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To read comments to this article, go here
SCO and IBM's Dueling April Letters to Judge Kimball About CDs - as text
Friday, August 05 2005 @ 09:07 AM EDT

Here are three letters to Judge Kimball, two from SCO, one on the eve of the April 21, 2005 hearing [PDF] suggesting it be closed to the public and one right afterward "clarifying" a dispute about CDs [PDF] turned over in discovery, and a response from IBM [PDF] regarding the matter. The IBM letter also has exhibits attached. The SCO letter is the worried type lawyers send to judges after a hearing when they know something really didn't go their way. Their instinct was correct; despite this uh-oh letter, trying to explain why they had told the court that certain emails were "newly discovered evidence" they hadn't received until after the deadline to amend their complaint, when in fact they had received them, Judge Kimball denied SCO's motion to amend.

Not to put too fine a point on it, I gather SCO basically got caught telling the court something that wasn't so. They had represented that they didn't receive the discovery materials until after the deadline to amend had come and gone. IBM corrected that at the April 21, 2005 hearing by pointing out that three of the emails had been in SCO's hands since November of 2003, long before the deadline. SCO's letter is written right after the hearing to try to explain its misstatement away by grudgingly admitting it did have them but saying that they never looked at the CDs handed over in November because the CDs didn't have page and documents breaks, so it was not practical to review them until IBM later produced a CD in the format SCO wanted. In short, they did have them prior to the deadline and just didn't look, or claim they didn't.

However, if you note the excerpt from the hearing that IBM attaches to its letter, you'll notice that SCO argued at the February 2004 hearing that they had the CDs but needed page breaks going forward and they mention that it was possible in some cases to match up and figure out the beginning and end of documents, which indicates to me that they did indeed look at the CD materials prior to that hearing, at the very latest. IBM doesn't bother to point it out, but if I noticed it, likely so did Judge Kimball. Here's what SCO said at that hearing:

We have asked them, you have to identify where the documents begin and end. Put a source log with the C.D. Otherwise it is impossible to know how these documents were kept in the ordinary course of business as is required under Rule 34(b).

Certainly on some documents you can figure it out and match it up and see where it begins and ends, but we can't be left to the guessing game. It is a technical issue but it is something that can presumably be corrected, and it certainly needs to be done on a going forward basis.

Keep in mind that IBM was not required to provide the materials in digital format at all. They could have just dumped a pile of paper documents on SCO instead.

I have meticulously inserted double-lined document breaks (and numbered page breaks within the PDFs) because otherwise you would never in a million years be able to figure out where one letter ends and the next one begins.

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

[BOIES, SCHILLER & FLEXNER LLP Letterhead]

April 19, 2005

Received Clerk

July 5, 2005

U.S. District Court

Via Hand Delivery
Honorable Dale A. Kimball
United States District Court for the District of Utah
[address]

Re: SCO v. IBM, Case No. 2:03CV-0294 DAK

Dear Judge Kimball:

This firm is counsel for plaintiff The SCO Group, Inc. ("SCO") in the above-captioned matter. On Thursday, April 21, the parties are scheduled to appear before Your Honor for oral argument on two SCO motions and on the new Scheduling Order for this case.

All of the briefing on the two motions was filed under seal bacause many of the key documents referenced therein had been produced by IBM in discovery as "confidential". SCO expects that contents from such documents will be an important part of the argument before the Court on Thursday.

We do not believe there is any "confidential" information in the documents that we have referenced in our papers or that we intend to reference during oral argument. The documents at issue are many years old, and, at least with respect to the portions that SCO has referenced, do not reveal any information that could conceivably be sensitive to IBM.

Over the past several months, we have repeatedly asked IBM whether IBM would consent to unsealing (among other briefs) the briefing on these two pending motions. While IBM has never identified any portions of the briefs that it views as legitimately "confidential," it has declined such consent.

1

Accordingly, we seek Your Honor's guidance as to the appropriate way for SCO to present this information to the Court during the argument on Thursday. While SCO does not believe the information at issue warrants it, the Court (and IBM) may prefer that the Courtroom be sealed for purposes of the argument on SCO's two motions.

Thank you for your consideration.

Respectfully Yours,

[__signature__]
Edward Normand

cc: David R. Marriott, Esq.
Todd M. Shaugnessy, Esq.
Brent O. Hatch, Esq.



[BOIES, SCHILLER & FLEXNER LLP Letterhead]

April 25, 2005

Received Clerk

July 5, 2005

U.S. District Court

Via Hand Delivery

Honorable Dale A. Kimball
United States District Court
District of Utah
[address]

Re: SCO v. IBM, Case No. 2:03CV-0294 DAK

Dear Judge Kimball:

I write on behalf of The SCO Group, Inc. ("SCO") to clarify the record concerning an issue that IBM raised during the oral argument last Thursday, April 21, on SCO's Motion for Leave to File a Third Amended Complaint based on numerous newly discovered internal IBM documents.

During the argument, counsel for IBM (Mr. Marriott) contended for the first time that IBM had produced three of the internal documents on which SCO relied before the prior deadline for the amendment of pleadings, in "November 2003." SCO had argued in support of its motion, when the motion was filed last October, that the documents had not been produced until after the deadline, and IBM had not disputed this fact in either the opposition or the surreply brief that it filed against SCO's motion.

When this issue was first raised at the hearing, I stated that I believed there was a factual dispute concerning IBM's new argument. I have now had an opportunity to review not only the documents that counsel for IBM handed up to the Court in his surrebuttal argument, but also additional relevant materials which IBM did not submit to the Court with the other materials it had compiled.

That record shows that as of November 2003, IBM had produced to SCO 18 CDs without any page breaks between documents. The format of IBM's production resulted in one CD, for example, that contained what the computers recognized as just one "document" of thousands of pages. In addition to failing to comply with its obligation to produce the documents in the manner in which IBM had maintained them in the ordinary couse of its business, IBM's manner of production significantly hindered SCO's review of the documents and made any effort to review the CDs impractical.

When SCO promptly identified this problem in November 2003, counsel for IBM acknowledged the problem and represented that it "promptly instructed our vendor to include page breaks on all CDs produced going forward." (Letter from C. Kao to D. Goodstone dated Mar. 4, 2004, at Tab 1.) But IBM did not at that time ask its vendor to correct the format of production in the 18 CDs that IBM had produced by that time. IBM failed to produce any corrected CDs before the February 4 deadline for amendments.

1

Accordingly, on February 6, 2004, SCO's counsel raised the issue during a hearing before Judge Wells, at which Mr. Marriott represented IBM. SCO's counsel explained:
"in the production that we have received to date, we will get a C.D. and it will say there are two documents on it. The two documents will be 4,000 pages long. Clearly that is not the case. When S.C.O. has been producing C.D.'s it has identified where each document begins and ends. We have asked them, you have to identify where the documents begin and end. Put a source log with the C.D. Otherwise it is impossible to know how these documents were kept in the ordinary course of business as is required under Rule 34(b)."
(Transcript of Hearing on Feb. 6, 2004, at 26, at Tab 2.) SCO's counsel further explained that "we can't be left to the guessing game." (Id. at 27.) SCO reminded IBM of the need to correct the defects in the CDs that had already been produced in letters to IBM's counsel on February 19 and 27, 2004. (Tabs 3 and 4.)

On March 4, 2004, one month after the amendment deadline had passed, counsel for IBM informed us: "With respect to the first 18 CDs of documents, our vendor informs us that it is possible to go back and add page breaks to those CDs. We will produce you [sic] revised CDs as soon as they become available from our vendor." (Tab 1.) On March 10, 2004, IBM's counsel further informed us: "We have been producing CDs containing document breaks to SCO since Mark Heise of your office first raised the issue with us in November 2003, and will continue to do so going forward. Enclosed with this letter are replacements for CDs 1-18 containing document break information." (Letter from C. Kao to D. Goodstone dated Mar. 10, 2004, at Tab 5.) This record makes clear that even as to the three documents that Mr. Marriott identified for the first time at last week's hearing, IBM had produced those documents in a format that made it impractical if not impossible for SCO to review, that IBM admitted was improper, and that IBM did not correct until over a month after SCO had raised the issue before the Magistrate Court and the deadline for amendments had passed. We did not review the three documents to which Mr. Marriott referred until after IBM had corrected the format of its production.

We hope this clarifies the issue for the Court and thank the Court for its attention to this matter.

Respectfully submitted,

[signature]

Edward Normand

cc: David R. Marriott, Esq.



Snell & Wilmer L.L.P Law Offices
[address]
Todd M. Shaughnessy
[telephone number]
[e-mail address]

April 28, 2005

Received Clerk

July 05, 2005

U.S. District Court

HAND DELIVERED

Honorable Dale A. Kimball
United States District Court
District of Utah
[address]

Re: The SCO Group v. International Business Machines Corporation
Civil No. 2:03cv0294

Your Honor:

We are counsel for IBM in the above-referenced matter. I am writing to respond briefly to the letter from Mr. Normand to the Court dated April 25, 2005.

As the Court is aware, SCO's motion to amend is predicated on the proposition that it had no reason to know that IBM included SVR4 code in AIX for Power until after IBM produced the six documents and source code referenced in and/or attached to SCO's motion. To support this proposition, SCO incorrectly advised the Court (and Mr. Normand reiterated numerous times during his argument) that IBM did not produce any of these materials until after the February 4 deadline for amending the pleadings. Rather than accept responsibility for SCO's misstatements (which Mr. Normand only begrudgingly acknowledges), Mr. Normand's letter attempts, once again, to blame IBM for SCO's errors.

No longer able to contend that IBM did not produce any of the "newly discovered" evidence before the deadline for amending the pleadings, Mr. Normand states that IBM produced the documents "in a format that made it impractical if not impossible for SCO to review" and that IBM "admitted" the format of the production was "improper." Like the assertions made during the April 21 hearing, this assertion is wrong. The documents at issue were produced on CDs in the form typically used by IBM's vendor and were accompanied by a source log specifically identifying the files from which the documents were obtained. To review the documents, all SCO had to do was print them off or scroll through them on a computer screen. SCO does not

1

Honorable Dale A. Kimball
April 28, 2005
Page 2

claim (because it cannot) that the CDs were not functional, or that the information was not there if SCO had simply taken the time to look. Should the Court desire to verify that the documents at issue were available "at the click of a mouse," we enclose with this letter copies of the CDs produced in the fall of 2003 containing the documents at issue.

After the documents were produced, SCO requested that page breaks be electronically inserted on the CDs. IBM does not ordinarily produce documents with electronic page breaks, which are not necessary to review the content of the documents or to determine how the documents are maintained in the ordinary course of business. Although IBM was not required to make an electronic production at all, let alone one with electronic page breaks, we nevertheless agreed, as a courtesy to SCO, to accommodate SCO's request, and from that point forward our vendor has inserted electronic page breaks on the CDs. These could not be inserted on the CDs already produced, so those CDs were later re-created and then reproduced to SCO -- at its request. Mr. Normand now seeks to portray this courtesy as an admission of "improper" conduct.

Even if (contrary to fact) SCO could not have looked at the documents at the time they were produced, SCO could not justify its delay in seeking to assert the proposed claim. SCO failed even to raise the issue of amending the pleadings at the June 8, 2004, hearing on its prior motion to amend the scheduling order. At that time, SCO had spent more than three months with every single document it now cites (on CDs with electronic page breaks), and with all of the source code from which IBM's alleged infringement was, in SCO's words, "relatively easy to identify." Moreover, entirely independent of the documents attached to SCO's motion, the documents in its files and in the public record make clear that SCO has known for years that IBM included SVR4 code in AIX for Power, as we demonstrated at the April 21 hearing.

If I can be of any assistance or respond to any questions, please feel free to contact me.

Very truly yours,

SNELL & WILMER
[___signature___]
Todd M. Shaughnessy

TMS:dw
Enclosures
cc: Edward Normand
Brent Hatch
David Marriott

2


[Cravath, Waine & Moore LLP Letterhead]

March 4, 2004

SCO v. IBM: IBM v. SCO

Dear Debra:

I write in response your letters dated February 19 and February 27, 2004.

Let me first correct certain inaccuracies in your letters. IBM to date has produced 23 CDs containing documents. The first 18 of those CDs were provided by our vendor without any document breaks. After Mr. Heise of your office raised this problem with us in November 2003, we promptly instructed our vendor to include page breaks on all of the CDs -- CDs 19-23 -- produced after November 2003, and we will continue to produce CDs with page breaks.

With respect to the first 18 CDs of documents, our vendor informs us that it is possible to go back and add page breaks to those CDs. We will produce you revised CDs as soon as they become available from our vendor.

I appreciate your attention to my letter to Mark Heise dated February 19, 2004, but I still have yet to receive a response. Please let me know when SCO intends to produce the documents it assured IBM on February 4, 2004 it would be producing "expeditiously".

Sincerely,

[signature]

Christopher Kao

Debra Weiss Goodstone, Esq.
Boies, Schiller & Flexner LLP
[address]

Exhibit 1

3


IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

CENTRAL DIVISION

THE S.C.O. GROUP, INC.,

a Delaware corporation,

Plaintiff,

vs.

INTERNATIONAL BUSINESS

MACHINES, a New York

corporation,

Defendant.

CASE NO. 03-CV-294DK

____________________

BEFORE THE HONORABLE BROOKE C. WELLS

February 6, 2004

Motion Hearing

1

Exhibit 2

4

There is that New York Times article that was attached to our reply memo, it identifies and there was a ten page report that he and Mr. Wladawsky-Berger and a couple of others put together in deciding whether I.B.M. should shift gears and go to Linux. We don't have that ten page report and it is a critical document. Those are the things that we have asked for. We have had specific conversations with Christine Arena at Cravath asking specifically for Mr. Palmisano stuff, for Mr. Wladawsky-Berger, Paul Horn, Nick Bowen, those peoples' information. We have not gotten it.

Throughout these they have not provided the contact information so that we would not be able to locate these people, and that is just clearly information that needs to be put in there.

The final point is more of a housekeeping matter, and that is in the production that we have received to date, we will get a C.D. and it will say there are two documents on it. The two documents will be 4,000 pages long. Clearly that is not the case. When S.C.O. has been producing C.D.'s it has identified where each document begins and ends. We have asked them, you have to identify where the documents begin and end. Put a source log with the C.D. Otherwise it is impossible to know how these documents were kept in the ordinary course of business as is required under Rule 34(b).

Certainly on some documents you can figure it out

26

5

and match it up and see where it begins and ends, but we can't be left to the guessing game. It is a technical issue but it is something that can presumably be corrected, and it certainly needs to be done on a going forward basis.

That is the gist of our motion to compel, Your Honor. I appreciate your time this morning.

THE COURT: Thank you.

Mr. Marriott.

MR MARRIOTT: Thank you, Your Honor.

The S.C.O. Group propounded 57 document requests and/or interrogatories, Your Honor. 52 document requests and there were five interrogatories. S.C.O.'s motion to compel concerns only six of those requests, three document requests and three interrogatories. The requests, Your Honor, break down into roughly four categories. There are, I would submit really, only two issues that deserve argument, that is argument as to two categories of the four. That is because if Your Honor looks at our opposition to their motion to compel, I think in part this is a motion that makes much ado about nothing, because we either have indicated that we will provide or have provided much of the information requested.

For example, Mr. Heise makes reference to desiring to know the identity of the people who have contributed in some way to A.I.X. or Dynix. Well, there is provided as as exhibit to our response, Your Honor, a list of about 8,000

27

6


[BOIES, SCHILLER & FLEXNER LLP Letterhead]

February 19, 2004

Via Facsimile and U.S. Mail

Christopher Kao
Cravath Swaine & Moore LLP
[address]

Re: The SCO Group v. IBM

Dear Mr. Kao:

As you are likely aware, the CDs produced by IBM fail to contain any document breaks. This has resulted in one CD, for example, containing just one "document" of multiple thousands of pages when in reality, it may contain 3,000 documents of less than 2 pages each.

As previously requested and as addressed at the hearing before Judge Wells on February 6, 2004, we must have corrected production from IBM so that we may accurately determine where any given document begins and ends. This failure by IBM to produce the documents in the manner they are maintained in the ordinary course of business obviously hinders our ability to review these documents and is contrary to the Federal Rules.

Please provide us with corrected CDs reflecting accurate document breaks at our earliest opportunity and please ensure that all future production CDs reflect appropriate document breaks.

I would appreciate hearing back from you with the anticipated date of delivery.

Sincerely,

[___signature___]
Debra Weiss Goodstone

cc: Mark J. Heise
Brent O. Hatch

Exhibit 3

7


[BOIES, SCHILLER & FLEXNER LLP Letterhead]

February 27, 2004

Via Facsimile and U.S. Mail

Christopher Kao
Cravath Swaine & Moore LLP
[address]

Re: The SCO Group v. IBM

Dear Christopher:

We are in receipt of your letter dated February 19, 2004 addressed to Mark Heise.

We are reviewing your issues and preparing a response.

In the meanwhile, when will we be receiving IBM's corrected CDs which were previously produced withour any document breaks. As we have stated repeatedly, we cannot proceed with our electronic document review in the absence of corrected CDs.

Please advise.

Very sincerely,

[____signature____]
Debra Weiss Goodstone

cc: Mark J. Heise
Brent O. Hatch

Exhibit 4

8


[Cravath, Swaine & Moore LLP Letterhead]

March 10, 2004

SCO v. IBM; IBM v. SCO

Dear Debra:

To the extent my March 4, 2004 letter to you was imprecise, let me clarify. We have been producing CDs containing document breaks to SCO since Mark Heise of your office first raised the issue with us in November 2003, and will continue to do so going forward.

Enclosed with this letter are replacements for CDs 1-18 containing document break information. Please note that these disks contain documents stamped "Confidential" pursuant to the Protective Order in this case.

Please feel free to call me if you have any questions.

Very truly yours,

[___signature____]

Christopher Kao

Debra Weiss Goodstone, Esq.
Boies, Schiller & Flexner LLP
[address]

Encls.

BY FAX AND FEDERAL EXPRESS

Exhibit 5

9



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