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AutoZone Hearing July 12; Some Icy IBM-SCO Letters & an Order Re Depositions
Thursday, June 24 2004 @ 06:21 AM EDT

There are a number of new court filings from Pacer, one on AutoZone and one on IBM, and a couple of paper exhibits we picked up that were attached to IBM's Memorandum in Opposition to SCO's Motion for a Protective Order (regarding the deposition scheduling--which Judge Brooke Wells already denied).

Nothing major, but the Ralph Yarro deposition is mentioned, and there appear to have been some negotiations about exactly what the Free Software Foundation would really turn over, as opposed to all SCO asked for in the subpoena, and some agreement is being worked out.

The AutoZone hearing has been rescheduled on stipulation by the parties for July 12 at 9 AM.

The two exhibits, letters from IBM and SCO to each other, are mostly of interest because it shows you how lawyers deal with each other outside the courtroom. I think you'll understand why courtesy is the norm, or at least the ideal, between opposing attorneys. They have to arrange a lot of details together, so it makes things run smoother when everyone behaves politely. Here, they do. But there are no casual pleasantries and no reason to think there is any love lost between the attorneys. You can see that these are not love letters.

SCO uses a December 19, 1999 date when asking for a certain document, and IBM cooly points out in a very polite but nevertheless mocking way that they have a memo dated December 20, 1999. Might that be the one they seek? It's not clear whether SCO had the wrong date or if there is more going on. They each maintain a level of professional courtesy, but it's professionalism only. The document SCO is looking for is evidently a 10-page memo dated 1999, so I'm guessing it is part of SCO's quest to find some smoking-gun proof that IBM planned to destroy UNIX or some such and put it in a handy memo ("Reminder to everyone in Dept47a that this week we will be DESTROYING UNIX."), which so far they clearly haven't identified or been able to find. They say they have "similar" ones, but they don't do the trick, evidently.

As another indication that there is no extra level of friendship, the judge has issued an order, telling both sides to provide the other side with any affidavits or declarations at least 48 hours before a deposition. It's like your mom telling you and your brother that you have to share the bike -- you get 15 minutes and then your brother gets 15 minutes. It's the kind of thing that no one has to tell you, unless somebody has a problem. Now, whether somebody tattled to mom about a late affidavit, without providing extenuating circumstances, and was believed, or whether there really are games going on, or whether the judge just decided to invent a rule for the parties, I don't know. But it is likely one of the three, and the last is the least likely.

One of the two IBM exhibits lists the towns and cities where parties being deposed live, and I thought about it for a bit, and I've decided I don't feel it would be kind to post that pdf without deleting that information, which we have done. I have to use my best judgment on something like this, and I just know it would distress me if someone posted where I live, and you can't go too far wrong if you treat others the way you'd like them to treat you. So, here is what we have:

  • AutoZone Calendar Setting - Rescheduling the AutoZone hearing until July 12, at 9 AM, at U.S. District Court, Lloyd D. George, U.S. Courthouse, 333 Las Vegas Blvd., South, Las Vegas, NV 89101, Courtroom #7D.

  • Exhibit A: Heise letter to Kao, May 26, 2004 -- see text below.

  • Exhibit B: Kao letter to Heise, May 28, 2004 -- see text below.

  • Order by Wells, who appears to be responding to someone's complaint, but that is just a guess: "Any affidavit or declaration intended to be used at a deposition is to be produced to the opposing party at least forty-eight hours prior to the beginning of the deposition, or such affidavit or declaration shall not be used at the deposition."

A number of names are listed as being scheduled for depositions. To give you an idea of who they all are, here are some links:

1. John Terpstra:

"Terpstra is a co-founder of the Samba project, an Open Source/Free Software suite that provides seamless file and print services to SMB/CIFS (read Windows) clients. After a soured relationship with TurboLinux, Terpstra joined Caldera/SCO, where he now concentrates on community development."

He was Caldera's "open source evangelist" back when Caldera/SCO was a Linux company. He later became CEO of PrimaStasys, Inc..

In 2003, there were more developments: "John is currently an independent consultant. He has served as vice president of technology at Caldera (now SCO), worked with Aquasoft PTY Ltd, PrimaStasys, Inc., was vice president of development at TurboLinux, and is currently a consultant to Vintela, Inc.". He appeared on the Linux Show on February 10, 2004. (MP3.)

He was one of the recipients of the "UNIX is free" email from Caldera, when they released ancient UNIX under a BSD-style licence. Here Caldera open sourced, mainly under the GPL, a lot of UNIX code: "August 20, 2001— Caldera International, Inc. (Nasdaq: CALD) today announced it will Open Source the AIM performance benchmarks and the UNIX Regular Expression Parser, along with two UNIX utilities awk and grep. These technologies will be released under the GPL (Gnu General Public License). In a related move, Caldera will also be making the Open UNIX 8 source code available to members of its developer program who request it. Information about the Caldera developer network is available at http://www.caldera.com/partners/developer/."

2. Phil Langer. Mr. Langer is Regional Director, Intellectual Property Licensing, for SCO. You'll likely remember his name from the letter an end user sent him in response to one of the January 2004 warning letters from him as a representative of SCO. You will remember him also, if you've really been paying close attention, from the February letters in the fight over discovery, when IBM asked for documents of his and SCO claimed there weren't any. IBM would like to speak with him now directly. In IBM's letter to SCO, they wrote:

"Second, SCO has thus far only produced files from 17 individuals. Presumably others of SCO's employees have documents responsive to IBM's First and Second Document Requests, including Gregory Blepp, Philip Langer, John Maciaszek and Porter Olson, among others.

"In any case, the productions from these 17 individuals appear to be incomplete. Although SCO has provided numerous e-mails from these individuals, SCO has not produced any of the corresponding attachments to those e-mails. In addition, for certain individuals (including Darl McBride), SCO has produced received e-mails, but not any sent e-mails."

In SCO's letter back, they wrote, "As to Philip Langer, there are no documents." Evidently, IBM didn't feel that answer was sufficient or maybe not even true and that likely Mr. Langer might tell the tale of his having no email relevant to this subject and no letters or other documents something they'd like to delve into a little deeper. Considering his position, I'd say that is a logical string to pull.

3. Jay Petersen is listed as creating some powerpoint presentations announcing the SCOSource licensing endeavor, including the April 2003 webinar, as HTML [ppt here], which says this on slide 15:

"SCO System V for Linux Release 1  SCO UNIX Runtime Libraries 
First release includes COFF static shared libraries from OpenServer
Compatible with SCO UNIX, OpenDesktop, all versions of OpenServer"

And this on slide 17:

"Summary: SCO System V for Linux  
License for SCO OpenServer Libraries on Linux
Aimed at current users of SCO UNIX applications
Key message is investment preservation
Free value add for SCO Linux users"

4. Greg Anderson - This, from 2002, is all I could find on him, but once again, it seems he was a Caldera-era guy. The name is so common -- there is one at HP, for example -- that I only list the one that definitely says he is at SCO.

5. Wolf Bauer was named Vice President of Engineering in January. The press release:

"Jan 14, 2004 -- The SCO Group (Nasdaq: SCOX) today announced the appointment of Wolf Bauer to the position of vice president of engineering, and Scott Lemon to the position of chief technologist. Bauer and Lemon are currently members of the SCO Group executive team. In their new roles, both Bauer and Lemon will report to Jeff Hunsaker, senior vice president and general manager for SCO's UNIX division. . . .

"In his new role as vice president of engineering, Bauer will be responsible for the continuing development of all of SCO's products, including its two operating systems -- UnixWare and OpenServer. Bauer, who works in SCO's Murray Hill, New Jersey office, has been involved in UNIX development activities throughout most of his career. Bauer began his career at AT&T Bell Labs and worked on advanced military and telecommunications projects for more than two decades.

"During the 1980s Bauer held senior technology positions at Northern Telecom. In the early 1990s Bauer joined UNIX Systems Laboratories (USL), where he was responsible for the development of the graphical system interface for the UNIX System V operating system. From 1993 until 1995 Bauer was part of Novell's UNIX group, following Novell's purchase of USL. He became part of SCO in 1995 following SCO's purchase of all UNIX intellectual property and copyrights from Novell. Bauer has been one of the leaders involved in the ongoing enhancements of SCO' widely used UnixWare and OpenServer operating systems."

Incidentally, Scott ("nothing is ever black and white") Lemon has left SCO.

6. Mike Davidson wrote lxrun while at SCO:

"Lxrun is a user-space program that allows users of SCO(r) OpenServer(tm), UnixWare(tm), and Sun(r) Solaris(tm) x86 operating systems to run ELF and a.out format Linux binaries. It was originally written by Mike Davidson of SCO. In 1997, he released the source code into the public domain. It is now maintained as an open-development effort."

Lxrun was distributed as Skunkware:

"Lxrun is a user-space program that allows users of SCO(r) OpenServer(tm), UnixWare(tm), and Sun(r) Solaris(tm) x86 operating systems to run ELF and a.out format Linux(R) binaries. It was originally written by Mike Davidson of SCO, and is now maintained as a Skunkware project."

I probably don't have to tell you why IBM might want to depose Mr. Davidson. Here is a talk Mr. Davidson gave on lxrun. And here he answers the question, "Will UnixWare 2.1 or 7.0 run ibcs/OpenServer binaries? And here is the lxrun FAQ, explaining how it works.

7. Greg Pettit is the SCO regional director of SCO licensing who sent the letters to two Department of Energy facilities:

"SCO sent letters raising the prospect of legal action for using Linux to two Department of Energy facilities, the Lawrence Livermore National Laboratory and the National Energy Research Scientific Computing Center (NERSC).

"'I am requesting a meeting so that we may discuss the alternatives available to your firm. WE BELIEVE WE CAN PROPOSE SOLUTIONS THAT WILL BE AGREEABLE AND ECONOMICALLY FEASIBLE FOR YOU,' Gregory Pettit, SCO's regional director of intellectual-property licensing, wrote in the Jan. 16 letter, which he said was a follow-up to a Dec. 19 notification.

"'If you fail to respond to our efforts to pursue a licensing arrangement, WE WILL TURN YOUR NAME OVER TO OUR OUTSIDE COUNSEL FOR CONSIDERATION OF LEGAL ACTION,' Pettit said."

8. Jeff Hunsaker, as you know, is senior vice president and general manager in SCO's Unix division. He is the one who excitedly announced the new UNIX products last week.

9. Larry Gasparro was VP, Sales, according to that SEC filing of January of 2004, when he seemed to have sold all his stock. I say "was" because he isn't listed on SCO's executives page any longer. He used to be, as of last June. His name in the SEC filing and on the web site is spelled with two R's, so I assume Mr. Heise misspelled his name.

So, all of the above ought to give you a picture of what is going on in discovery. And with that, here are the two paper exhibits, the letters, as text.

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

[Boies, Schiller letterhead]

May 26, 2004

VIA FACSIMILE

Mr. Christopher Kao
Cravath, Swaine & Moore
[address]

RE: SCO v. IBM; IBM v. SCO
Case No. 2:03CV - 0294 DAK

Dear Chris:

This letter responds to yours of May 25, 2004. On your first topic regarding the Free Software Foundation's documents, I have enclosed a copy of the Agreement. If it is acceptable to you, please forward your signed copy to Daniel Ravicher and send me a signed copy for our files. Upon receipt of their documents, we will provide you with a copy. On the issue of reimbursement for copying expenses, we certainly agree with your suggestions when a particularly large volume of documents is produced.

As for the depositions noticed for next week, Phil Langer lives in [redacted], so his deposition will need to be re-noticed for some other date at that location. Similarly, Greg Pettit lives in [redacted], so his deposition will need to be rescheduled for a later date at that location. Although not noticed for next week, Larry Gasparo lives in [redacted] and would need to be taken there. As an alternative, I may be able to have all three of these individuals available for deposition at our offices in Short Hills, New Jersey. If I can do so, they would like to have the depositions taken at or about the same time. Is there a two or three day period (depending on how long you think the depositions would last) when you would like to reschedule them?

At this time, I have additional information regarding other depositions that will be helpful for you in re-noticing depositions:

1. Mike Davidson lives in [redacted] and I have not been able to determine his availability for deposition as scheduled on June 15, 2004. He is out of the office until June 2, so I will contact him upon his return.

2. Jay Petersen lives in [redacted] and is currently available on his scheduled deposition date of June 22. If, however, because his deposition needs to be moved based on his location, please note that he is not available from June 28 through July 10. His deposition can be rescheduled at our offices in Short Hills, New Jersey.

3. Greg Anderson is no longer with SCO.

4. Jeff Hunsaker is currently set for June 24, 2004, but he is unavailable at that time. For purposes of rescheduling, Mr. Hunsaker is currently unavailable from June 21 through July 25, 28, July 8 and 9 and July 30 through August 6.

5. John Terpstra is no longer with SCO.

6. Wolf Bauer needs to have his deposition rescheduled for New Jersey. July 1 currently is acceptable for him, but he is otherwise unavailable in July and August. He has dates in June, however, when he is available.

The remaining individuals you have identified that are affiliated with SCO, including Ralph Yarro, are currently available during their scheduled time. If, however, any of their schedules change, I will notify you promptly so that we may properly coordinate the rescheduling.

On another discovery matter, Amy Sorenson wrote on May 21, 2004 about Chris Sontag's code comparisons. These documents may be found as SCO1508000 to SCO1508006. SCO likewise has a question about a particular document; specifically, the 10 page memo required to be produced pursuant to the Court's March 3, 2004 Order. We have located drafts of apparently similar documents but have not seen what was actually presented on December 19, 1999. Please identify the Bates numbers for this document.

Please feel free to call if you have any questions.

Sincerely,

_____[signature]____
Mark J. Heise

MJH/vb


[Cravath, Swaine & Moore letterhead]

May 28, 2004

SCO v. IBM; IBM v. SCO

Dear Mark:

I write in response to your letter dated May 26, 2004.

I did not receive with your letter the proposed agreement concerning the Free Software Foundation's documents. Can you resend it?

We will serve a revised deposition notice that is consistent with the dates you provide in your letter and that attempts to group the witnesses that SCO has agreed to make available in New Jersey in two- to three-day blocks. We will issue subpoenas to Mr. Greg Anderson and Mr. John Terpstra and will let you know if the proposed dates are convenient for them.

Finally, I am uncertain as to the specific memorandum dated December 19, 1999 you are seeking. The December 20, 1999 presentation materials created by Nick Bowen can be found at the pages numbered 1710088340-67.

If you have any questions, please feel free to call me.

Sincerely,

_____[signature]_____
Christopher Kao

Mark J. Heise, Esq.
Boies, Schiller & Flexner LLP
[address[

BY FACSIMILE

Copy to:

Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]


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