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SCO Motion Re Linux Denied; 10 More Depositions Each - Updated
Friday, October 07 2005 @ 03:55 PM EDT

Well, I guess this makes it universal. Nobody likes the games SCO is pulling in discovery, including Judge Wells now, from what Frank Sorenson reports. Wells denied SCO's motion regarding discovery, told them they had misinterpreted her rulings, and that IBM has, as Frank puts it, "appropriately interpreted the Court's order. She finds that SCO's interpretation takes her words out of context, and that IBM has complied with the Court's orders. SCO's Motion to Compel is DENIED."

Frank is just back from the court hearing in SCO v. IBM, and here is his first report:

Here's the basic result:

Wells ruled from the bench.

Wells didn't seem very pleased with SCO. She was not happy with how SCO was interpreting the orders, etc.

Denied SCO's Motion for all of everything related to Linux (to the extent that IBM had already agreed to provide everything linux-related from those programmers who SCO would be deposing)

Wells _did_ modify the number of Depositions each side could take, but not by the 25 SCO wanted, just by 10. However, she did require that everything fit within the timeframe already specified.

She deferred the motion to compel production from the execs by saying that a lot of discovery has happened in the interim, and based on rulings, etc. she would like SCO to refile their original motion, with the court by Friday, Oct 21.

All remaining motions will be heard at a hearing Dec. 20th 10AM

Aaron adds some details:

SCO's motion was denied. IBM has fully complied with it's discovery obligations per Judge Wells previous orders.

Each side will be allowed 10 more depositions. IBM cannot do 2-day depositions of the same person instead of 10 additional people.

IBM's motion concerning the privilege log will be heard on Dec. 20th 10am.

So, IBM has fully complied, eh? So, it's not off with their heads? Tick...tock...time is running out of the hourglass for SCO. So, tell us, do: what code specifically do you allege is infringing in Linux? Your deadline to tell us looms. And delay is looking unlikely. Poor SCO. Paying the piper is always the hardest part.

Update:

The Minutes from the hearing are already up on Pacer:

524 - Filed & Entered: 10/07/2005

Order on Motion to Compel

Docket Text: Minute Entry for proceedings held before Judge Brooke C. Wells: Motion Hearing held on 10/7/2005 re [503] MOTION to Compel discovery filed by SCO Group,, [508] MOTION for Discovery filed by SCO Group. The Court hears arguments and rules from bench: denying [503] Motion to Compel, granting in part and denying in part [508] Motion for Discovery - see order for specifics. Counsel for IBM to prepare the order. Hearing set for 12/20/05 at 10:00 a.m. as to dft's remaining motion to compel and pla's renewed motion to be filed by 10/21/05. The Courtroom is to be determined, a notice of hearing will be sent. Court is adjouned. Attorney for Plaintiff: Stuart Singer, Attorney for Defendant David Marriott.(Court Reporter Kelly Hicken.) (alp, )

IBM drawing up the order means they won. The winner usually gets "anointed" to draw up the order, as I've explained before. The word adjourned is misspelled in the original, by the way, but I never correct any court filings or notations in the docket.

Misspellings happen when you are in a hurry, of course, and it seems like the only one wanting to slow down now is SCO. Whatever will they dream up next to try to get a delay? This should be a fun hearing transcript to read when it's ready, unless you are SCO's attorney for the day. SCO has a stable of lawyers, and they throw in whoever they feel can best handle each event. David Marriott stands up every time for IBM. Have you noticed? Aaron says that Brent Hatch got there 45 minutes late, and he sat in the audience section.

2d Update:

Frank has lots more details for us:

SCO was represented by Stuart Singer, Ted Normand, and Mark James (other lawyers present as well, but only Singer argued). IBM was represented by David Marriott, Todd Shaughnessy, and Peter Ligh (others present, but only Marriott argued).

Wells wanted to clear the record regarding the January 2005 order. There was a docketing error that made it appear that she had granted a Motion from SCO. Also, a lot of discovery has occurred since then, and she would like SCO to refile (by Friday, October 21, 2005) their original motion, taking into account rulings, etc. since then.

Wells noted for the record that she had read in depth, and also reviewed all the filings, memos, exhibits, rulings, etc.

SCO's Motion to Compel Production of everything related to Linux, everything related to Linux development, everything related to IBM's Linux contributions, and everything else (for good measure) [Note: not an official title]

Stuart Singer argued that SCO's Motion goes to the very heart of the issue. He talked of IBM's failure to produce their non-public work related to their Linux contributions and the development thereof. He says that IBM has admitted they have not looked for such information, let alone produced it [see the Frey Declaration describing the work it would take]. He says that in IBM's responses, they have agreed to produce it all, but have not done so. Talks about Wells' ruling [paragraph 3 talking about Linux related 'information'].

Wells asks whether SCO saw paragraph 3 as an expansion of paragraph 2?

Singer claims that there's no legitimate basis that a rough draft or programming notes isn't covered. Says that the Executive materials are also related. Says IBM assured the court that they had complied with orders, and produced, but clearly has not. If IBM was uncertain as to what The Court had ordered, they should obtain clarification from the court.

Wells asks whether SCO acknowledges that they have the same obligation?

Singer replies "Of course."

Wells says she wants SCO to address what appears to be SCO's failure to raise the issue with respect to Linux. In her review of the transcript of the original hearing, she found no mention by Mr. McBride about Linux. SCO did not raise that issue, and the order does not address it.

The Linux issue was not raised. She says that both sides have the responsibility to obtain clarification if necessary.

Singer states that the Linux contributions are even more relevant. He states that the Court ordered that documents from the files of 3,000 programmers be produced, and that in the order about reconsidering, the Court "deferred," but did not remove IBM's obligations. IBM is not interpreting these orders to include Linux. The court has held that SCO needs access to such information, and did not limit IBM's obligations with respect to Linux, and that it was clear as day that all non-public Linux contribution "information" be produced. He says that IBM has woefully failed to fulfill their obligations, and this goes to the very core. Says that the position IBM is taking is that all or virtually all of their Linux contributions were public, but that there is clearly information (programmer's notes, versions of code, etc.) that they haven't produced. States that it's clear that the AIX and Dynix development history must include the information related to Linux as well.

Wells asks that if SCO is not receiving things, and IBM does not interpret things the same way, why did SCO not request clarification?

Singer responds that IBM's position is that they are not required. Contends that IBM never did what they said they would, and asks on what basis IBM can say they have complied if (according to Mr. Frey's Declaration) they have not conducted the search, and doing so would be too burdensome. States that IBM surely wouldn't have embarked into the litigation without searching for such information.

Wells points out that it is SCO who began the litigation by suing IBM.

Singer says that they need files from programmers before SCO can take depositions of those programmers. In Frey's Declaration, he was asked whether he had complied, and he responded, "I turned over everything."

Singer mentions SCO's 7th request for the production of documents, and says that SCO asked for very specific requests. He says that IBM's response was that they were duplicative of earlier requests. Singer notes that sanctions may be in order.

... Marriott's response next...

Frank is typing furiously. Stay tuned.

3rd Update: Frank picks up the story, as David Marriott stands up to speak:

part 2

Marriot says that in SCO's motion, they're trying to mislead the court, says that IBM has endeavored to comply, and that IBM believes they have gone above and beyond. He says that SCO's present motion is "astonishing" in its premise that SCO asked for everything related to Linux, the Court so ordered, and IBM then thumbed their nose at the Court.

Marriott mentions the plethora of public claims and quotes from Kimball's order about SCO's "astonishing" lack of evidence. He says that SCO is now requesting all revisions and versions of IBM's Linux contributions [pre-contribution work]. He says that IBM has never agreed to produce every document in the whole company related in any way to Linux.

Marriott uses SCO's large charts to show that SCO's requests are related only to IBM's Linux contributions. He mentions that Linux is developed in the public domain, and that "non-public" contributions would only occur when someone sent directly to Linus Torvalds, but those contributions would normally be rejected. He characterizes these contributions as unsuccessful.

Marriott mentions that IBM objected to SCO's requests for documents, but did not deny that they would produce relevant, non-privileged. IBM never indicated they would produce every document in the company related to Linux. They undertook a reasonable search, responded, and provided a production log of everything. He points out that _none_ of the SCO lawyers in court today were present during those discussions, but that Mr. Shaughnessy and Mr. Ligh [both in court today for IBM] were.

Marriott points out that SCO's Reply Brief is in stark opposition to their opening brief [in that the opening brief states that IBM refused to produce Linux-related info, and reply brief claims IBM agreed to produce it, but has not done so]. IBM does not presume to tell the Court what she ordered, but IBM's understanding of the Court's orders is that she never ordered the way SCO contends.

Marriott mentions that in IBM's view, SCO has still failed to explain what the case is all about. He points out that the first hearings were about whether IBM had to produce AIX and Dynix information, not Linux.

Marriott says that their understanding of the Court's order was that it meant that they were to produce documents "relevant to IBM's Linux strategy," not everything related to Linux. He claims that SCO's sweeping interpretation of paragraph 3 of the order is in opposition to paragraph 2 where it says that "IBM is not required to produce publicly-available contributions". He says that SCO is misreading the Court's orders, and trying to circumvent the Court's protocol. He says that contrary to Mr. Singer's assertion, they can't just send out an email to everyone in the company, and wait for responses, and that searching the files of everyone in IBM's 330,000 person company strains credulity.

Marriott says that IBM communicated with SCO regarding their understanding of the Court's orders, and that in IBM's judgment, one can not reasonably interpret them to mean every document relating to Linux, Linux development, or Linux contributions. IBM feels that there is no reason to require IBM to produce everything, given the Court's protocol (and considering IBM's 13th Interrogatory). It would be an enormous burden, and not a small undertaking.

Wells gives Singer 10 minutes to respond.

Singer says that these requests are not directed at everything in the company, but are targeted towards IBM's actual contributions within the Linux Technology Center. He says that the fact that Linux is developed in public does not obviate the usefulness of all drafts, versions, programming notes, etc.

Wells asks, "Didn't Mr. McBride argue with respect to AIX and Dynix? He didn't address Linux."

Singer says that even accepting that argument, the Court ordered IBM to produce _all_ information related to Linux. He says that there is no serious argument that this information is not relevant, and that the Court should either order that IBM was required to produce, but did not, or _now_ order so.

Wells says that she is ready to rule. She finds that IBM did not agree to produce everything as SCO contends. She finds that the issue of discovery related to Linux was _not_ contemplated or ordered by The Court, and that IBM has appropriately interpreted The Court's order. She finds that SCO's interpretation takes her words out of context, and that IBM has complied with the Court's orders. SCO's Motion to Compel is DENIED.

Stay tuned, for the part about the depositions. Frank is still typing like a madman. Meanwhile, Aaron has shared with me another interesting detail. He says that his impression is that while Singer appeared to him to be a good lawyer, Wells kept interrupting him. He felt that she was very unhappy with SCO. She didn't interrupt Marriott. But later, when she issued her decision, he understood that her questions were to give SCO a chance to alter her views and answer her concerns, but that they didn't avail themselves successfully of the opportunity. He says he figures there were only about 15 or so people in the audience this time, aside from the lawyers, a lower figure than usual. Bob Mims was there, so I think we can look for an article from him.

4th Update:

Frank now addresses the issue of additional depositions.

part 3:

SCO's Motion for Leave to do an Additional 25 Depositions

Judge Wells is reminded by her assistant that there has been some discussion of dismissal of the patent counterclaims. She will keep that in mind while listening to arguments.

Singer claims that dropping the patent counterclaims does not remove the need for additional depositions. He says that every part of this case has been contested by IBM. He says it is such a complex case that SCO really needs 60 or 65 depositions, and that they can still be done within the current schedule. He states that there are many other witnesses who have material knowledge.

Marriott says that at the outset of the case, it was known it would be a complex case, and the parties came to an agreement to do 40 depositions per side. He says that 40 Depositions is 4 times the presumptive limit, and that there is no need for additonal depositions. If SCO gets to depose additional people, IBM should be allowed to schedule extra time (extra day) with those people IBM is deposing. IBM requests that SCO's motion be denied.

Singer states that the 40-deposition limit was decided before any counterclaims were asserted.

Wells says that she is prepared to rule. She will increase the allowable depositions by 10 rather than 25, but they must be completed within the current deadlines. The Court does not want to entertain additional delays. She denies IBM's request for additional time with the deponents.

Marriott stood, I think just before she ruled, and suggested to the court that IBM would be willing to undertake the reasonable search of the files of the 20 programmers that SCO has said it has selected to depose, and to produce relevant Linux documents from them.

SCO's motion was denied in all respects _except_ this one. In reality, it was a decent argument from SCO that they'd be going into the depositions blindly, and it seemed like a reasonable offering from IBM.

Wells asks how much time IBM would need to produce documents from the files of the 20 developers SCO would like to depose. IBM responds that they need up to 60 days, but hope to complete long before then. SCO asks whether this can be done on a rolling-production basis, so that the depositions do not all need to be done so late, and IBM and Wells agree.

IBM's Motion to Compel Production of Documents from SCO's Privilege Log and other outstanding Motions will be heard at a hearing December 20, 2005 at 10:00 am.

Wells speaks with counsel at the bench, then announces she has asked IBM to prepare the order, have SCO approve it for form, and present it to her for signing no later than Wednesday [October 12, 2005].


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