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SCO v. IBM - SCO's Renewed Motion to Compel Discovery
Thursday, July 08 2004 @ 08:55 AM EDT

SCO has filed a Renewed Motion to Compel -- meaning they claim IBM is not obeying Judge Wells' March Order, and they have filed a Motion requesting the court allow them extra space to tell them aaaaaall about it at length. They say they need 2 extra pages, in order to enumerate all of IBM's alleged "sins" against the Order of March 3rd.

The long and the short of it appears to be this: IBM has turned over materials to SCO, but SCO evidently believes they have more hidden away they aren't turning over. They are in a bind, because if IBM says there isn't any more, then what is the court supposed to do? SCO has some suggestions.

In essence, it looks to me that they would like to court to order more than it originally ordered, despite framing it as if IBM failed to obey the earlier order. If you read the court's order, which I have excerpted in relevant part below, I think you will see SCO insisting documents simply must exist, even if IBM asserts they don't, and that they'd like more now than they got under the order. I gather SCO is very unhappy with the way things are going in discovery. They can't find what they need to prove their case, I guess, and no doubt they'd like to portray IBM in a bad light to the judge, hence this motion.

Specifically, SCO would like the following:

  • "Unfettered access" to IBM's Configuration Management Version Control and Revision Control System. Good grief, Charlie Brown. They don't want much, do they? Why don't they just ask the court to let them move in to IBM headquarters, with catered meals at IBM expense, so they can find out everything there is to know about how to run a business? They are seeking more information to supplement IBM's answers to SCO Interrogatories 2, 5, and 11. Interrogatory 5 was seeking info about persons who "worked on developing source code for IBM's AIX, Dynix and Linux products, and the contributions of these persons to these products", and IBM allegedly told SCO that the information they seek can be found in the AIX and Dynix products turned over by IBM. SCO can't find it themselves, evidently. Maybe SCO fired one too many engineer. So now they want to get "unfettered access". I don't recall SCO ever asking for this before. The court didn't order this. It ordered both IBM and SCO to give each other source logs. So how would this be an example of IBM failing to obey the Order?
  • Relevant notes, memos, correspondence and emails of Sam Palmisano, which SCO claims exist and which IBM says do not, to supplement what IBM has already turned over.
  • The same for Irving Wladawsky-Berger, but for him, SCO says IBM didn't turn over anything. The explanation is likely that there isn't anything relevant. And for good measure, SCO requests "full files" of all of IBM's Board of Directors, including minutes, Board packages, and other "relevant materials." There is nothing in the Order that I see ordering IBM to turn over Board of Directors files, so this appears to be, from all that is publicly known, another new request, not an example of IBM failing to obey a prior order.
  • Contact info relating to 134 persons SCO asked about, and they want it and also contact info for "any other witnesses IBM intends to call at trial." If you look at the Order, it says nothing about 134 persons. It does speak about a list of witnesses in paragraph 6 and maybe the parties have narrowed the list down to 134, but I see nothing ordering contact info, as opposed to a list. I don't know, therefore, what SCO's request refers to, but it doesn't refer directly to the Order, as far as I can see. Discovery isn't public, unless it ends up as an exhibit, so there is no way to be sure about this issue.
  • If IBM continues to assert there are no further relevant materials, SCO would like the court to order that everybody fork over certifications.

Obviously, IBM will say they did, too, obey the earlier order, and SCO is just looking for more than the court ordered IBM to provide. It's quite serious to disobey a court order, and faced with the choice of putting in a new motion to compel or portraying this as a renewed motion in response to a failure to obey, you can make the other side look worse if you claim they have failed to obey.

Now, just to show you that SCO is once again phrasing things according to their own lights, so you can judge for yourself, here is what the judge ordered IBM to give to SCO in the Order, the part that relates to SCO Renewed Motion requests:

"3. IBM is to provide documents and materials generated by, and in possession of employees that have been and that are currently involved in the Linux project. IBM is to include materials and documents from executives including inter alia, Sam Palmisano and Irving Wladawsky-Berger. Such materials and documents are to include any reports, materials or documents from IBM's "ambitious Linux Strategy." Steve Lohr, A Mainstream Gian[t] Goes Countercultural; I.B.M.'s Embrace of Linux Is a Bet That It Is the Software of the Future, N.Y. Times, March 20, 2000, Business/Financial Desk. The Court finds these materials are relevant because they may contain information regarding the use or alleged misuse of source code by IBM in its contributions to Linux.

"5. IBM is ordered to provide further responses to SCO's interrogatory numbers two, five, and eleven. These responses are to include relevant information from all sources including top level management.

"6. SCO seeks the proper indentification of approximately 7,200 potential witness[es] identified by IBM. IBM in its memoranda suggested that the parties might be able to reach some sort of agreement as to the most important prospective trial witnesses and then IBM would provide the full contact information for these individuals. The Court orders IBM to properly identify a representative sample of the potential witnesses that is to include a 1000 of the most important prospective trial witnesses as agreed upon by SCO and IBM. Following the production of this information, the Court will consider the need for the proper identification of additional witnesses."

See anything about unfettered access or the Board of Directors? Me neither. Yet, SCO states it this way:

"IBM should be ordered to comply with the Court's March 3, 2004 Order by providing the full files of Mr. Palmisano, Mr. Wladawsky-Berger, IBM's Board, including Board minutes, Board packages, and other relevant Board materials, and all other documents relevant to SCO's requests that this Court previously Ordered be produced, and that SCO originally requested on June 24, 2003. "[emphasis added]

I just don't see where they are getting that, unless it's a question of interpretation of what the phrase "top-level management" means. What I see is that IBM did turn over what they felt was relevant, as ordered, and SCO didn't get what it hoped to get. While it is perfectly fair to ask for whatever you feel you need in discovery, I can't see how this shows IBM disobeying any order of the court, not yet anyway. I can't possibly know if IBM is holding back materials, not having any inside information. Heaven only knows lawyers have been known to do that. What I am saying is that I can't see how this motion compared with the order shows that they are or that they disobeyed the order itself.

This might be a good time to let you know that I spent the long weekend revamping the Legal Docs page. It isn't finished yet, but the IBM section is, and I hope you find it easier to find things now. I am also working on a page that will group the documents by category. When we started all this, it was a simpler time. Now, with so many cases and so much motion practice -- and today is Exhibit A -- I realized I needed to get Legal Docs better organized. I hope it helps.

We are also revamping the timeline pages, and the IBM Timeline page is up-to-date.


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