but subtle SCO FUD campaign, mostly from the shill^H^H^H^H
usual analysts.

And if Darl makes a peep look for IBM to file more Lanham claims.


---
-------------------------------------------------
Darl needs more bullets, he keeps hitting his foot but he won't go down

[ Reply to This | # ]

Warning - more delay on CC10
Authored by: fudisbad on Wednesday, January 19 2005 @ 10:12 PM EST
Just what Boies and McBride wanted. Once IBM cough up all that code, Judge
Kimball (since SCO can't do it: it would take 25000 man years) will have to go
through it with a fine-toothed comb and compare it with Linux and System V.

IBM's Motion to Strike Sontag's Declaration was not ruled on.

---
See my bio for copyright details re: this post.
This subliminal message has been brought to you by Microsoft.

[ Reply to This | # ]

Downside for SCOG
Authored by: rsteinmetz70112 on Wednesday, January 19 2005 @ 10:16 PM EST
There is a serious downside for SCOG, the 'costs' are not included in the legal
fee cap. SCOG is going to have to dip into their cash to evaluate what promises
to be a disorganized, massive 'code dump'.

I suspect IBM has anticipated this and will deliver, initially in short order
and in stages, massive amounts of data to SCOG, followed by complaints from SCOG
about IBM's tactics.

It won't be quick, pretty or cheap. IBM can afford it SCOG can't.

---
Rsteinmetz

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Checking up on one of the case citations ...
Authored by: sk43 on Wednesday, January 19 2005 @ 10:17 PM EST
Just for fun, I checked on one of the cases cited by Judge Wells: "Dispatch Automation Inc vs Richards" (2002), which can be found here, to better understand the context of the citation. Without going into details, this case is one of those interminable "who owns the source code" controversies.

As Judge Wells correctly cites, we find the following:

"contractual alternatives to copyright may be given an owner of a computer software more protection than copyright would..."

which is followed by no less than 4 citations to the literature. However, immediately after this statement, we also find the following:

"But all this is by the by, ..."

i.e. the case was determined on grounds other the one cited.

Hmmm. This case has enough differences from IBM vs. TSG that I don't think it is helpful or harmful to either side, but if you were to take away a one line sound-bite from this decision, it would be this: "If you wrote the code, and the contract says that you own it, then you own it."

As an aside, we find the following bit of wisdom elsewhere in the decision:

"The presumption in commercial contracts is that the parties were trying to accomplish something rational. Common sense is as much a part of contract interpretation as is the dictionary or the arsenal of canons."

So my question is this: should "canons" be "cannons" (i.e., scrivener's error)?

[ Reply to This | # ]

Judge Wells prefers SCOG's assessment of........
Authored by: Brian S. on Wednesday, January 19 2005 @ 11:14 PM EST
IBM's CMVC system. After all she is quoting their expert.

In direct contrast to IBM's arguement is a sworn declaration from an individual familiar with CMVC......... and she goes on to totally accede to SCOG's view of IBM's CMVC system

Brian S.

[ Reply to This | # ]

SCO has Won
Authored by: Anonymous on Wednesday, January 19 2005 @ 11:53 PM EST
Now all they have to do is to keep going back to the court, with the same
motion, to save costs just changing the dates, telling the court that because of
the magnatude of the data that IBM has provided that they will still need more
time to do evaluate it. And the judge will give it to them. And SCO will put
out a press release saying "SCO wins another motion in their Linux IP case
against IBM"

This will drag on an on untill someone high up at IBM says "I don't care
who's right or wrong, just make it go away.".

But then this is to be expected as it appears to be the new way of making money.
If you cannot earn it working for a living get a lawer and sue someone.

(GL lerker since the spring of 03)

[ Reply to This | # ]

Weak.
Authored by: mobrien_12 on Wednesday, January 19 2005 @ 11:58 PM EST
I'm very very dissapointed in Judge Wells. She walked right into SCO's trap.

Billions of lines of source code. A huge burden on IBM. A huge delay while IBM
prepares the cyberspace equivalent of a PLANET in source code and related
materials. No protection for IBM's interests. Essentially she handed SCO a
fishing licence.

And when SCO gets it, they will delay this case for another few years because
mean old IBM delayed giving them this stuff so long they don't have time to
review it.


[ Reply to This | # ]

If you talk to Darl
Authored by: Anonymous on Thursday, January 20 2005 @ 12:06 AM EST
Any journalists reading?

If you talk to Darl or Blake Stowell or Chris Sontag - ask them about the
discovery ruling, what they think of it, what implications it has for the case
and for IBM? In fact, ask them whether they think they have IBM on the ropes,
regardless of any merits-of-the-case arguments, merely because of the tremendous
cost of IBM producing all this material.

They or their friends been telegraphing for a while ("buy side
source"), about what they think it means in terms of a positive for SCO
stock

I'll bet dollars to a dozen, Darl's mouth will escape from its recent temporary
imprisonment, and you'll have a few interesting quotes, some of which might even
appear in future (IBM) memos to the court.

[ Reply to This | # ]

The Wells Discovery Ruling - Grants in Part, Denies in Part
Authored by: NastyGuns on Thursday, January 20 2005 @ 12:07 AM EST

From p. 10 of the pdf:

In, essence, the court is ordering production of the information contained within the CMVC and RCS systems without granting SCO complete access at this time. These systems allegedly contain source code that is outside the scope of the present litigation. Such code is used by IBM during their normal course of business and would not be relevant to the present dispute. Therefore, due to IBM's business interests the court DENIES SCO's request for complete access to the systems at this time. However, if IBM fails to provide ALL AIX and Dynix information, the court will order IBM to allow SCO unfettered access to the CMVC and RCS systems. This production is also to include the approximately "two billion lines of code" as represented by IBM in addition to any other code that is found in the CMVC and RCS systems relating to AIX and Dynix. IBM's Mem. in Opp. p. 7.

From pp. 15 and 16 of the pdf:

Accordingly, IBM is hereby ORDERED to provide programmer's notes, design documents, white papers, the comments and notes made by those who did the changes, the names and contract information of individuals who made changes and what changes they specifically made. Once again, in weighing the burder imposed on IBM with the relevancy of evidence that is not obtainable from other sources, the court finds it appropriate to order the production of this information.

From pp. 17 and 18 of the pdf:

The court's decision to to grant SCO's motion in part necessitates some modification to the scheduling order. Accordingly, the court hereby STRIKES the current amended scheduling order including the fact discovery deadline of February 11, 2005. The court ORDERS both SCO and IBM to meet and confer regarding a new schedule and to submit a proposed amended scheduling order to the court by March 25, 2005.

Talk about giving SCO everything they wanted. Now all SCO will do yet again, is cry that IBM hasn't provided everything. Notice how Judge Wells is giving SCO everything they asked for in a hand-basket.

SCO also wins because Judge Wells didn't rule on the other information she heard at the hearing that day, specifically IBM's Motion to Strike (#212). See here.

Meanwhile, Judge Wells has yet, to enforce either of her previous orders:

  • From Judge Wells' order entered 10-Dec-03 (#94):
    • 4. To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided.
    • 5. To the extent IBM's requests call for the production of documents or are met by documents SCO has already provided, SCO is to identify with specificity the location of responsive answers including identification of the Bates numbered documents previously provided if applicable.
    • 6. If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom they were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance.
  • From Judge Wells' order entered 03-Mar-04 (#109-2):
    • 1. To fully comply within 45 days of the entry of this order with the court's previous order dated December 12, 2003. This is to include those items that SCO had difficulty in obtaining prior to the Court's previously ordered deadline of January 12, 2004.
    • 2. As previously ordered, SCO is to provide and identify all specific lines of code that IBM is alleged to have contributed to Linux from either AIX or Dynix. This is to include all lines of code that SCO can identify at this time.
    • 3. SCO is to provide and identify all specific lines of code from Unix System V from which IBM's contributions from AIX and Dynix are alleged to be derived.
    • 4. SCO is to provide and identify with specificity all lines of code in Linux that it claims rights to.
    • 5. SCO is to provide and identify with specificity the lines of code that SCO distributed to other parties. This is to include where appplicable the conditions of release, to whom the code was released, the date and under what circumstances such code was released.

Now, being as IANAL, does Judge Wells have the authority to rule on changing the current scheduling order over Judge Kimball since he stated when awarding the last change that no further changes would be allowed? Although he has stated he didn't want to "step on her toes" [paraphrased] at his hearing on the PSJ of CC10, she has apparently not taken that into consideration on her current ruling.

While I have tried giving every consideration to the "giving them more rope to hang themselves with" and "the wheels of justice grind slowly" points of view, this is totally unwarranted IMO. How can a judge continually award one side all of this without them ever having to comply with her initial orders? Does Judge Wells have no backbone in enforcing her orders? Is she so intimidated that she'll continually bend over backwards to do this? She and Judge Kimball have given them more than enough time IMO to prove their case and have yet to hold SCO to anything. When will this farce end? Enough is enough, already!!!

I've only ever been this disgusted with the judicial system once before in my life, and that was with the slap on the wrist farce of the supposed M$ judgement. Maybe I should file Judge Wells into the same category as I've put Judge Kollar-Kotelly. Judge Kimballs place in my mind will depend on what kind of order he produces.

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

[ Reply to This | # ]

An opinion from outside the USA.
Authored by: Brian S. on Thursday, January 20 2005 @ 12:11 AM EST
Forget SCOG, IBM and Linux. That arguement is already irrelevent and decided.

It seems to me it's the American Legal System on trial now.

Brian S.

[ Reply to This | # ]

The Wells Discovery Ruling - Grants in Part, Denies in Part
Authored by: Anonymous on Thursday, January 20 2005 @ 12:49 AM EST
Here's the problem: Judges are a bit in the Ivory Tower and think that lawyers
will cooperate in the interest of getting all their clients cards out on the
table if Judges simply create mechanisms for this to happen during the Discovery
process.

This is a natural thing for Judges to think because it is their job to find
truth and do justice, and they have some authority to back them up. The job of
lawyers, however is to win for their clients. (If you had a matter before the
Court, that's what you'd want your lawyer to do.) Thus, the jobs of the Judges
and the lawyers are not the same and are often at odds.

In the interest of winning, lawyers have every incentive NOT to get their cards
out on the table during discovery. This discontinuity in purpose leads to
situations that Judges often get wrong.

For example, the Utah State Courts in Salt Lake County (the Third District) have
a local rule requiring Plantiff lawyers to contact Defendant lawyers for a
Discovery Conference, so they can agree on a Discovery schedule.

Unfortunately, this rule really does nothing to facilitate Discovery. And
sometimes, should a Plaintiff lawyer neglect to instigate the Discovery
Conference, the Defense lawyer simply ignores Discovery requests by the
Plaintiff, thus causing a delay in the proceedings. In this way, a
well-intentioned Judge-made rule results in greater opportunity for delay and
injustice, instead of the intended effect of speedy justice. Happens all the
time.

One of the reasons for Judges wanting lawyers to agree on things is so they
won't have to make rulings. For some reason, Judges don't like to make the hard
rulings. But that's the solution to most problems: Judges need to make the hard
rulings and let things move forward. That's the best way to get lawyers to
cooperate -- under Court Order.

Sorry for my rambling, but I've seen this sort of thing over and over again, and
it astounds me that the situation never seems to improve.

[ Reply to This | # ]

    Bad News on a Cloudy Day - Sweating Blood, Productive Brooding and Plotting Revenge
    Authored by: webster on Thursday, January 20 2005 @ 01:15 AM EST
    The Order is disappointing to Blue and will provoke a ghastly amount of work and
    expense. What's worse, the Judges don't seem to be on top of the matters, or
    more optimistically, they are not coordinated and working together as I presumed
    they were. Wells does not seem to have read the relevant PSJ on Contracts.

    IBM should wait on complying with this order and contemplate some requests of
    the Court and inspire further overlength responses by SCO. A little reasonable
    delay now may save a lot of time, work, and expense in the future.

    IBM should Move for a stay and protection of this latest discovery order. They
    could most respectfully and politely point out that MJ Wells issued the order
    with a PSJ on Contract claims pending that would obviate this discovery order.
    They can then reaffirm the strength of the PSJ indicating that it hinges on
    contract and not code. Also that SCO was not party to the contract and all
    sides to it agree with IBM in their affidavits.

    A second reason to stay it is a ruling on the Novell intervention and role as
    ultimate owner of the code and rights.

    They should also point out that a ruling is also pending on the waiver theory
    since SCO and its predecessor distributed all the code in question under the
    GPL. This would obviate this onerous discovery also.

    IBM should also blame SCO for this fishing expedition due to their refusal to
    name the code in Unix that got into the code in Linux. They had to have a
    reason to file the suit in the first place. Unassailable logic. This would
    shortcut discovery immensely. they have refused to do this so as a sanction
    make SCO pay for the fishing expedition. Make them pay for the cost of copying
    and transferring all of AIX and Dynix "versions and revisions."

    This ought to promote judicial efficiency and keep SCO busy. And maybe if IBM
    files overlength and repeatedly they'll get more than half of what they ask
    for.

    No doubt IBM has better moves that these in mind and has probably plotted this
    possible step when the motion was filed. Who knows? They may dump the whole
    batch on them tomorrow. Or maybe they will find it cheaper to buy SCO
    tomorrow.

    Judges are human. They are not experts at anything other than conducting court
    usually. If they don't get the law, facts, or technicalities in your case, or
    grasp the other sides inventions, it is extremely discouraging.

    There is still hope for a quick PSJ here, but if both judges are on the same
    page your inconceived children will be walking before this is all over.








    ---
    webster

    [ Reply to This | # ]

    Any bets now on Maureen and G2?
    Authored by: Brian S. on Thursday, January 20 2005 @ 01:17 AM EST
    Brian S.

    [ Reply to This | # ]

    Is this a Settlement Order in Disguise?
    Authored by: Anonymous on Thursday, January 20 2005 @ 01:22 AM EST
    Perhaps the Judge has found some merit, recognizes that absent a compelling
    reason that a settlement will never occur, so she gives a nudge to the party
    that is least likely to move towards a settlement.

    Now how about that football footnote! The Ball is on the field and you had
    better be able to play both ways. Is this a foreshadowing of what is in
    protected discovery?

    I want IBM to win this outright, but now they are faced with compliance with
    this order, fighting it and enduring a long fight or approaching the settlement
    / acquisition table as a result of this order.

    [ Reply to This | # ]

    Talking about Communism.
    Authored by: Brian S. on Thursday, January 20 2005 @ 01:50 AM EST
    It seems to me that the USA is an easier place for a state assisted monopoly to stay in place than almost any other country I know of.

    Brian S.

    [ Reply to This | # ]

    Here's a math problem for you to work on
    Authored by: fudisbad on Thursday, January 20 2005 @ 02:07 AM EST
    If it takes 1 man 25,000 years to compare 5 * 109 lines of code ("LOC"), how much time does it take 2 judges to compare 2 * 1011 LOC (assuming the judges are twice as slow as the man)? What about 10 men to compare 2 x 1011 LOC (assuming that the men work at the same rate)?

    Answers to follow whenever someone gets it right.

    ---
    See my bio for copyright details re: this post.
    This subliminal message has been brought to you by Microsoft.

    [ Reply to This | # ]

    The legal system is a joke
    Authored by: Anonymous on Thursday, January 20 2005 @ 03:04 AM EST
    I think judges are more than happy for endless delays because they get paid by
    the hour. I see no other reason for these ridiculous decisions.

    In any legal case the onus should be on the plaintiff to state their case
    clearly and concisely.

    Its obvious that defendants should be given every opportunity, and a few more,
    to prove their innocence.

    However when the plaintiff has no idea what they are talking about the courts
    should kick them out as soon as it becomes apparent. If you want to make
    accusations then do so at your own risk.

    Judges should get a large portion of their pay based on the number of cases they
    hear in a year.

    Then the judge would have had an incentive - as soon as SCO failed to meet an
    order the case is thrown out and he/she can move on. SCO would have be told to
    jump a long time ago.

    [ Reply to This | # ]

    Bob Mimms from the Salt Lake Tribune.
    Authored by: Brian S. on Thursday, January 20 2005 @ 03:14 AM EST

    Court ruling is a plus for SCO vs. IBM

    Software: The computer giant is ordered to turn over more data on its Linux-related codes to the Utah-based company

    By Bob Mims
    The Salt Lake Tribune

    A federal magistrate has handed a partial victory to Utah's SCO Group, ordering computer giant IBM to turn over more of its Linux operating system-related program codes............. Salt Lake Tribune

    and he's honest, I can only imagine the FUD that's coming courtesy of the Utah Federal Court.

    Brian S.

    [ Reply to This | # ]

    Is this final?
    Authored by: JochenW on Thursday, January 20 2005 @ 03:40 AM EST
    Good heavens: "all versions and changes to AIX and Dynix"

    That isn't "denied in part", that's in essence, exactly what SCO has
    asked for: It is the complete contents of CMVC. Perhaps not in the CMVC format,
    perhaps without the possibility to validate completeness (that's what CMVC
    access would give), but these aren't the points.

    SCO has any excuse to search arbitrarily long for "methods and
    concepts" and, of course, they'll find something. If Wells didn't take any
    of IBM's arguments, one cannot expect that she will take an argument, that any
    "copied method" is ridiculous.

    Thus, my question is: Is this order final, or is there any chance that it can be
    revoked?

    [ Reply to This | # ]

    Individual familiar with CMVC?
    Authored by: Anonymous on Thursday, January 20 2005 @ 03:57 AM EST
    In direct contrast to IBM's argument is a sworn declaration from an individual familiar with CMVC.

    Surely she's not referring to Sontag, is she?????

    [ Reply to This | # ]

    • Is she is then... - Authored by: Anonymous on Thursday, January 20 2005 @ 10:28 AM EST
    Let's not mince words - this is dreadful news
    Authored by: Anonymous on Thursday, January 20 2005 @ 04:01 AM EST

    Judge Wells has bent over backwards to accomodate SCO, and makes some very worrying statements:

    >"In fact, the contract claims may have a more important role in the outcome of this case than the copyright claims."

    Really? Do you think so? If Judge Wells is only coming to this conclusion now, then there is a gulf of understanding so wide that it bodes ill for IBM.

    >"Under a plausibile reading of the contract, it is possible that protections and prohibitions exist for code contributed by IBM to Linux."

    Uh oh. I don't know exactly what part of the contract Judge Wells thinks makes this plausible, nor why Novell's waiver hasn't been considered.

    >"This code that eventually ended up in Linux may not look similiar to the code initially provided to IBM under the contract, but if it was based on modifications, elements of derivations that are protected under the contract then it is clearly relevant."

    That's the crux of SCO's case, and Judge Wells is making their argument for them. Bad, bad sign.

    >"In contrast to IBM's argument this protection may even extend to 'homegrown code' depending on the interpretation of the contract."

    Yeeeargh! It "may" do so, but if it does, then this discovery is irrelevant, as IBM might as well just pay off SCO and burn anything that's so much as been developed in the same hemisphere as the AIX source. I can't see on what clear grounds Judge Wells believes that this vast discovery of source code will influence the inevitable ruling on the terms of the contract.

    >"Accordingly, the court HEREBY ORDERS IBM to provide in a readily accessible format all versions and changes to AIX and Dynix."

    The only good that I can see from this is that SCO's lawyers will be rueing the day that they agreed to capped fees.

    And then what appears to be an irrelevant off topic ramble about a fooball player. Is Judge Wells feeling all right?

    >"[...] the courts finds that it is not only the changes to the code that are relevant but also the names [of] those individuals who made the changes. This information is relevant in part because some of these individuals may have information concerning IBM's treatment of the contracts."

    "in part"? What's the other part? 'Cause the court feels like it? And Judge Wells seems to be under the impression that the individuals making the commits would have knowledge of the contracts. This is, in my experience, exactly the opposite of how things work in a corporate environment.

    >"Accordingly, IBM is hereby ORDERED to provide programmer's notes, design documents, white papers, the comments and notes made by those who did the changes [...]"

    I can't find my notes half the time. How is someone else going to find them ten years from now, or even be able to show that they do or don't still exist?

    >"[...] the names and contact information of individuals who made changes"

    What, even those who no longer work for IBM?

    >"Accordingly, IBM is HEREBY ORDERED to provide the above required information for the 3000 individuals who made the most contributions and changes to the development of AIX and Dynix. [...] In the court's estimation, it should be easier to show changes to source code than provide the information concerning who made every change to that code."

    The court is wrong. As IBM have to provide every diff, it would actually be easier for them to provide full details of the contributor for each diff, rather than to pick out 3,000 people, especially as...

    >"To the extent possible the parties are to agree upon the 3000 designated individuals. [However] IBM is to file an affidavit detailing the process by which the 3000 were chosen."

    I honestly believe that IBM should just provide full details of the individual who committed every diff, and then list the 3,000 highest contributors by number of diffs. I don't see what possible other method that they can use, nor which SCO could ask for.

    Overall, this is a disaster. Even if IBM provide this source and information very rapidly - and let's be frank, they should be able to do so - then SCO can quite plausibly argue that it will take them years to find the evidence that they need.

    Especially if that evidence isn't there.

    You know, if a Judge was tired of hearing a case, and wanted to punt it so far that it wouldn't return until they were retired, then they couldn't have picked a better ruling than this by which to achieve that.

    [ Reply to This | # ]

    Charitable view of Judge Wells Order.
    Authored by: Brian S. on Thursday, January 20 2005 @ 04:08 AM EST
    Is she being clever and offering SCOG more information than they can afford to cope with if they have to pay outside techies to do the analysis.

    Brian S.

    [ Reply to This | # ]

    New Trial Date Set, Feb 25, 27005AD!
    Authored by: Ockham's Razor on Thursday, January 20 2005 @ 04:25 AM EST
    This is a very interesting order and certainly not what I expected. I have a
    couple of questions in general, and if I ever happen to meet Judge Wells, I
    would inquire her thoughts as well.

    1. Given SCO's statements to the court concerning the man hours required to
    compare Linux to Unix, and that the Code to be provided by IBM can only be
    reviewed by the Laywers, and only those not on SCO's staff, how can SCO possibly
    make a reasonable review in this decade? I know that in thier theory/claim of
    contract violations they do not appear to be looking for code, but a
    "smoking gun" programmer's note or e-mail but it would be needed for
    SCO's defence against some of the PSJ's as they have stated to the court.

    2. Since SCO has been handed a fishing license, how will SCO be able to pay for
    the trip? Given SCO's finances and the additional costs of reviewing the
    discovery, does anybody belive that SCO could pay IBM's costs if they lose?
    Does this come into play at all when a judge considers the "at the
    discovery stage, the concept of relevance should be construed very broadly,...
    the court finds that the burden of producing the code SCO seeks is
    outweighed"?

    3. Can SCO now use this order to get delays in the PSJ's, including the ones
    taken under advisement? They were argueing "discovery" everywhere it
    seems.

    Now for reading between the lines, tea leaves and assorted sticks and bones
    strewn on the ground.

    Was it just me or did Judge Wells just tell SCO "Put up or shut up"
    and tell IBM "SCO might be right, you're stonewalling"?

    SCO now has more powerfull arguements for delay.

    Will IBM now force SCO to prove there lineage (standing) to file this suit?

    Since delay seems inevitable, will IBM now become the "squeaky wheel"
    and demand the discovery that SCO has been ducking?

    Just some random thoughts very late in the night (or early in the morning,
    depending on your reference)

    [ Reply to This | # ]

    Cart before Horse
    Authored by: Vaino Vaher on Thursday, January 20 2005 @ 04:39 AM EST
    I am dissapointed in Judge Wells!
    In Dec 2003 she declared that there would be no more fact-finding and no more
    code for SCO until they had produced evidence of infringing code.
    SCO never produced anything, despite repeted requests.

    Now SCO claims that this is a contract dispute, and the facts that they are
    looking for is to prove IBM wrongdoing ACCORDING TO SCO'S INTERPRETATION OF THE
    CONTRACT.
    Now, common sense says that the interpretation of the contract should be
    clarified BEFORE any wrongdoing can be investigated. And that is exactly what
    Judge Kimball has on his desk (in the form of two motions from IBM).
    Why rule on SCO's motion before the relevant motions have been decided on? Or is
    law really that far separated from common sense?

    [ Reply to This | # ]

    This is a test of SCO's demeanor
    Authored by: Anonymous on Thursday, January 20 2005 @ 05:03 AM EST
    with this ruling it is apparent the court is looking for loose ends that might
    not withstand appeal if the decision comes up in a liberal appeal court. This
    is why people who appoint judges need to take the task of filling positions in
    the judicial system seriously...the seriousness of a heart attack even. Not to
    impune the judges appointed to this suit. The judge is just looking at this
    from the angle of...well basically he/she knows the caliber of those in the
    judicial field and to error is human...but what can be done about it??? well
    you try to compensate for the inevitable idiot who has somehow been entrusted
    with authority to make decisions. Overall, this is a blip on radar and really
    not worth much to either party in terms of changing the ultimate fate of this
    case. SCO is being treated as a handicap and this is their chance to show they
    have heart and really want to prove they deserve sympathy. On the other hand,
    this is going to be the straw that breaks the camels back. If nothing is
    exposed by SCO in their repeated attempts of proving they saw a ghost...well
    they have to find some way of proving there is a ghost

    [ Reply to This | # ]

    The Wells Discovery Ruling - Grants in Part, Denies in Part
    Authored by: odysseus on Thursday, January 20 2005 @ 05:21 AM EST
    So Wells has ordered IBM to produce ALL code from CMVS,
    under threat that if they don't, she will give SCOG full
    direct access.

    Pray tell, your honour, how will you know if IBM hasn't
    complied? You'll be taking SCO's word on it, I presume...

    Basically, she has given SCO carte blanche to keep lodging
    discovery orders until the next ice age rolls around :-(

    Given not only how much work will be involved in dumping
    the code, but that IBM will no longer have most of the
    programmers notes and much of the old code (for example,
    when I left IBM, my notes were shredded on exit, what few
    were left, and while there I archived then deleted after
    the required retention period many obsolete code modules
    in order to keep the repository clean) (I didn't work on
    AIX, I hasten to add), I see no alternative for IBM but to
    appeal this order.

    John.

    [ Reply to This | # ]

    That's it then.
    Authored by: Anonymous on Thursday, January 20 2005 @ 05:57 AM EST
    IBM is now ordered to hand over everything in their version control system to
    SCO, after sorting it through for relevancy.

    In short, Judge Wells tells IBM: "I think you are all liars, everything
    which you said about your system is untrue, and I order it so. It may be
    irrelevant also according to PSJ, but never mind. If you don't pay the
    ferryman, uh SCO, you'll never get alive to the other side of the legal
    quagmire."

    It is an order to settle, or else. One would almost be tempted to think that
    SCO sent a bunch of hit men (well, continuation of their constant whining may be
    a similar threat) to Judge Wells.

    IBM can't do anything sensibly but decline, or present the court with a bill in
    advance. But of course SCO will use this to appeal. It will take years to get
    this through, and burn heaps of money. Much more money than SCO is worth.

    And the message is simple: Open Software development does not work. You can't
    hope to defend yourself legally, even if accused by madmen, and even if you have
    the best lawyers available. The court system will make sure that you'll go
    broke.

    [ Reply to This | # ]

    USA is a wonderful contry to live in!
    Authored by: Anonymous on Thursday, January 20 2005 @ 06:04 AM EST
    Lie, lie, lie and you get rewarded! Wonderful!

    What a joke!

    [ Reply to This | # ]

    A travesty of justice
    Authored by: Anonymous on Thursday, January 20 2005 @ 06:07 AM EST
    So let me get this straight...SCO have provided *no* evidence, and yet IBM have
    to provide everything that SCO ask for. What little faith I once had that the US
    legal system would resolve this has now completely evaporated.

    [ Reply to This | # ]

    Setting precedents
    Authored by: cybervegan on Thursday, January 20 2005 @ 06:19 AM EST
    Is this ruling likely to set a precedent - whereby, as with e-mail retention
    policies, software companies will set source-code, design notes and whitepaper
    retention policies that dictate that employees do not keep such material for
    more than a certain period of time? Is this legally feasable?

    My point is - if you can prove that you have destroyed such materials, like with
    e-mail, does that absolve you?

    Personally I think that such a policy (again as with e-mail) would be immoral,
    but may be a necessary defensive action if it's allowed.

    thoughts, anyone?

    regards,
    -cybervegan

    ---
    Software source code is a bit like underwear - you only want to show it off in
    public if it's clean and tidy. Refusal could be due to embarrassment or shame...

    [ Reply to This | # ]

    Can this somehow be appealed?
    Authored by: Anonymous on Thursday, January 20 2005 @ 07:31 AM EST
    Judge Wells has now put an enormous burden upon IBM. It might even be impossible
    for IBM to comply without compromising other commercial operations.

    This could be insensitivity on the part of the judge.

    However, it could be gaming the system. On one side, she could try to force the
    parties to settle. But that would need the consent of Kimbal, I assume.

    On the other side, she could try to force IBM to start some kind of appeal
    process (which would be cheaper than complying). IBM could then maybe argue
    under a different set of rules. Say, the appeal judge could be asked to force
    SCO to produce some kind of guarantee or evidence.

    I read somewhere in Groklaw that discovery decisions could be appealed.

    Rob

    [ Reply to This | # ]

    Judge Wells buys SCOG's broom theory
    Authored by: Anonymous on Thursday, January 20 2005 @ 08:11 AM EST

    For those who are still a little fuzzy on what SCOG are arguing, it boils down to this:

    "We leased IBM a broom. They changed the head twice, and the handle three times, but it's still our broom."

    [ Reply to This | # ]

    Why I love court orders in general, and Brooke Wells in particular
    Authored by: ctrawick on Thursday, January 20 2005 @ 09:04 AM EST
    "Both sides in this dispute are on the offensive and defensive much like
    the versatile two-way players from football's storied past."

    You gotta love it.

    BTW, that's American football in case there's any confusion.

    Is it just me or does it seem sometimes that judges write in their orders
    everything they wish they could write in their motions back when they were just
    lawyers? "Okay, I'm going to make what is called a 'historical reference'
    here, and I don't expect you boys to be sharp enough to get it. Here's your
    footnote."

    chris

    [ Reply to This | # ]

    SCO Wins Landmark Legal Ruling Against IBM
    Authored by: Anonymous on Thursday, January 20 2005 @ 09:11 AM EST
    SCO Wins Landmark Legal Ruling Against IBM

    Utah - In a stunning legal victory favorable to SCO the Utah District Court has
    ordered IBM to produce the development history's for all their Unix like
    software. Access to these Unix codes and documentation will enable SCO's
    technical investigators to directly link their current proof of IBM
    misappropriated codes from SCO's Unix software into the Linux operating system
    with the original documents and source codes in the IBM development history's
    codes.

    SCO CEO Darl McBride is said to have praised the Judges ruling, saying that they
    now have the tools required to solidify their legal position regarding the
    ownership of the IP used in the Linux softwares. He went on to say that this
    decision will help speed up the resolution this and several other cases brought
    by SCO against other companies regarding the misappropriation of SCO Unix trade
    secrets.

    In keeping with his stated opinion that 'You just cannot take other people work
    and give it away for free.' he is said to say that the days of experimentation
    with the viral like GPL licensing schemes are coming to an end thanks to this
    ruling. Statements that are expected to be echoed by other analysts in the high
    tech field in the coming days.

    It is expected that SCO stock price, that has taken a beating as of late, will
    recover significantly once the true aspect of the ruling reaches the investment
    community.

    `-- 30 --

    [ Reply to This | # ]

    I don't buy it
    Authored by: Stumbles on Thursday, January 20 2005 @ 09:45 AM EST
    I am really disappointed the judge is allowing SCOG this much
    fishing while they are still in violation of two court orders to
    produce their initial evidence.

    While I do understand the reasoning, IMO it is only valid and
    supportable IF SCOG had already shown IBM their initial evidence
    that lead SCOG to this suit.

    IMO this sets a really bad precedence.

    ---
    You can tune a piano but you can't tuna fish.

    [ Reply to This | # ]

    Strengthen or Confuse?
    Authored by: Anonymous on Thursday, January 20 2005 @ 09:47 AM EST

    Wells: "IBM's case will be strengthened tenfold if IBM can show that
    notwithstanding possible contract protections, homegrown code provided no basis
    for the code that IBM eventually contributed to Linux"

    Huh? Did SCO actually acuse IBM of this? Last I heard they had failed to
    demonstrate any overlap between that licenced and taken from SVRx and that put
    into Linux

    IBM do not need to prove SCO's case, that's SCO's job.

    Let them fish, but IBM need not be involved beyond production.

    SJG,
    Programmer.

    [ Reply to This | # ]

    WHAT'S THE BIG DEAL?!
    Authored by: ctrawick on Thursday, January 20 2005 @ 09:51 AM EST
    Sorry for the caps in the title, I'm just going through these comments and
    seeing "travesty of justice" and "this sucks" and emotional
    reactionary whining like that.

    Seriously, what's the big deal with this order? It's not like IBM doesn't have
    the resources to produce this, it just wouldn't be helpful for SCO (except for
    endless delay of course). Here I see JBW saying "Okay SCO, I'm sick of
    your whining. If this doesn't expedite your sorry case off my docket, then
    don't say we didn't give you enough rope. Go hang yourself."

    Contrary to PJ's assessment (and the typos in the order itself), I do think that
    JBW's on the mark here. Note that she didn't give them CMVC, which would have
    been a lot easier to move around than exporting every version of AIX and giving
    it to SCO. I do think that she'll hold SCO to that assessment that this will
    make things go faster. Nevertheless, I envision a tractor-trailer's worth of
    CD-ROMs in SCO's future.

    Well, they did ask for it.

    chris

    [ Reply to This | # ]

    JFS
    Authored by: Jaywalk on Thursday, January 20 2005 @ 09:53 AM EST
    Since SCO has seen fit to make an issue of JFS, I hope IBM has enough sense to make sure that many -- or at least some -- of the 3000 names provided are the original developers of JFS. The original JFS was developed for OS/2, so the original developers would have been x86 Assembler programmers. Lets see SCO try and convince the judge that they own that.

    ---
    ===== Murphy's Law is recursive. =====

    [ Reply to This | # ]

    The Wells Discovery Ruling - Grants in Part, Denies in Part
    Authored by: The Cornishman on Thursday, January 20 2005 @ 10:05 AM EST
    I notice that the revised scheduling isn't even due before 25 March. What is
    the betting that SCO will ask for more time to evaluate the discovered
    materials: "Sheesh! There's two billion lines of code here!"

    On the other hand, SCO will never be able to produce any software remotely
    related to Dynix/ptx or AIX functionality ever again. "They've seen the
    code, *of course* they copied it!"

    On a more sombre note, this reminds me of the run up to the invasion of Iraq,
    where the allies were demanding disclosure of WMD, and wouldn't listen to Iraq
    and the Weapons Inspectors telling them that there weren't any. Damned if you
    do, and damned if you don't.

    Jonathan

    ---
    (c) assigned to PJ

    [ Reply to This | # ]

    Told you so?
    Authored by: NemesisNL on Thursday, January 20 2005 @ 10:09 AM EST
    Still convinced SCO will not get any more delays? Unbelievable. More discovery
    to find what? What about IBM's right to see the alleged code? Why should IBM
    give more code when SCO will not show the infringing code after two court
    orders? Still believe SCO doesn't stand a chance? In a normal world they
    wouldn't. In a normal world no proof means no case. In this courtroom no proof
    isn't even a slight hinderance. You get more and more discovery so you can
    fabricate proof. More room for outlandish theories and two judges basically
    catering to SCO's every desire. If this isn't getting to be a travesty of
    justice I sure don't know what a travesty of justice looks like these days.

    [ Reply to This | # ]

    March 18th? Ain't gonna happen.
    Authored by: Jaywalk on Thursday, January 20 2005 @ 10:56 AM EST
    I don't think the judge knows what she is asking. Picking out a defined code release is one thing, but following back the strings for each module's back history and separating threads that go into AIX and Dynix from other products is going to be massive. I mentioned JFS before. If you pick a JFS source file in AIX and follow it back, you're going to hit code forks and splits. Some of these are going to go back to relevant code (like a previous AIX version) and some will go back to to irrelevant code (like an OS/2 version).

    I suspect even IBM isn't going to be able to clear that mass of information in under two months. They're going to have to assign a team to this that will have to trace each module back for each released AIX version back to its point of origin, or at least to where the origin is outside of the scope of the case. Since it's a matter of identifying and following individual threads in the pile, it's not always going to help to throw more manpower at the case. (A former employer was fond of saying, "You can't get a baby in one month by getting nine women pregnant.") I suspect IBM is going to have to provide descriptions of the work done so far along with new information to date at intervals.

    And they should include a veiled "I told you so" as well. They already had an expert who testified just how hard it would be to comply with SCO's demands.

    ---
    ===== Murphy's Law is recursive. =====

    [ Reply to This | # ]

      The speculators
      Authored by: joef on Thursday, January 20 2005 @ 10:59 AM EST
      It's interesting to note that there was a rash of pre-opening trades that
      reached near $5, but the market dropped back to around $4.50 by mid-morning
      (still, up $0.85).

      Some subset obviously jumpped at the news!

      [ Reply to This | # ]

      A ruling that won't survive unmodified
      Authored by: codswallop on Thursday, January 20 2005 @ 10:59 AM EST
      This ruling has a number of faults that will almost cetainly force changes at
      some level.

      1) It appears to rely on the expert testimony of a non-expert. This is clearly
      an error.

      2) What it requires isn't well defined. IBM can certainly supply every checked
      in version of every file used to build any well defined version of AIX, but
      that doesn't map to versions of AIX. Then there's the problem of merged branches
      etc. Likewise the checkin information shows who checked in the code, not who
      wrote it. In some organizations a single person is in charge of checkin. This
      usually isn't a programmer (at least an active one).

      3) A great deal of the information is unrecoverable, including everything before
      1991 and all the pre-IBM Dynix info.

      4) The AIX code that IBM didn't contribute to Linux has no claims against it and
      isn't relevant for discovery.

      5) There are motions in process that would make the requested discovery
      unnecessary.

      6) IBM will ask that SCO pay for the discovery based on Rowe Entertainment, Inc.
      v. The William Morris Agency. SCO may decide to amend their request faced with
      the bill.

      ---
      IANAL This is not a legal opinion.
      SCO is not a party to the APA.
      Discovery relevance is to claims, not to sanity.

      [ Reply to This | # ]

      If the decision was such a no brainer . .
      Authored by: Anonymous on Thursday, January 20 2005 @ 11:24 AM EST
      Then why did it take Wells four months to make the decision?

      [ Reply to This | # ]

      Judge orders IBM to reveal Unix code
      Authored by: clark_kent on Thursday, January 20 2005 @ 11:26 AM EST
      Just to reiterate this if it was already posted...

      Judge orders IBM to reveal Unix code

      http://news.com.com

      "Although U.S. Magistrate Judge Brooke Wells denied SCO's request for access to IBM's actual code repositories, Wells said that SCO would be allowed "unfettered access" to those repositories if IBM fails to produce the Unix versions and changes by March 18."


      I am not sure what to say about it, but I am confident SCO doesn't have anything new on this subject. I think they are just trying every option they can to stay alive and drag this out. You probably would too if you were in their shoes.

      [ Reply to This | # ]

      I am really getting confused
      Authored by: grayhawk on Thursday, January 20 2005 @ 12:31 PM EST
      Here we have two judges on this case and it seems to me that we actually have
      two cases. On one hand we have Wells ordering more discovery and yet on the
      Kimball side we have motions put forward by IBM requesting summary judgements
      which if made would dismiss the case all together and make discovery useless.
      Don't these judges work together? If we have motions for dismissal why would be
      treat this like a brand new case asking for discovery? This is too weird and
      totally illogical. Lets rule on the motions and then deal with what is left and
      if more discovery is warrented then lets go forward with it. After all if the
      ruling favours IBM that they are not in breach of contract the case ends.

      ---
      All ships are safe in a harbour but that is not where they were meant to be.

      [ Reply to This | # ]

      SCO gets partial access to CMVS
      Authored by: trs on Thursday, January 20 2005 @ 12:55 PM EST
      Okay, I know they don't but they claimed that the previous discovery granted
      them all interim versions of AIX and Dynix and filed motion after motion
      complaining that IBM hadn't provided them with it.

      Top of page 10 in the order reads: "In essence, the court is ordering
      production of the information contained within the CMVC and RCS systems without
      granting SCO complete access at this time"

      In other words, because Judge Wells did not say "... without granting SCO
      ANY access at this time" expect motions (overlength ones) to compel IBM to
      grant them the partial access that this order supposedly grants them.

      IANAL etc.

      [ Reply to This | # ]

      The Wells Discovery Ruling - Grants in Part, Denies in Part
      Authored by: stewart on Thursday, January 20 2005 @ 02:02 PM EST
      "In contrast to IBM's argument this protection may even extend to
      "homegrown" code depending on the interpretation of the
      contract."

      I am not sure what is going on here. Why no mention of the 1985 side letter? The
      contract is clearly clarified in the document and the judge seems to have just
      ignored it. IBM owns it's code, Not SCO.

      "we agree that modifications and derivative works prepared by or for you
      are owned by you. However, ownership of any portion or portions of SOFTWARE
      PRODUCTS included in any such modification or derivative work remains with
      us."

      So what exactly does she not understand about this. It appears to be plain
      english in a document without any need for interpretation.

      IANAL etc

      [ Reply to This | # ]

      IBM Liable for unreleased code? Huh?
      Authored by: euler on Thursday, January 20 2005 @ 02:10 PM EST
      Ok, so thwap me if I am wrong on any of these questions/points. IANAL, not even
      close.

      First, the case is currently only in discovery. SCO isn't required to show if
      they have found anything, correct? They could be "keeping their cards
      close to their chest," although given their history, that may not be
      likely. Just because SCO hasn't jumped up and down shouting
      "eureka!!" doesn't mean they haven't found anything. I only point
      this out because all the comments on this story at /. talk about how SCO hasn't
      found anything yet, so they keep digging.

      Also, whether or not code that later appeared in Linux showed up in some unused
      version of a file in AIX would have would seem to be of dubious value to SCO.
      If it wasn't in a "released" version of AIX or DYNIX, it isn't truly
      UNIX, and therefore shouldn't be covered under ANY clause that SCO could cite.
      SCO making a case on this could have a devasting effect on the entire software
      industry. Say, for example, in a closed source program, some code was
      introduced inadvertantly into source control that infringed on another companies
      copyrighted code. The mistake was caught, and the code was removed before the
      product was released. Disaster averted, everyone is happy, right? Wrong. If
      SCO can somehow make this work, then even the fact that it appeared in source
      control makes the company liable. I have to be wrong, because I can't believe
      the magistrate let this specious argument by.

      Please tell me I'm wrong here.

      [ Reply to This | # ]

      Almost none of this discovery is going to happen...
      Authored by: frk3 on Thursday, January 20 2005 @ 02:14 PM EST

      IBM is going to file, probably, many motions regarding or related to this ruling, primary being the vagueness of the order.

      Plus, with the pending PSJ rulings, most or all of this discovery will no longer have any relevance,, so will not be done.

      I also find this to be judicual laziness on the ruling judge's part, relying on Sontag's declaration related to the CVMS system, which IBM has filed a motion to have stricken. So, if that is stricken, this part of the reasoning for the CVMS access by TSG would also be irrelevant and I am certain IBM would file motions related to this to prevent such access.

      Overall, my opinion of this ruling is that it is a bunch of crap, and you can quote me on that.

      [ Reply to This | # ]

      Screaming tantrums work
      Authored by: overshoot on Thursday, January 20 2005 @ 02:23 PM EST
      What I find most disturbing about this ruling is the Judge's own stated reason for finding as she did: SCOX keeps throwing tantrums demanding more -- so she's going to give them what they ask for in order to shut them up. As any experienced parent could tell her, that's the exact wrong plan. I could have sworn that her bio shows that she has children -- did she leave them 100% to hired help?

      Seriously, she even comes right out and comments that SCOX' complaints about insufficient discovery are "routine" -- then declares that she's going to give them the Sun, Moon, and stars in the hopes that they won't be able to think of anything else to complain about.

      I think I could have lived with the content of the ruling, if she had just left out such a patent cop-out of a justification.

      [ Reply to This | # ]

      Organization of the code
      Authored by: Anonymous on Thursday, January 20 2005 @ 02:29 PM EST
      I was thinking about this the other day.

      The general discussion seems to be that the code has to be produced in some way
      as a complete product, that is here is AIX in totality at time X. Then here's
      AIX in totality at time X+1.

      But what if you produced it as, here is filename.c in every revision ever
      checked in. And treat it as a bunch of individual files not as a product?

      Would that make things easier to produce?

      Of course I could just be completely wrong.

      Bill Sylvester

      [ Reply to This | # ]

      Does what they did to poor Judge Jackson have any relevance here ?
      Authored by: Anonymous on Thursday, January 20 2005 @ 03:05 PM EST
      <eom>

      [ Reply to This | # ]

      Typography
      Authored by: overshoot on Thursday, January 20 2005 @ 04:14 PM EST
      Am I the only one who thinks that this looks like it was typed, not
      word-processed?

      [ Reply to This | # ]

      I wish I could say I was surprised, but I'm not
      Authored by: aussiedave on Thursday, January 20 2005 @ 04:51 PM EST
      After three hundred plus posts on this thread there isn't much left to say,
      especially from this distance. But because of the time difference between
      Australia and the US I've had the opportunity to sleep on it. I have to say it
      doesn't look that much better, even with the sun shining and 28 degrees (that's
      Celsius, folk) expected today, but for what it is worth here's my two cents.

      To those who see this as the end of the world as we know it, please take a step
      back and get some perspective. It is an onerous order on IBM, and seems
      dreadfully unfair that they should be put though the hoops when there has been
      no sign of a shred of evidence against them, but hey - we are still at the
      discovery stage. Rather than view the ruling as evidence of ill-will on the part
      of the judge, think of it as highly conservative one. We can expect that IBM's
      response will be thoughtful and mature, a stark contrast to some of the
      "the sky is falling, the sky is falling" reactions on this thread.

      I also don't buy the "don't these judges talk?" argument. If they did,
      wouldn't that make it easier for SCO to appeal? For sure, any appeal court I
      have ever heard of looks solely at the conduct of the case from a legal process
      viewpoint, and in isolation.

      It is also possible to see the judges comments in the light of "I have to
      take the arguments presented at their face value, rather than use any discretion
      as to credibility". Once again, a very conservative view, but somewhat
      understandable. Particularly if her honour is not a regular Groklaw reader.

      Perhaps the next rulings will be more favourable, but I'm not betting my house
      on it. The worst outcome will be if IBM decides that their money is better spent
      on buying out the problem. That would indeed be a victory for blackmailers and
      extortionists everywhere.

      [ Reply to This | # ]

      Judge's advisors
      Authored by: Nick_UK on Thursday, January 20 2005 @ 05:12 PM EST
      I presume a Judge will take technical advice (not legal!)
      in matters like these whereby the knowledge to make a
      judgment on issues of a specialist nature is short.

      Do we know who the advisors are?

      Nick

      [ Reply to This | # ]

      An invitation for appeal?
      Authored by: m_si_M on Thursday, January 20 2005 @ 05:16 PM EST

      Some things in this document appear to be a bit strange:

        1. There is still a motion to strike the Sontag declaration pending before Judge Kimball. How can Judge Wells rule on SCOG's motions to compel without taking into consideration a decision of Judge Kimball (and if a ruling has been made and isn't available in public yet, why doesn't she mention it?

        2. On p. 15 Judge Wells writes "In direct contrast to IBM's argument is a sworn declaration from an individual familiar with CMVC." There is no reference and no footnote, so no one knows who this "individual" is. In case it's Sontag, see first point.

        3. Instead we have a footnote on p. 12 (including a reference) on football.

      Question to the lawyers: Is this an invitation for appeal?

      [ Reply to This | # ]

      "rote objection by SCO"
      Authored by: darkonc on Thursday, January 20 2005 @ 05:29 PM EST
      I think that that comment points to the probability that Wells is also getting a bit fed up with SCO's approach, but would rather err on the side of making sure that there's no room for an appeal when IBM wins.

      Go ahead -- bury them. Make them dig their way out. If it's really irrelevant, then it's not going to do them any good anyways, just cost them more money for the digging.

      ---
      Powerful, committed communication. Touching the jewel within each person and bringing it to life..

      [ Reply to This | # ]

      Producing "all versions and changes"
      Authored by: darkonc on Thursday, January 20 2005 @ 05:59 PM EST
      I think that this is going to force IBM to come up with some sort of innovative way of generating the versioning of their files... The one way that I can think of it would be to provide an extended source tree, where each file is replaced by a directory, and the directory contains the various versions of the files with some sort of dump of the meta-information on the changes also included.

      The result would not be immediately compilable, but I don't see any need for it to be compilable. The intent is for SCO to have access to the code, not compile it.

      In any case, I guess we can expect IBM to 'file' a 200GB hard disk (or perhaps a RAID enclosure).

      I think that Wells really does realize some of the absurdity of this, but she's ordering IBM to "bury the squeaky weasel in all the grease you can find" because she can't find a better solution.

      ---
      Powerful, committed communication. Touching the jewel within each person and bringing it to life..

      [ Reply to This | # ]

      The Wells Discovery Ruling - are there any laws against legal terrorism?
      Authored by: Anonymous on Thursday, January 20 2005 @ 06:02 PM EST

      Are there any laws against legal terrorism? How is possible that a company like SCO can freely threaten the whole computer industry with lawsuits, deceive in bad faith the courts, and inflicts severe costs on innocent hard working victims. Shouldn’t they show to the court some evidence or probable caus ? Make a substantial deposit, so the defendant could recover the cost related to frivolous legal action like SCO’s against IBM and others? This insane reckless behavior is like terrorism in its worst form.
      It is unbelievable that intelligent people aloud to perpetuate this behave!

      [ Reply to This | # ]

      WOW, I really can't believe how bad this ruling is!
      Authored by: Anonymous on Thursday, January 20 2005 @ 06:09 PM EST
      The more I look at this and think about it, the more I am amazed with how absurd this ruling is. I just need to vent.

      1. How, exactly, is introducing 20+ years of multiple lineages of code going to clarify or expidite this case at all? What is this going to contribute to a question about what IBM did with their own code, code they leased from a "predecessor in interest" of SCOG and public code that isn't available from the public code, the SCOG "owned" code and every released version of the IBM developed code/licensed SCOG code?
        How could someone even think could possibly help?

      2. What this does to the schedule, I don't even want to think about. Now we get to witness SCOG crying about how IBM is still holding out through overlength memorandum after overlength memorandum, until JBW says "Okay, IBM, you've had your chance. SCOG get's to stroll through you're entire code base". I can't imagine this won't add at least 6 months to the case.

      3. When she talks about the "Homegrown" code, it doesn't seem like she has any idea what she's talking about. She also seems not be able to figure out which of the parties is not acting in good faith.

      4. If I were a nazgul, I would be sorely tempted to suggest that the reason I am being so intransigent is because I am being shaken down by an cheap extortionist, and that a combative attitute is exactly approriate. Of course, there are many reasons why I am not an IBM lawyer.
        I would also start filling motions looking for some actual specifics.

      5. Yeah, I like when she says "The good faith efforts of both parties will be necessary in facilitating the production of such a large amount of source code."
        What trial have YOU been watching, Sister? You seen alot of good faith coming out of Lindon recently? Lady, this whole thing's a scam! This entire case is bad faith on SCOG's part, if it wasn't for their bad faith there wouldn't be any case in the first place!

      Anyway, these are just some thoughts.

      [ Reply to This | # ]

      Welcome to USA, the World of Mass Stupidity (WOMS)
      Authored by: Anonymous on Thursday, January 20 2005 @ 06:23 PM EST
      Or was it WOMD? Unbelieveable how a firm have to give their knowhow
      away...

      [ Reply to This | # ]

      What's good for the goose...
      Authored by: jthomps on Thursday, January 20 2005 @ 06:36 PM EST
      Given that the underlying reason for Magistrate Wells' ruling is that SCO's
      contract interpretations "may" be correct and all of AIX/Dynix code
      "may" be relevant.

      Why can't IBM ask for every iteration of every UNIX program since its inception
      so that IBM could trace the origins of all code that wound up in UNIX System V?

      Given the same ludicrous basis for granting SCO's discovery request, seems to me
      that she'd have to grant IBM's request for the exact same, stupid, reason.

      If SCO is allowed to show small, incremental changes that started in System V
      code and were replace by AIX code, shouldn't IBM have the same opportunity to
      show that code in System V originated from another code base in which SCO has no
      claim?

      I realize how absurd this sounds, but is it really any more absurd than the
      ruling that Magistrate Wells just made???

      Comments?

      --
      jthomps

      [ Reply to This | # ]

      • Better still... - Authored by: Anonymous on Sunday, January 23 2005 @ 06:18 PM EST
      But, on the up side...
      Authored by: tangomike on Thursday, January 20 2005 @ 08:35 PM EST
      1. There's a lot of other motions pending that would make this useless. Note
      that there's a major change to the schedule anticipated in this order, which
      would allow lots of time for other rulings to come down. Judge Wells has to know
      what's going on with those. Could it be that she thinks IBM won't really have to
      comply with most of this. Meanwhile, TSCOG SHOULD stop whining about more
      discovery. They've gotten pretty much everything they asked for. There's a
      reasonable chance it just won't matter to them or IBM.

      2. Assuming that IBM can insist on people outside TSCOG doing the technical
      work, they could just agree to let the BS&F techies have the run of the
      version control system. As the judge has written, TSCOG produced a sworn
      affidavit about how easy it would be, so let BS&F techies go to it. It's now
      an official court ruling that this will be practical.

      3. When TSCOG went after FSF last year, I recall that the discovery request
      costs can be charged back to the requestor, and codswallop above makes the same
      point. If anybody can keep track of billing for the BS&F techies, it's IBM.
      Assuming this is a 'mainframe' environment, I'd expect BS&F techies to have
      to sign a chit at the end of each day for the resources they used during the
      day. I dealt with a service bureau for many years; I bet BS&F will be amazed
      at how fast the bills run up:- several million dollars would be my very
      conservative guesstimate, and that's just to extract the code and copy it.

      4. And last, but BEST, is the IBM legal team on the other side of the game. I
      look forward to their response to this. They've kept their eye on the ball up
      till now. This is just a distraction for them.

      ---
      In a recent survey 87% of respondents thought TSCOG are greedy and dishonest.
      The other 13% thought they are also stupid.

      [ Reply to This | # ]

      Great news folks
      Authored by: Anonymous on Thursday, January 20 2005 @ 09:12 PM EST
      Note the language judge Wells is using - it's a contractual matter between IBM
      and SCO. Copyright isn't going to play much here. And, all of us not being a
      party to that contract, we have absolutely nothing to worry about EVEN IF there
      was something to worry about, which there isn't.

      [ Reply to This | # ]

      • Great news folks - Authored by: Anonymous on Thursday, January 20 2005 @ 10:56 PM EST
      The Wells Discovery Ruling - Grants in Part, Denies in Part
      Authored by: Anonymous on Friday, January 21 2005 @ 09:35 AM EST
      Magistrate Wells is imposing an onerous burden on IBM because there is some possibility that the contract might be interpreted as SCO interprets it. IBM ought to consider trying to end the fishing expedition by seeking bifurcation of the contract interpretation issue.

      The discovery ruling makes it pretty clear that resolving the contract interpretation might very well obviate the need for this massive production of documents:

      "From the foregoing, it is clear that the contracts and their interpretations are central to the disputes in this case. In fact, the contract claims may have a more important role in the outcome of this case than the copyright claims.

      * * *

      "While the court agrees with IBM that this case concerns code that may have been improperly contributed to Linux, the court disagrees with IBM's narrow interpretation of relevant code. Under a plausible reading of the contract, it is possible that protections and prohibitions exist for code contributed by IBM to Linux. This code that eventually ended up in Linux may not look similar to the code initially provided to IBM under the contract, but if it was based on modifications, elements or derivations that are protected under the contract then it is clearly relevant. In contrast to IBM's argument this protection may even extend to "homegrown" code depending on the interpretation of the contract.

      "Based upon the possibility of increased protection under the contract and the general principle that "at the discovery stage, the concept of relevance should be construed very broadly," see Gohler, 162 F.R.D. at 695, the court finds that the burden of producing the code SCO seeks is outweighed by the relevancy of such code in the instant dispute." (Emphasis added)

      I think IBM should give serious consideration to asking the court to bifurcate the contract interpretation issue and have it decided before any of the other issues. Fed.R.Civ.P. 42(b) grants district courts the discretion to bifurcate claims and issues and try them separately:

      "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims or issues, always preserving the right of trial by jury as declared by the Seventh Amendment of the Constitution or as given by a statute of the United States."

      [ Reply to This | # ]

      We can forget the PSJs
      Authored by: Christian on Friday, January 21 2005 @ 02:52 PM EST
      Wells sat on this for quite a while, and now issues a ruling that disrupts the entire schedule of the case. I do not believe that Wells did this without talking to Kimball.

      We have been wondering when Kimball will rule on the PSJs, and now we have the answer. Never.

      The scope of discovery has just been vastly increased, after the PSJs were briefed but before they were ruled on. SCO argued against the PSJs saying they needed more discovery, and now Wells has said that SCO should get more discovery. Kimball will not now rule on the PSJ saying that SCO was not entitled to more discovery. If for no other reason, because it would obviously be appealed.

      If the judges are communicating at all, this is a sign that Kimball is not going to rule on the PSJs.

      [ Reply to This | # ]

      IBM need to turn BIG GUNS on Magistrate Wells - No more "Mr Nice Guy"
      Authored by: SilverWave on Saturday, January 22 2005 @ 07:47 AM EST

      IBM need to turn BIG GUNS on Magistrate Wells - No more "Mr Nice Guy"

      Ok, with this ridiculous discovery ruling it time to "sort out" Magistrate Wells - She obviously likes to go with the flow. (Anything for a quite life) and unless IBM teaches her to show them some respect, her daft decisions are going to cost IBM a lot of time and money.

      So IBM need to APPEAL and go in hard.

      And the "she’s not a geek" defence just does not wash with me. She gets PAID to be informed on the subjects she is ruling on and if she needs help she can hire someone.

      Oh as you can see I’m really steaming at this bad decision.

      ---
      Linux used ideas from MINIX
      MINIX|UNIX
      UNIX|MULTICS
      MULTICS|CTSS
      CTSS|FMS
      In science, all work is based on what came before it.
      Andy Tanenbaum, 6June04

      [ Reply to This | # ]

      Time for IBM to pull out the big guns.
      Authored by: Anonymous on Saturday, January 22 2005 @ 06:41 PM EST
      (1) IBM needs to make a renewed motion to compel, given that SCO *still* has not
      given a proper response to Judge Wells's first two orders.
      (2) IBM should register a complaint about the ruling due to its being based on
      an unnamed "individual" with "knowledge of CMVC"; that
      surely isn't legitimate.

      (3) IBM should request immediate summary judgement on
      (a) the issue of whether Linux contains infringement of SCOG's copyrights.
      Since SCOG hasn't actually introduced any evidence of such -- despite two orders
      -- and even Judge Wells is saying that the case appears not to be about
      copyright -- and SCOG hasn't shown that it *has* any copyrights -- this should
      go through immediately.
      (b) The Lanham Act and trade libel claims. There's obvious proof that SCOG
      claimed that there was copyright infringement, and (a) shows that they should
      have known that there wasn't. As soon as (a) is done, this should go through
      instantly. After SCOG pays the fines for this, they can attempt to carry on the
      "rest" of their case....

      These should be expedited on the grounds that any delay increases the extent of
      the trade libel. :-P

      [ Reply to This | # ]

      The no-win situation
      Authored by: Anonymous on Sunday, January 23 2005 @ 06:38 PM EST
      "IBM's case will be strengthened tenfold if IBM can show that
      notwithstanding possible contract protections, homegrown code provided no basis
      for the code that IBM eventually contributed to Linux."

      HUH??? I fail to see a positive side here for IBM.

      How will IBM's case be strengthened by showing that "homegrown" code
      provided no basis for their Linux contributions??

      That would appear to say that if IBM just copied code directly into Linux then
      they'd be better off than if they used their own homegrown code!

      If that isn't a typo then Judge Wells is as clueless as anyone can get!

      [ Reply to This | # ]

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