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IBM FILES A SECOND MOTION TO COMPEL DISCOVERY
Saturday, November 08 2003 @ 01:56 AM EST

IBM has now filed a second Motion to Compel Discovery. The PDF from Pacer is here. IBM is really pressing SCO hard. The first IBM Motion to Compel, which is still pending and will be conferenced in November, had to do with IBM's first set of interrogatories and requests for documents.

Now, having served SCO with a second set of interrogatories and request for documents, they are telling the court that they asked SCO to identify all of the material in Linux to which SCO claims any rights and if and how SCO contends that IBM infringed SCO's rights, but that SCO wouldn't give them meaningful answers. Also they say they asked for documents that SCO could have produced months ago and still hasn't turned over. So now they are filing a second Motion to Compel. There is a memorandum in support of this motion, which a volunteer is preparing as text. We'll get it up as soon as we can.

These two IBM motions are separate from SCO Motion to Compel. There are three motions to compel now before the court. I guess you could say that they are seriously not friends. IBM asks that both its motions to compel be heard on December 5, the date already set for oral arguments if the conference in November shows there is still a need for a hearing.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.,
Plaintiff/Counterclaim Defendant

vs.

INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant/Counterclaim Plaintiff
DEFENDANT/COUNTERCLAIM PLAINTIFF IBM'S SECOND MOTION TO COMPEL DISCOVERY AND CERTIFICATE OF COMPLIANCE WITH RULE 37(a)(2)(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE

(ORAL ARGUMENT REQUESTED)

Civil No. 2:03cv0294

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

Pursuant to Rule 37 of the Federal Rules of Civil Procedure, Defendant/Counterclaim Plaintiff International Business Machines Corporation ("IBM"), through counsel, hereby moves this Court for an Order compelling Plaintiff and Counterclaim-Defendant The SCO Group ("SCO") to (i) respond fully to IBM's second set of interrogatories, and (ii) to produce categories of documents that SCO has agreed to produce but have not been forthcoming.

As set forth in detail in the memorandum accompanying this motion, SCO's response to IBM's second interrogatories is inadequate and incomplete. These interrogatories ask SCO to identify all of the material in Linux to which SCO claims any rights (Interrogatory No. 12), and, with respect to the material identified, whether SCO contends that IBM infringed SCO's rights and how (Interrogatory No. 13). SCO responds to these interrogatories by (i) raising various groundless objections, and (ii) incorporating by reference its answers to Interrogatory nos. 1, 2 through 4 (which are the subject of IBM's pending motion to compel). SCO has not provided a meaningful response to these interrogatories and should be compelled to do so. In addition, SCO has failed to produce to IBM important categories of documents that it could have produced months ago.

CERTIFICATION OF COMPLIANCE WITH RULE 37(a)(2)(A)

Counsel for IBM has made good faith efforts to obtain complete discovery responses without Court action, but has been unable to do so. As detailed in IBM's first motion to compel, the parties have exchanged numerous letters and e-mails, and have participated in several phone conferences to resolve various discovery disputes (See IBM's First Motion to Compel and Certificate of Compliance with Rule 37(a)(2)(A)). Counsel for the parties did not specifically discuss Interrogatory nos. 12 and 13 because, at that time, SCO had not yet answered these interrogatories. However, the parties discussed at length the deficiencies in SCO's answers to Interrogatory nos. 1 through 9, the very same of deficiencies present in SCO's answers to Interrogatory 12 and 13. Indeed, in responding to IBM's Second Set of Interrogatories, SCO merely incorporates by reference its answers to Interrogatory nos. 1, 2 and 4, which are the subject of IBM's first motion, and the subject of extensive discussion by the parties. With respect to the production of documents, counsel for IBM has requested on several occasions that SCO promptly produce all responsive documents that are ready for production. Although counsel for SCO has agreed to do so, such documents have not been provided, as detailed in IBM's accompanying memorandum.

REQUEST FOR ORAL ARGUMENT

IBM also requests oral argument on this motion pursuant to DUCivR 7-1(f), and that it be heard on December 5, 2003, the date currently set for hearing on IBM's pending motion to compel.

DATED this 6th day of November, 2003


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