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SCO's Just in Case Motion to Compel - as text
Saturday, September 10 2005 @ 12:14 PM EDT

Here's SCO's new Motion to Compel [PDF], as text, thanks to the tireless Steve Martin.

What they are arguing over now is exactly what the court ordered IBM to turn over with respect to Linux contributions. SCO argued and eventually got all development history for AIX and Dynix, including all nonreleased materials, and now they want the same for Linux. The rest is SCO pretending that the court already so ordered. It's by far my favorite SCO performance, because it is quintessential SCO.

SCO interprets the order in its own unique way: they want more. That is the short version. The longer version goes like this: IBM was told to turn over the programmers' notes, white papers, design documents, comments and notes for 3,000 individuals who contributed to AIX and Dynix. IBM, in its Motion for Reconsideration, asked Judge Wells to defer the bulk of that until SCO had a chance to review all that it had and would be given in a smaller sample. The Judge agreed and ordered IBM to turn over such information only for 100 of the individuals who made the most important contributions. IBM was also told to turn over all nonpublic Linux contribution information.

Now, SCO is arguing that Judge Wells must have meant that IBM is to turn over all programmers' notes, white papers, etc. for Linux too, public and private. Since IBM doesn't agree that they are supposed to turn such materials over to SCO under the order, SCO tells the judge that they are withholding:

IBM has withheld the development history of Linux contributions, including such documents (which the Court has already held discoverable) as programmer's notes, design documents, white papers, and iterations, revisions, and interim versions of those contributions.

Um. What? Let's take another look at exactly what the Judge Wells ordered, so you can follow this incredible argument.

Here's what Judge Wells' April 19, 2005 Order told IBM to produce, and I've set it off in colored text so it is clear where it begins and ends:

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 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 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 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.

As you can see, they were not ordered to produce what SCO is now claiming that they haven't produced. However, in the Memorandum in support of this Motion, SCO argues like this:

In those Orders, pointing to the fundamental importance of the programming history of the code ultimately copied into Linux, the Court ordered IBM to produce all of its Linux-development information, including the code of IBM's AIX and Dynix operating systems and their development histories. Id.

Yet IBM has construed the Court's Orders to cover programming-history information only for AIX and Dynix -- not Linux.

That's how it reads to me too, actually, that they were ordered to turn over development history for AIX and Dynix. They were also ordered to turn over Linux nonpublic information, and the judge even explained what she meant by that. Did she list development information? No. No, she didn't. She lists nonpublic code and the names and contact information of specific developers that made the contributions.

SCO tries to wriggle around that problem like this, in footnote one of the Memorandum:

The January 18 Order to produce all versions of AIX and Dynix code only highlights the flaw in IBM's argument. AIX and Dynix are themselves relevant to this litigation because they are stages in the development of Linux code. By ordering IBM to produce "all versions and changes to AIX and Dynix," January 18 Order at 9-10, the Court essentially ordered IBM to produce the development history for these interim stages in the development of Linux. If the Court saw fit to order that level of development information, then it certainly follows that the Court's Orders cover programming histories for the most proximate states in Linux development.

No, it doesn't. SCO would like it to be so. When lawyers write that a court "essentially" ordered something, it means it didn't exactly order it.

SCO earlier argued, in its opposition to IBM's Motion for Reconsideration, that IBM was trying to limit its obligations, and SCO explained why it wanted what it wanted:

In many instances there may well have been a development process -- including one conducted by IBM or Sequent programmers immersed in SCO's proprietary UNIX -- between the selection of AIX or Dynix material for Linux and the actual contributions to Linux. SCO requires access to that development history (including both code and related documentation) for exactly the same reason this Court has held that SCO needed access to the material evidencing the developers and development process of Dynix and AIX themselves.

The judge, however, didn't order IBM to produce what SCO asked for. SCO says she must have meant to. And even if she didn't, they'd like to press for it now.

Hint to SCO: go to www.kernel.org and you will find what you are looking for.

Oh, and they'd like IBM sanctioned, of course, for not interpreting things the way SCO does.

SCO may get more discovery, such as programmers' notes blah blah for nonpublic Linux contributions, just because the rules of discovery favor them, but if they get sanctions, I'll be simply amazed. They are very bold, these lawyers, kind of like door-to-door salesmen who put their foot in the door so you can't slam it on them.

What is the bottom line? That it doesn't matter at all, except to IBM, who is footing the bill. There is nothing hidden about Linux. SCO can dig until they hit China, and they'll never find their pot of gold. SCO is so used to proprietary methods of software development, it imagines that there just has to be more nonpublic materials than what IBM has turned over. All there is that is nonpublic might be a patch that wasn't accepted into Linux. Is IBM accused of infringement for patches that aren't even *in* Linux? Or for patches that were accepted and distributed? If you, correctly, answer the latter, what difference does nonpublic information make? I know. SCO has this ladder theory, but for it to matter, they have to show some infringement. Two years and counting, and so far, zilch. Oh, and you have to actually own a copyright or two. And be able to prove it.

The parties don't agree as to what the court has ordered turned over in discovery, in other words. IBM says it was ordered to turn over only Linux materials that are not already public. Pretty much everything they ever did is publicly available information, and SCO can do the work themselves, collecting everything. As for nonpublic contributions, IBM says they have done so and are in full compliance. SCO wants more and also thinks IBM has more than they have turned over. IBM has asked them to be specific as to what they want, and SCO's reaction is given in the footnote, which reads in part like this:

In light of the impending fact-discovery deadline, SCO has also served IBM with SCO's Seventh Request for Production of Documents, which seeks in extremely specific language the same Linux-development information at issue in this Motion. While SCO has served the request out of an abundance of caution, SCO believes (as explained in this brief) that the materials at issue have already been requested by SCO and ordered by the Court.

So rather than wait for IBM to respond to the discovery request, SCO claims they are withholding. Neat trick. A kind of time travel to the future.

Naturally, SCO isn't positive that its interpretation of what IBM is ordered to turn over is going to fly. Therefore, they have sent IBM the Request for Production of Documents, to cover their backs, and meanwhile, they filed this Motion asking for the very same things. Deadlines are looming, don't you know, and they haven't got a case yet, evidently, and after digging and digging, they have found no buried pot of gold. Now what? Give up and admit they have no case? While being paid millions? Ha!

No, they approach the court and rather than ask for more spoons to dig with, they instead claim that the court already so ordered more spoons. Oh, and just in case, they send a request to IBM for the same spoons they are asking the court to say the court already ordered IBM to turn over those very spoons.

Get it? Heaven forbid this discovery journey should ever end or that SCO should be straightforward. Of course, SCO portrays it as IBM withholding, based on their gut feeling that IBM just *must* have more to give.

I believe that is the theme of this entire litigation so far, that SCO would like IBM to give them something. Something green.

As you can see on Groklaw's IBM Timeline page, SCO has to tell the court by October 28, 2005 all allegedly misused material identified to date and to update interrogatory responses accordingly, and then the final deadline for the parties to identify any allegedly misused material is December 22. Time marches on.

One last thing. As I wrote yesterday, SCO told the court in the Memorandum that IBM had removed Linux contribution information from a certain website. On that basis, they asked that all contributions from that date onward be considered nonpublic. The gall of such a request is highlighted by one of the exhibits attached to this very motion, Exhibit 2, in which IBM's attorney writes to SCO in part like this:

Following up on our telephone call, this will confirm that any patches IBM contributed to Linux were and are publicly available. After the website www-124.ibm.com was taken down, any new contributions that would have been posted there were instead posted on other, project-specific (and publicly accessible) websites. Of course, all of IBM's Linux contributions are by nature publicly accessible, regardless of whether they were posted to an IBM website.

So, they know perfectly well that the material is still publicly available. Nevertheless, they pushed forward with their baseless request. See what I mean about quintessential SCO? I believe you can draw your own conclusions from this evidence without me saying another word.

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

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)
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 COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION

Defendant/Counterclaim Plaintiff.

PLAINTIFF'S RENEWED MOTION
TO COMPEL


(ORAL ARGUMENT REQUESTED)

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

1

Plaintiff The SCO Group, Inc. ("SCO") respectfully moves the Court pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure again to compel International Business Machines Corporation ("IBM") to produce certain Court-ordered discovery.

In blatant disregard of SCO's long-standing discovery requests and the Court's previous orders, IBM has withheld crucial Linux-contribution information.(1) In particular, and notwithstanding the Court's most recent order to produce "ALL non-public Linux contribution information," Order of April 19, 2005, at 5 (emphasis in original), IBM has withheld the development history of Linux contributions, including such documents (which the Court has already held discoverable) as programmer's notes, design documents, white papers, and iterations, revisions, and interim versions of those contributions.

The deficiency in IBM's production is obvious from the near-complete absence of documents concerning Linux-development work from IBM research "projects" publicly known to be platforms for staging submissions to Linux, as well as documents concerning IBM's development work for, with, or on behalf of third parties that have made submissions to Linux. Although IBM has acknowledged that SCO's interrogatories and production requests sought "all of its contributions and development work in Linux," IBM Opp. to SCO Motion to Compel (11/19/03) at 3 (underline added), IBM has produced almost nothing concerning that development work.

2

SCO respectfully asks this Court to compel IBM to immediately produce all non-public information concerning IBM's Linux-development work, including programmer's notes, design documents, white papers, and iterations, revisions, and interim versions of code contributed to Linux, with respect to all of IBM's Linux contributions to the present.

SCO's Motion is supported by the Memorandum in Support of Plaintiff's Renewed Motion to Compel submitted concurrently herewith.

SCO respectfully requests that the Court hear oral argument on this Motion.

DATED this 2nd day of September, 2005.

Respectfully submitted,

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

BOIES, SCHILLER & FLEXNER, L.L.P.
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By (signature of Brent Hatch)

Counsel for The SCO Group, Inc.


  1. SCO brings this motion after the Court's August 1, 2005 deadline for IBM to produce all required documents, and after having reviewed IBM's production to date at length for any Linux-contribution development information. In light of the impending fact-discovery deadline, SCO has also served IBM with SCO's Seventh Request for Production of Documents, which seeks in extremely specific language the same Linux-development information at issue in this Motion. While SCO has served the request out of an abundance of caution, SCO believes (as explained in this brief) that the materials at issue have already been requested by SCO and ordered by the Court.

    (Back to the main text)

3

CERTIFICATION OF COMPLIANCE WITH MEET AND CONFER OBLIGATIONS

SCO counsel has made a good-faith effort to reach an agreement with IBM counsel on the matters set forth in this Motion. In addition to SCO's numerous attempts to reach an agreement before filing its previous discovery motions, just days before the Court-imposed deadline for IBM's complete production, in response to a letter from SCO counsel Edward Normand regarding the insufficiency of IBM's production, IBM confirmed its view that it has produced all the "non-public Linux contribution information" it is obligated to produce. See Letter dated July 19, 2005 from T. Shaughnessy to B. Hatch, at 1 (Exh. 1). In addition, on August 22, 2005, counsel for SCO specifically informed counsel for IBM of SCO's view that IBM is obligated to produce the information sought herein and asked whether IBM would produce that information. In response, IBM eventually declined to produce the information, both in writing, see Letter dated August 30, 2005, from T. Shaughnessy to E. Normand (Exh. 2), and during a teleconference with counsel for SCO on September 1, 2005.

DATED this 2nd day of September, 2005.

Respectfully submitted,

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

BOIES, SCHILLER & FLEXNER, L.L.P.
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By (signature of Brent Hatch)

Counsel for The SCO Group, Inc.

4

CERTIFICATE OF SERVICE

I hereby certifies that a true and correct copy of the foregoing Plaintiff's Renewed Motion to Compel was served by U.S. mail or hand delivery on Defendant International Business Machines Corporation on the 6th day of September, 2005:

By U.S. Mail:

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

By Hand Delivery:

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

(signature)

5

EXHIBIT 1

6

(Snell & Wilmer letterhead)

July 19, 2005

VIA FACSIMILE AND U.S. MAIL

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

Re: SCO v. IBM; IBM v. SCO

Dear Brent:

I write in response to Ted Normand's July 14, 2005 letter to David Marriott.

First, Ted's concern that IBM has withheld pre-1991 AIX source code is unfounded. To the extent there is AIX source code in CMVC that was written prior to 1991 and maintained in CMVC, we have produced it. We have repeatedly searched for, but have been unable to find, any pre-1991 AIX source code or revision control information other than that which may be in CMVC. Please provide us with the basis for Ted's statement: "Our information is that IBM does possess the source code for all versions of AIX prior to 1991". If you have any specific information about where source code for versions of AIX prior to 1991 are located within IBM, let us know and we will follow up on it.

Second, with respect to IBM's Linux contributions, the Court expressly ruled in an Order dated March 3, 2004 (and reaffirmed in its April 19, 2005 Order) that IBM is not required to produce to SCO information concerning IBM's Linux contributions insofar as such information is publicly available. The Court only ordered IBM to produce "all non-public Linux contribution information". (April 19, 2005 Order at 5-6.) As detailed in Peter Ligh's July 5 letter to Ted, IBM has fully complied with that obligation.

The issues you raise under the headings of "Approximately 245,325 Missing Files", "Approximately 152,887 Un-Catalogued Files", and "Removal of CMVC Change-Log History" require more investigation and analysis. Because some of the people at IBM who were involved in preparing the CMVC data for production to SCO several months ago are currently on vacation, I am unable to provide a response to those issues at this time. We will provide you with responses to those issues as soon as we can.

7

Very truly yours,

(signature of Todd Shaugnessy)
Todd M. Shaughnessy

TMS:dw
cc: Edward Normand
David Marriott
Peter Ligh
Amy Sorenson

8

EXHIBIT 2

9

(Snell & Wilmer letterhead)

August 30, 2005

VIA FACSIMILE AND U.S. MAIL

Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Re: SCO v. IBM; IBM v. SCO

Dear Ted:

Following up on our telephone call, this will confirm that any patches IBM contributed to Linux were and are publicly available. After the website www-124.ibm.com was taken down, any new contributions that would have been posted there were instead posted on other, project-specific (and publicly accessible) websites. Of course, all of IBM's Linux contributions are by nature publicly accessible, regardless of whether they were posted to an IBM website. As far as the programmers notes and similar documents for all of IBM's Linux contributions, we objected to the only document request that arguably sought this information (Request No. 35) as overly- broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence, in large part because SCO refused to identify any particular Linux contribution for which it sought this type of information. Notwithstanding these objections, we have produced thousands of documents related to IBM's Linux contributions, including the types of documents you identify.

I trust this answers your questions. If not, please let me know. Thank you.

Very truly yours,

(signature of Todd Shaughnessy)
Todd M. Shaughnessy

TMS:dw
cc: Brent Hatch
David Marriott
Peter Ligh
Amy Sorenson

10


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