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Declaration of Todd Shaughnessy in Support of PSJ on Breach of Contract and Unsealed Exhibits
Monday, July 11 2005 @ 02:18 AM EDT

We're getting to see more and more of what Judge Kimball was considering in IBM's partial summary judgment motions, the ones he ordered essentially put on hold until discovery is complete. Here is the Declaration of Todd M. Shaughnessy in Support of IBM's Motion for Partial Summary Judgment on Breach of Contract Claims and Unsealed Exhibits Thereto [PDF], as text.

It's IBM unsealing exhibits that were earlier sealed. The rest we saw when this declaration was filed back in August of 2004. It's marked Docket Nos. 227 and 228, because that is what it was numbered when first filed. It was filed again by IBM on June 20, 2005. They've been filing redacted documents lickety split, but this is the first one I've seen that lists unsealed documents. This time, the documents are numbered Nos. 457 and 458, with two top sheets and two certificates of service. As you will see from the certificates of service, SCO has two more attorneys in 2005 than it did in 2004.

This is one of the motions for partial summary judgment that Kimball ruled dismissed without prejudice to refile or renew after discovery is complete, as I said, and I have no doubt it will then resurface immediately. The exhibits are intended as IBM's proof of facts and assertions in their motion. Most of the exhibits we have seen before, because we earlier picked up paper exhibits from the court, but not all.

A word on procedure: This was filed prior to Judge Kimball's July 1, 2005 order, in which he requested the parties to change to a new system when unsealing documents:

If a party seeks to unseal an entire document, that party shall file only a Notice that sets forth the name and docket number of the document to be unsealed. The Clerk’s Office will then unseal that document. The parties shall not refile the entire document.

If, however, only parts of a document are to be unsealed (i.e., various exhibits from an appendix containing many exhibits), that party shall file a Notice indicating each specific paper to be unsealed, the docket number of the document containing the papers, and actual copies of each paper to be unsealed.

The change Kimball asked for is because the clerk was buried in work. Courts all over the country are switching to electronic filing, and there is extra work associated with that. Kimball's earlier Order denying the G2 motions told SCO and IBM to look over prior filings and see what could be unsealed or redacted:

(1) Counsel for both IBM and SCO shall review the documents filed thus far in this action to determine whether any such documents may be unsealed. Counsel shall notify the court on or before May 27, 2005 as to which documents may be unsealed.

(2) All future dispositive motions and memoranda that are filed under seal shall be publicly filed with all confidential information redacted. Additionally, all non-confidential supporting exhibits shall be publicly filed;

IBM immediately began filing redacted documents that had previously been sealed, lots of them. SCO did not. Both parties filed their lists of documents that could be unsealed or redacted on May 27, and SCO listed 12 documents it would be filing with the court in redacted form. However, they didn't file the documents themselves. If you look down the list on our IBM Timeline page, you can confirm that what IBM began filing in early May were redacted, not unsealed, documents. When you read the SCO filing, it's clear the parties each thought the other should unseal more than they were and they have been fighting about that. IBM's parallel filing is here.

The point is this: SCO had accused IBM of improperly sealing documents and yet, even before the May 27 deadline, IBM immediately began opening up and filing numerous redacted documents. SCO filed its May 27 list and then in mid-June it filed its Updated Report on Unsealing of Documents [PDF]. That filing listed 13 documents that SCO would be filing in redacted form "shortly", in addition to the list of documents SCO said can now be unsealed. There is some duplication with the May 27 list. But so far we have not seen any SCO redacted documents. Redacted documents are not affected by Judge Kimball's later change in procedure, I remind you, in that the parties still have to file the redacted documents. It's not the court that will do that. They do that only for sealed documents that are to be unsealed in their totality.

I took the time to explain all this, because I've seen some confusion about this on the Internet, with some saying IBM followed a "wrong" procedure and SCO did it correctly by filing only a notice and leaving it to the courts to actually make the documents available. On redacted documents, that is not the procedure. It never was, and SCO knew that because it told the court it would be filing its redacted documents shortly, but it just hasn't so far. We are now into July, and they've been promising to file shortly since the end of May. So, which party showed an eagerness to open up their documents? I'll let you decide.

The exhibits attached to this declaration are called unsealed in the title, so if that means totally unsealed (and I won't know about that until I pick them up), then this would be an example of what Judge Kimball asked them to do differently, but again, it would be the first such unsealing that they have filed, and it was filed prior to the change in procedure.

IBM, I deduce, was either falsely accused of wishing to keep documents hidden and showed it by immediately filing redacted documents and unsealing these exhibits, or it did the quick unsealing and redacting to prove to the judge and the world that it had been falsely accused. Either way, it was obviously very willing to open up plenty. There is one other possibility. It's possible the parties are fighting about how much to unseal, and IBM filed in redacted form, hoping that in a later battle, the judge would decide it was sufficient. I don't know which it is. What I do know is that SCO has yet to file any of the redacted documents it said in May and then in mid June it would be filing shortly with the court.

Some of the exhibits attached to IBM's declaration were filed as paper documents, which means we don't yet have them all. Specifically, the ones that are now redacted are not yet in our hands, so view this as a notice of coming attractions. We also don't have a couple of them that were not sealed, but we are working on it.

What Frank Sorenson and I have done on the exhibits is to check to see which we already had, either from our own digging or because they were attached already to other documents filed with the court earlier, and then to provide links. Of course the original filing doesn't have the links, so keep that in mind. It's just an aid for you. As always, for anything critical, use the PDF from the court. Thank you, Frank. Here are the numbers of the sealed documents that will be unsealed: 5, 7, 40, 53, 57, 58, and 59:

  • Exhibit 5 - excerpts from the Rule 30(b)(6) deposition of William M. Broderick, dated May 11, 2004.
  • Exhibit 7 - "SCO Linux Introduction, Version 1.2," bates numbered SCO1355589-SCO1355653
  • Exhibit 40 - A document entitled "Caldera Intellectual Property Title and Ownership", bates numbered SCO1178124.
  • Exhibit 53 - excerpts from the Rule 30(b)(6) deposition of Erik W. Hughes, dated May 11, 2004.
  • Exhibit 57 - invoices attached as Tab 121 to SCO's Revised Supplemental Responses to IBM's First and Second Set of Interrogatories, dated January 15, 2004.
  • Exhibit 58 - A selection of invoices produced by SCO for Linux products sold after March 7, 2003.
  • Exhibit 59 - Excerpts from Exhibit 3(a) to the Rule 30(b)(6) deposition of Erik W. Hughes.

Exhibit 7 we've seen already. But looking at it again, I see I didn't notice that they listed as one of SCO's contributions to Linux that "SCO paid to have WordPerfect 6.0 for UNIX ported to Linux." Anybody working on WordPerfect interoperability might like to know that, if you don't already.

I think Exhibit 9 is worth reading also, a 10K/A from 2000, back when Caldera was a Linux company, and it lists the company's Linux involvement in gung-ho language. For example, after mentioning all that they did to teach Linux in order to encourage its spread, they wrote this:

We fully embrace the open source model and continuously contribute tools and technology to the open source community. We give away CD ROMs containing our Linux operating system at trade shows and allow it to be freely downloaded from the internet to encourage interest. We foster multiple development projects over the internet and help each project progress smoothly.

How they could miss all that infringing code they now claim is a puzzlement.

One thing I note on the list of exhibits is that they list some of SCO's contributions to Linux, and they cite two pages on SCO's website, the old one, www.thescogroup.com, but if you go to the url IBM listed, you get a 404, Page Not Found error. Spelling it sco.com or caldera.com gets the same result. We had an exhibit before [PDF], from the Caldera contrib page listing SCO contributions to Linux, but because I don't know if it is a complete match, we left the link off on that exhibit, since there is no point sending you to a 404, and while I considered using the PDF from before, I never want to guess on something like that, so I decided not to put it in as a link in the text, but just to list it here, for the curious.

And another exhibit, a presentation marked confidential, "SCO Linux Introduction, Version 1.2", says this, in addition to many other things:

Although Linux products were not designed specifically for business purposes or to bring Linux and UNIX together, Linux has evolved to this level. Linux is a powerful and reliable operating system that competes and wins in the business area.

It tells us, on page 10, that Linus began writing Linux in 1991, and that one of the most important decisions he made was to use the GPL, which they credit with making Linux the most dynamic operating system of the day. They goof in one place, saying Richard Stallman is the father of Open Source. I'm sure he declines any such honor, as he is concerned with free as in freedom, not open source, but they do credit his work as being the beginning of the FOSS movement and point out that long before Linux, GNU software was in widespread use. They even tell us that free in the case of free software doesn't mean no cost. In short, someone in that company knows the truth fairly well. Or knew it.

The document also mentions their award-winning technical support services for several operating systems, so how could they not know if there was infringing code? In AutoZone and DaimlerChrysler, SCO wants to hang by their thumbs any company that even thinks about switching to Linux, and especially if they think about combining UNIX and Linux, but what a different song they sang back then. They were doing it themselves. The document is dated 2002. In its complaint, SCO said Linux was no threat to business and originally compared it to a bicycle only hobbyists were interested in. Well, which is it?

They also talk about UnitedLinux, describe themselves as a Unix and Linux company, tell us that UnitedLinux had the kernel they started complaining about, 2.4.18, and NFS (it even mentions a Linux Learning Unit on NFS Administration). The document mentions that they changed their name to SCO from Caldera International Inc. in August of 2002, so this must have been written after that, and so Darl was already the CEO at the time this document was prepared. And it tells us that "SCO is committed to the Open Source Community. . . " Wink, wink, not exactly, eh? Not any more. Now Linux is supposedly a threat to the marketplace worthy of a letter to Congress. Well, if Linux and the GPL were really a plot to destroy the proprietary software market, Caldera was one of the plotters, up to their eyeballs, Darl and all. They tell us themselves that they were number three in the world in distributing Linux back in 2002, that's Linux under the GPL. So I guess it only became an evil plot with an unConstitutional, void or voidable license, as they later claimed, *after* 2002, or they are full of it, to quote Linus in another context, one or the other.

I've made all the previously sealed documents red text; note that one of them, #36, the excerpts from the 1984 Deposition of David P. Rodgers, is not apparently being unsealed at this time, as far as I can make out. Mr. Rodgers was in the 1980s the Sequent executive who signed the license agreement between AT&T and Sequent. We earlier got to see his more recent Declaration.

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

Filed in United States District

Court, District of Utah

2005 June 20 P 4:45

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]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

DECLARATION OF TODD M.
SHAUGHNESSY IN SUPPORT OF IBM'S
MOTION FOR PARTIAL
SUMMARY JUDGMENT ON BREACH
OF CONTRACT CLAIMS AND
UNSEALED EXHIBITS THERETO
[Docket Nos. 227 and 228]


Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells



1

Filed in United States District

Court, District of Utah

August 13, 2004

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]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

DECLARATION OF TODD M.
SHAUGHNESSY IN SUPPORT OF IBM'S
MOTION FOR PARTIAL
SUMMARY JUDGMENT ON BREACH
OF CONTRACT CLAIMS AND
UNSEALED EXHIBITS THERETO
[Docket Nos. 227 and 228]


Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells



2

I, Todd M. Shaughnessy, declare as follows:

1. I represent IBM in the lawsuit brought by SCO against IBM, entitled The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003). This declaration is submitted in support of Defendant/Counterclaim-Plaintiff IBM's Motion for Partial Summary Judgment on Breach of Contract Claims.

2. Enclosed herewith are true and correct copies of the following documents:

(a) Exhibit 1 is SCO's Second Amended Complaint, dated February 27, 2004.

(b) Exhibit 2 is SCO's Answer to IBM's Second Amended Counterclaims, dated April 23, 2004.

(c) Exhibit 3 is IBM's Second Amended Counterclaims, dated March 29, 2004.

(d) Exhibit 4 is SCO's Memorandum in Opposition to IBM's Motion for Summary Judgment on its Tenth Counterclaim for Declaratory Judgment of Non-Infringement, dated July 8, 2004.

(e) Exhibit 5 is excerpts from the Rule 30(b)(6) deposition of William M. Broderick, dated May 11, 2004.

(f) Exhibit 6 is a letter from Brent O. Hatch to Todd M. Shaughnessy, dated April 19, 2004.

(g) Exhibit 7 is a document titled "SCO Linux Introduction, Version 1.2", bates numbered SCO1355589-SCO1355653. [Originally sealed, but filed earlier]

(h) Exhibit 8 is material printed from SCO's website, available at http://www.thescogroup.com/developers/community/contrib and

3


http://www.thescogroup.com/developers/community/contrib/linux.html, identifying various SCO contributions to Linux.

(i) Exhibit 9 is the Form 10-K/A, without exhibits, filed by Caldera Systems, Inc. for the fiscal year ending October 31, 2000.

(j) Exhibit 10 is the Software Agreement (Number SOFT-00015) between AT&T Technologies, Inc. and International Business Machines Corporation ("IBM"), dated February 1, 1985.

(k) Exhibit 11 is the Software Agreement (Number SOFT-000321) between AT&T Technologies and Sequent Computer Systems, Inc. ("Sequent"), dated April 18, 1985.

(l) Exhibit 12 is the Sublicensing Agreement (Number SUB-0015A) between AT&T Technologies and IBM, dated February 1, 1985.

(m) Exhibit 13 is the Sublicensing Agreement (Number SUB-000321A) between AT&T Technologies and Sequent, dated January 28, 1986.

(n) Exhibit 14 is the letter agreement between AT&T Technologies and IBM, dated February 1, 1985.

(o) Exhibit 15 is the Asset Purchase Agreement between Novell, Inc. ("Novell") and The Santa Cruz Operation, Inc. ("Santa Cruz"), dated September 19, 1995.

(p) Exhibit 16 is Amendment No. X, entered into by IBM, Novell and Santa Cruz, dated October 17, 1996.

(q) Exhibit 17 is a SCO press release titled "Caldera Systems to Acquire SCO Server Software and Professional Services Divisions, Providing World's Largest Linux/UNIX Channel", dated August 2, 2000.

4

(r) Exhibit 18 is SCO's original Complaint, dated March 6, 2003.

(s) Exhibit 19 is IBM's First Set of Interrogatories and First Request for the Production of Documents, dated June 13, 2003.

(t) Exhibit 20 is SCO's Amended Complaint, dated July 22, 2003.

(u) Exhibit 21 is SCO's Responses to IBM's First Set of Interrogatories and First Request for the Production of Documents, dated August 4, 2003.

(v) Exhibit 22 is IBM's Second Set of Interrogatories and Second Request for the Production of Documents, dated September 16, 2003.

(w) Exhibit 23 is IBM's Memorandum in Support of its First Motion to Compel Discovery, dated October 1, 2003.

(x) Exhibit 24 is IBM's Memorandum in Support of its Second Motion to Compel Discovery, dated November 6, 2003.

(y) Exhibit 25 is the transcript of the December 5, 2003 hearing before Magistrate Judge Wells.

(z) Exhibit 26 is the Order Granting IBM's Motions to Compel Discovery and Requests for Production of Documents, dated December 12, 2003.

(aa) Exhibit 27 is SCO's Revised Supplemental Response to IBM's First and Second Set of Interrogatories, dated January 15, 2005.

(bb) Exhibit 28 is a letter from Todd M. Shaughnessy to Brent O. Hatch, dated January 30, 2004.

(cc) Exhibit 29 is a letter from Mark J. Heise to David R. Marriott, dated February 4, 2004.

5

(dd) Exhibit 30 is the transcript of the February 6, 2004 hearing before Magistrate Judge Wells.

(ee) Exhibit 31 is the Order Regarding SCO's Motion to Compel Discovery and IBM's Motion to Compel Discovery, dated March 4, 2004.

(ff) Exhibit 32 is Supplement No. 1 to the Software Agreement between AT&T Technologies and IBM.

(gg) Exhibit 33 is Supplement No. 2 to the Software Agreement between AT&T Technologies and Sequent.

(hh) Exhibit 34 is excerpts from the Deposition of Otis L. Wilson, dated June 10, 2004.

(ii) Exhibit 35 is excerpts from the Deposition of David Frasure, dated June 8, 2004.

(jj)Exhibit 36 is excerpts from the Deposition of David P. Rodgers, dated June 10, 1984.

(kk) Exhibit 37 is the April 1985 edition of AT&T's $ echo newsletter.

(ll) Exhibit 38 is the August 1985 edition of AT&T's $ echo newsletter.

(mm) Exhibit 39 is the Software Agreement (Number SOFT-000302) between AT&T Information Systems, Inc. and Santa Cruz, dated May 6, 1987.

(nn) Exhibit 40 is a document entitled "Caldera Intellectual Property Title and Ownership", bates numbered SCO1178124.

(oo) Exhibit 41 is a letter from Joseph A. LaSala Jr. (Novell's General Counsel) to Ryan Tibbitts (SCO's General Counsel), dated October 7, 2003.

6

(pp) Exhibit 42 is a letter from Joseph LaSala to Ryan Tibbitts and Ronald A. Lauderdale (IBM's Assistant General Counsel), dated October 10, 2003.

(qq) Exhibit 43 is a letter Joseph A. LaSala to Ryan Tibbitts, dated February 6, 2004.

(rr) Exhibit 44 is a letter from Joseph A. LaSala to Ryan Tibbitts and Ronald A. Lauderdale, dated February 11, 2004.

(ss) Exhibit 45 is a letter from Jack L. Messman (Novell's Chairman and CEO) to Darl McBride (SCO's President and CEO), dated June 9, 2003.

(tt) Exhibit 46 is a letter from Jack L. Messman to Darl Mcbride and Ronald A. Lauderdale, dated June 12, 2003.

(uu) Exhibit 47 is a SCO press release titled "Caldera, Conectiva, SuSE, Turbolinux Partner to Create UnitedLinux, and Produce a Uniform Version of Linux for Business", dated May 30, 2002.

(vv) Exhibit 48 is a UnitedLinux press release titled "UnitedLinux Releases Version 1.0", dated November 19, 2002.

(ww) Exhibit 49 is a SCO press release titled "SCO Unveils SCO Linux 4.0, Powered by UnitedLinux", dated November 19, 2002.

(xx) Exhibit 50 is a UnitedLinux press release titled "UnitedLinux Signs IBM and AMD as First Technology Partnerrs", dated January 14, 2003.

(yy) Exhibit 51 is a SCO product announcement for OpenLinux Server Release 3.1.1, dated January 24, 2002, bates numbered SCO1324397-SCO1324404.

7

(xx) Exhibit 52 is a SCO product announcement for OpenLinux Workstation Release 3.1.1., dated January 24, 2002, bates numbered SCO1324405-SCO1324412.

(aaa) Exhibit 53 is excerpts from the Rule 30(b)(6) deposition of Erik W. Hughes, dated May 11, 2004.

(bbb) Exhibit 54 is a SCO product announcement for SCO Linux Server 4.0, Powered by UnitedLinux, dated November 19, 2002, bates numbered SCO1270429-SCO1270436.

(ccc) Exhibit 55 is a document titled "Technical Overview of SCO Linux 4.0 Powered by United Linux", bates numbered SCO1307695-SCO1307714.

(ddd) Exhibit 56 is a SCO product announcement for SCO Linux Server 4.0 for the Itanium Processor Family, dated April 14, 2003, bates numbered SCO1269792-SCO1269797.

(eee) Exhibit 57 is invoices attached as Tab 121 to SCO's Revised Supplemental Responses to IBM's First and Second Set of Interrogatories, dated January 15, 2004.

(fff) Exhibit 58 is a selection of invoices produced by SCO for Linux products sold after March 7, 2003.

(ggg)Exhibit 59 is excerpts from Exhibit 3(a) to the Rule 30(b)(6) deposition of Erik W. Hughes.

(hhh) Exhibit 60 is the General Public License.


8

3. Volume I contains Exhibits 1-20, Volume II contains Exhibits 11-24, and Volume III contains Exhibits 25-60. True and correct copies of Exhibits 5, 7, 40, 53, 57, 58, and 59, however, are filed separately under seal pursuant to the protective order in this case.

4. I declare under penalty of perjury that the foregoing is true and correct.

9

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of August, 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.
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]_____         
Amy F. Sorenson

10

CERTIFICATE OF SERVICE

I hereby certify that on the 20th day of June, 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.

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

Robert Silver
Edward Normand
Sean Eskovitz
BOIES, SCHILLER & FLEXNER LLP
[address]

______[signature]_____         
Amy F. Sorenson

11


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