Here is the transcript [PDF] of the October 7, 2005 discovery hearing before Judge Brooke Wells. To follow the arguments, you'll need Judge Wells' prior orders:
It's memorable in that we find an IBM mistake. I think that is a first. When talking about the development process for the Linux kernel, David Marriott says that it is done in public, which is true, but he also says it's public domain. It is not. The Linux kernel is brought to you under the GPL, which sits on top of copyright. Everything is done in the public eye, but the code is owned and licensed by the individual programmers, as well as being under copyright plus GPL v.2 by Linus on the collective work. I am sure Mr. Marriott knows that and merely mispoke, but others reading the transcript may be confused, which is why I am highlighting it here. You see Microsoft FUD sometimes alleging that no one knows who writes Linux, but in fact you can find the authors publicly on the Internet, and they own their work. That is why SCO is in GPL trouble, since IBM is one of the authors of some code in the kernel.
IBM makes a strong argument regarding the discovery protocol Judge Wells herself set forth, beginning on page 44, namely that SCO was told by the judge to answer IBM's interrogatory 13. In fact, they were ordered to do so twice. They still haven't answered that question: what in Linux they have rights to and exactly what IBM has allegedly done wrong. That was supposed to happen first, then IBM responds with discovery materials, as Mr. Marriott reminds the court:
Again, the Court's protocol was quite clear. SCO produces. IBM then goes from there. We still don't have a detailed response to our argument to Article 13.
What we have produced rather than saying, forget it. We're giving you nothing because we don't have a response to your Article 13, we have gone out in so far as we can determine is a bound for a reasonable search and produced files from -- we've produced documents from the files of people in linus [sic] Technology Center. They deposed some of these people. They have the logs that say it. There is no mystery about it.
Your Honor, in addition, we do believe -- and I won't burden the Court with this point, these arguments have been made before, and I think they stand true today -- there's no reason for the production now given the protocol Your Honor has set out for this information. We have produced the contributions that are available. To the extent there were nonpublic things that really didn't qualify as contributions but were failed effort, they have been made available. We have produced, you know, the equivalent of billions of lines and literally hundreds of millions of lines of AIX and Dynix code, all of the development information from that information.
What you don't see, Your Honor, in anything before the Court today is any use of that information. What you don't see is SCO saying, you know, they produced all of this. Here's now what we know. We can now define and focus the issues.
We have produced millions of pages of paper that apparently are of absolutely no value to SCO. At a minimum, they are not moving this toward a solution. The closer we get to the close of the case, the more questions we have, the more discovery apparently is needed.
The judge, who apparently forgot about her protocol, then asks SCO, on page 58, about IBM's article 13, asking them, "why has that not been complied with?" SCO gives the unbelievable answer that they thought they didn't have to comply until the interim and final deadline for discovery.
What does it all mean? The thing is this: in discovery, you want the other side blindsided. The less they know what you are looking for, the more likely they are to turn over damaging materials. So if you don't care about playing fair and think the end justifies the means, you try to avoid playing your real hand for as long as you can get away with it. Judge Wells asks IBM if they have any comment. They say no. This tells me that IBM has factored in the SCO game, they aren't worried about it, and they have their own strategy at work. But raising the issue now means that they are drawing a line in the sand from here on. If SCO wants further discovery, they will have to pony up first.
As for SCO's performance at the hearing, they just can't take a hint. Judge Wells asks them, when their lawyer makes the mistake of complaining that IBM should have asked the court for clarification of her orders, if they are also responsible to do so, and the only possible answer to that question is yes. She next expresses that she isn't happy that, when the parties found themselves at odds over how to interpret her orders, SCO didn't ask the court for clarification. I take that to mean that all the motions annoy her, when a simple phone call could have saved everyone time, effort and money.
Why didn't they ask for clarification? I could answer that question, I believe, according to my best guess. If they had done so, they would have missed the opportunity to trash talk IBM in their motion papers, SEC filings, letters to the Red Hat judge, and the public. Had they asked for clarification, that would have blocked them and their journo pals from portraying IBM as a wrongdoer and themselves as getting somewhere in the litigation.
Just review, for one quick example, what SCO wrote in the most recent letter to the Red Hat judge, and you'll see what I mean. I'll be watching closely to see what they tell her in the next letter.
SCO's attorney continues to ignore the judge's hints and proceeds to continue to tell her what her orders meant. She sets them straight when she issues her order. They misinterpreted her order, she tells them, and IBM had it right.
SCO clearly is very unhappy with Judge Wells' order and doesn't accept it. They have filed with the District Court an Objection to the Magistrate Court's order of October 12, 2005 [PDF] and a Memorandum in Support [PDF].
Sigh. This is still about SCO wanting nonpublic Linux development materials. They have also filed a Motion to Compel Discovery [PDF] and the supporting memorandum [PDF], officially asking for the exact same thing. So SCO is asking for the same relief in the Objection and in the Motion to Compel. They acknowledge that, but they say they are doing it because of the "impending end of fact discovery and the overlap of the issues in the two courts."
The SCO documents fairly scream rush and panic that fact discovery is almost done, and they apparently don't have what they need to win. So, yet another Motion to Compel from SCO, and a double dip to be on the safe side. There have been so many SCO Motions to Compel Discovery I guess we'd better start numbering them. This one is #537 on the Docket.
In the Memorandum, they say that they had sought in their denied motion Linux development materials they believed the Court had ordered IBM to produce and they point out that they also argued that if she had not so ordered, they had asked that the court do so now. Judge Wells denied their motion, saying the court had not earlier ordered IBM to produce the requested materials, but, according to SCO, she didn't address SCO's argument that the Court should now order IBM to produce them. "SCO asks this Court to issue such an order."
I'm sure Judge Wells will be thrilled. Judges simply love it when you ask another judge to simultaneously decide the same issue they are being asked to decide. Not. Judge Kimball presumably gets final say anyhow, so it's hard for me to understand why they are asking Judge Wells to rule on the motion too. Maybe it's the "confuse the judges" defense, so you can appeal. IBM, when it didn't like a Wells order asked her to reconsider, and she did. SCO justs comes out blasting with both barrels. Gentlemanly graciousness is not what one expects from SCO.
They ask for things like "all documents concerning IBM's contributions to any development tree for Linux." Oh, and they'd like the development trees too. Oh, and throw in all documents about all IBM contributions to Linux 2.7, including development work. And "all document[s] concerning IBM's contributions to" ten specific Linux projects, including 'development work,' and 'all documents concerning contributions to Linux' though several additional specific Linux projects." Delay, anyone? At a minimum, they will have to pony up first. They have filed their interim list, and while it's sealed, nothing on the list seems new, but it's not possible to be certain. IBM's response to their motion should be instructive.
SCO explains on page 4 that what they mean is materials such as the "programmer's notes, design documents, white papers, comments, and interim versions of code that IBM's Linux developers generated in developing and making contributions of source code to Linux."
Remember those phrases? Yes, in connection with AIX and Dynix, Judge Wells ordered such materials produced, with certain limitations. SCO tried to shortcut, by claiming that her order must have meant that Linux materials also should be produced the same way. Then they attacked IBM for "refusing" to turn over what they alleged Wells had ordered. Judge Wells clearly told them at the hearing that her order didn't so order. So now they are forced to come back, cup in hand, asking for the materials they didn't ask for before but claimed Wells had ordered anyway. It's like the Night of the Living Dead with these people. They just keep on coming. They hear nothing anyone else says, as onward they press toward what they want.
You'll notice two new names. On SCO's side, Sashi Bach is listed. We haven't seen her before, I don't believe. If you go to the Boies Schiller website, click on lawyer profiles and then the letter B, and then on her name, you will find that her area of expertise is "complex commercial litigation and arbitration, including cases involving technology and intellectual property, class actions, antitrust, health care, power generation, and insurance." Don't all go at once, or they'll probably panic and call a press conference and say they've been attacked. They aren't accustomed to crowds, and they're not techs, so they won't know the difference between a DoS attack and just a lot of people trying to access at once. Bach's an associate, not a partner. They list her cases, including representing a "technology company in an ongoing billion dollar suit over use of Unix source code," so I guess she is here to stay.
At IBM's table, they list Herman Hoyh, but he isn't listed as a Cravath attorney and I couldn't find him on IBM's site or on Google. I'm thinking he's either new or a paralegal. Sometimes in litigation, the paras sit at the table too, particularly in complex cases, where they are finding materials on a laptop, so the lawyers don't have to look for things. The other possibility is that the transcript misspells the name, and he is an attorney. In other words, I don't know.