decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
SCO Motion to Compel and Memo in Suppport - as text - Updated
Sunday, November 20 2005 @ 01:39 AM EST

Here are SCO's Motion to Compel Discovery [PDF] and its Memorandum in Support [PDF], as text, thanks once again to the indefatigable Henrik Grouleff.

The parties, SCO says, are at an impasse with respect to Request Nos. 300-65 in SCO's Seventh Request for the Production of Documents, dated August 12, 2005. It's all about "non-public Linux contribution information." Yes. Again.

[ UPDATE: Groklaw's mickkelly points out that SCO is trying to expand its reach by asking for "All documents concerning any contributions to Linux or to open source made by IBM and/or Sequent."]

They want the court to specifically rule on what they are requesting. They know she agreed with IBM at the last hearing and in her Order that IBM had never agreed to turn over all Linux materials, which is what SCO had argued. They lost that. But they also asked, in the alternative, for a ruling that IBM should now be ordered to do so, which the order didn't specifically address.

They want any document related to Linux that anyone ever sent or received or jotted down on stickies or have on their computers inside IBM or Sequent, so far as I can tell. If anyone in IBM or Sequent whispered "Linux" in a dream in the last decade, SCO would probably like to know about it too. Since IBM offered at the last hearing to hand over documents from 20 developers, SCO says that proves what they are asking for is relevant, so they want the same thing from all 250 of the Linux developers. My advice to IBM: never volunteer anything to these folks. They use it to stab you in the back. Then they ask for more. Give them an inch, and you can expect a motion based on that inch, asking for a mile. That is exactly what they are doing here.

Getting the court to agree, without SCO first showing some infringement it is looking to nail down... well, that's a horse of a different color. SCO got used to the court giving them everything they asked for, so they ask for everything they can think of, including things that don't exist, but now IBM has raised the issue about the discovery protocol, I doubt that the court will go along with SCO's fishing request without SCO having to pony up first. For example, I can imagine IBM asking them to show something, anything, from the materials from the 20 developers before they are allowed to even argue a need for anything from the 250. No doubt IBM will argue that enough is enough, and that what SCO is asking for is over the top. It is, but by asking for what is over the top, they probably hope to get at least the 250. And it's conceivable, from Judge Wells, since she accepted the "methods and concepts" meme, which, in my view was a mistake to begin with, since the contracts and amendments seem clear to me that methods and concepts aren't restricted in any way. But if the judge feels that is a matter for the jury to decide, and if she accepts that methods and concepts can only be demonstrated if you have every interim memo and scratching, as SCO argues, then she might order it all. And that is why SCO is trying again. She might. And, in discovery, they want everything they can get their hands on, hoping to find something they didn't ask for because they didn't know about it.

Discovery isn't supposed to be about trying to find a case, though. It is supposed to be about finding proof to buttress a case you had when you filed, with some variations that may arise in discovery. SCO will have to narrow it to specifics, I believe. They have avoided any specifics about methods and concepts, I note, and I believe that is likely a deliberate strategy, that they feel it's their best card and would prefer to save it for when they feel it will be most effective. That's not to say they are supposed to do that, just that I suspect that is what has been going on.

That doesn't mean they have no hope. The rules of discovery are very broad, so that works in their favor. If there is anything halfway plausible-sounding in what they filed in the interim filing, it will become the basis for supporting this motion, and the centerpiece of the coming hearing, I expect, because we're getting down to the wire. SCO has to finally tell IBM what this has all been about. If there is anything reasonable-sounding -- they filed their list of alleged infringement under seal, and so Groklaw and the FOSS community can't debunk it prior to Wells' ruling -- they might get more discovery, based on that. The magistrate judge, who is not technically trained, doesn't evaluate the merits of a case, remember, just rules on whether there is any basis for a discovery request. If it sounds reasonable to her, she has to grant it, if you catch my drift.

This motion is essentially a shot across the judge's bow, anyway. It fairly screams that they will appeal this issue if they don't get what they want, so they may get something just because of the threat.

Meanwhile, their argument goes like this:

First, the documents SCO seeks are plainly relevant. SCO seeks 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. Such materials are essential to SCO's analysis of the technology (including code, methods, and concepts) relied upon by those programmers when they developed those contributions. In proving its contract, copyright, and tort claims, SCO will demonstrate that IBM improperly relied on SCO's technology in contributing to Linux.

Second, the Court itself has made clear that the documents SCO seeks are relevant. The Court previously ordered IBM to produce programmer's notes, design documents, white papers, and comments that IBM developers generated in developing AIX and Dynix/ptx, Order dated January 18, 2005, at 9-10, as well as all source code for those operating systems, id. at 15. In ordering such materials, the Court has reasoned that "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." Order dated March 3, 2004, at 5; see also January 18 Order at 9, 15. That exact same reasoning applies to the Linux development information that SCO has long sought. It is incongruous that IBM should have to produce its AIX and Dynix source code and development materials, but not source code and development materials for the very contributions to Linux at the heart of this case.

They aren't saying any more that she already ordered these materials, but they are doing the next best thing: they are saying she should order them, that there is a logic to her earlier orders that would lead to this request being granted. They are cunningly telling the judge: Look, you gave us exactly the same things in AIX and Dynix, on the basis of our claims of contract violations having to do with methods and concepts. Now it's only logical you give us the same thing in Linux, so we can comb through it too, and we need all 250 developers' papers and notes, so we can try to find them using our methods and concepts. We need to track the interim steps, because otherwise how can we climb our ladder? On the surface, it has a plausible ring. She bought it with regard to AIX, for example, so why not here?

Because there has been some water under the bridge since then. First, IBM is going to again point out that while it is true that SCO got that discovery order on AIX and Dynix, what has SCO shown that they found? Anything? Again, it comes down to what they have since filed. Another thing has definitely changed, though. Judge Wells was clearly influenced to grant that discovery, in my opinion falsely, by SCO representing at the time that IBM had wrongfully used SVR4 on Power. Now that she knows they were...well... let's say not telling her the whole story, she isn't likely to forget it. Then SCO misrepresented her orders, as she told them plainly at the last hearing and in her last order. How much do you think she liked that? The picture has changed markedly. SCO might still convince her at the hearing, I suppose, if there is anything at all or seems like there might be in what they filed in the interim filing. She has to give them what they need to prove their case. But they do have to have a case now. And no one involved takes them altogether at face value any more, I don't believe.

It's like Boies himself wrote once. You can fool judges some of the time, but in a long trial, you can't. I think we have reached that point in this trial, and everyone knows who everyone is now, and SCO is going to have to put something real on the table. At last.

Of course, it can't help their cause that what they have put on the table in this motion is a request for materials regarding IBM contributions to Linux 2.7, which doesn't exist. I most eagerly await their argument on how they are following the discovery protocol in asking for that.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

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.


SCO'S MOTION TO COMPEL
DISCOVERY



Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells



Plaintiff, The SCO Group, Inc. "SCO"), respectfully moves this Court for an Order compelling Defendant International Business Machines Corporation ("IBM") to produce documents in response to SCO's Seventh Request for the Production of Documents, dated August 12, 2005, as specified in and for the reasons set forth in SCO's memorandum in support of this Motion submitted concurrently herewith.

CERTIFICATION OF COMPLIANCE WITH MEET AND CONFER OBLIGATIONS

SCO's counsel has made a good-faith effort to reach an agreement with IBM's counsel on the matters set forth in this Motion. IBM's counsel stated on July 19, 2005, that IBM has produced all the "non-public Linux contribution information" it is obligated to produce. Letter dated July 19, 2005, from T. Shaughnessy to B. Hatch, at 1. SCO's counsel and IBM's counsel met and conferred by telephone on October 13, 2005, regarding the scope of the Court's Order dated October 12, 2005. IBM's lead attorney during the discussion stated that, in IBM's view, under the Court's October 12 Order IBM is not obligated to produce any non-public Linux contribution information that SCO seeks in its Seventh Requests.

On October 20, SCO's counsel confirmed his view that the parties were at an impasse with respect to Request Nos. 300-65 in the Seventh Request, informed IBM's counsel that the Seventh Requests concern several categories of document requests other than requests for Linux contribution information, and asked IBM's counsel to inform SCO's counsel whether the parties needed to discuss those other categories. In response, a different attorney for IBM, but one who had participated in the October 13 meet-and-confer, said that he did not believe the parties were at an impasse with respect to all of SCO's Seventh Requests.

2

SCO's counsel confirmed on October 21 that the parties were at an impasse with respect to Request Nos. 300-65, but proposed to meet and confer with respect to the other categories of documents at counsel's "earliest convenience." Having received no response, on October 25, SCO's counsel again informed IBM's counsel that the parties were at an impasse with respect to Request Nos. 300-65, but should meet and confer "this week" regarding the other categories of documents sought in the Seventh Request. IBM's counsel has not disputed that the parties are at an impasse with respect to Request Nos. 300-65, and has not responded to SCO's request to meet and confer regarding the other categories of documents sought in the Seventh Request.

DATED this 27th day of October, 2005.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand


By___[signature]___

Counsel for The SCO Group, Inc.

3

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Motion to Compel Discovery was served on Defendant International Business Machines Corporation on the 27th day of October, 2005:

By U.S. Mail and Facsimile:

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

4


Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

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.


MEMORANDUM IN SUPPORT OF
SCO'S MOTION TO COMPEL
DISCOVERY



Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells



SCO respectfully submits this memorandum in support of SCO's motion to compel IBM to produce certain documents in response to SCO's Seventh Request for the Production of Documents, dated August 12, 2005 (the "Seventh Request").

PRELIMINARY STATEMENT

In June 2003, SCO asked IBM to produce IBM's Linux development materials. In its Request Nos. 11, 35, and 42, SCO sought:

11. All contributions made without confidentiality restrictions by IBM or anyone under its control including, but not limited to, source code, binary code, derivative works, methods, and modifications to Open Source Development Lab, Linux Torvalds, Red Hat or any other entity.

35. All documents concerning any contributions to Linux or to open source made by IBM and/or Sequent.

42. All documents concerning IBM's contributions to development of the 2.4 and 2.5 Linux Kernel.

SCO's First Request for Production of Documents, dated June 24, 2003 (emphasis added). Over the course of years and multiple Court Orders (which SCO believed required IBM to produce documents responsive to the foregoing requests), IBM failed to produce responsive documents.

In its Renewed Motion to Compel dated September 6, 2005 (the "Renewed Motion"), and during oral argument on the Renewed Motion on October 7, 2005, SCO argued that the Court should order IBM to produce the Linux development materials that SCO has sought since June 2003, because (1) in SCO's view, the Court had previously ordered IBM to produce them, and (2) if the Court had not so ordered, it should do so now, as SCO had requested the materials and they were plainly relevant and not unduly burdensome for IBM to produce.

In its Order dated October 12, 2005, the Court denied the Renewed Motion on the first ground, but in SCO's view did not address the second ground. Concurrent with this Motion,

2

SCO has filed an objection with the District Court regarding the second ground of the Renewed Motion. Given the impending end of fact discovery and the overlap of the issues in the two courts, the relief SCO seeks in the objection is the same relief SCO seeks in this Motion.

That is, in an abundance of caution, this summer SCO again and very specifically asked IBM to produce all documents concerning IBM's contributions to Linux and development work on those contributions. See SCO's Seventh Request, Nos. 300-65. Request Nos. 300 to 365 are more specific versions of SCO's previous Requests Nos. 11, 35, and 42 for Linux development information. SCO requested, for example:

  • "All document concerning IBM's contributions to" ten specific Linux projects, including "development work," and "all documents concerning contributions to Linux" through several additional specific Linux projects.

  • "All documents concerning IBM's contributions to the Linux 2.7 kernel," including "development work."

  • "All documents concerning IBM's contributions to any development tree for Linux," including the "development trees" themselves.

IBM now openly acknowledges that it possesses hundreds of thousands of responsive documents relating to the development of contributions that IBM has made to Linux. See IBM Opp. to SCO's Renewed Motion at 12-13, 15-16; Decl. of Daniel Frye (9/26/05), 6-10. Those documents are plainly relevant to the core issues in this case, and are plainly responsive to SCO's Request Nos. 300-65. SCO asks this Court to compel IBM to produce all non-public materials responsive to those Requests.

ARGUMENT

SCO brings this Motion on the grounds that this Court should not permit IBM to have it both ways. That is, IBM admits that it has not produced the documents in response to Request

3

Nos. 11, 35, or 42, yet repeatedly opposes SCO's Request Nos. 300 to 365 on the grounds that they are "duplicative" of Request Nos. 11 and 35. IBM cannot credibly decline to produce documents that SCO seeks in its Requests Nos. 300 to 365 on the grounds that those requests are duplicative of SCO's previous Request Nos. 11 and 35, when at the same time IBM admits that it has withheld documents responsive to Request Nos. 11 and 35.

SCO respectfully submits that this Court should order IBM to produce the non-public documents responsive to Requests Nos. 300-65 for several reasons:

First, the documents SCO seeks are plainly relevant. SCO seeks 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. Such materials are essential to SCO's analysis of the technology (including code, methods, and concepts) relied upon by those programmers when they developed those contributions. In proving its contract, copyright, and tort claims, SCO will demonstrate that IBM improperly relied on SCO's technology in contributing to Linux.

Second, the Court itself has made clear that the documents SCO seeks are relevant. The Court previously ordered IBM to produce programmer's notes, design documents, white papers, and comments that IBM developers generated in developing AIX and Dynix/ptx, Order dated January 18, 2005, at 9-10, as well as all source code for those operating systems, id. at 15. In ordering such materials, the Court has reasoned that "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." Order dated March 3, 2004, at 5; see also January 18 Order at 9, 15. That exact same reasoning applies to the Linux development information that SCO has long

4

sought. It is incongruous that IBM should have to produce its AIX and Dynix source code and development materials, but not source code and development materials for the very contributions to Linux at the heart of this case.

Third, the relief that SCO seeks follows from the Court's orders. In its October 12 Order on SCO's Renewed Motion, the Court ordered IBM to produce its "non-public" Linux contributions and the "non-public" Linux-development materials for twenty developers identified by SCO. That is, although IBM opposed the Renewed Motion on the grounds that the documents SCO sought are allegedly irrelevant, IBM nevertheless volunteered to produce the non-public Linux development materials from the files of twenty IBM Linux developers identified by SCO. IBM's offer was an obvious acknowledgment of the relevance of such materials. SCO asks the Court to order IBM to produce the same Linux development materials for the remaining IBM Linux developers, which, according to IBM, exceed 250. From the outset of this litigation, SCO requested those materials as substantial evidence of the technology on which IBM relied in making its Linux contributions through its hundreds of Linux developers.

Fourth, SCO's document requests do not impose undue burden on IBM. Presumably, IBM's Linux developers know best what responsive documents reside in their respective files and "sandboxes".1 IBM would simply direct those developers to gather such documents and then review the accumulated materials for privilege. The materials produced would not differ in kind or volume from those the parties have already provided in discovery.

5

In sum, in light of the plainly relevant nature of the Linux development materials at issue, the express rationale for the Court's prior discovery orders, and the absence of undue burden on IBM, this Court should require IBM to produce those materials.

CONCLUSION

SCO respectfully requests for the foregoing reasons that this Court order IBM to produce the non-public Linux development materials that SCO has long sought, most recently in Request Nos. 300-65.

DATED this 27th day of October, 2005.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand


By:___[signature]___
Counsel for The SCO Group, Inc.


1 A developer's "sandbox" is a process confinement environment or contained operating environment, such as a computer hard drive, that a programmer or developer uses for developing and testing source code, applications, security measures, and the like, and that may contain materials such as interim or draft versions of source code which are not yet ready for release or contribution, programmer's notes, white papers, design documents, and the like.

6

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Memorandum in Support of SCO's Motion to Compel Discovery was served on Defendant International Business Machines Corporation on the 27th day of October, 2005:

By U.S. Mail and Facsimile:

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

7


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )