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SCO's Appendix A to its Reply Memo on Objections
Saturday, September 09 2006 @ 11:40 AM EDT

First, I need to apologize. We were offline a while, because Ibiblio was switching over to a new home for its servers, and I forgot to tell you that it meant we'd be flickering on and off for a while. As it turned out we were mainly off, and it was too late to explain. I'm sorry I worried you, and thank you all for all the emails of concern. We're fine.

As for SCO, here's the text of their Appendix A, attached to their Reply Memorandum in Support of SCO's Objections to Magistrate Judge Brooke Wells' Order of June 28, 2006, where they list all the times, in their mind, that they were *not* told to provide version, line, and file when it came to methods and concepts. It's the only piece of this filing that we have unsealed, but I think it's enough. You can pretty clearly see what their arguments must be, so feel free to refute anything that doesn't match what you know.

For context, here's IBM's Redacted Memorandum in Opposition and SCO's Objections. Appendix A is part of SCO's answer or "proof" that what IBM wrote in its memo in opposition is inaccurate or wrong. I was going to link for you so you could follow along, but being offline meant I couldn't get to it. I'll try to do it later.

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

APPENDIX A

APPENDIX A

6/13/2003 - IBM serves its First Set of Interrogatories on SCO. These interrogatories seek information about IBM's improper contributions to Linux, but do not request SCO to provide version, file, and line of code, and do not address how to identify improperly disclosed methods and concepts where lines of code were not disclosed.

8/4/2003 SCO serves its initial response to IBM's First Set of Interrogatories.

9/16/2003 IBM serves its Second Set of interrogatories on SCO. These interrogatories seek information about the material in Linux to which SCO claims rights, and relate to SCO's Linux copyright infringement claims and/or IBM's Tenth Counterclaim. The interrogatories do not request SCO to provide version, file, and line of code, and do not address how to identify improperly disclosed methods and concepts where lines of code were not disclosed.

10/23/2003 SCO serves a supplemental response to IBM's First Set of Interrogatories.

10/23/2003 SCO serves its response to IBM's Second Set of Interrogatories.

12/12/2003 The Magistrate Court directs SCO to answer interrogatories in IBM's First and Second Sets of Interrogatories. The Magistrate Court Order does not mention any requirement that SCO identify misused material by version, file and line of code, much less address how SCO should identify improperly disclosed methods and concepts where lines of code were not disclosed.

1/12/2004 Pursuant to the December 12, 2003 Magistrate Court Order, SCO serves a supplemental response to IBM's First and Second Set of Interrogatories.

1/15/2004 Pursuant to the December 12, 2003 Magistrate Court Order, SCO serves its Revised Supplemental Response to Defendant's First and Second Set of Interrogatories.

3/3/2004 In response to motions to compel from both SCO and IBM, the Magistrate Court orders both parties to respond to pending interrogatories. This Order does not mention any requirement that SCO identify misused material by version, file and line of code, much less address how SCO should identify improperly disclosed methods and concepts where lines of code were not disclosed. In this order, the Magistrate Court recognizes that SCO made "good faith efforts to comply with the Court's prior order ...." As to IBM, the Magistrate Court finds that IBM had failed to provide relevant and responsive

2

discovery to SCO, and orders IBM (at 4-6) to provide the approximately 232 releases of AIX and Dynix; all non-public contributions it had made to Linux; materials and documents generated by, and in possession of employees who have been and that are currently involved in the Linux project; further interrogatory responses; and proper identification of 1000 of the most important prospective trial witnesses.

5/18/2004 IBM files a motion for summary judgment, which was ultimately denied as premature since IBM had not provided essential discovery to SCO.

1/18/2005 In response to two motions to compel brought by SCO, the Magistrate Court agrees with SCO that proper discovery from IBM is essential to the fair adjudication of SCO's claims, and orders IBM to produce additional discovery. The Magistrate Court further recognizes that this will necessitate an adjustment to the pretrial deadlines and trial schedule, which ultimately leads to the July 2005 scheduling order at issue here.

2/9/2005 This Court denies all of IBM's motions for summary judgment, observing (at 11): "[T]he Court agrees with SCO that granting summary judgment would be premature given that SCO -- at the time the instant motion was briefed -- had not obtained from IBM the AIX and Dynix code that SCO had been requesting." The Court further notes (at 16) that "complete discovery is necessary prior to the just resolution of any claim."

3/25-4/1/2005 Both SCO and IBM submitted briefs in support of their proposed scheduling orders. In its proposed scheduling order, IBM asked the Court to include the requirement, hitherto absent, that "allegedly misused material must be identified by version, file, and line of code."

7/01/2005 This Court issues an Order setting forth new pretrial deadlines and a new trial schedule. The Order required each party "to identify with specificity all allegedly misused materials." This Order does not mention any requirement that SCO identify misused material by version, file and line of code, much less address how SCO should identify improperly disclosed methods and concepts where lines of code were not disclosed. Indeed, the Court rejected language requested by IBM in its proposed scheduling order that would have imposed such a requirement.

10/28/2005 Pursuant to the July 2005 Order, SCO serves its Interim Disclosures.

12/5/2005 IBM informs SCO -- for the first time -- of its interpretation of SCO's discovery obligations, which goes substantially beyond the plain language of the court orders and interrogatory requests. IBM notifies SCO that unless SCO complies with IBM's interpretation of its obligations, "IBM intends to ask the Court to preclude SCO from

3

pursuing any claims regarding allegedly misused material not properly disclosed on or before December 22, 2005."

12/22/2005 Pursuant to the July 2005 Scheduling Order, SCO specifically identified over two hundred instances in which IBM had misused proprietary and confidential information from its UNIX-derived operating systems, AIX and Dynix, for the widely publicized purpose of commercially hardening Linux. For each item, SCO identified who at IBM made the improper disclosure, how and when the disclosure was made, and what proprietary and confidential information was disclosed. About a third of IBM's improper discosures are of lines of source code, and about two-thirds are disclosures of methods and concepts without lines of source code. Where IBM's wrongful disclosure to Linux included lines of source code, SCO identified those lines of source code disclosed by IBM. Where IBM's wrongful contribution to Linux contained methods and concepts without lines of source code, SCO identified the method or concept that was disclosed by IBM. This specificity complied with the July 2005 Order, with the Magistrate Court orders, and with IBM's interrogatories.

2/15/2006 IBM serves on SCO Interrogatory 23, which seeking anew some of the same information that it contends it had already requested in earlier interrogatories -- suggesting that, before filing its Motion to Limit, IBM also did not believe SCO had been previously required to produce that information.

3/16/2006 IBM withdrew Interrogatory 23, noting that it is "is confusing in any case." (James Exh. 6) This concession illustrates that this area of discovery requests and orders has never been so clearly set forth as to meet the legal standard for a severe sanction.

4


  


SCO's Appendix A to its Reply Memo on Objections | 142 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Glad to see you're back -- Interesting what's missing from this
Authored by: Anonymous on Saturday, September 09 2006 @ 11:56 AM EDT
"For each item, SCO identified who at IBM made the improper disclosure, how
and when the disclosure was made, and what proprietary and confidential
information was disclosed."

How about identifying what was improper about the disclosure?
How about identifying how and why SCO claims rights to the disclosed
information?
How about citing the specific contract clause that prohibits IBM from making the
disclosure, and showing how that contract is binding between SCO and IBM?
etc.

[ Reply to This | # ]

Corrections here please
Authored by: Arthur Marsh on Saturday, September 09 2006 @ 11:57 AM EDT
Please post corrections to this article in this thread.

---
http://www.unix-systems.org/what_is_unix.html

[ Reply to This | # ]

Off Topic
Authored by: Arthur Marsh on Saturday, September 09 2006 @ 11:59 AM EDT
Please post off-topic comments with clickable links where possible below this
thread.

---
http://www.unix-systems.org/what_is_unix.html

[ Reply to This | # ]

Nice to see Groklaw is back :)
Authored by: SilverWave on Saturday, September 09 2006 @ 01:24 PM EDT
Welcome back PJ :)

I knew it would be sorted...
But kept hitting the rss feed every 15min out of habit :|

---
GPLv3: The Manufacturer and User receive the same rights!

If the Manufacturer can run an altered version of the sw on hw so can the user.
fsfe Bangalore-rms

[ Reply to This | # ]

Waitaminnit is this a three year olds argument?
Authored by: mobrien_12 on Saturday, September 09 2006 @ 01:28 PM EDT
"where they list all the times, in their mind, that they were *not* told to
provide version, line, and file when it came to methods and concepts."

This sounds like what a three year old would say when disobeying his/her mother.
"Mommy you told me twenty times to behave but you didn't tell me fourty
other times."

Seriously, is this what it boils down to?

[ Reply to This | # ]

SCO's Spin
Authored by: Anonymous on Saturday, September 09 2006 @ 02:13 PM EDT
So this is what BIFF has been working on for the past month. Reading every inch
of the case to find any time they were not specifically instructed to do
something to pretend that this takes precedence over what they were specifically
instructed to do.

I suggest it is biff because this is the spin we are used to from
him/her/whatever. In SCO talk, if IBM is denied without prejudice it becomes
'the Judge denied'. If IBM offers source code it becomes 'the Judge ordered'.
Both technically correct but spun to mean something different. Deliberately
ignoring, blatently ignoring, plain straightforward instruction to follow a
particular course. And doing it knowing that all the observers know they are
doing it. But still they put on the face, the incredibly cheribic face, to claim
that they didn't know that they were expected to do that. "Why, even the
Judge acknowledged our good faith effort to produce our discovery despite IBM's
continued intransigence".

Its what we all expected, its what we said we expected, its what SCO read on
Groklaw, knowing we expected no less than the supreme lie - SCO delivers.

At least Darl is consistent. He said they wouldn't tell until they got before a
jury, and by gum they haven't.

Pardon any speeling mistakes. Its now 4.12 am and I should be inbed.

[ Reply to This | # ]

SCO's Appendix A to its Reply Memo on Objections
Authored by: alansz on Saturday, September 09 2006 @ 02:54 PM EDT
In this Appendix A of its Reply memo, SCO says:

6/13/2003 - IBM serves its First Set of Interrogatories on SCO. These interrogatories seek information about IBM's improper contributions to Linux, but do not request SCO to provide version, file, and line of code, and do not address how to identify improperly disclosed methods and concepts where lines of code were not disclosed.

In Appendix A of IBM's Opposition memo, IBM says:

6/13/2003 - IBM serves interrogatory asking SCO to "identify, with specificity (by product, file, and line of code, where appropriate)...any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused (IBM's First Set of Interogs No. 1)

I don't see how these statements can be squared. (Of course, SCO's statement that IBM sought information about "its improper contributions" is trivially specious, as what IBM sought was information about the allegations SCO was making, but let's set that aside).

Are they saying that the alleged improper contributions to Linux somehow don't fall under the classification of misusing confidential/proprietary information, and therefore IBM didn't ask for specificity?

This is one example of many in those two appendices that are in direct conflict over facts (that are easily ascertained by reading the interrogatories, but I couldn't find those on Groklaw quickly)

[ Reply to This | # ]

SCO lies on the record?
Authored by: Anonymous on Saturday, September 09 2006 @ 03:28 PM EDT
OK, I've gotten used to SCO spin doctoring, half-truths, and misrepresentations, but this appendix contains outright lies. These can't be explained away by claiming miscommunication or "forgetting" to check their understanding with the court. How can they justify this level of contempt for the proceedings?

First example, according to SCO:

6/13/2003 - IBM serves its First Set of Interrogatories on SCO. These interrogatories seek information about IBM's improper contributions to Linux, but do not request SCO to provide version, file, and line of code, and do not address how to identify improperly disclosed methods and concepts where lines of code were not disclosed.
This one is blatent. From IBM's First Set of Interrogatories on SCO:
INTERROGATORY NO. 1: Please identify, with specificity (by product, file and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused, including but not limited to as alleged in � 105 of the Complaint.
Second:
9/16/2003 IBM serves its Second Set of interrogatories on SCO. These interrogatories seek information about the material in Linux to which SCO claims rights, and relate to SCO's Linux copyright infringement claims and/or IBM's Tenth Counterclaim. The interrogatories do not request SCO to provide version, file, and line of code, and do not address how to identify improperly disclosed methods and concepts where lines of code were not disclosed.
This one is equally blatent. From IBM's Second Set of Interrogatories on SCO:
INTERROGATORY NO. 12: Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.
Third:
12/12/2003 The Magistrate Court directs SCO to answer interrogatories in IBM's First and Second Sets of Interrogatories. The Magistrate Court Order does not mention any requirement that SCO identify misused material by version, file and line of code, much less address how SCO should identify improperly disclosed methods and concepts where lines of code were not disclosed.
Technically true, but patently false. This order incorporates the language from the interrogatories by reference. From Judge Wells' Order granting IBM's Motions to Compel:
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.

Those are just the first three I checked. I'm sure there are more. Really, how are lawyers able to file without being able to read?

[ Reply to This | # ]

I'm Appalled.
Authored by: Steve Martin on Saturday, September 09 2006 @ 03:29 PM EDT

I confess to being appalled. Right out of the gate, The SCO Group lies to the Court.

6/13/2003 - IBM serves its First Set of Interrogatories on SCO. These interrogatories seek information about IBM's improper contributions to Linux, but do not request SCO to provide version, file, and line of code, and do not address how to identify improperly disclosed methods and concepts where lines of code were not disclosed.

Has BS&F even read IBM's First Set of Interrogatories? What's Interrogatory Number 1 say?

"Please identify, with specificity (by product, file, and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused, including but not limited to as alleged in ¶ 105 of the Complaint."
(all emphasis added)

Am I just missing something, or is this simply too much even for BS&F to expect the Court to believe??

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

[ Reply to This | # ]

Defective interrogatories?
Authored by: sk43 on Saturday, September 09 2006 @ 04:49 PM EDT
"These interrogatories ... do not address how to identify improperly disclosed methods and concepts where lines of code were not disclosed."

Insofar as IBM's definition 10e does require methods to be identified by lines of code:

10. The term "identify" shall mean
e. in the case of alleged trade secrets or confidential or proprietary information, whether computer code, methods or otherwise, to give a complete and detailed description of such trade secrets or confidential or proprietary information, including but not limited to an identification of the specific lines and portions of code claimed as trade secrets or confidential or proprietary information, and the location (by module name, file name, sequence number or otherwise) of those lines of code within any larger software product or property.
SCO would be entitled to object if it thought the definition inappropriate. However, the time and place to do so would have been in its responses to those interrogatories ( [45-E], < a href="http://www.groklaw.net/article.php?story=20031111020447263"> [81-B], < a href="http://sco.tuxrocks.com/Docs/IBM/Doc-103-1.pdf"> [103-1]), not now in a reply memo over 3 years after the interrogatories were served. In [45-E] under General Objections, SCO did object to IBM's definitions 7, 8, and 16 but not to 10.

[ Reply to This | # ]

SCO did actually identify the Linux files
Authored by: Anonymous on Saturday, September 09 2006 @ 05:19 PM EDT
SCO is actually correct in that IBM Interrogatories didn't ask to identify the
improperly contributed methods and concepts ... twice. Once in their Linux code
implementation, another time in their AIX or Dynix code implementation.

[ Reply to This | # ]

Lax attantion to detail
Authored by: Anonymous on Saturday, September 09 2006 @ 06:41 PM EDT
Do they REALLY belive the Judge hasn't or won't read those documents -
carefully?

Tufty

[ Reply to This | # ]

When did IBM stop resisting to produce AIX code
Authored by: Anonymous on Saturday, September 09 2006 @ 08:01 PM EDT
Was it after its First Set of Interrogatories because it acknowledged such
information would be essential for SCO to produce in response?

[ Reply to This | # ]

So their whole case boils down to this
Authored by: Anonymous on Saturday, September 09 2006 @ 08:16 PM EDT
Did not!

[ Reply to This | # ]

SCO's Appendix A to its Reply Memo on Objections
Authored by: Anonymous on Saturday, September 09 2006 @ 10:16 PM EDT
The product, file and line part is in ( ). You can always ignore whats between
the ( ) as it is extra information which is not strictly needed.

[ Reply to This | # ]

    specificity
    Authored by: Night Flyer on Sunday, September 10 2006 @ 02:10 AM EDT
    Specificity:

    Maybe the problem is one of semantics, maybe my understanding of 'specificity'
    is not the same as the legal definition, or SCO's understanding of the word ...
    so I 'googled' the word, (this cost me a half an hour of my life). Generally it
    is mostly used in medicine, but:

    Houghton Mifflin Company:
    "spec·i·fic·i·ty (spĕs'ə-fĭs'ĭ-tē) n.
    1. The condition or state of being specific.
    2. The statistical probability that an individual who does not have the
    particular disease being tested for will be correctly identified as negative,
    expressed as the proportion of true negative results to the total of true
    negative and false positive results."
    ...

    I also checked my hard-copy dictionary: Websters (1997):
    "specificity...
    1. The quality or state of being specific.
    2. Biol ..."

    (I hate it when dictionaries define a word using the root word in a circular
    definition, then follow with streams of alternate meanings.)

    Websters (1997): "specific...
    1. having a special application, bearing or reference; explicit or
    definite."

    To me this is a question of what are 'reasonable' expectations; My law
    professor, (IANAL) said that courts look at a situation as: What would a
    reasonable person think or do, or how would they respond to the situation?

    I do a fair amount of writing (in the hundreds of pages range) and, now and
    then, a bit of programming (mostly debugging someone else's program).

    If you told me that somewhere there was a spelling error, or a copied concept or
    a copied flow of argument, and were asked "where with specificity", I
    believe that a 'reasonable person' would expect the name of the book (which one
    out of many) and which edition, page number and, where appropriate, paragraph
    and line #'s.

    The fact that I inadvertently did not ask for the Chapter Number does not, in my
    opinion, weaken the word specificity'.

    Remember that the technical part of SCO is in the business of writing and
    debugging software so, corporately, they know what 'specificity' means in this
    situation.

    It is my opinion that the legal arm is doing something worse than obfuscation.

    I hope it is as clear to the judge as it is to us that this red herring needs to
    be dealt with quickly and efficiently.

    ---
    Veritas Vincit - Truth Conquers

    [ Reply to This | # ]

    Looks like a losing argument
    Authored by: rweiler on Monday, September 11 2006 @ 12:59 PM EDT
    Let's assume for the moment that SCOX is right, they didn't have to specify
    'file, line, and version' for 'methods and concepts'. SCOX says after the
    interim deadline, they did supply this info when they could find it. Where they
    didn't, they state that it doesn't exist. IBM didn't license 'Methods and
    Concepts' fromAT&, and neither did Sequent. They licensed a SOFTWARE
    PRODUCT. If SCOX couldn't find the lines of code, it wasn't in the SOFTWARE
    PRODUCT that SCO claims to own, and IBM has no obligation to SCOX to keep it
    secret.


    ---
    Sometimes the measured use of force is the only thing that keeps the world from
    being ruled by force. -- G. W. Bush

    [ Reply to This | # ]

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