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IBM's Reply Memo in Support of Their Motion for Reconsideration
Thursday, March 17 2005 @ 11:12 AM EST

No exploding PJ today, because IBM has indeed pointed out to the judge that SCO is now claiming [PDF] in its opposition to this motion that IBM has to turn over information on Linux, as if the Order said that, another example of SCO trying to stretch every discovery order beyond its four corners. (SCO said it also even more baldly in their Memorandum in Opposition to IBM's Motion for 45-Day Extension of Time to Comply with 1/18/05 Order.)

Here is IBM's Reply Memorandum in Support of IBM's Motion for Reconsideration of the January 18, 2005 Order Regarding SCO's Renewed Motion to Compel [PDF] and they tell the judge all about it. And they'd like to have oral argument on this motion anyway, so we'll have lots more fun, I'm sure.

Here's part of what IBM tells the court. First, it says they are NOT asking for reconsideration regarding turning over all the code. They are turning over more than the order even asked for, which ought to tell you just how much infringement they think SCO is going to be able to find, namely zero. They are turning over the 3,000 names and identifying their contributions to AIX and Dynix as per CMVC and RCS records. And they are turning over white papers and design documents there as well. All they are asking for is some adjustment regarding the 3,000 employees' files. But then they tell the judge exactly what I hoped they would:

"In addition to responding to IBM's motion for reconsideration, SCO seeks through its opposition brief to expand IBM's production obligations beyond those imposed by the Order. In fact, SCO takes a run at securing an order that would require the production of information SCO has never before requested and that the Court has ruled IBM need not produce. . . .

"SCO uses its opposition brief not only to oppose IBM's motion for reconsideration, but also to complain about imagined shortcomings of IBM's forthcoming production and to secure an order requiring IBM to produce information that either SCO never requested or that the Court has ruled SCO is not entitled to and IBM need not produce. . . .

"SCO argues that the Order also requires IBM to identify its Linux contributions. . . . It would be difficult to overstate the frivolity of this contention, which is entirely unsupported by the record. In an Order dated March 3, 2004, the Court ruled . . . that IBM would not be required to detail its Linux contributions insofar as those contributions were publicly available. . . . The Court ordered only that IBM 'provide to SCO any and all non-public contributions it has made to Linux.' . . . IBM fully complied with this portion of the March 3, 2004 order.

"SCO seizes on the Court's quotation of SCO's Interrogatory No. 5, which interrogatory includes the term 'Linux', to argue that the Court's order of January 18, 2005, reversed the March 3, 2004 order and, without explanation or analysis, replaced it with a new order requiring IBM to produce the public Linux contributions that the Court previously ruled (for good reason) that IBM would not be required to produce."

The Order merely quoted verbatim the interrogatory, IBM points out. The rest of the Order obviously relates only to AIX and Dynix, not Linux, they add. But here comes SCO, demanding a mile when they get an inch. The Order states that "IBM is to provide the above required information for the 3,000 individuals who made the most contributions and changes to the development of AIX and Dynix." As we pointed out in the previous article, SCO quotes that text but adds "and Linux." IBM has a lot more to say too. Let's take a look.

First, in footnote 1, they tell Judge Wells that the order wasn't totally clear to IBM. Maybe she didn't even mean that IBM was to search the files of 3,000 individual developers. If that is the case, the current motion is moot. Maybe she meant to produce "information relating to, but not necessarily from the individual files of" these persons, and if so, what IBM is producing from CMVC and RCS should suffice.

I think this paragraph is sincere. The order wasn't clear. But in any case, it does give the judge a tactful way of limiting the order even if originally she did kind of mean pawing through the individual files of 3,000 people.

SCO argued that IBM didn't have the right to even ask for reconsideration. However, IBM points out that Judge Kimball already decided that point, and anyway, "a motion for reconsideration may properly be made to correct clear error or to prevent manifest injustice." If the court did mean to search for and produce documents from the files of 3,000 individuals, it is, IBM says, "clear error and imposes manifest injustice."

SCO also argued that IBM had plenty of opportunites to argue undue burden. IBM begs to differ. It argued undue burden with regard to SCO's requests for AIX and Dynix information, and in fact the court did not give SCO all that they asked for -- access to CMVC and RCS -- but there hasn't been a complete discussion yet about the 3,000 files. In fact, IBM says it doesn't think the judge "fully understood the burden" associated with such a search. SCO cited no cases saying such a search would be reasonable, and IBM can't find any cases either. This is letting the judge know that she is standing, like a cartoon character, suddenly with no support under her feet. Does she really want to be the first judge ever to order such a thing? With no case law to support her?

SCO also said IBM should have provided an affidavit to support its burden argument. IBM kind of mocks that, saying the burden is self-evident, and it cites a case that supports their view, one where a court ruled that no affidavit is required "to support what appears obvious." If the court wants an affidavit, IBM is happy to supply one. Anyway, IBM already told the court that to comply with this part of the Order, if it means to search the individuals' files, if they handled 20 individuals a day, it would require 6 months just to find and review them, get third-party waivers, etc. And that isn't even counting the time it would next take the attorneys to review and prepare the documents for production.

This paragraph is to me an example of the SCO legal team's approach. Let me explain. Normally, any motion requires affidavits in support of the facts in the motion. It's standard. IBM knows this, of course, but it didn't view this fact -- that it's really a massive job being asked of them -- as a fact needing support. I think it was a small mistake. Because SCO, which has the empathy of a drooling hyena at a lion kill, latches on to every single pukey little detail for an edge. It's how they have done as well as they have, actually. No one likes them, including the judges, I think, but they keep throwing out more little points that have to be dealt with. No mercy. No gentlemen's understandings. No limits of absurdity. IBM is from the gentlemen's school of lawyering. So, while SCO is making a point that is technically correct, if you squint your eyes a bit, normally it wouldn't even be raised. Now that they've raised it, IBM has to answer it. I doubt they'll overlook the tiniest detail in the future, after this demonstration by SCO of their tactical approach to lawyering. At this point nothing major is likely to be decided on a technicality like this. It is more a harrassment thing. At least, that is how I see it. But in this little frame, I see the Boies Schiller style in microcosm.

IBM spells out those tactics in this document. On SCO's claim that the Order requires IBM to turn over hardware and middleware info too, IBM says this:

"This argument too is baseless. . . . The information IBM is excluding could be said to relate to AIX and Dynix only in the remote -- and here irrelevant -- sense that it concerns software and hardware that is compatible with AIX or Dynix. Firmware is code in computer hardware that executes below the interface between the hardware device and the computer's software, including its operating system. Software applications, including 'middleware', are computer programs that run on top of an operating system. Similarly, hardware systems designs and manufacturing-related components are also distinct from the AIX or Dynix operating systems themselves. None of this information is in any way relevant to SCO's allegations that IBM improperly disclosed portions of its AIX and Dynix operating systems. SCO's discovery requests do not even seek the production of material it contends (for the first time in its opposition brief) that IBM should be producing. Requiring IBM to produce information like middleware on the grounds that it can run on AIX would be like requiring a football team to produce information about its stadium, training equipment, uniforms and mascot in a case in which the team was alleged to have misappropriated an opponent's playbook."

Notice the football reference? Remember the January 18th order's football metaphor. IBM learns from experience, I would deduce. They are speaking in a language they hope the judge will grasp, I note they also are now carefully explaining all technical terminology. This is wise. The only thing I would want to see from IBM is more emotion. It seems to go over very well in Utah, if you protest loudly and with lower lip atremble. So I hope they try that too before this is over.


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