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The NonLegal Mind Not at Work
Wednesday, February 23 2005 @ 02:25 PM EST

I think I will never run out of things to write about, as long as Maureen O'Gara writes about SCO v. IBM. She seems to have great difficulty getting the facts right, and since part of Groklaw's mission is to educate, let me take one more stab at it.

In a 2-paragraph article I can't really recommend you click on, called "IBM v. SCO: The Legal Mind At Work", she points to an IBM footnote in its Motion for Reconsideration of the January 18, 2005 Order Re SCO's Renewed Motion to Compel, which she characterizes as complaining about having to produce the files for the 3,000 who contributed the most to AIX and says: "Shouldn't somebody remind somebody that IBM wasted a year and a half refusing to produce those files?"

Well, probably not, not unless you're itching to be sued for slander or libel.

What really happened? In a sentence, it's like this: The court never ordered IBM to produce them until the most recent court order in January of 2005, the one IBM is asking them to reconsider. This isn't a question of IBM "refusing to produce those files" for a year and a half! It hasn't even been a *month* and a half, let alone a year and a half, and the discovery isn't even due yet, even if it weren't subject to a motion for reconsideration. IBM hasn't refused to produce the files ever. It still isn't. It's asking the court for relief in one detail.

It's really shocking that LinuxBusinessWeek would print such an inaccurate statement. The only excuse I can think of is that they just don't understand the law or the process. That's not much of an excuse, now that I think of it, so let's just stick with the word shocking. I hope they will print a correction, as any news media should when printing inaccurate information. To be fair, it isn't possible never to make mistakes. I make them too. But we, in the media, need to 'fess up when it happens and let people know, so they don't continue to be influenced by inaccurate information. Readers, in my experience, understand and appreciate the truth.

If they fail to print a retraction, I hope Judge Kimball reads Groklaw. Oh, by the way, LinuxBusinessWeek, the case is SCO v. IBM, not IBM v. SCO, just to keep the record straight, as long as I'm going to the trouble to straighten out all the errors. Maybe it's a good thing the article was only two paragraphs.

First, here is the footnote in question:

7. The magnitude of the task of collecting and producing documents from 3,000 persons becomes clear when contrasted with the document production that has taken place thus far from both IBM and SCO, over the past year and a half of discovery. To date, IBM has produced documents from the files of 174 individuals, while SCO has produced documents from the files of 63 individuals. That is, in a year and a half, SCO and IBM combined have produced responsive documents from the files of 237 persons, less than 10 percent of the 3,000 persons whose documents IBM has been ordered to produce within 60 days.

And here is the portion of their motion on the issue of the 3,000:

IBM does not seek reconsideration of the portion of the Order requiring it to identify the individuals who made the most contributions and changes to AIX and Dynix and to identify the changes they made to AIX and Dynix, insofar as this information is available in CMVC and RCS. And IBM does not seek reconsideration of the Order insofar as it requires IBM to undertake a reasonable search (i.e. the files of 40-50 individuals) for white papers and design documents not found in CMVC or RCS. By this application, IBM asks the Court to reconsider the portion of its Order requiring IBM to search for and produce documents from the files of 3,000 individual developers. . . .

Thus, IBM's planned production will provide SCO large quantities of the type of information the Court has ordered IBM to search for in the files of 3,000 developers.(6)

IBM's planned production will not include every scrap of paper that might be found in the files of the 3,000 developers who made the most contributions and changes to the development of AIX and Dynix. However, rather than require IBM to search for and produce documents from 3,000 developers in an effort to capture what might not be included in CMVC and RCS and a reasonable search for design documents and white papers not in CMVC, the Court should defer the production of additional information relating to the development of AIX and Dynix until after SCO has had an opportunity to review the extensive data that IBM will be providing. After reviewing that data, SCO should be able to identify with specificity a reasonable number of developers, if any, from whose files it would like additional production and IBM can then provide the information SCO wants without having to search for, collect and produce redundant and cumulative discovery or discovery in which SCO has no interest. Approaching developer-specific discovery in this way is entirely consistent with the Court's decision early in this case to stage the discovery process.

Moreover, as a practical matter, searching for, reviewing (for responsiveness, third-party confidential information, and privilege) and producing documents from the files of 3,000 people would be a Herculean task. It would be impossible to complete in 6 months, let alone in 60 days, as presently required by the Order.(7) Assuming (unrealistically) IBM were able to search for and through the files of 20 people a day, 5 days a week, it would require IBM more than 6 months just to search for responsive documents, independent of how long it would take IBM to review the documents for responsiveness, third-party confidential information (and to provide notice to third parties where required), and privilege and prepare them for production. A search for documents from the files of 3,000 developers would yield millions of pages of paper, much of it duplicative or irrelevant.

It is well settled that discovery should not be allowed, even if relevant, where it is unreasonably cumulative or duplicative or where its production would impose an undue burden. See Fed. R. Civ. P. 26(b)(2)(i) (stating that discovery shall be limited by the Court if "the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive"); Fed. R. Civ. P. 26(b)(2)(iii) (stating that discovery shall be limited by the Court if it determines the "burden or expense of the proposed discovery outweights its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues").(8)

In sum, to require IBM to produce documents from 3,000 developers in 60 days, on top of the discovery IBM is already providing, is to compel the impossible, at enormous expense, with no meaningful advantage to SCO. There are far better ways for SCO to obtain the information it seeks, such as by permitting targeted discovery of individual developers to the extent it makes sense after SCO has had an opportunity to review the information IBM is going to provide.

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court reconsider and vacate the portion of the Order requiring the production of documents from 3,000 developers in 60 days, without prejudice to SCO seeking reasonably tailored discovery from the files of individual developers after SCO has reviewed the information IBM is going to produce.

So that is their request. Now, what about the accusation that they have wasted a year and a half "refusing to produce those files"? As you can see, that's simply not so. IBM wasn't told to produce that discovery until January 18, 2005, and the discovery isn't even due yet, even without their motion for reconsideration. So, it's a false statement, that tends to cause people to think less of IBM, that is demonstrably untrue. What is that a definition of?

To break it down further into little bits, so even a child can get it, here, in chronological order, are all the discovery orders in SCO v. IBM, taken from our IBM Timeline page:

  • # 88 -- Dec. 3. court hearing transcript: This was the first hearing on discovery. SCO asked for all versions of AIX and Dynix, but didn't ask for employee files for 3,000 or any other number of people. Its request for all versions of AIX and Dynix was not granted, and IBM was eventually, in the later written order, #109, below, told to produce what it offered at this hearing to produce, 232 released versions. It was not *IBM* that was not in compliance with the court's order; it was *SCO*, and all discovery of IBM was halted from the date of this hearing until SCO brought itself into compliance. Here's the Court docket info:

    Minute entry: Counsel for both parties present. The Court hears arguments re: Motion to Compel. Court GRANTS motion. Plaintiff is to provide responses/affidavits within 30 days of the entry of this order. All other discovery is to be postponed until the order has been complied with. An order reflecting this ruling is to be prepared by counsel for defendant. A motion hearing is scheduled for 1/23/04 at 10:00 a.m. Court is adjourned. granting motion to compel discovery. Motion hearing set for 10:00 1/23/04 for motion to Compel Discovery, set for 10:00 1/23/04 for motion strike the 5th, 15th, and 19th affirmative defenses asserted by the SCO Grp in its Answers to IBM' Amended Counterclaims, set for 10:00 1/23/04 for motion to extend time for pla to respond to IBM's third set of interrogatories and third request for production of documents

  • #94 10-Dec-03 Order granting motion to compel discovery. Here's the order granting IBM's Motion to Compel discovery from SCO, not the other way around, from the hearing. IBM wasn't ordered to provide a thing in discovery. It's all about SCO and what it has to provide to IBM. The only thing IBM was told to do was give SCO a list of what it wanted. Here's the info from the docket:

    The SCO Group is hereby ORDERED: 1) To respond fully and in detail to Interrogatory Nos. 1-9 as stated in IBM's First Set of Interrogatories. 2) To respond fully and in detail to Interrogatory Nos 12 and 13 as stated in IBM's Second Set of Interrogatories. 3) IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Production of Documents and SCO is to produce all requested documents. 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 provide 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 thy were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance. SCO is required to provide such answers and documents within thirty days from the date of this order. All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order. The Court will hold a hearing on the foregoing issues January 23, 2004 at 10:00 a.m. Signed by Judge Brooke C. Wells , 12/12/03

  • # 109 - 03-Mar-04 - Order regarding SCO's Motion to Compel Discovery and IBM's Motion to Compel Discovery. This is the order where IBM was told for the first time to turn over 232 versions of AIX and Dynix, which they did. As to information about employees, IBM was told to provide the following:

    "6. SCO seeks the proper indentification of approximately 7,200 potential witness[es] identified by IBM. IBM in its memoranda suggested that the parties might be able to reach some sort of agreement as to the most important prospective trial witnesses and then IBM would provide the full contact information for these individuals. The Court orders 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. Following the production of this information, the Court will consider the need for the proper identification of additional witnesses.

    So IBM was told to provide a list of 1,000 names, with "proper identification", not files on 3,000 employees. Contact info, in the context of figuring out potential witnesses for trial. Here is the Pacer info:

    Ordering both parties to file affidavits re compliance with this order; and additional memoranda addressing the impact of the second amended complaint and IBM's subsequent answer on IBM's Motion to Strike the 5th, 15th, and 19th Affirmative Defenses asserted by SCO in its Answers to IBM's Amended Counterclaims. IBM is to file its initial memoranda with the court withing 60 days of the entry of this order. SCO will then have 15 days to respond. IBM will have 7 days to reply to this response. Following the additional briefing, the Court will contact parties to schedule a hearing regarding IBM's motion to strike SCO's affirmative defenses. (Please see the order for all information, as this is an extensive order) Signed by Judge Brooke C. Wells , 3/3/04 cc:atty

  • #327 -- This is the minutes entry from the October hearing. There isn't a word about employee files of 3,000 or any other number, just files for management and the Board of Directors, which were provided. Here's the Pacer entry:

    19-Oct-04 - Minute entry: Counsel for both parties present. The Court hears arguments and rebuttal from each party as to pla's renewed motion to compel (d.e. #190). The Court orders that privilege logs be prepared and exchanged within 30 days; Dft to provide within 30 days, affidavits from management members Palmisano and Wladawsky-Berger and Board of Directors as to what exists if their files and takes the remainder of the motion under advisement. ; Judge: BCW Court Reporter: Kelly Hicken Court Deputy: alp

  • #328 -- 20-Oct-04 Order - Here is the Order from the October 19 hearing, and as you can see, IBM was not ordered to provide files for 3,000 employees. Read it for yourself. Here's the Pacer description:

    Order, re: SCO's renewed Motion to Compel Discovery. Both parties are to prepare and exchange privilege logs within 30 days from the entry of this order. IBM is to provide affidavits from the Board of Directors re production of all non-privileged documents pertaining to IBM's Linux strategy. The affidavits are to be filed within 30 days from the entry of this order. The court takes the remainder of SCO's motion under advisement. The court sua sponte, hereby seals the transcript to the proceedings held on 10/19/04. Copies of the transcript are to be provided to the parties in the case and the court but the transcript shall remain sealed until further order of the court. signed by Judge Brooke C. Wells , 10/20/04 cc:atty

  • # 377 -- 18-Jan-05 -- Order - This is the first time IBM was ordered to provide the files for the 3,000. Note the date: January 18, 2005. The Order states they were to provide them by March 18, 2005, so IBM is not yet late or delinquent by any measure. They are, additionally, before the court asking for a minor shift in the order, asking that SCO go through all the code to be provided first, and then to identify which of the 3,000 names IBM will provide are the ones SCO realistically thinks it needs files from. It's because it's an onerous task to assemble such a huge amount of data. Bear in mind, we're talking maybe 15-year-old data, from employees many of whom may not even work for IBM any more. Some of them might even be dead. Seriously. Here's the Pacer:

    Order granting in part, denying in part [366-1] motion to compel Discovery, striking amended scheduling [177-1] order discovery due set for 4/22/05, [177-2] relief motion filing deadline set for 5/20/05, [177-3] relief Final Pretrial Conference set for 2:30 10/10/05, [177-4] relief 5-Week Jury trial set for 8:30 11/1/05, [177-5] relief , The discovery ordered by the court is due 3/18/05 , The Court ORDERS both parties to meet and confer re: a new schedule and to submit a proposed amended scheduling order to the court by 3/25/05 signed by Judge Brooke C. Wells , 1/18/05 cc:atty

So there you have it, in black and white. I might add that this is all public information. If Ms. O'Gara doesn't know about Groklaw, ha ha, she can always use the information on Pacer. That might help her to get the facts straight, if that is her goal. So, now that Groklaw has explained how to do fact checking on a legal story, there is no excuse for future inaccurary, I'd opine.


  


The NonLegal Mind Not at Work | 149 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Go Here, Please.
Authored by: Hiro Protagonist on Wednesday, February 23 2005 @ 02:47 PM EST
Corrections Go Here, Please.

---
I Grok... Therefore... I am.

[ Reply to This | # ]

Off Topic Here
Authored by: ankylosaurus on Wednesday, February 23 2005 @ 02:49 PM EST
Use clickable URLs, with HTML formatting:

<a href="http://www.example.com"> http://www.example.com
</a>

Thanks.

---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Court vs. Media demands
Authored by: dkpatrick on Wednesday, February 23 2005 @ 02:58 PM EST
I believe Ms. O'Gara tends to confuse what SHE wants and what has been ordered.
She doesn't say in her article that the courts specifically ordered IBM to
produce this information a year and a half ago but you could read that into it
without much effort.

A more likely scenario is that she's confusing her own feelings that IBM should
have produced the information (voluntarily, mind you!) with what the court has
ordered IBM to do.

This gets back to the media's plaint that "the people have a right to
know" which in some minds trumps the actual law in the matter.

---
"Keep your friends close but your enemies closer!" -- Sun Tzu

[ Reply to This | # ]

The MoO'G Mind Not at Work
Authored by: icebarron on Wednesday, February 23 2005 @ 02:58 PM EST
Sensationalism, not facts are what drives their articles, no truth or even fact
checking. Alas, I'm sorry to say that correcting the sorry details of MoO'Gs
tale won't change her empty mind at all...

Peace to one and all

Dan

[ Reply to This | # ]

Bias news outlets
Authored by: Nick_UK on Wednesday, February 23 2005 @ 03:04 PM EST
Microsoft use a similar principle to 'educate' people by getting FUD published. Much like 'first appearances' tell in job interviews etc., usually the ignorant reader only seems to remember the first thing he reads, or hits his/her eye.

I once complained to the Editor of the BBC news site about an incorrect article they published. He replied, and refuted my claim that "they did not say 'SCO wins Linux licences' ". I leave the link as 'first appearances' evidence.

The BBC News website report.

Nick

[ Reply to This | # ]

  • Bias news outlets - Authored by: Anonymous on Wednesday, February 23 2005 @ 03:28 PM EST
  • Bias news outlets - Authored by: Anonymous on Wednesday, February 23 2005 @ 06:00 PM EST
  • Bias news outlets - Authored by: Anonymous on Thursday, February 24 2005 @ 12:23 PM EST
  • He may be correct - Authored by: Anonymous on Thursday, February 24 2005 @ 03:54 PM EST
Not shocked
Authored by: ak on Wednesday, February 23 2005 @ 03:35 PM EST
It's really shocking that LinuxBusinessWeek would print such an inaccurate statement. ... I hope they will print a correction, as any news media should when printing inaccurate information.

I am neither shocked nor do I expect such a correction.

I do not remember that LinuxBusinessWeek ever corrected any of the inaccurate statements contained in almost all of Maureen O'Gara's articles about SCO. It is obvious that neither LinuxBusinessWeek nor Maureen O'Gara are really interested in truth.

[ Reply to This | # ]

The NonLegal Mind Not at Work
Authored by: CPD on Wednesday, February 23 2005 @ 04:10 PM EST
"So, it's a false statement, that tends to cause people to think less of
IBM, that is demonstrably untrue."

Sounds like defamation to me. Add in actual damage and it becomes libel, right?

Cheers, Colin

(What do you mean, it was a rhetorical question??? :-)

---
Just when I thought it couldn't get any wierder, SCO proved me wrong again.

[ Reply to This | # ]

An Editor's Response: The NonLegal Mind Not at Work
Authored by: jcjodoin on Wednesday, February 23 2005 @ 04:14 PM EST
All,

Yesterday I wrote a complaint (via email) to Mark R Hinkle,
an editor at one of the Sys-Con magazines / companies ...

Here's his email reply to my query. Thought you all would
like to know.

BTW, since this is my email, I'm posting it here legitimately.

FYI.

jeffrey

>>>>>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>>>>>>


Jeffrey,

I think you have a misconception that LinuxWorld Magazine is the
employer of
Ms. O'Gara. Her publication, LinuxBusinessWeek, is one of many
properties
that is syndicated and has a relationship with Sys-Con Media as is XML
Journal, Java Developer's Journal and a host of others (see
www.sys-con.com). The content from LBW is simply part of a much bigger
content feed. If you notice each content feed is identfied by their
publication on LinuxWorld.com and I personally feel that one of the
values
of publishing her feed allows people like yourself to exercise your
thoughts
on the matter and gives you a voice. I do believe if her feed wasn't
picked
up by our site that it would go to a site with a less savvy user base
who
don't have the background to call foul on her stories. As in her long
career
she has published in a variety of outlets and I hesitate to censor
anything
as I feel that we have the advantage of a vocal and educated readership
to
rebut her stories.

While I don't believe Ms. O'Gara to be a SCO confederate I do believe
her to
be thrive on being provacative. The editorial staff has made the
decision to
not carry her stories in our magazine and we have demanded that her
content
be removed from the "Hot Stories" section of our website and to never

be
branded as LinuxWorld and for any stories that come across the feed to
be
clearly labeled by source.

However, I do appreciate your feedback and would encourage you to go to
company that does publish her LinuxBusinessWeek (Sys-Con) media there
contact information is listed at http://www.sys-con.com/contact.cfm. I
absolutely don't want to pass the buck on this one and if the story was
published in the LinuxWorld Magazine print magazine it would be my
decisions
and responsibility, but in the days of the large corporate
conglomerations
and syndicated news it's difficult to discern who's really responsible
for
the content. In reality all the contributors to Linux World Magazine
have an
arm's length relationship with Sys-Con so we have no pressure to
publish for
hire as is common in today's publishing business. I think this gives
us the
ability to offer stories that our constructive and help to further
Linux
adoption.

Regards,

Mark R. Hinkle
Editor-in-Chief
LinuxWorld Magazine
www.linuxworld.com
Articles: http://www.sys-con.com/author/?id=2082
Blog: http://mark.linuxworld.com

-----Original Message-----
From: Jeffrey Jodoin [mailto:jcjodoin@yahoo.com]
Sent: Tuesday, February 22, 2005 12:29 PM
To: mrhinkle@linuxworld.com
Subject: Maureen O'Gara and her paid Shill Articles

When its finally proven that Maureen is nothing more than a paid shill
by
Microsoft or Caldera or SCOXE or whomever, all of the true Linux people
will
be happier.

I can't believe you publish her rubbish. She is one sided, lies, gives
incomplete half-truths and has no journalistic integrity concerning her
SCO
reporting whatsoever.

You all need to can her. NOW.

Just my two cents.

Jeff Jodoin
[address edited]


[ Reply to This | # ]

Opinion
Authored by: Anonymous on Wednesday, February 23 2005 @ 04:16 PM EST
I think this is an opinion piece, not subject to the fact checking of normal
reporting.
Dennis

[ Reply to This | # ]

  • Opinion - Authored by: PJ on Wednesday, February 23 2005 @ 05:05 PM EST
  • Opinion - Authored by: blacklight on Wednesday, February 23 2005 @ 05:30 PM EST
  • Opinion - Authored by: Nivuahc on Wednesday, February 23 2005 @ 06:42 PM EST
The NonLegal Mind Not at Work
Authored by: Anonymous on Wednesday, February 23 2005 @ 04:22 PM EST
My apologies if this is stupid...

When I read Ms. O'Gara's article, I couldn't help but find her reference to
"those files" somewhat ambiguous. All responses I've read seem to
assume O'Gara was claiming that IBM spent a year and a half refusing to to
produce the files of 3,000 people, but I get the feeling from the article that
she means that IBM spent a year and a half refusing to produce the files of 174
people. Still not true, in my limited understanding of the debate, but perhaps
*slightly* more understandable, at least coming from a non-working non-legal
mind?

Could someone set me straight on this? Everybody else here probably understands
the timeline better than I do. Could she be claiming that IBM spent a year and
a half refusing to produce the documents which they already *have* produced?

Thx...

[ Reply to This | # ]

Ping Oklahoma, to verify another story
Authored by: Chris Lingard on Wednesday, February 23 2005 @ 04:25 PM EST

LinuxBusinessWeek keeps repeating the same old stuff, as headlines, with just a little rearrangement of their stories. After watching them a while, you notice the repetitions. I regard it as cut-and-paste writing, where no thought or research is needed. Just change the date, rearrange the paragraphs a little, and it is a brand new story.

Unfortunately, this type of reporting is very common; though it must be a lot cheaper than someone checking their facts and writing something original. You can probably write LinuxBusinessWeek on some sort of automatic pilot, no skills or experience needed, you too can be a reporter.

The reason that I put this comment in; is the Jeff Merkey story, that also keeps getting repeated. This is the one where the Jeff Merkey, the Utah business man is going to get the Cherokee Indian Nation of Oklahoma to rew rite the Linux kernel. And Jeff Merkey is a famous writer too, just like LinuxBussinessWeek reporters are are.

So could I ask someone in Oklahoma to find out the truth. I find it hard to believe that honest and noble Cherokees would partner this person.

[ Reply to This | # ]

The lack of the truth in MOG article is astonishing.
Authored by: troll on Wednesday, February 23 2005 @ 04:26 PM EST
Yours truly ...

[ Reply to This | # ]

Health Warning
Authored by: davcefai on Wednesday, February 23 2005 @ 04:28 PM EST
Ensure that mouth is NOT full of liquid before reading the feedback.

Alternatively have a spare keyboard handy.

[ Reply to This | # ]

her court intervention
Authored by: Paul Shirley on Wednesday, February 23 2005 @ 04:35 PM EST
If she keeps up this standard of biased reporting and IBM points it out to judge
Kimball I rather doubt any of her plans to interven over sealed documents have
any sort of future.

[ Reply to This | # ]

An even worse example of Ms O'G
Authored by: Anonymous on Wednesday, February 23 2005 @ 05:01 PM EST
IBM Agrees To Turn Over To SCO Upwards of 2 Billion Lines of Code IBM Trapped by SCO Discovery Order, But Resists Searching the Files of 3,000 Developers

[ Reply to This | # ]

Is the judge asking for too little information?
Authored by: rharvey46 on Wednesday, February 23 2005 @ 05:13 PM EST
I know that this may (or may not) sound crazy...
But is it possible that it would be easier for IBM to provide all of the files
in the repository rather than only those files written by the 3000 individuals?
If IBM provides only 50 % of the individuals, IBM has to choose who among the
7000 (assuming the numbers are correct) are the people who did the most work -
allowing SCO to then accuse IBM of giving 3000 (random) individuals rather than
the 3000 most-contributing individuals.
I have a suspicion that it may be easier for IBM to provide all of the
information (at least from the repository).

A bigger question is, can IBM give current names / addresses for these
individuals? Would this not violate their individual rights? And if IBM does not
provide all addresses (for 3000 or 7000 persons), SCO would then claim that IBM
is withholding the information on purpose.

On the other hand, providing the emails, notes etc on 3000 persons (or even 300)
is probably difficult if not impossible - especially considering that some
information may not have been written down (on computer), or has been removed
(potentially even from backups) due to resouce limitations.

In my opinion, it appears that IBM could easily provide all of the repository;
providing the rest of the information, however, would prove much more
difficult.
In any case, I am sure SCO will claim that IBM did not make a best effort, did
not provide what the judge asked for, and did not do so in a timely fasion.
After which (having failed the previous argument), they will probably want IBM's
help in interpreting what is/is not relevant to the case and/or distributed to
Linux for the next 10 to 100 years. Of course, under all scenarious, if SCO does
not find the fish in this expedition, they will claim that IBM did not help them
find the fish - even though the judge told SCO not to go on a fishing
expedition

[ Reply to This | # ]

The NonLegal Mind Not at Work
Authored by: Anonymous on Wednesday, February 23 2005 @ 05:45 PM EST
Actually it is amusing to read, but not just the article. Check out the
feedback, while it remains posted.

[ Reply to This | # ]

Links to LBW
Authored by: davew33 on Wednesday, February 23 2005 @ 05:47 PM EST
I made the mistake of following a link to LBW a short time back. Can't remember
if the link was posted here or on the Y! message board, but I thought "What
the heck?", gave them the requested email address (one of my throwaways)
read the article and moved on.

All of a sudden I'm getting some kind of a newsletter from them on a regular
basis, filled with the kind of 'journalism' MOG specializes in. Well, their
"unsubscribe" link doesn't work. The junk filters in evolution failed
to filter the offensive newsletters as well. I finally resorted to a spam
control rule in sendmail that just rejects all mail from sys-con.com.


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MOG sees SCOG on the defensive?
Authored by: xtifr on Wednesday, February 23 2005 @ 06:19 PM EST
I think it's amusing that MOG is referring to the case as "IBM v.
SCO", since that implies that SCOG is the defendant in this case. And
indeed, their complete inability to show any evidence to support their claims
against IBM does seem to put them very much on the defensive, especially against
IBM's Lanham Act counterclaims. Still, I find it charmingly ironic when even
their allies seem to be feeling that SCOG is the actual defendant here. :)

---
Do not meddle in the affairs of Wizards, for it makes them soggy and hard to
light.

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The NonLegal Mind Not at Work
Authored by: Anonymous on Wednesday, February 23 2005 @ 06:51 PM EST
On June 24, 2003 SCO filed its First Request for Production
of Documents and First Set of Interrogatories. On Nov. 4,
2003 SCO filed its first Motion to Compel.

It is actually closer to 20 months that IBM has fought the
production of documents. By default a party must comply
with discovery requests. See Rule 26 of The Federal Rules of
Civil Procedure.

MOG never stated anywhere that the Court *ordered* the
requested pre-trial discovery. Everything MOG stated is true.

By twisting Rule 26 to mean "ordered by the Court" PJ is the
one having "truth" problems.

AN HONEST GIRL


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Be fair, PJ
Authored by: GLJason on Wednesday, February 23 2005 @ 07:09 PM EST
"Shouldn't somebody remind somebody that IBM wasted a year and a half refusing to produce those files?" is a reasonable statement. SCO has been asking for all the programming notes and design documents (for all versions of AIX and Dynix since 1999) since their first or second request for documents back in 2003. IBM has refused to provide those from the start. And SCO has been requesting ALL versions and files back to 1984 since before their Memorandum Regarding Discovery back in June of 2004. I'm sure they tried to get those from IBM before filing that with the court. Your statement "IBM hasn't refused to produce the files ever." simply isn't true. IBM has never refused to obey a court order to produce them because there wasn't one, but IBM has refused to produce them when asked by SCO.

I don't think that IBM should have to produce those files, I think it is unreasonable. Going through the files which date back over 20 years for 3000 employees, many of which don't even work for IBM anymore, is an onerous task. That is 60,000 man-years of files. I hate to think how much it would cost a lawyer to check all the design documents I produce in one year, let alone 60,000. Since January 2004 they have been under the impression that they wouldn't have to from the orders that Judge Wells has handed down. Why she changed her mind this time around, I don't know. IBM HAS been refusing to produce those documents for a year and a half. Even if that refusal was sanctioned by the court, SCO has still been asking for them. Check their first motion to compell:

Among other deficiencies, IBM has failed to produce: (1) the source code for all of IBM's versions of UNIX (known as “AIX”), together with all notes and documentation for the software development methods used in the design and modification process; (2) the source code for all of Sequent's version of UNIX (known as “Dynix”), together with all notes and documentation for the software development methods used in the design and modification processes;

I think IBM should do this for one employee and keep track of how much it has cost them. Then they should go to court and say "Producing this discovery will cost us $10 million, that is unreasonable."

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Suggested reading for Maureen O'Gara
Authored by: Anonymous on Wednesday, February 23 2005 @ 07:38 PM EST
I would like to suggest that Ms. O'Gara visit the Society of Professional Journalist's website and read what the society has to say on the subject of ethics. Somehow I think that Ms. O'Gara is likely to find a few items on that list that are likely to cause some discomfort when she applies it to her reporting style.

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Can Torvalds revoke their right to use his trademark
Authored by: Anonymous on Wednesday, February 23 2005 @ 07:39 PM EST
Seems "Linux Business Week" is mostly a FUD channel trying to
misrepresent much of the truth around Free Software.

I'm sure if I had a magazine called "Microsoft Business Week" and
spent the whole time attacking unethical things Microsoft was doing; they'd shut
me down the minute I said anything false.

Could Linus stop them from using the Linux trademark in the name of their
publication.

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To play devil's advocate
Authored by: Khym Chanur on Wednesday, February 23 2005 @ 11:22 PM EST
You could interpret her as meaning something like: If, a year and a half ago, IBM had simply given in completely to SCO's very first request for discovery material, rather than having the judge rule that they didn't have to hand over the material, then SCO would have had that year and a half to analyze the information, and the trial would be ready to start. Instead, you objected, and ended up having to hand over everything anyways, and now SCO still needs the time to analyze the information, and so the date for the trial is still far off. You should have anticipated that you'd eventually have to hand over this stuff, and not bothered to fight to keep it to yourselves.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

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Oh, their editors messed up...
Authored by: Anonymous on Wednesday, February 23 2005 @ 11:59 PM EST
I guess it comes as no surprise that the editors of the magazine have allowed a
great typo to perpetuate itself....it really should be called
"LinuxBusinessWeak.com".

I guess a single letter really does make a difference!

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Journalists don't need to tell the truth
Authored by: Anonymous Coward on Thursday, February 24 2005 @ 02:06 AM EST
This is what a judge ruled in a case of two journalists who sued Fox after getting sacked for not wanting to lie.
Here is a link.

And from this the next step is that if a journalist doesn't need to tell the truth the magazine/newspaper/tv-station (s)he writes for doesn't need to retract wrong statements.

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Seriously
Authored by: rp$eeley on Thursday, February 24 2005 @ 01:46 PM EST
Thanks PJ, in addition to everything else, you manage to keep tabs on
LinuxBusinessWeek. Some read LBW only as comic relief but as there are those who
take them seriously, your providing an occasional reality check for them is much
appreciated.

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The NonLegal Mind Not at Work
Authored by: geoff lane on Thursday, February 24 2005 @ 02:23 PM EST
I found this list a short while ago. I've been intending to write a review of the writings of O'Gara but I doubt I can find the time (or the mental stability) to read three years worth of her ramblings. If anybody else wants to try, good luck.

There is a total of 160 pages in the index and each holds about 20 summaries of articles "written" by O'Gara. The oldest article is undated but seems to have been written some time in mid 2002 (note that the dates provided on the index page are incorrect and seem to suffer from an uncorrected Y2K bug.)

The index pages imply that O'Gara is the author of approximately 3000 articles over an interval of about three years or five for each and every working day. This is an impressive output by any measure.

The earliest articles are quite technical ("Using Interrupts For Timing" for example) and are by O'Gara only in the sense that she is the editor and wrote a brief introduction.

The first mention about any of the actors in the SCO farce is in a short article ("United Linux Is Love-Less") about Ransom Love.

``Well, despite widespread expectations and his own hopes, ex-Caldera CEO Ransom Love ain't gonna be running the United Linux initiative that Caldera, SuSE, Turbolinux and Conectiva have put together to level the playing field between them and Red Hat, the Linux market leader. His credentials as a Caldera founder and shareholder worked against him, he says. Sources say SuSE objected. Maybe it was the inherent conflict of interest, as Love suggests.''

Also mentioned is a book that Love was writing, "Love of Linux". Sadly it appears that Love hasn't yet found a publisher. The story of Love and Caldera would be fascinating.

---
Not using the GPL is not a character flaw.

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Headline corrected
Authored by: Anonymous on Friday, February 25 2005 @ 04:49 AM EST
The headline now refers to the correct title of the action - shame the rest of
the article appears unchanged.

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