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To read comments to this article, go here
IBM's Opposition to SCO's Request to Depose Intel, Oracle & Open Group
Tuesday, February 14 2006 @ 10:14 AM EST

Now we find out what happened with SCO and The Open Group. Attached to IBM's Memorandum in Opposition to SCO's Motion for Leave to Take Certain Prospective Depositions, lo and behold, is the subpoena SCO sent to the Open Group. It's as messed up as the other two, the ones to Oracle and Intel which are also attached. That seems impossible to achieve without deliberately filling in the forms wrong. Speaking of which, you'll notice that the subpoena to Oracle IBM attached shows it issuing from the Northern District of California. The one Oracle wrote about did not say Northern. That was one of the defects it listed. Things that make you go hmm.

It's Exhibit 2. (Exhibit 1 is a collection of email between David Marriott and Ted Normand regarding last-minute SCO requests for depositions with Jack Messman and Ed Chatlos, with Marriott agreeing to let them happen after January 27, so long as they are not part of any SCO effort to extend depositions past the deadline; Exhibit 3 is SCO's responses to IBM's First Set of Interrogatories back in October of 2003; and Exhibit 4 is filed under seal.)

IBM's memorandum reminds us, and the court, that Judge Wells has already told SCO they can't extend depositions past January 27:

SCO’s motion seeks an extension of the January 27, 2006 deadline for the purpose of taking additional depositions. Not only did SCO commit that it would not seek to extend that deadline, but the Court expressly ruled that SCO would not be allowed to do so. SCO’s motion therefore should be denied.

SCO being SCO, they are seeking to do exactly that anyway. The problem they have is that they told the court their notice to the Open Group, Intel and Oracle was timely. It wasn't. The Open Group was also sent their subpoena the day before the deposition date, which is no notice at all. It was sent to Massachusetts, when SCO, as an Open Group licensee, should know that the Open Group is headquartered in the UK. It issued from the [blank] District of Massachusetts.

IBM therefore asks the court to deny SCO's motion for the following reasons:

SCO should not be allowed further to extend the deadline for at least five basic reasons: (1) SCO has known about these parties for years, but failed to serve them properly until the day before the close of SCO’s fact discovery 2; (2) the Court ruled in its October 12, 2005 Order that the deadline would not be extended; (3) SCO agreed not to extend the deadline as to depositions beyond those of Messrs. Messman and Chatlos; (4) the Court informed SCO during the January 26 teleconference that the depositions of Intel, Oracle and The Open Group would not be allowed, and SCO’s motion advances no new arguments or reasons for taking these depositions; and (5) it would be prejudicial to IBM to continue to allow SCO to take more depositions—it already has been given leave to take four—during the period when discovery is supposed to be focused on defenses to the allegedly misused material. Accordingly, SCO’s motion for leave to take additional depositions should be denied.

What are the documents The Open Group was asked to bring to the deposition?

1. Documents concerning the creation or development of, and the reasons for creating or developing, Single UNIX Specification 2001.

2. Documents concerning the Open Group's policies and procedures for obtaining legal permission to obtain and use material from third parties in any standard.

3. Documents concerning the inclusion of the following header files in the Single UNIX Specification 2001:

  • difch.h
  • fmtmsg.h
  • ftw.h
  • shm.h
  • ipc.h
  • libgen.h
  • msg.h
  • poll.h
  • sem.h
  • statvfs.h
  • strings.h
  • stropts.h
  • syslog.h
  • ucontext.h
  • ulimit.h
  • utime.h
  • utmpx.h
  • utsname.h
4. Documents concerning any authority from SCO (or any of its predecessors-in-interest) to include any of the header files in Topic 3 as part of Single UNIX Specification 2001.

5. Documents concerning the creation or development of the standards appearing in The Open Group Base Specifications Issue 6.

6. Documents concerning the Open Group's efforts to work on UNIX Developer Guide - Programming Interface ("UDG-PI") in order to make Executable and Linking Format ("ELF") binary specifications a publicly available standard for UNIX-on-Intel.

7. Documents concerning the creation or development of the following specification documents for Linux Standards Base:

  • Common Linux ELF Binary Specification
  • Linux for IA-32 ELF Binary Specification
  • Linux for IA-64 ELF BInary Specification
  • Linux for PPC-32 ELF Binary Specification
  • Linux for PPC-64 ELF Binary Specification
  • Linux for S-390 ELF Binary Specification

8. Documents concerning any authority from SCO (or any of its predecessors-in-interest) to include the ELF standards and documentation in Topic 7 as part of any Open Group standards release.

So, still harping on ELF, which tells me they have done nearly three years of discovery and have found absolutely nothing.

The Notice has Topics for Deposition attached as follows:

1. The creation or development of, and the reasons for creating or developing Single UNIX Specification 2001.

2. The Open Group's policies and procedures for obtaining legal permission to obtain and use material from third parties in any standard.

3. The inclusion of the following header files in the Single UNIX Specification 2001:

  • difch.h
  • fmtmsg.h
  • ftw.h
  • shm.h
  • ipc.h
  • libgen.h
  • msg.h
  • poll.h
  • sem.h
  • statvfs.h
  • strings.h
  • stropts.h
  • syslog.h
  • ucontext.h
  • ulimit.h
  • utime.h
  • utmpx.h
  • utsname.h

4. Any authority from SCO (or any of its predecessors-in-interest) to include any of the header files in Topic 3 as part of Single UNIX Specification 2001.

5. The creation or development of the standards appearing in The Open Group Base Specifications Issue 6.

6. The Open Group's efforts to work on UNIX Developer Guide - Programming Interface ("UDG-PI") in order to make Executable and Linking Format ("ELF") binary specifications a publicly available standard for UNIX-on-Intel.

7. The creation or development of the following specification documents for Linux Standards Base:

  • Common Linux ELF Binary Specification
  • Linux for IA-32 Binary Specification
  • Linux for IA-64 ELF BInary Specification
  • Linux for PPC-32 ELF Binary Specification
  • Linux for PPC-64 ELF Binary Specification
  • Linux for S-390 ELF Binary Specification

8. Documents concerning any authority from SCO (or any of its predecessors-in-interest) to include the ELF standards and documentation in Topic 7 as part of any Open Group standards release.

The bottom line is this, to me. It doesn't matter what the court decides as to the outcome. SCO can depose the Open Group about ELF all day long, and they'll end up exactly where they started: with mountains of absolutely nothing.


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