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1st Word From the Court Hearing - Under Advisement
Tuesday, December 13 2005 @ 03:43 PM EST

We have our first report from today's court hearing in SCO v. IBM, with more to follow soon. This hearing was before Judge Dale Kimball, and it had to do with SCO's Objection to the Magistrate Court's Order of October 12, 2005. SCO believes that Judge Brooke Wells made a mistake, forgetting to rule on whether or not IBM has to turn over all nonpublic Linux materials SCO has been whining for a long time now. They'd like Kimball to correct that and order it all turned over.

Chris Brown tells us this much, so far, that Judge Kimball said he'll take the motion under advisement and will issue a ruling soon. Read on for more details. I'll add to the details as reports flow in. And as I write, Frank Sorenson's quick, initial report has come in.

Here's Chris's first report with more details:

I am back from the hearing. As always, I missed more than I was able to write down. I really wish the court permitted recording devices.


Edward Normand, arguing for SCO, presented his reasons that IBM be ordered to turn over the non-public Linux materials from all 300 or so of IBM's Linux developers including white papers, interim versions, and etc. Argued that SCO is not limited to code-by-code comparisons, but will use the documents produced to show admissions that IBM-contributed code is from Sys-V, AIX, and/or Dynix.

David Marriott, arguing for IBM, first contended that it is SCO's burden, under the "standard of review" to demonstrate Judge Wells was in "clear error" or "acted contrary to law", not that Judge Kimball might have acted or ruled differently than Judge Wells has. Then he argued that Judge Wells did consider SCO's request for the non-public Linux materials from all developers and rejected the same. He also argued that SCO's demand for this production is "too late in the day," introduces an "undue burden" on IBM, and would require a schedule change. He countered SCO's assertions that IBM had conceded the materials are relevant.

Edward Normand, in rebutting IBM, referred to the "standard of review" and stated that Judge Wells had indeed made a mistake and had not considered SCO's request that IBM be ordered to produce the non-public Linux contributions from all developers.

Judge Kimball took it under advisement and said that he would issue a ruling "soon".

Ed Normand sounded plaintive and "hard done by". David Marriott sounded confident and logical.

Chris Brown

And now I've heard from Frank Sorenson, who confirms:

Nothing too exciting happened. Kimball took the matter under advisement.

Starting out, Kimball asked about the "standard of review," why he should overrule the Magistrate Court, and how this motion related to the other motion before Wells.

SCO mainly claims that Wells erred in not ordering IBM to produce all development documents relating to Linux. IBM disagrees.

I can write a little more in a few minutes, but there's not much to report.

I asked Chris some followup questions about Judge Kimball's demeanor, and here's his reply:

My feeling was that SCO will not prevail. Judge Kimball had asked right off the bat about "standard of review" and it was obvious that SCO's prepared presentation was not aimed at answering this. Their points mostly seemed to be to convince Judge Kimball to rule differently than Judge Wells had, as opposed to demonstrating Judge Wells had acted in error. I felt Mr. Normand had only responded to this is a weak manner.

Judge Kimball is pretty good at presenting a nuetral appearance; however it was my impression that he was disinclined to entertain SCO's tale of how important it was for them to have this discovery. It seemed he was likely to first examine whether or not Judge Wells considered SCO's requests before ruling, and whether that ruling appears to answer their request for production or not.

My opinion was that IBM quite convincingly demonstrated that Judge Wells ruled appropriately on all of SCO's requests (by denying them) and took all of SCO's arguments into consideration when doing so.

And now, here's Chris's full report on the day's events:

Seated at the table for SCO was Edward Normand and Brent Hatch. For IBM, David Marriott and Todd Shaughnessy.

Ed Normand opened for SCO stating that they had a "limited" objection to Judge Well's October 12th order and are requesting IBM order the buld of non-public Linux contributions be turned over to SCO.

Judge Wells asked Mr. Normand what he understands by the "standard of review". Mr. Normand said something to the effect that he believes Judge Wells failed to address SCO's assertion that IBM now be ordered to turn over the relevant discovery.

Mr. Normand continued with what he referred to as his three points: 1) the material is directly relevant, 2) no undue burden on IBM, and 3) SCO's due dilligence.

He stated that the discovery sought is plainly relevent including white papers, interim version, notes, & etc. That in the discovery obtained on the 20 developers IBM has turned over already, SCO has found documents that will support its claims. That in the requested discovery SCO seeks evidence of admissions that the source of infringing code is from Sys-V, AIX, or Dynix. He said SCO is entitled to show how that code came from those other operating systems. That SCO is not limited to code-by-code comparisons, but may show how it's developed.

(Note: In fact SCO was dismissive of what it called "code-by-code" comparisons around a half dozen times during the hearing. Could this be foreshadowing their admission that they have been unable to find any evidence of infringing copied code?)

Ed Normand discussed at length about their expectation that in the requested discovery they will find evidence of how IBM contributers to Linux believed they were improving Linux to be an "enterprise class" operating system. He said he wants to see programmers identifying weaknesses in Linux, proposing how they can fix them, and afterwards their statements of how Linux is now better than it was before. I believe I recall him saying something to the effect that this is in support of SCO's claims of IBM improving Linux at SCO's expense.

Mr. Normand said they are further seeking evidence of IBM violating their contract by utilizing protected methods and concepts.

He reports IBM claims to have provided production from 16% of their Linux developers and stated that this is an insufficient fraction. He disputes even the 16% and claims it's closer to 5% or whatever fraction 20 is of 300.

He disputed IBM's assertion that SCO failed in its due dillegence by not requesting this material earlier. He says that SCO has been requesting this material all along and it was addressed at various hearings (which he named).

David Marriott then argued for IBM. He said that SCO has the burden of showing Judge Wells was in "clear error" or "acted contrary to law" and not that Judge Kimball might have acted, or ruled, differently. He disagrees with SCO's assertion that Judge Wells failed to consider SCO's request.

Mr. Marriott described SCO's motion to compel from October and the October 7th hearing as being 1) IBM had violated orders of the court, and 2) Judge Wells should order IBM to produce the discovery. He stated that in IBM's opposition to SCO's motion to compel that Judge Wells had not ordered the discovery and that she should not order it. IBM then went through both the hearing transcript of Oct 7th, and Judge Wells' order of Oct 12th. He read how Judge Wells stated at the hearing that she had reviewed both counsel's submissions. He referred to various pages of the transcript that he believed demonstrated that Judge Wells had both been presented SCO's arguments and considered them. He referred to page 57 where Judge Wells stated she'd considered the arguements and that IBM had not misunderstood. He referred to page 70 where SCO said they had nothing else to discuss.

David Marriott said that IBM had written up the proposed order, and that an agreement could not be reached with SCO over some wording having nothing to do with today's hearing. He said a teleconference was made between Judge Wells, Edward Normand, and Todd Shaughnessy where Judge Wells resolved the issue in IBM's favor. He said that SCO did not bring this issue up either in the teleconference or at order preparation.

He said that SCO's motion is "too late in the day" and places an undue burden on IBM. That it is inconceivable that an order would be made without a schedule change. He reiterated that Linux is developed in public. Mr. Marriott said that IBM has produced documents from about 80 developers related to Linux. He said IBM has produced from 236 custodians while SCO has produced from 66. He reported that IBM required 60 days to produce from the 20 developers chosen by SCO and that these were "intensive productions" requring every bit of those 60 days. He estimated that it would require over a year to produce from hundreds more developers.

He said they *do* contend SCO's motion is delayed unduly. He said SCO's claims to have requested this production in Septemer 2003 but Judge Wells said they did not.

He claims SCO *is* requesting a schedule change because they claim they need this discovery to modify their claims against IBM and that they need to do more discovery after the deadline.

Mr. Marriott said that "No good deed goes unpunished." IBM had made a compromise offer of the 20 developers while disputing the relevance. IBM had offered this as support for depositions. Dates were set for all these depositions. SCO cancelled most of the depositions leaving IBM to go through all that work in production for SCO to only depose several of them.

He said Judge Wells expressly rejected the assertions SCO made in its memoradum in support of this objection.

Ed Normand replied for SCO and referred to the "standard of review". SCO believes Wells made a mistake and did not consider SCO's request. He said there was no discussion of relevance, schedules, burdens, etc.

He said SCO did not believe they were entitled to bring this up in the wording of the order or during the teleconference.

Mr. Normand said that if IBM produced from the other 60 Linux developers then IBM concedes the materials are relevant.

He says as far as the cancellations of the depositions that from public records SCO believed they seemed relevant, but after reviewing the discovery found they couldn't afford to depose them (I believe afford in the sense of using their limited number of depositions on them). That this is one of the purposes and results of discovery is to use it to determine whom to depose.

Judge Kimball said he would take it under advisement and issue a rulling "soon."

Now Frank has filed his full report:

SCO was represented by Ted Normand and Brent Hatch IBM was represented by David Marriott and Todd Shaughnessy.

Normand says that SCO has filed a limited objection to the Magistrate's order, and asks the Court for an order compelling IBM to produce all development documentation on Linux.

Kimball points out that SCO also has a Motion to Compel before the Magistrate court, and asks how the two relate and whether the disposition of one will affect the other.

Normand says that the two motions are parallel, and that the disposition of one will definitely affect the other. He says that IBM offered to produce documents from the 20 Linux developers, and Wells just implemented IBM's proposal. SCO seeks materials from the remaining IBM developers.

Normand says that SCO seeks internal IBM documents from the individual developers 'sandboxes'. They seek to demonstrate that IBM breached the contracts, violated SCO's copyrights, and improperly used SCO's methods and concepts.

Normand says that SCO expects IBM to dispute that the material originated in System V or that the contributions were critical to the advancement of Linux, but the material sought is plainly relevant because:

1) They believe the material contains evidence that IBM copied and misused protected property

2) They believe the material supports SCO's assertions of the importance of the contributions to Linux development

3) They believe the material is critical for tracking the methods and concepts.

Normand says that SCO expects to find admissions from IBM's developers in the materials that the source code came from System V, AIX and Dynix.

Under SCO's theory, SCO is not limited to demonstrating through a code comparison. They want to show in IBM's own words, through the developers notes, emails, etc. They expect that they'll show IBM's developers see a deficiency in Linux, they'll implement it using knowledge and code from System V, AIX, and Dynix, then contribute to Linux. The developer may even mention the importance and improvement to Linux. He talks about the insufficiency of doing a code comparison, and how SCO would like to demonstrate using the internal IBM development notes.

Normand says that IBM's argument regarding the burden imposed is wrong. He mentions that IBM has had substantial involvement in Linux development, and is therefore claiming a large burden. He says that IBM has repeatedly opposed SCO's requests for all development material.

Normand says that while the Magistrate Court ruled that SCO was incorrectly interpreting the rulings, the Court made no ruling on SCO's state of mind in interpreting the court's order, i.e. whether SCO could have interpreted the previous orders the way they did.

Marriott addresses the Court's question about the standard of review, and says that the Magistrate Court's order can only be overruled if it is demonstrated that she made a clear error, or acted contrary to law.

Marriott would like to make three points.

Marriott's first point: In the October 7 hearing and her October 12 Order, Wells did consider the issue of all documents related to the development of Linux. In the October 7th hearing, SCO claimed IBM had already been ordered to produce these documents, or alternately, the Court should issue such an order right then.

Marriott reads from the transcript of the October 7th hearing, where Wells mentioned she had reviewed the arguments, transcripts, orders, etc., she reaffirmed she had reviewed everything and was aware of the issues before her, and in that light, Wells declared that IBM had not been required to provide these materials and that SCO had misinterpreted her previous orders, and she denied the motion.

Marriott says that while IBM was preparing the order, in the subsequent meet & confer, and right after Wells ruled from the bench (and asked whether the parties had anything else that needed to be addressed), SCO did not bring up the issue, and did not claim that Wells had neglected to consider the issue of all Linux development materials.

Marriott's second point: Wells properly resolved the issue, and did not err. He points out that Linux is open -- developed in the public view. He says that IBM has produced significant number of documents. In an effort to resolve the dispute, IBM offered to produce documents from an additional 20 developers, a production that took a full 60 days. To produce all documents from all Linux developers would be an undue burden.

Marriott says that Wells exercised her discretion appropriately, and that SCO delayed this issue until the very end.

Marriott's third point: SCO's arguments distort the record. IBM disputed the relevance of the production of Linux development documents, but attempted to compromise by offering to do so from the 20 developers. He mentioned that SCO's objection shows that "No good deed goes unpunished."

Marriott says SCO gave IBM the list of the 20 developers they wanted to depose, then IBM produced the Linux development documents over 60 days. He says that SCO then took some of the depositions, then cancelled the rest. He asks whether those materials produced by IBM were useless to SCO? He points out that now SCO wants more materials...will those materials be useless as well?

Marriott restates that IBM believes there is no basis for overruling the Magistrate.

Normand restates that SCO does believe that Magistrate Wells erred in her October 12th order. In the order, there is no indication that she considered the issue of whether IBM should then be required to produce Linux development documents. SCO claims to have mentioned that they believed Wells had not addressed the issue.

Normand says that IBM's production of Linux development documents from the 20 developers (and the 60 other Linux developers who IBM had produced from earlier) shows that IBM concedes the relevance of the materials.

Kimball states that he'll take SCO's objection under advisement.

Thank you to both our eyewitnesses. It is so wonderful to know what is happening in detail. To me the most telling bit is that after giving IBM a list of Linux developers it wished to depose, SCO cancelled them after doing a few when it got the additional materials from IBM.

The next part that stands out to me is that SCO argued against code comparisons being necessary. Would they say that if they had any infringing code after doing code comparisons?

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