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SCO's Spoliation Memo as text
Friday, September 29 2006 @ 01:50 AM EDT

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


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

8


  


SCO's Spoliation Memo as text | 184 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: jplatt39 on Friday, September 29 2006 @ 11:10 AM EDT
If any

[ Reply to This | # ]

Off Topic Here
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 | # ]

How are SCO supposed to overcome their stipulation (651) that there are no discovery disputes
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 | # ]

It's obvious.
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 | # ]

SCO's Spoliation Memo as text
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 | # ]

IBM donated the ENTIRETY of AIX??!!
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 | # ]

The "Dan Frye Evidence"
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 | # ]

SCO's Spoliation Memo Questions
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 | # ]

SCO's Spoliation Memo as text
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 | # ]

This is just more "All your base..." nonsense
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 | # ]

Where's the beef?
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 | # ]

RIAA Defendants should pay close attention to this motion
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 | # ]

publicly boasting
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 | # ]

SCO's Spoliation Memo as text
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 | # ]

Redacted due to actual sensitivity?
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 | # ]

Is it my imagination?
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 | # ]

spoh-lee-ey-shuhn not spoy-ley-shuhn
Authored by: Anonymous on Friday, September 29 2006 @ 04:42 PM EDT
Just for those who haven't noticed yet.

[ Reply to This | # ]

SCO has lost badly.
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 | # ]

Wasn't that Caldera's boasting
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 | # ]

What a bunch of total and utter
Authored by: Anonymous on Friday, September 29 2006 @ 06:23 PM EDT
REDACTED

[ Reply to This | # ]

Grandstanding?
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 | # ]

  • Agree - Authored by: Jude on Friday, September 29 2006 @ 08:07 PM EDT
SCO's Spoliation Memo as text
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 | # ]

SCO's Spoliation Memo as text
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 | # ]

The spaghetti attack and teflon defense
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 | # ]

SCO's Spoliation Memo as text
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.


---
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.

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