decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
Exhibit G, H, I, and J to IBM's Memorandum in Opposition to SCO's Motion to Compel, as text
Monday, January 12 2004 @ 03:50 AM EST

Here as text are Exhibit G [PDF], Exhibit H [PDF], Exhibit I [PDF] and Exhibit J [PDF] to IBM's Memorandum in Opposition to SCO's Motion to Compel [PDF; text].

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

Exhibit G:

Snell & Wilmer L.L.P.
LAW OFFICES
[address]

Todd M. Shaughnessy
August 27, 2003




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

Re: SCO v. IBM

Dear Brent:

We have reviewed Plaintiff's Responses to Defendant's First Set of Interrogatories and First Request for the Production of Documents. Defendant/counterclaim-plaintiff International Business Machines Corporation ("IBM") has serious concerns about most of plaintiff/counterclaim-defendant The SCO Group's ("SCO's") responses and objections to IBM's first set of interrogatories (the "Interrogatories") and many of SCO's responses and objections to IBM's first set of document requests (the "Requests").

As you know, I advised you several weeks ago of IBM's concerns and requested that the parties meet and confer to address those concerns. I have telephoned you a number of times since then in an effort to arrange a teleconference to discuss IBM's concerns, but I have been unable to reach you, and you have not responded to my messages. As a result, I write to express IBM's concerns and request that SCO address them promptly, as set out below.

I. General Objections

In our judgment, SCO's general objections to the Interrogatories and the Requests are largely meritless and should be clarified and/or withdrawn.

General Objection Nos. 1-5, 9-11. SCO's General Objection Nos. 1-5 and 9-11 are meritless. It does not appear, however, that SCO is withholding responsive, non-privileged documents from production on the basis of these objections. Please confirm that this is correct.

General Objection No. 6. In its General Objection No. 6, SCO objects to the Interrogatories and the Requests "as overly broad and unduly burdensome to the extent that they fail to contain any time limitations. . . ." and declines to produce documents relating to the period prior to January 1, 1985. There is no basis for SCO's refusal to produce responsive, non-privileged documents merely because they relate to the period prior to January 1, 1985. For example, a document evidencing the public disclosure of an alleged trade secret is relevant and should be produced irrespective of its date of creation. Please confirm that SCO will not withhold responsive, non-privileged documents on the basis of its General Objection No. 6.

General Objection No. 7. SCO objects to IBM's definition of the term "Disputed Material" on the grounds that "it is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence", SCO states that it will produce responsive, non-privileged documents only insofar as they "relate to software product, know-how, concept, idea, methodology, standard, specification, programming technique, code, architecture or schematic" that are "the subject of those certain Software and Sublicensing Agreements that are Exhibits to the Amended Complaint". We do not believe that this objection is well taken. But in an effort to achieve a compromise, we are prepared provisionally to defer any dispute as to the definition of "Disputed Material", so long as SCO confirms that it does not assert any rights that are not "the subject of those certain Software and Sublicensing Agreements that are Exhibits to the Amended Complaint". Please advise.

General Objection No. 8. SCO objects to IBM's definition of the term "document", in part, on the grounds that "it renders many other interrogatories and requests for production overly broad, unduly burdensome, outside the scope of the Federal Rules of Civil Procedure, and in some instances seeks information protected by the work product doctrine, the attorney-client privilege and other privileges in that it "includes electronic mail, electronic correspondence, or electronic peer-to-peer messages ('e-mail') and any attachments and files created and maintained in electronic form in the normal course of business"'. SCO's challenge to this definition is misplaced. There is no basis for SCO's refusal generally to produce electronic documents. Please withdraw this objection and confirm that SCO will undertake a reasonable search for responsive documents, including electronic documents.

General Objection No. 10. SCO "objects to the production of trade secrets or confidential or proprietary information unless and until a confidentiality order is entered to provide for the preservation of the confidentiality of the trade secrets and the confidential and proprietary information". As you know, IBM does not oppose the entry of a confidentiality agreement and a corresponding order. In fact, we drafted one for your review several weeks ago and are, as I understand it, waiting for your approval on a few outstanding points to submit a proposal to the magistrate judge for signature. There is no reason, however, that execution of a confidentiality agreement and entry of a corresponding order should delay the exchange of confidential information. The parties should be able to proceed with discovery on an attorneys-eyes-only basis, pending execution of a confidentiality agreement and entry of a protective order, as proposed in my letter to you dated August 8, 2003. When we last discussed the issue, you stated that SCO was not willing to do so. We believe this position is unduly delaying discovery and respectfully ask that your client reconsider.

II. Interrogatory Responses

In addition to its concerns about IBM's general objections, IBM is concerned about SCO's specific objections and responses to the Interrogatories.

First. SCO objects to a number of the Interrogatories on the grounds that "discovery has just begun and it has not yet 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". See Interrogatory Nos. 1-4, 6-9, 68, 70 and 71-72. This objection is meritless. SCO is not entitled to discovery from IBM before responding to the Interrogatories. Please confirm that SCO is not withholding responsive information based upon this objection.

Second. SCO responds to virtually all other Interrogatories by stating "[s]ubject to and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make available. . . the responsive documents". See Interrogatory Nos. 1-8 and 10-11. Rule 33(d) does not permit SCO to avoid providing meaningful answers to Interrogatory Nos. 1-8 and 10-11 merely by promising to provide an unspecified collection of documents sometime in the future. IBM is entitled to complete, detailed narrative responses to the Interrogatories. Please confirm that SCO will promptly provide complete, detailed narrative responses to the Interrogatories.

Third. SCO purports to respond to four of the Interrogatories by providing cursory restatements of its general allegations. See Interrogatory Nos. 3(d), 4(c), 7(c) and 9(c). These responses fall far short of SCO's obligation to provide detailed, complete and meaningful responses to the Interrogatories. Please confirm that SCO will provide complete, detailed narrative responses to the Interrogatories.

Fourth. SCO objects to Interrogatory No. 10 on the grounds that it "is overly broad and unduly burdensome in that it seeks information outside the custody or control of plaintiff by asking information known by Plaintiff's predecessors". This objection is baseless. Please confirm that SCO will respond completely to this interrogatory without withholding "information known by plaintiff's predecessors".

Fifth. SCO objects to Interrogatory No. 11 on that grounds that it "is overly broad and unduly burdensome and seeks irrelevant information by requesting all products ever marketed, sold or distributed by plaintiff's predecessors in interest, including but not limited to the terms on which each was marketed, sold or distributed". IBM is prepared to narrow this interrogatory to include information relating only to Unix or Linux and not to require the production or every invoice relating to those products. Please confirm that SCO will provide detailed, complete and meaningful responses to this interrogatory as revised.

III. Document Responses

Finally, IBM is concerned about a number of SCO's specific objections and responses to the Requests.

A. Request Nos. 1-2, 20-23, 25-26, 35-39, 41, 44-45, 48-52, 56-57, 62, 64, 67-73.

As we understand SCO's responses and objections to these requests, SCO will make the requested documents available for copying or inspection. Subject to review of SCO's production, we do not take issue with SCO's responses and objections to these requests, except insofar as SCO has declined promptly to produce responsive, non-responsive documents at a time when they are plainly ready for production.

B. Request Nos. 6, 8-15, 17-19, 27-33, 53-54, 60.

As we understand plaintiff's responses and objections to these requests, SCO will make non-privileged documents responsive to these requests available for copying or inspection based upon a narrowing of the term "Disputed Material". As stated above, we do not believe that SCO's objection to the term "Disputed Material" is well taken. In an effort to achieve a compromise, however, we are prepared provisionally to defer fully dispute as to the definition of "Disputed Material", so long as SCO confirms that it does not assert any rights that are not "the subject of those certain Software and Sublicensing Agreements that are exhibits to the Amended Complaint". Please advise us whether this is correct.

C. Request Nos. 4-5, 7, 16, 24, 34, 40, 42-43, 46-47, 55, 58-59, 61, 63, 65-66.

Finally, as stated below, IBM has a number of concerns regarding SCO's responses and objections to Request Nos. 4-5, 7, 16, 24,40,42-43,46-47, 55, 58-59, 61, 63, 65-66. Please clarify and/or withdraw SCO's responses and/or objections as follows:

Request Nos. 4-5, 7, 24. SCO's objections to these requests are meritless. Here again, in an effort to achieve a compromise, we are prepared provisionally to defer any dispute as to the definition of "Disputed Material", so long as SCO confirms that it does not assert any rights that are not ''the subject of those certain Software and Sublicensing Agreements that are exhibits to the Amended Complaint". Please advise us whether, in view of this modification, SCO will produce non-privileged documents responsive to these requests, without withholding documents from production on the grounds that the requests call for the production of many of the documents in SCO's possession or that the term "value" is vague or on any other grounds.

Request No. 16. We are prepared to limit this request to all documents concerning any lawsuit relating to Unix or Linux. At least as it is limited, SCO's objections to this request are meritless. Please confirm that SCO will produce non-privileged documents responsive to this request.

Request No. 34. SCO's objections to this request are meritless. Please confirm that SCO will produce non-privileged documents responsive to this request

Request Nos. 40, 42. SCO's objections to these requests are not well taken. IBM does not seek the production of documents entitled to the protections of the attorney-client privilege or work-product immunity. We understand that SCO will log such documents as required by the Federal Rules of Civil Procedure. These requests plainly call for discoverable documents. Please confirm that SCO will produce non-privileged documents responsive to these requests.

Request No. 43. In response to this request, SCO states that "[o]ther than the documents responsive to Requests 27, 28 and 31, this request seeks information that is protected from disclosure based on the attorney-client privilege and work product immunity". Please confirm that SCO will not withhold responsive, non-privileged documents.

Request Nos. 46-47. We are prepared to narrow these requests to relate only to UNIX or Linux. At least as they are limited, SCO's objections to these requests are meritless. IBM does not, by these requests, seek the production of documents entitled to the protections of the attorney-client privilege or work-product immunity; we understand that SCO will log such documents as required by the Federal Rules of Civil Procedure. Please confirm that SCO will produce non-privileged documents responsive to this request.

Request No. 55. Unless we misunderstand SCO's objections to this request, they are not well taken. Please advise us why you believe the request is overly broad and vague, specifying the types of documents that you believe should not be produced. Otherwise, please withdraw your objections to this request and produce non-privileged, responsive documents.

Request Nos. 58-59. We do not believe that SCO may properly refuse to produce documents pursuant to these requests, based upon our understanding of SCO's litigation against Microsoft. However, we are prepared to reconsider the requests after review of the discovery requests and responses served by the parties to the litigation (i.e., SCO and Microsoft) and the alleged order of destruction. Please provide us with copies of these materials.

Request No. 61.Contrary to SCO's objections, this request is neither overly broad nor unduly burdensome. We do not seek the production of code that is not in SCO's possession, custody or control. And we do not believe that SCO may refuse to produce code merely because it may be publicly available. Please confirm that SCO will produce code, including Linux code, responsive to this request.

Request No. 63. We are prepared to narrow this request to relate only to UNIX or Linux. At least as it is limited, SCO's objections to the request are meritless: it is neither overbroad nor unduly burdensome, and it does not seek documents that are irrelevant to the case.

Request Nos. 65-66. SCO responds to these requests by reference to its response to Interrogatory No. 11. SCO's response to Interrogatory No. 11 is, however, not responsive to Request Nos. 65-65. They seek documents sufficient to show "persons" and "dates", whereas Interrogatory No. 11 seeks the identification of "products". SCO's objections to Interrogatory No. 11 are misplaced for the reasons stated above. And SCO's response to Interrogatory No. 11 says nothing about the production of documents sufficient to identify "persons" or "dates". Please confirm that SCO will produce non-privileged documents responsive to these requests.

IV. Timing

As stated above, the execution of a confidentiality agreement and the entry of a corresponding protective order should not be delaying discovery. The parties have essentially agreed upon the terms of a proposed, stipulated protective order and should be able to proceed upon the agreement of counsel. Please let me know by the end of the day tomorrow whether SCO is agreeable to entry of the revised, proposed order circulated by IBM last week. We intend to submit a proposed protective order to the Court on Friday, August 29, 2003, and would prefer to be able to submit a proposed order upon which the parties are in full agreement.

For the reasons stated above, we believe that SCO has failed properly to respond to IBM's interrogatories. Detailed, complete and meaningful answers to the Interrogatories were due more than three weeks ago and should be provided immediately. Similarly, SCO has refused to produce non-privileged documents that are plainly discoverable. SCO's objections should be clarified and/or withdrawn as requested above. There is no reason that the parties should not be exchanging responsive documents as soon as they are collected, reviewed, processed and ready for production.

Please advise me by the end of the day on Friday, August 29, 2003, whether SCO will provide detailed, complete and meaningful answers to the Interrogatories no later than Friday, September 5, 2003. Please also advise me by the end of the day on Friday, August 29, 2003, whether SCO will produce non-privileged, responsive documents as soon as they are collected, reviewed, processed and ready for production. If we have not been served with detailed, complete and meaningful answers to the interrogatories, or if SCO has not stated that it will produce non-privileged documents responsive to the Requests and actually begun to produce any non-privileged documents that are collected, reviewed, processed and ready for production by the end of the day on Friday, September 5, then we will be required to move to compel and to seek costs as a sanction.

Please let me know whether I can be of any assistance to you in amending SCO's responses and objections to the Interrogatories and the Requests.

I look forward to hearing from you.

Very truly yours,
[signed]
Todd Shaughnessy

cc.
David R. Marriott, Esq.
Mark J. Heise, Esq.

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

Exhibit H:

[Boies, Schiller & Flexner LLP header]

Via Telecopier

September 8, 2003

David R. Marriott
Cravath Swaine & Moore LLP
[address]

Re: SCO v. IBM

Dear Dave:

You have asked for a written response to Todd Shaughnessy's letter of August 27, 2003 (the "Objection Letter"). You have also asked us to put in writing our concerns with respect to IBM's discovery responses. We will do that by separate correspondence.

We will respond to the Objection Letter in the same order in which the concerns were set forth. Where practicable, we also will identify where IBM made identical or similar objections or responses and will expect a reciprocal resolution.

I. General Objections

General Objection Nos. 1-5, 9-11. It is correct that SCO will not withhold responsive, non-privileged documents from production on the basis of these objections, however, please be advised that with respect to General Objection No. 4, SCO will not be obtaining or searching files in the possession, custody or control of third parties. Please also note that IBM, in its Responses & Objections to SCO's First Request for the Production of Documents and First Set of Interrogatories ("IBM's Responses") makes objections which are nearly identical to SCO's Objection Nos. 1-5 and very similar to SCO's Objection No. 10. Thus, IBM needs to likewise confirm it is not withholding any documents based upon any of its General Objections. If IBM is withholding documents or otherwise not producing requested documents based upon any of its


Boies, Schiller & Flexner LLP
September 8, 2003
Page - 2 -

General Objections, then we need for you to identify the General Objections that are being used to do so.

General Objection No. 6. SCO does not generally object to producing documents which relate to a period prior to January 1, 1985 and would not withhold a document simply on that basis. The real issue is similar to that as set forth in IBM's Responses, General Objection No. 4, which addresses the reasonableness of the search. The parties must agree on the scope and methodology of what is reasonable, which would resolve this General Objection No. 6, and other General Objections.

General Objection No. 7. We decline to limit the claims in the complaint through a requested confirmation in discovery that SCO "... does not assert any rights that are not the 'the subject of those certain Software and Sublicensing Agreements'". Respectfully, our clarified definition of "Disputed Material" is the appropriate definition when read in connection with the actual requests made.

General Objection No. 8. We do not generally object to producing responsive, non-privileged documents but do require the execution of the mutually agreed upon confidentiality agreement prior to delivering confidential documents. We have over fifty (50) CDs ready for delivery. We are just awaiting resolution of the terms of the confidentiality agreement and execution thereof. With the exception of the procedure on who gets access to the documents, in particular, the identity of those folks, the Protective Order is ready for submission.


Boies, Schiller & Flexner LLP

September 8, 2003
Page - 3 -

II. Interrogatory Responses

First, without addressing your comment about the merits of our objection, which you apparently are misreading, we confirm that SCO is not withholding responsive non-privileged information based upon this objection.

Second, SCO has provided meaningful responses to the interrogatories and, moreover, is entitled to respond to the Interrogatories by providing documents pursuant to Rule 33(d). Your blanket complaint to all of the Interrogatories fails to recognize that most of the interrogatory responses do more that just point to Rule 33(d). Rather than debate the issue, however, the documents responsive to these interrogatories are the System V source code, the license agreements with all licenses, and the Linux 2.4 kernel and above (which you have and which is publicly available). Pursuant to Fed. R. Civ. P 33(d), the production of these documents is responsive to the Interrogatories because the "burden of deriving or ascertaining the answer is substantially the same for IBM as it is for SCO. Indeed, we note that IBM used the Rule 33(d) device in a similar fashion in response to SCO's interrogatories 4 and 5. These documents are included into those currently available on CD. Additionally, for Interrogatory No. 5, we will produce the relevant copyrights.

If you need further clarification on any of these interrogatories regarding the relevant documents, please let us know so we can understand what you are looking for and then respond accordingly.

Third, SCO has provided complete narrative responses to these Interrogatories. Because the interrogatories relate to IBM's surreptitious actions, as noted in our response, part of this information is peculiarly within IBM's knowledge. Perhaps if you can identify what further detail you seeking, we can further respond to your objections.


Boies, Schiller & Flexner LLP
September 8, 2003
Page - 4 -

Fourth, SCO is not withholding information knowingly by Plaintiff's predecessors and is producing all relevant files in its custody, control or procession that identify those who have knowledge relating to the claims and the nature of their knowledge.

Fifth, As you have narrowed your request, the interrogatory is responsive. What further information do you seek?

III. Document Responses

A. SCO has not declined to produce responsive, non-privileged documents and will produce such documents when they are ready for production. As noted, we have over fifty (50) CDs of documents ready for delivery. However, we would be remiss if we did not observe that we likewise have yet to receive a single document from IBM.

B. See our comment in General Objection No. 7 above.

C. Request Nos. 4-5, 7, 24. Obviously, we disagree that SCO's objections are meritless. We reiterate our comments in General Objection No. 7, above. Please clarify what information or types of documents you seek with respect to "value."

Request No. 16 SCO will produce responsive, non-privileged documents, if any, with your new limitation to produce only lawsuits relating to UNIX or Linux.

Request No. 34. SCO's objections are not meritless. This request seeking any agreement involving AT&T, USL, Novell, Tarantella or SCO relating to UNIX or Linux clearly is overbroad and unduly burdensome. SCO will, however, produce responsive, non-privileged documents including the 30,000 license agreements and the confidentiality and non-disclosure agreements in its possession, in


Boies, Schiller & Flexner LLP
September 8, 2003
Page - 5 -

addition to any other such responsive, non-privileged documents which SCO discovers in its continuing searches.

Request Nos. 40, 42. On Request No. 40, if you can identify the types of non-privileged documents you think might exist, then perhaps we can reach a resolution. At this time, the only documents that we can see as possibly responsive would be between SCO representatives and their counsel, which obviously would be privileged. By the way, on these privilege logs, we are assuming you are not looking to have a listing of all communications between counsel in this case and the client. We certainly are not expecting to see a privilege log listing all correspondence between Cravath and IBM relating to this case. Please confirm we are on the same page on this issue. On Request No. 42, other than claiming it is "plainly discoverable", we fail to see the relevance of a "decision to commence or pursue other lawsuits". If you could identify why you need these documents and the types of documents you are seeking, perhaps we can arrive as some resolution.

Request No. 43. SCO will not withhold responsive, non-privileged documents.

Request No. 46-47. SCO will produce responsive, non-privileged documents based upon the limitations that the requests relate only to UNIX or Linux.

Request No. 55. SCO will produce non-privileged, responsive documents.

Request Nos. 58-59. SCO was not a party to this litigation and does not have possession of such documents. Furthermore, the actual order regarding the destruction of documents; indeed, the whole file, is available on PACER.


Boies, Schiller & Flexner LLP
September 8, 2003
Page - 6 -

Request No. 61. As previously disclosed, SCO will produce a copy of all source code and object code relating to releases of any UNIX in its custody, control or possession.

With respect to source code and object code relating to releases of Linux, this information is "... equally accessible to..." IBM, which coincidentally is the basis for IBM's Objection No. 8 in IBM's Responses.

Request No. 63. SCO will produce responsive, non-privileged documents based upon IBM's agreed narrowing that the request relates only to UNIX and Linux.

Request Nos. 65-66. It is impossible to show all persons to whom plaintiff or plaintiff's predecessors have ever marketed, sold or distributed any products inasmuch as some marketing and sales were to the general public. However, SCO will produce the 30,000 license agreements it maintains and will deliver any other responsive, non-privileged documents in its possession. Moreover, based upon your earlier statement that you are not seeking invoices for the sale of the products, it is difficult to determine what documents other than the license agreements would be responsive to your requests.

Any responses to the foregoing requests will be provided in accordance with any agreements of the parties with respect to the scope and reasonableness of the requisite searches.

Upon receipt of your response to SCO's letter outlining the deficiencies in IBM's discovery responses we can meet to resolve all of these issues and promptly proceed. SCO's letter accompanies this correspondence.


Boies, Schiller & Flexner LLP
September 8, 2003
Page - 7 -

Thank you for your attention to this matter.

Very truly yours,

[signature]
Mark J. Heise

cc: Todd Shaughnessy, Esq.

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

Exhibit I:

[Snell & Wilmer header]

BY FACSIMILE AND REGULAR MAIL

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

Re: SCO v. IBM

Dear Brent:

This responds to your letter dated August 28, 2003. In my August 27, 2003 letter we requested that you notify us by Friday, August 29, 2003, whether SCO will provide detailed, complete, and meaningful answers to IBM's interrogatories by Friday, September 5, 2003 and, in addition, notify us whether SCO will produce non-privileged, responsive documents as soon as they are collected, reviewed, processed, and ready for production. In your letter, you indicate that because both you and Mr. Heise are out of the office, you will not be able to respond by Friday, August 29. In light of this, we request that you advise us by the close of business Wednesday, September 3, whethere SCO will provide complete responses to the interrogatories on or before Friday, September 12, 2003. Similarly, please notify us by next Wednesday whether SCO will produce non-privileged, responsive documents as soon as they are collected, reviewed, processed and ready for production.

Your letter also mentions that counsel for SCO previously has raised concerns about the adequacy of IBM's discovery responses. Neither Dave Marriott nor I recall any such concerns having been raised. Nevertheless, we are more than willing to discuss any concerns with you and Mr. Heise. Both Mr. Marriott and I are available next Thursday between 2:00 and 4:00 for a conference call. Whatever concern SCO may have about IBM's discovery responses, however, is a separate issue that should not impact SCO's obligation to provide complete, meaningful discovery responses, and to produce documents that are ready for production.

Please let me know when you would like to schedule the conference call and, as always, feel free to call if you have any questions.


[Snell & Wilmer logo]
Brent O. Hatch
August 29, 2003
Page 2

Very truly yours,

Snell & Wilmer

___[signature]___
Todd M. Shaughnessy

cc: David Marriott
Alan Sullivan

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

Exhibit J:

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

David Boies (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff


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


THE SCO GROUP, INC.,

Plaintiff,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.

PLAINTIFF'S FIRST REQUEST
FOR PRODUCTION OF DOCUMENTS
AND FIRST SET OF
INTERROGATORIES

Case No. 2:03cv0294DAK

Judge: Dale A. Kimball

Magistrate David Nuffer

Defendant is directed to give answers to the written interrogatories separately, fully, in writing, under oath, and in accordance with the following definitions and instructions. Defendant is requested to produce the documents and things in its possession, custody or control pursuant to the document requests.

Answers to the interrogatories and all documents and things responsive to the document requests must be served on the undersigned attorneys for The SCO Group at the offices of Boies, Schiller & Flexner LLP [address] within 30 days of service of these interrogatories and document requests.

DEFINITIONS AND INSTRUCTIONS

For purposes of these interrogatories and requests for production of documents, the following definitions and instructions apply.

A. Definitions.

1. The term "AIX" shall mean the UNIX-based operating system distributed and/or developed by IBM, including all prior versions, releases and maintenance modifications.

2. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing, or constituting.

3. The term "describe" shall mean in the case of an event or circumstances, to set forth in detail the date, time, place, individuals or entities involved and context and content of the event or circumstances.

4. The term "document" shall be deemed to include every record of every type including, without limitation, information stored on any electromagnetic storage device, or computer; any written, printed, typed, recorded, stored, or graphic matter, however

2

produced, reproduced, or existing in the possession, custody, or control of Defendant, or any agent, employee, or attorney of the Defendant, and all drafts, notes, or preparatory material concerned with said document, and every additional copy of such record or document where such copy contains any commentary, notation, or other change whatsoever that does not appear on the original or other copy of the document produced. "Document" shall be deemed also to include any summary of a document or documents called for hereafter.

5. The term "Dynix" shall mean the UNIX-based operating system distributed and/or developed by Sequent Computer Systems, Inc. and/or IBM, including all prior versions, releases, derivative works, methods, and modifications.

6. The terms "IBM," "Defendant" "you," "your," and any synonym thereof and derivatives therefrom are intended to and shall embrace IBM and include its parents, subsidiaries, divisions, or affiliates and any corporate predecessor or successor of any of them, including Sequent Computer Systems, Inc., and, in addition all of the Defendant's attorneys and accountants, and all of its respective agents, servants, associates, employees, representatives, investigators, officers, directors and others who are or have been in possession of or may have obtained information for or on behalf of such Defendant in any manner with respect to any matter referred to in the pleadings in the above-styled case.

7. The term "identify" shall mean:

a. in the case of a natural person, to state the full name, current or last known job title and position, current or last known address, current or last known home and work telephone numbers, and current or last

3

known electronic mail address, and to indicate the basis of that person's knowledge, including but not limited to the identification of documents and communications and a description of his/her personal involvement in any transaction, meeting, software development, marketing, or other activity relating in any way to the allegations of the Complaint and any defenses;

b. in the case of any entity other than a natural person, to state its name, address, principal place of business and, if applicable, place of incorporation and a contact person at the entity;

c. in the case of a document, to state the author(s), title, subject matter, date, place, source of publication of the document and substance of the document;

d. in the case of an oral communication, to give a complete description of such oral communication, including but not limited to: (i) the speaker(s) and actual or intended recipient(s) or witnesses of the communication; (ii) the date of the communication; and (iii) the substance of the communication;

e. in the case of alleged trade secrets or confidential or proprietary information, whether computer code, methods or otherwise, to give a complete and detailed description of such trade secrets or confidential or proprietary information, including but not limited to an identification of the specific lines and portions of code claimed as trade secrets or confidential or proprietary information, and the location (by module

4

name, file name, sequence number or otherwise) of those lines of code within any larger software product or property.

f. in the case of an alleged right, to give a completed and detailed description of such right, including but not limited to: (i) the issuer of the right; (ii) the date the right became effective; (iii) the date the right expired; and (iv) any limitations placed upon such right.

8. The term "open source" shall mean any software code that is made available in source code form without any confidentiality restrictions, including but not limited to any code made available under the General Public License, the BSD license, or the MIT license.

10. The term "source code" shall mean the human-readable form of a computer program written in the original and preferred form for human inspection and modification, and includes but is not limited to source code listings; compiler and/or assembler output listings for such source code; source code listings for macros or "includes" (both executable and mapping) listings used in such source code; job control language files; and/or other files required to create an executable version of a program, including but not limited to user interface components; panels; screen definitions and help text; and e-lists.

5

B. Instructions
1. Unless otherwise indicated, all requests and interrogatories are from January 1, 1999 to present.

2. Information requested in these interrogatories shall include information within the knowledge or possession of any of Defendant's agents, employees, attorneys, investigators, or any other persons, firms, or entities directly or indirectly subject to Defendant's control in any way whatsoever.

3. Each interrogatory shall be answered in its entirety. If any interrogatory or subsection thereof cannot be answered in full, it shall be answered to the fullest extent possible with an explanation as to why a complete answer is not provided.

4. If there is a claim of privilege as to any communication concerning information requested by these interrogatories, specify the privilege claimed, the communication and/or answer to which the claim is made, the topic discussed in the communication and/or answer to which that claim is made, the topic discussed in the communication and the basis upon which the claim is asserted.

5. These interrogatories are continuing in nature and require supplemental or additional responses in accordance with Rule 33 of the Federal Rules of Civil Procedure.

6. All documents produced in response to these requests shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where multiple pages or documents are assembled, collated, grouped, or otherwise attached, shall not be separated or disassembled.

6

7. With respect to any document responsive to this request that is withheld from production based upon a claim of privilege, please provide the information required pursuant to Rule 26(b)(5) of the Federal Rules of Civil Procedure.

8. If, for reasons other than a claim of privilege, you refuse to produce any document requested herein, state the grounds upon which the refusal is based with sufficient specificity to permit a determination of the propriety of such refusal.

9. If there are no documents responsive to any paragraph or subparagraph set forth in the requests, please provide a written response so stating.

These requests are continuing and, pursuant to Rule 26(e) of the Federal Rules of Civil Procedure, require further and supplemental production by Defendant whenever Defendant acquires, makes, or locates additional documents or information between the time of the initial production hereunder and the time of the trial in this action.

REQUESTED DOCUMENTS

1. All documents concerning or relating to any agreements entered into with AT&T relating to UNIX, including but not limited to the agreements attached to the First Amended Complaint.

2. All versions or iterations of AIX source code, modifications, methods and/or derivative works from May 1999 to the present, including but not limited to version 4.3 and above.

3. All versions or iterations of Sequent Dynix source code, derivative works, modifications and/or methods from January 1, 1999 to the present.

7

4. All documents concerning IBM's efforts, if any, to maintain the confidentiality of UNIX source code, derivative works, modifications, and/or methods.

5. All documents concerning IBM's efforts, if any, to maintain the confidentiality of AIX source code, derivative works, modifications, and/or methods.

6. All documents concerning IBM's efforts, if any, to maintain the confidentiality of Sequent Dynix source code, derivative works, modifications, and/or methods.

7. All documents concerning IBM's efforts, if any, to restrict distribution of Unix source code, derivative works, modifications, and/or methods.

8. All documents concerning IBM's efforts, if any, to restrict distribution of AIX source code, derivative works, modifications, and/or methods.

9. All documents concerning IBM's efforts, if any, to restrict distribution of Sequent Dynix source code, derivative works, modifications, and/or methods.

10. All documents concerning Prerequisite Source Licenses, including but not limited to all instances in which IBM required persons or entities to obtain a Prerequisite Source License under paragraph 2.2(a) of its contract with its customers.

11. All contributions made without confidentiality restrictions by IBM or anyone under its control including, but not limited to, source code, binary code, derivative works, methods, and modifications to Open Source Development Lab, Linus Torvalds, Red Hat or any other entity.

12. All documents that identify any person or entity to whom IBM has provided UNIX source code, derivative works, modifications and/or methods.

13. All documents that identify any person or entity to whom IBM has provided AIX source code, derivative works, modifications and/or methods.

8

14. All documents that identify any person or entity to whom IBM has provided Sequent Dynix source code, derivative works, modifications and/or methods.

15. All documents that identify any person at IBM or Sequent who had access to UNIX source code, derivative works, modifications and/or methods.

16. All documents that identify any person at IBM or Sequent who had access to AIX source code, derivative works, modifications and/or methods.

17. All documents that identify any person at IBM or Sequent who had access to Sequent Dynix source code, derivative works, modifications and/or methods.

18. All documents, agreements and correspondence between IBM and Sequent who had access to Sequent Dynix source code, derivative works, modifications and/or methods.

19. All documents, agreements and correspondence with Open Source Development Lab.

20. All documents, agreements and correspondence with Red Hat.

21. All documents, agreements and correspondence with SuSe.

22. All documents, agreements and correspondence between IBM and Novell regarding UNIX, including but not limited to all correspondence with Jack Messman, Chris Stone and/or Novell's counsel.

24. All documents, agreements and correspondence between IBM and Caldera.

25. All documents, agreements and correspondence between IBM and The SCO Group.

26. All documents identifying any IBM personnel who are or were employed or working at the Linux Technology Center.

9

27. All documents identifying any IBM personnel who are or were employed or working at the Linux Center of Competency.

28. All documents concerning Project Monterey.

29. All documents identifying any UNIX source code, derivative works, modifications or methods disclosed by IBM to any third party or to the public.

30. All documents concerning any AIX source code, derivative works, modifications or methods disclosed by IBM to any third party or to the public.

31. All documents concerning any Sequent Dynix source code, derivative works, modifications or methods disclosed by IBM to any third party or to the public.

32. All documents concerning any UNIX source code, derivative works, modifications or methods disclosed by IBM to any third party or to the public.

33. All documents concerning any AIX source code, derivative works, modifications or methods found in Linux, open source, or the public domain.

34. All documents concerning any Sequent Dynix source code, derivative works, modifications or methods found in Linux, open source, or the public domain.

35. All documents concerning any contributions to Linux or to open source made by IBM and/or Sequent.

36. All documents sufficient to show IBM's organizational and personnel structure, including but not limited to organizational charts, flow charts and personnel directories.

37. All documents concerning any statement, affidavit, declaration, or opinion in IBM's possession relating to contributions by IBM to open source, including but not limited

10

to those statements identified in the Complaint made by Messrs. Mills, LeBlanc and Strassmeyer.

38. All documents concerning the Open Source Developer's Class, including any guidelines relating thereto.

39. All documents concerning export controls for any UNIX source code, derivative works, modifications or methods contributed to open source, including all portions of AIX, and Dynix and their derivative works, modifications, or methods.

40. All documents concerning IBM's use of Intel processors prior to January 1, 1998.

41. All documents concerning IBM's use of Intel processors after January 1, 1998.

42. All documents concerning IBM's contributions to development of the 2.4 and 2.5 Linux Kernel.

43. All documents concerning IBM's First Affirmative Defense that the Complaint fails to state a claim upon which relief can be granted.

44. All documents concerning IBM's Second Defense that Plaintiff's claims are barred because IBM has not engaged in any unlawful or unfair business practices, and IBM's conduct was privileged, performing the exercise of an absolute right, proper and/or justified.

45. All documents concerning IBM's Third Affirmative Defense that Plaintiff lacks standing to pursue its claims against IBM.

46. All documents concerning IBM's Fourth Affirmative Defense that Plaintiff's claims are barred, in whole or in part, by the applicable statutes of limitations.

11

47. All documents concerning IBM's Fifth Affirmative Defense that Plaintiff's claims are barred, in whole or in part, by the economic loss doctrine or the independent duty doctrine.

48. All documents concerning IBM's Sixth Affirmative Defense that Plaintiff's claims are barred by the doctrines of laches and delay.

49. All documents concerning IBM's Seventh Affirmative Defense that Plaintiff's claims are barred by the doctrines of waiver, estoppel and unclean hands.

50. All documents concerning IBM's Eighth Affirmative Defense that Plaintiff's claims are, in whole or in part, preempted by federal law.

51. All documents concerning IBM's Ninnth Affirmative Defense that Plaintiff's claims are improperly venued in this district.

52. All documents used, referred to, identified, or relied upon in responding to Plaintiff's First Set of Interrogatories.

12

INTERROGATORIES

1. Identify the name and address of the person(s) answering these interrogatories, and, if applicable, the persons' official position or relationship with Defendant?

2. List the names and addresses of all persons who are believed or known by you, your agents, or your attorneys to have any knowledge concerning any of the issues of this lawsuit; and specify the subject matter about which the witness has knowledge.

3. If you intend to call any expert witness at the trial of this case, state, as to each such expert witness, the name and business address of the witness, the witness' qualifications as an expert, the subject matter upon which the witness is expected to testify, the substance of the facts and opinions to which the witness is expected to testify, the substance of the facts and opinions to which the witness is expected to testify, and a summary of the grounds for each opinion.

4. Identify all persons who have or had access to UNIX source code, AIX source code and Dynix source code, including derivative works, modifications, and methods. For each such person, set forth precisely the materials to which he or she had access.

5. Identify all IBM or Sequent personnel that work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux, specifying for each person their precise contributions to each.

DATED this 24th day of June, 2003.

By: ___[signature]___
Brent O. Hatch
HATCH, JAMES & DODGE

David Boies
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
Attorneys for Plaintiff

13


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )