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To read comments to this article, go here
Exhibit 2 - Steve Mills' Deposition Excerpts - as text
Thursday, August 25 2005 @ 02:50 AM EDT

Here is Exibit 2 from document #496, SCO's Unsealed Exhibits to Reply Memo in Further Support of Renewed Motion to Compel Discovery [PDF] in SCO v. IBM. It's excerpts from the deposition of Steven Alan Mills.

Note that it begins on page 26 of the deposition, in mid question. And it skips a page.

What is the point of it all? SCO uses it to "prove" that there must have been more emails to and from Sam Palmisano about Linux than the few that IBM turned over to SCO. There may have been, and in fact, likely there were. But that doesn't mean they are still in existence. Corporations don't normally retain email for long periods of time. Why? Because some psycho company may sue you and try to find dirt even where there isn't any.

SCO certainly tries here. In SCO's newly redacted #481, Reply Memorandum in Further Support of Renewed Motion to Compel Discovery [PDF], on page 3, it says:

In the deposition of Mr. Wladawsky-Berger, for example, IBM's "Linux czar" admitted that he has sent and received emails that expressly concerned that subject matter. Mr. Wladawsky-Berger also admitted that he has corresponded via e-mail with IBM senior executive (now CEO) Samuel Palmisano. Mr. Wladawsky-Berger further testified that his assistant keeps his "e-mail files." . . . Similarly, in the deposition of IBM senior vice-president Steven Mills, Mr. Mills admitted that he has sent and received e-mails regarding Linux, and has sent and received e-mails from and to Mr. Palmisano and Mr. Wladawsky-Berger.

So does that mean that Mills sent emails *about Linux* to and from Palmisano or not? We're supposed to think so, but look a little closer at this "evidence". What Mills is asked is if he talks to Palmisano, and Mills says he does. Every week. Palmisano is his boss. Did he have occasion to exchange emails with him? Yes. Then the lawyer asks him if he has ever sent or received emails regarding Linux, and Mills says yes. But the lawyer didn't ask him if the emails were to or from Palmisano. Why not? You and I both know they almost certainly had to have asked that question, no? But it's not in this excerpt. Why not? If the lawyer never asked that question, I'd get a new lawyer, personally, but that's just me.

SCO chose this brief excerpt, and while their narrative is accurate as far as it goes, it appears to be intended to make us believe that the emails to and from Mills were Palmisano emails about Linux. Ergo, in the World According to SCO, there are missing emails. Ergo, IBM must be hiding them. I can't say, obviously, but this deposition doesn't, to me, prove it. For example, it doesn't tell us how long email is retained at IBM. And the key question is not included.

You know when you see exhibits like this? When you don't have the goods. When you *do* have the goods, you don't need to hint.

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


Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.

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

UNSEALED EXHIBITS TO SCO'S
REPLY MEMORANDUM IN
FURTHER SUPPORT OF RENEWED
MOTION TO COMPEL DISCOVERY
[Docket No. 409]

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells



1




EXHIBIT 2




2


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
------------------------------x

THE SCO GROUP, INC., a Delaware 
corporation,
           Plaintiff/Counterclaim Defendant,
           against     Civil No. 2:03CV-0294 DAK

INTERNATIONAL BUSINESS MACHINES 
CORPORATION, a New York 
corporation,
          Defendant/Counterclaim-Plaintiff
------------------------------x


                 CONFIDENTIAL

              STEVEN ALAN MILLS
             New York, New York
           Friday, January 7, 2005





Reported by: Steven Neil Cohen, RPR
Job No. 169043

3


Page 26

Mills - Confidential

your job?

A. Yes.

Q. You receive e-mails as part of your job?

A. Yes.

Q. Do you preserve the e-mails that you send?

A. I do not preserve them.

Q. Do you know if the e-mails that you send are being preserved?

A. I know IBM has an archiving process or system.

Q. Your understanding of that archiving process or system is that preserves e-mails?

A. Yes. There is a secretary in my office who takes care of that.

Q. The same holds true for e-mails that you receive?

A. It is all part of the same system.

Q. Have you spoken with anyone about the need for preserving e-mails?

A. No.


4


Page 28

the corporate staff heads as well.

Q. Do you speak with Samuel Palmisano?

A. Yes.

Q. Do you speak with Irving Wladawsky-Berger?

A. Yes.

Q. How often did you speak with Mr. Palmisano if you can estimate it?

A. He is my boss so I am pretty much talking to him every week.

Q. Every day?

A. No, not everyday.

Q. How about Mr. Wladawsky-Berger?

A. A few times a month perhaps; depends on what activities are taking place.

Q. Not as often as you speak with Mr. Palmisano?

A. Again, it would depend upon what is happening but generally, no.

Q. I take it you have had occasion to send e-mails to Mr. Palmisano?

A. Yes.

5


Page 29

Q. You have received e-mails from Mr. Palmisano?

A. Yes.

Q. The same holds true for Mr. Wladawsky-Berger?

A. Yes.

Q. You have had occasion during your tenure at IBM to send e-mails regarding Linux?

A. Yes.

Q. You have received e-mails regarding Linux?

A. Yes.

Q. Another very general question but what kind of documents do you review in your current capacity?

A. Tremendous variability; people prepare presentations. Most things are generally done in presentations form as opposed to paper form.

Q. What is the distinction between presentation form and paperwork?

A. Graphical charts, pictures rather than prose.

6


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