decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
IBM's Motion to Strike Sontag Declaration & Memo in Support - as PDF and text
Saturday, August 07 2004 @ 12:18 AM EDT

It's no more Mr. Nice Guy. IBM obviously has had it with SCO's maneuvers, and they have decided to respond in kind. SCO, in the last blizzard of motions, used every technical detail, every possible angle, with the result that IBM had to answer silly legal papers. So, now they give SCO not one inch. You want to play like this, they seem to be saying? Very well. We know how.

In IBM's Motion to Strike the Declaration of Christopher Sontag and the Memorandum in Support of Motion to Strike the Declaration of Christopher Sontag, IBM tells the court that Sontag's Declaration is legally deficient. He isn't established as an expert witness, and he certainly has no personal knowledge of IBM's software management and revision control system, CMVC, so all of his conjectures are legally inadmissable, either as an expert or as a lay person with personal knowledge. Or in plain English, he doesn't know what he is talking about.

Now, does IBM know that SCO can next draw up a supplementary declaration of some kind, and establish Sontag's credentials, if he has any, to keep the Declaration in play? Yes, they know that they can try that. So it seems to me that they are saying to SCO, you are forcing us to answer unnecessary motions. Let's *both* get busy answering things that decent, normal lawyering makes unnecessary. That way the legal expense will be equalized. You make us pay. We make you pay. You harrass us. We will harrass you. Note they also request oral argument on this motion and request it be at the same time as argument on SCO's Memorandum Regarding Discovery and its "Renewed" Motion to Compel.

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



SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

______________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_______________________

DEFENDANT/COUNTERCLAIM-PLAINTIFF IBM'S MOTION TO STRIKE
THE DECLARATION OF CHRISTOPHER SONTAG

(ORAL ARGUMENT REQUESTED)

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

________________________

Pursuant to DUCivR 7-1(a) and Federal Rules of Evidence 602, 701, and 702, Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits this Motion to Strike the July 12, 2004 Declaration of Christopher Sontag ("Sontag Decl."), submitted by Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO") in support of its Reply Memorandum Regarding Discovery. IBM respectfully submits that the Court should strike the Sontag Declaration for at least the following reasons:

1. The Sontag Declaration contains extensive testimony about an IBM-owned and IBM-operated tool, Configuration Management Version Control ("CMVC"), a software management and revision control system. In particular, the Sontag Declaration offers testimony about the operation of CMVC and sets forth opinions regarding how IBM should search in and compile information from CMVC.

2. The Sontage Declaration contains no testimony at all, however, showing that Sontag has any personal knowledge of CMVC, or of revision control systems tools generally. (See Sontag Decl. 1.)

3. The Sontag Declaration also contains no information whatsoever about Mr. Sontag's responsibilities, training, education, or work history, much less information sufficient to qualify him as an expert in the fields of computer science, operating system development, revision control systems, or discovery or litigation support in any of these areas. (Id.)

4. Because SCO has failed to show that Mr. Sontag either has personal knowledge of the matters in his declaration or is qualified as an expert witness by means of his experience or education, IBM respectfully requests that the Court strike his declaration and exclude it from consideration in ruling upon SCO's Memorandum Regarding Discovery and its "Renewed" Motion to Compel.

IBM also respectfully requests oral argument on this motion, and that such argument be heard at the same time as argument on SCO's Memorandum Regarding Discovery and its Renewed Motion to Compel. This motion is further supported by the memorandum of points and authorities submitted herewith, by the June 23, 2004 and August 4, 2004 declarations of Joan Thomas, IBM's Program Director for AIX, HPC Program Manager, and pSeries Software Development Operations, and by such argument as shall be presented at hearing.

DATED this 4th day of August, 2004.

SNELL & WILMER L.L.P.

_[signature]_____
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff International
Business Machines Corporation


CERTIFICATE OF SERVICE

I hereby certify that on the 4th day of August, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, FL]

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address, NY]

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

______________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_______________________

DEFENDANT/COUNTERCLAIM-PLAINTIFF IBM'S MEMORANDUM IN SUPPORT OF MOTION TO STRIKE
THE DECLARATION OF CHRISTOPHER SONTAG

(ORAL ARGUMENT REQUESTED)

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

________________________

Defendant/Counterclaim Plaintiff International Business Machines Corporation ("IBM") respectfully submits this Memorandum in Support of its Motion to Strike the Declaration of Christopher Sontag, dated July 12, 2004, submitted by Plaintiff/Counterclaim Defendant The SCO Group, Inc. ("SCO") in support of its Memorandum Regarding Discovery.

Preliminary Statement

In support of its Memorandum Regarding Discovery, SCO has submitted (in reply) the Declaration of Christopher Sontag (hereinafter "Sontag Decl."), which purports to describe in great detail the operation of IBM's internal source code control system -- known as Configuration Management Version Control ("CMVC") -- and the manner in which materials can be produced from IBM's system. Not surprisingly, however, Mr. Sontag, a SCO employee, does not have (and does not even attempt to claim any) personal knowledge concerning CMVC. Nor has Mr. Sontag been qualified as an expert competent to testify on any of the specialized fields of knowledge upon which he opines at length. Instead, Mr. Sontag's declaration consists entirely of improper speculation and argument (and is replete with inaccuracies) and should be stricken from the record.

Argument

A. The Court Should Strike the Sontag Declaration Because It Fails to Show Personal Knowledge.

The Court should strike Mr. Sontag's declaration because he fails to show any personal knowledge of the subject matter of his testimony. It is well-established that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed. R. Evid. 602; see Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541-42 (10th Cir. 1995). Moreover, a lay witness's testimony "in the form of opinions or inferences is limited to those opinions or inferences which are . . . rationally based on the perception of the witness." Fed. R. Evid. 701; see Gardner v. Chrysler Corpo., 89 F.3d 729, 737 (10th Cir. 1996). Thus, a lay witness's opinion testimony is not admissable if it is not "grounded in observation or other first-hand experience." See PAS Communications, Inc. v. Sprint Corp., 139 F.Supp. 2d 1149, 1181-82 (D. Kan. 2001).

Here, Mr. Sontag has submitted a sworn declaration expounding at length about IBM's CMVC system in particular and source code revision control systems generally, all in support of his personal opinion that IBM has "exaggerate[d]" the burden it would face if ordered to produce all the source code for AIX and Dynix/ptx going back twenty years, as SCO seeks both in its Memorandum Regarding Discovery and its recently-filed "Renewed" Motion to Compel. (Sontag Decl. 11.) Mr. Sontag's declaration, however, contains no statement showing he is personally familiar with IBM's CMVC system or even source code revision control systems at all. Mr. Sontag -- a SCO employee -- plainly has no personal knowledge of the subject matter of his testimony. Indeed, he instead claims to base his declaration in part on information from unnamed "reliable sources" and on "information and belief". (Sontag Decl. 1.) This is improper and Mr. Sontag's declaration should be stricken on this ground alone.

Mr. Sontag's lack of personal knowledge is further reflected by the content of his declaration, which is riddled with inaccuracies and false assumptions concerning CMVC. As IBM has described to this Court, IBM uses CMVC to provide shared access to source code files used in the development of various IBM products, to track changes made to source code files used in the development of various IBM products, to track changes made to source code files, and to ensure that only properly authorized individuals have access to such files. (6/23/04 Declaration of Joan Thomas 6, attached as Exhibit A to IBM's Opposition to SCO's Memorandum Regarding Discovery.) Although CMVC has been used in AIX development since 1991, the system also is used by many other areas inside of IBM for the development of other, unrelated products. (Id. 5.) CMVC keeps track of hundreds of thousands of source code files, containing billions of lines of code, whether or not they end up in an actual version or release of AIX, or in any of the other hundreds of IBM products for which it is used. (Id. 6.)

In his declaration, Mr. Sontag argues, among other things, that IBM has used a "bottom up" approach in describing the significant burden associated with searching for and compiling the information SCO seeks from CMVC, and that IBM can and should use a "top down" approach instead, which he defines as "simply . . . look[ing] up . . . AIX file names by the name 'AIX.'" (Sontag Decl. 18.) Mr. Sontag assures the Court that his proposed "top down" method for the use of IBM's system "will not only work, but will be sufficient and is the most time- and labor-efficient means for IBM to collect the CMVC information SCO requires," that IBM's AIX directories are "easily recognizable" in CMVC, and that "producing the materials SCO requests . . . should not take more than a few weeks." (Id. 3, 11-19, 22, & 23.) Even setting aside the fact that he has no personal knowledge of the operation of CMVC, Mr. Sontag's conjecture regarding his proposed "top-down" approach is simply wrong, as set forth in the accompanying Declaration of Joan Thomas. (See, e.g., 8/4/04 Declaration of Joan Thomas 7-8) ("Contrary to Mr. Sontag's assumptions, there is no directory or subdirectory name in CMVC that contains the word 'AIX'. Even the names of the files themselves do not usually contain the word 'AIX.' . . . [D]etermining which components in CMVC are part of the AIX operating system is a time-consuming process that requires engineers intimately knowledgeable about the AIX operating system and about CMVC to engage in a time-consuming, multi-step process to extract the source code files that are part of the AIX operating system from the tens of thousands of other source code files that are not part of the operating system.")

Mr. Sontag's declaration accordingly should be stricken in its entirety. Mr. Sontag has introduced no evidence "sufficient to support a finding that the witness has personal knowledge" of the subject matter of his declaration. Fed. R. Evid. 602. Moreover, the opinions stated throughout his declaration (and the conclusion SCO would have this Court draw -- that IBM's burden in producing all of the source code ever created for AIX and Dynix in the past two decades is insubstantial -- is not only not "rationally based on the perception of the witness," it simply cannot have been "perceived" by this witness at all. Fed. R. Evid. 701 (emphasis added). In fact, as discussed, Mr. Sontag's opinions are based on false assumptions as to the operation of IBM's CMVC system.

B. The Court Also Should Strike the Sontag Declaration Because It Does Not Qualify As Admissable "Expert" Opinion Testimony.

SCO also has not laid any foundation to offer Mr. Sontag as an "expert" witness, which might otherwise excuse his failure to show personal knowledge. In the Tenth Circuit, as elsewhere, lay witnesses are not permitted to "express an opinion as to matters . . . which require the special skill and knowledge of an expert witness." Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979); 374 F.3d 917, 929 (10th Cir. 2004). "A holding to the contrary would encourage [parties] to offer all kinds of specialized opinions without pausing first properly to establish the required qualifications of their witnesses." United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997). "When the subject matter of proffered testimony constitutes 'scientific, technical, or other specialized knowledge,'" a witness must be qualified as an expert under Rule 702. Telebank, 374 F.3d at 929. The field of computer science in particular "is precisely the type of 'specialized knowledge' governed by Rule 702." Hilgraeve Corp. v. McAfee Assoc. Inc., 70 F. Supp. 2d 738, 755 (E.D. Mich. 1999) (citations omitted), vacated on other grounds, 224 F.3d 1349 (Fed. Cir. 2000).

Mr. Sontag's declaration states only that he is one of SCO's Senior Vice Presidents and its General Manager. It contains no information whatsoever about his responsibilities, training, education, or work history, much less information sufficient to qualify him as an expert in the fields of computer science, operating system development, revision control systems, or discovery or litigation support in any of these areas. As discussed above, despite this silence, Mr. Sontag offers numerous opinions in his declaration, ranging from an (incorrect) theory of CMVC's structure, to the exact length of time (two days) it should take IBM to copy the materials from CMVC onto DVDs, to the claim that IBM "exaggerates the burden it faces" associated with producing the billions of lines of AIX and Dynix source code SCO requests. (Sontag Decl. at 11, 20-30, 34.) Mr. Sontag (since he has no personal knowledge) is not permitted to offer the numerous opinions, inferences, and analogies he draws and discusses at length in his declaration, without establishing that he is a qualified expert witness competent to testify to these matters. As he makes no such attempt, Mr. Sontag's opinions should be disregarded.

Whether as a lay or an expert witness, therefore, Mr. Sontag's testimony is not competent evidence, and his declaration should be excluded in its entirety.

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court strike the Declaration of Christopher Sontag submitted in support of SCO's Reply Memorandum Regarding Discovery and not consider it in ruling on that memorandum and on SCO's "Renewed" Motion to Compel.

DATED this 4th day of August, 2004.

SNELL & WILMER L.L.P.

_[signature]_____
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff International
Business Machines Corporation


CERTIFICATE OF SERVICE

I hereby certify that on the 4th day of August, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch (w/ exhibits)
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack (w/ exhibits)
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, FL]

Robert Silver (w/ exhibits)
BOIES, SCHILLER & FLEXNER LLP
[address, NY]


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )