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IBM's Memo in Opposition to SCO's Motion to Compel
Friday, January 20 2006 @ 12:58 PM EST

Some action in the SCO v. IBM litigation, as IBM files a withering reply to SCO's motion to compel.

Which motion to compel, you ask? There have been so many. Why, the latest in the long string of motions to compel that seem to be designed simply to harrass IBM by asking for everything that SCO can possibly think of, so IBM is sent scurrying about, spending time and money on irrelevant make-work.

Even the court must be getting confused, because IBM titles its memorandum to indicate which motion we are currently talking about: IBM's Memorandum in Opposition to SCO's December 29, 2005 Motion to Compel Discovery [PDF]. We also have a supporting Declaration by Todd Shaughnessy [PDF].

This SCO motion to compel is the one with the memorandum in support that SCO filed under seal. We now learn some of what SCO is trying to compel.

SCO is seeking discovery related to its "damages" claims. They want documents to prove how much the court should award them if they win, ha ha. So what does SCO ask for? How much money IBM has made from Linux, for one thing. Now, as it happens, IBM doesn't sell Linux, so therein lies an issue. Shaughnessy tells the court, however, that IBM has already turned over a massive amount of documents regarding IBM's Linux-related revenue.

IBM tells the court, We've gone beyond what we are required to do already, and SCO's motion should be denied as moot, irrelevant or overbroad. They don't add the word mean, but that is what they are saying in effect. SCO didn't even meet with IBM to work out their requests before filing this motion, IBM reveals. That is a big NO. The court is unlikely to look favorably on any request from SCO if they've failed to do that.

Lots of you have asked, when does the court finally see what SCO is up to? I think they do already, and that is why SCO lost the last motion to compel, but it's really up to IBM to complain at each juncture, and here they do.

SCO continues to pretend that IBM is being bad in discovery. Why? I have a theory of my own. I think it may be that SCO hoped to get some of IBM's evidence thrown out by means of sanctions. You've seen SCO ask for sanctions already in prior motions to compel. It's a doomed strategy, however, because IBM hasn't been bad in discovery, as the Magistrate Judge clearly told SCO in her last order. But I think that could be why there have been so many inexplicable motions to compel.

One item SCO wants is "All documents concerning customers or users who migrated" to Linux from any other operating system. Here's IBM's answer:

In other words, if a company ever migrated any part of its computer systems to Linux, SCO's requests appear to seek all documents concerning such company, whether or not the documents are even remotely connected to any subject matter in this lawsuit. Rather than meeting and conferring with IBM in an attempt to narrow the scope of its requests and provide IBM with additional particularity as to what documents it really seeks, SCO filed its motion. SCO's motion should be denied.

What is it indicating to the court when it says "documents it really seeks"? That SCO is playing games in discovery, that they have something particularly in mind, but instead of asking for it, they are casting a wide net for information that isn't useful in this litigation but must be for other, unrelated purposes. And another implication is that they wish to keep IBM in the dark as to what they are seeking. Are they hoping to sue other companies, like AutoZone, someday, using this material, if they get it, or is this simply more busiwork for IBM or are they just seeking discovery in this broad way to avoid cluing IBM in to what they really plan to say at trial? No, you are not allowed to ask for unrelated documents.

Then in footnote 2, IBM lays it on the line:

SCO repeatedly contends that IBM has conceded the relevance of certain types of documents or testimony because IBM has produced documents or otherwise permitted discovery on those topics. SCO's contention flies in the face of the principle of discovery cooperation, including as urged by the COurt in its January 18, 2005 Order (p. 11). IBM has gone above and beyond what it is required to do in providing SCO with documents and information requested by SCO, even documents and information which are irrelevant. For example, SCO has propounded document requests on a wide variety of topics, and notwithstanding its objections as to relevance, IBM, in the interests of discovery cooperation, has in many cases provided SCO with documents responsive to those requests. Similarly, at depositions, IBM has not generally sought to restrict SCO from asking detailed questions on far-ranging subjects, even irrelevant subjects. SCO's attempts to take advantage of IBM's cooperation by describing such cooperation as an acquiescence on relevance is misguided.

IBM has behaved more than appropriately, they are saying. The Court asked the parties to be cooperative in discovery, and IBM obeyed and complied. More than complied. For SCO now to try to get a leg up by saying that IBM has conceded certain relevance (meaning now that it is conceded, IBM has to turn over more of that type now) would be to punish IBM for obeying the Court's directive. It is inconceivable that any court would go along with that.

There may be some items that the Court will decide are relevant. The same thing could have happened if SCO had approached IBM and negotiated, which is the normal procedure. But SCO is making a bad name for itself in this litigation, no way around it, and it is bound to cost them.

Here are the most recent entries from PACER:

01/11/2006 599 **RESTRICTED DOCUMENT** RETURN OF SERVICE/Acceptance of Service Executed for Subpoena served on PricewaterhouseCoopers LLC, Ivan P. Stolze on 1/4/06, filed by Defendant International Business Machines Corporation. (blk, ) (Entered: 01/12/2006)

01/17/2006 600 MEMORANDUM in Opposition re 592 MOTION to Compel Discovery filed by Defendant International Business Machines Corporation. (blk, ) (Entered: 01/19/2006)

01/17/2006 601 DECLARATION of Todd M. Shaughnessy filed by International Business Machines Corporation. (blk, ) (Entered: 01/19/2006)

01/19/2006 602 Minute Entry for proceedings held before Judge Brooke C. Wells : Telephone Conference held on 1/19/2006 re: Interpretation of order 184 as to production of affidavits or delcarations to be used at deposition. Parties to prepare order. Attorney for Plaintiff: Ted Normand, Attorney for Defendant David Marriott. (alp, ) (Entered: 01/19/2006)

Another conference on how to interpret an order. SCO just can't seem to accept that they are losing now and that the last Order was a sign, but from all I can see, I believe they are losing. Certainly, if my theory that SCO had a strategy to seek sanctions against IBM is correct, that strategy has failed. Hopefully that means we won't have to read any more SCO motions to compel.

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