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To read comments to this article, go here
Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100
Thursday, April 21 2005 @ 02:30 PM EDT

Judge Wells has issued her Order regarding the IBM Motion for Reconsideration. She has acknowledged that she was not fully informed before. Don't you admire that? I do. So she rules that IBM's motion for reconsideration is properly before her on the issue of burden.

So, for now, IBM does not have to turn over the files of the 3,000 individuals who have contributed the most to AIX and Dynix. That is deferred. They have to turn over for 100 individuals in 90 days, and then SCO can ask for more details if they want to. It's a much more balanced order.

She also tells IBM to hand over all nonpublic Linux info. Obviously, she doesn't yet understand that there is no such thing. Could some of you kernel guys please write up how it works, and include urls and especially on code you personally offered that was not accepted and email it to me? I'll do an article then and explain clearly how it all works. I'd research it myself online from the public records, but I have a doctor's appointment right now, and I have to run. Thanks.

Yes. You understood correctly. IBM won, and this is a major blow to SCO. Not to hear them tell it, of course.

Would you like to see what their PR department is sending around to journalists? Here you go:

“We are pleased with the U.S. Magistrate Judge’s decision, which reaffirms the essential elements of her prior order. The Court’s decision should ensure that IBM now complies with its discovery obligations and will provide SCO with information important to the development of its case for trial. We look forward to presenting our case to a jury next year.”

So funny. Anyway, here's an article on how PR is done, at least normally. After you read it, let's watch what happens. Normal reporters will report that this is their statement. Lackeys will write what a wonderful victory this is for SCO because now IBM has to turn over heaps of nonpublic Linux submissions, of which there are none in real life. How hilarious.

They can't get their minds around a simple truth: what makes Linux different is that it is all done in public. But wait and see what happens. I'd be willing to bet you anything that their lap dogs will spin it just that way and make fools of themselves in the process in the eyes of anyone who knows how Linux is developed. It's delicious.

As I write this, someone sends me the text of Maureen O'Gara's spin:

The federal court in Utah hearing the $5 billion SCO v IBM case has told IBM that it has 75 days to turn over to SCO ALL non-public information relating to its Linux contributions, a year-old order IBM has been trying duck.

The caps and double underlining of the word ALL belong to Magistrate Brooke Wells and were used in her ruling Wednesday on IBM’s motion asking her to reconsider her massive discovery order of January 18. They leave one to speculate on her attitude towards IBM’s discovery delays.

The decision is believed to be a serious setback for IBM – fatal, if you believe SCO – and it will be interesting to see how IBM takes it. Will it now go meekly and do what it’s been told?

SCO claims that the Linux discovery IBM has been holding back goes to the “very core” of its claims

The very core, eh? There's more, but I am laughing so hard I can't even type. So let's just sit back and have a fun laugh together. I think that this may be my favorite FUD moment since we began this journey together.

Just so you don't have to take my word for it, here's the pertinent wording;

The court agrees with IBM that this burden was not made entirely clear by the parties in their memoranda before the court. Therefore, the court finds that IBM's motion is appropriate to prevent clear error or manifest injustice.

In other words, she is saying that her previous order, if not altered, would have resulted in clear error or manifest injustice. So she changed it. All the rest is just spin.

But you don't have to take my word on it. Here's the text. Read it for yourself:

*****************************

IN THE UNITED STATES DISTRICT COURT

CENTRAL DIVISION, DISTRICT OF UTAH

_____________________

THE SCO GROUP INC.

Plaintiff/Counterclailm
Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES
CORP.

Defendant/Counterclaim
Plaintiff.

_______________________

ORDER CONCERNING IBM'S
MOTION FOR RECONSIDERATION

JUDGE DALE A. KIMBALL

MAGISTRATE JUDGE BROOKE C. WELLS

_______________________

This matter is before the court on Defendant/Counterclaim-Plaintiff, International Business Machines Corporation's (IBM), Motion for Reconsideration of the court's January 18, 2005, Order regarding Plaintiff/Counterclaim-Defendant, The SCO Group's (SCO) Renewed Motion to Compel. See Motion, docket No. 403. IBM's Motion for Reconsideration seeks only one change to the court's prior Order: "a modification of the requirement that IBM collect and produce documents from the files of 3,000 individuals." IBM's Rep. Mem. p. 2.

The court has carefully considered the memoranda, other materials submitted by the parties, relevant law, and the facts

that frame this dispute. After doing so, the court finds that oral argument would not be helpful to this particular issue. See DUCivR 7-1(f). Now being fully advised the court renders the following Order.

A court has discretion whether to grant a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). There are three grounds that justify reconsideration: first, an intervening change in controlling law; second, the discovery or availability of new evidence; or finally, the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1360 (D. Kan. 1996). A motiong for reconsideration is not appropriate if the movant only seeks to revisit issues already addressed or attempts to raise arguments or facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Scherer v. Hill, Civ.A. No. 02-2043-KHV, 2003 WL 21011361 *1 (D. Kan. 2003) (stating that a motion for reconsideration "is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed.").

SCO argues that IBM "cannot establish any proper basis for reconsideration of the court's January 18 discovery order." SCO's Mem. in Opp. p. 2. IBM does fail to address any of the

2

three proper grounds for raising a motion for reconsideration in its initial moving papers. However, IBM does address the issue in its reply memorandum. IBM argues that its motion is brought on the grounds of "clear error and imposes manifest injustice." IBM's Repl Mem. p. 4. According to IBM they are not simply rehashing arguments. Instead IBM believes the parties did not fully brief, nor did the court fully understand, "the burden associated with searching for and producing documents from the files of 3,000 individuals." Id. The court agrees with IBM that this burden was not made entirely clear by the parties in their memoranda before the court. Therefore, the court finds that IBM's motion is appropriate to prevent clear error or manifest injustice.

In its Memorandum in Support, IBM specifically asks the court to:

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 the 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.

IBM's Mem. in Supp. p. 5.

The court finds IBM's argument somewhat persuasive in

3

appropriately balancing the burdens, costs and benefits associated with the production of this information. See Fed. R. Civ. P. 26(b)(2)(i) (stating that a court may limit discovery where "the discovery sought is . . . obtainable from some other source that is more convenient, less burdensome, or less expensive."). However, the court does not at this time strike its prior requirement that IBM produce the documents from the files "for the 3000 individuals who made the most contributions and changes to the development of AIX and Dynix." January 18, 2005 Order p. 16. Instead, the court finds it appropriate to defer the majority of the required production in light of the possible duplication of information contained in the other materials forthcoming from IBM.

Notwithstanding the court's deferral, the court hereby ORDERS IBM to produce the programmer's notes, design documents, white papers, comments and notes, contact information, specific changes made to code, and all relevant non-privileged documents from the files of the 100 individuals who made the most contributions and changes to the development of AIX and Dynix. This amounts to approximately 3% of the original requirement and is to be done although there may be some duplication. The court finds this appropriate because such information will provide a basis for SCO to compare what is in the files of individual developers, versus what is contained in the other materials

4

produced by IBM. Following this comparison, and in accordance with IBM's representation, SCO can then identity additional developers "from whose files it would like additional production and IBM can then provide the information . . . ." IBM's Mem. in Supp. p. 5. IBM is to provide the information from these 100 individuals within 90 days from the date of this order. IBM is also to provide SCO and the court a privilege log for any documents that are withheld from the files of these 100 individuals. Objections to withheld documents will be addressed by the court at a later date.

Finally, the court wishes to note the arguments raised concerning possible modification of the court's January order. SCO specifically alleges that IBM seeks to modify its obligations and limit the discovery which it must produce. See SCO's Mem. in Opp. p. 4-10. The court does not address the majority of these issues because full production of required discovery by IBM pursuant to the court's order is not complete. Therefore, arguments concerning attempts to limit such obligations are premature.

However, prior orders make it clear that IBM is to provide ALL non-public Linux contribution information. The court's order entered in March 2004 states:

Pursuant to Rule 26(b), SCO should use its best efforts to obtain relevant discovery from the Linux

5

contributions that are known to the public, including those contributions publicly known to be made by IBM. IBM, however, is hereby ordered to provide to SCO any and all non-public contributions it has made to Linux.

March 2004 Order p. 4 (emphasis added). To the extent that IBM has failed to do this, the court HEREBY ORDERS IBM to produce this information. This production is to be specific in nature including any code contributed by IBM to Linux that is otherwise not publicly known. Furthermore, this is to include the names and contact information of specific developers that made contributions, not just general names of teams or work groups. For example, if it is public knowledge that a group of IBM developers known by the name of Alpha made contributions, but the individual members of Alpha are not publicly known, then IBM must produce the names and contact information from this group to SCO. Such required information is inherent within the court's previous orders because it would be considered "non-public" Linux information that is available to IBM. IBM is to produce this information within 75 days from entry of this order.

DATED this 19 day of April, 2005.

BY THE COURT.

__[signature]___
BROOKE C. WELLS
United States Magistrate Judge

6

United States District Court

for the

District of Utah

April 20, 2005


* * CERTIFICATE OF SERVICE OF CLERK * *

Re: 2:03-cv-00294

True and correct copies of the attached were either mailed, faxed or e-mailed by the clerk to the following:

Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]
EMAIL

Frederick S. Frei, Esq.
ANDREWS KURTH
[address]

Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]
EMAIL

Mr. Alan L Sullivan, Esq.
SNELL & WILMER LLP
[address]
EMAIL

Todd M. Shaughnessy, Esq.
SNELL & WILMER LLP
[address]
EMAIL

Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]

7

EMAIL

Mr. Kevin P McBride, Esq.
[address]
EMAIL

Robert Silver, Esq.
BOIES SCHILLER & FLEXNER
[address]

Stuart H. Singer, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL

Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]
EMAIL

Mr. Michael P O'Brien, Esq.
JONES WALDO HOLBROOK & MCDONOUGH
[address]

8


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