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To read comments to this article, go here
SCO to the Judge: We Demand More Discovery & Throw In Some Sanctions
Thursday, December 30 2004 @ 09:40 AM EST

SCO is unhappy with IBM's affidavits from its executives stating presumably that they have no further documents in their possession to turn over in discovery regarding their "Linux strategy." SCO refuses to take them at their word. They want... drum roll... more documents and emails! And sanctions! So onto their steed they hop and file with the court a plea for more documents and sanctions against IBM for not producing what IBM says it doesn't possess. It's in the form of a Renewed Motion for Discovery [PDF]. The prior motion for discovery hasn't even been ruled on yet in full.

Oh, and now they'd like to depose somebody too, someone officially representing IBM, so they can grill him, presumably on this matter. No doubt they'd ask for the rack, if we were still in the Middle Ages. Or, better yet, just toss the IBM executive into the ocean, with a weight around his neck. If he floats, he's telling the truth. Let's get this settled once and for all.

It's all couched in the same abusive language we've come to expect from SCO when they are talking about IBM. They seem unable to be calm and polite, unless it's all an act. The odds of them getting sanctions at this point, on the materials we are reading here, seem to me to be about zero. While they may get more discovery of code ordered if they keep screaming about it, sanctions for not producing emails and documents that no one can find would be quite a stretch. SCO seems to think a hunch is the same as proof. It isn't. So unless there is something in their sealed memorandum to justify such a request, this call for sanctions seems to be a lot of fuss over nothing.

They mention that February 11th is the cutoff date for fact discovery, so now, at the 11th hour, SCO would like to do that deposition. I notice they phrase it like this: "the currently scheduled, impending close of fact discovery", which seems to hint that they may ask for more time for fact discovery. Surprise, surprise. They haven't asked yet, but what do you want to bet when we get closer to February, they start demanding a change in the schedule? I am not a betting person, but if I were, this would be the moment. And if, miracle of miracles, SCO wins this motion and gets to do the deposition, there likely would have to be a delay, just to accommodate all the deadlines that would ensue while SCO does the deposition and they fight about whatever details they can think of.

It all strikes me as being more for the peanut gallery than anything else, and setting up for the delay I project they may be wanting. The bottom line is always the same. SCO filed a lawsuit without, they now claim, the evidence to back it up, MIT spectral analysis stories notwithstanding. Now, they are standing before the court begging for help to try to find some evidence to prove their allegations, and as the tide now turns, and IBM has started to talk about all the damage SCO has done to IBM, it must be a mighty scary position for SCO to be in.

The request for the deposition is in their language wanting the judge to "compel discovery regarding SCO's Rule 30(b)(6) depositions of IBM," and the paragraph about "IBM has improperly refused to produce Rule 30(b)(6) witnesses", which is a new request, I believe, at least new to us, and here is the pertinent Rule 30(b)(6):

(b) Notice of Examination: General Requirements; Special Notice; Method of Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone. . . .

(6) A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

(UPDATE: I found a case for you, which centers around EOPs, which I think will help you to comprehend what SCO is asking for here, which is essentially to depose someone high up enough at IBM to testify knowledgeably about any Linux strategy.) In other words, Judge Wells told IBM to provide affidavits from its executives that there were no further documents related to Linux other than the ones IBM had already provided. She did this because SCO said it didn't believe there wasn't more. Evidently IBM has so provided the required affidavits, but SCO isn't satisfied with them and characterizes them as "cursory". I expect if someone publicly called me a liar, I might be a tad terse myself.

They also mention Rule 37(b)(2) which is the sanctions rule and which reads like this:

(b) Failure to Comply with Order. . . .

(2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

(E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

Without reading the supporting memorandum, we can only guess at part of this, but they seem to be putting the cart before the horse. They appear to have asked to depose some executives and IBM has declined. The judge to my knowledge has never ordered any such deposition, so surely they can't be asking for sanctions for that refusal. What they are asking for here, it appears then, is sanctions against IBM for "failing" to comply with Judge Wells' orders. There were two discovery orders from Judge Wells. In Judge Wells' March 2004 order, this is what she ordered IBM to produce from its executives:

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. 1 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. . . .

1Although not part of SCO's official written motion, SCO raised these discovery issues at oral argument and also alleged in its written memoranda that IBM failed to adequately respond to interrogatories and document requests that are the subject of these discovery items

IBM did, in fact, turn over documents and email. But at the hearing in October, SCO claimed that there simply wasn't enough turned over. If you recall from our eyewitnesses' accounts of the hearing, SCO's attorney, Sean Eskovitz, is reported to have told the judge that SCO found it impossible to believe that IBM had turned over all the documents and email from the Board of Directors and the executives, because there was so little. They believe there simply must be more. IBM's position was that they have already turned over all there is. And why is SCO finding it hard to believe that's all there is? When IBM asked for Darl McBride's emails, there was very little, and SCO's explanation was that Mr. McBride rarely uses email. What's good for the goose is good for the gander. Why is it hard for them to accept that IBM executives also have no further relevant email to turn over?

Anyway, it's premature to rule on any of this now, IBM maintained, because all of these issues are before Judge Kimball in connection with other motions (IBM's attorney David Marriott pointed to a 2-foot high stack of motion papers on the table, which they said were the documents presented by the parties to Judge Kimball), and depending on how Judge Kimball rules, this whole thing could be moot. And that is when the judge asked if IBM would be willing to provide affidavits. Once again, I caution, as I did that day, that until we see the transcript of this hearing, currently under seal, we don't know for sure what was said with precision.

SCO, of course, asked for a lot more than the executive affidavits, as you can see in this memorandum and this reply memorandum, specifically access to CMVC, but the judge hasn't ruled on any of that yet. IBM's response, in which it essentially said SCO's demands are onerous and neither relevant nor necessary to its case and just an attempt to delay the inevitable, is here. In addition, SCO claimed publicly that it had a mountain of evidence before it filed this suit, IBM pointed out, and it stated in its discovery memorandum, as it has repeatedly elsewhere, that it could prove IBM breached the agreement based on evidence it already has. So where's the need for more discovery?

It was then that Judge Wells reportedly asked IBM if they would be willing to provide such affidavits and IBM said yes. Here is what Judge Wells then said IBM was to provide, in her October 20th order:

2. IBM is provide affidavits from the Board of Directors, Mr. Palmisano and Mr. Wladawsky-Berger regarding production of all non-privileged documents pertaining to IBM's Linux strategy. The affidavits are to be filed within 30 days from the entry of this order.

According to the Pacer list, that's exactly what they did provide. The judge's order didn't ask for more documents and emails. It asked for affidavits that IBM had already provided all that they have in their possession. They evidently provided the affidavits, although they are under seal, so the wording is not publicly known. But they were ordered to provide affidavits and they filed affidavits. So where do sanctions come into this picture?

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH JAMES & DODGE
[address, phone, fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES SCHILLER & FLEXNER
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
BOIES SCHILLER & FLEXNER
[address, phone, fax]

ATTORNEYS FOR THE SCO GROUP

_________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

-----------------------------

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

----------------------------------

PLAINTIFF'S RENEWED
MOTION TO COMPEL
DISCOVERY

Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

---------------------------------

The SCO Group, Inc. ("SCO") respectfully moves the Court pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure to compel International Business Machines Corporation ("IBM") to respond completely and properly to SCO's discovery regarding the files of IBM's executive management and the compel discovery regarding SCO's Rule 30(b)(6) depositions of IBM. SCO bases its Motion on the following grounds:

In disregard of SCO's long-standing document requests, this Court's March 2004 Order, and now this Court's October 2004 Order requiring IBM's executives and Board of Directors to provide sworn affidavits on the issue, IBM has failed to provide documents regarding its "Linux strategy" -- which is at the heart of this case -- or to explain the glaring absence of such documents in its production. Neither SCO's document requests nor this Court's Orders leave any ambiguity regarding the broad scope of the Linux-related documents that IBM must produce. Nevertheless, IBM has apparently adopted, unilaterally, an unduly narrow interpretation of its obligations. Moreover, the cursory affidavits that IBM has supplied in response to the Court's most recent Order raise more questions about IBM'S discovery practices than they answer.

In addition, IBM has improperly refused to produce Rule 30(b)(6) witnesses on several appropriate topics. For example, IBM refuses to provide any witness to testify about the nature and extent of IBM's contributions to Linux -- a core issue in this case. IBM's intransigence thus compounds its withholding of documents and proper interrogatory responses to SCO's prior discovery requests that seek similar, critically relevant information.

IBM has unilaterally blocked SCO from obtaining even the most rudimentary information that it needs to develop its proof for trial. In light of IBM's longstanding delay on this critical discovery -- and in light of the currently scheduled, impending close of fact discovery (on February 11, 2005) -- the Court should order IBM to produce immediately (1) all documents from its executives and Board of Directors that mention or related in any way to Linux and (2) witnesses for deposition who can speak to the full scope of the topics SCO has noticed.

SCO's Motion is supported by the Memorandum in Support of Plaintiff's Renewed Motion to Compel submitted concurrently herewith.

DATED this 23rd day of December, 2004.

Respectfuly,

By: ___[signature]____
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Edward Normand
Sean Eskovitz

Counsel for The SCO Group, Inc.

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Plaintiff's Renewed Motion to Compel Discovery was served by mail on Defendant International Business Machines Corporation on the 23rd day of December, 2004, by U.S. Mail to :

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

___[signature]____


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