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To read comments to this article, go here
IBM's Memo in Opposition to SCO's Motion to Depose Intel et al, Exhibits (the 3 Subpoenas) - as text
Monday, February 20 2006 @ 06:13 AM EST

Here's IBM's Memorandum in Opposition to SCO's Motion for Leave to Take Certain Prospective Depositions [PDF], and the exhibits, Exhibit 1 [PDF] (email between IBM and SCO attorneys about a teleconference), Exhibit 2 [PDF] (the three subpoenas and notices of depositions to Intel, Oracle and the Open Group, the second batch), and Exhibit 3 [PDF], portions of SCO's answers to IBM's interrogatories back in October of 2003), as text, thanks to Steve Martin. Exhibit 4 was filed under seal.

I'm guessing SCO is wishing now that they never sent those subpoenas or filed the motion. But there it is, and there is no escape.

I think they rely a great deal on Judge Wells' good nature, but I seriously doubt that even Judge Wells will attribute good faith in the matter of the subpoenas, unless SCO has some extraordinary explanation I can't even imagine.

That is the trouble with stepping over the line, though. Once you get used to doing it, how do you know any more when you've gone too far? What is there to give you a clue? Without an internal moral compass or even just simple obedience to the rules of the game everyone is supposed to play by, what is there to warn you that this time you will hit a wall of outrage, as happened here? You will notice that IBM does not fail to draw the court's attention to Intel's Nonparty Response to SCO's Motion for Leave to Take Certain Prospective Depositions in which Intel informed the court that SCO's account of what happened is "untrue", in footnote 1.

Also, I notice a new attorney name for IBM, Jennifer M. Daniels, listed as of counsel, an inhouse IBM attorney, instead of the usual Donald J. Rosenberg. Checking on this, I find that actually her name first turned up in IBM's recent motion asking the court to throw out most of SCO's list of allegedly misused materials. I just didn't notice until now. We'll have to add her to our Cast of Characters page. I love that page, because it makes it so easy to figure out who is who.

There is one change we've made to the document. Steve included links that don't appear in the original, such as a link to the PDF of Judge Wells' earlier order which IBM quotes from, the one where she told SCO that she wouldn't entertain any motions to extend the January 27 deadline for the sake of depositions. Those links are just aids, not a representation of what is in the original.

We'll find out if Judge Wells means what she says at all on February 24. So far, she has let them take two depositions after the deadline, despite earlier ruling that she wouldn't entertain motions on that theme, as we learn in this memorandum, and IBM let them take two others after the deadline (actually they were just postponements of previously scheduled depositions, I gather from Exhibit 1). You'll see that Ed Chatlos was planning on filing for an order of protection, which IBM tells SCO in Exhibit 1 it will not oppose, if Mr. Chatlos really isn't available after all for the original date. None of this is really extraordinary. Things happen in real life, and people have to reschedule, and the end of discovery tends to be a bit frantic. Of course, it's worse if, like SCO, you could have deposed folks a couple of years ago and just didn't until the very last minute. A little flexibility, as both the court and IBM showed, is appropriate, if it's a matter of unforeseen occurrences, though.

But all of these depositions are using up IBM's discovery time. Likely that is at least part of the point. Having obtained 4 more depositions into IBM's discovery time, of course SCO wants three more (maybe more than three, because it's very likely that the three subpoenaed parties will need to produce more than one witness to address the listed topics), the three depositions they'd like to take of Intel, the Open Group and Oracle. IBM points out that Judge Wells turned them down once on that question in a telephone conference, and since SCO hasn't come up with any new reasons why their request should be granted, their motion should fail, IBM argues.

Betcha SCO comes up with some new reasons now. That would be after the frantic explanations.

But I see something else here. Take a look at the Topics for Deposition on Open Group's 30(b)(6) Notice, on pages 9 and 10 on Exhibit 2. There is no way to read that list and not come away with the distinct impression that SCO is signaling that it is thinking of going after the Open Group. SCO is such a sore loser. Here's my early theory, subject to revision as more facts come to light, and it is a theory that thoroughly creeps me out: I suspect that SCO has gone through all the code, and there is no there there. They have filed a complaint that asks for billions in damages, and they can't find anything of substance to back up their claims. They read Groklaw, so they must have a clue that they won't get too far with ABI and ELF files. What to do? What to do? How about accusing the Open Group of inappropriately including SCO's proprietary code in its specifications? Oh, and Intel appears to be targetted as some kind of accomplice. It's a little late for that, I'd say, but I would imagine it would provide some more delay while everyone has the economic burden and the psychological annoyance of having to prove to the court and to the nontech world that it is another wild and crazy SCO accusation.

I know. It sounds stupid, my theory. But I can't see why else SCO would be making such lists as these. Perhaps you can see something I'm missing. However silly my theory may seem, I put it to you: when has silliness ever stopped SCO from making claims?

Finally, take a look at Exhibit 3. Why, my stars. They are making a claim that just happens to sound a lot like Daniel Wallace's antitrust claim. What a small world. SCO claims that the only reason for switching to Linux is because it's "free" -- by which they mean free as in beer. There is, they allege, no technological advantage to the switch, and therefore IBM is guilty of encouraging companies to switch just so IBM can "gain additional services work" and to "license middleware to customers in lieu of operating system software." "Linux," SCO writes, "adds no technology advantages to customers..." If I may, may I direct you to News Picks? There is, quite coincidentally, a link there to an article in eWeek in which a number of CIOs who have switched to GNU/Linux systems explain that it really wasn't just the reduced costs that made them switch. It was the quality, stability and reliability of the code, and the quick patches and updates. I'm not making this up. Here's the link.

So, what does this tell us? That, once again, SCO has made a claim that doesn't match reality and so is easy to disprove without breaking a sweat. It's the SCO curse.

***************************

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address]
[phone]
[fax]


CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address] [phone]
[fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
-against-

INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
IBM'S MEMORANDUM IN
OPPOSITION TO SCO'S
MOTION FOR LEAVE TO TAKE
CERTAIN PROSPECTIVE
DEPOSITIONS

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

1

Defendant/counterclaim-plaintiff International Business Machines Corporation ("IBM") respectfully submits this memorandum in opposition to SCO's Motion For Leave To Take Certain Prospective Depositions.

Argument

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.

In an order dated October 12, 2005, the Court increased the number of depositions allowable to each side on the condition that the January 27, 2006, discovery deadline would not be extended. The Court ruled:

The Court hereby increases the number of allowable depositions by 10 as to each side. However, all depositions must be completed by the applicable discovery cut-off date as set forth in Judge Kimball's July 1, 2005 Order. To the extent such depositions cannot be completed within that period of time they must be foregone. The Court will not entertain any motion for an extension of time to complete depositions.

(10/12/05 Order at 4.)

On the eve of the January 27, 2006, deadline, SCO nevertheless asked IBM to consent to SCO's taking two depositions (Mr. Jack Messman and Mr. Edward Chatlos) after the deadline. IBM advised SCO that it would not oppose a motion to conduct these depositions after the deadline so long as (1) the witnesses were unavailable before the deadline; and (2) SCO's request was unique, not part of a broader effort to extend the deadline to take additional depositions. (See Ex. 1.) SCO agreed and, on the basis of IBM's consent, obtained leave of Court to take these depositions after the deadline.

2

Having obtained leave of Court to take the depositions of Messrs. Messman and Chatlos, SCO turned around six days later and asked the Court to allow it to take five more depositions after the deadline, including the depositions of Otis Wilson, Ted Kennedy, Intel Corporation ("Intel"), The Open Group, Inc ("The Open Group"), and Oracle Corporation ("Oracle"). SCO did so despite the Court's Order of October 12, 2005 and despite SCO's prior commitment to IBM. In a teleconference with the parties on January 26, 2006, the Court permitted SCO to pursue the depositions of Messrs. Kennedy and Wilson. Relying on its October 20, 2005, Order, however, the Court informed SCO that it would not allow SCO to depose Intel, Oracle and The Open Group. Upon SCO's request, the Court permitted SCO to file this motion.

SCO contends that it should be allowed to proceed with the depositions of Intel, Oracle and The Open Group because it timely served these companies with Rule 30(b)(6) subpoenas and they failed to appear for the depositions without filing a motion to quash or for a protective order. That is false. SCO noticed the depositions of Intel, Oracle and The Open Group for January 27, 2006, the last day on which SCO could depose them. However, SCO failed to serve subpoenas on these three companies until the afternoon of January of 26, 2006. (See Ex. 2) Less than one day's notice is plainly insufficient and represents no notice. See, e.g., In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 327-28 (N.D. Ill. 2005) (finding 10 days notice unreasonable).1

3

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 discovery2 ; (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.

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court deny SCO's Motion for Leave to Take Certain Prospective Depositions.

4

DATED this 13th day of February, 2006.

Snell & Wilmer L.L.P.

/s/ Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Jennifer M. Daniels
Alec S. Berman
[address]
[phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation


1 SCO likewise failed to meet and confer regarding the scheduling of the depositions, as required by the local rules of the jurisdiction from which two of the subpoenas were issued, the Northern District of California. See Nonparty Intel's Response to SCO's Motion for Leave to Take Certain Prospective Depositions, dated February 7, 2006.

2 In answers to interrogatories dated October 23, 2003, SCO identified Intel as one of the companies who had a business relationship with which IBM allegedly interfered. (See Ex. 3.) SCO likewise identified Oracle in its answers to interrogatories dated January 12, 2004. (See Ex. 4 (filed under seal).) Finally, The Open Group the owner of the UNIX and UnixWare trademarks has been cited in almost every press release issued by SCO over the past few years.

5

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of February, 2006, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Todd M. Shaughnessy

6

EXHIBIT 1

1

David Marriott
01/20/2006 03:21 PM

To "Ted Normand" [email address]
cc [tshaughnessy email address]
bcc
Subject RE: SCO v. IBM

Ted,

Ideally we'll have someone on the call. I cannot do it, but I will see if I can reach Todd at the deposition he is in. I have not yet been able to reach him. It does not look good if you are looking to make the call soon. If we cannot be on the call, you may represent that IBM does not oppose the motions subject to the conditions set forth in my emails: (1) the witnesses are truly unavailable; and (2) the deferrals of these depositions are unique circumstances, not part of a broader effort by SCO to extend depositions past the deadline.

Dave


"Ted Normand" [email address]
01/20/2006 03:13 PM

To "David Marriott" [email address]
cc [tshaughnessy email address]
Subject RE: SCO v. IBM

David --

I should have been clearer. To the extent that IBM does not want to appear on the call I mentioned, may I represent to the Court that IBM does not oppose the motions subject to the conditions set forth in your e-mail to me and previous e-mail to Ken Brakebill? Regards,

Ted

-----Original Message-----
From: David Marriott [mailto: [email address]]
Sent: Friday, January 20, 2006 3:05 PM
To: Ted Normand
Cc: [tshaughnessy email address]
Subject: SCO v. IBM

Ted,

In response to your inquiry about postponing Mr. Chatlos' deposition, IBM's position is essentially the same as with respect to Mr. Messman's deposition.

The deadline for SCO to take Novell's deposition is January 27, 2006. Magistrate Judge Wells has been clear that the deadline will not be extended, especially to accommodate additional depositions.

2

We will not oppose a motion by Mr. Chatlos for a protective order, however, assuming he is truly unavailable; and the deferral of his deposition is an essentially-unique circumstance as opposed to a part of a broader effort by SCO to extend depositions beyond the deadline.

Regards,

Dave

This e-mail is confidential and may be privileged. Use or disclosure of it by anyone other than a designated addressee is unauthorized. If you are not an intended recipient, please delete this email from the computer on which you received it.

3

EXHIBIT 2

1

Issued by the
UNITED STATES DISTRICT COURT
________DISTRICT OF Massachusetts

The SCO Group, Inc.

V.

International Business Machines Corp.
SUBPOENA IN A CIVIL CASE
CASE NUMBER:1 2:03CV0294 District of Utah
TO:
The Open Group
[address, MA]

___YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

PLACE OF TESTIMONY
COURTROOM
DATE and TIME
X YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
PLACE OF DEPOSITION
Ropes & Gray LLP
[address, MA]
DATE AND TIME
Jan. 27, 2006 9 a.m.
X YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

See Attached Exhibit A.
PLACE
Ropes & Gray LLP
[address, MA]
DATE AND TIME
Jan. 27, 2006 9 a.m.
____YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
PREMISES DATE and TIME
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officer, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify, Federal Rules of Civil Procedure, 30(b)(6).
ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)
[signature of Edward Normand] For Plaintiff
DATE
1/26/2006
ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
Edward Normand, Esq., Boies, Schiller & Flexner LLLP
[address] Armonk, NY [zip, phone]

(See Rule 45 Federal Rules of Civil Procedure, Parts C & D on Reverse)

1 If action is pending in district other than the district of issuance state district under case number.

2

[blank proof of service form & Rule 45 Federal Rules of Civil Procedure, Parts C & D]

3

EXHIBIT A

You are instructed to produce the following documents at the time and place specified in the subpoena:

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 Specification 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.

4

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.

Instructions and Definitions

A. Definitions

1. The term "AIX" shall mean the UNIX-based operating system known by that name distributed and/or developed by IBM, including all prior versions, releases and maintenance modifications. The term "AIX" shall include, but not be limited to, all version of the "AIX for Power PC" and "AIX for Itanium" operating systems.

2. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing, or constituting.

3. The term "document" shall be synonymous in meaning and usage to the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term "document" shall include without limitation all written, phonic, graphic or recorded matter, including without limitation, information stored on computers, disks, tapes (i.e., magnetic or other storage media), World Wide Web pages, and electronic mailing lists. The term "document" specifically includes electronic mail ("e-mail") and any attachments and files created, maintained, or existing in electronic form.

4. The term "Dynix" shall mean the UNIX-based operating system known by that name distribute and/or developed by Sequent Computer Systems, Inc. and/or IBM, including all prior versions, releases, derivative works, methods, and modifications. The term "Dynix" shall include, but not be limited to, all versions of the "Dynix/ptx" operating system.

5. The term "include" or "including" shall mean including without limitation.

5

6. The term "Linux" shall mean any version of Linux.

7. The term "UNIX" shall mean any and all versions, flavors, or other variants of any UNIX computer operating system, including, without limitation, all operating systems certified as conforming to the UNIX-brand standards.

B. Instructions

1. Each paragraph herein should be construed independently and, unless otherwise stated, without reference to any other paragraph for the purpose of limitation.

2. Unless otherwise specified, the documents requested are the responsive documents in your possession, control or custody that were prepared, written, sent, dated, received, applicable or in effect at any time up to the date of your compliance with this demand.

3. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, it shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

4. All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

5. With respect to any document responsive to this request that is withheld from production based upon a claim of privilege, please provide the information required pursuant to the Federal Rules of Civil Procedure.

6. If, for reasons other than a claim of privilege, you refuse to provide any document requested herein, state the grounds upon which the refusal is based with sufficient specificity to permit a determination of the propriety of such refusal.

7. The deposition will be recorded by stenographic and audio-visual means.

6

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

SCO'S NOTICE
OF 30(b)(6) DEPOSITION

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

PLEASE TAKE NOTICE that pursuant to Rules 26 and 30(b)(6) of the Federal Rules of Civil Procedure, counsel for plaintiff, The SCO Group, Inc. ("SCO"), will take the deposition upon oral examination of The Open Group ("Open Group"), on January 27, 2006, beginning at 9:00 a.m. This deposition will be taken at the offices of Ropes & Gray LLP, [address]

7

[address continued], and will be taken pursuant to Rules 26 and 30 of the Federal Rules of Civil Procedure.

Open Group is directed, pursuant to Fed. R. Civ. P. 30(b)(6), to designate one or more officers, directors, managing agents or other person(s) who consent to testify on its behalf concerning matters known or reasonably available to Open Group, concerning the topics specified below. The deposition will be taken before a Notary Public authorized by law to administer an oath and will continue from day-to-day until completed. The deposition will be recorded by stenographic and videotape means.

SCO incorporates all instructions, definitions and rules contained in Rules 30 and 34 of the Federal Rules of Civil Procedure and the local rules or individual practices of this Court.

DATED this 26th day of January, 2006.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By [signature of Edward Normand]

Counsel for The SCO Group, Inc.

8

TOPICS FOR DEPOSITION

  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 Specification 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 ELF Binary Specification

    9

    • 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. 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.

10

Issued by the
UNITED STATES DISTRICT COURT
Northern DISTRICT OF California

The SCO Group, Inc.

V.

International Business Machines Corp.
SUBPOENA IN A CIVIL CASE

CASE NUMBER:1 2:03CV0294 District of Utah
TO:
Intel Corporation
[address]

___YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

PLACE OF TESTIMONY
COURTROOM
DATE AND TIME
X YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
PLACE OF DEPOSITION
Boies, Schiller & Flexner LLP
[Oakland CA address]
DATE AND TIME
Jan. 27, 2006 9 a.m.
X YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

See Attached Exhibit A.

PLACE
Boies, Schiller & Flexner LLP
[Oakland CA address]
DATE AND TIME
Jan. 27, 2006 9 a.m.
___YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
PREMISES DATE AND TIME
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6).
ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)
[signature of Edward Normand] For Plaintiff
DATE
1/26/2006
ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
Edward Normand, Esq., Boies, Schiller & Flexner LLP
[address], NY [zip, phone]

(See Rule 45 Federal Rules of Civil Procedure, Parts C & D on Reverse)

1 If action is pending in district other than the district of issuance state district under case number.

11

[blank proof of service form & Rule 45 Federal Rules of Civil Procedure, Parts C & D]

12

EXHIBIT A

You are instructed to produce the following documents at the time and place specified in the subpoena:

1. Documents concerning any communications with IBM relating to SCO, SCO's lawsuit against IBM, SCO's lawsuit against Novell, Inc., or SCO's lawsuit against AutoZone, Inc.

2. Documents concerning the communications between Intel and IBM during each of their so-called "IBM/Intel Executive 5x5" meetings, such as the one that occurred on January 30, 2001.

3. Documents concerning Intel's business and contractual relationships with SCO, Caldera Systems, Inc., and The Santa Cruz Operation, Inc.

4. Documents concerning Intel's efforts and attempts to make the following UNIX System V Release 4 ("SVR4") header file Application Program Interfaces ("APIs") a standard for public use as part of 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

5. Documents concerning Intel's efforts to work with IBM 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, including Intel's communications with IBM regarding the foregoing efforts.

13

6. Documents concerning Intel's participation in the development of any version of or supplement to the UNIX System V application binary interface (or "ABI") and UNIX System V interface definition (or "SVID").

Instructions and Definitions

A. Definitions

  1. The term "AIX" shall mean the UNIX-based operating system known by that name distributed and/or developed by IBM, including all prior versions, releases and maintenance modifications. The term "AIX" shall include, but not be limited to, all version of the "AIX for Power PC" and "AIX for Itanium" operating systems.

  2. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing, or constituting.

  3. The term "document" shall be synonymous in meaning and usage to the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term "document" shall include without limitation all written, phonic, graphic or recorded matter, including without limitation, information stored on computers, disks, tapes (i.e., magnetic or other storage media), World Wide Web pages, and electronic mailing lists. The term "document" specifically includes electronic mail ("e-mail") and any attachments and files created, maintained, or existing in electronic form.

  4. The term "Dynix" shall mean the UNIX-based operating system known by that name distributed and/or developed by Sequent Computer Systems, Inc. and/or IBM, including all prior versions, releases, derivative works, methods, and modifications. The term "Dynix" shall include, but not be limited to, all versions of the "Dynix/ptx" operating system.

  5. The term "include" or "including" shall mean including without limitation.

  6. The term "Linux" shall mean any version of Linux.

  7. The term "UNIX" shall mean any and all versions, flavors, or other variants of any UNIX computer operating system, including, without limitation, all operating systems certified as conforming to the UNIX-brand standards.

B. Instructions

14

1. Each paragraph herein should be construed independently and, unless otherwise stated, without reference to any other paragraph for the purpose of limitation.

2. Unless otherwise specified, the documents requested are the responsive documents in your possession, control or custody that were prepared, written, sent, dated, received, applicable or in effect at any time up to the date of your compliance with this demand.

3. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, it shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

4. All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached,shall not be separated or disassembled.

5. With respect to any document responsive to this request that is withheld from production based upon a claim of privilege, please provide the information required pursuant to the Federal Rules of Civil Procedure.

6. If, for reasons other than a claim of privilege, you refuse to provide any document requested herein, state the grounds upon which the refusal is based with sufficient specificity to permit a determination of the propriety of such refusal.

7. The deposition will be recorded by stenographic and audio-visual means.

15

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

SCO'S NOTICE
OF 30(b)(6) DEPOSITION

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

PLEASE TAKE NOTICE that pursuant to Rules 26 and 30(b)(6) of the Federal Rules of Civil Procedure, counsel for plaintiff, The SCO Group, Inc. ("SCO"), will take the deposition upon oral examination of Intel Corporation ("Intel"), on January 27, 2006, beginning at 9:00 a.m. This deposition will be taken at the offices of SCO's counsel Boies, Schiller & Flexner

16

LLP, [Oakland, CA address], and will be taken pursuant to Rules 26 and 30 of the Federal Rules of Civil Procedure.

Intel is directed, pursuant to Fed. R. Civ. P. 30(b)(6), to designate one or more officers, directors, managing agents or other person(s) who consent to testify on its behalf concerning matters known or reasonably available to Intel, concerning the topics specified below. The deposition will be taken before a Notary Public authorized by law to administer an oath and will continue from day-to-day until completed. The deposition will be recorded by stenographic and videotape means.

SCO incorporates all instructions, definitions and rules contained in Rules 30 and 34 of the Federal Rules of Civil Procedure and the local rules or individual practices of this Court.

DATED this 26th day of January, 2006.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By (signature)

Counsel for The SCO Group, Inc.

17

TOPICS FOR DEPOSITION

  1. Any communications with IBM relating to SCO, SCO's lawsuit against IBM, SCO's lawsuit against Novell, Inc., or SCO's lawsuit against AutoZone, Inc.

  2. The communications between Intel and IBM during each of their so-called "IBM/Intel Executive 5x5" meetings, such as the one that occurred on January 30, 2001.

  3. Intel's business and contractual relationships with SCO, Caldera Systems, Inc., and The Santa Cruz Operation, Inc.

  4. Intel's efforts and attempts to make the following UNIX System V Release 4 ("SVR4") header file Application Program Interfaces ("APIs") a standard for public use as part of 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

  5. Intel's efforts to work with IBM 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, including Intel's communications with IBM regarding the foregoing efforts.

  6. Intel's participation in the development of any version of or supplement to the UNIX System V application binary interface (or "ABI") and UNIX System V interface definition (or "SVID").

18

Issued by the
UNITED STATES DISTRICT COURT
Northern DISTRICT OF California

The SCO Group, Inc.

V.

International Business Machines Corp.
SUBPOENA IN A CIVIL CASE

CASE NUMBER:1 2:03CV0294 District of Utah
TO:
Oracle Corporation
[address]

___YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

PLACE OF TESTIMONY
COURTROOM
DATE AND TIME
X YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
PLACE OF DEPOSITION
Boies, Schiller & Flexner LLP
[Oakland CA address]
DATE AND TIME
Jan. 27, 2006 9 a.m.
X YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):

See Attached Exhibit A.

PLACE
Boies, Schiller & Flexner LLP
[Oakland CA address]
DATE AND TIME
Jan. 27, 2006 9 a.m.
___YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
PREMISES DATE AND TIME
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6).
ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)
[signature of Edward Normand] For Plaintiff
DATE
1/26/2006
ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
Edward Normand, Esq., Boies, Schiller & Flexner LLP
[address], NY [zip, phone]

(See Rule 45 Federal Rules of Civil Procedure, Parts C & D on Reverse)

1. If action is pending in district other than the district of issuance state district under case number.

19

[blank proof of service form & Rule 45, Federal Rules of Civil Procedure, Parts C & D ]

20

EXHIBIT A

You are instructed to produce the following documents at the time and place specified in the subpoena:

  1. Documents concerning any communications with IBM from and after June 1, 2001, relating to SCO.

  2. Documents concerning any communication with IBM from and after January 1, 2003, relating to SCO's current lawsuit against IBM, SCO's current lawsuit against Novell, Inc., and SCO's current lawsuit against AutoZone, Inc. or the possibility of legal action by SCO against any of the identified parties.

  3. Documents concerning Oracle's decisions to certify any version of any Oracle software product, or to decline to certify any such version of any Oracle software product, for operation on any version of SCO's UnixWare or OpenServer products at any time since January 1, 2000.

  4. Documents concerning Oracle's communications, both internally and with any third party, regarding its decision(s) to certify or decline to certify any version of any Oracle software product for operation on any version of SCO's UnixWare or OpenServer products since January 1, 2000.

  5. Documents concerning Oracle's business and contractual relationships with SCO, Caldera Systems, Inc., and The Santa Cruz Operation, Inc., including:

    a. All certifications issued by Oracle for any Oracle software product for operation on any version of UnixWare or OpenServer at any time;

    b. All software agreements by which Oracle licensed any version of UNIX System V binary or source code from SCO or a predecessor (including any version of OpenServer and Unix Ware);

    c. All agreements of any kind by which Oracle obtained access to any version of UNIX System V (including any version of OpenServer and UnixWare) binary or source code; and

    d. The purpose, scope, duration and subject matter of all agreements of any kind between Oracle and SCO, Caldera Systems, Inc. and/or The Santa Cruz Operation, Inc. since January 1, 1995.

  6. Documents concerning the identification of all versions of all Oracle software products that Oracle certified for operation on any version of any

    21

    UNIX-based operating system, including but not limited to UnixWare, OpenServer, AIX, HPUX, Irix, Dynix, and Linux, since January 1, 1995.
  7. Documents concerning the identification of all instances in which Oracle has been asked to certify any version of any Oracle software product for operation on any operating system, but has refused to do so, since January 1, 1995.

Instructions and Definitions

A. Definitions

  1. The term "AIX" shall mean the UNIX-based operating system known by that name distributed and/or developed by IBM, including all prior versions, releases and maintenance modifications. The term "AIX" shall include, but not be limited to, all versions of the "AIX for Power PC" and "AIX for Itanium" operating systems.

  2. The term "concerning" shall mean relating to, referring to, reflecting, describing, evidencing, referencing, discussing, or constituting.

  3. The term "document" shall be synonymous in meaning and usage to the broadest scope of the term used in Rule 34(a) of the Federal Rules of Civil Procedure. The term "document" shall include without limitation, information stored on computers, disks, tapes (i.e., magnetic or other storage media), World Wide Web pages, and electronic mailing lists. The term "document" specifically includes electronic mail ("e-mail") and any attachments and files created, maintained, or existing in electronic form.

  4. The term "Dynix" shall mean the UNIX-based operating system known by that name distributed and/or developed by Sequent Computer Systems, Inc. and/or IBM, including all prior versions, releases, derivative works, methods, and modifications. The term "Dynix" shall include, but not be limited to, all versions of the "Dynix/ptx" operating system.

  5. The term "include" or "including" shall mean including without limitation.

  6. The term "Linux" shall mean any version of Linux.

  7. The term "UNIX" shall mean any and all versions, flavors, or other variants of any UNIX computer operating system, including, without limitations, all operating systems certified as conforming to the UNIX-brand standards.

22

B. Instructions

  1. Each paragraph herein should be construed independently and, unless otherwise stated, without reference to any other paragraph for the purpose of limitation.

  2. Unless otherwise specified, the documents requested are the responsive documents in your possession, control or custody that were prepared, written, sent, dated, received, applicable or in effect at any time up to the date of your compliance with this demand.

  3. Each requested document shall be produced in its entirety. If a document responsive to any request cannot be produced in full, it shall be produced to the extent possible with an explanation stating why production of the remainder is not possible.

  4. All documents produced in response to this subpoena shall be produced in the same order as they are kept or maintained in the ordinary course of business and, where attached, shall not be separated or disassembled.

  5. With respect to any document responsive to this request that is withheld from production based upon a claim of privilege, please provide the information required pursuant to the Federal Rules of Civil Procedure.

  6. If, for reasons other than a claim of privilege, you refuse to provide any document requested herein, state the grounds upon which the refusal is based with sufficient specificity to permit a determination of the propriety of such refusal.

  7. The deposition will be recorded by stenographic and audio-visual means.

23

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

SCO'S NOTICE
OF 30(b)(6) DEPOSITION

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

PLEASE TAKE NOTICE that pursuant to Rules 26 and 30(b)(6) of the Federal Rules of Civil Procedure, counsel for plaintiff, The SCO Group, Inc. ("SCO"), will take the deposition upon oral examination of Oracle Corporation ("Oracle"), on January 27, 2006, beginning at 9:00 a.m. This deposition will be taken at the offices of SCO's counsel Boies, Schiller & Flexner

24

LLP, [Oakland address], and will be taken pursuant to Rules 26 and 30 of the Federal Rules of Civil Procedure.

Intel is directed, pursuant to Fed. R. Civ. P. 30(b)(6), to designate one or more officers, directors, managing agents or other person(s) who consent to testify on its behalf concerning matters known or reasonably available to Intel, concerning the topics specified below. The deposition will be taken before a Notary Public authorized by law to administer an oath and will continue from day-to-day until completed. The deposition will be recorded by stenographic and videotape means.

SCO incorporates all instructions, definitions and rules contained in Rules 30 and 34 of the Federal Rules of Civil Procedure and the local rules or individual practices of this Court.

DATED this 26th day of January, 2006.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By [signature of Edward Normand]

Counsel for The SCO Group, Inc.

25

TOPICS FOR DEPOSITION

  1. Any communications with IBM from and after June 1, 2001, relating to SCO.

  2. Any communication with IBM from and after January 1, 2003, relating to SCO's current lawsuit against IBM, SCO's current lawsuit against Novell, Inc., and SCO's current lawsuit against AutoZone, Inc. or the possibility of legal action by SCO against any of the identified parties.

  3. Oracle's decisions to certify any version of any Oracle software product, or to decline to certify any such version of any Oracle software product, for operation on any version of SCO's UnixWare or OpenServer products at any time since January 1, 2000.

  4. Oracle's communications, both internally and with any third party, regarding its decision(s) to certify or decline to certify any version of any Oracle software product for operation on any version of SCO's UnixWare or OpenServer products since January 1, 2000.

  5. Oracle's business and contractual relationships with SCO, Caldera Systems, Inc., and The Santa Cruz Operation, Inc., including:

    a. All certifications issued by Oracle for any Oracle software product for operation on any version of UnixWare or OpenServer at any time;

    b. All software agreements by which Oracle licensed any version of UNIX System V binary or source code from SCO or a predecessor (including any version of OpenServer and Unix Ware);

    c. All agreements of any kind by which Oracle obtained access to any version of UNIX System V (including any version of OpenServer and UnixWare) binary or source code; and

    d. The purpose, scope, duration and subject matter of all agreements of any kind between Oracle and SCO, Caldera Systems, Inc. and/or The Santa Cruz Operation, Inc. since January 1, 1995.

  6. Identification of all versions of all Oracle software products that Oracle certified for operation on any version of any UNIX-based operating system, including but not limited to UnixWare, OpenServer, AIX, HPUX, Irix, Dynix, and Linux, since January 1, 1995.

  7. Identification of all instances in which Oracle has been asked to certify any version of any Oracle software product for operation on any operating system, but has refused to do so, since January 1, 1995.

26

EXHIBIT 3

1

Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION


THE SCO GROUP,

Plaintiff,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.

PLAINTIFF'S SUPPLEMENTAL
RESPONSE TO DEFENDANT'S
FIRST SET OF INTERROGATORIES

Case No. 2:03CV0294DAK

Judge: Dale A. Kimball
Magistrate Brooke C. Wells

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, and the Local Rules for the United States District Court for the District of Utah, Plaintiff, The SCO Group, Inc. ("SCO"), hereby files this Supplemental Response to Interrogatories No. 1 through 8 of Defendant's First Set of Interrogatories and states as follows:

2

natural levels for the purposes of destroying competition in the operating systems market for UNIX software on Intel machines, and to improperly gain advantage and extract profits from customers through inducing customers to unnecessarily switch operating systems from UNIX to Linux, without any technological benefit for customers, solely to gain additional services work for IBM and license middleware to customers in lieu of operating system software. In other words, Linux adds not technology advantage to customers its only advantage is that it is purportedly "free" for customers. If Linux is not distributed at a zero price point, customers will not switch to Linux and therefore will not purchase related IBM services or middleware. By artificially restraining the price of Linux to zero, which price is very substantially below the actual development cost contributed by IBM and others, IBM induces customers to switch to Linux. This is, among other things, unfair competition.

INTERROGATORY NO. 8

Please identify all agreements with which plaintiff alleges IBM interfered and describe, in detail, each instance in which plaintiff alleges or contends that IBM interfered with those agreements, including but not limited to: (a) the date of the alleged interference; (b) all persons involved in the alleged interference; (c) the specific manner in which IBM is alleged to have interfered with the agreement; (d) the specific actions, if any, that IBM induced or encouraged plaintiff's customers or licensees to take; (e) the specific action, if any, that plaintiff's customer or licensee took as a result of the actions allegedly induced or encouraged by IBM; and (f) the specific trade secret or confidential or proprietary information, if any, involved in the alleged interference.

3

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 8:

In addition to the General Objections set forth in Plaintiff's Responses, SCO notes that discovery is in preliminary stages and SCO has not yet received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM. Subject to and without waiving these objections, Plaintiff supplements and revises its response to this Interrogatory No. 8 and states, on information and belief, at various times from 2000 to the present, IBM has induced or attempted to induce breach of agreements between SCO and some of its customers by assisting and/or performing services in switch from UnixWare to Linux that involved or would involve breach of SCO's software agreements through improper use of shared libraries for use on Linux of various applications designed for UnixWare. Customers that IBM has contacted for such improper purposes include Sherwin Williams, Auto Zone, Target, Krogers, Advanced Auto, Shaw's Supermarkets, State of Maine (Department of Labor), Eckerds, and Safeway.

In addition, IBM, through Karen Smith and Daniel Frye and possibly others, approached certain of SCO's partners during LinuxWorld in January 2003 to induce such partners to stop doing business with SCO, including Hewlett Packard, Intel and Computer Associates. SCO's own investigation into this matter is continuing, and additional information will be provided as it becomes available, including upon receiving such information from IBM.

4

Dated this 23rd day of October, 2003.

As to Objections:

By: [signature of Brent O. Hatch]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE

As to Responses:

[signature line left blank]
Christopher S. Sontag
Sr. Vice President
Operating System Division
The SCO Group, Inc.

STATE OF UTAH )
:ss.
County of Utah___)

The above signed Christopher S. Sontag, being duly sworn upon oath, deposes and says that he has read the above responses to discovery requests and that the responses contained therein are true to the best of his knowledge, information and belief.

[signature line left blank]
Notary Public

(Seal)

5


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