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IBM Responds to SCO's "Renewed" Motion to Compel and Files One of Its Own
Tuesday, September 27 2005 @ 11:58 PM EDT

IBM has filed four documents regarding discovery, a Memorandum in Opposition to SCO's Renewed Motion to Compel Discovery [PDF], plus a Declaration of Daniel Frye [PDF], co-founder and Vice President responsible for managing the Linux Technology Center at IBM, in support.

Mr. Frye takes on the task of helping Judge Wells to understand that Linux is not developed the way SCO mistakenly imagines it is, or pretends to imagine it is. He also explains how incredibly burdensome and expensive it would be for IBM if Judge Wells were to grant SCO's latest discovery request.

Then IBM has some discovery requests of its own, in a Motion to Compel Production of Documents on SCO's Privilege Log [PDF] and a Memorandum in Support [PDF] of the motion.

The preliminary statement in the opposition memorandum to SCO's "renewed" motion to compel tells the IBM side of the story:

Preliminary Statement

SCO asks the Court to require IBM to produce massive amounts of information about the development history of Linux under the pretext that IBM has thumbed its nose at a prior order of the Court compelling IBM to produce the documents SCO now seeks. Not only has the Court not required IBM to produce the information SCO seeks, it has ruled repeatedly that SCO is not entitled to it. Linux is an operating system that has been , and is being, developed in the public view. More than enough information about the history of its development has been available to SCO from the beginnning of the case. SCO's "renewed" motion to compel is just another attempt -- in a long line of attempts -- to create a false pretext for an extension of the schedule by seeking discovery that is irrelevant and unduly burdensome and would require many months, to produce. We respestfully submit that SCO's motion should be denied.

IBM goes on to argue the following points:

1. The court never ordered IBM to produce Linux development history, only nonpublic information, which IBM has produced already. IBM has a funny footnote 2, where it lists all 8 briefs SCO has filed in connection with prior discovery-related motions: a memorandum in support of its motion to compel, a reply memorandum in support of the motion to compel, a memorandum regarding discovery, a reply memorandum regarding discovery, a memorandum in support of its renewed motion to compel, a reply memorandum in support of its renewed motion to compel, a supplemental memorandum regarding discovery and a reply memorandum in further support of its supplemental memorandum regarding discovery, none of which, IBM says, "sought an order compelling IBM to produce the development history of IBM's Linux contributions." (This reminds me. I spent a couple of hours trying to find an IBM answer to one SCO motion to compel, #365, later filed in redacted form as #472. I simply don't see any response by IBM, unless #406 is it, although I see SCO referring to one. If anyone else can figure it out, please email me or leave a comment pointing me in the right direction. I just personally can't find IBM's response regarding the documents requested regarding the Linux strategy and the 30(b)(6) witnesses.)

2. Since the court never ordered any such production of Linux materials, there is no support for SCO's request for sanctions on the basis of IBM's alleged "continued and persistent refusal to provide such Court-ordered and plainly relevant information." Indeed, IBM states, "if anyone deserves sanctions, it is SCO -- for asking the Court to compel production of documents the Court has twice before ruled IBM need not produce."

3. It's late in discovery, and granting SCO's wish for all Linux development history might delay the litigation again.

4. IBM has repeatedly asked SCO -- and the court has ordered SCO -- to provide a detailed description of its Linux-related claims. SCO still hasn't done so. What Linux code does SCO assert rights to? Until SCO answers that question, and thus provides "an appropriate range for further discovery", IBM should not be forced to attempt to respond further to SCO's request.

5. What they are asking for is immaterial, unnecessary and irrelevant, given that SCO has unfettered access already and given the type of evidence it needs to prove its claims. Linus is developed in full public view. A wealth of information is available to SCO about the development of patches -- such as an email archive tracking the various patches submitted and the community's comments on such patches -- that is publicly available for the NUMA project, JFS, EVMS, RCU and AIO.

6. IBM has already turned over all nonpublic Linux materials. SCO has enough in hand now to fully assess the validity of its claims. It has AIX, Dynix, its own System V Unix, and IBM's actual contributions to Linux. It has yet to demonstrate the relevance of all the AIX and Dynix code to this case. And despite all the Linux information already produced to SCO, it has yet to comply with the Court's order to provide IBM with a more specific description of its claims or supplement its interrogatory responses or define the scope of permissable discovery.

7. Unlike AIX, there is no centralized repository for Linux development work at IBM. To do what SCO is now demanding would be a massively burdensome task for IBM.

8. The timing of this "renewed" motion suggests it is really about delay, and taking time to gather all that SCO now requests, just 4 months before discovery is supposed to be finished, would put the schedule in doubt.

IBM then brings its own Motion to Compel. What it wants is documents, hundreds of them. SCO is apparently claiming privilege on documents created "by and for third parties" AT&T, USL, Novell, and Santa Cruz Operation, including a Steve Sabbath communication regarding legal advice regarding the IBM contract negotiations. As you will remember, Sabbath was in-house counsel for Santa Cruz and later for Tarantella.

SCO can't claim privilege over documents created by or for lawyers who represented those other companies, IBM points out, with cases to support their assertion. The attorney-client privilege doesn't pass with assets, only with corporate control. This goes to the heart of who The SCO Group really is, and what it actually owns. SCO has long pretended to be Santa Cruz, but IBM at last explains the whole history to the court, and describes the transfer of assets, not ownership, that we at Groklaw know so well.

Significantly, in footnote 2 of its Memorandum in Support of its motion, IBM foreshadows more to come on this topic and references the Novell-SCO copyright dispute, saying "IBM reserves the right to challenge SCO's ownership claims over any and all UNIX assets, however, including the copyrights at issue in the Novell litigation." IBM also reserves the right to bring further motions. And as regards this motion, it asks the court to order SCO to turn over the documents to IBM.

So, dueling discovery motions. This is beginning to look like the good old days of furious motion practice, except better, because SCO is very much on the defensive now, and going down slow. And that is true no matter what the court orders in the way of discovery.

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