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Groklaw's Eyewitnesses Report From the Courtroom - It Went Well
Thursday, April 21 2005 @ 08:46 PM EDT

Chris Brown went to the hearing today, and he has just now returned. It sounds from his report that everything went really well. SCO, he says, tried again to read from confidential email, but IBM's David Marriott brought it to Judge Kimball's attention and it was brought to a halt. Can you believe these guys? Anyhow, from what Chris writes, I get the impression that SCO's chances are not so good for being able to amend the complaint again. I wasn't there, though, so I can't stand on any dime on that. See what you think.

I received two other reports from readers, and they each noted pretty much what Chris did, but amplify the color of the day by saying that when SCO's attorney Sean Eskovitz went, during his speechifying, to get some bottled water to drink, Judge Kimball asked him, "You don't trust our water here?" One reporter says Utah water is notoriously bad, and Judge Kimball said it as a joke. Eskovitz kept on drinking water from the bottle too. (Update: Chris explains more fully: "The water provided by the court was a carafe on each table and some platic cups. SCO brought Dasani. When Escovitz paused to open his Dasani, Judge Kimbal asked: 'Don't you trust our water?' Escovitz replied: 'I'm afraid of spilling it.' (referring to the plastic cups). Just wanted to provide the second half of the exchange.") Here's Chris's full report.

[Update: Bob Mims' article. The one piece he adds is that Darl McBride has not yet been deposed. SCO intends to make him available, but it didn't happen yet. One more thing. Linux Business Week is now Linux Business News. Maybe Business Week noticed a trademark violation? The new url for the masterpiece on the discovery order is linuxbusinessweek.sys-con.com/read/49241.htm but for an unbiased account, try Jim Wagner's on Internet News. ]

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

SCO read some quotes from some sealed emails AGAIN and IBM interrupted to point that out to Kimball, who stopped it. Kimball even opened the hearing saying he believed they could talk about the sealed material referencially without revealing anything and that he was therefore keeping the courtroom open. IBM had David Marriott, Todd Shawnessy, and one other attorney who didn't speak, who was at the October hearing. SCO had Edward Norman, Sean Escovitz, and Brent Hatch (Brent didn't speak).

Covered:

1) Motion to Compel Sam Palmisano
2) Motion to Amend Complaint / Motion to Narrow 9th Counterclaim
3) Schedule

I'd say 1/4 of the time was spent on the Motion to Compel, 2/3s of the time on the Motion to Amend, and the small part left over for the Schedule.

There was very little raised that has not been in briefings filed so far, with the notable exception of IBM's numerous examples of how SCO either DID know about SVR4 being used in AIX for Power or that they should have known. At times it sounded like Marriott was simply reading Groklaw references. But there were some good quotes from internal correspondence between Santa Cruz Operation Inc. and IBM that clearly demonstrated that, at least, *they* knew what was going on and therefore if The SCO Group didn't know, tough luck. IBM even quoted material received from SCO in discovery in this case that they said demonstrates that SCO knew about it long before the deadline for amending had passed.

IBM spoke at length about how SCO shouldn't be allowed to amend now based on their knowledge long before the deadline, and how they fail to meet any of the various requirements for amending now.

There was also quite some discussion about the Project Monterey JDA (Joint Development Agreement)'s sections 20.1 and 22.3. About the 2 years, the venue, and the no-waiver provisions. Mr. Norman explained how they believe IBM waived the no-waiver provision; I didn't understand it though. Mr. Norman also claimed IBM had waived the venue provision by bringing the agreement into this case via the 9th Counterclaim. He also claimed the 2 years don't apply because SCO *just* found out about all this.

Amusingly, later on in Mr. Norman's Reply to Mr. Marriott's Reply to Mr. Norman's Reply to Mr. Marriott's arguments, that, Yes, perhaps SCO did know earlier, but what SCO *didn't* know was that IBM themselves (by way of the, now sealed, communications) believed they were violating the terms of the agreement. He tried to say that if IBM thought they were violating their license, yet knowingly carrying on, then IBM did something wrong.

IBM demonstrated by numerous methods that SCO had given IBM permission to use SVR4 code in AIX for Power and was even helping IBM market AIX for Power & AIX-5L expressly telling people publicly that it contained SVR4 code (and most markedly telling people it contained SVR4 Printing Subsystem). IBM provided overwhelming evidence that SCO knew, was helping to integrate SVR4 code into AIX (including Power), and was telling the world about it through marketing, press releases, and interviews. That SCO didn't do anything about it back then was evidence that IBM had the license despite what some Mr. Peterson (the controversial sealed-email author) may have believed or wondered about.

Judge Kimball had asked a question of Mr. Marriott about the Motion to Narrow the 9th Counterclaim that I couldn't quite make out, nor could I quite make out Mr. Marriott's answer, but Judge Kimball said something to the effect that, "He'll just refer to that motion as IBM's motion to CLARIFY the 9th Counterclaim rather than Narrow it". It looked like Kimball believed IBM was not trying to change their 9th CC as SCO kept trying to tell people they were. This gives me the opinion Kimball's not buying that motion as permission for SCO to amend again.

Anyway, those were the highlights.

Groklaw's producer adds something interesting about the Palmisano discussion:

All SCOX could do was rehash the same argument about Project Monterey not being about PPC but only Itanium. Mr. Marriott put that to rest. And they need to depose Sam Palmisano, SCO said, because he knows everything there is to know about Linux. Mr. Marriott didn't agree. He made the point, a few times, about IBM being a Fortune 100 company and added that IBM has 300,000 on payroll versus SCOX with around 100. They wanted to depose Darl since he was at the forefront of all this, as opposed to Mr. Palmisano who hasn't opened his mouth.

According to our third witness, who prefaces his report by saying that he is a bit hard of hearing and the acoustics were difficult in the courtroom, so he only stayed for about half of the hearing, SCO's attorneys waxed indignant that size should matter as to whether a CEO is deposed or not. And here are his notes:

21 April 2005 SCOvsIBM Hearing:

I arrived at 3:00 pm. and in the few minutes before Judge Kimball entered I noted: that the courtroom was paneled in walnut with square and round Corinthian half columns, with a white ceiling (about 25 feet high) with blue/gold ornamentation and a cream carpet with blue borders. While the court was impressive and much larger and grander than Magistrate Well's court, I would soon find the acoustics were extremely poor. Either because of a less-than-state-of-the-art sound system or my own limitations (I have hearing loss at certain frequencies) I unfortunately missed much of what went on, but I can tell you what I did hear, see, and intimated.

Judge Kimball entered. . . . He said that he saw no confidential matters in motions one and three, and that the confidential nature of motion two could be argued around.

SCO's attorney argued that Sam Palmisano spearheaded IBM's Unix to Linux initiative (while a V.P.) prior to becoming President/CEO; that only a seven-hour deposition was necessary; and that he should be deposed. He continued stating 1) that Mr. Palmisano had unique knowledge as to why IBM pursued its Linux strategy, and 2) that strategy was central to SCO's case. He referenced (I believe a Sam's Bet) (Chris Brown: "Sam's Bet" was the reference... A quote from, I believe, A March 2000 New York Times story on Sam's Linux strategy.) IBM's technology czar, although I could not hear why. The presentation was boring and I kept asking myself, "How did IBM's move to support Linux harm a Linux company?"

He said that IBM deposed SCO's CEO and that they (SCO) should be allowed to depose IBM's CEO. . . . He continued by saying that they could not find as much as an e-mail in Mr. Palmisano's file relating to Linux and IBM did not give an explanation –- only Mr. Palmisano can explain.

Mr. Marriott responded (he was more animated and easier to hear): IBM disagrees with SCO and recognizes the obligation to provide discovery. He listed several cases supporting his argument and concluded that it was not appropriate to call Mr. Palmisano at this juncture. He said something about 1) pursuasive authority and the CEO should not be called except where he had unique knowledge -– referenced a Bridgestone/Firestone case. 2) Mr. Palmisano does not have unique personal knowledge relating to the contract (he did not negotiate, nor had any other connection with it). He argued that IBM produced thousands of pages, three high-level executives, and that everyone has unique perspectives (but Mr. Palmisano's would not help in this situation).

Mr. Eskovitz's reply: IBM didn't show that IBM didn't know anything. (I always thought that it was impossible to prove a negative argument). IBM said that SCO should show that Mr. Palmisano does have personal knowledge. (Went for water again). Since Mr. Palmisano was V.P., and spearheaded the Linux initiative, he should not be shielded as CEO. He was 'blown away' by IBM's suggestion that relative company size should matter in determining if a CEO should be deposed. (You had Darl; we should get Sam). His reply was more animated, but he was still difficult to understand.

Motion #2: third amended complaint

Another SCO attorney, Mr. Norman, I think, began by referencing the late 1900's and Project Monterey (he adjusted the mike and was easier to understand -– but toward the end of sentences his voice trailed off and (at least to me) sounded as if he was mumbling). He made these points: If IBM canceled Project Monterey they had no right to SV4 code; IBM could only use SV4 code in AIX; and one other I couldn't hear. "SCO will show that IBM misappropriated code." IBM identified 19 individuals with Project Monterey knowledge. He referenced an IBM internal e-mail and began reading the confidential document. (Chris Brown explains: "SCO *did* say they had found a email from Palmisano on the internet about Linux, but that IBM had not produced a copy of it in production. SCO wanted to know why.")

4:15 pm:
Mr. Marriott:

Said that there were a number of reasons to deny SCO's motions

1) Untimely;
2) Scheduling order was not to be amended (something about rules 15 and 16);
3) IBM will show, using SCO's documents, that IBM included SV4 code in AIX as part of Project Monterey; and he began reading from a booklet he presented the Judge and SCO, that SCO knew about IBM's plans for Project Monterey and its use.

Further, he claimed that SCO is trying to file it's amended complaint after the deadline to do so and that SCO originally claimed no distinction from Santa Cruz, oldSCO, yet now they wish to distance themselves from (original)SCO. SCO should know or should have known about the (original)SCO - IBM relationship.

At some point during the preceding, near the deadline discussion, Judge Kimball looked upward in what I took as an "I got it moment".

Unfortunately, because I was missing most of what was said, I left around 4:35. I'm sure that others can fill in information that I either didn't hear or didn't understand (did I mention IANAL). I hope that this report may prove helpful to those following this case.

Since Chris's first report, he mentions one other element:

SCO found an email from Palmisano on the internet pertaining to Linux and wanted to know why IBM did not provide a copy of the email in discovery.  I got the impression the email was just telling about IBM's Linux strategy, but not anything of consequence by its contents.  SCO was simply using it as evidence that IBM was not providing complete discovery from Palmisano.

So I asked Chris what he thinks the judge might do, what his impression was of who won what. Here is his call:

  I left the hearing believing SCO was likely to get Palmisano.  SCO's assertion that as VP he was the one who spearheaded IBM's Linux strategy seemed to carry the day.  SCO argued that only Sam could provide the REASONS for his decisions that would answer SCO's 4th claim relating to Tortious Interference and trying to destroy Unix.  IBM's assertions that Palmisano's knowledge would not be unique doesn't cut it.  IBM had asserted that Palmisano had not executed the strategy and that others knew more.  SCO had also asserted that while they had deposed three other executives under Palmisano, all three of them had said that Palmisano had made the decisions, not them.  This, I believe, probably will carry it for Kimball.

  I believe SCO will not be able to get their Third Amended Complaint through.  SCO's arguments were weak in comparison to IBM's overwhelming evidence that SCO has known about SVR4 code being in AIX for Power for YEARS and failed to make a complaint about it.  IBM had shown that SCO had received 3 of the 6 documents SCO is relying on to amend from 3 to 6 months BEFORE the deadline to amend.  IBM did a good job of showing SCO had too little, too late, in the wrong venue, on something IBM had a right to do.  I'm confident SCO will not be able to overcome the conditions set forth to amend their complaint now.

  Scheduling?  There wasn't enough said to form an opinion on it.  I take that back... There was discussion on SCO needing to show their cards before the end of discovery.  I'm confident, especially from Judge Kimball's remarks on denying the dispositive motions, that he will require SCO to state, with specificity, what the allegedly infringing material is before the end of discovery.


  


Groklaw's Eyewitnesses Report From the Courtroom - It Went Well | 595 comments | Create New Account
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Groklaw's Eyewitnesses Report From the Courtroom - It Went Well
Authored by: Steve Martin on Thursday, April 21 2005 @ 09:04 PM EDT
Finally! Thanks, PJ!


---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"

[ Reply to This | # ]

Thanks Chris Brown!
Authored by: Anonymous on Thursday, April 21 2005 @ 09:07 PM EDT
And PJ. It looks like His Honor may have decided to play hardball :-)

Nice to see tSCOg finally getting what they so richly deserve.

[ Reply to This | # ]

Groklaw's Eyewitnesses Report From the Courtroom - It Went Well
Authored by: seeks2know on Thursday, April 21 2005 @ 09:09 PM EDT
Thanks to Chris Brown and PJ.

Mighty speedy!

---
There is but one straight course, and that is to seek truth and pursue it
steadily."
-- George Washington

[ Reply to This | # ]

Corrections Seed Post (Non-Automated)
Authored by: Weeble on Thursday, April 21 2005 @ 09:13 PM EDT
Because no one's perfekt. We all make misteaks.

---
You Never Know What You're Going to Learn--or Learn About--on Groklaw!

[ Reply to This | # ]

Motion to CLARIFY CC9
Authored by: Anonymous on Thursday, April 21 2005 @ 09:14 PM EDT
Does one need to file Motions to clarify something?

[ Reply to This | # ]

OT posted here!
Authored by: dukes_of_hazzard on Thursday, April 21 2005 @ 09:14 PM EDT
OT posted here!

[ Reply to This | # ]

ETA on the transcript?
Authored by: rsteinmetz70112 on Thursday, April 21 2005 @ 09:39 PM EDT
If one is released.

---
Rsteinmetz

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

[ Reply to This | # ]

Likely explanation of the waiver argument
Authored by: Anonymous on Thursday, April 21 2005 @ 09:40 PM EDT
1. What is CC9 about.

- IBM's position is CounterClaim 9 (CC9) is only about IBM's continued
distribution of AIX after SCO's "termination".
- IBM's motion to limit the scope of CC9, is intended to make that clear from
the court.
- IBM's position makes sense in the context at the time it was brought. When IBM
brought CC9, SCO was suing IBM for copyright infringement in AIX, by continuing
to distribute AIX (this is *part* SCO's 5th cause of action)

- SCO's position is that CC9 is in response to SCO's 5th cause action, and
*also* in response to SCO's Monterey claims which they want to bring in their
3rd amended complaint (which were then not part of the case, nor proposed to be
part of the case)

All the above is clear from the memoranda that we have seen.

In my opinion, the problem with SCO's position is that it is simply illogical

(i) It requires IBM to be clairvoyant [to know that SCO would want to amend with
a Monterey claim long after the deadline for amending pleadings]

(ii) It requires IBM to be stupid (see the next part of the waiver), by
introducing Monterey in the case, and giving SCO a waiver loophgle

(iii) It doesn't fit the context. This is because CC9 is a declarative
judgement. Declarative judgements can only be brought in response to a law
suit, or a threat of a lawsuit. As SCO was, at that time, neither suing nor
threatening to sue IBM over Monterey, IBM could not have brought CC9, if SCO's
interpretation were correct.


2. Now to the waiver argument (this is in part speculation, but there are strong
hints running thru the public memos)

To introduce a new pleading long after the deadline has passed, SCO needs to
justify it.

They attempted to do so by saying CC9 is partly about Monterey (see part 1
above), and therefore already part of *this* case. SCO therefore argues as
Monterey is already part of *this* case, thanks to IBM's stupidity (see part
1(ii)), SCO therefore ought to be able to bring a compulsory mirror image claim
- sue IBM for Monterey infringements. Of course, this is totally dependent on
SCO winning on part 1.

SCO still have additional obstacles:

- The two year time limit

- The New York venue clause in the Monterey contract

So, SCO's argument here, is that IBM has waived the two year time limit and NY
venue clause by introducing Monterey into *this* case (echoing 1(ii) again).
And if IBM has waived these obstacles, then SCO ought to be able to sue IBM for
Monterey issues in *this* case.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Speculation on the sealed email
Authored by: dmarker on Thursday, April 21 2005 @ 09:46 PM EDT

I haven't read any reports on what it is supposed to contain. So if it is known
by other here then my speculation may be moot. But, am guessing that the sealed
email was from an IBMer in a HQ somewhere (Austin or perhaps Armonk or White
Plains), who whilst having a good knowledge of the Monterey Project, may not
have known *all* the really significant details.

With this as the clue, it seems this person may have written an internal email
rasing the spectre of IBM violating some aspect of the agreement as far as this
person was concerned and from his knowledge of the contracts.

My guess is that IBM wanted the email sealed whilst it was fully evaluated &
a more accurate interpretation of its circumstances and perspective were sought.
tSCOg wanted it public because it would prove a propaganda bonus that they
could and would characteristically keep crowing about in the obnoxious way we
have come to expect from any perceived victory they think they have won.

Of course the real potential value of any such email would only be if tSCOg
could get Monterey back into the case & PJ (bless her cotton socks) and
Groklaw have all but flattened that option fot tSCOg.

We all know where MOGs heart is re tSCOg thus her so called 'journalistic'
desire to open the email in the interests of the public can be seen as nothing
more than her other shillistic pro-sco rants.

Also, it seems that this 'Monterey email' may have been tSCOg's only evidence of
anything hence their desperation to get Monterey on the table.

My 0.2c worth

Cheers

Doug Marker

[ Reply to This | # ]

Reading sealed emails...
Authored by: webster on Thursday, April 21 2005 @ 10:26 PM EDT
...is a sign of desperation. In a hearing on procedural motions are reading
sealed emails the best they have to offer? After being shushed, did they argue
the substance of these emails in the hearing? SCO must be bankrupt of substance
if they planned to read from these sealed emails after being shut down
repeatedly the last time. Too bad they did not ignore the judge again and
continue reading. We could have seen some real fireworks! It seems like such a
risky and futile strategy with which to start their hearing. Who planned their
strategy? Why did they try exactly what they could not do before?

They must perceive great PR value in these emails. Will they leak them to their
journalistic shills for a pro SCO analysis tomorrow? They can argue them in
sealed pleadings to the court. They are desperate to publicize them. So
desperate they twist [and subjugate] their legal strategy for the slim hope of a
PR windfall.

They must consider these emails some of their best evidence. They may
completely confound IBM. They may not have code and documents to back them up,
but they may rebut and impeach IBM's position.

There is evidence of despair. They must realize that the Monterey path is a
beaten one. It presents a rich landscape of evidence to refute them. PJ alone
has dug up numerous documents that contradict their claims. Imagine what IBM
has! They are half hoping that the judge won't permit them to amend so they
don't have to confront a ton of evidence including their own statements.

---
webster

[ Reply to This | # ]

"Before the end of discovery"
Authored by: Anonymous on Thursday, April 21 2005 @ 10:48 PM EDT

Does anyone have idea of what criteria Kimball will use
to know when discovery ends? Any signs to look for? Or
will it just happen one fine day?


[ Reply to This | # ]

Eyewitnesses Report - Question
Authored by: Anonymous on Thursday, April 21 2005 @ 10:53 PM EDT
When you say "Kimball looked upward in what I took as an "I got it
moment"." do you mean as in an ahhh now I got it moment or
I've got it already now shut up moment.

[ Reply to This | # ]

  • The first...n/t - Authored by: Anonymous on Thursday, April 21 2005 @ 11:23 PM EDT
Groklaw's Eyewitnesses Report From the Courtroom - It Went Well
Authored by: Glenn on Thursday, April 21 2005 @ 11:18 PM EDT
I gather from this that Judge Kimball did not make a ruling on any of these
issues at this time.
I have become resigned to this whole farce dragging on and on until the SCOG
is a ruined, oderous heap, which is all that will be left of what were two
pretty good companies at one time.
Their is no urgency any longer. IBM is being methodical in its approach,
crossing all of the t's and dotting all of the i's. Every now and then one is
missed. It is easy to do in such an incredibly sloppy and messy case as this.
But the IBM lawyers just go back and take care of business.
The only thing that the SCOG has (and really ever had) is to sieze on every
little nuance and detail and try to twist them to fit a very alien (and absurd)
universe.
The Linux world is marching on, and as pointed out by PJ, this march has
actually been emboldened by the SCOG's pathetic attempts to hijack the work of
so many FOSS contributors.
The SCOG's lawsuits only have nuisance value because the light of truth has
been shone on those claims, here on Groklaw, in the courtroom, and by others
here and there.
There are no credible journalists now who are beating the SCOG drum now.
There were many at first, but as the months have rolled by, turning now into
years, with the SCOG producing no evidence that will stand up in court, those
journalists have quietly gone onto other pursuits.
Laura Didio may still be clueless about FOSS and Linux, but she has not been
trumpeting anything about the SCOg for some time. I haven't even heard anything
from Rob Enderle lately. We only have the lonely martyr of Maureen O'Gara who
seems to have a journalistic suicide wish who champions the unchampionable.
I still wish it were over now, but I feel that the final outcome is almost
inevitable. I do actually feel sympathy for many of the SCOG's employees. They
used to work for a pretty good company and soon will be without jobs. Other than
that, I will not be sorry one bit when the SCOG goes down, not with a blaze of
glory, but in a sullen pile of excrement that will be the object of scorn for
maybe a couple of weeks, then forgotten.
Then, where will Darl work? Who will hire him? Sad.

Glenn

[ Reply to This | # ]

..and just how is Groklaw not about cooking? ;o) With tSCOG simmering? ;o) N/T
Authored by: Anonymous on Friday, April 22 2005 @ 12:43 AM EDT
.

[ Reply to This | # ]

..and just how is Groklaw not about cooking? ;o) With tSCOG simmering? ;o) N/T
Authored by: Anonymous on Friday, April 22 2005 @ 12:45 AM EDT
.

[ Reply to This | # ]

UNIX/Linux and "tortious interference"
Authored by: Jaywalk on Friday, April 22 2005 @ 01:28 AM EDT
SCO's assertion that as VP he was the one who spearheaded IBM's Linux strategy seemed to carry the day. SCO argued that only Sam could provide the REASONS for his decisions that would answer SCO's 4th claim relating to Tortious Interference and trying to destroy Unix.
Oh, for Pete's sake. I can tell you that; as can anyone who read the materials from that time frame. The reason IBM got into Monterey was they figured they could advance their lousy standings in the UNIX game by making a version of UNIX that was more Linux compatible than the others. They figured that Linux was a light-weight OS that would replace a lot of Windows boxen (especially servers). When you wanted some heavy lifting done, you'd move up to UNIX. So they joined up with a Linux company to make a more Linux-compatible version of UNIX.

That plan was fundamentally flawed. Linux was not just for "lightweight" tasks and was replacing UNIX faster than Windows. As much as IBM would like to keep the income from selling a proprietary UNIX product, it wasn't going to happen. Linux was gobbling up UNIX territory so fast that it was clear that being number one in that vanishing market wouldn't be a good thing.

Palmisano wasn't the evil genius who came up with a plan to kill UNIX. He was just the messenger for what was happening anyway. The Juggernaut was coming and IBM's only choices were to get on board or go under the treads.

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

[ Reply to This | # ]

Question for Chris Brown
Authored by: Anonymous on Friday, April 22 2005 @ 02:13 AM EDT
Question: Did Kimball ask SCO's side how long they need to analyze IBM's
production of code????

Why I'm asking (all wild speculation - especially until we see the transcript,
I'm just guessing semi-randomly)

Assuming you are right about your prediction of Kimball imposing some deadline
for SCO to identify the code, I think this will be the issue that controls the
schedule.

One of SCO's reasons for not identifying the code, is they need more time to
analyze IBM's production.

So I think Kimball might allow SCO at least as long as SCO wanted (in SCO's
proposed schedule) assuming they got the full IBM production on May 3rd (with
IBM's motion denied), and they provided answers on the last day of fact
discovery on SCO's schedule, i.e. about 6 months.

So let's say IBM produce on May 3rd + 45 days, which takes us towards late June

SCO get 6 months to analyze (which is what they would have got if their schedule
was accepted), which takes us to end of the year. Before final deadline for
identifying the code (taken from the idea in IBM's schedule)

Now we get 2-3 months discovery on defenses, which takes us to say March 2006.

Assume all the other expert-discovery and post-discovery events take about the
same time as in IBM'sor SCO's scheudle, that's another 7-8 months, which gives
us a trial in November or December 2006.


[ Reply to This | # ]

Why is IBM opposed to Sam Palmisano deposition.
Authored by: Anonymous on Friday, April 22 2005 @ 02:14 AM EDT
It seems IBM are fighting hard to keep Sam Palmisano away from SCO lawyers. Any
speculation as to why?

[ Reply to This | # ]

Reality Alert !
Authored by: dmarker on Friday, April 22 2005 @ 04:18 AM EDT

The *only* reason tSCOg want to drag the CEO of IBM to a court in Utah at their
beck and call, is to try to give some semblance of credibility to their
otherwise un(in)credible case.

There is no other serious purpose, period!.

tSCOg's lawyers believe they need every ounce of credibility they can scrape up
and appearing to have the power to order around the head of one of the biggest
computer companies in the world may, to them at least, give a big boost to the
dwindling cerdibility they still think they have, in the eyes of the IT world.

Doug Marker

[ Reply to This | # ]

Finding emails on the internet
Authored by: Anonymous on Friday, April 22 2005 @ 04:20 AM EDT
"SCO *did* say they had found a email from Palmisano on the internet about Linux, but that IBM had not produced a copy of it in production. SCO wanted to know why."
How exactly does one find emails on the internet? By snooping?

[ Reply to This | # ]

Dasani
Authored by: Anonymous on Friday, April 22 2005 @ 04:40 AM EDT
You're still drinking that in the US? It was withdrawn in the UK due to the fact that it was tap water and carcinogenic.

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Why they want to dispose the CEO
Authored by: Anonymous on Friday, April 22 2005 @ 07:43 AM EDT
I think the reason is one of jury tactics. They want to have a video or transcript of their lawyers asking him things that quite honestly that he likely has no knowledge of, and then use his inability to answer to imply he was being evasive. No doubt they will ask him questions in specific ways that he cannot answer that that by being unable to do so will imply this.

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I haven't seen...
Authored by: Anonymous on Friday, April 22 2005 @ 09:02 AM EDT
...Mr. Palmisano grandstanding on tech shows, publications and the like talking
about the case at all. As far as PR, I haven't really seen him out front in
regards to any facet of the case. SCO should have what they need from so many
already. The fact that you can find more contradictions on the internet alone
for SCO's position as opposed to the number available for IBM is ludicrous. SCO
has handled the case and their business with absolute absurdity and have no
credibility in my perception.

The lack of respect in reading sealed items in court is simply idiotic. SCO's
own CEO spouts off when he shouldn't have in the past. Now his own words are
used against SCO in court documents. They appear to be totally unprofessional.

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The Producers or Where in the World Is Darl McBride?
Authored by: Anonymous on Friday, April 22 2005 @ 09:14 AM EDT
I found this line interesting from Bob Minns piece:

"Eskovitz noted that IBM had asked to depose SCO's CEO, Darl McBride,
"and we intend to produce him. . . . I see no reason why IBM's CEO should
be treated differently." "

Isn't SCO still not producing what the've been asked to produce?("SCO
complains about the time it has taken to resolve discovery issues but overlooks
the fact that it has repeatedly filed overlength briefs and redundant motions
and that its own shortcomings in discovery necessitated two motions to compel,
resulted in two orders requiring it to comply with IBM's discovery requests and
triggered a stay of discovery." )


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How did IBM's support of Linux harm a Linux company?
Authored by: Anonymous on Friday, April 22 2005 @ 11:49 AM EDT
<i>"How did IBM's move to support Linux harm a Linux
company?"</i>

Maybe because they didn't choose their distribution over RedHat and SuSE? :)

I find it amusing that IBM and oldSCO were going down the Project Monterey
path as a stopgap to Linux in the enterprise, and then when a "Linux"

company buys oldSCO, the "Linux" company tries to complain about the
"damages" to the non-Linux acquisition because of Linux.

It's like two people watching a cart rolling down a hill towards a cliff. The
cart
owner turns to the other guy and says, "You see everything? It's all in the

open. Want to buy the cart?" The second person agrees to buy the cart, and

then gets upset when it goes over the cliff.

Of course, and I hate to say this. But should we really be surprised by any of
this? After all, this is the same group that bought DRDos from Novell just so
they could sue Microsoft.

We should have all seen the writing on the wall when they bought oldSCO.

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Epic Litigation!
Authored by: dmac on Friday, April 22 2005 @ 12:13 PM EDT
After watching this litigation ebb and flow on Groklaw since it's inception,
it's becomes more and more obvious that ultimate resoloution of this in the
courts could be generations away. Constant argueing and re-argueing of the same
things. Hearing after hearing after hearing with no real progress. What is the
trial date now? 2006 sometime. I remember looking forward to April 2005, the
initial date the trial was scheduled to begin.

If and when this case ever does see the light of a trial and maybe even a
judgement renderd, one way or the other, the battle will go on and the smoke and
confusion will persist in endless appeals until the money runs out.

I'm reminded of Dr. Edwin Armstrong the acknowledged inventor of Frequency
Modulation in radio. He fought a pitched legal battle over patents with, among
others, RCA for 20 years. As long as the bank accounts hold out, the lawyers
will continue to argue. Armstrong died broke. For a real legal chuckle, read the
first chapter of Dicken's "Bleak House" and the case of Jarndyce v.
Jarndyce. Several generations of lawyers prospered argueing over a single estate
for generations.

We all know who's pockets are deepest presently in this case. But, if some new
(old) backroom benefactor (who can guess?) should show up and recharge SCOX's
financal batteries again. Will the beat will go on. Just go Figure. Don't
believe for a minute M$ can afford to let SCOX go down in smoke if they can
avoid it. It is the only way they have found to try to get any handle on their
otherwise uncontrollable, unbeatable, unpurchasable nemesis--Linux.

dmac

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Discovery questions
Authored by: Matt G on Friday, April 22 2005 @ 12:35 PM EDT
Why hasn't IBM raised the argument that they already have produced 232 or so
copies of AIX and DYNIX?

What is SCO going to find with this latest discovery order that the previous
discovery already gave them?

Matt

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FT article on IP policy: "Deconstructing stupidity"
Authored by: Anonymous on Friday, April 22 2005 @ 01:13 PM EDT
Seen on /.

link

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Convicted by your conscious
Authored by: Anonymous on Friday, April 22 2005 @ 01:17 PM EDT
Amusingly, later on in Mr. Norman's Reply to Mr. Marriott's Reply to Mr. Norman's Reply to Mr. Marriott's arguments, that, Yes, perhaps SCO did know earlier, but what SCO *didn't* know was that IBM themselves (by way of the, now sealed, communications) believed they were violating the terms of the agreement. He tried to say that if IBM thought they were violating their license, yet knowingly carrying on, then IBM did something wrong.

Haha, that's rich! Suppose I walk into a grocery store and there is a plate of goodies with toothpicks in them. I eat one, then think to myself "Wait, should I have paid for that?" By this logic, I will be guilty of shoplifting even though I ask the nearest clerk and discover that the goodies were indeed complementary samples.

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Groklaw's Eyewitnesses Report From the Courtroom - It Went Well
Authored by: Fray on Friday, April 22 2005 @ 01:19 PM EDT
I also attended the hearing.

The deposition part was pretty boring. SCO presented a good case that Sam
Palmisano had unique information.
IBM claimed the information could be obtained from many other individuals and
named many. They want SCO at a minimum to depose other indivuals first and if
they have to talk to Sam to make it a 3 hour deposition instead of 7.

Then the amended complaint portion started. SCO presented six emails it
received "after" the date to amend proceedings had passed. When it
was IBM's turn to speak they started by telling the judge that three of the six
emails had been received before the deadline and gave an example of one being
delivered 3 months before (in November, on a CD, in a single box). Someone was
obviously wrong and it was looking a lot like it was the SCO attorneys.

The scheduling portion started and it went quick. Both attorneys spoke for
under a minute on the first chance. The judge then asked them if they really
had said everything they wanted to on the subject. He didn't want either of
them waking up in the night wishing they had said something more. Both
attorneys spoke again with IBM reiterating its position that they wanted a date
before discovery ended where the would know what code they had violated so they
could do discovery on it. SCO wanted no such thing and didn't think a new kind
of discovery phase should be invented.

Both figured that Magistrate Judge Wells order of the day before would extend
the schedule about 2 months. IBM wanted 9 additional months of discovery if SCO
was allowed to amend there complaint.

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Sam should use the Gates defense
Authored by: turambar386 on Friday, April 22 2005 @ 02:12 PM EDT
Remember these?

Boies: Is it fair to say that in October 1997 you were trying to get IBM to reduce its public rhetoric in support of Java?
Gates: I don't know what you mean "trying".
.....
Boies: That is "JDK 1.2 has JFC which we are going to be pissing on at every opportunity."
Gates: I don't know if he is referring to pissing on JDK 1.2 or pissing on JFC nor do I know what he specifically means by "pissing on".
.....
Boies: What non-Microsoft browsers were you concerned about in January 1996?
Gates: I don't know what you mean "concerned"

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SCO Group seeks to amend IBM suit a 3rd time
Authored by: Anonymous on Friday, April 22 2005 @ 02:59 PM EDT
SCO Group seeks to amend IBM suit a 3rd time

Utah's SCO Group, claiming it can show IBM copied 200,000 lines of its Unix code into the freely distributed Linux operating system, wants a federal judge to amend its lawsuit a third time.

Eskovitz noted that IBM had asked to depose SCO's CEO, Darl McBride, "and we intend to produce him. . . . I see no reason why IBM's CEO should be treated differently."

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Groklaw's Eyewitnesses Report From the Courtroom - It Went Well
Authored by: DustDevil on Friday, April 22 2005 @ 03:20 PM EDT
Was there any feel from the judge on how long he's likely to take before issuing
a ruling?

---
All comments are my own, not that of my employer

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    What do judges know?
    Authored by: Anonymous on Friday, April 22 2005 @ 04:04 PM EDT
    This might just be me being silly but GROKLAW had given us a good overview of
    the SCO/IBM case. Now the judges in the case presumably have to act as if the
    only knowledge they have of the case is that presented to the court. Of course
    they will also have a good knowledge of what is happening outside the courtroom
    but I assume they will not mention this unless one of the parties is doing
    something improper to influence the case.

    My thought is, if this is so, how much do the judges actually know about what
    they will eventually be required to make judgement on. SCO have presented the
    court with certain information some of which they seem to have later withdrawn.
    On the basis of what they 'officially' know, do the judges actually have much
    idea of what the case is about?

    Alan(UK)

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    Groklaw's Eyewitnesses Report From the Courtroom - It Went Well
    Authored by: Anonymous on Friday, April 22 2005 @ 04:25 PM EDT
    My guess is that is when SCO will admit they have basicly nothing to fight with.
    THe case will be over and McBride and gang will walk away from SCO with millions
    in bonuses an such, and promptly retire. Nice scam no matter how it shakes out.

    >>I'm confident, especially from Judge Kimball's remarks >>on
    denying the dispositive motions, that he will require >>SCO to state, with
    specificity, what the allegedly >>infringing material is before the end of
    discovery.

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    Groklaw's Eyewitnesses Report From the Courtroom - It Went Well
    Authored by: Anonymous on Friday, April 22 2005 @ 06:22 PM EDT
    Speaking of Trademark violations,

    "Linux" is tradmarked. If Linus so desired, he could make it
    impossible for LinuxBusinessNews to exist.

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    BusinessWeek comments on DiDio's flawed survey, DiDio comments on SCO's lack of evidence
    Authored by: Anonymous on Friday, April 22 2005 @ 07:39 PM EDT
    http://www.businessweek.com/the_thread/techbeat/archives/2005/04/the_truth_about
    _1.html

    DiDio is one of the analysts who seems to have taken sides in the holy war over
    Windows and Linux. She published a “White Paper” on the topic last year that was
    sponsored by Microsoft and posted prominently on the software giant’s Web site.
    Also, DiDio got caught up in the famous SCO case. When SCO first made its claims
    that IBM had misappropriated some of its code and handed it over to the Linux
    community, SCO showed samples to several analysts to prove its copyrights were
    being infringed. DiDio, a former journalist and not a programmer, was one of
    them. She reported that SCO’s claims seemed justified. She told me: “It appeared
    to be a direct cut and paste right down to the developers’ notes.” A couple of
    months ago, the judge in the case wrote that he had seen “an astonishing lack of
    evidence” backing up SCO’s claims. On the phone, I asked DiDio’s reaction to the
    judge’s statement. She said: “I can’t reconcile it. I want to see what’s
    presented in court.”

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    Groklaw's Eyewitnesses Report From the Courtroom - It Went Well
    Authored by: montana on Friday, April 22 2005 @ 08:30 PM EDT
    I stand corrected. I tried by going through SCOX - Quote page rather than
    through a bookmark.

    ---
    Oro Y Plata

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    What comes later
    Authored by: sadgeek on Sunday, April 24 2005 @ 10:30 AM EDT
    Once SCO lose or abandon their case there will almost certainly be further legal
    action against those in charge. Investors may well feel deceived by the
    information that SCO released and IBM may want to expose any links to supporters
    of SCO who were competitors of IBM.

    It seems to me that the information Darl etc. had at different stages of the
    case will be crucial to any prosecution or liability of individuals and that the
    advice from SCOs lawyers would be paticularily important. The lawyers would have
    been acting for SCO not the individual. Would the content of these
    communications be priviliged?

    would the situation change if SCO had changed ownership and wanted to
    cooperate?

    Related to this, if I as a private indivudual start legal action against someone
    despite my legal advisors opinion that I would probably lose then that is no
    more than my own stupidity but if I am in charge of a public company and I do
    the same and at the same time do not inform investors of the legal opinion then
    I am surely quilty of misleading investors to manipulate the share price and
    putting my own interests before shareholders.

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