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Declaration of Joan Thomas -- PDF and as text
Saturday, August 28 2004 @ 06:21 PM EDT

Here is the Declaration of Joan Thomas in Support of IBM's Motion to Strike the Declaration of Christopher Sontag. She is the unfortunate IBM employee who would be in charge of arranging to fulfill SCO's discovery request regarding the CMVC system, should the court make it obligatory to turn over every version of AIX and Dynix since the founding of the world, plus comments, notes, post-its, whatever.

Like Randall Davis, Ms. Thomas also explains to the court that Christopher Sontag gets it all wrong. Davis focused on code. Thomas speaks about the CMVC system and how it works. It doesn't work, she says, the way Sontag says it does. Paragraph 7, for example, indicates that he has confused a diagram of AIX code turned over to SCO by IBM in discovery with how the CMVC system works. She corrects his error. His declaration is full of factual errors, she says, and he obviously hasn't any personal knowledge of the system. It's important to get that on the record, because IBM is moving to strike his declaration on a number of grounds, one being that his declaration is not based on personal knowledge. To put in a declaration, it has to be either that you are an expert qualified to give an opinion, or you can be anyone testifying to what you personally know to be a fact. IBM has challenged him on both scores.

There is an earlier declaration by Joan Thomas, and we have a copy of that as well. It has been scanned and I'll put it up tomorrow.

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

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
DECLARATION OF JOAN THOMAS IN SUPPORT OF IBMíS MOTION TO STRIKE THE DECLARATION OF CHRISTOPHER SONTAG

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

I, Joan Thomas, declare as follows:

1. I am employed by International Business Machines Corporation ("IBM"), as Program Director, AIX and HPC Program Management and pSeries Software Development Operations.

2. This declaration is submitted in connection with the lawsuit brought by The SCO Group, Inc. ("SCO") against IBM, entitled The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003). I make this declaration based upon personal knowledge.

3. I am familiar with IBM's CMVC system and with how source code and other materials related to the AIX operating system are stored and organized on CMVC. I have worked with AIX and CMVC for 2 years. Persons working under my direct supervision would be the ones burdened with the task of extracting from CMVC the AIX source code sought by SCO.

4. I have read SCO's Declaration of Christopher Sontag in Support of SCO's Reply Memorandum Regarding Discovery (the "Sontag Declaration").

5. The Sontag Declaration contains numerous factual errors. Since it is clear to me, from reading the Sontag Declaration, that Mr. Sontag does not have any personal knowledge of IBM's CMVC system, or of the time and effort involved in collecting and producing the information sought by SCO, I will not attempt to itemize and correct all of the errors made in the Sontag Declaration. I will, however, address and correct one flawed assumption that underlies Mr. Sontag's proposed method of collecting the SCCS source code files form CMVC.

6. Mr. Sontag incorrectly claims that IBM's CMVC system is organized in a way that allows IBM to utilize a "top-down" approach of collecting source code for the AIX operating system. Paragraphs 15 through 30 of the Sontag Declaration are all based on Mr. Sontag's erroneous assumption that CMVC is organized in a way similar to that depicted by Figure 1 of the Sontag Declaration. In fact, CMVC's directory hierarchy is completely different than that posited by Mr. Sontag, and a "top-down" approach to collecting information from CMVC would actually be more time-consuming than the process I outlined in my earlier declaration, dated June 23, 2004.

7. Figure 1 of the Sontag Declaration depicts the directory hierarchy of the AIX releases that have been produced in discovery by IBM. Figure 1 is not, however, an accurate depiction of any portion of the CMVC directory hierarchy.

8. Contrary to Mr. Sontag's assumption, there is no top-level directory in CMVC that contains the word "AIX", from which we could extract all AIX source, and only AIX source from that directory and its subdirectories. The vast majority of the AIX-related directories and files on CMVC, in fact, do not even contain the word "AIX" in their names.

9. As stated in my June 23, 2004 declaration (at paragraphs 7-9), determining which components in CMVC are part of the AIX operating system is a time-consuming process that requires that engineers intimately knowledgeable about the AIX operating system and about CMVC 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. Moreover, because of the way those files are organized in CMVC, the "top-down" approach described by Mr. Sontag in his declaration would be of no use.

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

Executed: August 4, 2004

Austin, Texas

___[signature of Joan Thomas]______
Joan Thomas


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]

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

_____[signature]______
Amy F. Sorenson


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