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Judge Wells Rules: IBM Did *Not* Destroy Evidence - Updated
Thursday, January 18 2007 @ 03:02 PM EST

Chris Brown is back from the hearing today on two SCO motions, the Motion for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information and the Motion for Relief for IBM's Spoliation of Evidence.

And here's his initial report, with more details to follow:
I've just gotten back from the 01/18/07 motion hearings in the SCO v. IBM case.

IBM's Michael Burke and SCO's Sashi Boruchow argued SCO's Motion for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information.

IBM's Todd Shaughnessy and SCO's Mark James argued SCO's Motion for Relief for IBM's Spoliation of Evidence.

Judge Well's ruled from the bench on both motions, ruling in favor of SCO on Dr. Leitzinger and in favor of IBM regarding spoliation.

In her ruling regarding Dr. Leitzinger, she found that the Andrew Morton situation is clearly distinguishable from Dr. Leitzinger's, that IBM has the option of submitting a motion in limine and also exploring the issues of percentages of Dr. Lietzinger's income on cross-examination at trial. Her decision is to grant SCO's proposed order exactly as written.

In her ruling on SCO's spoliation motion, she said that based on the evidence before her, as it is placed in context, SCO's motion is denied. In fact, she finds that the evidence (that SCO contended was destroyed) is available in CMVC. She finds that there was no bad faith on IBM's part and that no evidence was destoyed as it was, and still is, available.

After Judge Well's ruled on this, SCO's Mark James asked that, since her ruling is based on representations made by IBM's Todd Shaughnessy (that the information of what IBM employee had checked out what AIX code from CMVC and when), he requested IBM tell SCO how to obtain the information. Judge Well's asked Mr. Shaughnessy what IBM would be willing to do to answer their question. Todd respecfully said that the time for that has long passed, that discovery and expert discovery is over. He said that during discovery, while SCO had CMVC, they never said that they were unable to find that information. Judge Wells asked Mr. Shaughnessy to do what he can to provide that answer. It was further clarified, at Mr. Shaughnessy's request, that this is not reopening discovery nor will the answer, regardless of what is found, necessarily make any difference. Judge Wells requested Todd Shaughnessy to prepare the order on this motion, and Sashi Boruchow to prepare the order on the protective order motion.

So much for the Forbes headlines about IBM destroying evidence. They didn't. Now, how does IBM get its good name back? Will Forbes print an equivalent headlined story: "We were so wrong, once again. IBM *didn't* destroy any evidence"?

Update 2: Some in the media are doing the right thing and reporting this story: The Inquirer, "SCO Gets Another Kick in the Teeth":

ANTI-LINUX bad-boy SCO is watching its case against IBM collapse around its ears as an attempt to get Biggish Blue to pay for wrecking its case by spoiling evidence has been chucked out....Judge Wells told SCO that rather than the evidence being spoil[iat]ed, and based on what she was looking at, it was still freely available if SCO looked hard enough.

Update 3: Let's give the Devil his due. A reader sends me the news that Forbes has indeed printed a story stating that SCO lost its spoliation motion. No mea culpa, though. It seems Brent Hatch is to blame:

Brent Hatch, an attorney who represents SCO, told Forbes last summer that one reason SCO had been unable to produce that evidence was that IBM had instructed its programmers to destroy code after SCO filed its lawsuit.

On Thursday, however, Judge Wells denied SCO's motion, claiming that any code that once existed on IBM programmers' machines should still be available in a code management database that IBM maintained.

: )

One small correction. The article says that Judge Wells threw out most of SCO's claims. She didn't. She threw out items on SCO's list of allegedly misused materials, Judge Kimball upheld her decision, and the next day she confined SCO to claims already on the table by the deadline. SCO's claims appear in its Second Amended Complaint, and they are all still there. How SCO will prove them now is at issue, obviously, but no claims have been thrown out yet. The summary judgment motions filed by IBM do hope to achieve that noble goal, but they won't be ruled on until March at the very earliest.

On a deeper level, one could say that claims were thrown out as a corollary, in that SCO hoped to and tried to introduce *new* claims after the deadline, or at least that is what IBM said and the court agreed. But all the original claims are still there. The sad thing, from SCO's point of view, is that everything they tried to introduce could have been in the case, had they met the deadline. SCO continues to ask the court to undo Judge Wells' decision. The second one too. Just thought it would be helpful to explain, so folks can get it right, if they want to.

If you've forgotten what a motion in limine is, I explained it just the other day: it's a motion at the start of trial asking the judge to exclude certain evidence from trial. So what Judge Wells told IBM is that they will have further opportunities to elicit information (or exclude it) from Dr. Leitzinger at trial. If this junk ever makes it to trial.

Update:

And here's the longer version, from his notes:

*********

Judge Wells, after announcing the motions before her, made it very clear that she had reviewed ALL submissions on these motions (repeating it twice, and stressing "all") and said she was fully conversant on them. She said she'd hear SCO's Motion for Protective Order Regarding Dr. Jeffrey Leitzinger's Personal Financial Information first.

Sashi Boruchow argued for SCO that Dr. Leitzinger, during his deposition, disclosed his hourly billing rate and hours billed on this case fully. meeting the criteria established by Rule (29c?); that the requirement is only that the amount of compensation for the plaintiff is discoverable; that there is a need to protect his privacy. She said to be relevant, the fee must be disproportionate to services which IBM has not shown, or that the expert's opinion has changed over time, possibly showing the expert is influenced by the fee, which IBM also has not shown. She said the questions asked of Andrew Morton (IBM's expert) are not analogous of questions asked of Dr. Leitzinger because a portion of Andrew Morton's income was derived from IBM through OSDL.

Arguing for IBM on this was Michael (Mike) Burke. He said that case law clearly shows experts must show litigation-related income, that it is discoverable. Judge Wells interjected that the Federal rules say "may" be discoverable... Mike agreed, but said IBM contends that Dr. Leitzinger is a professional expert witness.

Judge Wells asked numerous questions about why IBM needs this information. "Why do you need the exact amount? Couldn't you ask that (at trial) in cross-examiniation?" Burke replied that there is always a danger of asking a question in cross that you don't know the answer to. Judge Wells rolling her eyes, agreed that's always a danger. He argued further, but weakly, including that IBM is only seeking the amount that Dr. Leitzinger earned from litigation-related actions.

Boruchow replied that IBM said they were seeking only litigation-related income but in fact they are asking for all of 2005, including management income, income from other customers, and EcomOne share income (which income could reflect income that other associates might have earned independantly).

Judge Wells ruled that the Andrew Morton situation is clearly distinguishable from Dr. Leitzinger's, that IBM has the option of submitting a motion in limine and also exploring the issues of percentages of Dr. Lietzinger's income on cross-examination at trial. Her decision is to grant SCO's proposed order exactly as written.

Next SCO's Mark James argued on SCO's Motion for Relief for IBM's Spoliation of Evidence. He provided a document to Judge Wells to which he referred and indicated that SCO has direct evidence of an email directing destruction of evidence, referring to a case he said that said bad faith is not required.

Judge Wells said, "We're presuming something here, that there was destruction," to which James said Yes, and he'll talk about that. He said that IBM contends that SCO cannot show anything was destroyed, that the email only applied to eight developers, that four said they didn't destroy anything. However these pure conclusory assertions were not based on any evidence. The email was from IBM's Open Source Steering Committee.

Judge Wells indicated as she was reviewing documents she noted in the transcript of a February 2004 hearing where SCO's Mark Heise handed her a document that defines CMVC, that it tracks source code versions over time and all levels of files and are available for those with proper access. She implied that all code that the developers had must be in that central CMVC repository. She asked, "Given that I accept the depositions, was there destruction?" Mark James said SCO's position is that IBM's developers relied on AIX/Dynix code in their sandbox when developing Linux. Judge Wells interjected, "But there was no destruction of code." Mark James replies that what was lost was knowledge of which developers had access to what particular source code. The code may not have been destroyed, but knowledge of how developers relied on AIX/Dynix code has been.

James then addressed the waiver issue and argued SCO's actions did not constitute a waiver.

IBM's Todd Shaugnessy replied. He said SCO has claimed IBM intentionally, and in bad faith, destroyed evidence. This is a major claim, and one that IBM takes very seriously. The claim is in the face of an IBM discovery record that can only be described as VAST. He related IBM's production and hours expended on it. He explained how much labor was used two years ago to provide CMVC access to SCO and that it seemed SCO never even used it, despite SCO's reasons they gave, that it was required to determine its use in contributing to Linux.

Shaugnessy described the IBM (management) meeting in 2003 which preceeded the cited email. IBM was starting a specific project related to Linux on PowerPC on which eight former AIX developers would be working. In that meeting a question was asked if those eight developers still had access to AIX's CMVC (which access would not be needed for the new project). It was determined that they did not, but perhaps they still had AIX sandboxes, but they didn't know. After that meeting, the email was sent.

He said that SCO has not identified any code from that project that was an improper contribution to Linux. SCO has not identified any lines of code from any of these eight developers. These developers were writing new, original, code unrelated to any of SCO's claims. The only AIX code identified as misused is JFS, completely unrelated to these developers' project.

Shaughnessy provided a copy of the deposition of Dr. Frye to Judge Wells and referred to it. He indicates that during his deposition Dr. Frye stated six seperate times that nothing was destroyed. Even SCO's deposition lawyer characterized Dr. Frye's testimony as that nothing was destroyed. He said that SCO has to demonstrate bad faith and SCO's briefs offer nothing to demonstrate it.

Shaughnessy said SCO's original claim in this motion was that IBM destroyed code. We see, and SCO now concedes, none was destroyed. Now SCO's theory is that they don't know what code the developers had access to. If SCO *really* wanted to know what code the developers had, they could have looked up the names of people in the LTC (provided by IBM) turned on the CMVC machine they've had for over two years in their office and see what code they checked out. But they didn't.

James replied for SCO and cited Judge Steward, Adams v. Gateway case, that "bad faith is not generally required... in order to find spoliation" (other than bad inference). Here we have an email talking about destruction of evidence, he said. It's clear from the deposition that the instruction was given. James reiterated his opening comments and claimed that CMVC does not provide information on who had what code and when, that it only shows the source code.

Ruling on SCO's spoliation motion, Judge Wells said that based on the evidence before her, as it is placed in context, SCO's motion is denied. In fact, she finds that the evidence (that SCO contended was destroyed) is available in CMVC. She finds that there was no bad faith on IBM's part and that no evidence was destoyed as it was, and still is, available.

After Judge Wells ruled on this, SCO's Mark James asked that, since her ruling is based on representations made by IBM's Todd Shaughnessy (that the information of what IBM employee had checked out what AIX code from CMVC and when), he requested IBM tell SCO how to obtain the information. Judge Wells asked Mr. Shaughnessy what IBM would be willing to do to answer their question. Todd respecfully said that the time for that has long passed, that discovery and expert discovery is over. He said that during discovery, while SCO had CMVC, they never said that they were unable to find that information. Judge Wells asked Mr. Shaughnessy to do what he can to provide that answer. It was further clarified, at Mr. Shaughnessy's request, that this is not reopening discovery nor will the answer, regardless of what is found, necessarily make any difference. Judge Wells requested Todd Shaughnessy to prepare the order on this motion, and Sashi Boruchow to prepare the order on the protective order motion.

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

A second witness sent me some notes, which clarify one point in particular, why IBM wanted the information regarding Dr. Leitzinger, namely that IBM sought to demonstrate a track record of tailoring testimony to favor clients. He also mentioned that Judge Wells told IBM it can protect Morton, which explains to me the suggestion regarding a motion in limine, at a later time and IBM can explore during cross (of Leitzinger).

On the spoliation motion, the clarification from the notes is that SCO used the case Chris mentioned to show that bad faith isn't required, but Judge Wells noted that the case applies to situations where there was destruction of evidence, and here that was SCO's assumption, not proven. Was material destroyed or just transferred? CMVC has everything. IBM then said that what SCO is really interested in is a ruling that will take them farther than evidence can. There was nothing destroyed, there is no prejudice. As for Wells' request that IBM help SCO figure out how to find things in CMVC, he reports that when SCO asked for the judge to tell IBM to show them now she said, "You should know," and then said, "I'm going to ask IBM in the spirit of cooperation to help SCO." I have to admit, that part puzzles me. What purpose would it serve, now that both discovery and expert discovery is over? The only thing I can think of is that it might help them at trial. When we get the transcript later, we'll perhaps get a deeper understanding.

Note that the new Cravath attorney, just added to the team, Michael Burke, argued for IBM, his maiden voyage. Nothing like being thrown into the pool.

As for the spoliation arguments, Groklaw member SpaceLifeForm reminds us that when IBM turned over all the CMVC materials in May of 2005, it also turned over a server and instructions, including even a script it wrote to help SCO find things, which you can see for yourself on the page linked to, Exhibit B. At the time, I wrote, "It tells them how to do everything but plug the server in to the electric outlet." Why SCO can't find things now is... unexplainable, particularly when Chris Sontag gave the court a declaration in which he said, "I have had experience in source control and source control management systems, similar to IBM's CMVC system."

Why doesn't SCO just ask him, the expert on source control and source control management systems? He went on to declare how easy it is, rudimentary even, to get out of such a system the materials SCO was asking the court for and then got. Now that was years ago. IBM pointedly told Judge Wells at the hearing, I'm told, that there is no evidence that SCO ever even looked at the CMVC materials. Actually, on reflection, what IBM should do is point to the instructions they already provided and say, There you go. And here's how to plug it in.

Honestly, these SCOfolk are so fun to watch, aren't they? It's like their memories get periodically wiped, zeros are written over all data, and we all start from scratch.

Well, not all of us. Groklaw is like an elephant. Groklaw never forgets.


  


Judge Wells Rules: IBM Did *Not* Destroy Evidence - Updated | 301 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: MathFox on Thursday, January 18 2007 @ 03:16 PM EST
updates will drip in too

---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.

[ Reply to This | # ]

OT here
Authored by: crazy canuck on Thursday, January 18 2007 @ 03:17 PM EST
Placeholder for items off topic

---
CCdn

[ Reply to This | # ]

So, no relief on spoliation of evidence
Authored by: Anonymous on Thursday, January 18 2007 @ 03:29 PM EST
And no new stuff dragged in via expert reports. That pretty much leaves nothing
in the way of PSJs.

Maybe we can actually get some parts of this resolved. My prediction: IBM gets
most or all of their PSJs, SCO gets none of theirs. Kimball rules some time
between May and August.

By the way, this is why I'm not too worried about SCO going bankrupt. If they
make it through the March hearing, it won't matter. The decision of the case
will be on the court record for all to see. The FUD claim will be "But
they could have appealed if they hadn't gone bankrupt", which has very
little punch.

MSS2

[ Reply to This | # ]

... he requested IBM tell SCO how to obtain the information...
Authored by: Anonymous on Thursday, January 18 2007 @ 03:31 PM EST
'OK, SCO, as root

/bin/rm -rf /

You *are* the owners of Unix, right?'

[ Reply to This | # ]

Judge Wells Rules: IBM Did *Not* Destroy Evidence
Authored by: Anonymous on Thursday, January 18 2007 @ 03:31 PM EST
Now how does IBM get its good name back?

I would suppose by looking at their net income. Last quarter they made something
like $2.2 billion if I read the financial information correctly. How much did
SCO make/loose, again?

SCOs nuisance lawsuit reminds me of Fido lifting his leg on a 1500 year old
redwood tree... and the effects on open source are probably comparable with Fido
trying to extinguish a forest fire.

Sorry... I shouldn't be posting as anonymous but this is my first entry despite
enjoying the great posts on Groklaw for a while now.

Over the last two years I got the impression that this isn't so much about IBM
being victimized (they have a law department to handle that) but about a
breakdown of the US justice system which seems to have rather weak defences
against abuse.

Was there an article in the past which did discuss this in detail from an
attorney's perspective? Could someone who is knowledgable about how far
ill-minded parties can go write an article for non-experts? I would greatly
enjoy getting a wider perspective than the SCO case can give.

[ Reply to This | # ]

Judge Wells Rules: IBM Did *Not* Destroy Evidence
Authored by: dmarker on Thursday, January 18 2007 @ 04:20 PM EST
"So what Judge Wells told IBM is that they will have further opportunities to elicit information (or exclude it) from Dr. Leitzinger at trial. If this junk ever makes it to trial."

PJ, tell us what you really think :)

Cheers

DSM (loved that remark - brought a smile to my dial :) )

[ Reply to This | # ]

  • aaaa - Authored by: Anonymous on Thursday, January 18 2007 @ 04:41 PM EST
IBM cannnot tell SCOX how to use the version control system:
Authored by: Sunny Penguin on Thursday, January 18 2007 @ 04:39 PM EST
SCOX employees were not allowed to access that information, only their legal
"experts" were allowed.

---
If you love your bike, let it go.
If it comes back, you high sided.....

[ Reply to This | # ]

Judge Wells Rules: IBM Did *Not* Destroy Evidence
Authored by: pooky on Thursday, January 18 2007 @ 04:39 PM EST

If this is the article you are referring to PJ: "http://www.forbes.com/technology/2006/07/20/sco-ibm-evidence_cz_dl_0720sco.html "

Titled "SCO Claims IBM Destroyed Crucial Evidence"

I don't think IBM's name has been that tarnished. To be honest, SCO is the only one who will talk about this lawsuit to the press, IBM will not comment, so all stories pretty come out with "SCO said this or SCO reported that". Much of this article is loaded up with how weird the case is and that SCO looks desperate.

My question is this: After reading the article, I found this quote:

"One IBM Linux developer has admitted to destroying source code and tests, as well as pre-March 2003 drafts of source code he had written for Linux while referring to Dynix code on his computer," SCO says.

Hatch, SCO's attorney, says SCO learned about the destruction of code when it took depositions from IBM programmers. This is the first time SCO has made the allegation in public, though Hatch says the claim was part of a memorandum SCO filed in March 2006, which has remained sealed."

Do we know which programmer this was? Their entire claim of spoilation, if we are to believe the Forbes reported comments from SCO lawyers, is based upon this deposition.

- pooky

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

[ Reply to This | # ]

Can SCOX's experts not read?
Authored by: SpaceLifeForm on Thursday, January 18 2007 @ 05:54 PM EST
Back link

IBM must have supplied the CMVC documentation.

From EXHIBIT A

CMVC operation (Please read the CMVC documentation before attempting to use the CMVC GUI or CMVC command line interfaces)

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Judge Wells Rules: IBM Did *Not* Destroy Evidence
Authored by: Anonymous on Thursday, January 18 2007 @ 06:22 PM EST
Can't IBM sue Forbes for defamation?

Dave

[ Reply to This | # ]

Now Listening To "Virtual Insanity" By Jamiroquai
Authored by: TheBlueSkyRanger on Thursday, January 18 2007 @ 06:38 PM EST
Hey, everybody!

Please notice, I am aware I'm taking this out of context. ;-)

"Well that's what they said yesterday
"There's nothing left to do but pray
"I think it's time I found a new religion
"Woah - it's so insane!"

Nice going. They were so confident that they could trick the judge into ruling
for spoilation they did no homework. They couldn't figure out how it works?
Here's an easy way to find out anything you want to know about computers:

1) Jump on Usenet.
2) Write your question, pepper with l337 speak
3) Be sure to put a conclusion in there that is so brain dead, people will be
amazed you can breathe on your own ("The salesman told me, to make the CPU
run faster, I need to put another hamster on the wheel").
4) Stand back and wait for all the corrections (and accompanying flames) to
flood your inbox. For once, spam will be the minor component of your incoming
messages!

I mean, really. These guys work with this stuff and they can't figure it out?
Maybe getting a job in the tech field isn't so tough after all. I mean, they
did it. It is just one's and zero's. ;-)

The brightest side is that this won't stop those steamrollers called PSJ's from
advancing. Here's the real March Madness.

Dobre utka,
The Blue Sky Ranger

"Futures made of virtual insanity - now
"Always seem to, be govern'd by this love we have
"For useless, twisting, our new technology "

[ Reply to This | # ]

California offers former HP chairman plea deal
Authored by: Anonymous on Thursday, January 18 2007 @ 07:59 PM EST
CNet
http://news.com.com/California+offers+former+HP+chairman+plea+deal/2100-101
4_3-6151272.html?tag=nefd.top

update California's attorney general is offering
former
Hewlett-Packard Chairman Patricia Dunn and four others
charged in the
HP spying scandal a chance to plead guilty
to a misdemeanor, a source said
Thursday.

[ Reply to This | # ]

Why SCO wants help finding code...
Authored by: Reven on Thursday, January 18 2007 @ 09:54 PM EST
The issue with SCO asking for help in finding code isn't that SCO can't find it.
The issue is that they don't know what code was on the developers' PCs. They
want to show that the developers could have referred to UNIX code when writing
Linux code, but they don't know what exact UNIX code they had in their
"sandboxes".

This is actually a very smart move on the part of SCO. This way they get to
find out what they wanted to know. It goes like this: SCO asks "How
exactly can we find the code that wasn't destroyed on CMVC". IBM says one
of two things, it says A) "Here it is", at which point, SCO now can
use that against them at trial - they can say "We can prove that the
developers could have referenced this UNIX code when they wrote that Linux
code". Or, alternatively, IBM says B) "Well, you can in general find
it here, but we can't point you to what exact query will give you the code on
their machines because we don't know what code was on their machines - it was
deleted", at which point SCO then immediately renews their motion for
spoliation saying "IBM admits now that information on what UNIX code those
developers had access to was deleted, denying us from showing at trial what they
could have referenced while writing Linux code".

It's a very smart play by SCO's lawyers. They lose the motion, but get what
they want anyway. It has nothing to do with the fact they can't find it. They
just honestly don't know what it was, and now IBM has to tell them, or admit
they don't know either.

---
Ex Turbo Modestum

[ Reply to This | # ]

This must be a red letter day for SCO
Authored by: Anonymous on Friday, January 19 2007 @ 01:17 AM EST
They actually won something! Not much, but something. Of course, they lost
something much bigger, but I'd guess in SCOland they have to celebrate every
victory no matter how small.

Since this will probably be their last victory for a while (or forever), I'd
suggest they make the most of it while it lasts. Should be good for at least a
couple of days of wild spinning anyway.

[ Reply to This | # ]

    Judge Wells Rules: IBM Did *Not* Destroy Evidence - Updated
    Authored by: Rann on Friday, January 19 2007 @ 02:01 AM EST
    Have you noticed how her honour's been fully informed and is now ruling from the
    bench?

    The winds have changed indeed!

    [ Reply to This | # ]

    Judge Wells Rules: IBM Did *Not* Destroy Evidence - Updated
    Authored by: Anonymous on Friday, January 19 2007 @ 03:19 AM EST
    Now we are awaiting the headlines in various media about how SCOX got a major
    victory in the case. I am eager to see those reported and torn to shreds on
    Groklaw.

    Anyway it is quite funny to know they requested CMVC access with so much noise
    and didn't even attempt to use it?

    [ Reply to This | # ]

    Registering bloggers as Lobbists
    Authored by: Anonymous on Friday, January 19 2007 @ 06:44 AM EST

    http://yro.slashdot.org/yro/07/01/19/0553211.shtml
    >>>
    The vote was 55 to 43 to defeat the provision. All 48
    Republicans, as well as 7 Democrats, voted against
    requiring bloggers to register; all 43 votes in favor of
    keeping the registration provision were by Democrats."
    <<<

    [ Reply to This | # ]

    Thanks to the reporting team....
    Authored by: russellphoto on Friday, January 19 2007 @ 08:02 AM EST
    Hey guys --

    Thanks for spending the time in the courtroom. Thanks for the great notes (to
    both/all). Thanks for keeping us informed.

    Ain't it great what a COMMUNITY can do? ;-)

    Russellphoto

    [ Reply to This | # ]

    Forbes.............
    Authored by: Anonymous on Friday, January 19 2007 @ 08:28 AM EST
    I know they made a major mistake last time they took SCO at
    their word and even admitted that they made a error printing
    what SCO told them.

    The Forbes article didn't seem to outright say that IBM destroyed evidence, only
    that SCO claimed it.

    Is there/was there another article?

    [ Reply to This | # ]

    Only thing SCO learned From IBM so far
    Authored by: Anonymous on Friday, January 19 2007 @ 08:42 AM EST
    "This lawsuit intensionally left blank."

    [ Reply to This | # ]

    Sample source code control system workflow
    Authored by: mossc on Friday, January 19 2007 @ 10:24 AM EST

    This is a typical development process for multiple developers using a source code control system with a central repository.

    1. developer checks out module.- This makes a copy of a specific version of a set of source code on the developers local filesystem. This is their "sandbox".

    2.Local copy is used for one or more of the following each is completely optional.

    • 2.1 reference code.
    • 2.2 build code.- compile the source code tree and run the resulting executables
    • 2.3 add files to code tree.- new files are added if needed to add functionality etc
    • 2.4 remove files from code tree.- unused files can be removed from the tree
    • 2.5 change existing files in code tree.- development, bug fixes, added functionality
    • 2.6 do absolutely nothing with the files.- many times a developer will check out a module and later find he doesn't need it, as an example a developer could check out the whole JFS source tree and not use the AIX subdirectory/module for anything he does later

    3. developer tests changes if any were made (optional step).- These test will check if system will build and probably perform unit tests on any changes made

    4. if happy with any changes developer commits changes (optional).- this step actually updates the source files in the repository and makes any changes available to other developers. If nothing was changed or the developer determines the modifications were worthless they will skip this step

    5. repeat steps 2-4 as needed (optional).

    6. when done the developer will "release" the checked out module.- This step will be recorded in the source code control system and remove the local copy of source code tree. This removes the module from their "sandbox"

    I think this is the basic workflow in a typical development environment. A few things to note.
    First, if developers do anything with the files changes are checked in regularly, if not the time spent can be completely wasted.
    Second, often developers will checkout a module and do nothing with it until releasing/removing the module.
    Third, everything possible tends to be tracked by the source code control system.

    I am betting what happened in the case of IBM is management instructed developers to "release" any AIX code on their systems that they were not using.The files were probably not modified so nothing was there to commit. They simply removed the directory tree via CMVC commands and CMVC probably tracked that action.There was no evidence on the local systems removed just simply a copy of one specific version of some AIX code.This release/cleanup was done so that developers could not be accused of using AIX code as reference for any other development.

    TSG has either misunderstood what happened or purposely mis-characterized it as deleting evidence in order to create some dispute. I am betting the later since they did not bring it up during discovery. If they really thought IBM employees were destroying evidence they should have brought that to the courts attention immediately.

    If for some reason what actually happened is unclear to the court or one of the parties an analogy could be made to paper documents.

    Chuck

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    What is SCO looking for?
    Authored by: GLJason on Friday, January 19 2007 @ 02:33 PM EST
    He (Sontag) went on to declare how easy it is, rudimentary even, to get out of such a system the materials SCO was asking the court for and then got. Now that was years ago. IBM pointedly told Judge Wells at the hearing, I'm told, that there is no evidence that SCO ever even looked at the CMVC materials. Actually, on reflection, what IBM should do is point to the instructions they already provided and say, There you go. And here's how to plug it in.

    SCO's problem is that there is not really anything they could possibly hope to get. They saw that some people deleted some files and used that information to try and make IBM look bad. Those files are in CMVC yes, but that doesn't help SCO since their whole point was just to make IBM look bad. SCO is starting with the invalid assumption that there was something specific that was deleted that would help their case. IBM pointed out that the only files that were deleted are present in CMVC. What SCO is looking for is not in CMVC, and indeed does not exist anywhere. How can IBM help them find something that doesn't exist?

    I imagine SCO's request for help from IBM will go like this:

    IBM: How can we help you get what you need out of CMVC?

    SCO: Give us the command that will show us the SVRX files that you put into Linux.

    IBM: We didn't put any SVRX files in Linux.

    SCO: That's what we were asking for and you said that those files were in CMVC! Judge Wells asked you to help us, so show us the files!

    IBM: [laughing] Oh, just type 'cat /dev/null', that will return a complete listing of SVRX-derived files we placed into Linux.

    [ Reply to This | # ]

    SCOfolk Memories
    Authored by: tangomike on Friday, January 19 2007 @ 09:01 PM EST
    The biggest problem that SCO/BS&F have is no one's in charge. Nobody is
    keeping track of who said what. It's been that way from the start. It's why they
    keep tripping over their own stuff, and the footgun has been nearly worn out.

    It's also clear that a lot of the work done in this case would have failed first
    year law students. It does make for nice comedy though.

    ---
    Deja moo - I've heard that bull before.


    [ Reply to This | # ]

    Always try to pair motions
    Authored by: Anonymous on Saturday, January 20 2007 @ 12:11 PM EST
    I sense a pattern where the court seems to want to give something to each side.
    If there is one motion, it is partly granted, partly denied. If there are two
    motions being considered, one goes to one side, the other to the other side.
    Not 100%, but enough that I would want to always have a giveaway motion or part
    along with the one that I must win if I were before this court. Perhaps they
    are too used to sides asking way too much expecting to settle for something in
    the middle. IBM plays it straight and honest, SCOX is nearly 100% gaming, so in
    this case a little too much goes to SCOX due to this court's misguided attempt
    at "fairness."

    [ Reply to This | # ]

    • Always??? - Authored by: Ed L. on Saturday, January 20 2007 @ 09:09 PM EST
    Need to read the transcript, but...
    Authored by: mnuttall on Monday, January 22 2007 @ 09:01 AM EST
    [T]hey could have looked up the names of people in the LTC (provided by IBM) turned on the CMVC machine they've had for over two years in their office and see what code they checked out.
    If my lawyer said this, I'd be squirming in my seat. I use CMVC every day. A CMVC user wanting to look at, but not change a file stored in CMVC would extract the file. This places a copy of the file on their local system. To change the online version of a file, it must be checked out, the local copy modified, and then checked in. When a file is checked in, CMVC will record the changes made, the time, the userid, etc.

    To the best of my knowledge (I'm not a CMVC sysadmin), CMVC does not record anything about files extracted by users. So if I were a developer I might have an extract of a large amount of code on my local machine, but only check out and check in the small subset of files that I was responsible for changing.

    So yes, SCO could look to see who checked in which files. That however would not give them anything like a full picture as to which developers had which code on their systems. Maybe Mr Shaughnessy knows more about CMVC admin than I do. Maybe he knew that talking about 'checked out' files was safe, but only partially true. Or maybe he was overreaching himself. Hence my discomfort.

    [ Reply to This | # ]

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