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More Letters to the Red Hat Judge
Tuesday, October 04 2005 @ 11:07 AM EDT

SCO and Red Hat tell the judge in Delaware their variations on the theme of what has transpired for the past 90 days. Once again, it doesn't match. I don't mean they tell different versions of the same events. They don't even describe all the same events. Why might that might be?

Red Hat presents a simple chain of a few facts -- frankly, Red Hat's heart doesn't seem to be in this homework, perhaps because it seems more like makework with no practical consequences -- but SCO takes off and starts to fly up and around and over the moon and under bridges, and it's quite a display. Then it lands on the Blarney Stone.

SCO's section on the IBM case is mostly about its upcoming discovery motions. It starts with a mention of the April 19th order, then it says IBM turned over all nonpublic Linux contribution information, but SCO found it slim pickings. So it filed a Renewed Motion to Compel, or a "Renewed" Motion to Compel, as IBM calls it, since there is no original motion being renewed that I can find, to be argued on October 7, along with SCO's December 2004 "Renewed" Motion to Compel Discovery seeking Linux documents from IBM's senior executives and Board of Directors. It also tells about its motion to be able to do 25 more depositions, as well as IBM's motion to compel production of documents on SCO's privilege log.

On the Novell litigation, SCO says that Novell filed its answer and 7 counterclaims, that Novell denies transferring copyrights, that it retained the right to waive SCO's claims against IBM, actions which SCO says destroys "the value of the UNIX business for which SCO's predecessor paid over $100 million in consideration". That's if Santa Cruz really is a predecessor of SCO Group's. SCO adds that it answered Novell's counterclaims and "set forth specific facts dispelling the assertion that SCO contacted Novell in 2002 to ask for the transfer of the UNIX copyrights." Do you remember any facts? I remember a denial. But specific facts? Let's look it up:

G. Communications Between SCO and Novell in Late 2002 and Early 2003

38. Admits that in late 2002, as part of the review of its intellectual property, SCO contacted Novell to confirm SCO's understanding that the UNIX and Unixware copyrights had been transferred under the APA and to ask if Novell had documents concerning the APA; admits that Novell counsel and other employees repeatedly and successively asked SCO to call again at a later time after Novell had had the opportunity to research the matter; admits that in early 2003, Novell counsel agreed to sign a letter stating that the APA transferred all right, title, and interest in and to the copyrights associated with the AT&T SVRX software agreements; admits that SCO sent Novell counsel a draft of that letter but Novell responded that it was no longer interested in UNIX and would not sign; admits that Novell did not sign the letter and ceased communications with SCO; further admits that during the aforementioned conversations Novell never asserted its purported, or challenged SCO's, ownership of the UNIX and Unixware copyrights; but denies each and every other allegation of 38.

39. Admits that (at Novell's request, as described in 38 above) SCO contacted Novell on multiple occasions in early 2003; but denies each and every other allegation of 39.

What do you think? Does it sound like SCO repeatedly contacted Novell? That they discussed Novell giving SCO a letter saying copyright had transferred? So would it be totally accurate to say that SCO "set forth specific facts dispelling the assertion that SCO contacted Novell in 2002 to ask for the transfer of the UNIX copyrights"? I gather SCO was striving for technical accuracy, but a misleading effect at the same time. SCO asked for a letter, they admit, stating that the APA transferred the copyrights. They didn't ask, to hear them tell it, for a transfer of UNIX copyrights in 2002 or 2003 but rather for a letter saying they had earlier transferred. That is what makes their statement literally accurate. But does it tell the judge what they did ask for? Might she be interested to know, since the copyrights are seriously being challenged by Novell, that SCO has admitted asking for a letter stating that the APA did transfer the copyrights, after asking Novell if it had documents related to the APA, which implies that SCO is lacking proof of copyright transfer? Red Hat's case is a copyright case, but they tell her none of that.

Red Hat's letter is about SCO's motion to file a 3rd amended complaint being denied in the IBM case, and the court granting IBM's motion to limit the scope of its 9th counterclaim. On the Novell case, Red Hat gives the judge more of an earful, letting her know that Novell's counterclaims include "slander of title, breach of contract, declaratory relief for certain rights and duties under the Asset Purchase Agreement, restitution/unjust enrichment, and for an accounting for monies owed by SCO under the Asset Purchase Agreement." It makes sure she knows that Novell has accused SCO of contacting Novell repeatedly in 2002 in connection with its "SCOsource" campaign, designed to "obtain UNIX licensing fees from Linux users" and that "[i]n aid of its scheme, SCO requested that Novell transfer its UNIX Copyrights to SCO" but that Novell rejected all such requests. Red Hat tersely adds that SCO has filed an answer to the counterclaims, but it doesn't describe it.

Here's Red Hat's [PDF] and here's SCO's [PDF]. If someone could transcribe them, I'd appreciate it. I kind of need to go throw up after reading this SCO sentence:

Although the Court's Orders had made clear that the development history of Linux was central to SCO's case and had directed IBM to produce even documents concerning the programming history AIX and Dynix as interim stages in that development, IBM now argued that the direct development history of Linux was "immaterial, unnecessary, and irrelevant."

They rely on Judge Robinson not paying close attention, one presumes. Anyone who was there can only sputter and stare bug-eyed. Just in case Judge Robinson or her clerk reads Groklaw, here are all of Judge Wells' discovery orders, set off in blue text so they are easy to see, with docket text, from Groklaw's IBM Timeline page, so one can hold them up next to that sentence and see if there is a way to make them match:

[94-1 - PDF] Text. 10-Dec-03 - Order granting motion to compel discovery. The SCO Group is hereby ORDERED: 1) To respond fully and in detail to Interrogatory Nos. 1-9 as stated in IBM's First Set of Interrogatories. 2) To respond fully and in detail to Interrogatory Nos 12 and 13 as stated in IBM's Second Set of Interrogatories. 3) IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Production of Documents and SCO is to produce all requested documents. 4) To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided. 5) To the extent IBM's requests call for the production of documents or are met by documents SCO has already provided, SCO is to identify with specificity the location of responsive answers including identification of the Bates numbered documents previously providd if applicable. 6) If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom thy were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance. SCO is required to provide such answers and documents within thirty days from the date of this order. All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order. The Court will hold a hearing on the forgoing issues January 23, 2004 at 10:00 a.m. Signed by Judge Brooke C. Wells , 12/12/03. The word Linux does not appear in this order.

[109-2 - PDF] Text. 03-Mar-04 - Order regarding SCO's Motion to Compel Discovery and IBM's Motion to Compel Discovery; (Please see the order for all information, as this is an extensive order). Ordering both parties to file affidavits re compliance with this order; and additional memoranda addressing the impact of the second amended complaint and IBM's subsequent answer on IBM's Motion to Strike the 5th, 15th, and 19th Affirmative Defenses asserted by SCO in its Answers to IBM's Amended Counterclaims. IBM is to file its initial memoranda with the court withing 60 days of the entry of this order. SCO will then have 15 days to respond. IBM will have 7 days to reply to this response. Following the additional briefing, the Court will contact parties to schedule a hearing regarding IBM's motion to strike SCO's affirmative defenses. (Please see the order for all information, as this is an extensive order) Signed by Judge Brooke C. Wells , 3/3/04 cc:atty. References to Linux in the order:

2. As previously ordered, SCO is to provide and identify all specific lines of code that IBM is alleged to have contributed to Linux from either AIX or Dynix. This is to include all lines of code that SCO can identify at this time.

3. SCO is to provide and identify all specific lines of code from Unix System V from which IBM's contributions from AIX and Dynix are alleged to be derived.

4. SCO is to provide and identify with specificity all lines of code in Linux that it claims rights to. . . .

Based on the Court's decision to lift the discovery stay and because relevance should be construed broadly at the discovery stage, IBM is hereby ORDERED:

1. To provide the releases of AIX and Dynix consisting of "about 232 products" as was represented by Mr. Marriott at the February 6, 2004 hearing. The releases are to be provided within 45 days of the entry of this order. Following the production, SCO is to provide additional memoranda to this Court indicating if and how these files support its position and how they are relevant. The memorandum is to include with specificity, and to the extent possible, identification of additional files SCO requests and the reasons for such requests. The court will then consider ordering IBM to produce more code from AIX and Dynix. See American Medical Systems, Inc. v. National Union Fire Ins. Co., 1999 WL 562738, p. 2-3 (ordering a party to first "procure relevant documents" and then reconsidering the discoverey request for the production of more documents).

2. Pursuant to Rule 26(b), SCO should use its best efforts to obtain discovery from the Linux contributions that are known to the public, including those contributions publically known to be made by IBM. IBM, however, is ordered to provide SCO any and all non-public contributions it has made to Linux.

3. IBM is to provide documents and materials generated by, and in possession of employees that have been and that are currently involved in the Linux project.[1] IBM is to include materials and documents from executives including inter alia, Sam Palmisano and Irving Wladawsky-Berger. Such materials and documents are to include any reports, materials or documents from IBM's "ambitious Linux Strategy." Steve Lohr, A Mainstream Gian[t] Goes Countercultural; I.B.M.'s Embrace of Linux Is a Bet That It Is the Software of the Future, N.Y. Times, March 20, 2000, Business/Financial Desk. The Court finds these materials are relevant because they may contain information regarding the use or alleged misuse of source code by IBM in its contributions to Linux.

5.[sic] IBM is ordered to provide further responses to SCO's interrogatory numbers two, five, and eleven. These responses are to include relevant information from all sources including top level management.

[182-1 - PDF] Text. 16-June-04 - Order by Judge Wells denying [168-1] expedited motion for protective order [re depositions]. The word Linux does not appear in this order.

[328-2 - PDF] Text. 20-Oct-04 - Order, re: SCO's renewed Motion to Compel Discovery. Both parties are to prepare and exchange privilege logs within 30 days from the entry of this order. IBM is to provide affidavits from the Board of Directors re production of all non-privileged documents pertaining to IBM's Linux strategy. The affidavits are to be filed within 30 days from the entry of this order. The court takes the remainder of SCO's motion under advisement. The court sua sponte, hereby seals the transcript to the proceedings held on 10/19/04. Copies of the transcript are to be provided to the parties in the case and the court but the transcript shall remain sealed until further order of the court. signed by Judge Brooke C. Wells , 10/20/04 cc:atty. Reference to Linux in this order:

2. IBM is provide affidavits from the Board of Directors, Mr. Palmisano and Mr. Wladawsky-Berger regarding production of all non-privileged documents pertaining to IBM's Linux strategy. The affidavits are to be filed within 30 days from the entry of this order.

[377-1 - PDF] Text. 18-Jan-05 - Order granting in part, denying in part [366-1] motion to compel Discovery, striking amended scheduling [177-1] order discovery due set for 4/22/05, [177-2] relief motion filing deadline set for 5/20/05, [177-3] relief Final Pretrial Conference set for 2:30 10/10/05, [177-4] relief 5-Week Jury trial set for 8:30 11/1/05, [177-5] relief , The discovery ordered by the court is due 3/18/05 , The Court ORDERS both parties to meet and confer re: a new schedule and to submit a proposed amended shceduling order to the court by 3/25/05 signed by Judge Brooke C. Wells , 1/18/05 cc:atty. IBM was not ordered to produce anything regarding Linux in this order.

[436-1 - PDF] Text. 20-Apr-05 - Order granting in part, denying in part [403-1] motion for reconsideration of [377-1] order striking amended scheduling [177-1] order discovery due set for 4/22/05, [177-2] relief motion filing deadline set for 5/20/05, [177-3] relief Final Pretrial Conference set for 2:30 10/10/05, [177-4] relief 5-Week Jury trial set for 8:30 11/1/05, [177-5] relief (see order for specifics) signed by Judge Brooke C. Wells , 4/19/05 cc:atty. What IBM was ordered to produce regarding Linux in this order:

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.

For good measure, here are the two Kimball decisions referenced:

[466 - PDF] Text. 01-July-05 - MEMORANDUM DECISION denying 322 Motion to Amend/Correct/File Third Amended Complaint, granting 374 SCO Motion to Compel IBM to produce Samuel J. Palmisano for deposition, granting 405 motion for entry of order limiting scope of IBM ninth counterclaim. IBM is directed to file a proposed order that restates its ninth counterclaim. An amended scheduling order is set forth in this order as is a procedure to follow when unsealing documents that were previously filed under seal. Signed by Judge Dale A. Kimball on 7/1/05.

[471 - PDF] Text. 01-Aug-05 - ORDER Limiting the Scope of IBM's Ninth Counterclaim. Signed by Judge Dale A. Kimball on 8/1/05.

Don't you love that SCO sentence, "even" AIX and Dynix, as if all along SCO was only interested in AIX and Dynix as "interim stages" in the development of Linux? I smell another shift in SCO's theory of the case.

Their story started as, "IBM stole our trade secrets and gave them away to that evil Linux."
. . . Oops. No trade secrets.

Then it was, "IBM stole a mountain of our UNIX copyrighted code and gave it away to that evil Linux."
. . . Oops. No proof of copyrights.

Then it was, "IBM violated its contracts with us that forbade them to ever sneeze in the direction of evil Linux. We get to control what happens to any code that ever touched our UNIX, even if IBM wrote it, holds the copyright or even patents on the code, and even if no UNIX code is in their code. We need every snippet of AIX and Dynix code since the world began so we can prove they used our methods and concepts."
. . . Oops. Amendment X and a bucket of IBM witnesses disputing that claim.

Most recently it was, "We just discovered that IBM used UNIX SVRX code on Power, which is a violation of its Project Monterey contract."
. . . Oops. SCO knew about it at the time, or should have, and didn't object and now the statute of limitations has run out, even if this tall tale were true, which, in my opinion, it isn't.

Now they tell us it's all about Linux code. And they pretend it always *was* about Linux code, not only to them, but to the judge! AIX and Dynix are mere stepping stones. Oh, really? Now they tell us.

Psst. Don't let on, but here's what I think is really going on: SCO wants more time. Those expecting to lose often do. The only way to get a delay is to pretend they need more discovery. IBM has stripped the walls of anything AIX and handed over everything but the gum stuck under their conference room chairs already, and there is nothing more for SCO to ask for to accomplish a delay but Linux code. If they can invent a new claim, they can ask for discovery about that claim. Bingo. Delay. SCO pretends it can't find Linux code and programmers' comments on the Internet like the rest of us do. No, they have in their minds that there are secret Linux materials hidden away somewhere. It's a plot between IBM and OSDL, don't you know. SCO, with a straight face, tells the judge that it found a "virtual absence" of nonpublic Linux contributions information in what IBM turned over, "even from IBM projects, affiliates, and partners publicly known to have staged its Linux contributions." Here's why, you dopes. Linux is developed in public.

What paranoid planet are these people on? Who "stages" Linux contributions? Even if there were such nonpublic materials, what difference would it make? No, really. What damages could there be from contributions that were never accepted into Linux? Yeah, I know. SCO has this ladder theory.

Well, not to be a bore, but even a ladder theory has to be placed on the ground, in a specific place, before you can start climbing it. Might I inquire if SCO would mind telling us, once and for all, where that specific place is, what code specifically they think has been infringed? If they won't say, or they still don't know, what kind of case is this? Are they to be allowed to keep digging and digging under each and every crazy new theory they can come up with, one after another, honest or not, without ever telling IBM what the allegedly infringing code is, which makes it impossible for IBM to even know what the proper parameters of discovery should be? That isn't how discovery is supposed to work. And has Judge Wells noticed that the theory of the case keeps changing? What might that indicate to a discerning judge?

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