Here is SCO's Memorandum in Support [PDF] of their Renewed Motion to Compel as text. We know how it came out already, so this is just to complete our text collection. Our thanks this time to fudisbad for the trancript. It also will help you to understand one part of Judge Wells' Order. The snarky, nasty, cynical, over-the-top unfairness of SCO's characterization of IBM in this document may very well be exactly what the Order was talking about when the judge asked the parties to be nicer. It also commented on the parties accusing each other of stalling. Those of us watching this case on a daily basis know who has been stalling and asking for delays, and so reading the unfounded accusations in this filing about IBM not complying with court orders makes one's blood boil. The judge's Order directly contradicts SCO's wild accusations, saying: "Previously, this court ordered IBM to 'provide the releases of AIX and Dynix consisting of "about 232 products."' . . . Based on the representations before the court it appears that IBM provided these products." So much for that accusation. And how do you like the technique of mischaracterizing IBM's actions in one document, and then quoting that mischaracterization as proof in a later document? You can see an example of that on page 9. But it is the mock indignation that really gets me, like their pretended inability to believe that a CEO of an international corporation would not have 5-year old emails lying around. *I* don't even have 5-year-old email. There is, I am willing to guess, no major corporation in America that would not have a stricter email retention policy than that. David Boies himself was reported in October of 2000 not to even use a PC, let alone email. There are still plenty of executives, including the President of the United States, I hear, that don't or won't use email. They've seen enough litigation like this one, thank you. And you don't usually get to be CEO of a major corporation if you are dumb as a rock. Now, now. Behave yourselves.
What SCO does is this. First, they decide what it is they want. Let's say they want a handful of stars. So, they ask for the moon and the stars. They whine and beg and wax indignant, and then the court gives them a few stars. You'll notice in this document, for example, they daringly ask for *all* of Sam Palmisano's files and more ("SCO has asked the Court (1) to order IBM to produce the entire files of Palmisano, Wladawsky-Berger, IBM's Board, including Board minutes, Board packages, and other relevant Board materials, and all other documents relevant to SCO's requests that this Court previously ordered to be produced"). It is a truly hilarious demand. They know it is, I'm sure. But they figure they'll wear the court down until they order something from those files, despite affidavits from all of the principals that there is nothing more to turn over. Of course, SCO's tactic worked to some extent with Judge Wells, which is why they did it. Smear campaigns aggressively pursued often do, at first. But in complex litigation, they don't last to the end. As David Boies himself has been quoted as saying, you can maybe fool a judge for a while, but you can't sustain it over a long, complicated trial. Here's how he expressed it just before the Microsoft antitrust trial began in 1998: Throughout the Microsoft suit, Boies said, he'll stick with the same playbook he has used in court for years: find a few key issues and hammer them home.
"In a short trial you can fool people. You can sometimes fool juries and you can sometimes fool judges," Boies said. "But in a long trial like this one, you need to find ground that you can fight and stand on regardless of how much the other side knows." And that is their problem. One of their problems. Fooling judges and juries is a problem in and of itself, in my opinion. I know if I worked for them and read this document, I'd look for another job. But their real problem is that what they started out thinking they had for a case got yanked out from under them by a community that knew the tech better than they did. And ever since, the only issues you ever hear from them are: 1) give us more code so we can find a case, 2) we need more time, and 3) IBM is a meanie holding out on us. And since the last isn't even true, eventually I expect they will be left fooling no one, with a whole lot of code on their laps and nothing to say. Let me rephrase that. I'm sure they'll *always* have something to say. What they will run out of is anyone to believe them. The media started out swallowing everything they told them, if you remember, but now they have only the faithful troika, O'Gara, Lyons and Didio. Say. Where's Enderle? We haven't heard from him in quite a while. Anyway, the courts are no different than the media. It may take a little more time, but they'll get there. They're more than halfway there already, in my estimation. And if there is one thing judges don't appreciate, it's being gamed. And so one way to look at this memorandum is that it is indicative of a firm with a short-term strategy. Given the Boies quotation, personally it makes me meditate on whether they think the end is nigh.
********************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone]
Robert Silver (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER
[address, phone]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone]
Attorneys for
The SCO Group, Inc
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE
SCO GROUP
Plaintiff/Counterclaim-Defendant
vs.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff
|
REPLY MEMORANDUM IN SUPPORT OF
PLAINTIFF/ COUNTERCLAIM-DEFENDANT SCO'S RENEWED MOTION TO COMPEL
Case No. 2:03CV0294DAK
HonorabIe Dale A. Kimball
Magistrate Judge Brooke C Wells
|
1
SCO respectfully submits this Reply Memorandum in further support
of its Renewed Motion to Compel and in response to IBM's Memorandum in
Opposition to SCO's Renewed Motion Compel ("IBM Opp. Mem.").
PRELIMINARY STATEMENT
IBM's opposition to SCO's renewed motion to compel confirms
that IBM has refused on comply with the Court's March 3 discovery
order. According to IBM's response:
- IBM does not dispute that the Court's March 3 Order
required IBM to produce the identities of the contributors to AIX,
Dynix, and Linux as well their particularized contributions.
-
IBM does not dispute that it has not done so;
-
IBM does not
dispute that the information the Court ordered is in IBM's
possession
and is not otherwise available.
-
IBM does not dispute that it previously directed SCO to obtain
that
information from certain sources
that do not in fact provide that information.
-
IBM does not even attempt to dispute that it had no basis
for asserting that those
sources would supply such information;
-
IBM does not dispute that it nevertheless forced months
of litigation over that
issue; and
-
IBM does not dispute that it certified to this Court
that it had "complied fully" with the Court's order and provided SCO
with "complete, detailed and thorough"information.
2
IBM now offers two excuses for its longstanding non-compliance. First,
IBM claims that in response
to the Court's Order, it was only obliged to provide SCO with "readily
determinable" information - by which IBM means information determinable
with no additional production by IBM. But the Court did not order IBM
to engage in no effort and to make no additional production. The Court
ordered
IBM to provide specific information. IBM now admits that it did not do
so, and
engaged in no effort to do so, even though IBM certified that
it had
"complied fully with the Order" and had done so in a "complete,
detailed and thorough" manner "to the best of IBM's knowledge."
Exh. l. IBM now claims that by "complied fully" it actually meant
"took no effort to comply." To add insult to injury, IBM even tells
the Court that - in retrospect- its certification was "not
misleading" because everyone should have understood that "complied
fully" meant "took no effort to comply."
Second, IBM argues that it is entitled to delay its
compliance even longer because IBM's non-compliance has forced SCO to
offer to do the work that IBM refuses to do. For SCO to take on that
burden, it
would need access to search within a centralized IBM storage facility
(CMVC)
that is the subject of a separate (and pending) discovery motion.
Seizing on
SCO's offer to do the work IBM was ordered to but will not do, IBM
tries to
create the impression that the present motion to compel depends on the
adjudication of this separate motion.
IBM's second excuse for its long refusal to comply with the Court's
order overlooks a basic fact:
SCO is not obligated to offer to satisfy IBM's Court-imposed duties for
it.
SCO has been forced to this extreme only because - as IBM no longer
disputes -
IBM refuses to do any work to comply with the Court's Order, and SCO
will
be irretrievably prejudiced if the matter continues to drag out. But
the
Court has already ordered IBM to do this work and produce this
3
information, which IBM does not dispute is within its sole control.
SCO is certainly
content to let the issue of the CMVC be decided entirely on the basis
of the grounds set forth in separate motions, so long as IBM will
finally comply with the simple directive this Court set forth on March
3, 2004
and finally provide the information needed to allow SCO to take
programmer
depositions. IBM cannot both refuse to do the work required to comply
with the Court's prior Order, refuse to allow SCO to do the work, and
then seize on SCO's offer to do the work - which IBM's non-compliance
forced -- as a pretext for still further delay.
Now, almost a year-and-a-half into a case about software
development,
IBM's refusal to comply with this Court's order has effectively blocked
SCO from taking even a single deposition of the programmers who
performed that software development. IBM has attempted to exploit
its discovery stonewalling in several ways, one of which became even
more severe in the past several weeks. While
blocking even rudimentary discovery that SCO sought over a year ago and
this Court
ordered to be produced in March, IBM has filed
several fact-intensive dispositive motions that seek to accelerate
adjudication of key issues in this case - seven months ahead of the
fact-discovery
cut-off that Judge Kimball recently entered over IBM's objections. One
of IBM's
recently-filed motions asks the Court to dismiss
SCO's core contract claims - based on sworn declarations from witnesses
who gave prior deposition testimony (inconsistent with the declarations
they have signed for IBM) about how the license agreements at issue
were intended to address the risks posed to
the licenser's proprietary material by the licensee's programming
process. Obviously, SCO is entitled to take IBM and Sequent programmers'
depositions on these very issues in order to develop evidence that may
be used to confront IBM's
declarants. By refusing to comply with this Court's order, IBM
blocks those depositions from happening -
4
while filing dispositive
motions asking for the facts to be adjudicated
before they can be discovered.
The rest of IBM's response
is equally meritless. Although IBM continues to claim (without any
explanation
or substantiation) that it has fully complied with its discovery
obligations,
IBM still has apparently failed to produce Court-ordered "materials and
documents from executives including inter alia,
Sam Palmisano and
Irving
Wladawsky-Berger... [or] any reports, materials or documents from IBM's
'ambitious Linux Strategy."' Order of 3/3/04, ¶ 4 ("3/3/04
Order").
IBM has produced nothing from the files of its "Linux Czar," Mr.
Wladawsky-Berger; next to nothing, including not a single
substantive
e-mail, from the files of Mr. Palmisano, the man who IBM has publicly
credited
for its "ambitious Linux strategy"; and, aside from the limited
materials from Mr. Palmisano, nothing from its Board of Directors
including no
Board minutes or packages. IBM thus still asks the Court to believe (1)
that a
corporation of IBM's size and sophistication produced almost no
executive-level
documents concerning its "ambitious Linux strategy"; (2) that IBM's
senior executives, including those who oversaw the project, never sent
an
e-mail concerning its Linux business; and (3) that its Board of
Directors never
considered the Linux project, into which IBM has invested billions of
dollars. 1
Finally, IBM
attempts to
interpose one last procedural obstacle to its compliance with SCO's
discovery
requests and the Court's March Order. IBM claims that SCO's motion
should be
denied because SCO failed to confer with IBM over issues in dispute.
Contrary
to IBM's unsubstantiated assertions, SCO has repeatedly attempted to
resolve
the outstanding discovery
5
issues with IBM
before seeking (now
multiple) court intervention(s). Despite numerous telephone
conferences,
letters, e-mails, a prior motion to compel the same material, a court
hearing
on that motion, the Court's March 3 Order, and substantial further
correspondence seeking IBM's compliance with that order, IBM still
refuses to
produce the required discovery. IBM's astounding suggestion that the
parties
could have resolved this dispute through further discussions, IBM's
Memorandum
in Opposition to SCO's Renewed Motion to Compel at 5, is belied by the
very
intransigence reflected in IBM's opposition brief over even the most
rudimentary Court-ordered discovery. IBM's repeated delays and refusals
to
provide this basic discovery forced SCO to renew its discovery motion,
particularly given IBM's attempts to exploit its discovery strategy by
attempting to run out the fact-discovery clock while it now files three
fact-intensive motions for summary judgments.
ARGUMENT
I. IBM STILL HAS FAILED TO COMPLY WITH ITS OBLIGATION TO ANSWER
SCO'S
INTERROGATORY 5, DESPITE THIS COURT'S CLEAR
ORDER REQUIRING IBM TO DO SO
In its
opposition
to SCO's
Renewed Motion to Compel, IBM does not dispute that it was ordered over
five months ago to supplement its response to SCO's Interrogatory
Number 5,
that it could do so, and that it has not done so. Instead, IBM attempts
to
shift the focus from its failure to comply with the Court's March 3,
2004 Order
by (1) distorting the discovery record, including the Court's Order;
(2)
mischaracterizing SCO's Renewed Motion to Compel; and (3) attempting to
reargue
the relevance objections that it previously raised, and this Court
necessarily
rejected, in ordering IBM to produce the required discovery in response
to
SCO's
6
initial motion to compel, IBM's continued efforts to avoid
producing the basic, Court-ordered discovery that SCO first requested
over a year ago are as inexcusable as they are meritless.
A. IBM's Opposition to SCO's Renewed Motion to Compel
Depends on Distortions of Both the Discovery Record and SCO's Renewed
Motion.
SCO's Interrogatory 5, which was served on June 24, 2003, sought 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." (emphasis added.) Interrogatory 5 thus
requested information distinct from Interrogatory 4, which sought the
identity of "all persons who have or had access to UNIX source
code, AIX source code and Dynix source code." (emphasis added.) In
response to Interrogatory 5, IBM merely identified the same
approximately 7,200 individuals it identified as responsive to
Interrogatory 4, and failed to provide all information concerning the
contributions of any such persons to AIX, Dynix, or Linux.
SCO thus explained in its Motion to Compel, filed on November 4,
2003,
that IBM's responses were deficient because as to Interrogatories 4 and
5, "the
lists are, by definition, not coextensive," and IBM had provided "no
other information than the names
themselves." SCO's Memorandum in Support of its Motion to Compel at 13
("SCO Compel
Mem."). Indeed, SCO specifically pointed out in its Motion that, as a
result of this
critical deficiency, IBM's answer was "not responsive to the most
important part of the interrogatory,
and as such they are nearly useless as a starting point for further
discovery." Id. (emphasis
added). Following argument on SCO's motion, and over IBM's objection,
this Court ordered IBM to
"provide further responses to," among other interrogatories, SCO's
Interrogatory 5. 3/3/04 Order
at 5, ¶ 5.
7
In response to the Court's Order, IBM has merely (1) referred SCO to
its original list of 7,200 individuals; (2) limited, on its own
initiative and without any basis, the scope of Interrogatory 5 to
contributions that were "readily determinable"; and (3) stated that
such contributions could be discerned "in the cases of AIX and Dynix
from the products themselves." IBM's 2d Supp. Resp. and Chi. to SCO's
First Set of Interrogatories at 5-G.
SCO showed in its Opening Memorandum that in each of those respects,
IBM failed to comply with both the letter and the spirit of the Court's
March Order. See Memorandum in Support of SCO's Renewed Motion
to
Compel ("SCO Renewed Compel Merit.") at 4-8. In its Opposition
Memorandum, IBM attempts to justify its non-compliance by distorting
the discovery record on this issue:
-
IBM states that "SCO has moved to compel just once,
seeking the production of additional source code from IBM and contact
information for more than
7,200 individuals," IBM Opp. Mem. at 2, and claims that "SCO's
principal
complaint regarding IBM's initial responses" was that IBM failed "to
provide addresses for
the individuals identified in response to Interrogatory Nos. 4 and 5." Id.
at 8. But
SCO has always, and unambiguously, sought the contribution
information in Interrogatory 5. See, e.g., SCO Compel Mem. at
13; Hearing Transcript of
2/G/04 at 24-25, 41 ("2/G/04
Tr.").
-
IBM further contends that the Court directed IBM to
produce only "certain specified releases of AIX and Dynix and contact
information for a limited number
of individuals." IBM Opp. at 2-3. But the Court clearly ordered IBM "to
provide further
responses to" Interrogatory 5, which unambiguously seeks more than just
"contact
information." Moreover, the Court entered its Order in response to
SCO's motion to
compel, which had
8
specifically sought to compel the contribution
information requested by SCO in Interrogatory 5 (and ignored by IBM in
its response thereto).
IBM similarly miscasts SCO's request for access to IBM's CMVC
system. SCO Renewed Compel Mem. at 5-8. In its opening memorandum, SCO
made clear
that its request for the CMVC system was intended to permit SCO to
obtain the Court-ordered
discovery (in response to IBM's interrogatories) that IBM has
demonstrated its
unwillingness to supply: "Since IBM now has twice not complied with its
discovery obligations,
SCO asks the Court to order IBM to give SCO full access to the CMVC
system so SCO finally can
derive the requested information." SCO Renewed Compel Mem. at 6; see
also id. at 8. SCO in
no way "insinuates" that IBM violated the Court's Order merely by
failing to produce the
CMVC files or to give SCO access to those files. IBM Opp. Mem. at 7.
Nor would it be "illogical,"
IBM Opp. Mem. at 10, for IBM now to provide such files merely because
SCO is seeking some of
the same files (for separate and compelling reasons, pursuant to IBM's document
requests)
in the ongoing process before the Magistrate Judge. SCO would be
content to leave the issue of
the CMVC files for that process - but IBM cannot then also continue to
refuse to respond to
Interrogatory 5 or to comply with the Court's express directive.
By distorting SCO's request for the production of the CMVC system,
IBM
seeks to exploit the separate proceeding before this Court (in
connection with
the parties' document requests) as a basis for further delaying
SCO's access to the
Court-ordered "contribution" information requested in SCO's
Interrogatory 5. The CMVC files are
therefore beside the point: If IBM would comply with the Court's
directive, then SCO would not need
the requested access. But IBM makes no representation that it will
produce such information;
to the contrary, it
9
rehashes the relevance arguments that this Court
already considered and necessarily rejected in entering its March 3
Order. Again, SCO has sought access to the CMVC
files in this context only because IBM has now made absolutely clear
its refusal to do the
work necessary to identify the contribution information, so that SCO
has been forced to offer to
do IBM's discovery work for it.
Of course, SCO could instead have simply moved for contempt against
IBM
for its refusal to comply with the Court's Order, for doing so on the
grounds
that it should not have to do any work to comply, for telling the Court
in a sworn certification
at the same time that it has made all good faith efforts to comply with
the Court Order, and for
telling SCO at the same time that SCO could derive the requested
information from sources that IBM
now admits would not in fact supply that information. Presumably, IBM
would not object to such
a motion on the ground that it was purportedly redundant to the
separate process before the
Magistrate Judge.
Accordingly, if IBM is determined to argue that the process before
this
Court somehow logically precedes the relief SCO proposed in its Opening
Memorandum, SCO asks
the Court to disregard that proposed relief - that is, SCO's offer of
assistance - and to focus
solely on the fact of IBM's admitted (and inexcusable) failure to
comply with the Court's Order.
B.
There Is No Merit to IBM's Sole "Substantive
Basis" for Failing to Respond to Interrogatory 5 and for Failing to
Comply with the Court's Prior
Order.
IBM does not dispute any of the relevant bases on which SCO is
entitled
to the information sought in Interrogatory 5, including in the
readily-accessible format in which IBM has such information. Nor does
IBM dispute the following:
10
-
that neither Interrogatory 5 nor the Court's Order requiring IBM
to supplement its response to Interrogatory 5 limited the scope of the
response to those
contributions that were "readily determinable", id. at 5;
-
that neither AIX nor Dynix, contrary to IBM's
previous representations, contains information identifying the
contributions of the thousands (or even
hundreds) of the persons IBM has identified, id, at 5-8; or
-
that IBM is capable of producing the requested
information in a readily-accessible format, and it would not be unduly
burdensome for IBM to produce that
material, even if it took (as IBM once claimed) "weeks", id. at
5, 7-8.
Apart from labeling as "not misleading" its claim that AIX and Dynix
supposedly contain the contribution information, IBM simply asserts in
a footnote -
without any affidavit support or even citation -that "Identifying the
contributions of more than 7,200
individuals to AIX and Dynix, which each consist of millions of lines
of code, cannot be
performed with any precision, and is best undertaken in the first
instance by reviewing the source
code for AIX and Dynix for authorship information." IBM Opp. Mem. at 9
n.10. In the first
instance, that unsubstantiated statement provides no basis for opposing
SCO's Renewed Motion. Further,
IBM does not even attempt to explain why to date it has not identified
contributions
(whether general or "precise") that any individual has made to
AIX and Dynix. In light of the actual
discovery record and given IBM's concession on the above points, SCO is
entitled to all of the
"contribution" material sought in its Renewed Motion to Compel.
IBM also now argues that the requested "contribution" information
is
irrelevant because "SCO's case against IBM concerns code that IBM is
alleged to have improperly contributed to
11
Linux, as opposed to code
that IBM developed
for AIX and Dynix and did not contribute to Linux" so that, IBM now
argues, the information is "wholly irrelevant
to this case (under any theory)." IBM Opp. Mem. at 8-9. IBM not only
had the opportunity to
raise such relevancy objections during the February 2004 hearing
preceding the March 2004
Order, but in fact did raise those objections. During that
hearing, counsel for the parties
expressly addressed both (i) the issue of IBM's responses to SCO's
request for "contribution"
information (see, e.g., 2/6/04 Tr. at 24, 25, 27, 28, 41), and
(ii) the relevance of the information
and documents SCO sought regarding AIX and Dynix source code (see,
e.g., id. at 28-31, 38-41).
Accordingly, IBM's current "relevancy" objections have been adjudicated
(and, in the case
of any proposed modification to the relevant portion of the March 2003
Order, waived).2
In addition, even if the Court were to determine that IBM's
relevancy
objection has not already been rejected or waived, that argument lacks
any merit. With
respect to SCO's primary breach-of-contract claims alone, for example,
the license agreements
provide that any derivative work based on UNIX System V source code is
to be treated as a part of
UNIX System V under the agreement, such that the licensee may breach
the agreement by
distributing any source code from any such work (that is, from UNIX
System V as defined). In
addition to literal source code, moreover, the license agreements
protect the "methods and
concepts" used in UNIX System V. SCO is entitled to know the identities
of those individuals
who contributed source code to AIX and Dynix to determine, for example,
whether and how they
relied on UNIX
12
System V source code to develop the contributed code.
The plain language of the agreements belies IBM's claim that this case
does not concern AIX and Dynix code. 3 SCO's request for the identities and contributions of the
contributors to AIX and Dynix has been pending for well over a year.
Having failed to produce that information either in response to SCO's
Interrogatory 5 or to the Court's specific directive, and given the
nature of its continued opposition to the production of the requested
information in its Opposition Memorandum, IBM should (i) respond to
Interrogatory 5, and (ii) produce to SCO the readily accessible format
from which SCO itself can derive the information, fully and accurately.
II.
IBM STILL HAS FAILED TO EXPLAIN ITS PLAINLY
INADEQUATE PRODUCTION OF DOCUMENTS FROM ITS SENIOR MANAGEMENT
At the February 6 argument on SCO's motion to compel, SCO's counsel
emphasized the "critical deficiency" that IBM had not produced
discovery "from any of
the highest levels of the company," specifically including "documents
and materials from Sam
Palmisano, from Irving Wladawsky-Berger, the key executives that are
intimately involved in
the Linux project." 2/6/04 Tr. 22.4 In its March 3, 2004
Order, the Court granted SCO's motion to
compel and ordered IBM to produce "documents and materials generated
by, and in the
possession of employees that
13
have been and that are currently involved
in the Linux project." 3/3/04
Order at 4-5, ¶ 3. The Court's Order specifically provided that
"IBM is to include materials
and documents from executives including inter alia, Sam Palmisano and
Irving
Wladawsky-Berger. Such materials and documents are to include any
reports, materials or documents from
IBM's ambitious Linux Strategy." Id.
As SCO explained in support of its Renewed Motion to Compel, despite
the Court's March 3 Order, IBM still has apparently failed to produce
the required
discovery. For example:
-
IBM has failed to produce any documents
from the
files of Irving Wladawsky-Berger, the IBM executive who, according to The
New York Times, is IBM's "Linux
czar" and sent e-mails to top technology executives regarding the rise
of Linux.
-
Even though Sam Palmisano is the former Senior Vice
President in charge of IBM's server business, is now IBM's CEO and
Chairman of the Board, and is the
person who IBM has publicly proclaimed as the leader in its strategy to
shift
toward Linux as its operating system of choice. IBM has produced only
limited documents
from Mr. Palmisano's files, and has produced only a single
non-substantive
e-mail (in which Mr. Palmisano requested that someone print a document).
-
Other than the inexplicably limited materials from
Mr. Palmisano, IBM has failed to produce any documents from its
Board of Directors (i.e., IBM has not
produced any Board minutes, Board packages, or other such
materials required by the
Court's March 3 Order).
In response, IBM does not dispute that the Court ordered it to produce
the information SCO seeks. Nor does IBM make any attempt to explain
what appears to be
an obvious
14
deficiency in its document collection or production effort.
Rather, IBM
relies (again) on nothing more than its unsubstantiated and conclusory
claims that "IBM has
collected and produced the non-privileged, responsive documents that
were found in the files of
its senior executives and Board of Directors" and has not "improperly
`filtered' and excluded
responsive documents." IBM Opp. Mem. at 10. IBM would thus have this
Court believe: (1) that a
corporation of IBM's
size and sophistication produced almost no executive-level documents
concerning its "ambitious Linux strategy"; (2) that IBM's senior
executives, including those who
oversaw the project, never sent an e-mail concerning its Linux
business; and (3) that its
Board of Directors never considered the Linux project, in which IBM has
invested billions of
dollars. This explanation would be implausible from any Linux-related
business, much less from
one of the largest and most sophisticated technology companies in the
world.
Given the plainly inadequate discovery that IBM has produced, and
its
plainly inadequate attempt to address this deficiency (despite having
had over six months
to do so), SCO has asked the Court (1) to order IBM to produce the
entire files of Palmisano,
Wladawsky-Berger, IBM's Board, including Board minutes, Board packages,
and other relevant
Board materials, and all other documents relevant to SCO's requests
that this Court previously
ordered to be produced; or, at a minimum, (2) to require IBM to provide
certifications from
Palmisano, Wladawsky-Berger, and the members of IBM's Board stating
that they have no
relevant e-mails, Board minutes, Board packages, or other Board
materials that address issues
relevant to this case. As SCO explained in support of its renewed
motion to compel, these
measures have been necessitated by IBM's continued failure to comply
with its discovery
obligations and will ensure that no further discovery time is wasted
while IBM incredibly claims
that it has not complied.
15
III.
ONLY AFTER REQUIRING SCO TO FILE ITS RENEWED
MOTION TO COMPEL HAS IBM FINALLY PRODUCED THE WITNESS CONTACT
INFORMATION THAT THIS COURT ORDERED, MOOTING THE NEED FOR FURTHER
NEEDLESS LITIGATION AND DELAY OVER THIS ISSUE
After the Court's March 3 Order required "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," IBM submitted a declaration
to the Court in which it proclaimed its full compliance with the
Court's Order and
represented that it would "provide contact information for additional
names as SCO requests such
information, up to a total of 1,000 names." Exh. I .
Nevertheless, after no fewer than eight letters
between counsel over the course of several months, IBM still refused to
provide SCO with the
contact attenuation for the 134 individuals for whom SCO had requested
such information on March 26
and June 4.5 IBM's intransigence required SCO to file a
renewed motion to compel such
discovery.
Now that IBM has forced SCO to file a renewed motion to compel that
discovery, IBM has decided - purportedly "in the interest of moving
this case forward
and obviating a silly dispute," IBM Opp. Mem. at 14 - to supplement its
discovery responses
by providing the information that SCO has sought for over a year. Of
course, IBM could
have obviated the need for this "silly dispute," IBM Opp. Mem. at 14 -
which became all the
more inexplicable after the Court ordered IBM to produce the very
information that it continued to
withhold - without forcing SCO to file a renewed motion to compel. In
any event, IBM's
decision to finally
16
produce the Court-ordered information moots the
needs for further unnecessary litigation and discovery delay over this
issue.6
IV. IBM'S CLAIM THAT SCO FAILED TO CONFER WITH IT
BEFORE RENEWING ITS MOTION TO COMPEL IS BASELESS, AND ITS SUGGESTION
THAT THE PARTIES COULD HAVE EASILY RESOLVED THESE ISSUES WITHOUT THE
COURT'S INVOLVEMENT IS ABSURD
IBM attempts to continue to avoid complying with SCO's discovery
requests and this Court's March 3 Order by incorrectly claiming that
SCO "did not confer
with IBM before filing its motion." IBM Opp. Mem. at 4. Based on its
demonstrably incorrect
claim that "SCO failed even to discuss [these issues] with IBM," IBM's
Opp. Mem. at 5, IBM
asserts that "SCO's motion should therefore be denied for this reason
alone." Id.
There is no merit to this claim. To the contrary, SCO has repeatedly
sought to obtain IBM's compliance with
its basic discovery obligations at issue in SCO's renewed motion to
compel since before SCO
filed its original
motion to compel such discovery in November 2003. Despite such efforts,
IBM has stalled and blocked SCO's efforts at every turn.
As an initial matter, the discovery that SCO seeks through its
renewed
motion to compel is the same discovery that it sought in the original
motion to compel
that it filed in November and at the February 2004 hearing on that
motion. SCO made numerous
attempts to obtain such discovery before filing its original motion -
including through many
telephone conferences and e-mail and letter exchanges - facts which SCO
certified when it filed
its motion. Exh. 3. Thus,
17
SCO seeks only materials for which it has
already certified its extensive efforts to negotiate with IBM.
Furthermore, since the Court's March 3 Order, SCO has made repeated
attempts to obtain IBM's compliance. Despite the Court's Order- which
should have put all
of these issues to rest IBM has forced SCO into a protracted
letter-writing campaign just to
pursue Court-ordered discovery. In letters dated March 10, March 26,
April 20, May 26, June
4, and June 15, SCO asked repeatedly for these materials.7
And, in letters dated
March 4, April 19, April 26, and June 9, IBM persisted in attempting to
justify its continued refusal to
comply with the Court's Order.8 When it became apparent that IBM intended only to further forestall
SCO's discovery attempts - and then to attempt to exploit its
stonewalling by filing a
precipitous summary judgment motion - SCO saw no other choice but to
again seek the Court's intervention. Indeed, only three weeks after the
Court's March 3 Order, IBM brought its Tenth
Counterclaim, injecting numerous new copyright issues into this case.
While SCO's discovery
requests at issue here
18
were originally brought to support its contract
claims, those same materials were now needed to defend against IBM's
Tenth Counterclaim. See SCO's Reply Memo.
Regarding Discovery filed July 12, 2004. Barely six weeks later, IBM
moved for summary judgment
on that Tenth Counterclaim. Thus, SCO's need for that basic discovery,
requested more
than a year ago and already subject to this Court's order, became
urgent. Despite its now
critical need for this discovery, SCO still repeatedly attempted to
resolve its differences
with IBM without the Court's intervention, unfortunately to no avail.
SCO's need for the outstanding
discovery has only become more critical since SCO filed its renewed
motion to compel; in
the last two weeks alone, IBM has filed two additional fact-intensive
summary judgment motions,
which seek further to exploit its refusal to provide SCO with the basic
outstanding discovery
at issue here.
Furthermore, IBM's technical reliance on the absence of a Rule
37(a)(2)(A) certification accompanying SCO's renewed motion is also
misplaced. SCO has already
complied with the certification requirement when it filed its original
motion to compel
discovery of precisely the same materials that are still at issue here.
Pursuant to that motion,
the Court intervened and ordered IBM to produce the discovery at issue,
and IBM refused to
comply. "The prior issuance of a court order obviates the need to meet
and confer as required under
Rule 37(a)." See Royal Maccabees Life Ins. Co. v. Malachinki,
No. 96 C 6135, 2001 WL
290308, *9 (N.D. III. Mar. 20, 2001) (Exh. l4); see also
Moore's Fed. Pract. § 37.40, at
37-59 (explaining that Rule 37(b) does not carry a "meet and confer"
requirement because Rule 37(b) is
available "only if a court has first entered an order compelling the
discovery in question" - a
requirement that "obviates the need for the meet and confer").
19
Moreover, courts have recognized that a failure to include a Rule
37(a)(2)(A) certification, even when required on a party's original
motion
to compel, does not constitute a fatal flaw. Instead, a court is to
exercise "its discretion to consider
the instant motion despite the absence of a certification" from the
moving party in light of the
"track record of the parties" and the "nature and substance of the
instant motion." United States v.
Rempel, No. A00-0069-CV (HRH), 2001 WL 1572190, * I (D. Alaska July
5, 2001) (Exh. 15). A
technical failure to certify, and even a substantive failure to meet
and confer, does not "warrant
rejecting" a motion if the
goal of those requirements - "to promote efficiency in litigation" -
would "not be advanced by further delay in resolving these issues on
the merits." Time v.
Simpson, No. 02CIV4917MBMJCF, 2002 WL 31844914, *2 (S.D.N.Y. Dec.
18, 2002) (Exh.
IG). This is precisely the case here, where permitting IBM to further
delay its
discovery obligation (while it seeks to exploit its stonewalling
through its summary judgment motions)
would turn Rule 37(a)(2)-and the local rule patterned after it - on its
head.
Finally, IBM's apparent intransigence in its opposition to SCO's
renewed motion demonstrates the futility of further discussions between
the parties
and belies IBM's remarkable claim that "the matters raised in SCO's
motion could easily have been
resolved without imposing on the Court." IBM's Opp. Mem. at 5. Under
these circumstances, case
law is clear that a court can dispose of the Rule 37(a)(2)(A)
requirements - not only the
certification requirement, but even the very need to meet and confer -
if such an effort would seem to
the court to be futile. See Matsushita Electric Corp. of Am. v. 212
Copiers Corp., No.
93 Civ. 3243 (KTD), 1996 WL 87245, *1 (S.D.N.Y. Feb. 29, 1996) (Exh.
17) (declining to apply Rule
37(a)(2) "for what promises to be an act of futility"); Rempel,
2001 WL 1572190 at
* 1 ("any 'meet and confer'
20
effort as to this motion would almost
surely have been futile"); Royal Maccabees, 2001 WL 290308 at *9 ("any
effort to secure defendant's voluntary compliance in
the case at bar would clearly be futile").9 Indeed, the only
outstanding discovery
issue on which IBM budges in its
opposition - i.e., with respect to the contact information for
the
individuals SCO identified - was specifically addressed to IBM by
letters dated March 26, April 20, June
4, and June 15. Clearly, a motion to compel was required to enforce
IBM's compliance with the
Court's March 3 Order and, unfortunately, the Court's intervention will
be required again to
address the other instances of IBM's continued non-compliance.
CONCLUSION
For all of the above reasons, SCO respectfully
requests that the Court
grant its renewed motion to compel.
DATED this 26th day of August, 2004.
___[signature]___
HATCH JAMES, DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver, Esq. (admitted pro hac vice)
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
Attorneys for The SCO Group, Inc.
21
1 In response to SCO's
Renewed Motion to
Compel, IBM
has finally agreed - purportedly "in the interest of moving this case
forward and obviating a silly dispute," IBM Opp. Mem. at 14 - to
produce
the Court-ordered contact information that SCO has been seeking
from it for
over a year.
2 A contrary outcome would improperly reward IBM for
deliberately
choosing to delay its assertion of those objections until months of
discovery had passed- and until after
IBM had filed a motion for summary judgment that SCO could fully oppose
on the merits only if IBM
had produced the information that SCO had plainly sought and that IBM
had plainly been ordered to
produce.
3 Only having argued - inaccurately- that SCO's case
concerns only contributions to Linux does IBM rely on that portion of
the Court's March 2004 Order stating that "SCO should use its best
efforts to obtain relevant discovery from the Linux contributions that
are known to the public." IBM Opp. Mem. at 9. That directive, with
which SCO has complied, has nothing to do with IBM's failure to respond
to Interrogatory 5 or that portion of the March 2004 Order directing it
to do so.
4 IBM incorrectly claims that SCO did not assert
IBM's
failure to produce such responsive documents until the February 6
hearing and that SCO had not previously conferred with IBM about this
issue. IBM Opp. Mem. at 11 & n.12. To the contrary, SCO's counsel
spoke with Christine Arena in late October 2003, during which counsel
for SCO raised the issue of IBM's improper failure to produce documents
from any of its senior executives. 2/6/04 Tr. at 26. Indeed, in its
Reply in Support of Its Motion to Compel, SCO detailed IBM's refusal
even to acknowledge that its senior executives in charge of the Linux
project had any knowledge of any of the issues in this lawsuit. SCO's
Reply Memorandum in Support of its Initial Motion to Compel at 6.
5 Without identifying a single name, IBM claims that when
SCO sent its
first request for contact information on March 26, 2004, the list
contained names of persons IBM
had not identified as witnesses or had not identified as the source of
documents. IBM Opp. Mem. at 13
n.13. As a preliminary matter, despite the long string of letters
addressing the issue of IBM's
contact information production, IBM never raised this issue until its
opposition to SCO's Renewed Motion to
Compel. Moreover, SCO is not aware that it asked for any information
outside these two categories; without
IBM identifying any such persons by name. SCO is unable to further
respond to this conclusory
allegation. In any event, based upon IBM's recent decision to finally
comply with this Court's March Order, this
issue appears to be moot.
6 In finally complying with the Court's March Order, IBM
asks, for the first time, that SCO be ordered to provide additional
contact information "in the possession of SCO or SCO's counsel for each
of the witnesses identified in SCO's responses to IBM's
interrogatories, including third-party witnesses, and each of the
persons from whom SCO has produced documents but did not identify in
its interrogatory responses." SCO has offered to compile, and is
working on compiling such information, for IBM. In the meantime, SCO
has asked IBM to identify any individuals for whom it needs contact
information quickly, so that SCO can address those individuals first. See
Exh. 2.
7 See Ex. 4, 3/10/04 letter ("Rather, IBM must
search the files of its top executives and others for all responsive
documents that IBM agreed to produce or was ordered to produce."); Ex.
5, 3/2G/04 letter (requesting contact information for some of the 1000
witnesses that the Court ordered IBM to produce); Ex. G, 4/20/04 letter
("You, however, attempt to justify not providing contact information
for many of the witnesses I requested because they were not listed on
attachments B through E. This is not a valid justification for refusing
to provide such information ... Please let me know if you are willing
to provide this information or whether we need to pursue this matter
further with the Court."); Ex. 7, 5/2G/04 letter (again seeking
documents originally requested in the March 10 letter); Ex. 8, 6/4/04
letter ("Alter our repeated objections about IBM's failure to properly
identify witnesses, I would have thought that your April 19 response
would have remedied the situation. Apparently, you have chosen not to
do so in any of your filings."); and Ex. 9, G/15/04 letter ("In
response to your letter dated June 11 in which you refuse to provide
contact information for witnesses identified by IBM in its April 19
disclosure... If IBM refuses to provide contact information that IBM
possesses, then we will have no choice but to bring this matter before
Judge Wells.").
8See Ex. 10, 3/4/04 letter (attempting to limit
the scope of the documents the Court had ordered it to produce); Ex.
11, 4/19/04 letter (refusing to provide contact information for
potential witnesses); Ex. 12, 4/2G/04 letter (claiming that the files
of IBM's "Linux Czar" contained no documents regarding Linux and thus
there was nothing for IBM to produce); and Ex. 13, 6/9/04 letter (again
refusing to supply contact information for potential witnesses).
9 Nor do the cases cited by IBM in its brief support its
suggestion that the failure to file a certification (as opposed to a
substantive failure to confer) warrants dismissal of a motion to
compel. See IBM's Opp. at 5 (citing Haselhorst v. Wal-Mart Stores,
Inc., 163 F.R.D. 10, 11 (D. Kan. 1995) (denying motion because
movant failed to confer adequately); Hoelzel v. First Select Coro.,
214 F.R.D. 634, G35-G3G (D. Colo. 2003) (same)).
CERTIFICATE OF SERVICE
Plaintiff; The SCO Group, hereby certifics that a true and correct
copy
of the foregoing
REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF / COUNTERCLAIM-
DEFENDANT SCO'S RENEWED MOTION TO COMPEL was served on Defendant
International Business Machines Corporation on this 26th day of August,
2004, by U.S. mail, postage prepaid, addressed to:
Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
Copy to:
Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Attorneys for Defendant/Counter-claim Plaintiff IBM Corp.
[signature]
Mark F. James
22
EXHIBITS TO REPLY MEMORANDUM
Table of Contents
Exhibit No.
|
Date
|
Description
|
1
| 4/19/04
|
Declaration of Todd Shaughnessy
|
2
| 8/17/04
| Letter from Mark Heise to Peter Ligh
|
3
| 11/4/03
| SCO's Motion to Compel Discovery and Certificate of Compliance with Rule
32(a)(2)(A)
|
4
| 3/10/04
| Letter from Debra Weiss Goodstone to Christopher Kao and Peter Ligh
|
5
| 3/26/04
| Letter from Mark Heise to Peter Ligh
|
6
| 4/20/04
| Letter from Mark Heise to Peter Ligh
|
7
| 5/26/04
| Letter from Mark Heise to Christopher Kao
|
8
| 6/4/04
| Letter from Mark Heise to Peter Ligh
|
9
| 6/15/04
| Letter from Mark Heise to Peter Ligh
|
10
| 3/4/04
| Letter from Peter Ligh to Mark Heise
|
11
| 4/19/04
| Letter from Peter Ligh to Mark Heise
|
12
| 4/26/04
| Letter from Peter Light to Mark Heise
|
13
| 6/9/04
| Letter from Sean Eskovitz to David R. Marriott
|
AUTHORITIES
14
| Royal Maccabees Life Ins. Co. v. Malachinki,
No. 96 C 6135, 2001 WL 290308 (N.D. 111. Mar. 20, 2001)
|
15
| United States v. Rempel,
No. A00-0069-CV (HRH), 2001 WL 1572190 (D. Alaska July 5,
2001)
|
16
| Time v. Simpson,
No. 02CIV4917MBMJCF, 2002 WL 31844914 (S.D.N.Y. Dec. 18, 2002)
|
17
| Matsushita Electric Corp. of Am. V. 212 Copiers Corp.,
No. 93 Civ. 3243 (KTD), 1996 WL 87245, *1 (S.D.N.Y. Feb. 29, 1996)
|
23
Exhibits to this document have not been scanned.
Please see the case file.
24
|