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IBM's Memo in Opposition to SCO's "New Renewed Motion" to Compel - PDF and text
Wednesday, November 09 2005 @ 08:52 PM EST

IBM has now filed a terse Memorandum in Opposition to SCO's New Renewed Motion to Compel Discovery [PDF]. SCO's "New Renewed Motion" is here [PDF], and we've written about it earlier.

They point out to the court that SCO was ordered to file a new motion, not to renew the old one, and they say that SCO was not altogether forthcoming and neglected to tell the court about all the discovery IBM has turned over, not to mention the depositions SCO has done, with more scheduled, specifically the January deposition with Sam Palmisano. The rest of what they are asking for, IBM asserts, is either moot or privileged.

I think maybe we see in this document what it was that IBM and SCO got settled, resulting in the last hearing being cancelled at the last minute when the parties settled their dispute. IBM reveals that the parties have resolved certain issues related to SCO's 30(b)(6) topics, so IBM has agreed to make some 30(b)(6) witnesses available. Remember that SCO has been claiming, for example in its previous Memorandum in Support of its Renewed Motion to Compel Discovery (the one they were supposed to withdraw, I think #366 -- though it's getting hard to keep track of all SCO's new and renewed and rerenewed and new renewed again motions to compel, and in the Memorandum in Support of its Renewed Motion to Compel, although they mean the New Renewed Motion to Compel -- I simply give up trying to trace it all, but they keep saying the same things anyway, so what does it really matter?), that IBM was improperly "refusing" to produce such witnesses?

In response to valid Rule 30(b)(6) notices, IBM has improperly refused to produce any witness to testify on numerous subjects of central relevance to this case.

Some of those topics are still the subject of the current dispute, but some are now resolved, in one case because SCO narrowed its demands. Does that mean it was not so valid after all?

In case you've forgotten what a 30(b)(6) witness is:

(6) A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

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

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 COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION

Defendant/Counterclaim Plaintiff.

IBM'S MEMORANDUM IN
OPPOSITION TO SCO'S NEW
RENEWED MOTION TO COMPEL
DISCOVERY


(ORAL ARGUMENT REQUESTED)

Case No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits this memorandum in opposition to Plaintiff/Counterclaim-Defendant The SCO Group, Inc.'s ("SCO") New Renewed Motion to Compel Discovery.

Preliminary Statement

In response to the Court's October 12, 2005 Order directing SCO to withdraw its earlier motion seeking the production of (1) all documents from certain IBM executives and from its Board of Directors that relate to Linux and (2) witnesses who can speak to certain 30(b)(6) topics noticed by SCO and to file a new motion on the subjects, SCO filed a two-page "New Renewed Motion" declining to withdraw any of the items sought by its original December 23, 2004 motion, and resting on the arguments it made in its December 23, 2004 memorandum in support of its motion.

In addition to the arguments raised in IBM's February 4, 2005 oppposition brief, several additional events have occurred which make SCO's motion moot. None of these events is taken into account by SCO in its "New Renewed Motion."

First, SCO neglects entirely the fact that in the Court's recent October 12, 2005 order, the Court found that IBM "appropriately interpreted" the Court's March 3, 2004, January 18, 2005, and April 19, 2005 Orders, and that "SCO's interpretation of the Orders takes out of context what the Court believes to be the clear meaning of the Orders." Second, although the discovery SCO requested that gave rise to this motion is narrow, IBM has produced more than a million pages of documents since SCO filed its December 23, 2004 motion, including documents concerning IBM's Linux strategy, documents concerning the development of Linux, and other Linux-related documents. Third, SCO deposed Irving Wladawsky-Berger, the subject of part of SCO's motion to compel, but failed to establish at his deposition that Mr. Wladawsky-Berger's

2

document production was deficient. Fourth, the Court has ruled that SCO is entitled to depose IBM's CEO Sam Palmisano, and SCO can ask Mr. Palmisano about his documents. IBM also has agreed to make a Rule 30(b)(6) witness available to testify concerning documents from IBM's Board of Directors. This deposition discovery renders moot the pending motion. Fifth, as explained below, the Rule 30(b)(6) topics that are the subject of SCO's motion are now either moot or not subject to discovery.

Argument

I. SCO's INTERPRETATION OF THE COURT'S PRIOR ORDERS IS UNREASONABLE

As this Court confirmed at the October 7, 2005 hearing and in its October 12 Order, the interpretation of the Court's prior orders advanced by SCO in its prior briefing (briefing upon which SCO continues to rely) is overbroad and "takes out of context what the Court believes to be the clear meaning of the Orders." (Oct. 12, 2005 order at B.3.) SCO claims that IBM is required by the Court's earlier Orders to produce all "Linux-related" documents from the files of Mr. Wladawsky-Berger, Mr. Palmisano, and the Board of Directors. (SCO Reply Memo. in Further Support of Renewed Motion to Compel Discovery (2/25/05), at 5). The Court's October 2005 ruling made it clear that its prior orders were not as broad as SCO contends. It confirmed that IBM's interpretation of those Orders -- an interpretation which IBM utilized in producing documents from the files of Mr. Palmisano, Mr. Wladawsky-Berger, and the Board of Directors -- was the correct one. As properly interpreted, the Court's Orders, as applied to the certain senior executives and the files of Board of Directors from whom SCO sought documents through its motion to compel, required only the production of documents concerning IBM's decision to adopt or embrace Linux as reported in the March 20, 2000 article in the New York

3

Times. 1 IBM undertook a reasonable search for, and produced, documents responsive to this narrow request.

II. IBM HAS PRODUCED MORE THAN A MILLION PAGES OF DOCUMENTS SINCE DECEMBER 2004

Although the scope of documents requested from Mr. Palmisano, Mr. Wladawsky-Berger, and IBM's Board of Directors is narrow, IBM has produced, since December 2004, more than a million of pages of documents responsive to SCO's other document requests, including documents relating to IBM's Linux strategy and business plans, Linux development, and other Linux-related documents. Documents have been produced from the files of, among others, IBM executives such as Steve Mills, Nick Bowen, and Dan Frye, the vice president who is in charge of IBM's Linux Technology Center. 2 SCO's "New Renewed Motion" fails even to acknowledge this fact.

III. SCO'S DEPOSITION OF MR. WLADAWSKY-BERGER DID NOT REVEAL ANY WITHHOLDING OF RELEVANT DOCUMENTS.

In January 2005, SCO deposed Mr. Wladawsky-Berger. At his deposition, SCO examined Mr. Wladawsky-Berger about his role in the production of documents from his files in this case. Mr. Wladawsky-Berger's testimony confirmed what Mr. Wladawsky-Berger stated in his November 17, 2004 declaration -- he along with IBM's counsel undertook a reasonable search for documents responsive to SCO's request and he turned over all such documents to

4

IBM's outside counsel for review. SCO did not establish at Mr. Wladawsky-Berger's deposition that responsive documents were withheld, nor has it argued since his deposition testimony on this subject is inadequate.

IV. SCO WILL HAVE THE OPPORTUNITY TO DEPOSE OTHER WITNESSES ON THIS SUBJECT

As SCO acknowledges in its "New Renewed Motion," it was afforded an opportunity by this Court to take Mr. Palmisano's deposition, which currently is scheduled for January 11, 2006. As was the case with Mr. Wladawsky-Berger, SCO will have a chance at Mr. Palmisano's deposition to ask Mr. Palmisano questions relating to the collection and production of documents in this case and to satisfy itself as to the accuracy of Mr. Palmisano's November 18, 2004 declaration. IBM has also agreed to make available a Rule 30(b)(6) witness to testify concerning the search for documents from IBM's Board of Directors. Again, this deposition will provide SCO an opportunity to ask questions concerning the collection of documents from IBM's board. SCO's concerns about the production of documents from these sources should be addressed through these depositions, not another motion to compel.

V. THE RULE 30(B)(6) TESTIMONY SCO SEEKS IS MOOT OR NON-EXISTENT.

The two Rule 30(b)(6) topics that are the subject of SCO's "New Renewed Motion" are either moot or not subject to discovery. The first topic concerns IBM's communications with Novell and, as explained in our opposition papers, is hopelessly overbroad. SCO has since propounded more narrow 30(b)(6) topics concerning Novell, and IBM has agreed to make witnesses available in response to these new topics. Thus, this portion of the motion is now moot. The second topic concerns discussions within IBM about UNIX licensing rights and liabilities in connection with IBM's acquisition of Sequent. As we have explained to SCO, any

5

such discussions would have involved IBM's attorneys and are therefore privileged. Thus, there is no witness to make available on this topic.

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court deny SCO's New Renewed Motion to Compel Discovery.

DATED this 8th day of November, 2005.

Snell & Wilmer L.L.P.

___[signature]___
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

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

Of Counsel:

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation


1 To the extent SCO's requests called for a search for other documents from the files of these executives, IBM searched for and produced non-privileged responsive documents, as appropriate.

2 In addition, since December 2004, IBM has produced hundreds of millions of lines of code and a massive amount of other electronic data from its CMVC and RCS systems.

6

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of November, 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]

(signature)

7


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