decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
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
The NonLegal Mind Not at Work
Wednesday, February 23 2005 @ 02:25 PM EST

I think I will never run out of things to write about, as long as Maureen O'Gara writes about SCO v. IBM. She seems to have great difficulty getting the facts right, and since part of Groklaw's mission is to educate, let me take one more stab at it.

In a 2-paragraph article I can't really recommend you click on, called "IBM v. SCO: The Legal Mind At Work", she points to an IBM footnote in its Motion for Reconsideration of the January 18, 2005 Order Re SCO's Renewed Motion to Compel, which she characterizes as complaining about having to produce the files for the 3,000 who contributed the most to AIX and says: "Shouldn't somebody remind somebody that IBM wasted a year and a half refusing to produce those files?"

Well, probably not, not unless you're itching to be sued for slander or libel.

What really happened? In a sentence, it's like this: The court never ordered IBM to produce them until the most recent court order in January of 2005, the one IBM is asking them to reconsider. This isn't a question of IBM "refusing to produce those files" for a year and a half! It hasn't even been a *month* and a half, let alone a year and a half, and the discovery isn't even due yet, even if it weren't subject to a motion for reconsideration. IBM hasn't refused to produce the files ever. It still isn't. It's asking the court for relief in one detail.

It's really shocking that LinuxBusinessWeek would print such an inaccurate statement. The only excuse I can think of is that they just don't understand the law or the process. That's not much of an excuse, now that I think of it, so let's just stick with the word shocking. I hope they will print a correction, as any news media should when printing inaccurate information. To be fair, it isn't possible never to make mistakes. I make them too. But we, in the media, need to 'fess up when it happens and let people know, so they don't continue to be influenced by inaccurate information. Readers, in my experience, understand and appreciate the truth.

If they fail to print a retraction, I hope Judge Kimball reads Groklaw. Oh, by the way, LinuxBusinessWeek, the case is SCO v. IBM, not IBM v. SCO, just to keep the record straight, as long as I'm going to the trouble to straighten out all the errors. Maybe it's a good thing the article was only two paragraphs.

First, here is the footnote in question:

7. The magnitude of the task of collecting and producing documents from 3,000 persons becomes clear when contrasted with the document production that has taken place thus far from both IBM and SCO, over the past year and a half of discovery. To date, IBM has produced documents from the files of 174 individuals, while SCO has produced documents from the files of 63 individuals. That is, in a year and a half, SCO and IBM combined have produced responsive documents from the files of 237 persons, less than 10 percent of the 3,000 persons whose documents IBM has been ordered to produce within 60 days.

And here is the portion of their motion on the issue of the 3,000:

IBM does not seek reconsideration of the portion of the Order requiring it to identify the individuals who made the most contributions and changes to AIX and Dynix and to identify the changes they made to AIX and Dynix, insofar as this information is available in CMVC and RCS. And IBM does not seek reconsideration of the Order insofar as it requires IBM to undertake a reasonable search (i.e. the files of 40-50 individuals) for white papers and design documents not found in CMVC or RCS. By this application, IBM asks the Court to reconsider the portion of its Order requiring IBM to search for and produce documents from the files of 3,000 individual developers. . . .

Thus, IBM's planned production will provide SCO large quantities of the type of information the Court has ordered IBM to search for in the files of 3,000 developers.(6)

IBM's planned production will not include every scrap of paper that might be found in the files of the 3,000 developers who made the most contributions and changes to the development of AIX and Dynix. However, rather than require IBM to search for and produce documents from 3,000 developers in an effort to capture what might not be included in CMVC and RCS and a reasonable search for design documents and white papers not in CMVC, the Court should defer the production of additional information relating to the development of AIX and Dynix until after SCO has had an opportunity to review the extensive data that IBM will be providing. After reviewing that data, SCO should be able to identify with specificity a reasonable number of developers, if any, from whose files it would like additional production and IBM can then provide the information SCO wants without having to search for, collect and produce redundant and cumulative discovery or discovery in which SCO has no interest. Approaching developer-specific discovery in this way is entirely consistent with the Court's decision early in this case to stage the discovery process.

Moreover, as a practical matter, searching for, reviewing (for responsiveness, third-party confidential information, and privilege) and producing documents from the files of 3,000 people would be a Herculean task. It would be impossible to complete in 6 months, let alone in 60 days, as presently required by the Order.(7) Assuming (unrealistically) IBM were able to search for and through the files of 20 people a day, 5 days a week, it would require IBM more than 6 months just to search for responsive documents, independent of how long it would take IBM to review the documents for responsiveness, third-party confidential information (and to provide notice to third parties where required), and privilege and prepare them for production. A search for documents from the files of 3,000 developers would yield millions of pages of paper, much of it duplicative or irrelevant.

It is well settled that discovery should not be allowed, even if relevant, where it is unreasonably cumulative or duplicative or where its production would impose an undue burden. See Fed. R. Civ. P. 26(b)(2)(i) (stating that discovery shall be limited by the Court if "the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive"); Fed. R. Civ. P. 26(b)(2)(iii) (stating that discovery shall be limited by the Court if it determines the "burden or expense of the proposed discovery outweights its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues").(8)

In sum, to require IBM to produce documents from 3,000 developers in 60 days, on top of the discovery IBM is already providing, is to compel the impossible, at enormous expense, with no meaningful advantage to SCO. There are far better ways for SCO to obtain the information it seeks, such as by permitting targeted discovery of individual developers to the extent it makes sense after SCO has had an opportunity to review the information IBM is going to provide.


For the foregoing reasons, IBM respectfully requests that the Court reconsider and vacate the portion of the Order requiring the production of documents from 3,000 developers in 60 days, without prejudice to SCO seeking reasonably tailored discovery from the files of individual developers after SCO has reviewed the information IBM is going to produce.

So that is their request. Now, what about the accusation that they have wasted a year and a half "refusing to produce those files"? As you can see, that's simply not so. IBM wasn't told to produce that discovery until January 18, 2005, and the discovery isn't even due yet, even without their motion for reconsideration. So, it's a false statement, that tends to cause people to think less of IBM, that is demonstrably untrue. What is that a definition of?

To break it down further into little bits, so even a child can get it, here, in chronological order, are all the discovery orders in SCO v. IBM, taken from our IBM Timeline page:

  • # 88 -- Dec. 3. court hearing transcript: This was the first hearing on discovery. SCO asked for all versions of AIX and Dynix, but didn't ask for employee files for 3,000 or any other number of people. Its request for all versions of AIX and Dynix was not granted, and IBM was eventually, in the later written order, #109, below, told to produce what it offered at this hearing to produce, 232 released versions. It was not *IBM* that was not in compliance with the court's order; it was *SCO*, and all discovery of IBM was halted from the date of this hearing until SCO brought itself into compliance. Here's the Court docket info:

    Minute entry: Counsel for both parties present. The Court hears arguments re: Motion to Compel. Court GRANTS motion. Plaintiff is to provide responses/affidavits within 30 days of the entry of this order. All other discovery is to be postponed until the order has been complied with. An order reflecting this ruling is to be prepared by counsel for defendant. A motion hearing is scheduled for 1/23/04 at 10:00 a.m. Court is adjourned. granting motion to compel discovery. Motion hearing set for 10:00 1/23/04 for motion to Compel Discovery, set for 10:00 1/23/04 for motion strike the 5th, 15th, and 19th affirmative defenses asserted by the SCO Grp in its Answers to IBM' Amended Counterclaims, set for 10:00 1/23/04 for motion to extend time for pla to respond to IBM's third set of interrogatories and third request for production of documents

  • #94 10-Dec-03 Order granting motion to compel discovery. Here's the order granting IBM's Motion to Compel discovery from SCO, not the other way around, from the hearing. IBM wasn't ordered to provide a thing in discovery. It's all about SCO and what it has to provide to IBM. The only thing IBM was told to do was give SCO a list of what it wanted. Here's the info from the docket:

    The SCO Group is hereby ORDERED: 1) To respond fully and in detail to Interrogatory Nos. 1-9 as stated in IBM's First Set of Interrogatories. 2) To respond fully and in detail to Interrogatory Nos 12 and 13 as stated in IBM's Second Set of Interrogatories. 3) IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Production of Documents and SCO is to produce all requested documents. 4) To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided. 5) To the extent IBM's requests call for the production of documents or are met by documents SCO has already provided, SCO is to identify with specificity the location of responsive answers including identification of the Bates numbered documents previously provide if applicable. 6) If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom thy were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance. SCO is required to provide such answers and documents within thirty days from the date of this order. All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order. The Court will hold a hearing on the foregoing issues January 23, 2004 at 10:00 a.m. Signed by Judge Brooke C. Wells , 12/12/03

  • # 109 - 03-Mar-04 - Order regarding SCO's Motion to Compel Discovery and IBM's Motion to Compel Discovery. This is the order where IBM was told for the first time to turn over 232 versions of AIX and Dynix, which they did. As to information about employees, IBM was told to provide the following:

    "6. SCO seeks the proper indentification of approximately 7,200 potential witness[es] identified by IBM. IBM in its memoranda suggested that the parties might be able to reach some sort of agreement as to the most important prospective trial witnesses and then IBM would provide the full contact information for these individuals. The Court orders IBM to properly identify a representative sample of the potential witnesses that is to include a 1000 of the most important prospective trial witnesses as agreed upon by SCO and IBM. Following the production of this information, the Court will consider the need for the proper identification of additional witnesses.

    So IBM was told to provide a list of 1,000 names, with "proper identification", not files on 3,000 employees. Contact info, in the context of figuring out potential witnesses for trial. Here is the Pacer info:

    Ordering both parties to file affidavits re compliance with this order; and additional memoranda addressing the impact of the second amended complaint and IBM's subsequent answer on IBM's Motion to Strike the 5th, 15th, and 19th Affirmative Defenses asserted by SCO in its Answers to IBM's Amended Counterclaims. IBM is to file its initial memoranda with the court withing 60 days of the entry of this order. SCO will then have 15 days to respond. IBM will have 7 days to reply to this response. Following the additional briefing, the Court will contact parties to schedule a hearing regarding IBM's motion to strike SCO's affirmative defenses. (Please see the order for all information, as this is an extensive order) Signed by Judge Brooke C. Wells , 3/3/04 cc:atty

  • #327 -- This is the minutes entry from the October hearing. There isn't a word about employee files of 3,000 or any other number, just files for management and the Board of Directors, which were provided. Here's the Pacer entry:

    19-Oct-04 - Minute entry: Counsel for both parties present. The Court hears arguments and rebuttal from each party as to pla's renewed motion to compel (d.e. #190). The Court orders that privilege logs be prepared and exchanged within 30 days; Dft to provide within 30 days, affidavits from management members Palmisano and Wladawsky-Berger and Board of Directors as to what exists if their files and takes the remainder of the motion under advisement. ; Judge: BCW Court Reporter: Kelly Hicken Court Deputy: alp

  • #328 -- 20-Oct-04 Order - Here is the Order from the October 19 hearing, and as you can see, IBM was not ordered to provide files for 3,000 employees. Read it for yourself. Here's the Pacer description:

    Order, re: SCO's renewed Motion to Compel Discovery. Both parties are to prepare and exchange privilege logs within 30 days from the entry of this order. IBM is to provide affidavits from the Board of Directors re 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. The court takes the remainder of SCO's motion under advisement. The court sua sponte, hereby seals the transcript to the proceedings held on 10/19/04. Copies of the transcript are to be provided to the parties in the case and the court but the transcript shall remain sealed until further order of the court. signed by Judge Brooke C. Wells , 10/20/04 cc:atty

  • # 377 -- 18-Jan-05 -- Order - This is the first time IBM was ordered to provide the files for the 3,000. Note the date: January 18, 2005. The Order states they were to provide them by March 18, 2005, so IBM is not yet late or delinquent by any measure. They are, additionally, before the court asking for a minor shift in the order, asking that SCO go through all the code to be provided first, and then to identify which of the 3,000 names IBM will provide are the ones SCO realistically thinks it needs files from. It's because it's an onerous task to assemble such a huge amount of data. Bear in mind, we're talking maybe 15-year-old data, from employees many of whom may not even work for IBM any more. Some of them might even be dead. Seriously. Here's the Pacer:

    Order granting in part, denying in part [366-1] motion to compel Discovery, striking amended scheduling [177-1] order discovery due set for 4/22/05, [177-2] relief motion filing deadline set for 5/20/05, [177-3] relief Final Pretrial Conference set for 2:30 10/10/05, [177-4] relief 5-Week Jury trial set for 8:30 11/1/05, [177-5] relief , The discovery ordered by the court is due 3/18/05 , The Court ORDERS both parties to meet and confer re: a new schedule and to submit a proposed amended scheduling order to the court by 3/25/05 signed by Judge Brooke C. Wells , 1/18/05 cc:atty

So there you have it, in black and white. I might add that this is all public information. If Ms. O'Gara doesn't know about Groklaw, ha ha, she can always use the information on Pacer. That might help her to get the facts straight, if that is her goal. So, now that Groklaw has explained how to do fact checking on a legal story, there is no excuse for future inaccurary, I'd opine.

  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 )