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More SCO Discovery Games
Friday, February 24 2006 @ 04:36 PM EST

I know. I know. You want to know what is news about SCO wanting more discovery. But here we are again, SCO's Memorandum in Support of Plaintiff's Motion to Compel [PDF], filed in redacted form. Another motion to compel. It's not my fault they are repetitive.

Attached are numerous exhibits, Exhibits 1 - 34. Yes. 34. They want IBM to turn over a mountain of documents. IBM, in a letter you can find in Exhibit 2, tells them:

Enclosed are IBM's Responses and Objections to SCO's Fifth Request for the Production of Documents. As a general matter, we believe that these document requests are tremendously overbroad and seek irrelevant information, and it is difficult to see what purpose they have other than to harass and impose undue burden on IBM.

SCO asks for things like "all transaction-level data for all sales of hardware usable with Linux-based operating systems, AIX operating systems, or Dynix operating systems." Hardware. All data for sales of all hardware. Linux runs on everything, dudes, from watches to supercomputers, which is just one reason why SCO made a life-altering mistake when it dropped Linux and chose to ride off into the sunset on its crippled Unix donkey.

Here is the complete filing, all PDFs:

Exhibit 1 - SCO's Fifth Request for Production of Documents, dated December 20, 2004.

Exhibit 2 - IBM's Responses and Objections to SCO's Fifth Request for the Production of Documents

Exhibit 3-17 - Don't bother. It's all under seal.

Exhibit 18 - SCO's Seventh Request for Production of Documents, dated August 12, 2005

Exhibit 19 - IBM's Responses and Objections to SCO's Seventh Request for the Production of Documents (70 pages)

Exhibits 20, 21 - under seal

Exhibit 22 - SCO's Amended Notice of 30(b)(6) Deposition dated August 15, 2005, mostly about Sequent and Novell

Exhibit 23 - Letter from Ted Normand to Amy Sorenson, in which you can see him try to wrest an "admission" from IBM regarding motives for investing in Novell

Exhibit 24-29 - under seal

Exhibit 30 - SCO's Amended Notice of 30(b)(6) Deposition- One odd topic for deposition is IBM's reason for "portraying or marketing AIX... as a UNIX System-V operating system, rather than a BSD-based operating system

Exhibit 31 - a December 16, 2005 letter from IBM to SCO regarding an Amended Notice of 30(b)(6) deposition SCO served, and in the letter IBM explains its responses and objections to various topics; includes IBM agreeing to produce a witness to testify about JFS and RCU and SCO asking for all the programmers who were exposed to SCO's Unix products and then contributed to Linux

Exhibit 32, 33 - under seal

Exhibit 34 - a letter to Ted Normand from Dell's Christopher V. Popov, dated November 22, 2005, regarding a subpoena served on Dell

And they'd like all documents IBM has about Project Monterey, "including organizational charts identifying personnel involved in Project Monterey." And again they ask the court to make IBM turn over Linux materials. The court already said no to that. These lawyers need to enter the Olympics, where refusal to give up is a plus.

Exhibit 1 also has a little chart, labeled The Works, where SCO lists code IBM has copyrights on, and SCO asks for every scrap of paper having to do with the copyright registrations for each item on the list. That speaks of fear on SCO's part that they really will be fined for violating the GPL. In the second paragraph, SCO admits that they need some of the materials they are asking for to deal with IBM's counterclaims. They say they want all documents that "prove or disprove that IBM's copyrights on the Works are valid and enforceable" and some proof that the copyrighted works are "original and copyrightable."

Say, there's an interesting topic for discussion. Does a company actually own the copyrights it is litigating over? Hmm. I have an idea. How about SCO goes first? Between SCO and the Blackberry case, I'm thinking someone needs to rearrange the rules so that a company suing over IP has to first prove it even owns what it's suing about. After that is established, then the discovery could begin.

What is this all about? How about harrassment? I also think SCO would like IBM to get sidetracked during IBM's period of discovery by having to respond to SCO's discovery requests, which were supposed to be finished by now.

SCO demurely tells the court, "IBM could produce the foregoing documents and witnesses within the current deadline (March 17, 2006) for the end of all fact discovery." Yeah, if they drop everything else and do nothing but run around in SCO circles. SCO's deadline has already come and gone as of January 27. March is IBM's deadline for *their* defense discovery.

SCO was supposed to finish by now, leaving IBM alone to continue discovery into the third period, ending March 17. SCO would like the court to order IBM to produce mountains of documents for SCO instead.

Most of what it wants, SCO tells the court, relates to "SCO's theory of damages with respect to its contract, copyright, and tort claims." Now, I've long understood that SCO wants IBM to hand over some money, honey. But until SCO demonstrates at least one viable claim, it seems a bit much to send IBM off on another massive make-work discovery project.

SCO needs the mountain of documents to prove its theory of damages, it argues:

An obvious aspect of SCO's theory of damages is evidence of how IBM's Linux-related revenues and profits have increased from the late 1990s to the present, during the period in which IBM has undertaken to improve Linux by misappropriating SCO's protected technologies and to benefit from such improvements. A critical component of SCO's damages model will be the evolution of IBM's contributions over time and the fruits of those contributions, which were borne in its revenues in sales of Linux-related hardware, middleware, software, and consulting services.

Is that not a scream? What planet are these people on? Damages for what? For crying out loud, what is the billion-dollar crime here, even if you credited SCO's account of things as outstretchedly as your sense of reality will let you?

Oh, and they want to know how much money IBM made from AIX since SCO supposedly terminated the license. Now, my memory of that "termination" is that Novell cancelled it, for starters, and it was based on alleged trade secret violations, wasn't it, before SCO acknowledged it has no trade secrets in Unix? (Yup. I went to check. They "terminated" based on alleged trade secret violations, as you can see in this article from June of 2003. SCO claimed there were trade secrets in UnixWare, while admitting there are no trade secrets in Unix. But since SCO dropped that trade secrets claim, where does that leave their "termination"?)

They want IBM to provide documents "concerning the market size and market shares for the Linux, UNIX, and Windows operating systems." Why? So SCO can "demonstrate how much of the market IBM has acquired and can expect to acquire as a result, in significant part, of IBM's misappropriation of SCO's proprietary technologies in IBM's contributions to Linux."

I'm trying so hard not to snort. SCO wants to use that info "to demonstrate the amount of market share SCO would have realized if IBM had not used its improper contributions to Linux to make it an enterprise-ready operating system that took market share from SCO's UNIX products." SCO needs to read the Houlihan valuation again. Clearly they were not paying attention.

Speaking of Houlihan, Dr. Stupid noticed some things I missed:

I spotted the following in the evaluation:
Exhibit 22 --

The "fair market" evaluation of SCO's "technology" (i.e. all the relevant IP it owned) was less than $2m. In contrast the reseller channel was valued at $13m.

IBM-631A-3.pdf, p7 --

The evaluation of the Server products division (the oldSCO bit) makes no mention of ownership of underlying UNIX assets. This, in the context of an evaluation, makes no sense unless either (a) Caldera didn't own the underlying UNIX assets or (b) they were perceived as of no value. Neither of which is helpful to SCO.

The server group is described merely as "a vendor of UNIX operating systems"

Later on it is mentioned that oldSCO acquired the "UNIX *business*" from Novell.

IBM-631A.pdf --

Check out page 24 of the PDF, where the major factors are given for a valuation of the SCO trademark. Strangely, being the owners of UNIX is not one of them! You'd think it would be a factor - if it were true.

Annoyingly, IBM hasn't filed exhibit 2, the impairment analysis...

To see things SCO's way, one must turn off one's brain, because otherwise one might recall that SCO back then was a Linux company that stood to benefit from improvements to Linux itself, which is why its employees helped to make it an enterprise-ready operating system. SCO, duly lobotomized and hence free of such pesky memories, tells the court it will be able to demonstrate "the amount of money IBM should disgorge to SCO as a result of IBM's wrongdoing."

Disgorge. That sounds like a lot. In their dreams.

And IBM's wrongdoing is what again? I've been watching every single day since this saga began, and I have yet to see it. And if SCO wants market share information, can't it just look on Google? Or hey. Shoot another email to Microsoft. I hear they keep track of such things pretty closely.

What else does SCO want? Believe it or not, SCO wants to know all the IBM customers who switched to Linux. They want "all documents concerning IBM's plans, efforts or attempts to market, promote, or advertise (a) hardware products or software products usable with Linux-based operating systems, AIX operating systems or Dynix operating systemss; (b) middleware software usable in a Linux environment; or (c) services (including installation, development, maintenance, consulting, or migration services) associated with Linux-based systems or software products, AIX systems or software products, or Dynix systems or software products."

Does that sound a trifle broad, do you think? Just a tad?

I must be dense, but how does it damage SCO if an AIX customer switches to GNU/Linux? Wouldn't that hurt IBM instead? Say, this wouldn't be about intimidating companies so they are afraid to switch to GNU/Linux, would it?

We learn from this filing that SCO asked IBM back in August for all documents "concerning the financing, funding, sponsorship, or promotion of Groklaw." It's found in Exhibit 18. IBM replied in Exhibit 19, beginning on page 11:

In addition to the foregoing general objections, IBM objects specifically to this Request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissable evidence. IBM also objects to this Request on the grounds that the content of the Groklaw website, a non-IBM, publicly accessible website, is as accessible to SCO as it is to IBM. Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM states that it does not finance, fund, sponsor, or promote Groklaw; IBM does not have any agreements or arrangements with Groklaw or Pamela Jones, and IBM does not necessarily agree or disagree with the content of any of the material published on Groklaw.

So, there you have it, straight from the horse's mouth. "IBM states that it does not finance, fund, sponsor, or promote Groklaw; IBM does not have any agreements or arrangements with Groklaw or Pamela Jones, and IBM does not necessarily agree or disagree with the content of any of the material published on Groklaw."

That's true. Was SCO trying to intimidate me? Who knows? Maybe it might have if I had known about it at the time. The fact that I am just reading this for the very first time in February ought to tell them they're barking up the wrong tree.


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