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Exhibits A-F -- IBM Memorandum in Opposition to SCO Motion to Compel Discovery
Thursday, November 27 2003 @ 05:05 PM EST

There are six paper exhibits attached to IBM's Memorandum in Opposition to SCO's Motion to Compel Discovery. They show the trail of discovery discussions betweeen the two sides. The most significant issue does appear to be SCO asking for discovery related to derivatives, modifications, and methods and IBM responding that SCO has not yet defined its terms or told them what code is at issue or what trade secrets have supposedly been violated. Here then, thanks to Niels, in order, Exhibits A-F as text.

***************************************
http://sco.tuxrocks.com/Docs/IBM/Doc-79-A.pdf
EXHIBIT A:

Shaughnessy, Todd

From: Shaughnessy, Todd
Send: Wednesday, October 08, 2003 5:15 PM
To: 'Mark J. Heise'
Cc: Dave Marriott; Christine Arena (XXX@XXX.com)
Subject: IBM / SCO

Mark,

As promised in my voicemail and e-mail of yesterday, we have performed additional follow-up work with our client and can confirm the following regarding your requests for source code.

With respect to Request Nos. 2 and 3, IBM will produce the source code for each release of AIX and Dynix distributed within the time frame specified by those requests. For each of the foregoing, we can also produce subsequent maintenance updates or releases, including patches or fixes to the code subsequent to the initial release. To the extent that final maintenance update or patch view for a particular release is cumulative of the previous updates or patch views, however, we will produce only that final version. Finally, IBM will undertake a reasonable search for and produce any preceding early releases (including "beta" versions) responsive to these requests.

We have already completed the process of identifying the third-parties whom IBM must notify (or from whom IBM must obtain consent) prior to the productions of much of the source code we had initially agreed to produce. Pursuant to the procedure set forth in Paragraph 10 of the Stipulated Protective Order, we are sending out notification letters to those parties this week and plan to have that process substantially finished within the next few days. We are continuing to work to identify any additional third parties who may require notice prior to production of other versions of the code that we have since agreed to produce, and will work to send notice letters to the same as promptly as possible.

Finally, we will be sending to you tomorrow the letters I mentioned concering the remaining items raised during our teleconferences in September and the associated correspondence.

If you have any questions, please let me know.

Todd

Snell & Wilmer
[address, phone, fac, email]


This message and any attachments to it contains privileged and confidential attorney client information and/or attorney work product exclusively for the intended recipients. Please do not forward or distribute to anyone else. If you have received this email in error, please call [number] to report the error and delete this message from your system.

***********************************************
http://sco.tuxrocks.com/Docs/IBM/Doc-79-B.pdf
EXHIBIT B:

VIA FACSIMILE AND U.S. MAIL

Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
[address]

Mark J. Heise
BOIES, SCHILLER & FLEXNER, LLP
[address]

Re: SCO v. IBM

Dear Brent and Mark:

We have reviewed Mark's letter of September 8, 2003 (the "Objection Letter"), setting forth The SCO Group's ("SCO's") "concerns" with respect to IBM's Responses and Objections to SCO's First Request for the Production of Documents and First Set of Interrogatories ("IBM's Responses"). This letter responds thereto.

First, please be assured that we share the goal stated in second paragraph of the Objection Letter, to provide appropriately requested documents and let the facts come out in Court. We note, however, that while certain of IBM's objections may be similar in form to those lodged by SCO in its Response to IBM's First Set of Interrogatories and First Request for Production of Documents ("SCO's Responses"), IBM's Responses were made in the context of a wholly different set of discovery demands and must be evaluated independently. We address SCO's concerns in turn:

I. General Objections

General Objection Nos. 1-3, 5, 7, 10. IBM is not affirmatively withholding responsive, non-privileged documents based on these general objections. However, it should be noted that IBM has sought to collect potentially responsive documents from individuals whom we have determined to be the most likely sources of information requested by SCO, in addition to certain centralized business files. We believe this constitutes a reasonable search for responsive documents given IBM's size and SCO's failure to particularize the factual basis of its causes of action. IBM is not presently seeking to collect, review or produce any documents that are not kept in the ordinary course of business by these individuals.

General Objection No. 4. IBM has attempted to collect, where appropriate, documents dating as far back as January 1, 1985 that have been retained in the ordinary course of business by the individuals indentified as likely sources of responsive documents. We intend to produce any responsive, non-privileged information identified in their files.

General Objection No. 6. As you are well aware, the Amended Complaint fails to particularize, among other things, the code which SCO alleges IBM has wrongfully contributed to Linux. Despite IBM's repeated requests for this information - which is clearly within SCO's possession given its willingness to provide the same to analysts, customers and members of the press - SCO has refused to provide any further clarification for IBM. We believe that discovery in this case is properly limited to information concerning such alleged disclosures, and, without identification thereof by SCO, we are left to interpret in a vacuum a series of overbroad requests. We reiterate our request to you to define the scope of the alleged wrongdoing in this case so that discovery can be appropriately tailored.

General Objection No. 8. IBM has not, as a general matter, attempted to collect responsive documents that are generally available to the public, including SCO. To the extent such documents are otherwise included in the files that we have otherwise collected, however, IBM is not affirmatively withholding them on the basis of this object.

General Objection No. 10. Please see our preceding response re: General Objections 1-3, 5, 7 and 10.

General Objection No 11. In several instances, IBM has already provided further clarification of this objection throughout the Specific Objections. See, e.g., IBM's Response to Request No. 39. Despite SCO's lack of specificity, IBM has attempted in most instances to discern the information being sought and will produce responsive, non-privileged documents despite this General Objection and the Specific Objections.

General Objection No. 15. Please see our preceding response re: General Objections 1-3, 5, 7 and 10 for clarification of the reasonable search that is being conducted by IBM. IBM's Responses already specify each request in response to which a reasonable search for documents is being performed.

General Objection No. 17. We expect to commence a rolling production of documents this week. Please confirm that, until the stipulated protective order is entered by the court, SCO will treat all information produced by IBM on an attorneys-eyes-only basis. (We will, of course, do the same for SCO.) We will send the first installment of discs to Mark's attention upon receipt of that confirmation.

General Objection No. 18. IBM is not withholding non-privileged, responsive documents on the basis of this objection.

General Objection No. 19. IBM is not withholding non-privileged, responsive documents on the basis of our objections to these definitions insofar as they relate to prior versions, releases and updates of AIX or Dynix. Please see the upcoming response re: General Objection No. 22 for our continued concerns relating to your definitions' use of the terms "derivatives works", "modifications" or "methods".

General Objection No. 20. IBM stands by this objection. For purposes of responding to SCO's requests, we have interpreted IBM to mean the International Business Machines Corporation, its subsidiaries, divisions and employees.

General Objection No. 21. IBM accepts the definition of UNIX set forth at page 21 of its own First Set of Interrogatories and First Request for Production of Documents.

General Objection No. 22. Until SCO specifies the code which it alleges IBM has wrongfully contributed to Linux, we cannot make any meaningful interpretation of these terms in order to properly define the scope of documents for production. We reiterate our request that you provide this information forthwith. Please see our preceding response re: General Objection No. 6.

II. Document Responses

Response to Request No. 1. As stated in our preceding response re: General Objections 1-3, 5, 7 and 10, we have undertaken to search for responsive documents in the files of individuals most likely to possess the same.

Response to Requests Nos. 2 and 3. Please see our preceding response re: General Objection No. 22. In addition, IBM stands by its objection that these requests are both overbroad and unduly burdensome. Two versions of AIX were shipped from May 1999 to the present: versions 4 and 5. We have already agreed to provide the final releases for those versions: 4.3.3 and 5.2. In addition, we will produce AIX version 5.1 for Itanium-based systems. These will include the fixes and updates to these releases. From January 1, 1999 to the present, one version of Dynix was shipped: version 4. We have already agreed to produce three releases of that version (4.4.10, 4.5.3, and 4.6.1) and will produce three other releases as well (4.2.4 and 4.3.1). Again these will include the fixes and updates to these releases. Please note that foregoing will require a substantial number of third-party notifications prior to production.

Response to Requests Nos. 4-6. Please see our preceding response re: General Objection No. 22. We are not withholding non-privileged, responsive documents based on our objections that ceratin requests are duplicative. While we are unaware of any requirement under the Federal Rules to articulate whether documents produced in response to different requests are identical, we expect that many of the documents produced in response to these requests (for example, confidentiality agreements) are also responsive to Requests 7, 8 and 9, respectively.

Response to Request Nos. 7-9. Please see our preceding response re: Response to Requests Nos. 4-6.

Response to Request No. 10. You have adopted the definition and limitation previously articulated by IBM in its response to this request. Subject thereto, and as previousely stated, IBM will conduct a reasonable search for and produce non-privileged documents responsive to this request.

Response to Request No. 11. IBM stands by its objections in response to Request No. 11. As drafted and clarified in your Objection Letter, this request calls for all documents relating to any open-source contributions of any kind by IBM - and as such is highly objectionable for the reasons stated in IBM's Responses. Contrary to the suggestion in your objection, IBM does not keep a centralized listing of "its contributions" to open-source. With respect to IBM's contributions to Linux, however, summary information identifying IBM contributions is readily available to SCO and members of the public on a variety of Linux websites - including kernel.org and sourceforge.net. We note, however, that various divisions of IBM prepare patches contributed to open-source without confidentiality restrictions that are completely unrelated to this litigation. The only open-source contributions pertinent to this case are those which SCO alleges were made by IBM in violation of confidentiality provisions in the agreements inherited by SCO - which, as noted above, SCO has time and again refused to specify.

Absent the necessary clarification from SCO and despite these well-founded objections to Request No. 11, IBM has undertaken to collect documents from various members of the Linux Technology Center (the "LTC") who are responsible for work relating to open-source contributions to Linux. In addition, we are collection materials from the Open Source Steering Committee (the "OSSC"), the group within IBM responsible for reviewing and approving open-source projects. We intend to produce non-privileged documents identified in these files that relate to IBM open-source contributions to Linux.

Response to Request Nos. 12-14. Please clarify your "concerns" with respect to our responses to these requests. Those set forth on Page 8 of your Objection Letter, while referencing these requests, appear to be directed at Request No. 11.

Response to Request Nos. 15-17. We withdraw our objection regarding the duplicative nature of these requests: given your clarification, we understand that Requests 12-14 call for identification of third parites (if any) to whom Unix, AIX or Dynix source code was provided and that Requests 15-17 call for identification of internal IBM/Sequent personnel who had access to the same. We disagree, however, that SCO is entitled to "all documents" that identify those IBM/Sequent personnel. Read literally, this requests (as drafted) would require us to search for and produce all documents concerning any IBM employee with access to AIX code - including ID badges, personnel files, payment records, benefits statements, etc. These are classic examples of requests for which documents sufficient to show the pertinent informatino sought (i.e., the identity of persons with access to code) will suffice - we intend to produce a list of the same in response to your interrogatories. What else do you want?

Response to Request No. 18. IBM stands by its objections in response to this request. Despite these objections, however, we can confirm that we have included in our search Sam Palmisano and other individuals who were determined to be likely to possess correspondence or agreements (if any) with Linus Torvalds. We intend to produce from those files any correspondence or agreements with Mr. Torvalds, as well as any non-privileged documents relating thereto.

Response to Request Nos. 19-25. IBM stands by its objections in response to these requests. You state that you "do not know what IBM finds nonsensical about these requests": as explained in IBM's Responses, the phrase "documents . . . with" these different enumerated entities simply do not make sense. Given your refusal to clarify, we have interpreted this language to mean documents relating to the correspondence or agreements otherwise sought in these requests, and will undertake to produce such non-privileged documents (if any) identified in the files searched.

Response to Request Nos. 26-27. IBM stands by its objections in response to these requests. As drafted, these requests would literally call for a broad range of documents, completely unrelated to the issues in the litigation - for example, personnel files, payment records, benefits statements, etc. These are additional examples of requests for which documents sufficient to show the information sought (i.e. the identity of persons employed in the LTC or Linux Center of Competency) will suffice - we intend to produce a list of same in response to your interrogatories. What else do you want?

Response to Request No. 28. IBM stands by its objections in response to this request. Project Monterey was a broad-reaching initiative spanning several years and involving work by hundreds of different IBM employees. The request as drafted would call for the collection of every document concerning (as that term is broadly defined) Project Monterey from every such individual at the company. Such endeavor would be highly burdensome on IBM and is not justified by the likelihood that admissible evidence would be uncovered through such efforts. Nevertheless, we have attempted to gather documents responsive to this request by search for documents from IBM employees with significant involvement in technical, business development, and contractual aspects of Project Monterey. We intend to produce non-privileged documents (if any) concerning Project Monterey indentified in the files of those individuals.

Response to Request Nos. 29-31. Please see our preceding responses re: General Objection No. 22. Nevertheless, we will produce non-privileged documents identified through a reasonable search sufficient to identify Unix, AIX or Dynix source code disclosed by IBM to a third party or the public.

Response to Request Nos. 32-34. IBM stands by its objection with respect to use of the terms "derivative works, modifications, or methods", as stated in the preceding response re: General Objection No. 22. However we appreciate your clarification regarding the scope of documents sought in these requests. We will produce any non-privileged memoranda discussing the subject matter of these requests or other companies' contributions to Linux, in addition to any other non-privileged, responsive documents identified.

Response to Request No. 35. 2 For the reasons stated in the preceding response re: Request No. 11, Request No. 35 as drafted calls for production of a broad scope of documents that are entirely unrelated to the subject matter of this litigation. Nevertheless, we are undertaking to produce from the files of LTC and OSSC personnel non-privileged documents that relate to IBM's open-source contributions to Linux. We believe this is a reasonable compromise at this stage of discovery.

Response to Request No. 36. IBM stands by its objections to this request. While we appreciate SCO's cooperation in producing documents in response to IBM's Request No. 52, it is irrelevant to IBM's position here. Unlike SCO, IBM has hundreds of operating divisions worldwide and over 300,000 employees. 3 (By contrast we understand that SCO has only two operating divisions and approximately 340 employees.) SCO's unlimited request for "all documents that show IBM's organizational and personnel structure" would thus be quite burdensome and is simply not justified by any likelihood that admissible evidence would be uncovered from these efforts. Nothing in your Objection Letter establishes the contrary. We expect to produce documents relating to the IBM units involved in AIX, Dynix and Linux development. If there are other specific areas of the company that you believe are pertinent to this case, please articulate them and we will consider additional production.

Response to Request No. 37. IBM stands by its objections in response to this request. For the reasons stated in the preceding responses re: Request Nos. 11 and 35, requests for statements regarding IBM's contributions to open-source, without further limitation are plainly overbroad. Furthermore, as stated in the preceding response re: General Objection 8, IBM has not affirmatively sought to collect publicly available information that is equally accessible to SCO - such as third-party, public articles reporting on IBM statements regarding its contributions to open source. Subject to these objections, IBM has conducted a reasonable search for responsive documents from individuals likely to possess such information, including top company executives and their speechwriters, as well as from centralized repositories of company press releases. Privileged documents will, of course, be logged appropriately. What else do you want?

Response to Request Nos. 38 and 39. IBM stands by its objections in response to these requests.

Request No. 38 is plainly overbroad and seeks to impose undue burdens on IBM. The Open Source Developer's Class is a broadly administered educational session that has been attended by hundreds of IBM employees worldwide. As drafted, Request 38 would literally call for IBM to interview each such employee who attended these sessions, as well as each employee who administered such session, to collect, for example, every note taken or handout obtained. Such efforts would not be justitied by any likelihood that admissible evidence would be obtained. Nevertheless, we have undertaken to perform a reasonable search for documents relating to the Open Source Developer's Class and will produce non-privileged documents responsive to this request. Privileged documents will, of course, be logged appropriately.

Likewise, we have attempted to reasonably construe your Request No. 39. We have identified IBM personnel with primary responsibility for matters relating to export controls, and intend to produce non-privileged documents collected from their files sufficient to show IBM's policies pertaining to Unix, AIX or Dynix exports (if any).

Response to Request Nos. 40-41. IBM stands by its objections in response to these requests. IBM has used Intel processors in a broad range of its products and services before and after 1998: for example, most of the personal computers shipped since 1998. As drafted, these requests would literally call for production of a vast array of documents wholly irrelevant to this litigation - ranging from contracts with Intel, to technical specifications and development documents relating to products that incorporate the Intel processors, to marketing materials, sales and financial information relating to the same, to name only a few. Please clarify the types of documents you are interested in so that we can have a meaningful discussion about their relevance and the scope of production.

Request Nos. 42. Please see our preceding responses re: Request No. 11 for a description of the documents that we intend to produce with respect to IBM's contributions to Linux.

Request Nos. 43-52. We obviously disagree with you as to the merits of IBM's objections. Nevertheless, we intend to produce responsive, non-privileged documents.

III. Interrogatory Responses

Interrogatory No. 2. IBM stands by its objections in response to this interogatory. Nevertheless, we have undertaken to identify IBM officers and employees believed to have knowledge about the issues in this lawsuit and expect to amend our answer to this interrogatory as soon as practicable. Once you have reviewed our response, we can discuss any additional information you think you need.

Interrogatory No. 4 and 5. IBM stands by its objections in response to these interrogatories. We are, however, in the process of collecting (to the extent practicable) documents showing IBM and Sequent employees who may have had access to AT&T Unix System V, AIX and/or Dynix source code, as well as those who may have worked on developing AIX, Dynix or Linux, and intend to amend our responses these interrogatories as soon as practicable. Once you have reviewed these documents, we can discuss any additional informatino you think you need.

Very truly yours,

[signature]
Todd Shaughnessy

cc: David Marriott
Alan Sullivan

 

1 Per your e-mail to David Marriott of July 9, 2003, we understand that the date range specified in Instruction No. 1 was a typo, and should have stated "January 1, 1985 to present".

2 IBM withdraws the objection stated in the sentence of its original Response to Request No. 35.

3 For an overview of the corporation, we suggest you consult IBM's most recent 10K filing.

*************************************************
http://sco.tuxrocks.com/Docs/IBM/Doc-79-C.pdf
EXHIBIT C:

BOIES, SCHILLER & FLEXNER LLP

September 22, 2003

Via E-Mail and U.S. Mail

Todd M. Shaughnessy, Esquire
Snell & Wilmer, LLP
(address)

Peter Ligh, Esquire
Cravath, Swaine & Moore LLP
(address)

RE: SCO v. IBM

Gentlemen:

We covered so much in the many hours of discussion last week with respect to production that we thought it prudent to clarify and summarize the larger open issues. Since you asked that we address SCO's concerns with IBM's responses first, we were able to get through all of those issues. We still await your call to schedule time to finish addressing any concerns you may have with SCO's answers to IBM's requests for production and interrogatories. We do believe we will be able to resolve most, if not all, of your concerns.

To facilitate this summary, we will track Todd's correspondence of September 15, 2003.

I. General Objections

General Objection Nos. 1-3, 5, 7, 10. IBM has objected and stated it will conduct a reasonable search for responsive documents by determining the likely sources of the information sought and, with respect to individuals, searching their computer, office and home files. As we discussed, while this initial step is appropriate for both sides, both sides are not just obligated to perform a reasonable search, but also to act in good faith to produce all responsive documents. in any event, you have confirmed that you are not withholding responsive, non-privileged documents.

Along these lines, we had discussed preparing a source log to accompany the CDs. We agreed that this is a good idea and will be providing one later this week for the 46 previously provided CDs. For future logs, the necessary information should be an identification of the source (i.e. general file, source code, individual). If it is an individual, we should identify the person and their position in the company so we know whether they were involved in particular issues, e.g. Linux, AIX, licensing, etc.

General Objection No. 4. We have agreed that both SCO and IBM will use January 1, 1985 as the start date for documents, however, should responsive non-privileged documents of an earlier date be discovered, they will be produced. Additionally, you were going to determine whether you believed there were any particular requests for which IBM required documents which predated 1985. Please advise.

General Objection No. 6. We directed you to the allegations in SCO's Amended Complaint, including, without limitation, as related to NUMA, RCU and SMP technology. Todd advised that in light of his technical disadvantage, he would discuss this issue with others and get back to us to ensure that IBM will produce responsive non-privileged documents, even in light of this objection.

General Objection No. 8. You have confirmed that you will provide responsive, non-privileged documents in IBM's possession even if they are also publicly available.

General Objection No. 10. You have confirmed that you are not withholding documents on this basis.

General Objection No. 11. You have confirmed that you will produce responsive, non-privileged documents and that the limitation you placed with respect to IBM's attempts "in most instances to discern the information sought" meant only that IBM had not "attempted . . . to discern" information with respect to Intel processors. We clarified that SCO only seeks information regarding Intel processors with UNIX, AIX or Linux platforms. You will confirm that you will provide responsive, non-privileged documents with this limitation.

General Objection No. 15. Please see our previous corresponding comments.

General Objection No. 17. We both agreed to this but the Court order has now been entered.

General Objection No. 18. Nothing is being withheld.

General Objection No. 19. This remains as our big issue, i.e., our position that IBM is obligated to produce "derivative works, modifications and methods" vs. IBM's position that it cannot determine what those terms mean, despite their specific use in the agreements between the parties. Nevertheless, Peter confirmed that he is not aware that IBM is withholding anything based upon it being a derivative rather than AIX itself and that IBM is producing any AIX, UNIX, and Dynix documents even if they are, arguably, related to a derivative work, modification or method. To assist in locating responsive documents for the methods of the various operating systems, we need all programming notes, comments, and experiments, including interim and final versions of UNIX, AIX and Linux programming. This includes but is not limited to technical UNIX categories, such as mutli-processor locking and unlocking methods, methods for avoiding locking requirements, methods of implementing filing systems, de-bugging methods, methods for implementing and improving processor scalability, methods for implementing and improving processor reliability, methods for implementing processor accessibility, methods for implementing and improving scheduling systems, methods for implementing and improving memory management, methods for implementing and improving threading and multi-threading, and methods for implementing and improving general system functionality based on UNIX technology.

We reiterate the necessity for all versions, not just the final versions. these are essential to determine the full scope of IBM's violations.

General Objection No. 20. You have agreed that the definition of IBM shall include its officers and that you have not found any directors who are not also officers, but shall advise us in the event that is the case. In addition, "IBM" includes Sequent materials in IBM's custody, control or possession.

General Objection No. 21. See our comments in General Objection No. 19, above.

General Objection No. 22. See our comments in General Objection No. 6, above.


II. Document Responses

Response to Request No. 1. You have confirmed that responsive, non-privileged documents are being produced.

Response to Request Nos. 2 and 3. See our comments to General Objection No. 19, above. We need confirmation as to whether we are getting all versions of the requested items, not simply the final version. Also, you need to let us know when we can get these documents in light of your statement that there are third party notifications that must be issued. Because it is being produced pursuant to litigation and under a confidentiality notice, I don't understand the need for such notifications. Nonetheless, please tell me the date upon which we will get the documents.

Response to Request Nos. 4-6. You have agreed that you will not withhold responsive, non-privileged documents except with respect to General Objection No. 22. Please see our comments in General Objection No. 6, above.

Response to Request Nos. 7-9. See our comments to Requests Nos. 4-6, above.

Response to Request No. 10. You have confirmed that responsive, non-privileged documents will be produced.

Response to Request No. 11. We have agreed that the only documents we seek with respect to open-source contributions are those related to UNIX, AIX, Dynix and Linux. With that limitation, you have agreed to produce responsive, non-privileged documents which shall include e-mails. You have also confirmed that even though you stated a limitation of collecting documents from members of LTC and OSSC, you have also collected responsive, non-privileged documents from others who may have had involvement and have responsive, non-privileged documents. Along these lines, we need written confirmation of the additional sources of documents, which may include the AIX Development Lab in Austin, Texas and the AIX work done in Germany, any UNIX, AIX, Dynix or Linux work done in Beaverton, Oregon and, if applicable to any of our requests, The Thomas Watson Research Centers. In short, we need assurances that the discovery responses from IBM include searches wherever AIX, Dynix and Linux were being performed.

Response to Request Nos. 12-14. You have confirmed that you will stand on your objection to these requests, but will look into the issues. In the meantime, you will provide the source code as stated in your responses. Again, we need to know the date of such production.

Response to Request Nos. 15-17. We talked about exchanging lists of such witnesses on a given date. What date would you propose?

Response to Request No. 18. You have confirmed that you will produce responsive, non-privileged documents.

Response to Request Nos. 19-25. You have confirmed that you will provide the relevant documents and that the phraseology of the objection was not an attempt to play semantic games. Again, when can we expect such documents?

Response to Request Nos. 26-27. You have confirmed that you will provide either documents or a list reflecting the names of the individuals, the dates of employment, the nature of their work and the relevant projects they worked on. Please also include the most recent contact information IBM maintains. As noted earlier, you will address the amount of time IBM needs to produce this information and we will agree to exchange said information at that time.

Response to Request No. 28. You have confirmed that you will provide responsive, non-privileged documents and that the statement that you will be "searching for documents from IBM employees with significant involvement in technical, business development and contractual aspects of Project Monterey" will not limit you from collecting documents from other employees who may have relevant responsive documents.

Response to Request Nos. 29-31. See our response to General Objection No. 19, above.

Response to Request Nos. 32-34. You have confirmed that the use of the term "memoranda" was illustrative and not limiting of the kinds of documents you will search for and produce.

Response to Request No. 35. You have confirmed that you will produce responsive, non-privileged documents relative to UNIX, AIX, Dynix, or Linux from the files of LTC, OSSC, and other personnel who may have particular relevant information.

Response to Request No. 36. We have agreed that IBM will produce responsive, non-privileged documents for units involved in AIX, Dynix, Linux and Project Monterey. If you have such information for Project Gemini, we would appreciate receiving that also.

Response to Request No. 37. We accept your position consistent with our previous comments, and do not require additional information.

Response to Request Nos. 38 and 39. We clarified, with respect to Request No. 38, that we are seeking, for instance, the course guidelines, handouts, presentations and the like. Peter confirmed that what we seek is consistent with what IBM sought and you will produce all such responsive, non-privileged documents. With respect to Request No. 39, you have confirmed that you will produce responsive, non-privileged documents that would include files, contracts, e-mails, drafts and memoranda on the subject.

Response to Request Nos. 40-41. We have agreed to accept a limitation on this request so that it relates only to the use of UNIX, AIX, Dynix or Linux on Intel processors. You advised that you will check on this and get back to us.

Response to Request No. 42. See our comments to Response to Request No. 11.

Response to Request Nos. 43-52. You have confirmed that you will produce all responsive, non-privileged documents.



III. Interrogatory Responses

Interrogatory No. 2. You will provide the names, addressses and subject matter about which each of the officers and directors have knowledge. You will get back to us with a date upon which we may exchange this information.

Interrogatory Nos. 4 and 5. See our comment to interrogatory 2 above.

Very truly yours,

Mark J. Heise

DWG/mm

cc: Brent Hatch

**********************************************
http://sco.tuxrocks.com/Docs/IBM/Doc-79-D.pdf
EXHIBIT D:

October 10, 2003

VIA FACSIMILE
AND U.S. MAIL

Mark J. Heise
BOIES, SCHILLER & FLEXNER, LLP
[address]

Re: SCO v. IBM / IBM v. SCO – IBM’s Discovery Responses

Dear Mark:

We have reviewed your letter of September 22, 2003, relating to our telephone call on September 18, 2003. This letter responds thereto.

In answer to your questions about when SCO can expect to receive documents responsive to specific requests, IBM has produced, and will continue to produce, responsive, non-privileged documents as they are collected, reviewed, and processed.

I. General Objections

General Objection Nos. 1-3, 5, 7, 10. I believe my September 15 letter to you, and your September 22 letter to me, are consistent. Please advice if you disagree.

General Objection No. 4. As stated in my September 15 letter to you, IBM has attempted to collect, where appropriate, documents dating as far back as January 1, 1985. If there are specific categories of documents for which you would like us to search for older documents than that we are producing, please let us know so that we can discuss. Our accompanying letter regarding SCO’s discovery responses details the IBM document requests for which we request that SCO perform a broader search.

General Objection No. 6. As I made clear in subsequent telephone calls and correspondence, your identification of terms such as NUMA, RCU and SMP is insufficient to particularize the code and other alleged trade secrets which SCO alleges IBM has wrongfully contributed to Linux. As you know, we have moved to compel specific answers to IBM’s interrogatories and we understand that SCO intends to supplement its answers to interrogatories. We do not believe this issue can be resolved until we have adequate answers to our interrogatories, and a detailed and specific list of the trade secrets or confidential information that SCO contends IBM has misappropriated.

General Objection No. 8. I believe my September 15 letter to you, and your September 22 letter to me, are consistent – as we discussed, IBM is not, as a general matter, attempting to collect documents that are generally available to the public, but to the extend they are among the documents we have collected, we are not withholding them on this basis.

General Objection No. 10. I believe my September 15 letter to you, and your September 22 letter to me, are consistent. Please advise if you disagree.

General Objection No. 11. As we discussed, and as my September 15 letter explains, IBM has attempted to discern the documents SCO seeks, and to locate those documents for production. As my letter also confirms, IBM will produce responsive, non-privileged documents despite this objection. The issue with respect to Intel processors is addressed in Response to Request Nos. 40-41 below.

General Objection No. 15. I believe my September 15 letter to you, and your September 22 letter to me are consistent. Please advise if you disagree.

General Objection No. 17. This issue is resolved by entry of the Stipulated Protective Order.

General Objection No. 18. Agreed.

General Objection No. 19. During the telephone call, we confirmed that we were not withholding documents on the basis that the documents relate to prior versions, releases and updates of AIX or Dynix, or on the basis of code being a derivative of AIX or Dynix, rather than AIX or Dynix themselves. However, since SCO has not yet specified the code that it alleges IBM has wrongfully contributed to Linux, we remain unclear as to the scope and meaning of SCO’s requests for “modifications”, “methods”, and “derivative works”. As indicated in General Objection No. 6 above, we do not believe that this issue can be resolved until we have SCO’s supplemental answers to interrogatories identifying with specificity the trade secrets or other confidential information at issue. With the respect to the other issues you raise here, see our Response to Request Nos. 2 and 3 below.

General Objection No. 20. The definition of “IBM” for purposes of our responses includes officers. We are not aware of any directors who might have relevant information. We agree, for purposes of the discovery requests at issue, to interpret “IBM” to include Sequent, to the extent Sequent materials are in IBM’s custody, possession, or control.

General Objection Nos. 21-22. See our response re General Objection Nos. 6, 19 above.

II. Document Responses

Response to Request No. 1. Responsive, non-privileged documents are being produced, subject to our agreement on General Objection Nos. 1-3, 5, 7, and 10 set forth above.

Response to Request No. 2 and 3. My e-mail to you of October 8 addressed the open issues regarding these requests. As detailed in that note, IBM will commence production of source code for the AIX and Dynix base operating systems once the process for notification of third parties (as specified in Paragraph 10 of the Stipulated Protective Order) is exhausted.

Response to Request Nos. 4-6, 7-9. Agreed; subject to General Objection Nos. 22 and 6, responsive, non-privileged documents will be produced.

Response to Request No. 10. I believe my September 15 letter to you, and your September 22 letter to me, are consistent. Please advise if you disagree.

Response to Request No. 11. Your request, even as narrowed, remains overly broad and unduly burdensome. Until SCO specifies the wrongful contributions IBM has allegedly made to Linux in violation of SCO’s alleged confidentiality rights, it is very difficult to make a reasonable assessment as to the proper scope of discovery in this case. In the absence of that clarification, we have nevertheless attempted to conduct a reasonable search for documents that relate to IBM’s open-source contributions to Linux. The vast majority of those contributions are made through the LTC; the OSSC is the corporate clearinghouse for those contributions. Our searches to date have thus included individuals in both of these groups, as well as other potential sources of documents relating to IBM’s contributions to Linux that have come to our attention. We are not limiting our searches to any particular geographical area--indeed, they have already included individuals residing in Beaverton, OR, Austin, TX, and a variety of other IBM locations. Our efforts to identify and collect documents responsive to this request are continuing, and we believe will be facilitated by adequate answers to our interrogatories.

Response to Request Nos. 12-14. IBM stands by its objections to these requests. We agreed that we will provide documents sufficient to identify the third parties, if any, to whom IBM provided UNIX, AIX, or Dynix source code.

Response to Request Nos. 15-17. Both parties have agreed to exchange supplemental answers containing names of employees and general subject matter of knowledge on October 10, 2003.

Response to Request No. 18. We have agreed to produce documents, subject to our agreement concerning General Objection Nos. 1-3, 5, 7, and 10 set forth above, and with the understanding that Mr. Palmisano is among those whose files were reviewed. I believe that resolves this issue. If not, please advise.

Response to Request Nos. 19-25. I believe my September 15 letter to you, and your September 22 letter to me, are consistent. Please advise if you disagree.

Response to Request Nos. 26-27. As we discussed, IBM stands by its objection that these requests, as phrased, are overbroad and unduly burdensome. We have agreed, however, to provide supplemental answers to interrogatories identifying the names of employees and general subject matter knowledge on October 10, 2003.

Response to Request No. 28. We have agreed that IBM will search for responsive, non-privileged documents from IBM employees with significant involvement in technical, business development, and contractual aspects of Project Monterey. During our call, we agreed that it would be unduly burdensome to require IBM to search for this information from every employee who had any involvement in Project Monterey.

Response to Request Nos. 29-31. With respect to these requests, General Objection Nos. 6 and 19 remain unresolved. We have agreed, however, to produce non-privileged documents identified through a reasonable search sufficient to identify Unix, AIX, or Dynix source code disclosed by IBM to a third party or to the public.

Response to Request Nos. 32-34. Agreed.

Response to Request No. 35. We confirmed that we will conduct a reasonable search and produce, from the files of LTC, OSSC, or other personnel who may have relevant information, responsive, non-privileged documents relating to Unix, AIX or Dynix source code contributed by IBM to open source, or relating to open source contributions by IBM to Linux.

Response to Request No. 36. We had previously agreed to provide organizational and/or personnel charts for particular units involved in AIX, Dynix, and Linux development or maintenance. Historical organizational and/or personnel charts for Project Monterey, to the extent such documents still exist, will be captured in our production in response to your Request No. 28. We are not familiar with the “Project Gemini” referenced in your letter; please provide clarification.

Response to Request No. 37. Agreed.

Response to Request Nos. 38-39. With your clarification and limitation, I believe we are in agreement concerning the documents IBM has agreed to produce.

Response to Request Nos. 40-41. These requests remain overbroad and unduly burdensome despite your proposed limitation. For example, the Dynix/ptx operating system ran only on Intel processors. Your request for “all documents concerning IBM’s use of [Dynix] on Intel processors” would literally call for the production of nearly every single document in the company relating to Dynix/ptx. Please clarify the types of documents you are looking for so that we can have a meaningful discussion about how to narrow these requests.

Response to Request No. 42. See Response to Request No. 11 above.

Response to Request Nos. 43-52. Agreed.

III. Interrogatory Responses

We agreed to exchange supplemental answers to interrogatories identifying the names of employees, including officers, with a general description of the subject matter of their knowledge on October 10.

Very truly yours,

[signature]
Todd Shaughnessy

Cc: Brent Hatch
David Marriott
Peter Ligh

*********************************************
http://sco.tuxrocks.com/Docs/IBM/Doc-79-E.pdf
EXHIBIT E:

Shaughnessy, Todd

From: Mark J. Heise [XXX@XXXX.com]
Sent: Wednesday, September 24, 2003 2:39 PM
To: Shaughnessy, Todd
Subject: RE: SCO v. IBM

Todd,

Thanks for getting back to me.

On point 2, I was referring to the interrogatories that you identified. For this listing of witnesses, we should be able to exchange them by October 10. I also was referring to the ones we discussed during our recent conference calls for which you wanted better answers, i.e. number one and the ones that follow that are related to number one. Since we spoke I have determined that we can identify the pertinent macros and function that should satisfy your inquiry. At the outside, I would be able to get this information to you in a usable format within 30 days, although I would hope to do so sooner, perhaps even by the October 10 date you suggested. Let me know if that works for you.

On point 3, I was told we would get documents before that date, but if that is the best that you can do, then I will wait until Friday.

On your concerns regarding the production by SCO thus far, I have a few questions/observations. First, the log should be done by the end of the week. The person preparing it was sick and that has caused delay. I send the documents without the log so you would have them as soon as possible. Second, the licenses and related documents should go out this week or early next at the latest. Third, on the source code, I am a little confused about your objection. IBM defined source code and requested it in human readable format, which is what we produced. I don’t know if by machine readable format you mean in binary format or something else. If you tell me what form you are looking for, I will be glad to go back to the client to see if they have it in that form and, if they do, will be glad to produce it in that manner. It might be helpful if you identified how you will be providing the requested AIX and Dynix source code.

Mark

Mark J. Heise
Boies, Schiller & Flexner LLP
[phone numbers and email]

The information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may be subject of attorney-client privilege. If the reader of this electronic message is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination, distribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please immediately notify us by telephone [number] or by replying to this electronic message. Thank you.

-----Original Message-----
From: Shaughnessy, Todd [mailto:XXX@XXX.com]
Send: Tuesday, September 23, 2003 8:13 PM
To: Mark J. Heise
Cc: Debra Weiss Goodstone; Dave Marriott
Subject: RE: SCO v. IBM

Mark,

In response to your questions:

(1) IBM will not agree to enlarge the time for adding parties and amending pleadings. We believe the existing scheduling order provides a reasonable time within which to do so.

(2) I assume you are referring to both parties' agreement to supplement answers to interrogatories concerning names of employees with knowledge concerning various claims (SCO’s answer to IBM interrogatory no. 10, and IBM’s answer to SCO’s interrogatory nos. 2, 4, and 5). We propose that the parties exchange supplemental responses containing names and subject matter of knowledge on October 10. Let me know if this works for you.

(3) As we explained, IBM will be making a rolling production of documents. You should receive the first installment by Friday, September 26.

Incidentially, we have now had a chance to look at the 46 CDs sent to Dave Marriott. Although we have not yet received your source log, our review shows that these CDs contain nothing more than the source code for Unix System V and Unixware. In addition the source code has not been provided in a machine readable format. As such, the documents provided are essentially meaningless. Please let me know (i) when we can expect to receive responsive documents (including copies of the license agreements and the other documents SCO has agreed to produce), and (ii) whether you intend to produce this code, as well as the other code we have requested, in a machine readable format.

Thanks

Todd

Snell & Wilmer
[address, phone, email]

This message and any attachments to it contains privileged and confidential attorney client information and/or attorney work product exclusively for the intended recipients. Please do not forward or distribute to anyone else. If you have received this email in error, please call [phone] to report the error and delete this message from your system.

-----Original Message-----
From: Mark J. Heise [mailto:XXX@XXX.com]
Sent: Tuesday, September 23, 2003 4:13 PM
To: Shaughnessy, Todd
Cc: Debra Weiss Goodstone
Subject: SCO v. IBM
Importance: High

Todd,

Where are we on the enlargement re adding parting and amendments?

What date are we looking at to exchange the supplemental information that we have discussed over the last few days?

When are we going to start getting documents from IBM?

Please call or write back at your earliest convenience.

Mark

Mark J. Heise
Boies, Schiller & Flexner LLP
[phone, fax, email]


The information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may be subject of attorney-client privilege. If the reader of this electronic message is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination, distribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please immediately notify us by telephone [number] or by replying to this electronic message. Thank you.

**************************************************
http://sco.tuxrocks.com/Docs/IBM/Doc-79-F.pdf

EXHIBIT F:

Shaughnessy, Todd

From: Mark J. Heise [XXX@XXX.com]
Sent: Monday, October 13, 2003 12:52 PM
To: Shaughnessy, Todd
Cc: Dave Marriott; CArena@Cravath.com; Debra Weiss Goodstone
Subject: RE: SCO v. IBM

Todd,

I will try to address your points below. Some of these issues are also raised in
the two letters that you faxed to me on Friday afternoon. I will address those
letters by separate correspondence, but will note at this time that I disagree
with the scope of the list of witnesses that we agreed to exchange. It called
for far more than just identifying employees and officers and general areas of
knowledge. In any event, I will wait to get your list and will address it in
greater detail in my correspondence later this week.

On point 1, as we have stated repeatedly, we are providing supplemental answers
which will resolve many, if not all of the issues raised in your Motion to
Compel. As a result, I will observe that the Motion to Compel is therefore
premature. Rather than spending additional time and focus on responding to your
Motion to Compel, our intention is to assure that we obtain the responses and
documents to which IBM is entitled. While we could simply respond to the court
that your motion was premature, particularly based on the fact that both sides
are continuing to address the discovery issues, I propose that IBM agree to an
enlargement of time within which to respond to its Motion to Compel. As I
indicated to you in an earlier e-mail, we are simply trying to get the
responsive information in a usable format, which I hope to have accomplished
very shortly. To assure you that we are not simply delaying for delaying sake,
we will provide you the information, particularly the IBM’s files contributed to
Linux by a date certain. We should be able to have all of this information on or
before October 23, 2003. In the event you determine that those answers are
insufficient, we will agree to respond to your Motion to Compel ten (10) days
thereafter. Please advise whether this will be acceptable.

On point 2, although we previously provided the code to you in the manner that
you requested, we are glad to provide it to you in this alternative manner. I
have been collecting disc for all of the versions that you have requested.
However, some of these materials are archived and may take a bit of time to get.
I will provide the remaining discs as soon as I have resolved on possible issue
regarding notice to a third party. I am investigating that issue this week and
should have a better answer this week if that will cause any delay in providing
the discs. I do not believe it will and thus hope to get these discs to you by
the end of the week or by the October 23 deadline mentioned above at the very
latest.

On point 3, what is the latest ETA for the AIX and Dynix code?

On point 4, you have already received additional documents and will be receiving
them as they are put into an electronic format.

On point 5, I am not going to debate who has produced more or better documents.
As I have indicated, we are producing documents as they become available
electronically. Last week, we had a technical issue with the transfer to CD that
resulted in a slight delay, but we have been reviewing and producing documents
as they become available and will continue to do so.

On IBM’s production, if you look at the source log, it lists some of the same
people on several occasions. This production is essentially e-mails involving
these individuals. The information we are looking for is what search was
conducted to obtain these e-mails? If, for example, a word search was
undertaken, what was the word being searched? If it was not a word search, what
were the parameters?

Thanks.


Mark J. Heise
Boies, Schiller & Flexner LLP
[phone,fax,email]

The information contained in this electronic message is confidential information
intended only for the use of the named recipient(s) and may be subject of
attorney-client privilege. If the reader of this electronic message is not the
named recipient, or the employee or agent responsible to deliver it to the named
recipient, you are hereby notified that any dissemination, distribution, copying
or other use of this communication is strictly prohibited and no privilege is
waived. If you have received this communication in error, please immediately
notify us by telephone [number] or by replying to this electronic message.
Thank you.







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