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Declaration by Todd M. Shaughnessy in Support of IBM's Opposition to SCO's "Renewed" Motion to Compel, as text
Sunday, October 02 2005 @ 03:47 AM EDT

There are two more IBM filings in the discovery war between IBM and SCO, one defensive and one offensive. IBM filed a Declaration of Todd M. Shaughnessy in Support of IBM's Opposition to SCO's Renewed Motion to Compel [PDF] (IBM's Memorandum in Opposition to SCO's Renewed Motion to Compel, which the Shaughnessy Declaration supports, is here [PDF]).

IBM also filed a Declaration of Amy Sorenson in Support of IBM's Motion to Compel Production of Documents on SCO's Privilege Log [PDF]. That's the motion where IBM goes on the offensive in discovery, as I explained in this article. (IBM's Motion to Compel Production of Documents on SCO's Privilege Log is here [PDF].)

Both declarations are interesting documents, with exhibits galore. (One attachment to an exhibit to the Shaughnessy Declaration is sealed, because it contains "personal identifying information".) But the Shaughnessy materials are especially fascinating, so I did that Declaration as text first. We get to see Boies Schiller in action in a particularly revealing fashion.

Before I get to the details of that, the news from the Shaughnessy Declaration is that it turns out that there aren't 3,000 individuals who have made contributions and changes to AIX and Dynix. There are only 2,704. So the broad-stroke expansiveness of Judge Wells' original Order turns out to be limited by reality, if nothing else. IBM explains:

As IBM previously noted in response to SCO's Interrogatory 5, the list of 7,200 individuals who have or have had access to AIX or Dynix source code are the people who work or worked on developing AIX and Dynix. Not all of these individuals, however, have made contributions or changes to AIX or Dynix source code; for example, a development supervisor may have access to CMVC or RCS, but may have never personally made any changes to the code.

You will perhaps want to have SCO's Memorandum in Support of its "Renewed" Motion to Compel handy, to compare what they say with what IBM says. They'll be arguing about the issues raised in these documents at the October 7th hearing. Note that they've changed the room where the hearing will be held.

Here are the two relevant Pacer entries:

09/26/2005 - *520 - **SEALED DOCUMENT** Attachment E to Exhibit 2 re 518 Declaration of Todd M. Shaughnessy in Support of IBM's Opposition to SCO's Renewed Motion to Compel filed by Defendant International Business Machines Corporation. (ce, ) (Entered: 09/29/2005)

09/30/2005 - *521 - SECOND AMENDED NOTICE OF HEARING ON MOTION re: 365 Renewed Motion by SCO Group to Compel Discovery, 503 MOTION to Compel discovery, 508 MOTION for Discovery: Motion Hearing remains set for 10/7/2005 at 10:00 AM before Magistrate Judge Brooke C. Wells, however, it will be heard in Courtroom 220. (jwd, ) (Entered: 09/30/2005)

Shaughnessy reports to the court that IBM has turned over to SCO all the AIX and Dynix materials it was supposed to that it could find, and he explains in detail what exactly IBM turned over and what steps it took to try to find everything, and he spells out for Judge Wells just how onerous her order turned out to be:

5. Complying with the Court's Order involved more than 4,700 hours of work from more than 400 IBM employees. This does not include the time spent by IBM's counsel and consultants on this project, which was likewise considerable. IBM produced a total of more than 80 GB of source code and other electronic data to SCO, and more than 900,000 pages of paper (which were scanned and produced in electronic form on CDs).

Can you imagine the expense? Of course that isn't enough to satisfy SCO, particularly because there is no AIX code in the database prior to 1991, as it turns out, which I suppose messes up SCO's ladder sequence. We and IBM know SCO will never be satisfied anyhow, as long as delay is the object. But hopefully Judge Wells will see the effort and cost she caused IBM to sustain and will blanch at the thought of ordering more. She is being asked to order IBM to turn over more now. SCO wants IBM now to go on a gathering expedition for Linux materials, and IBM has replied that it wasn't ordered to turn over publicly available Linux materials, so it declines. No doubt one purpose of the Shaughnessy declaration is to let the judge know that discovery is supposed to stay in the reasonableness ballpark.

SCO makes much of what it describes as "Missing Files". I suspect the nonsensical demand for "missing" files, files that SCO already knows are not missing, since IBM explains each item to SCO in letters to them, attached as exhibits here, reflects SCO's awareness that they are soon required to finally tell IBM what Linux files are at issue. They've tried before, but nothing impressed the court or anyone else, so they are likely in a bit of a sweat.

What to do? What to do? I can imagine them brainstorming: How about asking for more discovery? That's good for delay. Judge Wells is good for that, I imagine them saying. And then they chortle at the possibilities: they can tell the court that IBM is "foot-dragging" (which is what they call it when IBM doesn't roll over and give in to SCO's increasing demands) and that makes it impossible to meet the schedule. Then they can once again plead with the court for more time, a new schedule, a new trial date.

I'm just imagining, of course, but is it hard to imagine, given the history of this case? Even Linus is wondering why it is taking so long, according to the latest interview in Business Week. It's the same old SCO Delay Tango, and as long as Judge Wells goes along with their dance, they will keep it up, I suppose.

Of course, SCO can't send a letter to IBM without an implied threat and some chest beating. Check out the July 14, 2005 letter from Ted Normand of Boies Schiller to David Marriott, Exhibit 3:

Our information is that IBM does possess the source code for all versions of AIX prior to 1991.

Oooh. Scarey. IBM didn't fall for it, though, cooly replying in essence in their July 19, 2005 letter, Exhibit 4, Really? So where is it? If you tell us, we'll gladly follow up. Of course, there was no X-marks-the-spot from SCO in response, which tells me that it was likely a bluff. In that same letter, Boies Schiller, after asking for the "Missing Files," asks IBM for the following:

We also request that you produce the log history showing the "contents" of the source files and programmer's notes that IBM removed from the CMVC/AIX Production so that we may verify the extent to which AIX-related files may have been removed. The Court ordered IBM to produce "ALL AIX information" on CMVC, January 18 Order at 10; our request for the log is a logical and appropriate extension of IBM's discovery obligation.

Emphasis by me. An "extension" to a discovery obligation means IBM isn't obligated at all. It's just Boies Schiller that sees a way to ask for more, by calling it a "logical extension" of what IBM actually is obligated to do. See what I mean about the Boies Schiller style? They ask for something. IBM says it doesn't have to provide it. Then SCO tells the court that IBM is "withholding." Then, if the court is sufficiently bamboozled (and discovery is very liberal, anyway, as far as what a plaintiff can ask for), and goes along with the SCO demand, then IBM turns it over. Then SCO sees an "extension" it would like, and it asks IBM to give it to them, and IBM says, the order didn't say I have to. So SCO whines to the court that IBM is "withholding" this "logical extension" that the court must have meant to order. They sometimes claim the court did order it. If they get what they asked for, they ask for some more, another inch. Well. They start asking for a mile, actually, but they *intend* to get the inch. Then when they get the inch, they ask for the next "extension". At each incremental step, they tell the court that IBM is foot-dragging, because it doesn't just hand over the materials that SCO unilaterally feels are "logical" next "extensions". What does logic have to do with it? Nothing. An order is an order to everyone but SCO. Extension means more. More than what was ordered. If the court doesn't put a stop to this, SCO will never have enough and the game will continue, because that is what it is, a game, and touchdown is delay. Even describing the game is convoluted and takes a lot of time. Watching it play out is excruciating.

Get a load of what else SCO asks for:

Removal of CMVC Change-Log History

Upon exit of any command-line shell in AIX, the system apparently retains an annotated history of commands run by the user. We have reviewed the user history archive of the copy of AIX produced in the CMVC/AIX Production and have identified (among others) the following commands that IBM appears to have run in preparing the CMVC/AIX Production:

  • rm bash_history. This command removes the history of past events. Such history is useful for repeating past commands. We request that you promptly produce all shell history resulting from your preparation of the CMVC/AIX Production so that we may identify more precisely the acts taken to prepare the CMVC database for production. This request includes the bash_history for all root users as well as all administrators.

  • rm log. This command removes the log file. The log demonstrates a proper history of commands run against the operating system. We request that you promptly produce all log files related to your preparation of the CMVC/AIX Production so that we may identify more precisely the acts taken to prepare the CMVC database for production. This request includes the file log for all root users as well as all administrators.

Now, I'm not a programmer, so whenever things like this come up, I ask my tech experts to explain things to me, to make sure I get it right. So I asked them if SCO was asking for something ridiculous, or had they "caught" IBM doing something underhanded. Here's two of the replies:

1. Dr Stupid:
There are all sorts of reasons one might want to remove the history.

"bash_history" is a history of all the commands -- not just the CMVC commands -- typed by the operator of the machine. Thus it could easily contain sensitive information about internal IBM account names, machine names, etc. IBM almost certainly will have a *policy* to delete such histories from *any* machine leaving the company.

As a slightly frivolous example, the sort of thing you might find in a bash_history file would be:

cd secret_projects
vi merger_with_sun_proposal.txt
pgp merger_with_sun_proposal.txt
mail scott@sun.com merger_with_sun_proposal.pgp

Ditto the "log" file.

So there are good procedural reasons why IBM might *routinely*, not just for this litigation, remove such files. I know we do similar things where I work.

In addition, of course, I can't see how those log files are responsive to the discovery SCO has been awarded. They don't contain any information about the history of AIX, for instance.

SCO may be trying to allege that IBM has "fiddled" the database, but the production of the logs wouldn't resolve that. If IBM had bothered to "fiddle" the CMVC database, then producing "fiddled" log files would be child's play, so SCO could just allege "IBM fiddled the log files too!"

It smells of more delay, delay, delay...

2. A second adviser's reply:

SCO's request is not relevant to the contents of CMVC, and I'm quite certain that IBM would have a policy to delete these files. I delete such files myself when preparing an account or machine for someone else.

Also, it deals with the precise method used to create the discovery, not the contents of discovery themselves.

To me, it's as if SCO is telling IBM they want to know "the precise routes taken by all engineers on their way to work." It's clearly not relevant to the jobs they perform as engineers, and there are good reasons not to produce such information. What if Engineer #1 stopped to pick up a surprise gift for his wife before work? What if Engineer #2 passed by an AutoZone on the way home from work? (Clearly, she's engaged in a conspiracy...).

As you can see, I get a lot of laughs behind the scenes. No one I know who understands the tech takes SCO seriously. That has been true for a long time. This "request" by SCO is no exception. IBM answers SCO in the August 8, 2005 letter, Exhibit 5:

Third, with respect to Ted's request that IBM produce all shell histories and log files related to our preparation of the CMVC server for production, IBM does not have a comprehensive collection of the shell histories and log files. In any case, IBM is not obligated to produce such information, nor was it ordered by the Court to do so.

We'll find out at the hearing if SCO accepts that answer or wishes to soldier on. There is so much redacted from their memorandum in support of their motion, it's not possible to know until the hearing. Want to bet they bring it up again at the hearing? I think they count on it that Wells is not a geek.

So then, the real question has to be, are Boies Schiller clueless about the tech, or knowledgeable but playing a cynical game? That, of course, is a question for the court to finally figure out. But this request is silly, or worse, because SCO appears to be alleging an offense, based on thin air. As you can see, both my tech experts, without knowing what the other would write, said exactly the same thing. It's *normal* to remove what IBM removed. There are good reasons why it's normal. And IBM was never ordered to provide that information anyway. But SCO seems to enjoy portraying everything IBM says and does in a negative light. If you wonder why this case drags on and on, that is why.

IBM has to answer each and every issue, which is the reason why I hope that at the end of the litigation IBM is awarded legal fees, to teach SCO a lesson. At this point, SCO losing, which is what I expect will happen, doesn't seem like enough, does it? Some folks are so lacking in empathy, nothing turns on the light for them but to experience themselves what they inflict on others.

So, the tech claim is off the wall. But those of us who understand the law take SCO's machinations a bit more seriously, because Boies Schiller are not stupid, unless, perhaps, you accept the scriptural definition of stupid. And that makes it worse, really. It's better, in my eyes, to lack the ability to comprehend the tech than to cynically pretend to believe something that no one who gets the tech *could* possibly believe. Which is it here?

I know what it feels like to be falsely accused. It makes your blood boil with righteous indignation. An ethical individual wouldn't do it to their worst enemy, not to win a lawsuit, not for anything. And to watch IBM accused like this, again and again and again, over minutia, things that don't even matter to the litigation even if they were true, apparently just to sully the company's name in public, to try to get them to settle I suppose, as I see it . . . well, it's a horrible tableau. I read once that under the Mosaic Law, one of the laws was that if you falsely accused someone, your punishment was whatever you had tried to make happen to the victim by your false accusation. That's where the eye for an eye phrase comes from. It is sounding mighty good to me right about now.

I always admired David Boies' skill, as you know, those of you who have been with Groklaw from the beginning, and it's been quite painful to watch this lawsuit progress. I got so upset with him that at one point I took down the first article on Groklaw, which included honest-hearted praise of Boies. Then later, I thought I had been silly, and I restored the article. I lost the comments on that article that way, which tells you I don't always get the tech either, but you'll understand my pain if you measure where I am now from where I started. I kept hoping that he got suckered into it, and then was stuck. But I'm afraid not even I can make myself believe that any more. I chose the SCO litigation to cover originally in part because I thought we'd get to see some wonderful lawyering, and I looked forward to sharing my love of the law with you. I'm afraid it hasn't worked out that way, though, has it? Instead, we've watched posturing, delay tactics, and a case that charitably can best be described, as one lawyer did a while back, like this:

"The IBM case now stands for procedural purity, where SCO is given every chance to prove its case, which by now seems clearly to have no merit." -- Thomas Carey, chairman of the business practice group at Boston-based law firm Bromberg & Sunstein LLP.

In short, he was saying the same thing Linus is saying, and you are too -- I know from my email -- that it shouldn't be taking this long. And the saddest part is, I doubt that Boies Schiller understand why we don't admire them for it. Of course, it's really up to the court to set the pace. Lawyers rarely rein themselves in, in my experience. Particularly litigators. They'll just argue and argue, until you make them stop.

One last thing: Part of the 98-page PDF is an exhibit which is the transcript of the December 2003 hearing before Judge Wells. Because we transcribed it back then, instead of doing it again, I placed a link at the appropriate place.

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

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, fax]

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
OPPOSITION TO SCO'S RENEWED
MOTION TO COMPEL

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

1

I, Todd M. Shaughnessy, declare as follows:

1. I represent Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") in the lawsuit brought by The SCO Group, Inc. ("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 IBM's Opposition to SCO's Renewed Motion to Compel.

2. Attached hereto are true and correct copies of the following documents:

(a) Exhibit 1 is the Declaration of Todd M. Shaughnessy dated May 3, 2005.

(b) Exhibit 2 is a faxed letter from Peter Ligh to Ted Normand, dated July 5, 2005. Attachment E to Exhibit 2 contains personal identifying information and is therefore being filed separately under seal.

(c) Exhibit 3 is a letter from Edward Normand to David Marriott, dated July 14, 2005.

(d) Exhibit 4 is a letter from Todd M. Shaughnessy to Brent O. Hatch, dated July 19, 2005.

(e) Exhibit 5 is a letter from Todd M. Shaughnessy to Brent O. Hatch, dated August 8, 2005.

(g) Exhibit 6 is the transcript of the December 5, 2003 hearing before Magistrate Judge Wells.

(h) Exhibit 7 is IBM's Second Set of Interrogatories and Second Request for the Production of Documents, dated September 16, 2003.

2

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

Executed: September 26, 2005.

Salt Lake City, Utah

___[signature]___

Todd M. Shaughnessy

3

CERTIFICATE OF SERVICE

I hereby certify that on the 26th day of September, 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.
[address]

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

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

___[address]____

Amy F. Sorenson

4

EXHIBIT 1

5

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, fax]

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

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

6

I, Todd M. Shaughnessy, declare as follows:

1. I represent International Business Machines Corporation ("IBM") in the above-entitled action brought by The SCO Group, Inc. ("SCO"). This declaration is submitted pursuant to the Court's January 18, 2005 Order Concerning SCO's Renewed Motion to Compel (the "Order").

2. The Court ordered IBM to produce CMVC and RCS data relating to IBM's AIX and Dynix operating systems, including "all versions and changes to AIX and Dynix" (Order at 9-10), and to produce information regarding the 3,000 AIX and Dynix developers who "made the most contributions and changes to the development of AIX and Dynix". (Order at 16.) With respect to the source code produced from CMVC and RCS, the Court ordered IBM to submit an affidavit "specifying the efforts it took to deliver the code from the CMVC and RCS systems". (Order at 10.) With respect to information about the 3,000 AIX and Dynix programmers who "made the most contributions and changes to the development of AIX and Dynix" the Court ordered IBM to submit an affidavit "detailing the process by which the 3,000 were chosen". (Order at 17.)

3. As described in more detail below, IBM has complied with the Court's Order, and has produced all responsive, non-privileged information located after an extensive search. As ordered by the Court, IBM produced from CMVC and from RCS all source code relating to the AIX and Dynix operating systems, including all versions and changes to the code. IBM also produced from CMVC and RCS all documentation related to the AIX and Dynix operating systems, including all programmer's notes, design documents, and white papers. IBM identified all the individuals who created or made changes to AIX or Dynix source code, as recorded by CMVC and RCS, prepared a list of those individuals, together with their login identifiers and contact information (for every person for whom IBM had that information), and provided that

7

list to counsel for SCO on May 3, 2005. As explained below, the number of individuals who contributed source code to AIX and Dynix (as recorded by CMVC and RCS) is less than 3,000; therefore, the individuals identified for SCO constitute all of the individuals that are identified in CMVC and RCS as having made changes to AIX or Dynix. IBM has produced, in the form of CMVC and RCS data, information that shows what changes to the source code were specifically made by each of these individuals. As provided for by the Court in its April 20, 2005 Order Concerning IBM's Motion for Reconsideration, IBM has not searched for and through the files of 3,000 individuals. In accordance with that April 20 Order, IBM will produce, by July 19, 2005, documents from the files of the 100 individuals who made the most contributions and changes to AIX and Dynix source code.

4. IBM also undertook a reasonable search for programmer's notes, design documents, white papers and source code related to the AIX and Dynix operating systems that are not stored in CMVC or RCS and has completed its production of these documents to SCO.

5. Complying with the Court's Order involved more than 4,700 hours of work from more than 400 IBM employees. This does not include the time spent by IBM's counsel and consultants on this project, which was likewise considerable. IBM produced a total of more than 80 GB of source code and other electronic data to SCO, and more than 900,000 pages of paper (which were scanned and produced in electronic form on CDs). 6. Section I describes the steps IBM took to produce AIX source code, documentation (including programmer's notes, design documents, and white papers), and other information related to the AIX operating system from IBM's CMVC system. Section II describes the steps IBM took to produce Dynix source code, documentation (including programmer's notes, design documents, and white papers), and other information related to the Dynix operating system from IBM's RCS system. Section III describes the steps IBM took to

8

search for, collect, and produce AIX source code, programmer's notes, design documents, and white papers outside of IBM's CMVC system. Section IV describes the steps IBM took to search for, collect, and produce Dynix source code, programmer's notes, design documents, and white papers outside of IBM's RCS system. Section V describes IBM's production of information concerning each of the individuals who made changes to AIX or Dynix, including the names and contact information for these individuals, and what changes each individual specifically made.

I. Production of AIX Code and Documents from CMVC

7. CMVC is the source code revision system currently used by IBM's AIX development organization. CMVC has been used in AIX development since 1991. Other than the AIX source code stored in CMVC, IBM does not maintain revision control information for AIX prior to 1991. CMVC does not contain any source code or other information for the Dynix operating system.

8. CMVC provides shared access to source files used in the development of the AIX operating system, allows IBM to keep track of changes that are made to source code files, and ensures that the files are available for viewing or updating only by those with the proper authorization.

9. In accordance with the Court's January 18, 2005 Order, IBM identified and extracted from CMVC all of the source code, documentation, and other information related to the AIX operating system, built an AIX server loaded with the appropriate version of CMVC along with the source code and documentation related to the AIX operating system, tested the system to ensure it was functional, and delivered and installed the server to allow access by SCO.

10. The server contained a fully functional version of the CMVC tool, one hundred percent (100%) of the source code in CMVC that is part of or related to AIX (including the

9

operating system itself, development tools, documentation, and test programs) and one hundred percent (100%) of the documentation in CMVC that is related to AIX, including programmer's notes and design documents. One CMVC design document was redacted to protect attorney-client privileged information. After redaction, IBM was unable to restore the document into the database in electronic form. IBM produced the redacted version of the document along with the CMVC server. The code and documentation that IBM produced from CMVC represent more than 62 GB of data.

11. The particular CMVC server at IBM that contains source code and information related to AIX also contains a large amount of source code and material that is neither part of, nor related to, AIX. IBM did not produce source code or material in CMVC for components that are unrelated to AIX or its code, internal design, or methods. IBM excluded components containing design, manufacturing, and test information specific to IBM hardware products, such as hardware system designs, hardware test exercisers and other hardware test programs, and hardware manufacturing-related components. IBM also excluded firmware source code (machine-level code, distinct from the operating system, that is embedded into a computer hardware device or placed on a computer system to function at a level below the computer's operating system) and other software programs that are distinct from the operating system, such as middleware (software that provides support functions for software applications, such as application-to-application exchange of data, data storage management, and other services) and other applications.

12. The source code that is part of or related to the AIX operating system is not segregated in a single location within CMVC, but rather is commingled with hundreds of thousands of other source code files that are not part of or related to the AIX operating system. A thorough review of the contents of the CMVC system was undertaken to determine which of

10

the thousands of separate "components" within CMVC are part of or related to the AIX operating system.

13. A script -- a small computer program -- was written and executed to map each of the responsive components to the specific source code file names within CMVC. Using the list of file names and identifiers that had been generated, IBM then matched those file names and identifiers to corresponding Source Code Control System ("SCCS") files. These SCCS files are the files maintained by IBM that provide the file development history since 1991 (or the inception of the file) for the particular corresponding source code file in the AIX operating system or related source code. These SCCS files were produced by IBM and allow SCO to reconstruct every version and iteration of AIX since 1991.

14. After all of the source code components for the AIX operating system were identified, the non-source code materials in CMVC that are related to the AIX operating system source code were similarly identified. This included programmer's notes, design documents, and data about version control, users, and change histories.

15. CMVC programmer's notes reflect developer commentary concerning defects and enhancements to AIX, and sometimes contain confidential information from IBM's customers and vendors, or information covered by the attorney-client or work product privileges. If a CMVC programmer's note contained third-party confidential information, the name of the third party (or other information that would identify the third party) was redacted from the copy of the programmer's note to be produced to SCO. Reviewers also redacted privileged information from the copy of the note to be produced to SCO. All redacted information was marked with an appropriate legend. Out of 304,398 programmer's notes produced from CMVC, approximately 100 contain a redaction of customer names or privileged information.

11

16. CMVC also contains more than 2,500 design documents related to AIX. These design documents were also produced to SCO. As noted above in paragraph 10, one design document was redacted to protect attorney-client privileged information and produced to SCO in redacted form.

17. For each source code file produced to SCO, IBM reviewed the origin codes or copyright notices in the code to identify potentially confidential third-party material. IBM located a copy of the relevant confidentiality terms and notified the third party prior to production, when required.

18. IBM obtained an AIX server with the hardware components necessary to produce the data from CMVC. An IBM team created a working copy of the CMVC source code revision system on the server. In order to retain CMVC database functionality that would allow SCO to search and query the code and documentation being produced, IBM copied the entire contents of the CMVC families that contained AIX-related content, and then removed the contents of the source files and programmer's notes that did not relate to AIX.

19. The server, which contained all the information described above, was made available to SCO at the offices of Snell & Wilmer in Salt Lake City, Utah on March 18, 2005. SCO's outside counsel took possession of this server. Along with the server, IBM also has made available to SCO general AIX and CMVC user documentation and a custom README file that contains basic instructions on how to start and navigate the server, CMVC, the necessary IDs and passwords, and a script to instruct SCO how to determine the changes made by each person who contributed code to AIX, as recorded by CMVC. A copy of the README file is attached to this Declaration as Exhibit A. A copy of the script is attached to this Declaration as Exhibit B.

12

II. Production of Dynix Code and Documents from RCS

20. Revision Control System ("RCS") is the source code revision system that was used by Sequent's and IBM's Dynix development organization. It also serves as a shared electronic repository for programmer's notes, design documents, and white papers. The source code revision information in RCS dates back to 1988. Other than the Dynix source code stored in RCS, IBM has searched for, but has not been able to locate, revision control information for Dynix prior to 1988. RCS does not contain any source code or other information for the AIX operating system.

21. IBM has produced one hundred percent (100%) of the source code in RCS that is part of or related to Dynix (including the base operating system and layered products, development tools, and test programs). IBM also extracted, and produced to SCO, one hundred percent (100%) of the Dynix-related design documents, white papers, and programmer's notes that were stored in RCS.

22. The RCS server at IBM that contains source code and information related to Dynix also contains source code and material that is neither part of, nor related to, Dynix. IBM has not produced source code or material in RCS for components that are unrelated to Dynix or its code, internal design, or methods. IBM excluded components containing design, manufacturing, and test information specific to IBM or Sequent hardware products, such as hardware system designs, hardware test exercisers and other hardware test programs, and hardware manufacturing-related components. IBM also excluded firmware source code (machine-level code, distinct from the operating system, that is embedded into a computer hardware device or placed on a computer system to function at a level below the computer's operating system), and other software programs that are distinct from the operating system, such as middleware (software that provides support functions for software applications, such as

13

application-to-application exchange of data, data storage management, and other services) and applications.

23. Extracting the source code that is part of or related to the Dynix operating system required identification of the source code files that are not part of or related to the Dynix operating system. A thorough review of the contents of the RCS system was undertaken by IBM to determine which files are part of or related to the Dynix operating system.

24. Copies of both the source text file and the comma v file for each of the Dynix-related code files were extracted from RCS. Comma v files are the files maintained by RCS that provide the file development history since 1988 (or the inception of the file) for the particular corresponding source code file in the Dynix operating system or related source code. The copies were prepared in tape archive ("tar") format, and then compressed using a zip program to allow them to fit on the CDs. The total amount of this Dynix source code produced from RCS represents more than 17 GB of uncompressed data.

25. For each source code file produced to SCO, IBM reviewed the copyright notices in the code to identify potentially confidential third party material. IBM located a copy of the relevant confidentiality terms and notified the third party prior to production, when required.

III. Production of AIX Design Documents, Programmer's Notes, White Papers and Code Outside CMVC

26. IBM also searched for design documents, programmer's notes, white papers and AIX source code that are not stored in the CMVC database and has completed its production of these documents. Certain AIX development teams keep a large portion of their work files and documents, other than what is required to be stored in CMVC, in shared electronic repositories. To collect a large volume of AIX design documents, programmer's notes, whitepapers, and code, and to avoid redundancy, IBM collected potentially responsive documents from shared electronic repositories at a department, team, and project level. These documents were reviewed for

14

responsiveness, third-party confidential information, and attorney-client privileged communications, and responsive, non-privileged documents have been produced to SCO.

27. IBM also located, from shared electronic repositories and from some data tapes, some source code for the AIX operating system. Although it is likely that this code is duplicative of the AIX source code already produced to SCO on the CMVC server as discussed in Paragraphs 7-19, IBM was unable to confirm that the code is duplicative, and therefore has produced this AIX source code to SCO, on CDs.

28. As I have noted above, IBM does not maintain revision control information for AIX source code pre-dating 1991. To the extent that any code for the AIX operating system (that did not duplicate the code already being produced in CMVC) was found during the search described in Paragraphs 26-27 above, it was produced. Paragraphs 29-31 below describe additional search efforts IBM undertook to locate pre-1991 versions of AIX code. No versions of AIX pre-dating 1991 were found.

29. In the 1980s and early 1990s, IBM prepared vital records backups of AIX source code and transferred them to a remote storage location. At some point in the 1990s, the AIX vital records tapes were transferred to Austin, Texas. In late 2000, the tapes were determined to be obsolete, and were not retained.

30. The AIX development organization contacted other IBM employees who were known or believed to have been involved with the development or product release of AIX versions prior to 1991. In addition, IBM managers and attorneys asked current members of the AIX development organization whether they were aware of the location of pre-1991 releases of AIX source code. No one asked was aware of any remaining copies of pre-1991 AIX source code.

15

31. Source code archives retained by the IBM group responsible for filing IBM copyright registrations and maintaining some of the IBM copyright records were transferred to IBM's Austin site in 2000. IBM searched those archives; all of the source code in the archives are duplicative of AIX versions and changes already produced on the CMVC server as discussed in Paragraphs 7-19.

IV. Production of Dynix Design Documents, Programmer's Notes, White Papers and Code Outside RCS

32. RCS is the shared electronic repository that was used by Dynix developers to store design documents, programmer's notes, and white papers. As discussed above, IBM collected responsive code and documents from RCS. In addition, IBM searched for and retrieved potentially responsive materials from archived Sequent records. These documents were reviewed for responsiveness, third-party confidential information, and attorney-client privileged communications, and all responsive, non-privileged documents have been produced to SCO.

33. As noted above, IBM searched for, but was unable to locate, revision control information for Dynix prior to 1988. IBM did locate some pre-1988 copies of archived Dynix source code files (without revision control information), which were produced to SCO on CDs.

V. Contributors to AIX and Dynix

34. As IBM previously noted in response to SCO's Interrogatory 5, the list of 7,200 individuals who have or have had access to AIX or Dynix source code are the people who work or worked on developing AIX and Dynix. Not all of these individuals, however, have made contributions or changes to AIX or Dynix source code; for example, a development supervisor may have access to CMVC or RCS, but may have never personally made any changes to the code. In response to the Court's order that IBM provide information as to which persons made contributions or changes to AIX or Dynix source code, IBM has identified the names, user IDs,

16

and contact information (to the extent IBM has such information in its records) for all of the individuals recorded by CMVC and RCS as having created or made changes to AIX or Dynix or related source code files, and has produced all such information to SCO.

35. The total number of individuals who are recorded by CMVC or RCS as having made contributions or changes to AIX or Dynix or related source code files is 2,704. This number, while less than the 3,000 individuals contemplated by the Order, includes all individuals who are recorded by CMVC and RCS as having made contributions and changes to AIX or Dynix.

36. The list of AIX contributors contains 2,234 names. These names were obtained by using CMVC tools to determine which CMVC users have ever created or modified AIX or related source code since CMVC versioning was initiated in 1991. This list includes all of the persons who are recorded by CMVC as having made changes to AIX source code. The list was examined manually to merge the data for users who had multiple IDs or name changes.

37. IBM has also produced to SCO the user IDs for all of the individuals who made changes or contributions to Dynix, as recorded by RCS. The list contains 470 user IDs and identifies the number of files created or modified by each user ID. IBM reconstructed and reviewed archived Sequent records and questioned former Dynix developers, and has provided to SCO all of the corresponding employee names and contact information that were obtained.

38. The CMVC and RCS revision control data produced by IBM include complete information (to the extent such information is recorded by CMVC or RCS) as to which individuals made which specific contributions or changes to AIX or Dynix source code, as well as when each such change was made.

39. For AIX, the contributions and changes made by each person can be determined by running a simple script, a copy of which was produced to SCO along with the CMVC system

17

on March 18, 2005. A copy of the script is also attached to this Declaration as Exhibit B. Using the script, SCO can type in any individual user ID, and the script will produce as its output a detailed list of all of the contributions and changes made by that user.

40. For Dynix, information about each change made to each file in the Dynix source code, including the date and time the change was checked-in to the RCS system, who checked-in the change, the number of lines of code added and deleted from the previous revision of the file, and a log message entered by the person who checked-in the change can be ascertained using standard RCS tools, such as the "rlog" command. For example, to determine the change history of the base_callback.c,v file in the 4.6.1 version of the Dynix base operating system, SCO can type "rlog base_callback.c.,v", which results in the following output:

$ rlog base_callback.c,v

RCS file: base_callback.c,v; Working file: base_callback.c
head: 1.4
branch:
locks: ; strict
access list:
symbolic names: v4_6_1p: 1.4.3; v4_6_1: 1.4; v4_6_0p: 1.4.2; v4_6_0: 1.4;
comment leader: * * *
total revisions: 6; selected revisions: 6
description:
base_callback.c

---------------------------------------

revision 1.4
date: 97/09/29 18:20:23; author: mjs; state: Exp; lines added/del: 7/9
branches: 1.4.2; 1.4.3;
Made appropriate use of SYMUSED lint directive in this file.
PR #230499 / SCN rto1031.

---------------------------------------

revision 1.3
date: 95/11/03 03:08:44; author: mjs; state: Exp; lines added/del: 5/2 lint fix.
--------------------------------------

revision 1.2
date: 95/11/03 02:01:20; author: mjs; state: Exp; lines added/del: 20/2
Added lint ref for base_callback.
--------------------------------------

revision 1.1
date: 95/11/02 20:14:52; author: mcneil; state: Exp;
Initial revision
--------------------------------------

revision 1.4.3.1
date: 20/1./3. 6.:0.:6.; author: hbeare; state: Exp; lines added/del: 6/2
Branch for v4_6_1p
--------------------------------------

revision 1.4.2.1
date: 20/0./9. 5..8.:1.; author: breazile; state: Exp; lines added/del: 6/2
Branch for v4_6_0p
----------------------------------------

18

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

Executed: May 3, 2005

Salt Lake City, Utah

___[signature]____
Todd M. Shaughnessy

19

CERTIFICATE OF SERVICE

I hereby certify that on the 3rd day of May, 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.
[address]

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

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

____[signature]____

Todd M. Shaughnessy

20

EXHIBIT 2

21

[CRAVATH, SWAINE & MOORE LLP letterhead]

July 5, 2005

Dear Ted:

Enclosed please find a revised version of Attachment E to IBM's Responses and Objections to SCO's First Set of Interrogatories. This updates the contact information of the listed persons, such as email addresses that may have been used by IBM employees to make Linux contributions (including email addresses without an "ibm" in the domain name).

As you know, IBM previously produced material that it offered unsuccessfully to Linux that may not be publicly available (because it was not included in Linux). Those materials were identified in our April 19, 2004 response to SCO's Interrogatory No. 6. We updated that production last week, on July 1, 2005. For your convenience, following is a listing of the bates numbers of the documents reflecting IBM's "non-public Linux contributions": 1710089569-1710089572; 1710089869-1710089875; 1710127757-1710128552; 1710132518-1710134552; 1710137835-1710138245; 181595356-181595400; 181595402-181595428; 181595497-181595499; 181595555-181595561; 181595664-181595734; 181595736-181595767; 181595769-181595770; 181595837-181595853; 181595867-181595868; 181595980-181596088; 181596760-181596769; 181596825-181596861; 181596873-181596980; 181596985-181596996; 181596999-181597185; 181597315-181597317; 181597575-181597587; 181597686-181597744; 181597747-181597748; 181597750-181597820; 181607890-181607892; 181609501; 181609861; 181610175-181610176; 181610232-181610243; 181610250-181610262;181610413-181610419;181610422-181610425; 181610428- 181610484;181610489-181610502;181610600-181610608;181617209-181617221; and 1710262769-1710263151.

22

Please let me know if you have any questions about these or any of our other productions.

Very truly yours,

[signature]

Peter Ligh

Ted Normand, Esq.
Boies, Schiller & Flexner LLP
[address]

Encl.

BY FAX AND FEDERAL EXPRESS

23

ATTACHMENT E TO EXHIBIT 2

This document contains personal identifying information and is therefore

being filed separately under seal.

24

EXHIBIT 3

25

[Boies Schiller letterhead, blacked out]

July 14, 2005

By Facsimile and First-Class Mail
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address] Re: SCO v. IBM, Civil No. 2:03CV-0294DAK

Dear David:

I write to identify deficiencies in the production of the CMVC (AIX) database (the "CMVC/AIX Production") that IBM has made in response to the Magistrate Court's Order Regarding SCO's Renewed Motion to Compel Discovery dated January 18, 2005 (the "January 18 Order").

As an initial matter, IBM has not produced any AIX source code prior to 1991. Todd Shaughnessy has asserted that "CMVC has been used in AIX development since 1991. Other than the AIX source code stored in CMVC, IBM does not maintain revision control information for AIX prior to 1991." Affidavit of Todd Shaughnessy (May 3, 2005) ("Shaughnessy Aff.") 7. That might be true, but irrespective of the availability of revision control information prior to 1991, SCO has asked IBM to produce AIX code prior to 1991, in whatever format IBM has stored such code, and the Court has ordered IBM to produce it. Our information is that IBM does possess the source code for all versions of AIX prior to 1991. Please let me know by July 19 whether IBM will produce all code, notes and revision history for AIX prior to 1991.

Similarly, SCO asked IBM: to identify the contributions that IBM has made to Linux, the specific identity of the contributors, and the specific contributions that each contributor made. Although IBM claims to have identified IBM's non-public contributions to Linux and the contributors (as set forth in Peter Ligh's July 5 letter to me), IBM has not identified the specific contributions that each contributor made. Nor has IBM identified the specific contributions that each contributor made with respect to IBM's public contributions to Linux. Under the Magistrate Court's March 2003, January 2005, and April 2005 Orders, IBM must produce that category of information. Please let me know by July 19 whether and when IBM will identify the specific IBM contributions (both public and non-public) to Linux that each contributor has made.

In addition, based on our review of the CMVC/AIX Production and as detailed below, we disagree with Mr. Shaughnessy's assertion that the CMVC/AIX Production contains "one hundred percent (100%) of the source code in CMVC that is part of or

26

[Boies Schiller logo]

David Marriott, Esq.
July 14, 2005
Page 2

related to AIX (including the operating system itself, development tools, documentation, and test programs)." Shaughnessy Aff. 10.

Approximately 245,325 Missing Files

We have identified approximately 245,325 entries in the CMVC database for which no file exists in the file trees associated with AIX (the "Missing Files"). 1 Most of the Missing Files are marked "non-responsive." Since "non-responsive" is not a term used in software programming, we infer that IBM removed the files marked "non-responsive" because IBM concluded that the files were not responsive to the January 18 Discovery Order. Please promptly advise me if our conclusion is inaccurate. Notwithstanding the designation of "non-responsive," a large number of the file names associated with the Missing Files relate to AIX kernel code, AIX shared libraries, and AIX compilers -- source code that clearly is at issue in the litigation. 2 It appears, for example, that at least 450 of the Missing Files relate to the Journaling File System (JFS) 3 As SCO has explained to the Court, IBM contributed JFS to Linux without modification, and JFS is one of the components of AIX centrally at issue in this litigation.

Mr. Shaughnessy has stated that in preparing its CMVC/AIX Production, IBM "removed the contents of the source files and programmer's notes that did not relate to AIX." Shaughnessy Aff. 18. As the foregoing files are part of or relate to AIX, we hereby request that you promptly produce all of the Missing Files and any and all other files related to AIX otherwise not produced. We also request that you produce the log history showing the "contents" of the source files and programmer's notes that IBM removed from the CMVC/AIX Production so that we may verify the extent to which AIX-related files may have been removed. The Court ordered IBM to produce "ALL AIX information" on CMVC, January 18 Order at 10; our request for the log is a logical and appropriate extension of IBM's discovery obligation.

_____________________

1The file trees associated with AIX in CMVC are /family/aix/vc/ and /family/aix/admin/.

2For example, the file marked as "Non-responsive5742" corresponds to 252 files in the directory src/bos/kernel/base/. The file marked "Non-responsive575" corresponds to 32 files in the directory src/bos/kernel/fs/. The file marked "Non-responsive5760" corresponds to 3 files in the directory src/bos/kernel/init/. The file marked "Non-responsive5761" corresponds to 3 files in the directory src/bos/kernel/lib/libcsys/, and 4 files elsewhere in src/bos/kernel/lib/. The file marked "Non-responsive5765" corresponds to 41 files in the directory src/bos/kernel/mm/. The file marked "Non-responsive5768" corresponds to 23 files in the directory src/bos/kernel/lib/libcnet/.

3 The Missing Files related to JFS were identified by a search for files whose names contain the characters "jfs".

27

[Boies Schiller logo]

David Marriott, Esq.
July 14, 2005
Page 3

Approximately 152,887 Un-Catalogued Files

We have identified approximately 152,887 files that do appear in the AIX file tree, but do not have a corresponding indexed entry in the CMVC database (the "Un-Catalogued Files"). IBM uses the CMVC database entries to provide ready access to, and navigation of, the files in CMVC. Without the corresponding CMVC database entries, it is impossible to access or review the Un-Cataloged Files in the way that IBM has maintained them in the ordinary course of business. In addition, barring an exhaustive manual examination of these files, it is very difficult for us to determine to which AIX components each file belongs, and it is usually impossible for us to know the name of each file. We therefore request prompt production of the CMVC database entries that correspond properly to the 152,997 Un-Catalogued Files, and any and all database entries related to AIX otherwise not produced.

Removal of CMVC Change-Log History

Upon exit of any command-line shell in AIX, the system apparently retains an annotated history of commands run by the user. We have reviewed the user history archive of the copy of AIX produced in the CMVC/AIX Production and have identified (among others) the following commands that IBM appears to have run in preparing the CMVC/AIX Production:

  • rm bash_history. This command removes the history of past events. Such history is useful for repeating past commands. We request that you promptly produce all shell history resulting from your preparation of the CMVC/AIX Production so that we may identify more precisely the acts taken to prepare the CMVC database for production. This request includes the bash_history for all root users as well as all administrators.

  • rm log. This command removes the log file. The log demonstrates a proper history of commands run against the operating system. We request that you promptly produce all log files related to your preparation of the CMVC/AIX Production so that we may identify more precisely the acts taken to prepare the CMVC database for production. This request includes the file log for all root users as well as all administrators.

Thank you for your prompt attention to these issues. As I am sure you appreciate, IBM's complete production of all of the AIX-, CMVC-, and Linux-related material that

28

[Boies Schiller logo]

David Marriott, Esq.
July 14, 2005
Page 4

SCO has requested and that the Court has repeatedly ordered IBM to produce is a prerequisite to SCO's compliance with the Court's revised scheduling order.

Sincerely,

___[signature]___
Edward Norman

cc: Brent Hatch
Todd M. Shaughnessy

29

EXHIBIT 4

[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.

31

[Snell & Wilmer logo]
Brent O. Hatch
July 19, 2005
Page 2

Very truly yours,

____[signature]____

Todd M. Shaughnessy

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

32

EXHIBIT 5

33

[Snell & Wilmer letterhead]

August 8, 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 to follow up on my July 19, 2005 letter to you, responding to Ted Normand's July 14, 2005 letter to David Marriott.

First, with respect to the issues raised under the heading "Approximately 245,325 Missing Files," Ted's letter does not identify, and we have been unable to determine, how he arrived at the number 245,325. However, as I stated in my May 3, 2005 declaration, we did not produce to SCO any components in CMVC that are unrelated to AIX or its code, internal design, or methods, such as code and information relating to IBM hardware, firmware, manufacturing-related components, and middleware and other software applications. Components that were withheld were replaced with a "non-responsive" placeholder. As we have repeatedly informed you, the CMVC server at IBM that contains source code and information related to AIX also contains a large amount of source code and other material that is neither part of, nor related to, AIX. Furthermore, directory names such as "src/bos/kernel/base" that are recorded in the CMVC database are directory names that do not necessarily correspond to the AIX operating system. We have investigated each of the specific "non-responsive" components identified in Ted's letter, and have confirmed that these components are neither part of nor related to the AIX operating system, and were thus properly withheld from production. If you have a reasonable basis to believe that any other specific "non-responsive" files contain information related to the AIX operating system, please identify these files and why you believe they may be related to AIX. As for Ted's request that we provide a "log history showing the `contents' of the source files and programmer's notes that IBM removed from the CMVC/AIX Production," IBM is not obligated to produce such information. Nor, in any event, have we maintained such a comprehensive "log history."

34

[Snell & Wilmer logo]

Brent O. Hatch
August 8, 2005
Page 2

Second, with respect to the issues raised under the heading "Approximately 152,887 Un-catalogued Files," Ted's letter does not identify, and we have been unable to determine, how he arrived at the number 152,887 (or, as stated later in the letter, 152,997). Based on Ted's description of these "Un-Catalogued Files," however, it appears that he is referring to instances in which there is a source code file without any corresponding entry in the CMVC database describing that source code file. As you may know, CMVC consists of two separate layers: the underlying source code files (SCCS files), and a database directory of those files. We believe that during normal development activity, operations such as creating a new file and then undoing the create can leave behind an SCCS file, with no corresponding information in the CMVC database directory. In preparing the CMVC server for production, we used the database to identify which CMVC components were neither part of nor related to AIX, and removed the corresponding source code files. We believe the "Un-Catalogued Files" likely include both AIX-related files, and non-AIX-related files. However, because the "Un-Catalogued Files" did not have database entries allowing us to determine whether they were or were not part of or related to AIX, we did not delete any of the underlying source code files, and produced the entirety of these "Un-Catalogued Files" to SCO. In short, the CMVC data we produced was, if anything, overinclusive.

Third, with respect to Ted's request that IBM produce all shell histories and log files related to our preparation of the CMVC server for production, IBM does not have a comprehensive collection of the shell histories and log files. In any case, IBM is not obligated to produce such information, nor was it ordered by the Court to do so.

Very truly yours,

___[signature]___
Todd M. Shaughnessy

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

35

EXHIBIT 6

36

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

In re:

SCO GROUP,

Plaintiff,

v.

INTERNATIONAL BUSINESS MACHINES,

Defendant.

Case No. 2:03-cv-294

BEFORE THE HONORABLE BROOKE C. WELLS

December 5, 2003

Transcript of Motion to Compel

Dawn E. Brunner-Hahn, RPR
ALPHA COURT REPORTING SERVICE
[address, phone, fax]

37

APPEARANCES OF COUNSEL:

For the Plaintiff:

HATCH, JAMES & DODGE
BY: Brent O. Hatch
Attorney at Law
[address]

Kevin P. McBride
Attorney at Law

For the Defendant:

CRAVATH, SWAINE & MOORE
BY: David R. Marriott
Attorney at Law
[address]

SNELL & WILMER, L.L.P.
BY: Todd M. Shaughnessy
Attorney at Law
[address]

37

[Transcript of the hearing.]

38-93

EXHIBIT 7

94

SNELL & WILMER LLP
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]

CRAVATH, SWAINS & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
Thomas G. Rafferty (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

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,

-against-

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.

__________________________________

DEFENDANT IBM'S SECOND SET
OF INTERROGATORIES AND
SECOND REQUEST FOR
PRODUCTION OF DOCUMENTS

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

___________________________________

Pursuant to Rules 33 and 34 of the Federal Rules of Civil Procedure, defendant International Business Machines Corporation ("IBM") submits this Second Set of Interrogatories and Second Request for the Production of Documents to plaintiff The SCO Group, Inc. ("plaintiff").

95

Plaintiff is directed to give answers to the written interrogatories separately, fully, in writing, under oath, and in accordance with the following definitions and instructions. Plaintiff is requested to produce the documents and things in its possession, custody or control pursuant to the document requests.

Answers to the interrogatories, and all documents and things responsive to the document requests must be served on the undersigned attorneys for IBM at the offices of Cravath, Swaine & Moore LLP, [address] within 30 days of service of these interrogatories and document requests.

Interrogatories

INTERROGATORY NO. 12.

Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating system and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

INTERROGATORY NO. 13:

For each line of code and other material identified in response to Interrogatory No. 12, please state whether (a) IBM has infringed plaintiffs rights, and for any rights IBM is alleged to have infringed, describe in detail how IBM is alleged to have infringed plaintiff's rights; and (b) whether plaintiff has ever distributed the code or other material or otherwise made it available to the public, as part of a Linux distribution or otherwise, and, if so, the circumstances under which it was distributed or otherwise made available, including but not limited to the product(s) in which it was distributed or made available, when it was distributed or made available, to whom it was distributed or made

96

available, and the terms under which it was distributed or made available (such as under the GPL or any other license).

Document Requests

REQUEST NO. 74:

All documents relating to SCO Forum 2003.

REQUEST NO. 75:

All documents relating to the information requested in Interrogatory Nos. 12-13.

Instructions and Definitions

Defendant IBM hereby incorporates by reference all instructions, definitions and rules contained in Rule 33 and Rule 34 of the Federal Rules of Civil Procedure and the local rules or individual practices of this Court and supplements them with the definitions and instructions set out in Defendant IBM's First Set of Interrogatories and First Request for the Production of Documents, which are incorporated herein by reference.

DATED this 16th day of September, 2003.

SNELL & WILMER LLP

___[signature]___
Alan L. Sullivan
Todd M. Shaughnessy

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
Thomas G. Rafferty
David R. Marriott

Counsel for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

97

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

98


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