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IBM Files 2 Executives' Declarations
Monday, January 09 2006 @ 02:58 PM EST

You'll recall that at the last hearing, Magistrate Judge Brooke Wells decided that IBM should provide affidavits from a couple of more executives as to what they did to comply with SCO's discovery requests, as Frank Sorenson's report told us:
SCO's Motion to Compel Production from IBM's Execs: Wells took a short recess to read up on a few things before making a finding that IBM has acted in good faith with respect to the production of documents from Palmisano & Wladawsky-Berger. In light of wording used in the February 2004 hearing, the March 2004 order was meant to include Paul Horn & Nick Bowen. IBM has stated that they have produced documents from their files, and should provide affidavits stating that IBM has performed a reasonable search of their files and produced responsive, non-privileged documents. If SCO believes the production is insufficient, they should ask the individuals during depositions (which, if taken, won't count against the 50 allowed). SCO's Motion is therefore GRANTED in part, and DENIED in part.

Friday was the day for IBM to do that, and IBM filed two executive declarations on Friday. One affidavit is from Nicholas S. Bowen [PDF], Vice President, Software Development, IBM Systems & Technology Group, and the other is from Paul M. Horn [PDF], Senior Vice President, IBM Research, as ordered.

They both say that the lawyers told them what to look for, and they did, and they turned it over to the lawyers for review, and that they believe all the responsive materials were provided to SCO. Mr. Horn's administrative assistant helped him look, as did the lawyers, in December. Mr. Bowen looked, with the lawyers, in September and turned over what they found initially, and since then, he's found more and turned that over as well.

So, that's that. Of course, if SCO could ever find anything that the two executives hid in a shoebox somewhere on purpose, or trip them up in a deposition somehow, they could undermine the credibility of the two executives and hence IBM could be punished by the judge or whatever. You'll remember how IBM showed by deposition material that William Broderick's claim in his declaration that he had been uninterruptedly employed by SCO or its purported predecessors turned out not to be precisely true. As a result, the court ruled that his affidavit was insufficient to establish transfer of privilege, and IBM won its motion to compel production of documents on SCO's privilege log.

That's the kind of thing SCO is hoping for. But frankly, you don't normally get to be a Vice President at IBM by hiding things in shoeboxes and then lying about it in affidavits. Consequently, I don't expect anything like what happened to Mr. Broderick to happen to either of these two, but I'm just explaining the purpose of the affidavits, so you understand the underlying chess moves.


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