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Did Judge Wells Fail to Rule on SCO's Motion? - I Don't Think So
Wednesday, December 14 2005 @ 01:54 AM EST

I took the time to review the transcript of the October 7th hearing, in SCO v. IBM to see who was correct in the current dispute between the parties over SCO's objections to Judge Wells' Order of October 12th, 2005, argued in Tuesday's court hearing. I was naturally curious to see if I could figure out what will happen, which way Judge Kimball might rule.

SCO alleges that they brought a motion with an alternative request that all nonpublic Linux materials be turned over. According to them, Judge Brooke Wells never ruled on that alternative request:

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 Magistrate Court should order IBM to produce Linux development materials that SCO has sought since June 2003, because (1) in SCO's view, the Magistrate Court had previously ordered IBM to produce them, and (2) if the Magistrate Court had not so ordered, it should do so now, as the requested materials were plainly relevant and not unduly burdensome for IBM to produce. In denying the Renewed Motion, the Court concluded that it had not previously ordered IBM to produce the requested materials, but did not address SCO's argument that the Court should now order IBM to produce them. SCO asks this Court to issue such an order.

IBM, according to our eyewitnesses at yesterday's hearing, told the judge that Wells did rule on all parts of SCO's motion, and that she denied the SCO motion. Certainly they made that argument in their opposition memo.

I have to tell you, though, that I started out thinking SCO might be right, because on a surface reading of the written Order, I saw no specific sentence addressing their alternative relief. However, on closer inspection, I see SCO did indeed bring up the request in the hearing, multiple times, so when the judge ruled and said she denied the motion, clearly it meant all their requests. What clinches it, for me, is that SCO got some additional materials ordered, as part of the order they are objecting to. Judge Wells ordered some additional limited production of materials IBM offered to produce at the hearing. If that isn't responsive to SCO's alternative request for more nonpublic Linux materials, what is it? It certainly doesn't relate to anything else in SCO's motion. Nothing else explains that aspect of the ruling.

So, on that basis, I concluded that IBM is correct in its interpretation of what happened and that SCO just isn't happy with the order. Once again, SCO seems to be either misunderstanding what Judge Wells writes and says, or they are playing the delay game, covered over by word games. I collected snips of the transcript to show you what convinced me that IBM ought to prevail.

First, though, let me remind you of what Judge Wells said in her Order, the written one SCO is objecting to:

1. IBM did not agree to produce all documents relating to the development of Linux, as SCO contends;

2. The issue of the discovery from IBM of all documents relating to the development of Linux was not raised before the Court, was not understood by the Court to be a part of SCO's prior motions, and was not contemplated in the Court's March 3, 2004, January 18, 2005, and April 19, 2005 Orders (the "Orders");

3. IBM appropriately interpreted the Orders, and SCO's interpretation of the Orders takes out of context what the Court believes to be the clear meaning of the Orders;

4. The declarations of Todd M. Shaughnessy regarding discovery are sufficiently in compliance with the requirements of the Court to explain those efforts made and those documents not produced; and

5. At the hearing, IBM nevertheless offered to undertake a reasonable search for and produce non-privileged and non-public Linux programmer's notes, design documents, white papers, and interim or draft versions of Linux contributions from the files of 20 of the IBM Linux developers whom SCO identifies as potential deponents and whose files it would like IBM to search.

Accordingly, IT IS HEREBY ORDERED that IBM has complied with the Orders of the Court, and that SCO's Motion to Compel Discovery and request for sanctions therein is denied. In accord with IBM's offer, SCO is ordered to provide IBM, on or before October 12, 2005, with a list of the 20 Linux developers. IBM will endeavor to make its production on a rolling basis, but in any case shall complete the production by December 7, 2005. SCO must complete the deposition of these developers before January 27, 2006.

Stuart Singer spoke for SCO at the hearing, and the indefatigable David Marriott for IBM. Judge Wells is represented in the transcript as "The Court". Here are the snips I found that I think are relevant, with comments by me in blue text:

Judge Wells, p. 6 of transcript:
19 THE COURT: Mr. Singer, let me stop you real
20 quickly and supplement the record by indicating this so that
21 you know. I have read the submissions of both SCO and IBM.
22 have read the affidavit of Mr. Shaughnessy. I have read the
23 transcript of the original of the orders -- or the hearing
24 that resulted in the orders, and I have read each of the
25 orders themselves.

This shows that Judge Wells had read SCO's motion documents and that would include their request that IBM be ordered to turn over all nonpublic Linux materials. So even if not one word was ever said at the hearing on the matter, it was already before her.

Singer, p. 18:
4 And it's indicated that in many instances, there's
5 been a development process which runs from IBM or Sequent
6 programmers immersed in SCO's proprietary UNIX code between
7 the selection of AIX and Dynix material for Linux and the
8 actual contributions to Linux. SCO requires access to that
9 development history including both code and related
10 documentation for exactly the same reason this Court has held
11 that:
12 SCO needed access to the material evidencing the
13 developers and development process of Dynix and AIX
14 themselves.

Here's Singer's first request for the materials related to their alternative relief. "SCO requires access," as he puts it.

Singer, p. 24:
12 appropriate steps to preserve that information upon the
13 commencement of this suit. We submit that that information
14 should be produced in a manner they should work with us that
15 requires the least adjustment, if any, to the discovery
16 schedule in place. For example, we have a number of
17 depositions of programmers coming up, and they should give us
18 an advance of those programmers' depositions the files
19 indicating what it is those programmers were working on.
20 Instead, we have a situation where they're saying,
21 you take blindly these depositions of the programmers. You
22 can ask them what work they did in a deposition, but you
23 shouldn't get the benefit of the files of their desk top or
24 their server which would indicate what work they did in
25 preparing the contribution.

Here's Singer's second demand. The materials "should be produced", he says, meaning now. "They should give us" prior to depositions of IBM programmers the materials SCO is asking for.

Singer, p. 25, 26:
1 Clearly that material is very relevant and is at
2 the heart of this case. And even if it were not the subject
3 of these earlier orders and the earlier agreement by IBM, it
4 should be produced.

Here's Singer's third request. Even if SCO was wrong about the earlier orders and what they ordered, "it should be produced." That in a nutshell is the alternative relief that SCO was asking for in the motion.

Singer, p. 26:
19 Your Honor. We submit that they have an order to produce it
20 forthwith. And we submit further if the Court agrees with us
21 respectfully that their action has not been appropriate in
22 this regard, and the Court should consider sanctions, as well.
23 THE COURT: Thank you, Mr. Singer.

Here's the fourth request, and they not only ask for an order telling IBM to produce the materials, they ask for sanctions. She didn't specifically state that she denied that request either.

Uh oh. Me and my big mouth. I hope SCO doesn't file a motion about that. Joke. Joke. The judge did specifically deny the sanctions request.

Marriott, p. 32:
5 documents. Your Honor will remember that at the beginning of
6 the case the allegations of the complaint left, we thought us
7 unsure as to what this case was about. And that's what
8 precipitated the set of motion practice about figuring out how
9 we would receive the discovery. And Your Honor set up
10 protocol, as I think of it, by which SCO would identify the
11 code at issue in the case. Once identified, IBM would then
12 provide discovery with respect to that. That is as we
13 understand it has been the protocol in the case.

This is a point that makes it hard for Kimball, in my view, to order anything further turned over, until SCO fulfills its obligation to tell IBM what code is at the "heart" of the case, as SCO would say. That's the protocol, and if that is the protocol, you can't say, "Well, just give them everything," particularly if they haven't filed what they are supposed to to give IBM a clue about what this discovery is about. What I don't know is what SCO filed that is under seal. If Judge Kimball waits to rule until December 22, the final deadline for SCO to file all allegedly infringing code, he'll be in a position to know if any further discovery would be appropriate, based on what SCO files. Unless he orders a different protocol, he can hardly order that every paper at IBM that mentions Linux has to be turned over, no matter what code it is related to, and whether or not SCO has an allegation about the code on the table.

Marriott, p. 48, 49:
23 Your Honor, in addition, we do believe -- and I
24 won't burden the Court with this point, these arguments have
25 been made before, and I think they stand true today
[p. 49]
1 no reason for the production now given the protocol Your Honor
2 has set out for this information. We have produced the
3 contributions that are available. To the extent there were
4 nonpublic things that really didn't qualify as contributions
5 but were failed effort, they have been made available. We
6 have produced, you know, the equivalent of billions of lines
7 and literally hundreds of millions of lines of AIX and Dynix
8 code, all of the development information from that
9 information.

Here Marriott argues against their motion's alternative relief. He said there's no reason for it to be ordered, given the protocol.

p. 50, Singer:
10 MR. SINGER: Thank you.
11 First, Your Honor, these requests are not directed
12 to everything in the company. The particular focus of this
13 that we are asking the Court to rule either has already been
14 required or should be required forthwith are the documents
15 created by the Linus Technology Center that have not been
16 produced to date, that are nonpublic and they relate to IBM
17 contributions that have actually been made to the outside
18 world.
19 Now, to the extent there are documents that are in
20 the public domain, that's not included. To the extent there
21 was work on dead ends that didn't actually result in
22 contributions, that's not included.

Here Singer again asks for a ruling on their request, saying it either has been required earlier or if not, it should be. Again, that is precisely their alternative relief.

p. 55, Singer:
21 With respect to the burden, we do not believe that
22 300 people at the core of the project, 50 of whom apparently
23 have already gathered some undefined set of material from
24 Linux is unreasonable for IBM to be ordered to provide. That
25 is at the very core of this case.

Once more, Singer says it should be ordered now, and that it wouldn't be a burden.

p. 56, 57, Marriott:
22 distributors. What I heard Mr. Singer saying is what he
23 really wants is to have the documents for the developers he's
24 going to depose.
25 We are agreeable, Your Honor, if SCO wants to give
[p. 57]
1 us a list of the 20 developers that they think they've got to
2 depose and they want to give us a fair opportunity to meet
3 with these people and to collect the documents and if we could
4 put this to rest, we will go to -- they choose the people,
5 because I don't want them to complain that we chose the wrong
6 people later on, they know who the people are. They know who
7 they want to depose. They told the Court recently in an order
8 they had a pretty good sense of what they were going to do by
9 way of deposition. We will go to the files of those 20
10 people, and to the extent documents are there that haven't
11 been produced from whomever they select, we will provide them.
12 Thank you, Your Honor.

Here's Marriott making the offer to provide materials in a limited fashion.

Judge Wells, p. 58:
8 So I find that IBM has, in fact, complied with the
9 orders of the Court, and I would deny except as has been now
10 acknowledged will be provided SCO's motion to compel.

So, as you can see, the matter was raised repeatedly by SCO at the hearing, opposed by IBM, and at the end, IBM offered a suggested solution, to move the case forward, and the judge agreed and ordered that IBM's suggestion be followed. That was her ruling on their request that IBM turn over all nonpublic Linux materials, SCO's alternative relief. She decided to limit the Linux discovery they get to do to the 20 developers IBM volunteered to provide.

So, the bottom line is that Judge Wells did not make a mistake and forget to rule on SCO's alternative relief request, according to my reading of the transcript. After hearing SCO ask for more materials, she said that their motion was denied except as to what IBM said they'd provide. As it happens, when you bring a motion asking for X, Y and Z, the judge can simply say, motion denied. That means X, Y, and Z are all denied. She doesn't have to say, motion is denied as to X. It is denied as to Y. It is also explicitly denied as to Z, although she can. The thing about SCO's lawyers is, they sound so plausible, it pulls you in, unless you look very closely, which is what I've just done, and what I hope the Judge will do as well.

I hope Judge Kimball doesn't grant SCO's motion, because it would teach SCO a lesson that I think they need to learn. Instead of being forthright with the court and simply asking for what they wanted like men, they instead did this elaborate song and dance, claiming that Judge Wells had already ordered these materials turned over and accusing IBM unjustly of violating her orders. They even asked for sanctions. Wells told them they were misinterpreting her orders, and she said IBM had never been ordered to turn over what SCO was asking for. She denied their motion, but would she have done so, I wonder, if they hadn't played the games they did? We'll never know. Now they're claiming that something Wells wrote in an order means one thing, while a more reasonable interpretation is that she said exactly what she meant. She meant to deny their motion, and she did deny it. That's my conclusion anyway. Feel free to form your own impression. That's why I provide all the links.

I can't believe they almost had me convinced.


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