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SCO's Spoliation Memo as text |
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Friday, September 29 2006 @ 01:50 AM EDT
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Here's SCO's Memorandum in Support of SCO's Motion for Relief for IBM's Spoliation of Evidence [PDF] as text. The title is almost longer than the memo, and most of page three is sealed. The whole memo was filed under seal, and this is the redacted version. I've already commented on this memo, twice actually, so there's no need to rub their noses in it. SCO has enough troubles already. And I can't write anything about what IBM has allegedly done, because SCO won't tell us. It's a secret. Another secret in SCO's mountain of secret offenses for which they would like IBM to pay them billions. Thank you to feldegast for doing the transcript and the HTML. I appreciate it very much.
******************************
Brent 0. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[Address]
[Telephone]
[Facsimile]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH |
THE SCO GROUP, INC.
Plaintif / Counterclaim-Defendant,
vs.
NTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant / Counterclaim-Plaintif |
SCO'S MEMORANDUM IN SUPPORT
OF SCO's MOTION FOR RELIEF
FOR IBM'S SPOLIATION OF
EVIDENCE
FILED IN REDACTED FORM
[ORIGINALLY FILED UNDER SEAL]
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C . Wells
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ...............................................................................................1
BACKGROUND .......................................................................................................................1
ARGUMENT .............................................................................................................................4
1. IBM VIOLATED THE CLEAR LEGAL REQUIREMENT
TO PRESERVE RELEVANT DOCUMENTS .............................................................4
11. IBM SHOULD BE PRECLUDED FROM DISPUTING THAT ITS
CONTRIBUTIONS TO LINUX WERE BASED ON AIX AND DYNIX ...................6
CONCLUSION ..........................................................................................................................7
i
TABLE OF AUTHORITIES
Cases Page
Aramburu v. Boeing Co.,
112 F.3d 1398 (1 Oth Cir. 1997) ....................................................................................... 5,6
Jordan F. Miller C90. v. Am. Eagle Ins. Co.,
139 F.3d 912, 1998 WL 68879 (1 Oth Cir. Feb. 20, 1998) ............................................... 4,5
Kronisch v. United States,
150 F.3d 112 (2d Cir. 1998) .................................................................................................4
Mosaid Techs. Inc. v. Samsung Elecs. Co.
348 F. Supp. 332 (D.N.J. 2004) ....................................................................................... 4,6
Reilly v. Natwest Mkts. Gropp, Inc.,
181 F.3d 253 (2d Cir. 1999) .................................................................................................5
Residential Funding CoKp. v. DeGeorge Fin. CoM.,
306 F.3d 99 (2d Cir. 2002) ...................................................................................................5
Scott v. IBM Corp.,
196 F.R.D. 233 (D.N.J. 2000) ..............................................................................................6
Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Co
982 F.2d 363 (9th Cir. 1992) ...............................................................................................7
Workman Y. AB Electrolux CoKp.,
No. 03-4195-JAR, 2005 WL 1896246 (D. Kan. Aug. 8, 2005) ....................................... 4,5
Zolo Techs. v. RoadKay Express, Inc.,
No. Civ. A05CV00494EVv'NMEH, 2006 WL 898132 (D. Colo. Apr. 4, 2006) .......... 4,5,7
ii
Plaintiff, The SCO Group, Inc. ("SCO"), respectfully submits this memorandum in
support of its Motion for Relief for IBM's Spoliation of Evidence.
PRELIMINARY STATEMENT
This Motion arises out of IBM's deliberate decision, weeks after SCO filed this lawsuit,
to intentionally destroy relevant evidence. SCO shows below that the facts thus warrant the
Court (1) entering an order precluding IBM from contesting that it relied on AIX and Dynix/ptx
source code in making contributions to Linux development, and (2) imposing ddverse-inference
inst.ruction against IBM, consistent with the common-sense and well-established principle that a
party who has notice that evidence is relevant to litigation and who proceeds to destroy it is more
likely to have been threatened by that evidence than a party in the same position who does not
destroy the evidence.
BACKGROUND
After multiple discussions between the parties over several months in which they
addressed the serious issues SCO had raised with respect to IBM's conduct, including a warning
by SCO that IBM should review the terms of its AIX Software Agreement in the context of
IBM's announced plans to donate the entirety of AIX to the open-source community, SCO filed
its Complaint on March 6, 2003. (Ex. A.) Among the allegations in the Complaint were the
following:
- BM is precluded by its agreements with SCO from disclosing its UNIX-derivative
AIX source code to the Linux development community, because it contains SCO's
UNIX source code. (Id. 1191-94.)
- IBM had recently and publicly released parts of AIX for contributions into Linux, in
breach of its agreements with SCO. (Ld. 1$ 95.)
1
- IBM had recently and expressly promised to exploit its expertise in AIX to bring
Linux up to par with UNIX and theii to obliterate UNIX. (Id. ¶98.)
- A large number of the IBM employees devoted to Linux development have, or have
had, access to the UNIX source code. Id. ¶100.)
- IBM's Linux Technology Center ("LTC") was launched in 2001 with the advertised
intent and foreseeable purpose of transferring and otherwise disposing of all or part of
UNIX, including its concepts, ideas, and know-how, into an open-source- Linux
environment. (Id. ¶102(a).)
These and other allegations thus made clear that the conduct of IBM's LTC in making
contributions or disclosures to Linux development was at the heart of the lawsuit. It is SCO's
position that, in makings such contributions, the LTC programmers have relied on expertise and
technology from two UNIX-derived operating systems, AIX and Dynix/ptx, developed with the
t-NIX System V source code, methods, and concepts that IBM licensed from SCO's
predecessor-in-interest AT&T.
REDACTED
Among the pending causes of action that SCO brought based on such allegations were its
clairns that IBM had engaged in unfair competition, based in part on IBM's "Violation of
confidentiality provisions running to the benefit of plaintiff' (Id ¶118(b)); and breach of
contract, based on IBM's contributions to Linux development of source code, methods, and
concepts that IBM had promised to keep confidential, but instead had subjected to "unrestricted
disclosure," "unauthorized transfer and disposition," and "unauthorized ase" (Id ¶129-36).
2
predecessor-in-interest AT&T.
REDACTED
IBM destroyed this evidence, moreover, after repeatedly and publicly boasting that the
Unix-derived expertise and ideas it open-sourced were the critical difference in making Linux
usable by enterprises. For example.
REDACTED
In another example, Dan Frye, the Director of the LTC, confirmed in an interview with the
3
Consulting Time that the LTC "wanted skills from across IBM, and we have people from AIX,
and OS2... and PTX, and Research and so on." Consulting Times, Inside IBM - Dan FIye an
the Linux Technology Center (undated) (Ex. J). Frye also discussed the porting of IBM's
proprietary technology to Linux, stating "[IBM] just add[s] arms and legs and skills to make
[projects within Linux] go faster." (Id.)
ARGUMENT
1. IBM VIOLATED THE CLEAR LEGAL REQUIREMENT
TO PRESERVE RELEVANT DOCUMENTS
"A litigant has a duty to preserve evidence that he knows or should know is relevant to
imminent or ongoing litigation." Jordan F. Miller Corp. v. Am. Eagle-Ins. Co., 139 F.3d 912,
1998 WL 68879, at * *5 (10th Cir. Feb. 20, 1998) (Ex. 1); accord Zolo Techs. v. Roadway
Express, Inc., No. Civ. A05CV00494EWNMEH, 2006 WL 898132, at *2 (D. Colo. Apr. 4,
2006) (Ex. 2); Workman v. AB Electrolux Corp., No. 03-4195-JAR, 2005 WL 1896246, at *5
(D. Kan. Aug. 8,2005) (Ex. 3). The preservation cannot be "selective." Workman, 2005 WL
1896246, at *5.
The obligation to preserve evidence may arise with respect to potential litigation,
Workm , 2005 WL 1896246, at *6, and indisputably arises upon notice of litigation, Kronisch
v. United States, 150 F.3d 112, 126 (2d Cir. 1998). "When the duty to preserve is triggered, it
cannot be a defense to a spoliation claim that the party inadvertently failed to place a 'litigation
hold' or 'off switch' on its document retention policy to stop the destruction of evidence."Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 332, 339 (D.N.J. 2004). Here, the issue
is not the failure of IBM to take steps to preserve documentation that is then lost as the result of a
normal document retention program, but the willful destruction, under an order from company
executives, of potentially probative evidence in the immediate aftermath of the filing of the suit.
4
The Court has the "inherent power" to impose sanctions to redress the spoliation of
evidence. Miller, 1998 WL 68879, at **3; accord Zolo, 2006 WL 898132, at *2. The Tenth
Circuit has stated "as a general rule, that the 'bad faith destruction of a document relevant to
proof of an issue at trial gives rise to an inference that production of the document would have
been unfavorable to the party responsible for its destruction."' Miller, 1998 WL 68879, at **4
(quoting Aramburu v. Booing Co., 112 F.3d 1398, 1407 (10th Cir. 1997)).1 "Courts have not
generally imposed a similar requirement of bad faith when considering other sanctions for the
spoliation of evidence, however." Miller, 1998 WL 68879, at **4; accord Zolo, 2006 WL
898132, at *3; Workman 2005 WL 1896246, at *7.
"When deciding whether to sanction a party for the spoliation of evidence., courts have
considered a variety of factors, two of which generally carry the most weight: (1) the degree of
culpability of the party who lost or destroyed the evidence, and (2) the degree of actual prejudice
to the other party." Miller, 1998 WL 68879, at **4; accord Workman, 2005 WL 1896246, at *5.
.A.s noted, this is not a case of IBM failing to take care to preterit the accidental destruction of
probative evidence, but rather the deliberate destruction of probative information soon after the
filing of the action. These facts establish the highest degree of culpability on IBM's part. The
prejudice to SCO is great, as the evidence goes to one o." the central issues in the litigation - the
extent to which IBM has misused proprietary information in making its Linux contributions.
REDACTED
1 Other circuits have not required bad faith or intentional destruction of the material in imposing an
adverse inference instruction. "A finding of bad faith or intentional misconduct is not a sine qua non to
sanctioning a spoliator with an adverse inference instruction." Reilly v. Natwest Mkts. Group, Inc., 181
F 3d 253, 268 (2d Cir. 1999). "It makes little difference to the party victimized by the destruction of
evidence whether that act was done willfully or negligently. The adverse inference provides the
necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not
because of any finding of moral culpability, but because the rise, that the evidence would have been
detrimental rather than favorable should fall on the party responsible for its loss." Residential Funding
Corp. v. DeGeorge Fiji. Q2rp., 306 F.3d 99, 108 (2d Cir. 2002).
5
REDACTED
II IBM SHOULD BE PRECLUDED FROM DISPUTING THAT ITS
CONTRIBUTIONS TO LINUX WERE BASED ON AIX AND DYNIX
The Court should preclude IBM from disputing at trial or otherwise that IBM relied on
AIX and Dynix/ptx source code in making contributions to Linux development.
The Court should also instruct thejury to draw an adverse inference against IBM. The
allegations and causes of action in SCO's Complaint put the conduct of IBM's LTC in making
contributors to Linux development directly at issue, such that IBM knew or reasonably should
have known that in discovery SCO would ask IBM to produce the material within the LTC
programmers' control with respect to the contributions they had made to Linux development.
IBM "had an affirmative obligation to preserve potentially relevant evidence," Mosaid, 348 F.
Supp. at 336, and instead intentionally destroyed certain of that evidence. Cf. Scott v. IBM
Corp., 196 F.R.D. 233, 247 (D.N.J. 2000) (drawing a spoliation inference against IBM for its
failure to preserve possibly important documents).
This is not a situation in which IBM was unaware ot"the litigation, unintentionally
destroyt~d the evidence, or simply lost it. Cf. Aramburu, 112 F.3d at 1407; IBM, 196 F.R.D. at
247 (drawing a spoilation infererce against IBM but declining to impose a greater sanction given
the absence of direct evidence that IBM knowingly destroyed the documents). The record
further I-stablishes, moreover, that IBM's destruction of the evidence has prejudiced SCO. This
6
REDACTED
Cf. Zolo, 2006 WL 898132, at *3. The Court
will never know how much additional probative evidence existed but has been destroyed
showing that developers were relying on AIX and Dynix/ptx source code in making their
contributions to Linux development.
The appropriate remedy in that additional respect is to preclude IBM from presenting
testimony that its programmers did not rely on such code in making those contributions. See
Workman, 2005 WL 1896246, at *7; see also Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg .
Corp., 982 F.2d 363, 368-69 (9th Cir. 1992) (excluding plaintiff's proposed expert testimony
regarding material that the defendant and its expert were not given an opportunity review, as a
result of plaintiffs spoliation of that evidence).
CONCLUSION
SCO respectfully requests, for the foregoing reasons, that the Court employ an adverse
inference against IBM and preclude IBM from contesting, including in its expert reports, that it
relied on AIX and Dynix/ptx source code in making contributions to Linux development.
DATED this 25h day of September 2006.
_______[Signature]_______
HATCH, JAMES & DODGE, P.C.
Brent 0. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver (admitted pro hac vice)
Stephen N. Zack (admitted pro hac vice)
Stuart H. Singer (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Attorneys for The SCO Group, Inc.
7
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the
foregoing Redacted SCO's Memorandum in Support of SCO's Motion for Relief for IBM's
Spoliation of Evidence was served on Defendant International
Business Machines Corporation on the 27th day of September, 2006, by CM/ECF to the
following:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[Address]
Donald J. Rosenberg, Esq.
[Address]
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[Address]
/s/ Brent 0. Hatch
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Authored by: jplatt39 on Friday, September 29 2006 @ 11:10 AM EDT |
If any
[ Reply to This | # ]
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- "BM is precluded" missing an "I" - Authored by: Anonymous on Friday, September 29 2006 @ 11:15 AM EDT
- Corrections Here - Authored by: seanlynch on Friday, September 29 2006 @ 11:24 AM EDT
- Corrections Here - Authored by: seanlynch on Friday, September 29 2006 @ 11:25 AM EDT
- Corrections Here - Authored by: seanlynch on Friday, September 29 2006 @ 11:27 AM EDT
- Corrections Here - Authored by: seanlynch on Friday, September 29 2006 @ 11:28 AM EDT
- ddverse-inference inst.ruction --> adverse-inference instruction - Authored by: Anonymous on Friday, September 29 2006 @ 11:29 AM EDT
- Corrections Here - Authored by: seanlynch on Friday, September 29 2006 @ 11:30 AM EDT
- minor nit -> argument numbering 1 vs I - Authored by: Anonymous on Friday, September 29 2006 @ 11:35 AM EDT
- Corrections Here - Authored by: seanlynch on Friday, September 29 2006 @ 11:35 AM EDT
- Corrections Here - Authored by: seanlynch on Friday, September 29 2006 @ 11:36 AM EDT
- destroyt~d (n/t) - Authored by: Anonymous on Friday, September 29 2006 @ 12:22 PM EDT
- Background References - Authored by: Trollsfire on Friday, September 29 2006 @ 12:36 PM EDT
- t-NIX -> UNIX - Authored by: Trollsfire on Friday, September 29 2006 @ 12:40 PM EDT
- Bottom of page 2 - Authored by: Trollsfire on Friday, September 29 2006 @ 12:49 PM EDT
- predecessor-in-interest AT&T. -> Discovery in this case has revealed that - Authored by: Trollsfire on Friday, September 29 2006 @ 12:53 PM EDT
- Corrections Here - Authored by: Trollsfire on Friday, September 29 2006 @ 01:32 PM EDT
- Corrections Here - Authored by: bruzie on Friday, September 29 2006 @ 06:09 PM EDT
- Corrections Here - Authored by: elronxenu on Friday, September 29 2006 @ 07:03 PM EDT
- "thejury" -> the jury - Authored by: Anonymous on Saturday, September 30 2006 @ 12:04 PM EDT
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Authored by: jplatt39 on Friday, September 29 2006 @ 11:13 AM EDT |
If you have links, make them clickable. Use HTML
Formatted post mode and read the instructions in red.
Also read the Important Stuff.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, September 29 2006 @ 11:26 AM EDT |
As of March 17th, 2006 (more than 3 years after the case commenced, more than 3
years since the alleged spoilation took place, and long after [one or two or
three years] SCO knew about any facts that might be relevant to the alleged
spoilation), SCO signed a joint stipulation with IBM.
The Groklaw text is here:
http://www.groklaw.net/article.php?story=20060318045518330
It's docket 651
The relevant part is
4. The parties have reviewed one another’s document productions, met and
conferred, and agree that, except as stated below, there are no discovery
disputes between them, subject to the following representations.
2
a. IBM represents that it has taken reasonable steps to supplement its document
production, except that IBM will undertake a reasonable search for additional
documents from the files of the individuals identified in Ted Normand’s letter
of February 23, 2006, to Todd Shaughnessy;
b. SCO represents that it has taken reasonable steps to supplement its document
production, except that SCO will undertake a reasonable search, after
consultation with IBM concerning some of those requests, for those categories of
documents in Ted Normand’s March 10, 2006, letter to Todd Shaughnessy as to
which SCO has not concluded a reasonable search;
c. The parties agree that relevant documents produced by any party in the SCO v.
Novell litigation shall be provided to counsel for the parties in this case.
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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Authored by: jfw25 on Friday, September 29 2006 @ 11:39 AM EDT |
IBM must have destroyed the evidence in Blepp's suitcase! After all, when they
looked, there was nothing there, so who else would have done such a thing?
[ Reply to This | # ]
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- It's obvious. - Authored by: Anonymous on Friday, September 29 2006 @ 06:01 PM EDT
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Authored by: Anonymous on Friday, September 29 2006 @ 11:40 AM EDT |
I think you should spell 'billions' as ' beellions' when dealing with SCO.
Raised pinky finger is optional.
Another secret in SCO's
mountain of secret offenses for which
they would like IBM to pay them
billions.
Dr Eric[ Reply to This | # ]
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Authored by: tz on Friday, September 29 2006 @ 11:44 AM EDT |
AFAIK, AIX is still closed source, property of IBM. They opened up OS/2
though.
The relevant text:
BACKGROUND ... After multiple discussions ... in the context of IBM's announced
plans to donate the entirety of AIX to the open-source community...
* IBM is precluded by its agreements with SCO from disclosing its
UNIX-derivative AIX source code to the Linux development community, because it
contains SCO's UNIX source code. (Id. 1191-94.)
* IBM had recently and publicly released parts of AIX for contributions into
Linux, in breach of its agreements with SCO. (Ld. 1$ 95.)
I can see the first, disclosing SCO's copyrighted UNIX code, but IBM didn't do
that ever and in any way to my knowledge. Source isn't methods and concepts,
nor is it things like errno.h (or ctype.h which Linus proved to be original).
I don't see the second either - But maybe someone can point to me anything
saying IBM can't give things like OS/2 code that was added to AIX to the Linux
community too.
Maybe SCO doesn't understand AIX != OS/2 ?
Does the above make sense to anyone?[ Reply to This | # ]
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Authored by: meshuggeneh on Friday, September 29 2006 @ 11:50 AM EDT |
So since when are developer skills equivalent to SCOX's, uh, Methods and
Concepts?
Do we have a map into AIX or Dynix of these? Shouldn't one have been provided,
somewhere along the line?
I imagine it would show something like the path SCOUnix -> {AIX,Dynix} ->
Linux...
[ Reply to This | # ]
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Authored by: rsteinmetz70112 on Friday, September 29 2006 @ 11:53 AM EDT |
Do we know how long the redacted sections are?
It seems the original version must be much longer.
I also can't imagine why this one needs to be redacted so severely. Surely IBM's
actions aren't confidential. In most of the other redactions there seemed at
least the possibility that confidential source code or business information was
discussed.
How can a statement that on a certain date a certain IBM employee deleted these
files from a computer be considered confidential?
---
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 | # ]
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Authored by: Upholder on Friday, September 29 2006 @ 11:55 AM EDT |
It seems to me that they're talking about code that was checked out of the
source control system to a developer's workstation and then later removed from
the developer's workstation.
I think they're claiming that any such code that was deleted has been
destroyed.. when a reasonable person would accept the source control system as
comprehensive evidence of changes made.
My guess is that they're trying to show that developers submitting patches to
Linux had AIX code checked out on their workstations at the time the patch was
developed.. and then claim that proves infringement.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, September 29 2006 @ 11:55 AM EDT |
From the 2nd PP before the CONCLUSION:
... evidence ... showing that
developers were relying on AIX and Dynix/ptx source code in making their
contributions to Linux development.
This spoilation complaint goes poof
if the court agrees with IBM's reading of the contract, namely that whatever
code was added to SysV to make AIX or Dynix did not belong to AT&T and
therefore could be legally added to Linux without needing SCO's
permission.
This is going nowhere and they know it. [ Reply to This | # ]
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Authored by: Terrier Tribe on Friday, September 29 2006 @ 12:01 PM EDT |
Have I simply been up too long or does this doc actually not describe what it is
that IBM is supposed to have destroyed?
[ Reply to This | # ]
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Authored by: Anonymous on Friday, September 29 2006 @ 12:06 PM EDT |
In this motion, IBM lawyers will show you how to fight the RIAA if they claim
you destroyed evidence from your harddrive
[ Reply to This | # ]
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Authored by: jiri on Friday, September 29 2006 @ 12:13 PM EDT |
Am I reading it wrong, or has SCO redacted an example of *public*
"boasting"? (second redaction on page 3)
Why in the world would it be confidential if it's public?
Jiri
---
Please e-mail me if you reply, I usually read with "No comments".
jiri@baum.com.au[ Reply to This | # ]
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Authored by: Anonymous on Friday, September 29 2006 @ 01:53 PM EDT |
"The Court should preclude IBM from disputing at trial or otherwise that
IBM relied on AIX and Dynix/ptx source code in making contributions to Linux
development."
From this one sentence it should be fairly obvious what SCO is doing. They
didn't find their roadmap, not after the deep divers, and not after the
ridiculous amount of code that IBM gave them. They know the judge thinks that
their argument about methods and even 'non-methods' is bunk. Everything they've
said so far has been shot down, so now they're asking the court to just hand
them a document that completely removes their burden of proof for the copying
they've been accusing IBM of this entire time. It's ridiculous, and it isn't
going to work, but it's not like they have anything left.
PC[ Reply to This | # ]
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Authored by: thombone on Friday, September 29 2006 @ 03:14 PM EDT |
I seriously doubt it. I believe that more likely it's because whatever their
argument actually is, they would be quite embarassed at the scrutiny of the
public if we actually knew.
I think they are probably more concerned with public perception at this point
than anything else, and with staying the wolf at the door as long as possible.
Thus, they'll go to any length to avoid really showing the world how weak their
case truly is.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, September 29 2006 @ 04:25 PM EDT |
Are the redactions here and in the exhibits designed to ensure that the
published text starts by saying bad things for IBM? That they do not cover
purely commercially sensitive matters but are carefully used to provide a bad
impression to the peanut gallery.
Tufty
[ Reply to This | # ]
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Authored by: Anonymous on Friday, September 29 2006 @ 04:42 PM EDT |
Just for those who haven't noticed yet. [ Reply to This | # ]
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Authored by: Anonymous on Friday, September 29 2006 @ 04:48 PM EDT |
They need to re-read the Monterey co-development agreement. It superceeds any
other agreement between alleged predecessors of SCO or "the SCO group"
and IBM.[ Reply to This | # ]
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Authored by: seanlynch on Friday, September 29 2006 @ 04:49 PM EDT |
"after repeatedly and publicly boasting that the Unix-derived
expertise and ideas it open-sourced were the critical difference in making Linux
usable by enterprises. For example."
I don't remember IBM
ever boasting how they were going to make Linux all 'super enterprisey' by
injecting Unix stuff into Linux. That was Caldera who bragged about puting all
the Unix 'Goodness' into Linux.
Besides, IBM doesn't boast. [ Reply to This | # ]
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Authored by: Anonymous on Friday, September 29 2006 @ 06:23 PM EDT |
REDACTED [ Reply to This | # ]
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Authored by: Trithemius on Friday, September 29 2006 @ 07:16 PM EDT |
How much of this memo is for pure mud-slinging? If they can convince
anyone that big bad IBM did big bad company things and destroyed the
evidence that the little underdog needed - it might be worth the
effort.
Think?[ Reply to This | # ]
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- Agree - Authored by: Jude on Friday, September 29 2006 @ 08:07 PM EDT
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Authored by: garbage on Friday, September 29 2006 @ 10:33 PM EDT |
Let me see if I get this right :
1) tSCOG asks for everything IBM has ever said
written or thought since
recorded history.
2) After registering a protest with
the judgeIBM produces everything humanly
possible but .
3) tSCOG scream
SPOILATION!!! SPOILATION!!! because some things don't
exist or can't be
found.
And this is called Lawyering BS&F?? Gimme a freakin break!
No, this
is just plain old dragging out the inevitable.
It's obvious to all by now that
IBM has no case to answer & that IBM has
_no_intention_ of caving in to
this scam.
C'mon Judge! Give them the coup de grace & spare us all the
agony of
watching this bloodied pulp on the floor twitch & scream.[ Reply to This | # ]
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Authored by: mtew on Saturday, September 30 2006 @ 12:22 AM EDT |
This seems very weird; hasn't IBM already stipulated that they used their OS
experience, including their experience developing AIX and Dynix, to help make
Linux better.
The only thing that they claim is they did not use the stuff
from UNIX either directly or indirectly.
That is they contributed some
stuff that belonged to them and did not contribute stuff that came from AT&T
unless it was public knowledge.
Well given this is tSCOg, it isn't
unexpected.
If they got this, they'd use it to try to keep IBM from
showing any evidence that the code contributed was their own, even if the order
was written to preclude that possibility. --- MTEW [ Reply to This | # ]
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Authored by: Anonymous on Saturday, September 30 2006 @ 12:49 PM EDT |
Throw everything at the judge and wait to see what sticks. There
are numerous angles in this convoluted short redacted document.
IBM can use non stick teflon arguments rooted in case law to moot
the whole mess. This is messy.
Is TSG behavior typical, or, hopefully, destined for true justice?
Are BSF filings to be emulated or sited in future cases?[ Reply to This | # ]
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Authored by: blacklight on Sunday, October 01 2006 @ 12:03 AM EDT |
When SCOG generates a memo for spoliation of evidence, SCOG is implicitly
admitting that it just doesn't have the evidence to back up its allegations. And
when SCOG is requesting an adverse finding against IBM, SCOG is implicitly
admitting that it can't prove that finding on its own efforts. Once more, SCOG's
actions have validated the groklaw community's analysis of SCOG's legal
position.
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Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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