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IBM's Motion to Compel Discovery: What Trade Secrets Are You Talking About?
Wednesday, October 08 2003 @ 02:11 AM EDT

Here is IBM's Motion to Compel, as a pdf, thanks once again to Frank Sorenson. Here's another one. And here is IBM's Memorandum in Support of their motion, which is where IBM explains its position and cites all the cases it can think of and the law that supports its side of the argument. Thanks go to Peter Frouman. (We only have the first 9 pages of it, but the rest will come later. -- Done. The link is now to the complete Memorandum.) And here is an Addendum to the Memorandum. Enjoy!

We're reading it together at the same time, because I just now got it. What I see so far is IBM is asking SCO to specify precisely what trade secrets it accuses IBM of having misappropriated. They are asking them to tell them exactly what source code is involved. They point out it's been six months since the lawsuit was filed, and they still don't know with any particularity what the accusation is about:

"In a case relating to software, such as this case, a defendant is entitled to know the files and lines of code it is alleged to have misappropriated. A plaintiff may not persist in vague assertions about the substance of the claimed secret and leave the defendant to guess at the basis of the lawsuit."

Hear, hear! I've read some of the Exhibits, and SCO's position appears to be in part that IBM already has the code and that they want confidentiality preserved. That again, to which IBM says, fine to the confidentiality, but it continues to press for the particular code. IBM points out in the Memorandum that in its marketing, such as the SCOForum, SCO showed specific lines of code, but in discovery, it hasn't mentioned one line of code but instead mentioned "non-literal transfers" of "methods". So, it's "put up or shut up" time at last, it seems. IBM has requested oral argument. That means both sides have to show up and actually present their arguments to the judge, not just on paper. I'd so love to be there for that.

Thank you, Frank. Thank you, too, Mrs. Sorenson, for putting up with Groklaw. We have more documents too that Frank got for us, the Exhibits, but it'll take a while to get it all up for you. Meanwhile, enjoy what we already have available.

On the Red Hat front, if anyone in DE is passing by the courthouse, here is what is new:

9/30/03 14 Letter to Clerk from A. Poff re DI # 13; problems with formatting and minor typographical errors; enclosing a corrected version of the brief (ft) [Entry date 10/01/03]

10/2/03 15 MOTION by SCO Group Inc. to Stay Discovery Pending Resolution of Motion to Dismiss Answer Brief due 10/16/03 re: [15-1] motion (ft)

10/3/03 16 STIPULATION to extend time for deft. to file reply brief in support of Motion to Dismiss; with proposed order (ft)

10/6/03 -- So Ordered granting [16-1] stipulation reset Reply Brief Deadline to 10/10/03 re: [8-1] motion to Dismiss ( signed by Judge Sue L. Robinson ) Notice to all parties. (rd)

UPDATE: Here are the exhibits we promised:

Exhibit A - IBM letter April 2, 2003
Exhibit B - IBM letter May 5, 2003
Exhibit C - Maureen O'Gara LinuxWorld story

Exhibit D - Defendant IBM's First Set of Interrogatories and First Request for the Production of Documents

Exhibit E - Plaintiff's Responses to Defendant's First Set of Interrogatories and First Request for the Production of Documents

Exhibit G - IBM letter August 27, 2003
Exhibit H - SCO letter September 8, 2003
Exhibit I - IBM letter August 29, 2003

Exhibit J - Plaintiff's First Request for Production of Documents and First Set of Interrogatories

Yes, we seem to be missing Exhibit F, but we're hunting for it.

Try this for Exhibit F - SCOSource Slide Show.

We have arranged to get the DE documents, so no more volunteers are needed.




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