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IBM's Redacted Opposition to SCO's Supplemental Memo Re Discovery
Tuesday, May 10 2005 @ 10:29 PM EDT

This is IBM's Redacted Opposition to SCO's Supplemental Memorandum Regarding Discovery [PDF], filed back in September as a sealed document (as #304 on the docket) and now made public with one redacted section (as #444).

All of SCO's documents that were sealed remain sealed, whereas IBM immediately responded to Judge Kimball's recent direction by unsealing or filing redacted versions of previously sealed filings. You'll notice that this one has two certificates of service, the original back in September of 2004 and the second in May of 2005 for the redacted version. So SCO was on notice that this document would be made available to the public in this version.

It has to be embarrassing for them, as more dirty laundry now is coming out. Here we find more evidence, according to IBM's account, of SCO's legal team going over the ethical line, most particularly with respect to the two privileged emails SCO has been so determined to make public. We learn in this document IBM's side of the story, at last.

Here is the essence of it: IBM and SCO entered into an agreement, called the Attorneys' Planning Report and Proposed Scheduling Order dated June 19, 2003, the terms of which included that if either turned over any privileged documents inadvertently, which can happen in trials with massive discovery like this one, they each agreed to return it immediately to the other party upon being given notice. IBM quotes clause 3K as reading like this: "[d]ocuments that a party claims as privileged, including all copies made, will be returned immediately upon the request of the disclosing party without the need to show the production was inadvertent."

It happened to IBM. They turned over something that was privileged, two emails that they describe as "communications made by IBM employees to an in-house IBM attorney for the purpose of seeking legal advice", and they let SCO know (see the letter attached as Exhibit 1), but SCO refused to return the two emails in question, saying that IBM had to prove that they were privileged (see their letter, Exhibit 2). Not only that, they based one of their filings on the privileged materials. Then SCO proceeded to reveal the privileged material to the world, as we watched and you all remember, instead of letting the matter be handled first by the court.

Now we know the rest of the story. So when the SCO attorney read the email at the October hearing, or started to, it wasn't just a mistake, I gather. And I think I understand now why they were so crazy wild to get this out in public. The court wasn't likely to accept their argument about these emails, and so it was PR to the public or nothing, I guess. Plus there is a certain desperation, the hope that they can steamroll over the court and get their 3rd Amended Complaint past the judge by quoting from the email. We'll see. But what is the use of having signed agreements if no one does what they agreed to do? IBM also quotes from the American Bar Association's Committee on Ethics and Professional Responsibility and what they say should be done with privileged materials inadvertently received:

In addition, the American Bar Association's Committee on Ethics and Professional Responsibility has stated clearly that when privileged materials are inadvertently received, the receiving lawyer "should not examine the materials once the inadvertence is discovered" and "should abide by the sending lawyer's instructions as to their disposition". ABA Comm'n on Ethics and Prof'l Responsibility, Formal Op. 368 (1992). This opinion pertains to "situations in which the sending lawyer has notified the receiving lawyer of the erroneous transmission and has requested return of the materials sent as well as those situations in which the inadvertent sending lawyer and his client remain ignorant that the materials were missent". Id. All that is required to trigger the ethical obligation to return inadvertently-produced privileged documents is a notification by the sending lawyer of a claim of privilege and a request that the materials be sent back.

There may have been something about this, some decision or indication from the judge, in the hearing transcript that was sealed by Judge Wells, the one Maureen O'Gara and Forbes and CNET tried unsuccessfully to get unsealed. While we on the outside can't know what happened with precision yet, if you go to the court docket on Pacer, you will find that the court did seal the document SCO filed unsealed that revealed the privileged emails to the world. Groklaw accordingly removed that filing from our collection.

There is something else of interest in this document. Notice footnote 4:

4. In any event, SCO misrepresents both the scope of IBM's rights to use source code under IBM's agreements with The Santa Cruz Operation, Inc. -- the company from which SCO purports to have purchased its alleged UNIX copyrights -- and the significance of both the privileged and non-privileged IBM documents SCO attached to its Supplemental Memorandum. SCO contends, without any justification, that IBM did not have a right to use any UNIX System V Release 4 source code in IBM's version of AIX for the PowerPC. The very agreements which SCO attaches to its supplemental memorandum, however, contradict SCO's accusation that IBM misappropriated any code.

So, IBM flatly denies that they had no right to use SVR4 code in AIX for PowerPC. IBM, we learn in their arguments regarding the intended scope of their 9th Counterclaim, adds this:

Indeed, it would have made little sense for IBM to bring a claim seeking a declaration of rights relating to agreements to which SCO was never a party. The Joint Development Agreement ("JDA"), attached as Exhibit F to the Evans Declaration, and the various amendments and supplements to that JDA, were agreements between IBM and The Santa Cruz Operation, Inc. ("Santa Cruz"), a company now known as Tarantella, Inc. IBM fulfilled all of its obligations under its contracts with Santa Cruz, and in turn obtained certain irrevocable licensing rights to source code provided by Santa Cruz under the JDA. 5

So, total denial by IBM that SCO has any contractual leg to stand on. For one thing, they were not a party to the agreement they are now claiming was breached. And IBM had, they now reveal, "certain irrevocable licensing rights" from Santa Cruz, now Tarantella. Yes. Sun has just bought Tarantella. (Cf.)

We also learn now that it was because SCO filed their Supplemental Memorandum Regarding Discovery at the last minute that the September 14, 2004 hearing was postponed. And, IBM complains to the court that the SCO legal team were filing redundant motions. There are rules to how many pages you can normally use in court fillings. IBM accuses SCO of squeezing past that bar by filing multiple motions all about the same thing, no matter what the title said the document was, and that this Supplemental Memo was filed after briefing was complete. To be fair, I believe the court granted them the right to file it. But as IBM points out, they filed five motions, all asking for the same thing, more code.

You might say, so what? The so what is this: Attorneys normally like to go on and on. It's an affliction of the breed, one I share. It's natural, because you want to win. But judges want to read as little as they can, naturally, within reasonable bounds, so they can get their work done. So, what IBM is pointing out is that by letting SCO file so many motions, all on the same topic, SCO ended up with 88 pages to go on and on in, and that's not what the rules are supposed to let happen. Just one more example of trying to push the boundaries.

IBM also told the court in this document that it would be unduly burdensome to turn over all the CMVC code. The court ordered it anyway, and it has, indeed, proved to be unbelievably costly and time-consuming. Happily, Judge Wells later acknowledged that she had not fully understood the burden she had imposed, and she adjusted her order, as requested by IBM.

I have a personal theory on what happened, but it's only a theory. I think Judge Wells was mesmerized by Sean Eskovitz, who by all accounts did a good job his first time out of the gate for SCO at that October hearing, except for reading the email. That should have been the judge's clue.

But that is over now. As my dear granny used to say, Pretty is as pretty does, and the way the SCO attorneys are behaving, according to IBM's account, isn't pretty. There can be short-term success, until the judge gets to believe what he or she is seeing. But you can't fool a competent, honest judge in long, drawn-out litigation. David Boies has said so himself. It's rare for attorneys to be sanctioned, but that doesn't mean it never costs them, because offending a judge's sense of ethical behavior isn't endearing. The whole legal system is founded on the premise that having rules and playing fair, by the rules, is worth more than the outcome of any single case. I still believe that. In fact, I think there can be no civilized society without the fundamental agreement that we all agree to abide by rules of both ethical and legal behavior and at least do our best to try to live by them.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[Address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[Address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintif
International Business Machines Corporation

IN THE UNITED STATES DISTRCT COURT
FOR THE DISTRICT OF UTAH

___________________________

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

____________________________

DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM'S REDACTED
OPPOSITION TO SCO'S
SUPPLEMENTAL MEMORANDUM
REGARDING DISCOVERY
[Docket 304]

Civil N. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits this opposition to the Supplemental Memorandum Regarding Discovery filed by Plaintiff/Counterclaim Defendant The SCO Group, Inc. ("SCO").

Preliminary Statement

After briefing had already closed on SCO's "Memorandum Regarding Discovery" and its "Renewed Motion to Compel" -- both of which seek essentially the same discovery, materials contained in IBM's internal "CMVC" database -- SCO submitted on September 3, 2004 yet another brief addressed to the same topic. 1 SCO's "Supplemental Memorandum Regarding Discovery", SCO's fifth brief devoted to the same issues (for a total of 88 pages), is no more compelling than any of its other four briefs. Nothing SCO argues in any of its briefs, however, obscures the fact that SCO wants simply to engage in a massive fishing expedition to which it is not entitled.

As an initial matter, SCO's Supplemental Memorandum relies inappropriately on documents that IBM has informed SCO are protected by the attorney-client privilege and were inadvertently produced during discovery. In disregard of IBM's requests, however, SCO has refused to return the documents to IBM and, indeed, continues to rely on such documents in its Supplemental Memorandum. These documents (which SCO in any case misrepresents) reflect communications made by IBM employees to an in-house IBM attorney for the purpose of seeking legal advice and are plainly privileged. Accordingly, SCO should be directed to promptly return all copies of such documents to IBM, and the documents should not be relied upon by the Court in considering SCO's discovery applications.

More importantly, SCO's Supplemental Memorandum misstates the scope of IBM's Ninth Counterclaim in an effort to concoct a new reason that IBM should have to produce

2

irrelevant discovery. IBM's Ninth Counterclaim seeks merely a declaration that SCO's purported termination of the several agreements specified in SCO's Amended Complaint is invalid and that SCO has no claim for copyright infringement based on such purported termination. None of the information that SCO is seeking is relevant to IBM's Ninth Counterclaim, and IBM should not have to undertake the burdensome task of producing these materials.

Although SCO repeats in its Supplemental Memorandum the conclusory refrain from its four other briefs that producing the materials contained in CMVC would not be unduly burdensome for IBM, nothing in SCO's latest memorandum provides any basis for that belief.

Argument

I. THE PRIVILEGED DOCUMENTS RELIED ON BY SCO IN ITS
SUPPLEMENTAL MEMORANDUM SHOULD BE RETURNED TO IBM AND
SHOULD NOT BE CONSIDERED BY THE COURT

Two of the documents upon which SCO relies in its Supplemental Memorandum are plainly privileged, and should therefore be returned to IBM and disregarded by the Court. These documents, attached as Exhibits D and E to the Declaration of Jeremy O. Evans ("Evans Declaration") submitted by SCO together with its brief, are communications by IBM employees to IBM counsel seeking legal advice. Although IBM properly requested that SCO return the documents to IBM immediately, SCO refused to do so and continues to rely on the documents in its Supplemental Memorandum in total disregard of IBM's privilege claims.

Upon discovering the inadvertent production of these two documents, IBM asked SCO on August 25, 2004 to return the documents immediately, together with all copies of the documents in SCO's possession. As IBM stated in its letter to SCO, pursuant to paragraph 3(k) of the Attorneys' Planning Report and Proposed Scheduling Order, "[d]ocuments that a party claims as privileged, including all copies made, will be returned immediately upon the request of the disclosing party without the need to show the production was inadvertent". (See Exhibit 1.)

3

Instead of returning the documents to IBM, or even responding to IBM's letter, SCO continued to rely on the documents in its submission to the Court. On September 3, 2004, in its reply brief in support of its application to file its Supplemental Memorandum, SCO informed the Court that it did not believe it had to return the documents to IBM because, "IBM [in its letter] does not identify a single attorney in the e-mails nor does it identify any basis for its claim of 'attorney-client privilege'". (SCO's Reply Mem. at 4.) 2 SCO repeated this argument when it finally responded to IBM's letter on September 8, 2004, two weeks after IBM requested that SCO return the privileged documents. In its letter to IBM, SCO stated that was refusing to return the privileged documents because "IBM had failed to make any showing that the documents are, in fact, privileged". (Exhibit 2.)

SCO's position is flatly inconsistent with the parties' agreement concerning inadvertently-privileged documents. Under the Attorneys' Planning Report, SCO is obligated to return any "[d]ocuments that a party claims as privileged . . . immediately upon the request of the disclosing party without the need to show the production was inadvertent". IBM did not in its letter have to prove "that the documents are, in fact, privileged", as SCO now contends is necessary, and therefore did not undertake that effort. SCO's attempt on this ground to retain and rely on inadvertently-produced privileged documents in entirely improper.

In addition, the American Bar Association's Committee on Ethics and Professional Responsibility has stated clearly that when privileged materials are inadvertently received, the receiving lawyer "should not examine the materials once the inadvertence is discovered" and "should abide by the sending lawyer's instructions as to their disposition". ABA Comm'n on Ethics and Prof'l Responsibility, Formal Op. 368 (1992). This opinion pertains to "situations in which the sending lawyer has notified the receiving lawyer of the erroneous transmission and has

4

requested return of the materials sent as well as those situations in which the inadvertent sending lawyer and his client remain ignorant that the materials were missent". Id. All that is required to trigger the ethical obligation to return inadvertently-produced privileged documents is a notification by the sending lawyer of a claim of privilege and a request that the materials be sent back. 3

REDACTED

5

REDACTED

On the basis of its earlier request to SCO, and the declaration submitted herewith, IBM is plainly entitled to the prompt return of its two privileged documents, along with all copies in SCO's possession, and the Court should disregard SCO's Supplemental Memorandum to the extent it relies on these documents. See Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., 96 Civ. 7590, 1997 U.S. Dist. LEXIS 18818, at *21 (S.D.N.Y. Nov. 26, 1997)(ordering that party receiving inadvertently-produced privileged documents to "promptly return [to the producing party] the material (and all copies thereof)", "destroy all notes or other work product reflecting the contents of these documents", and further ordering that the receiving party is "prohibited from using these documents or references to these documents in discovery or at trial")(attached hereto as Exhibit 3); Kansas City Power & Light Co. v. Pittsurgh & Midway Coal Mining Co., 133 F.R.D. 171, 175 (D. Kan. 1989) (ordering the return of all copies of privileged documents inadvertently produced by plaintiff, and further ordering that the defendant "may not use these documents except by further order of the trial judge").

6

II. THE DISCOVERY SCO SEEKS IS NOT RELEVANT TO IBM'S NINTH
COUNTERCLAIM

Leaving aside the issue of SCO's improper use of IBM's privileged documents, SCO does not need any additional source code to defend against IBM's Ninth Counterclaim. Contrary to SCO's contention, IBM's Ninth Counterclaim does not seek a declaration that IBM, during the entire development history of its AIX and Dynix products, never infringed SCO's alleged copyrights (although IBM believes that to be the case), nor would that make any sense, as SCO has never alleged any such infringement.

SCO has asserted four contract claims against IBM, alleging that IBM has breached various licensing agreements permitting IBM to use the UNIX System V program and to distribute its own products containing UNIX System V code, AIX and Dynix. (See Second Amended Complaint Sections 110-172.) Based on IBM's alleged breaches of these license agreements, SCO purported to terminate IBM's rights under the agreements in June of 2003. (Id. 128-131, 139, 158-161, 169.) SCO has also asserted a copyright infringement claim against IBM, alleging that IBM's breaches of the licensing agreements "and its post-termination actions have infringed, have induced the infringement of, and have contributed to the infringement of, copyright registrations of SCO and its predecessors". (Id. 179.)

In response to SCO's claims, IBM has asserted two counterclaims that mirror different aspects of SCO's claim for copyright infringement. IBM's Tenth Counterclaim seeks a declaration that IBM's on-going Linux activities, in particular its use and distribution of Llinux, do not infringe any of SCO's alleged copyrights. IBM's Ninth Counterclaim seeks a declaration that IBM's AIX and Dynix activities, in particular its distribution of AIX and Dynix (if any) after SCO's purported termination of IBM's licensing agreements, do not infringe any of SCO's alleged copyrights.

7

SCO's argument that IBM's Ninth Counterclaim provides a new and independent ground for IBM's production of AIX code and other information from CMVC is therefore untenable. IBM's Ninth Counterclaim seeks nothing more than a declaration that SCO's purported termination of IBM's UNIX System V licenses -- the agreements specified in SCO's Second Amended Complaint -- is invalid and that SCO has no claim for copyright infringement based on such purported termination.

IBM's Ninth Counterclaim is only as broad as the scope of the first five counts of SCO's own complaint, which do not concern any issues relating to Project Monterey or any of the agreements submitted with SCO's Supplemental Memorandum, to which almost the entirety of SCO's Supplemental Memorandum is devoted. 4 Indeed, it would have made little sense for IBM to bring a claim seeking a declaration of rights relating to agreements to which SCO was never a party. The Joint Development Agreement ("JDA"), attached as Exhibit F to the Evans Declaration, and the various amendments and supplements to that JDA, were agreements between IBM and The Santa Cruz Operation, Inc. ("Santa Cruz"), a company now known as Tarantella, Inc. IBM fulfilled all of its obligations under its contracts with Santa Cruz, and in turn obtained certain irrevocable licensing rights to source code provided by Santa Cruz under the JDA. 5

8

IBM has already produced hundreds of millions of lines of code to SCO, constituting all of the source code for each version and release of AIX and Dynix that was distributed by IBM after the dates specified in SCO's Document Request Nos. 2 and 3, and there is simply no reason for IBM to have to produce any more to SCO. In its March 3, 2004 Order, this Court specifically provided that it would "consider ordering IBM to produce more code from AIX and Dynix" if SCO submitted additional briefing that "include[d], with specificity, and to the extent possible, identification of additional files SCO requests and the reasons for such requests". (3/3/04 Order at II.1.) Despite submitting no less than five briefs on the issue, SCO has failed to make a proper showing. SCO is ultimately just asking this Court to give SCO what the Court has already once denied SCO, all of the source code in IBM's internal CMVC database, without regard to whether that code is at all relevant to any of the claims in this case. This sort of fishing expedition should not be allowed.

III. IT REMAINS UNDULY BURDENSOME TO REQUIRE IBM TO PRODUCE
THE INFORMATION STORED ON CMVC

SCO submitted with its Supplemental Memorandum the Declaration of Barbara L. Howe ("Howe Declaration"), purportedly to show that IBM would not bear any burden to produce the massive amount of information sought by SCO. Ms. Howe, however, fails to show that producing all of the materials requested by SCO would be anything less than enormously burdensome for IBM.

Ms. Howe's declaration describes only the normal, day-to-day use of CMVC by an individual developer for the purpose of writing code. Nowhere does Ms. Howe even purport to have knowledge of, or to describe, the work effort that would be involved if IBM were required to extract, reproduce and review the massive amount of information stored on CMVC in order to produce that information to SCO.

9

Moreover, Ms. Howe nowhere claims that the lengthy, multi-step process described in the June 23 Declaration of Joan Thomas is incorrect. Ms. Howe states only, in conclusory terms, that "[t]o the best of my knowledge, it would be trivial" and "[t]o the best of my knowledge, it would be a straightforward process" for IBM to produce the massive amount of source code and other irrelevant information stored on CMVC. (Howe Declaration 17-18.) As is evident from Ms. Howe's declaration, her statements about the supposed ease with which IBM could produce the requested information are mere conjecture and should not be countenanced. 6

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court deny SCO's request for the materials sought in its Supplemental Memorandum Regarding Discovery.

DATED this 24th day of September, 2004.

SNELL & WILMER L.L.P.

___[signature]___
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

10

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

11

CERTIFICATE OF SERVICE

I hereby certify that on the 24th day of September, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

___[signature]___

12

CERTIFICATE OF SERVICE

I hereby certify that on the 4th day of May, 2005, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

___[signature]___

13


1 SCO's late submission of this additional memorandum occasioned the postponement of the hearing scheduled with this Court for September 14, 2004.

2 SCO does not dispute that IBM's production of the documents was inadvertent. (SCO's Reply Mem. at 4.)

3 The Oregon State Bar Association has squarely addressed this issue and provided additional clarification of the ethical obligation to return inadvertently produced documents immediately upon an assertion of privilege. Formal Opinion 150 discusses the following scenario:

"Lawyer A inadvertently includes a privileged document in a set of documents provided to Lawyer B in response to a discovery request. Lawyer A discovers the mistake, calls Lawyer B, and asks Lawyer B to return the privileged document without examining it."

Ore. State Bar Assoc. Bd. of Governors, Formal Op. 150(1998). In response to the questions "Must Lawyer B return the document?" and "Must Lawyer B return the document if Lawyer B has already reviewed the document before being informed of the inadvertent disclosure?", the Bar Association answered unequivocally, "Yes". Id. Clearly, the receiving attorney's ethical obligation to return the inadvertently produced document "without examining it" upon the simple request of the producing attorney is incompatible with SCO's assertion that IBM must convince SCO that the documents are privileged before SCO will return them or refrain from relying on them in their court filings.

4 In any event, SCO misrepresents both the scope of IBM's rights to use source code under IBM's agreements with The Santa Cruz Operation, Inc. -- the company from which SCO purports to have purchased its alleged UNIX copyrights -- and the significance of both the privileged and non-privileged IBM documents SCO attached to its Supplemental Memorandum. SCO contends, without any justification, that IBM did not have a right to use any UNIX System V Release 4 source code in IBM's version of AIX for the PowerPC. The very agreements which SCO attaches to its supplemental memorandum, however, contradict SCO's accusation that IBM misappropriated any code.

5 IBM disagrees both with SCO's interpretation of the contracts and other documents attached to its Supplemental Memorandum, and with SCO's unsupportable accusations that IBM and its attorneys engaged in any fraud. Nevertheless, we do not undertake here to debunk SCO's interpretation or refute its accusations, as these issues are beyond the scope of any claim or counterclaim in this lawsuit.

6 Ms. Howe also says nothing that alters the fact that the CMVC data sought by SCO is entirely irrelevant to any of SCO's claims or defenses. While parties are given wider latitude during discovery to request and obtain documents that might not be admissable, discovery must still be "relevant to the claim or defense of another party". Fed. R. Civ. P. 26(b)(1) ("Relevant information need not be admissable at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." (emphasis added)).


EXHIBIT 1

[Snell & Wilmer letterhead]

August 25, 2004

VIA HAND DELIVERY

Brent Hatch
Mark James
HATCH, JAMES & DODGE
[address]

Re: SCO v. IBM

Dear Brent and Mark:

Pursuant to paragraph 3(k) of the parties' Attorneys' Planning Report and Proposed Scheduling Order dated June 19, 2003, we are hereby demanding that SCO immediately return to us the documents bearing bates numbers 1710069294-95, and 181509837-38, copies of which are appended as Exhibits D and E to the Declaration of Jeremy O. Evans in Support of Plaintiff Counterclaim Defendant SCO's Supplemental Memorandum Regarding Discovery. Each of the foregoing documents is privileged.

Under the terms of paragraph 3(k), "[d]ocuments that a party claims as privileged, including all copies made, will be returned immediately upon the request of the disclosing party without the need to show the production was inadvertent." Please immediately return the foregoing documents, together with all copies thereof. If you have questions or would like to discuss this issue further, please feel free to contact me.

Very truly yours,

Todd m. Shaughnessy

TMS:dw
cc: David Marriott

14

Exhibit 2

[Hatch, James & Dodge letterhead]

Via Facsimile(#) and U.S. Mail

Todd M. Shaughnessy, Esq.
Snell & Wilmer
[address]

Re: Sco v. IMB; Case no. 2-03CV-0294

Dear Todd:

You previously demanded on behalf of IBM that SCO return documents bearing Bates numbers 1710069294-95 and 181509837-38 based on a claim of privilege. You cited paragraphs 3(k) of the Attorneys' Planning Report and Proposed Scheduling Order dated June 19, 2003, which indicates a party is initially entitled to a return of privileged documents without a showing that the production of the documents was inadvertent. In SCO's memorandum in reply to IBM's Opposition to SCO's Ex Parte Motion for Leave to File a Supplemental Memorandum Regarding Discovery, SCO noted that, aside from the issue of inadvertent production, IBM had failed to make any showing that the documents are, in fact, privileged. IBM has not provided SCO with sufficient information even to justify placing these e-mails on a privilege log. For example, IBM does not identify a single attorney in the e-mails nor does it identify any basis for its claim of "attorney-client privilege." We continue to await such information setting forth the basis for IBM's assertion of privilege.

Sincerely yours,

___[signature]___
Mark F. James

c. Robert Silver

15

[Fax cover sheet]

16

[Case from LexisNexis, Prescient Partners, L.P., - against - Fieldcrest Cannon, Inc., Fieldcrest Cannon Sure Fit, Inc., UTC Holdings, Inc., and Bert Shlensky, Defendants/Third-Party Plaintiffs -against - Paula Riley, Third-Party Defendant, 96 Civ. 7590, in which privileged documents were inadvertently produced.]

16-22


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