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Declarations of IBM's Todd Shaughnessy and SCO's Chris Sontag - as text
Saturday, April 24 2004 @ 08:25 PM EDT

Here is IBM's Todd M. Shaughnessy's Declaration regarding their discovery compliance, as required by Judge Wells' Order from both parties, followed by SCO's Chris Sontag's equivalent Declaration as text. Our thanks go Thomas Frayne this time, for the text versions.

Aside from the overall impression, where SCO writes that they have produced things they "inadvertently" overlooked before, compared with IBM's straightforward, "IBM has complied fully with the Order", there is this sentence from Sontag's Declaration that is raising questions: "Moreover, as the deadline approached, SCO had to transfer engineers off of product development to provide further assistance to ensure that SCO timely complied with the Court's Order."

The question in everyone's mind is, What could these engineers have been doing in the discovery process? Were SCO engineers not specifically excluded from the permitted eyeballs allowed to view at least some of the AIX code under the Addendum to the Stipulated Order of Protection?

The parties themselves no doubt have more clearly in mind exactly where the line is, but the Order reads like this:

"Because of its confidentiality, and because of the competing business interests between SCO and Computer Associates, SCO has agreed that, with respect to any Source Code that is provided to SCO by IBM in this lawsuit, it shall be produced to SCO on an outside attorneys' eyes-only basis. Accordingly, the Source Code may be disclosed to SCO's outside counsel of record in this lawsuit, but shall not be disclosed to anyone else, including without limitation any of SCO's officers, directors or employees, including SCO's in-house counsel. Computer Associates has agreed that outside experts who are not otherwise affiliated with SCO and outside counsel may review the Source code. SCO further agrees that outside counsel and/or any experts who review the Source Code will not utilize this software for any development purposes, and will limit their review and use of the software to issues relevant to the present litigation.

"Based upon the stipulation of counsel and good cause appearing therefore, IT IS HEREBY ORDERED THAT the Stipulated Protective Order is amended as follows:

"The Source Code, as defined above, may only be disclosed by IBM to SCO's outside counsel and its independent experts. SCO shall not provide said Source Code to SCO's officers or employees, including SCO's in-house counsel, nor use said source code for any purpose outside the context of the present litigation."

I note one other detail of interest. IBM's declaration identifies SCO like this: "Caldera Systems, Inc., a Delaware corporation that has since changed its name to The SCO Group, Inc." When SCO first began the IBM lawsuit, it was called Caldera Systems, Inc., as you can see in IBM's May 2003 response to the Complaint, where it titled the case "Caldera Systems, Inc., d/b/a The SCO Group." After that, when SCO adopted the name The SCO Group, all the IBM documents filed since have referred to them simply as The SCO Group. Now, suddenly, they remind the court that the case began as Caldera Systems, Inc., d/b/a/ The SCO Group.

At the same time, IBM is issuing subpoenas, including one to the Canopy Group, asking for all their documents regarding Caldera Systems, Inc. Perhaps they are anticipating objections, and are papering their argument by reminding everyone that there is a connection here that entitles them to ask for this discovery item.

Caldera Systems, Inc. was the name of the entity that sued Microsoft over DR-DOS. But Canopy became the successor-in-interest to Caldera Systems, Inc. as far as that court was concerned, which is why it had authority to request the court to be able to destroy the court records of the case. So, who is who here? And where does the Lineo/embedded Linux/DR-DOS story come into this picture? I am seriously starting to notice many arrows all pointing in the same direction.

If you are wondering why Sontag's Declaration is notarized and Shaughnessy's isn't, it's because Sontag isn't a lawyer and Shaughnessy is. Lawyers can just swear to the facts of a case, under penalty of perjury, instead of going to a notary public to swear to the truth of something. Lawyers in my state are notaries anyway, and they are supposed to be officers of the court and so able to swear to the truth of a matter on their own. Sontag, not being in that position, had to notarize his Declaration. With that introduction, here are the two Declarations.


Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]

Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation





Plaintiff/Counterclaim-Defendant, -against-




Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells


I, Todd M. Shaughnessy, declare as follows:

1. I represent IBM in the lawsuit filed against IBM by Caldera Systems, Inc., a Delaware corporation that has since changed its name to The SCO Group, Inc. ("SCO"), The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003).

2. The Court issued an order on March 3, 2004 (the "Order") directing both SCO and IBM to produce certain discovery. This declaration is submitted in response to Section III of the Order, instructing each party "to provide to the Court an affidavit detailing their efforts in complying with this order". IBM has complied fully with the Order.

3. On March 4, 2004, IBM produced the bulk of the releases of AIX and Dynix ordered by the Court to be produced in Section II.1 of the Order, and on March 9, 2004, IBM completed its production of all such source code. Although the Court gave IBM a deadline of 45 days from the date of the Order to produce this source code, IBM produced the source code immediately to provide SCO time to evaluate the code and take it into account in answering IBM's discovery requests.

4. With respect to Section II.2 of the Order, IBM undertook a reasonable search to identify any "non-public" contributions it made to Linux. Since Linux is publicly developed and available via the Internet, however, all of IBM's contributions to Linux are a matter of public record. IBM nevertheless also endeavored to identify materials that IBM unsuccessfully attempted to contribute to Linux and are not publicly available. To the extent IBM identified any such material, IBM has produced it.

5. With respect to Section II.3 of the Order, IBM has undertaken a reasonable search for and has produced all non-privileged responsive documents, including those from the files of Sam Palmisano and Irving Wladawsky-Berger.

6. Although not ordered to complete its document production by any specific date, IBM has already substantially completed its document production in response to SCO's first set of document requests and expects to shortly complete the production.

7. IBM has, pursuant to Section II.5 of the Order, provided additional supplemental answers to SCO's first set of interrogatories. With respect to Interrogatory No. 2, IBM has included the names of persons outside of IBM whom IBM believes may have knowledge about the issues of this lawsuit. With respect to Interrogatory No. 5, IBM has provided contact information, where such information exists in IBM's records, for each person for whom SCO requested such information. IBM believes that the reference to Interrogatory No. 11 in Section II.5 of the Order was a typographical error, because the time for responding to Interrogatory No. 11 had not yet passed, and was not the subject of SCO's motion to compel. In any event, IBM served on SCO its responses to SCO's Interrogatory No. 11 today, April 19, 2004, in accordance with an agreement between SCO and IBM.

8. In response to Section II.6 of the Order, IBM asked SCO on March 9, 2004 to let IBM know for which 1,000 of the persons listed by IBM in response to SCO's Interrogatory Nos. 4 and 5 SCO wished to obtain contact information. On March 26, 2004, SCO informed IBM that it wished to have contact information for all persons listed on Attachment E to IBM's answers to SCO's first set of interrogatories, as well as for 81 additional persons listed by SCO. SCO indicated that it would in the future request contact information for additional persons as appropriate, up to a total of 1,000 names. Of the 328 persons listed on Attachment E, IBM was able to locate contact information for 326 of them, and has provided such contact information to SCO. Of the 81 additional persons listed by SCO, only 32 of them (not including persons already appearing on Attachment E) were listed in IBM's answers to SCO's Interrogatory Nos. 4 and 5. IBM has provided contact information for each of those 32 persons. Thus, to date, IBM has provided SCO with contact information for 358 of the persons listed by IBM in response to SCO's Interrogatory Nos. 4 and 5. IBM will provide contact information for additional names as SCO requests such information, up to a total of 1,000 names.

9. With respect to Section III of the Order, IBM has provided, and will continue to provide, SCO with source logs that identify how documents were kept in the ordinary course of business, for all materials produced in discovery.

10. The documents and interrogatory answers provided to SCO are given to the best of IBM's knowledge and are complete, detailed and thorough.

11. I declare under penalty of perjury that the foregoing is true and correct.

Dated: April 19, 2004

Todd M. Shaughnessy


I hereby certify that on the 19th day of April, 2004, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

Brent O. Hatch
Mark F. James

Stephen N. Zack
Mark J. Heise

Kevin P. McBride



Brent O. Hatch (57 15)
[address, phone, fax]

Stephen N. Zack
Mark J. Heise
[address, phone, fax]

Attorneys for Plaintiff The SCO Group, Inc.




a Delaware corporation,



New York corporation,





Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells


: ss

BEFORE ME, personally appeared the undersigned authority, CHRISTOPHER S. SONTAG, who being duly sworn, deposes and says:

1. I am Senior Vice President of The SCO Group, Inc. ("SCO").

2. As requested by the Court's order dated March 3, 2004 ("Order"), this Affidavit details the efforts of SCO in complying with the Order.

3. After receiving this Court's Order, SCO located documents that were inadvertently not produced in response to IBM's earlier requests, including, for example, "sent" e-mails from certain executives. Because the company uses a variety of different e-mail servers, reasonable steps were taken to collect responsive documents from servers within the company and from individuals who likely would have responsive documents. Since the time of the entry of the order, SCO has collected additional documents, both electronic and hard documents, from numerous people within the company, including Albert Fu, Allan Clark, Andy Nagle, Benoy Tamang, Biff Traber, Bill Broderick, Bishop Clark, Blake Stowell, Bruce Grant, Chris Sontag, Craig Bushman, Danny Belitski, Darl McBride, Dave Prosser, David Gurr, Duff Thompson, Ed lacobucci, Eric Hughes, Francisco Dinis, Gregory Blepp, Janet Sullivan, Jay Peterson, Jeff Hunsaker, Jim Ferrigno, Joanie Bingham, Joe Bartnik, John Boland, John Dubios, John Maciaszek, Kate Andrews, Kerri Wallach, Kevin Auger, Kevin Snow, Kristjan Christiansen, Larry Gasparro, Mark Hoffman, Mary Freeman, Mary Gerbi, Michael Davidson, Michael Olson, Parul Chaudhary, Paul Hatch, Philip Langer, Porter Olsen, Randall Richards, Reg Broughton, Robert Bench, Rohit Chawla, Ryan Tibbitts, Sean Wilson, Sergey Babkin, Shaun Cutler, Simon Baldwin, Steve Boardwell and Steve Cakebread. As a result, SCO has produced approximately 183,000 pages of additional documents since the date of the Order and SCO continues to review for any additional documents. To date, SCO has reviewed approximately 1.6 million pages of documents (not including source code) that were potentially responsive and has produced electronically over 600,000 pages of documents, not including source code, in response to IBM's requests.

4. Besides production of documents since the date of the Order, SCO has also produced a dozen CDs containing source code requested by IBM. Thus, to date, SCO has produced 58 CDs of source code representing over 400 million lines of UNIX code and approximately 300 million lines of Linux code.

5. In response to the remaining items specified on page two of the Order, SCO undertook significant efforts to provide materials responsive to each of those items. As to item 2, shortly after March 24, 2004, which is when IBM provided the limited source code it was required to provide to SCO in the requested format, SCO electronically reviewed the pertinent source code from AIX and Dynix/ptx that IBM contributed to Linux. In addition to the items previously identified, SCO identified additional specific lines of code that it could currently identify. Moreover, when SCO indicated gaps existed in the source code produced and asked IBM to voluntarily provide the missing information, IBM refused to do so voluntarily and indicated that SCO instead should file a memorandum with the Court setting forth the need for the additional source code, which SCO intends to do. In addition, although in Table A of SCO's 70-page January response SCO noted that entire files were copied almost verbatim from Dynix/ptx into Linux, which made the identification of specific lines redundant and unnecessary, SCO nonetheless has specifically identified for IBM those lines of code contributed by IBM from Dynix/ptx.

6. As to Item 3, the kernels of AIX and Dynix/ptx in their entirety are modifications and derivative works based on UNIX System V. Nonetheless, SCO had its engineers and/or consultants identify all of the files in AIX and Dynix/ptx that have attributions to AT&T, SCO's predecessor in interest and the creator of UNIX. SCO thereafter undertook the task of identifying specific lines within those files that came from UNIX System V and from which AIX and Dynix/ptx are necessarily derived. However, because of the delay involved in getting the source code in the appropriate format from IBM, the time-consuming nature of identifying specific lines in each file, and IBM's ongoing refusal to produce design documentation, programmer notes and change logs for the files of code, I am advised that there are likely significant additional portions of AIX and Dynix/ptx that may be identified by SCO as its investigation continues. Of course, for the continuing investigation to be meaningful, it is imperative that SCO be provided copies of all versions of AIX and Dynix/ptx since their inception, together with all design documents, programmer notes and version control data, because earlier versions will have much more lines of code from UNIX System V showing that AIX and Dynix/ptx are modifications or derivative works based on UNIX System V.

7. As to item 4, SCO's engineers and consultants have identified lines of code in the Linux kernel to which SCO claims rights in addition to those previously identified in SCO's supplemental answers to interrogatories served in January 2004. Because some of this copying involves non-literal copying (i.e., structures, sequences and organization of UNIX System V that appear in Linux), many of the files are identified in their entirety. If a certain file, however, contains literal copying of material, then those specific lines have been identified.

8. As to item 5, in addition to the response previously provided by SCO in its January 2004 responses to interrogatories, SCO has identified lines of code, besides those of IBM, that SCO has distributed, to whom the code was released, on what date and under what circumstances such code was released. This information was provided as to IBM earlier and SCO has supplemented it to include distribution of lines of code besides those contributed by IBM.

9. Compliance with the Court's Order has required hundreds of hours of time of SCO employees and consultants. There were daily phone calls with various persons regarding the status and progress of the production and compliance with the Court's Order. Moreover, as the deadline approached, SCO had to transfer engineers off of product development to provide further assistance to ensure that SCO timely complied with the Court's Order. Based on the information currently in SCO's possession, the answers given and materials produced in response to the Order are given to the best of SCO's knowledge and are complete, detailed, and thorough.

Christopher Sontag
Sr. Vice President/General Manager
SCOsource Division
The SCO Group, Inc.

County of Salt Lake )

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

Notary Public


Plaintiff, The SCO Group, hereby certifies that a true and correct copy of DECLARATION OF CHRIS SONTAG was served on Defendant International Business Machines Corporation on this 19th day of April, 2004, by U.S. Mail to:

Alan L. Sullivan, Esq.
Todd Shaughnessy, Esq.
Snell & Wilmer L.L.P.

Evan R. Chesler, Esq.
David Marriott, Esq.
Cravath, Swaine & Moore LLP

Donald J. Rosenberg, Esq.


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