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Transcript of the October 7, 2005 Hearing & SCO's Dual-Track Objection/Motion to Compel
Sunday, November 06 2005 @ 02:17 PM EST

Here is the transcript [PDF] of the October 7, 2005 discovery hearing before Judge Brooke Wells. To follow the arguments, you'll need Judge Wells' prior orders:

It's memorable in that we find an IBM mistake. I think that is a first. When talking about the development process for the Linux kernel, David Marriott says that it is done in public, which is true, but he also says it's public domain. It is not. The Linux kernel is brought to you under the GPL, which sits on top of copyright. Everything is done in the public eye, but the code is owned and licensed by the individual programmers, as well as being under copyright plus GPL v.2 by Linus on the collective work. I am sure Mr. Marriott knows that and merely mispoke, but others reading the transcript may be confused, which is why I am highlighting it here. You see Microsoft FUD sometimes alleging that no one knows who writes Linux, but in fact you can find the authors publicly on the Internet, and they own their work. That is why SCO is in GPL trouble, since IBM is one of the authors of some code in the kernel.

IBM makes a strong argument regarding the discovery protocol Judge Wells herself set forth, beginning on page 44, namely that SCO was told by the judge to answer IBM's interrogatory 13. In fact, they were ordered to do so twice. They still haven't answered that question: what in Linux they have rights to and exactly what IBM has allegedly done wrong. That was supposed to happen first, then IBM responds with discovery materials, as Mr. Marriott reminds the court:

Again, the Court's protocol was quite clear. SCO produces. IBM then goes from there. We still don't have a detailed response to our argument to Article 13.

What we have produced rather than saying, forget it. We're giving you nothing because we don't have a response to your Article 13, we have gone out in so far as we can determine is a bound for a reasonable search and produced files from -- we've produced documents from the files of people in linus [sic] Technology Center. They deposed some of these people. They have the logs that say it. There is no mystery about it.

Your Honor, in addition, we do believe -- and I won't burden the Court with this point, these arguments have been made before, and I think they stand true today -- there's no reason for the production now given the protocol Your Honor has set out for this information. We have produced the contributions that are available. To the extent there were nonpublic things that really didn't qualify as contributions but were failed effort, they have been made available. We have produced, you know, the equivalent of billions of lines and literally hundreds of millions of lines of AIX and Dynix code, all of the development information from that information.

What you don't see, Your Honor, in anything before the Court today is any use of that information. What you don't see is SCO saying, you know, they produced all of this. Here's now what we know. We can now define and focus the issues.

We have produced millions of pages of paper that apparently are of absolutely no value to SCO. At a minimum, they are not moving this toward a solution. The closer we get to the close of the case, the more questions we have, the more discovery apparently is needed.

The judge, who apparently forgot about her protocol, then asks SCO, on page 58, about IBM's article 13, asking them, "why has that not been complied with?" SCO gives the unbelievable answer that they thought they didn't have to comply until the interim and final deadline for discovery.

What does it all mean? The thing is this: in discovery, you want the other side blindsided. The less they know what you are looking for, the more likely they are to turn over damaging materials. So if you don't care about playing fair and think the end justifies the means, you try to avoid playing your real hand for as long as you can get away with it. Judge Wells asks IBM if they have any comment. They say no. This tells me that IBM has factored in the SCO game, they aren't worried about it, and they have their own strategy at work. But raising the issue now means that they are drawing a line in the sand from here on. If SCO wants further discovery, they will have to pony up first.

As for SCO's performance at the hearing, they just can't take a hint. Judge Wells asks them, when their lawyer makes the mistake of complaining that IBM should have asked the court for clarification of her orders, if they are also responsible to do so, and the only possible answer to that question is yes. She next expresses that she isn't happy that, when the parties found themselves at odds over how to interpret her orders, SCO didn't ask the court for clarification. I take that to mean that all the motions annoy her, when a simple phone call could have saved everyone time, effort and money.

Why didn't they ask for clarification? I could answer that question, I believe, according to my best guess. If they had done so, they would have missed the opportunity to trash talk IBM in their motion papers, SEC filings, letters to the Red Hat judge, and the public. Had they asked for clarification, that would have blocked them and their journo pals from portraying IBM as a wrongdoer and themselves as getting somewhere in the litigation.

Just review, for one quick example, what SCO wrote in the most recent letter to the Red Hat judge, and you'll see what I mean. I'll be watching closely to see what they tell her in the next letter.

SCO's attorney continues to ignore the judge's hints and proceeds to continue to tell her what her orders meant. She sets them straight when she issues her order. They misinterpreted her order, she tells them, and IBM had it right.

SCO clearly is very unhappy with Judge Wells' order and doesn't accept it. They have filed with the District Court an Objection to the Magistrate Court's order of October 12, 2005 [PDF] and a Memorandum in Support [PDF].

Sigh. This is still about SCO wanting nonpublic Linux development materials. They have also filed a Motion to Compel Discovery [PDF] and the supporting memorandum [PDF], officially asking for the exact same thing. So SCO is asking for the same relief in the Objection and in the Motion to Compel. They acknowledge that, but they say they are doing it because of the "impending end of fact discovery and the overlap of the issues in the two courts."

The SCO documents fairly scream rush and panic that fact discovery is almost done, and they apparently don't have what they need to win. So, yet another Motion to Compel from SCO, and a double dip to be on the safe side. There have been so many SCO Motions to Compel Discovery I guess we'd better start numbering them. This one is #537 on the Docket.

In the Memorandum, they say that they had sought in their denied motion Linux development materials they believed the Court had ordered IBM to produce and they point out that they also argued that if she had not so ordered, they had asked that the court do so now. Judge Wells denied their motion, saying the court had not earlier ordered IBM to produce the requested materials, but, according to SCO, she didn't address SCO's argument that the Court should now order IBM to produce them. "SCO asks this Court to issue such an order."

I'm sure Judge Wells will be thrilled. Judges simply love it when you ask another judge to simultaneously decide the same issue they are being asked to decide. Not. Judge Kimball presumably gets final say anyhow, so it's hard for me to understand why they are asking Judge Wells to rule on the motion too. Maybe it's the "confuse the judges" defense, so you can appeal. IBM, when it didn't like a Wells order asked her to reconsider, and she did. SCO justs comes out blasting with both barrels. Gentlemanly graciousness is not what one expects from SCO.

They ask for things like "all documents concerning IBM's contributions to any development tree for Linux." Oh, and they'd like the development trees too. Oh, and throw in all documents about all IBM contributions to Linux 2.7, including development work. And "all document[s] concerning IBM's contributions to" ten specific Linux projects, including 'development work,' and 'all documents concerning contributions to Linux' though several additional specific Linux projects." Delay, anyone? At a minimum, they will have to pony up first. They have filed their interim list, and while it's sealed, nothing on the list seems new, but it's not possible to be certain. IBM's response to their motion should be instructive.

SCO explains on page 4 that what they mean is materials such as the "programmer's notes, design documents, white papers, comments, and interim versions of code that IBM's Linux developers generated in developing and making contributions of source code to Linux."

Remember those phrases? Yes, in connection with AIX and Dynix, Judge Wells ordered such materials produced, with certain limitations. SCO tried to shortcut, by claiming that her order must have meant that Linux materials also should be produced the same way. Then they attacked IBM for "refusing" to turn over what they alleged Wells had ordered. Judge Wells clearly told them at the hearing that her order didn't so order. So now they are forced to come back, cup in hand, asking for the materials they didn't ask for before but claimed Wells had ordered anyway. It's like the Night of the Living Dead with these people. They just keep on coming. They hear nothing anyone else says, as onward they press toward what they want.

You'll notice two new names. On SCO's side, Sashi Bach is listed. We haven't seen her before, I don't believe. If you go to the Boies Schiller website, click on lawyer profiles and then the letter B, and then on her name, you will find that her area of expertise is "complex commercial litigation and arbitration, including cases involving technology and intellectual property, class actions, antitrust, health care, power generation, and insurance." Don't all go at once, or they'll probably panic and call a press conference and say they've been attacked. They aren't accustomed to crowds, and they're not techs, so they won't know the difference between a DoS attack and just a lot of people trying to access at once. Bach's an associate, not a partner. They list her cases, including representing a "technology company in an ongoing billion dollar suit over use of Unix source code," so I guess she is here to stay.

At IBM's table, they list Herman Hoyh, but he isn't listed as a Cravath attorney and I couldn't find him on IBM's site or on Google. I'm thinking he's either new or a paralegal. Sometimes in litigation, the paras sit at the table too, particularly in complex cases, where they are finding materials on a laptop, so the lawyers don't have to look for things. The other possibility is that the transcript misspells the name, and he is an attorney. In other words, I don't know.


  


Transcript of the October 7, 2005 Hearing & SCO's Dual-Track Objection/Motion to Compel | 167 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: AntiFUD on Sunday, November 06 2005 @ 02:31 PM EST

There is an extra /net in the url for the 'transcript' link in the first line of
this article.


---
IANAL - But IAAAMotFSF(not related to Daniel Wallace) - Free to Fight FUD

[ Reply to This | # ]

Transcript of the October 7, 2005 Hearing & SCO's Dual-Track Objection/Motion to Compel
Authored by: Anonymous on Sunday, November 06 2005 @ 02:34 PM EST
Can't get the link to the PDF of the transcript work.

[ Reply to This | # ]

OT - Off-topic hereunder please
Authored by: AntiFUD on Sunday, November 06 2005 @ 02:35 PM EST

Please make links clicky if you can! Sorry the instructions are only currently
available in English on the Post a Comment page.


---
IANAL - But IAAAMotFSF(not related to Daniel Wallace) - Free to Fight FUD

[ Reply to This | # ]

Transcript of the October 7, 2005 Hearing & SCO's Dual-Track Objection/Motion to Compel
Authored by: Anonymous on Sunday, November 06 2005 @ 02:40 PM EST
Could Mr. "Hoyh" be Herman J. Hoying of Cravath, Swaine and Moore?

[ Reply to This | # ]

When this renewed, renewed, renewed motion will be considered?
Authored by: Anonymous on Sunday, November 06 2005 @ 02:42 PM EST
Any ideas?

Anyway, I don't see how the judge are going to avoid yet another
delay as SCO will then have a perfect excuse to scream "that's not
fair!" in front of the appeal court.

[ Reply to This | # ]

"It's like the Night of the Living Dead..."
Authored by: PSaltyDS on Sunday, November 06 2005 @ 02:56 PM EST
My teenage boys are into zombie movies. I've seen enough of them now to be tickled by the image of tSOG execs and lawyers wandering the halls of the courthouse moaning:

"Brains, Bra... uh, I mean, Code, Cooode... COOOOODE!"

---

"Any technology distinguishable from magic is insuficiently advanced." - Geek's Corrolary to Clarke's Law

[ Reply to This | # ]

SCO's Dual-Track Objection/Motion to Compel
Authored by: rsteinmetz70112 on Sunday, November 06 2005 @ 03:04 PM EST
It seems pretty clear that SCOG asked for these documents, IBM objected and the
Judge ordered something less than SCOG wanted. That seems perfectly normal, the
same thing happened with regard to AIX and Dynix but to a lesser extent. SCOG
seems to be ignoring the fact that they didn't get everything they wanted.

It seems to me the Judge was originally swayed by the argument that much of the
Linux development takes place publicly. It also seems to me that Judge Wells
expected SCOG to focus their demands as they got additional discovery and
sharpened their case.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

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

[ Reply to This | # ]

IBM-540, Memorandum in Support
Authored by: Chris Lingard on Sunday, November 06 2005 @ 03:14 PM EST

Here is an extract from IBM-540, Memorandum in Support, the rest of it is just as disgusting. Either they just do not understand how Linux was developed, or they are deliberately misleading the judge; and hopefully for them, later a jury

SCO seeks materials such as the programmer's notes, design notes, white papers, comments and interim versions of the code that IBM's Linux developers generated in making contributions of source code to Linux. Such materials are essential to SCO's analysis of the technology (including code methods and concepts), relied on be those programmers when they developed those contributions. In proving its contract, copyright, and tort claims, SCO will demonstrate that IBM improperly relied on SCO's technology in contribution to Linux.

If IBM's developers are doing this work, what is the connection with SCO's alleged franchise with an ancient UNIX system. Their predecessors, the old SCO were trying to get any technology company to develop clean code to advance Monterey; this was in 1999. Their predecessors made no claim about AIX or Dynix 5 years after they might have bought a franchise. And suddenly, 3 years later, their ancient system edits itself so that it is right up to date.

I now think that they have taken Linux code, and put it into their system. They have advanced the stuff they sell. They just want IBM to show in court the code that SCO have also copied into their ancient UNIX. Then on to a jury trial, where they are on home ground.

[ Reply to This | # ]

Comply, on the final discovery deadline
Authored by: AllParadox on Sunday, November 06 2005 @ 03:15 PM EST
I am routinely shocked by statements from attorneys for "The SCO
Group".

My law school was a very good Midwest school. Not Harvard or Yale, but good
enough that I was willing to go toe-to-toe with any attorney, any time,
anywhere, when the facts would support at least a possibility of my client's
success.

In my law school, they mainly taught us to "think like lawyers", and
not to memorize "Black Letter Law". We also had to memorize the
"Black Letter Law" of the Federal Rules of Civil Procedure, so that we
could apply them with less than one second of deliberation. Every competent law
school does the same thing.

I still see this one in my sleep, and I have not practiced law for the last
decade:

Fed.R.Civ.Pro.
Rule 34. Production of Documents and Things and Entry Upon Land for Inspection
and Other Purposes

(a) Scope.
Any party may serve on any other party a request (1) to produce and permit the
party making the request, or someone acting on the requestor's behalf, to
inspect and copy, any designated documents (including writings, drawings,
graphs, charts, photographs, phonorecords, and other data compilations from
which information can be obtained, translated, if necessary, by the respondent
through detection devices into reasonably usable form), or to inspect and copy,
test, or sample any tangible things which constitute or contain matters within
the scope of Rule 26(b) and which are in the possession, custody or control of
the party upon whom the request is served; or (2) to permit entry upon
designated land or other property in the possession or control of the party upon
whom the request is served for the purpose of inspection and measuring,
surveying, photographing, testing, or sampling the property or any designated
object or operation thereon, within the scope of Rule 26(b).

(b) Procedure.
The request shall set forth, either by individual item or by category, the items
to be inspected, and describe each with reasonable particularity. The request
shall specify a reasonable time, place, and manner of making the inspection and
performing the related acts. Without leave of court or written stipulation, a
request may not be served before the time specified in Rule 26(d).

The party upon whom the request is served shall serve a written response within
30 days after the service of the request. A shorter or longer time may be
directed by the court or, in the absence of such an order, agreed to in writing
by the parties, subject to Rule 29. The response shall state, with respect to
each item or category, that inspection and related activities will be permitted
as requested, unless the request is objected to, in which event the reasons for
the objection shall be stated. If objection is made to part of an item or
category, the part shall be specified and inspection permitted of the remaining
parts. The party submitting the request may move for an order under Rule 37(a)
with respect to any objection to or other failure to respond to the request or
any part thereof, or any failure to permit inspection as requested.

A party who produces documents for inspection shall produce them as they are
kept in the usual course of business or shall organize and label them to
correspond with the categories in the request.

____________________________

They think they should produce the documents at the end of discovery?

These people owe a lot of folks an apology for that remark.

They should start with their law schools, then their local Bar association.

Sorry for the rant. I personally see this as a direct insult to the judge and
the court, as well as the professionals that tried to educate these attorneys.

Rarely, some judges deserve it: the Honorable Wells does not deserve it, and the
dignity of our courts never does.

---
PJ deletes insult posts, not differences of opinion.

AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.

[ Reply to This | # ]

"Linux 2.7" ?
Authored by: ak on Sunday, November 06 2005 @ 03:18 PM EST
What are they talking about? "Linux 2.7" does not even exist...

[ Reply to This | # ]

Programmer's Notes?
Authored by: Anonymous on Sunday, November 06 2005 @ 04:01 PM EST
How many real programmers keep real notes to their current programming project?
I don't --- I am usually too focused and caught up to take notes and my source
file are the notes...

[ Reply to This | # ]

Transcript of the October 7, 2005 Hearing & SCO's Dual-Track Objection/Motion to Compel
Authored by: geoff lane on Sunday, November 06 2005 @ 04:04 PM EST
I thought that there were rules against using discovery to conduct random "fishing expeditions"?

TSG have no idea what they are looking for and it must be obvious to the judges by now that what they have is something technically called a "dud" aka "a waste of court time."

I hope that the IBM legal time are well on their way to preparing a repost of epic proportions now they finally have the list of 217 offending items.

---
I'm not a Windows user, consequently I'm not
afraid of receiving email from total strangers.

[ Reply to This | # ]

Transcript of the October 7, 2005 Hearing & SCO's Dual-Track Objection/Motion to Compel
Authored by: rm6990 on Sunday, November 06 2005 @ 04:18 PM EST
Hey all. Does anyone know if IBM filed their list of things they believe SCO was
infringing, as both parties were required to do?

---
My Blog : http://members.shaw.ca/ryan_mcgregor

[ Reply to This | # ]

"public domain" vs. "Public Domain"
Authored by: Anonymous on Sunday, November 06 2005 @ 05:27 PM EST
PJ,

the IBM lawyers certainly made mistakes before, e.g. on the question whether one
of the counterclaims was compulsory or permissive (IIRC).

But in this case, I think the IBM lawyer is correct - when lowercase characters
are used. (Difficult in an oral hearing:-)

The notion "Public Domain" (uppercase) has a fixed meaning which
describes a lack of copyright ownership claims.

The words "it is in the public domain" might simply mean
"publicly available/accessible", which is true for the Linux kernel.
And that's quite obviously (from context) what the lawyer meant.

By the way, you make a related mistake yourself when you claim that the Linux
kernel isn't "proprietary". This word means "protected by
law", in this case "protected by copyright law", so the Linux
kernel *is* proprietary. "Proprietary" is the opposite of "Public
Domain", it isn't the opposite of "Open Source". The opposite of
"Open Source" would simply be "Closed Source".

[ Reply to This | # ]

"they're not techs..."
Authored by: tiger99 on Sunday, November 06 2005 @ 05:30 PM EST
Indeed, and that may be why BSF seem to have no understanding at all of how Linux is developed.

It also explains their useless, totally Flash web site. I think they need to read some of Jacob Nielsen's books and articles!

[ Reply to This | # ]

Document naming format at Groklaw
Authored by: Anonymous on Monday, November 07 2005 @ 12:10 AM EST

Hey, PJ,

How about adopting a date-based format for documents?

Here is an example of how I'd suggest the change should happen:
Instead of http://www.groklaw.net/p df/Hearing-Oct7-2005.pdf, it would be 20051007-Hearing.pdf in the generic format yyyymmdd-X-text.xyz .

This date format allows files to listed in order, naturally, or to be searched for rationally;
The year always ascends, as does the month, followed by the day;
The X qualifier is a number to differentiate between several documents on the same day;
The text ending allows differentiation between several documents;
xyz is the file ending, e.g. PDF, TXT, RTF, etc.

It does make sense that there is a number-rational system in place.

For consideration,
"Brindafella"

[ Reply to This | # ]

Transcript of the October 7, 2005 Hearing & SCO's Dual-Track Objection/Motion to Compel
Authored by: Yossarian on Monday, November 07 2005 @ 03:44 PM EST
>Bach's an associate, not a partner.

Why was she added to the case?
I can think about several answers:
1) Too much work, get more lawyers invloved.
2) The ship is going to sink, and some personal sanctions
against lawyers are possible, so the partners are
looking for a good scape goat.
3) She is a actually better than the partners, even though
she is just associate, and they need her to save the day.
4)...

Any guesses what the case might be?

[ Reply to This | # ]

Non public Linux materials...
Authored by: pooky on Tuesday, November 08 2005 @ 11:09 AM EST
Unbeliavable. In order for any materials IBM has regarding Linux to be
"non-public", they have to have been not accepted for inclusion in the
kernel. That being the case, how is any of it relevant to SCOs case since by
definition IT ISN'T IN LINUX?

When oh when will the court realize this and put a stop to SCO's games?

-pooky

---
Many Bothans died to bring us this information.

[ Reply to This | # ]

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