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SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Saturday, November 29 2003 @ 05:32 AM EST

Here is SCO's Supplemental Responses to IBM's Second Set of Interrogatories and Second Requests for Documents. The PDF is available here. This is the document SCO complains IBM didn't pay enough attention to before filing its Second Motion to Compel.

Just to refresh our memory, here is what SCO argued in its MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as to why the motion should be denied based on IBM having failed to confer and try to get answers from SCO before filing its second motion:

"IBM seeks to excuse its lack of compliance with the Rule by claiming that consultation occurred long ago with regard to three interrogatory answers from a prior set of discovery (Defendant's First Set of Interrogatories) that were incorporated in the latest answers. IBM's attempt to bootstrap failed efforts to resolve an earlier discovery dispute as purported good faith efforts to resolve this subsequent discovery issue should be rejected.

"First, since the time of those earlier discussions, SCO has voluntarily supplemented and revised its prior answers to the relevant interrogatories. As a result, IBM's concerns or criticisms directed to the original answers to the earlier interrogatories cannot be considered a good faith conference when the answers to Interrogatories 12 and 13 incorporate SCO's revised and supplemental responses to the earlier interrogatories. . . .

"3 As detailed below, IBM only referred to and attached SCO's original answers to interrogatories to its Motion to Compel. The revised and supplemental answers greatly detail the confidential information that IBM improperly used. This apparent reliance upon the superseded original answers highlights the need for a good faith conference in advance of filing a motion to compel."

However, as you read their supplemental answers, you will notice that they still don't answer the fundamental questions IBM is asking, like what code are we talking about? and what is this case all about? what are we supposed to have done? And you can see with your own eyes that SCO did refer IBM to their original answers, just as IBM says in its Motion to Compel.

SCO dances around each question. It can't answer more fully because it needs IBM to answer its questions first; it refers IBM back to its first responses; it will provide more someday; IBM can get what it wants from SCO's web site. However, normally, even if you don't have all the information at hand, you provide what you do have. That is, if you are not stalling.

The answer to the question about whether it has ever released Linux and if so under what license, such as the GPL, and to whom, is typical. Their answer is they never meant to release any of the infringing code under the GPL. (So if you find any materials showing that SCO nee Caldera knowingly released Linux with NUMA, JFS, or any of the four, send them along.) Call that an answer if you like, but IBM didn't view it as a complete and forthcoming answer and so it filed its Motion to Compel SCO to answer the question.

Another: IBM asked them to "identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights" and SCO answers that it can't say because it hasn't received responsive discovery from IBM, and part of the information is "peculiarly within the knowledge of IBM". Peculiar is the word for it. Why would IBM know what code SCO is claiming belongs to SCO?

Repeatedly, SCO says IBM is asking for too much because it is requesting "the identity of source code and other materials in Linux contributed to Linux by parties other than IBM or Sequent." This seems to be talking about the SGI code snippet. But if SCO was on the level, they could just identify everything else that isn't the SGI snip of code, couldn't they? It raises the question: is that all they have? Why SCO thinks referring to these non-answers will make points with the judge is hard to fathom.

Or take another glaring example. IBM asked for all documents related to SCOForum. SCO says IBM can download the presentation from the internet. If they find anything else, they will make it available one of these unspecified days.

That is an incredible answer. Obviously there was internal communication in preparation for the show, a memo, an email, a letter, interaction between executives and those preparing the show. The slide show didn't just spring forth fully formed from the head of Zeus. Somebody had to decide what code to show, that it should be obfuscated in Greek, what the text for each slide should say, etc. Then, typically in corporations, somebody else had to say yes or no to what was decided, then it likely went back to the drawing board for rewrites, etc. All of that paperwork is discoverable.

We know, for example, that the presentation now on SCO's website that they churlishly tell IBM to go get themselves differs from the one they originally put up. That alone ought to require them to provide the original version in discovery. At a minimum.

No. SCO has nothing to show. Get it yourself, they say. This isn't even good pretend compliance.

They remind me of a goat I met once out West. A friend had goats on their farm and while I was visiting, I went with them to milk one of the goats, who didn't want me around. She stood on my foot on purpose, put her head right up close to me, looking me straight in the eye with her piercing, weirdo, Picassoesque blue eyes, as if to say, "Yeah, I'm standing on your foot. What are you going to do about it?" This document is like that goat in attitude. They won't answer and then they still won't answer and when IBM complains to the judge, they say, "They should have asked us one more time". And that's probably why IBM filed its Motion to Compel without further time-wasting conferences with a goat.

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

Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP,
Plaintiff

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant

PLAINTIFF'S SUPPLEMENTAL
RESPONSE TO DEFENDANT'S
SECOND SET OF INTERROGATORIES
AND SECOND REQUEST FOR THE
PRODUCTION OF DOCUMENTS

Case No. 2:03CV0294DAK

Judge: Dale A. Kimball
Magistrate Brooke C. Wells

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, and the Local Rules for the United States District Court for the District of Utah, Plaintiff, The SCO Group, Inc. ("SCO"), hereby responds and objects to Defendant, International Business Machine Corporation's ("IBM") Second Set of Interrogatories and Second Request for the Production of Documents, as follows:

GENERAL OBJECTIONS

Plaintiff SCO hereby incorporates by reference all of the General Objections set forth in Plaintiff's Response to Defendant's First Set of Interrogatories and First Request for the Production of Documents (the "General Objections"). Each of the General Objections is incorporated by reference into each of the responses set forth below, which responses SCO makes without waiver of the General Objections.


SPECIFIC OBJECTIONS AND RESPONSES TO
INTERROGATORIES AND REQUEST FOR PRODUCTION


INTERROGATORIES

INTERROGATORY NO. 12:

Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

RESPONSE TO INTEROGATORY NO 12:

In addition to the General Objections, SCO notes that it has not received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiary within the knowledge of IBM. In addition, SCO objects to this question as overly broad and unduly burdensome, and on the basis that is seeks information neither relevant nor calculated to reasonably lead to the discovery of admissible evidence insofar as it requests the indentity of source code and other material in Linux contributed to Linux by parties other than IBM or Sequent. Subject to and without waiving these objections, as it pertains to SCO's rights involving IBM's contributions, SCO incorporates its answers to its revised and supplemental answers to Interrogatory Nos. 1 and 2.

INTERROGATORY NO. 13:

For each line of code and other materials identified in response to Interrogatory No. 12, please state whether (a) IBM has infringed plaintiff's rights, and for any rights IBM is alleged to have infringed, describe in detail how IBM is alleged to have infringed plaintiff's rights; and (b) whether plaintiff has ever distributed code or other material or otherwise made it available to the public, as part of a Linux distribution or otherwise, and, if so, the circumstances under which it was distributed or otherwise made available, including but not limited to the product(s) in which it was distributed or made available, and the terms under which is was distributed or made available (such as under the GPL or any other license).

RESPONSE:

In addition to the General Objections, SCO notes that it has not received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM. In addition, SCO objects to this question on the basis that is overly broad and unduly burdensome and seeks information neither relevant nor reasonably calculated to lead to the discovery of admissible evidence insofar as it requests the identity of source code and other materials in Linux contributed to Linux by parties other than IBM or Sequent. Subject to and without waiving these objections, as it pertains to SCO's rights involving IBM's contributions, SCO incorporates it answers to its revised and supplemental answers to Interrogatory Nos. 1 and 4.

Insofar as this interrogatory seeks information as to whether plaintiff has ever distributed the code in question or otherwise made available to the public, SCO has never authorized, approved or knowingly released any part of the subject code that contains or may contain its confidential and proprietary information and/or trade secrets for inclusion in any Linux kernel or as part of any Linux distribution.


DOCUMENT REQUESTS

REQUEST NO. 74:

All documents relating to SCO Forum 2003.

RESPONSE:

Subject to and without waiving the General Objections and Specific Objections in the interrogatories, Plaintiff objects to this Request No. 74 in that it is overly broad and unduly burdensome by requesting "all documents", which may include documents wholly irrelevant to any issue in this action and which are not calculated to lead to the discovery of any admissible information. Subject to and without waiving these objections, SCO directs IBM to www.sco.com where it may retrieve these documents, which IBM has already done as evidenced by the use of these documents in other filings with the court. If there are any other responsive documents, after a search of reasonable scope, SCO will make available for copying or inspection at a mutually convenient date and time, further documents responsive to this Request.

REQUEST NO. 75:

All documents relating to the information requested in Interrogatory Nos. 12-13.

RESPONSE:

Subject to and without waiving the General Objections and Specific Objections in the interrogatories, and insofar as the request seeks releveant documents, plaintiff, after a search of reasonable scope, will make the requested documents available for copying or inspection at a mutually convenient date and time.

 

DATED this 23rd day of October, 20003.

As to Objections:

By: [signature]
Stephen N. Zack
Mark. J. Heise
BOIES, SCHILLER & FLEXNER LLP

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE

As to Responses:
Christopher S. Sontag
Sr. Vice President
Operating Systems Division
The SCO Group, Inc.


STATE OF UTAH  )
                                ss.
County of Utah____)

The above signed Christopher S. Sontag, being duly sworn upon oath, deposes and says that he has read the above responses to discovery requests and that the responses contained therein are true to the best of his knowledge, information and belief.


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