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Discovery Hints
Tuesday, April 20 2004 @ 03:27 PM EDT

Newsforge is reporting that SCO says they turned over the discovery materials they were supposed to give IBM yesterday:

"Legal representatives of the SCO Group and IBM were in contact with each other Monday to present new evidence to support their cases in the $5 billion intellectual property lawsuit SCO Group filed against Big Blue on March 6, 2003.

"'SCO Group (lawyers) did connect with representatives of IBM today and exchanged what information they were directed to exchange,' SCO Group spokesman Marc Modersitzki told NewsForge.

"Modersitzki said he did not know if the company attorneys met in person, in audio or video conference, or simply transferred the evidence electronically. 'All I know is that they made connection, as directed by the court, and exchanged the information requested by the court,' he told NewsForge."

Well, now, some of us will adopt a wait-and-see attitude. There is a little water under this bridge for those of us following SCO from the beginning, and we've heard from SCO's PR team before. Discovery is handled normally between the parties, so we'll only know if they did or they didn't by watching what happens next. If they didn't, IBM will likely file a motion with the court complaining about it and asking the court to intervene to make them do so. If they did, then that won't happen. So we'll have to just wait and see.

As you can see from the judge's order, SCO was supposed to turn over the following:

1. To fully comply within 45 days of the entry of this order with the court's previous order dated December 12, 2003. This is to include those items that SCO had difficulty in obtaining prior to the Court's previously ordered deadline of January 12, 2004.

2. As previously ordered, SCO is to provide and identify all specific lines of code that IBM is alleged to have contributed to Linux from either AIX or Dynix. This is to include all lines of code that SCO can identify at this time.

3. SCO is to provide and identify all specific lines of code from Unix System V from which IBM's contributions from AIX and Dynix are alleged to be derived.

4. SCO is to provide and identify with specificity all lines of code in Linux that it claims rights to.

5. SCO is to provide and identify with specificity the lines of code that SCO distributed to other parties. This is to include where appplicable the conditions of release, to whom the code was released, the date and under what circumstances such code was released.

I don't bet, but if I did, I would bet anything they turn out not to have turned over everything on this list. The judge makes reference to her December Order, and in that one, SCO was ordered to turn over the following:

"In accordance with the Court's order Plaintiff/Counterclaim-Defendant the SCO Group, Inc. (SCO) is hereby ORDERED:

1. To respond fully and in detail to Interrogatory Nos.1-9 as stated in IBM's First Set of Interrogatories.

2. To respond fully and in detail to Interrogatory Nos. 12 and 13 as stated in IBM's Second Set of Interrogatories.

3. IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Productions of Documents and SCO is to produce all requested documents.

4. To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided.

5. To the extent IBM's requests call for the production of documents or are met by documents SCO has already provided, SCO is to identify with specificity the location of responsive answers including identification of the Bates numbered documents previously provided if applicable.

6. If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom they were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance.

If you wish to review the interrogatories referred to, here is the first and the second sets. Some of this they did turn over, but the later order from the judge told them to finish up and comply fully. Their attorney told the judge they were unable to do so unless they got to look at AIX code first. If they have complied, it raises some obvious questions about that statement. As you will remember, at the December 5th hearing, their lawyer said they needed that AIX code first:

"Your Honor, to have Mr. Marriott produce all versions of AIX. We need them to produce all the development notes of their developers from AIX. Then we will have the capability of being able to compare what IBM's contributions are lined up against our codes, and then we'll make a very clear specification of where the violations are . . . ."

Then at the February hearing, their lawyer said:

"We don't have the source code for 15 and 16. They do. If they give it to us we'll supplement if further, but in the absence of that it is literally impossible to identify the lines. We have identified the technology, we just cannot identify the lines because we don't have their derivative modification source code. That is why and that is what I am trying to get across."

And now they not only can, they have done it? Time will tell, time will tell. But if they did, they must have been telling Judge Wells some tall stories, don't you think?

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