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To read comments to this article, go here
More IBM-SCO Love Letters Re Discovery
Friday, July 30 2004 @ 07:06 AM EDT

Here you will see lawyers handling discovery when there is not much trust left in the air. They are deep into the chess match here, in mid-game, with all the complexity that implies. SCO tries to muscle IBM and fails. And we know what eventually happened. SCO filed a motion to compel to try to muscle IBM some more, asking the court to make IBM give them what they want. At issue is, exactly what is IBM obligated to turn over? A cynical observer might add that it's really about trying to block IBM's partial summary judgment motion, by making it seem there is lots more discovery still to be done and that IBM is "stalling" on turning over what SCO needs.

SCO's Renewed Motion to Compel Discovery [text], with its Memorandum in Support [text], was the outgrowth of the letters. SCO has asked the court in their motion to make IBM turn over what they asked for in the letters, and more than they asked for in these letters, which were attached by SCO as exhibits to that motion. IBM has yet to respond to that motion. The due date for that filing is August 4. Note that the June 9 letter from IBM to SCO indicates that Ransom Love and the directors of Canopy Group are among those SCO is seeking contact information for. If SCO's characterizations in the letters are accurate, and that is a big if, it would indicate that IBM intends to call them as witnesses at trial.

The PDFs of the letters are linked to at the beginning of each letter. You will notice from the dates that this is not the complete exchange of love letters between them. These are just the ones that ended up as SCO exhibits.

My favorite letter is the last IBM letter, where they say in effect, "Oh, on that material you asked us to produce that we are not required to produce, we note you never gave us the equivalent. So, how about we both produce that category of material to each other at the same time? What day would be convenient for a mutual transfer?" SCO's reply is, "Um. Forget it. No more letters. We're going to the judge." Note they did *not* say, "Oh, fine. Mutual transfer it is. How about we do lunch and I'll give you our attorney work product and you can give me yours?" Attorneys don't have to turn over attorney work product in discovery, and SCO references this letter exchange in its footnote 14 in its Memorandum in Support, which makes it possible to compare their characterization of the exchange with the letters themselves:

"[14] SCO's request for information on 49 of the individuals was communicated by letter from Mark Heise to Peter Ligh, dated April 20, 2004 (attached as Exhibit 'K'). At about that same time, IBM named 85 additional witnesses in IBM's Second Supplemental Responses and Objections to SCO's First Set of Interrogatories dated April 19, 2004. IBM, however, decided not to provide the contact information for the witnesses that were not current or former IBM employees, even though it possessed the information. SCO requested IBM to remedy its noncompliance and provide the contact information for these 85 additional witnesses by letter to IBM's counsel dated June 4, 2004. See letter from Mark Heise to Peter Ligh (attached as Exhibit 'L'). By letter dated June 9, 2004, IBM claimed it was excused from producing the information because none of the individuals identified are presently affiliated with IBM. See letter from Peter Ligh to Mark Heise (attached as Exhibit 'M'). In response, SCO pointed out that it was only seeking information that IBM had in its possession. Letter from Mark Heise to Peter Ligh, dated June 15, 2004 (attached as Exhibit 'N'). IBM responded by claiming the request of SCO was now 'unclear' and suggested that the contact information in its possession might be work product. Letter from Peter Ligh to Mark Heise, dated June 16, 2004 (attached as Exhibit 'O'). Not wanting to engage in further protracted discussions, which simply work to delay IBM's production of the Court-ordered information, SCO simply noticed that IBM is under orders to provide this information and SCO expects IBM to comply. Letter from Mark Heise to Peter Ligh, dated July 6, 2004 (attached as Exhibit 'P')."

We see here SCO's position. We haven't yet heard IBM's side. What is at issue, though, is how to define what it is IBM is supposed to turn over. Obviously the parties don't agree. No one outside the discovery process can really know precisely what is going on and who is right and who is wrong, although it's clear to me that SCO's description of the letters doesn't match my impression. When the parties can't agree on discovery, at some point, somebody has to intervene. That's what judges are for.

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

[193-K.pdf]

[Boies, Schiller Letterhead]

April 20, 2004

Via Facsimile

Peter Ligh
Cravath Swaine & Moore LLP
[address]

Re: The SCO Group v. IBM

Dear Peter:

I received your letter dated April 19, 2004, in which you enclosed some of the contact information for the witnesses listed by IBM in its Answers to Interrogatories. You, however, attempt to justify not providing contact information for many of the witnesses I requested because they were not listed on attachments B through E. This is not a valid justification for refusing to provide such information.

Please be advised that these folks are identified by IBM as witnesses from whom IBM has provided documents. It is incongruous to provide documents from persons but then claim such persons are not witnesses in the case merely because IBM has failed to list them on Attachments B through E (although they clearly should be listed on attachments B through E).

Please let me know if you are willing to provide this information or whether we need to pursue this matter further with the Court.

Very truly yours,

Mark J. Heise

MJH/vb


[193-E.pdf]

[Cravath, Swaine Letterhead]

April 26, 2004

SCO v. IBM; IBM v. SCO

Dear Mark:

I write in response to your letter of April 22, 2004.

First, the files of Irving Wladawsky-Berger were searched and reviewed, but did not contain any responsive documents. Second, responsive documents from the files of other IBM senior executives are indicated on the source logs accompanying our document production. For example, Nick Bowen's documents can be found at bates numbers 1710088236-1710088650, 181031656-181031836, 181516101-181518248, 1910016418-1910017768, 1910021192-1910021542, 1910040040-1910040989, and 1910042024-1910042025; Paul Horn's documents can be found at bates numbers 1710091268-1710091416, 181518249-181518403, and 181585414-181585435; and Steven Mills' documents can be found at bates numbers 181668093-181670566. In addition, responsive documents from the Board of Directors' files can be found at bates numbers 1710137805-1710137834.

Very truly yours,

Peter Ligh

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

BY FAX


[193-L.pdf]

[Boies Schiller Letterhead]

June 4, 2004

Via Facsimile

Peter Ligh
Cravath Swaine & Moore LLP
[address]

Re: The SCO Group v. IBM

Dear Peter:

After our repeated objections about IBM's failure to properly identify witnesses, I would have thought that your April 19 response would have remedied the situation. Apparently, you have chosen not to do so in any of your filings. As a result, enclosed please find a list of additional individuals for whom IBM must provide the address, phone number and any other contact information. These individuals are from Exhibit A on IBM's supplemental production made pursuant to the Court's March 3, 2004 Order.

Very truly yours,

Mark J. Heise

MJH/vb
Encls.


[193-M.pdf]

[Cravath Swaine Letterhead]

June 9, 2004

SCO v. IBM; IBM v. SCO

Dear Mark:

I write in response to your letter of June 4, 2004.

None of the persons listed on the attachment to your letter is affiliated with IBM. Current contact information for these persons should be as accessible to SCO as to IBM (if not more accessible to SCO, since the list includes many persons affiliated with SCO, such as SCO's former CEO and directors of The Canopy Group, Inc., SCO's largest shareholder).

Very truly yours,

Peter Ligh

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

BY FAX


[193-N.pdf]

[Boies, Schiller Letterhead]

June 15, 2004

Via Facsimile

Peter Ligh
Cravath Swaine & Moore LLP
[address]

Re: The SCO Group v. IBM

Dear Peter:

In response to your letter dated June 11 in which you refuse to provide contact information for witnesses identified by IBM in its April 19 disclosure, please note that we are not asking for any SCO employees. Moreover, SCO is only asking for contact information that IBM has for the identified witnesses. If IBM has in its possession this information and SCO does not, then your statement that it is just as easy for SCO to get this information is incorrect. Thus, please let me know by the end of the day on June 16 whether IBM will be providing the contact information for the people identified on my earlier attachment for whom IBM has the relevant information.

If IBM refuses to provide contact information that IBM possesses, then we will have no choice but to bring this matter before Judge Wells. We hope such action is unnecessary. Thank you for your prompt attention to this matter.

Very truly yours,

Mark J. Heise

MJH/vb


[193-O.pdf]

[Cravath, Swaine Letterhead]

June 16, 2004

SCO v. IBM; IBM v. SCO

Dear Mark:

I write in response to your letter of June 15, 2004.

It is not clear to us what information you seek. Is it your position that the parties should exchange third-party contact information that has been discovered through the work of counsel for the parties? SCO itself does not appear to have provided such information in its answers to IBM's Interrogatory No. 10. If that is your position, what date do you propose for a simultaneous exchange of the information?

Very truly yours,

Peter Ligh

Mark Heise, esq.
Boies, Schiller & Flexner LLP
[address]

BY FAX


[193-P.pdf]

[Boies, Schiller Letterhead]

July 6, 2004

Via Facsimile

Peter Ligh
Cravath Swaine & Moore LLP
[address]

Re: The SCO Group v. IBM

Dear Peter:

I write in response to your recent letter concerning IBM's obligation to provide contact information for the witnesses listed by IBM. In response to your question about SCO's position, it is simple and straightforward. SCO wants IBM to comply with the Court's Order. Over one year ago, SCO served five interrogatories seeking basic information in this case, including the identity of pertinent witnesses. In response, IBM listed over 7,000 potential witnesses -- obviously a vastly over-inclusive list designed to effectively withhold rather than provide the information IBM was obliged to produce. At the same time, IBM failed to provide the required contact information. SCO followed up and asked for this information, but IBM again refused to provide it. As a result, in November 2003, SCO was forced to file a motion to compel seeking, among other items, the necessary contact information. IBM continued to resist production.

On March 3, 2004, the Court issued its Order on the nearly one year old discovery requests. The Court ordered IBM, among other things, to provide the contact information for prospective trial witnesses -- the exact information requested by SCO that IBM had refused to provide for nearly a year. Pursuant to that Court Order, on March 26, 2004, SCO again requested information for selected witnesses. Remarkably, IBM still refused to provide information for 49 of those witnesses and continues that practice as to a significant number of other witnesses. Likewise, again pursuant to the Court order, SCO thereafter provided another list of 85 witnesses taken from IBM's second supplemental responses to IBM's first set of interrogatories and requested the appropriate contact information. IBM again has failed to provide the required information that is needed to prepare for trial.

Given the number of requests SCO has made and IBM's refusal to respond -- even when ordered to do so by the Court -- we have come to the unavoidable conclusion that IBM is not going to provide the required contact information. SCO cannot further participate or be drawn into the kind of letter writing exchange that has only led to more than a year of refusals to produce the most basic discovery.

Very truly yours,

Mark J. Heise

MJH/vb


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