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Judge Kimball Gives SCO More Time and IBM Asks for Some
Friday, March 11 2005 @ 01:29 PM EST

Here is the Order from Judge Kimball, giving SCO the extra time they requested to file their response to IBM's Motion Limiting Scope of IBM's Ninth Counterclaim. IBM has filed a motion too, a Motion for 45-Day Extension of Time to Comply with 1/18/05 Order, asking the court for more time to comply with the January 18th order, for the following reasons, which I am listing in the order I believe will carry the most weight:

  • IBM has asked for reconsideration of one of the order's requirements, and that isn't likely to be ruled on by the 60-day due date;

  • SCO has now demanded more than was ordered by Judge Wells, claiming they understand the order to mean that IBM has to produce not only code, but also hardware and middleware information, and that is, IBM says, a new request that the court has to resolve. "Contrary to the Order's provisions (and contrary to the March 3, 2004 Order which precedes it), SCO contends that the Order requires IBM (1) to produce not only 'specific development and contribution information' for AIX and Dynix, but also for Linux; and (2) to produce not just AIX and Dynix operating systems materials, but also all materials in CMVC that are unrelated to AIX or its code, internal design, or methods, such as hardware system designes, firmware, manufacturing-related components, and middleware and other software designed to run on top of the AIX and Dynix operating systems, among other things." IBM doesn't believe the order says they need to do that, but even if it did, they couldn't do that in 60 days. They've tried to work it out with SCO, but they don't agree about what the order requires;

  • IBM really can't get it done in 60 days. They have, they tell the court, hundreds of employees working on this unprecedented court order, something IBM has never in its long existence ever been asked to do before, and it really is a massive task, just like they told the court during the discovery hearings.

This last is the one piece least likely to matter to this court, in my opinion, because so far we haven't seen a lot of understanding of what is involved in such an order or how unusual it is. The court seems more bent on making sure it has closed off every possible claim SCO can ever make from now until the heat death of the universe. Well, if you were the judges, would you want to see them back again?

IBM, in my view, though is also writing for the appeals court, should it prove necessary, and this last point is valuable there, if it can be substantiated. Discovery isn't supposed to shut down your company or inconvenience it to the point that you have hundreds of employees dropping their normal work just to do discovery for months. Discovery isn't supposed to impoverish a company or be so excessive that it becomes a major financial burden.

All of the points have merit, but the last one is kind of letting the judge know that the discovery order was bigger than a nontech-oriented magistrate judge maybe realized, and while they are hopping right on it, it will take some time, and it was excessive to begin with.

Let's imagine for a moment. Let's say you wanted to sue a large, big pockets company, hoping to annoy them enough that they'll settle with you and make you rich beyond your wildest dreams. Might you use discovery to annoy, do you think?

The underlying theme of IBM's motion, though unspoken, is clear. IBM intends to appeal this if necessary, because it really is burdensome and in their view excessive. They can collect the code, given enough time, and they will hand it over, and all the rest too, except for the 3,000 programmers' files, when many of them go back maybe 15 years, and their owners are no longer with the company or may even have deceased -- it's just massive and maybe not even possible without an extraordinary expense and effort, and for what?

Let SCO identify where the problem is, which programmers they are interested in, and IBM will hunt for those files. SCO will say that without all the files, how can they know which programmers are of interest? So the court may try to work out some compromise here.

I gather IBM is telling the court this: Every time this court has given SCO something in discovery, they just demand more. It's a pattern. There will be no end to this fishing expedition unless somebody finally draws a line in the sand and means it.

So, if this court doesn't provide relief, IBM will appeal, and if they lose that appeal, they will do what it takes to comply, but I hope at some point IBM will ask that SCO be required to pay for IBM's discovery expenses. I hope they do ask for this in the next hearing, frankly. Then let's see how much discovery SCO still wants done.

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