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SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Sunday, August 29 2004 @ 06:41 AM EDT

Here is SCO's Memorandum in Opposition to IBM's Motion to Strike the July 12, 2004 Declaration of Chris Sontag. So they have read what IBM and Randall Davis and Joan Thomas wrote, and this is their response.

Their cases, in contrast with IBM's, take up only half a page. As for IBM pointing out that Sontag was not qualified in his declaration as an expert, SCO responds not by qualifying him but instead says this:

"IBM's Motion is an attempt to prevent the Court from seeing (1) IBM public documents that contradict IBM statements to this Court, and (2) the rudimentary, common sense observations of an experienced industry participant that IBM, one of the most sophisticated companies in the world would never make its internal operation as inefficient as IBM now tells the Court they are."

In saying he is "an experienced industry participant" they acknowledge that he is not an expert. That means they have not countered IBM's primary reason for striking his declaration.

And the rest of the sentence means that they have no evidence, so Sontag, as they characterize it, isn't providing testimony from person knowledge, the only other way he can, but instead gives his "common sense" opinion that CMVC can't work the way IBM says, because they ought to have designed it better than they appear to have done. The rest of the document is just SCO being about as nasty as you ever see in legal documents.

No judge is going to be influenced by such arguments. SCO needs to come up with some facts to place in evidence, not more theories and guesses. And they desperately need to find an expert to counter what MIT's Randall Davis wrote. That may be hard to find, to say the least. First of all, exactly where would you find an expert better qualified than he is? And if you did, how would you get him to agree to uphold your theories in public? Maybe if you could kidnap him and get him very drunk indeed. Or brainwash him, if you had enough time. Failing that, you'd have to do what SCO does here -- give all the reasons you can think of why your motion stands even without the Sontag declaration and "even if IBM's Thomas declaration were uncontradicted". In other words, not only can they not answer Davis, they can't contradict Thomas either. So instead they basically ask that at least the exhibits stay in the record.

Standing up for SCO doesn't seem to pay off, anyway. BayStar, it's been reported, is being investigated by the SEC, and now we get word that RBC had a disappointing 3rd quarter.

Thomas explained that complying with SCO's request for all the old versions of AIX, including those never released, is a huge job. SCO uses the "I can't hear you" defense, even claiming that "IBM has not argued because it cannot -- that it would be 'unduly burdened' by complying with SCO's discovery requests..." That is, of course, exactly what IBM *has* done, and Ms. Thomas' declaration is in support of that very assertion.

SCO spends the rest of their time in this motion saying that isn't so, that saying that it would take weeks to comply is the same as saying it's easy to do and not a burden. That argument actually could have merit, if they could justify the request as being pertinent and necessary. They only offered the Sontag declaration to raise issues of credibility as to IBM's truthfulness, and you don't need to be an expert to do that, they say. Wrong. In a declaration, you do need to be an expert or at least have personal knowledge of the subject you are testifying about. Declarations are not supposed to be nothing but ad hominem attacks on a party because you don't like them and think they are not being altogether truthful. SCO can put things like that in their memoranda, if they wish, but that isn't the purpose of a declaration.

Next, they show some quotations from IBM's ads and documents saying that CMVC can retrieve data. SCO seems to have brought this entire lawsuit based on things they read online. You'd think, given all the spinning they do, that they'd know that PR can't be relied on as being altogether true. However, on the ads, what SCO fails to address is that they are not asking for current versions of AIX. They have that already. They are asking for arcane, antiquated versions that IBM is not likely to have taken any steps to make quickly available, because nobody needs it. SCO wants it only because it couldn't find any infringing code that matters in all the many versions it has so far, and it has this idea stuck in its head that if they could just trace every bit of it, they'd be able to trace a kind of paternity of ideas, a series of begats, if you will, or the game of telephone, as Davis described it. Nothing dissuades SCO from clinging to this theory like a life preserver, I suppose because they apparently have nothing else and because unless they can come up with plausible reasons to delay and also get the judge to buy into their derivative code theory, their ship is going to nose dive and quickly sink like a stone.


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