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The Tables Are Turned - SCO Objects to IBM's Discovery Demands
Wednesday, January 26 2005 @ 01:16 AM EST

What goes around, comes around, they say. And we now have the hilarious opportunity to watch SCO tell the court how burdensome it would be for SCO to have to produce to IBM every product Caldera distributed for the past 6 years. These are the same folks who whined until they got not only every released version of AIX and Dynix going back to the '80s but every *unreleased* one also, in their own discovery demands.

Here, for your enjoyment, are SCO's objections to IBM's discovery efforts related to IBM's patent counterclaims:

Objections to International Business Machine Corporation's Rule 30(b)(6) Notice of Deposition ("The Click-Wrap Notice");

Objections to International Business Machine Corporation's Rule 30(b)(6) Notice of Deposition ("The Compression Notice");

Objections to International Business Machine Corporation's Rule 30(b)(6) Notice of Deposition ("The Configurable High Availability Notice").

I don't know when I've enjoyed reading anything so much. I love hearing SCO tell the judge that IBM's depositions notices are unduly broad and burdensome. They don't have enough time to prepare, they don't want the depositions to be in Utah, it's too soon for them to answer questions, IBM is allegedly seeking info or documents protected from discovery by the attorney-client privilege, and on and on. They must be just going down a list they found of conceivable objections to discovery.

The problem is, they just argued very persuasively that massive discovery is essential to prove their case, and they got a lot of what they asked for. Now, to turn around and make an opposite argument isn't likely to go down so smoothly. One thing judges really do try to do is play fair with both sides. And if IBM can persuade the court that they need the materials and information they are asking for, they will certainly get it. And that will cost SCO's legal team, as well as the company, a lot of time and effort and money. Two of those three are exactly what SCO doesn't have a whole lot of any more.

But the bottom line is, what's good for the goose is good for the gander. Litigation is, like any other human interaction, reflective of how you act. That is, if you are polite and civil and play fair, the other side usually will too. If they don't, then the other side will match you.

As one attorney said once when we were in negotiations, "If it's love, it's love. If it's war, it's war. Take your pick." That's essentially what I see in these documents. IBM has been the polite one from the beginning. Now it's war. And SCO is screaming, "Mommy! Mommy!"

Oh, and IBM is also seeking "testing, evaluation, analysis and debugging" materials regarding all the products going back 6 years. They also have asked for such things as the names of SCO personnel most knowledgeable about the discovery matters and "the identity of the original developer and all persons who worked on, and the location of any documents regarding, the development of configurable monitors and recovery schemes in such product" for all Configurable High Availability Product acquired by and thus not originally developed by SCO. See what I mean? And I haven't even listed the half of what IBM is asking for.

Litigation is, as I have said, a conversation with the judge. But it's also a conversation between the two sides' attorneys. I hear IBM saying to SCO, fine. Let's both be burdened by having to get busy poring through mountains of documents in this stupid, pointless lawsuit. SCO objects "insofar as it causes annoyance, oppression, undue burden, or expense to SCO." Excuse me while I laugh out loud. Annoyance, oppression, undue burden and expense, as far as I've been able to tell, are the four horsemen of SCO's entire legal strategy.


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