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SCO's Opposition to IBM's Motion for Reconsideration: More, More, More
Wednesday, March 02 2005 @ 02:41 PM EST

As usual with SCO, when the court gives them an inch, they interpret it to mean a mile, and then they criticize IBM for refusing to give them the mile. Here's their Opposition to IBM's Motion for Reconsideration of This Court's January 18, 2005 Order Regarding SCO's Renewed Motion to Compel [PDF]. For reference, here is the IBM Motion for Reconsideration.

Then they schmooze with their few friends in the media, who dutifully write articles about IBM "refusing" to hand over the mile for a year and a half. Now they want firmware and middleware, which they claim the court just ordered. Anybody remember them ever asking for firmware and milddleware before? No? Yet they are upset that IBM won't interpret the court's January 18th discovery order to include both.

Here is what Judge Brooke Wells said SCO had asked her for in their most recently decided Renewed Motion to Compel:

"SCO's renewed motion requests the following:

"1. All versions of AIX and Dynix/ptx, including the names of individuals who contributed to AIX and Dynix. According to IBM, this additional source code is 'roughly two billion lines of code.' IBM's Mem. in Opp. p. 7, docket no. 217.

"2. Access to revision information including access to IBM's storage systems known as Configuration Management Version Control (CMVC) and Revision Controls System (RCS). See SCO's Renewed Mtn. p. 3, docket no 190; Mem. in Supp. p. 5, docket no. 193. These systems allegedly contain information regarding what changes were made to AIX and Dynix and by whom such changes were made. See id. SCO argues such information is responsive to its discovery requests, is necessary to prosecute its case and to defend against IBM's counterclaims. See id.

"SCO also requests all programmer notes, design documents and 'white papers.' SCO's Reply Mem. Re. Discovery, docket no. 205.

"3. Documents from top level management relating to inter alia, IBM's use and strategy behind Linux. See SCO's Mem. in Supp. p. 2.

"4. Further supplementation to Interrogatory Number 5, which seeks the identity of 'IBM or Sequent personnel that work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux, specifying for each person their precise contributions to each.' Id. p. 4 (emphasis in original).

"5. Witness contact information that is to include a 1000 of the most important prospective trial witnesses as agreed upon by SCO and IBM." Order dated March 3, 2004, p. 5, docket no. 109."

See what I mean? See any request for firmware? No matter what they get, they push for more, and with each push for the next pound of flesh, they trash talk IBM, pretending that IBM is "withholding" from them what is their due. It's been an effective strategy so far, assuming you don't care a fig what anyone thinks of you when they carefully check the facts. And please note that the judge says that they are asking for "further supplementation" of their Interrogatory Number 5, not that IBM be forced to turn over something already ordered. See how you have to watch them? By the way, see on SCO's list a request for any 3,000? No? That is because they asked for contact info, etc., for all of the 7,200 names IBM had already given them, and it was the judge who said no to that request and ordered, for the first time, that IBM turn over info on 3,000 of the 7,200 names on January 18, 2005.

They also want all IBM's contributions to Linux, arguing that they can't figure it out from the publicly available records for themselves, because some contributions are by folks using handles or no names at all. They claim that was ordered by Wells too. See it on the list? Right.

I've only just glanced through it, so I may write more in detail later, but what I see so far is quite simple. Both sides are trying to interpret the most recent discovery order their way. IBM gets to answer this and it has asked for a hearing, so more full-blown discovery war, and then the judge will decide. In fairness, IBM is also trying to interpret the discovery order their way. The truth is, the order wasn't altogether clear, so now both sides are providing the judge with an interpretation they hope she will accept, IBM by saying, "How about we do this? Is that what you meant?" And SCO says, "Those evil malingers won't agree to broaden your order to mean what *we* say it should mean." Two different styles of lawyering.

The SCO version of IBM's "refusal" to turn over discovery is so skewed compared to the history I witnessed that I've been thinking about that ethics class we read about recently. I surely wish to repeat at least this much: IBM was not told to turn over the files for the 3,000 witnesses until January 18, 2005.

But SCO presents its view with such ferver, indeed outrage, that it's very effective, if you don't happen to know the truth. Their arguments that IBM has no right to even ask for a reconsideration, flying directly in the face of Judge Kimball granting them the opportunity, indicates to me that both sides are gearing up for an appeal no matter what happens here. Either that, or they just don't know when to quit being nasty. Just to remind everyone, here's just one example of SCO objecting to IBM's discovery requests. But you don't see IBM getting hysterical about SCO "withholding" discovery, do you? Frankly, at this point, I would be glad to see it happen. What SCO has been angling for is so massive, and it never ends, it needs review on appeal before they drag us down another two years of nonsense based on broad claims but no plausible evidence to support them.

I doubt the judge will like, or agree with, SCO's cynical claim that the judge showed he agreed with SCO's position by denying two of IBM's motions before they were even fully briefed in his last order. That is so silly. If the judge had done that, it'd be grounds for appeal on its face. What he did was deny without prejudice to refile or renew, meaning he told IBM to tell him all about it later, when discovery is finished. SCO's pretense that this means he agreed with SCO on the merits must be directed at the media, because the judge will know better. *I* even know better, and I'm just a paralegal.


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