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To read comments to this article, go here
What the Judge Has Ordered SCO To Give IBM
Saturday, December 06 2003 @ 03:55 PM EST

I've been getting requests for a list of exactly what SCO must provide to IBM in the next 30 days or so, according to yesterday's order by Judge Wells. I say 30 days or so, because I am not sure yet whether they have 30 days from yesterday or 30 days from the order being signed, which won't happen until Wednesday at the earliest. I would guess the latter. And then, if SCO has an incredibly plausible reason it can't meet the deadline, it must file an affidavit explaining why it can't comply, which would require more time to resolve, but they would do this at their peril. However, your question isn't so much when they have to provide it but what they must turn over.

Your wish is my command, so I will provide what we know from the public documents. This is not, however, a complete list. You will note that what we know about from these public legal documents are Interrogatories 1-9 and 12 and 13. What happened to 10-11? I don't know. Likely SCO already complied with Interrogatories 10 and 11 and they are not in dispute any more. Or I just missed finding them.

Why is there no one page you can go to and just get the list? Because normally you don't get to see interrogatories at all. They are sent by the parties to each other. They are not filed with the court. The only time we get to know about it is if it ends up being argued over in the public documents filed with the court. So to compile the list, I have had to go through all the memoranda filed by each side and reconstruct. Note that there are documents requested as well as answers. This then is the minimum SCO has to produce in the next month or have a good reason why not. IBM doesn't have to produce any discovery to SCO until they do. Enjoy.

UPDATE: Frank Jaffe has found the missing Interrogatories 10 and 11, and you can find them in the Addendum here . I have added them to the list below.

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

You can find Interrogatories 1-9 in IBM's Addendum to Memorandum in Support of IBM's 2nd Motion to Compel Discovery, which is here.

INTERROGATORY NO. 1: seeks specific identification of all alleged trade secrets and confidential or proprietary information that SCO alleges IBM misappropriated or misused. This information is requested by product, file and line of code.

INTERROGATORY NO. 2: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 2 seeks further identification of: (a) all persons who have or had rights to the same; (b) the nature and sources of SCO’s rights in the same; and (c) efforts to maintain secrecy or confidentiality of the same.

INTERROGATORY NO. 3: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 3 seeks the identity of all persons to whom the same was disclosed and the details of such disclosure. In particular, this interrogatory seeks: (a) the date of disclosure; (b) the terms of disclosure; (c) the documents relating to disclosure; (d) all places where the trade secret and/or confidential or proprietary information may be found or accessed.

INTERROGATORY NO. 4: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 4 seeks information regarding each instance in which plaintiff alleges that IBM misappropriated or misused the same. In particular, this interrogatory seeks (a) the date of the alleged misuse or misappropriation; (b) the persons involved; c) the manner of misuse or misappropriation; and (d) the location of any method or code in any IBM product, Linux, open source or the public domain.

INTERROGATORY NO. 5: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 5 seeks identification of (a) all agreements relating thereto, and (b) all copyrights and patents relating thereto, including but not limited to the owners, licensors, licensees, assignors or assignees thereof.

INTERROGATORY NO. 6: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 6 seeks (a) the origin of the code or method, including where, when and by whom created; (b) all products in which the code or method is included or upon which it is based (in whole or in part).

INTERROGATORY NO. 7: seeks a description of each instance in which IBM allegedly engaged in unfair competition, including but not limited to: (a) the dates of such conduct, (b) the persons involved, and (c) the specific manner of unfair competition.

INTERROGATORY NO. 8: seeks the identification of all agreements with which IBM allegedly interfered, including but not limited to: (a) the date of interference, (b) the persons involved in the interference, (c) the manner of interference, (d) the actions (if any) IBM encouraged licensees to take, (e) the actions, if any, such licensees took as a result of IBM’s inducement/encouragement, (f) the trade secret or proprietary information (if any) involved in the alleged interference.

INTERROGATORY NO. 9: seeks identification of all agreements that IBM has allegedly breached, including but not limited to: (a) the date of breach, (b) the persons involved, and (c) the specific manner of breach.

INTERROGATORY NO. 10: Separately, for each of plaintiff’s claims for relief, please identify all persons (including but not limited to present or former employees of plaintiff or plaintiff’s predecessors in interest) with knowledge relating to plaintiff’s claims and contentions and the general nature of, or the categories of, facts known by each person.

INTERROGATORY No.11: Please identify all products ever marketed, sold or distributed by plaintiff or plaintiff’s predecessors in interest, including but not limited to the terms on which each was marketed, sold or distributed.

Interrogatories 12 and 13 can be found in Plaintiff's Supplemental Response to Defendant's Second Set of Interrogatories and Second Request for the Production of Documents, which you can find here and also in IBM's Memorandum in Support of Second Motion to Compel Discovery, which is here.

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.

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).

REQUEST FOR DOCUMENT NO. 74: All documents relating to SCO Forum 2003.

REQUEST NO. 75: All documents relating to the information requested in Interrogatory Nos. 12-13.


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