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Methods, Concepts and a Demand for Specificity - Updated 2Xs
Saturday, April 22 2006 @ 04:06 PM EDT

SCO's expert Marc Rochkind, in his Declaration, has told the judge that with methods and concepts, it's not necessary or usual to be specific about lines and versions:
10. Contrary to disclosures of source code, disclosures of methods and concepts neither require an accompanying disclosure of source code, nor is the method and concept defined or identified by source code. Many textbooks on computer programming discuss methods and concepts without providing accompanying source code for actual systems. I strongly disagree with the premise of Professor Davis that version, file, and line of source code must be provided to identify a method and concept, and to prepare a defense to an allegation of misuse.

SCO's attorney Stuart Singer also told the court at the hearing on April 14th, according to our eyewitness' report, that with methods and concepts, code is not required to be specified:

On the first, SCO said that they have identified with specificity, but that with technologies the code is not required. Judge Wells reminded him that the orders were to specify files, lines, but that now SCO's talking "technologies". Stuart replied that when SCO was talking about code, they were talking about methods and concepts. Judge Wells says that they have not argued that until now. Mr. Singer said that methods and concepts don't require file, line. Judge Wells said she doesn't remember ever talking about methods and concepts, that we've always been talking about the code. Judge Wells said, "Look at the specific orders". Stuart said they've complied where appropriate, that there has not been a requirement for SCO to identify files and lines for methods and concepts. Where they releated to code, they have been identified. He said the contracts between SCO(sic) and IBM required it to keep methods and concepts confidential.

Oh? Is that so? Then I'd say SCO has some 'splainin' to do, as they say. Groklaw member sk43 noticed that when it was SCO looking for discovery, when it came to methods and concepts, SCO in fact required detailed specificity from IBM.

As you can see in SCO's very First Request for Production of Documents [PDF], which you can find on Groklaw's Legal Docs with Exhibits page, document 45-J, a Groklaw page which was born for a moment like this, SCO demanded specificity:

DEFINITIONS AND INSTRUCTIONS ...

The term "identify" shall mean:...

e. in the case of alleged trade secrets or confidential or proprietary information, whether computer code, methods, or otherwise, to give a complete and detailed description of such trade secrets or confidential or proprietary information, including but not limited to an identification of the specific lines and portions of code claimed as trade secrets or confidential or proprietary information, and the location by module name, file name, sequence number or otherwise) of those lines of code within any larger software product or property.

Pray tell, friends. Thinkest thou that SCO speaketh with forked tongue on the subject of identifying methods and concepts by line and file? When they wanted discovery, methods had to be identified with specificity, by "an identification of the specific lines and portions of code claimed as trade secrets or confidential or proprietary information, and the location by module name, file name, sequence number or otherwise) of those lines of code within any larger software product or property." But when it's IBM asking for specificity, just naming a method is good enough for them. Let them go figure it out on their own. It's in some unspecified version of Linux. Puh-lease.

Well, what's good for the goose is good for the gander. And I suspect SCO just lost that argument. Thank you sk43, for doing that research. That definition of "identify" is on page 5 of the document. Hark! Is that the sound of SCO grinding its teeth? What else doesn't its expert get right? Stay tuned.

You know what? All the tedious hours I've spent compiling the Legal Docs with Exhibits page so we'd have a permanent record to use for research just got worth it. Shame on you, SCO, for trying to get the court to go along with a phony double standard. And no wonder SCO hates Groklaw.

UPDATE:

There's more. IBM in its 2003 Memorandum in Support of Motion to Compel Discovery (PDF), its very first motion to compel, asked for the following specificity:

Rather than identify the files and lines of code that IBM has allegedly misappropriated, SCO has obfuscated its claims to foster fear, uncertainty and doubt about its rights and tbe rights of others. (3) In letters dated April 2, 2003, and May 5, 2003 (appended hereto as Exhibits A and B), IBM expressly asked SCO to advise IBM as to what SCO contends IBM has done in violation of any of its agreements, and what SCO contends IBM should do to cure such violations. That is, we have asked SCO to tell us which files and lines of source code IBM is supposed to have misused or misappropriated. SCO has consistently refused to do so. Rather, SCO's counsel has indicated, in an interview with Maureen O'Gara of LinuxGram, that it "doesn't want IBM to know what they [SCO's substantive claims] are." (A copy of this article is appended hereto as Exhibit C.)

Therefore, on June 13, 2003, IBM served its First Set of Interrogatories and First Request for Production of Documents on SCO (appended hereto as Exhibit D). These requests seek basic information about the trade secrets at issue in this case. IBM's interrogatories ask SCO, among other things, to:

"identify, with specificity (by product, file and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused" (IBM's Interrog. No. 1);

for each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, to "describe, in detail, each instance in which plaintiff alleges or contends that IBM misappropriated or misused the alleged trade secret or confidential or proprietary information" (IBM's Interrog. No. 4); and

for each line of source or object code and each method identified in response to Interrogatory No. 1, to "identify: (a) the origin of the code or method, including when, where and by whom the code or method was created; and (b) all products in which, in whole or in part, the code or method is included or on which, in whole or in part, the code or method is based" (IBM's Interrog. No. 6).

IBM propounded these interrogatories because the defendant to a claim for misappropriation of trade secrets is entitled to precise and particularized information identifying the claimed trade secrets at the outset of litigation.

IBM won that motion. Here's the docket entry:

94 - Filed & Entered: 12/12/2003

Order

Docket Text: Order granting [68-1] motion to compel discovery, granting [44-1] motion to compel Discovery. The SCO Group is hereby ORDERED: 1) To respond fully and in detail to Interrogatory Nos. 1-9 as stated in IBM's First Set of Interrogatories. 2) To respond fully and in detail to Interrogatory Nos 12 and 13 as stated in IBM's Second Set of Interrogatories. 3) IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Production of Documents and SCO is to produce all requested documents. 4) To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided. 5) To the extent IBM's requests call for the production of documents or are met by documents SCO has already provided, SCO is to identify with specificity the location of responsive answers including identification of the Bates numbered documents previously provided if applicable. 6) If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom they were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance. SCO is required to provide such answers and documents within thirty days from the date of this order. All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order. The Court will hold a hearing on the forgoing issues January 23, 2004 at 10:00 a.m. Signed by Judge Brooke C. Wells , 12/12/03 cc:atty (blk)

Here's the Order by Judge Brooke Wells, dated December, 2003. So when SCO attorney reportedly told the judge at the hearing that "they've complied where appropriate, that there has not been a requirement for SCO to identify files and lines for methods and concepts," was that true? And what were Interrogatory Nos. 1-9? Here you go, Exhibit D attached to IBM's Motion to Compel:

Interrogatories

INTERROGATORY NO. 1:

Please identify, with specificity (by product, file and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused, including but not limited to as alleged in 105 of the Complaint.

INTERROGATORY NO. 2:

For each alleged trade secret or any confidential or proprietary information identified in response to Interrogatory No.1, please identify: (a) all persons who have or have had rights to the alleged trade secret or confidential or proprietary information; (b) the nature and source of the rights; and (c) all efforts by any person to maintain the secrecy or confidentiality of the alleged trade secrets and any confidential or proprietary information.

INTERROGATORY NO. 3:

For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No, 1, please identify all persons to whom the alleged trade secret or confidential or proprietary information is known or has been disclosed and describe, in detail, the circumstances under which it became known or was disclosed, including but not limited to: (a) the date on which the alleged trade secret or confidential or proprietary, information was disclosed or became known to such persons; (b) the specific terms on which the information was disclosed or became known, such as pursuant to a confidentiality agreement; (c) all documents or agreements relating to the disclosure; and (d) all places or locations where the alleged trade secret or confidential or proprietary information may be found or accessed.

INTERROGATORY NO. 4:

For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No.1, please describe, in detail, each instance in which plaintiff alleges or contends that IBM misappropriated or misused the alleged trade secret or confidential or proprietary information, including but not limited to: (a) the date of the alleged misuse or misappropriation; (b) all persons involved in any way in the alleged misuse or misappropriation; (c) the specific manner in which IBM is alleged to have engaged in misuse or misappropriation; and (d) with respect to any code or method plaintiff alleges or contends that IBM misappropriated or misused, the location of each portion of such code or method in any product, such as AIX, in Linux, in open source, or in the public domain.

INTERROGATORY NO. 5:

For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No.1, please identify: (a) all agreements relating to the alleged trade secret or confidential or proprietary information including but not limited to the parties to and the terms of the agreements; and (b) all copyrights and patents relating to the alleged trade secret or confidential or proprietary information including but not limited to the owners, licensors, licensees, assignors or assignees of those copyrights or patents.

INTERROGATORY NO. 6:

For each line of source or object code and each method identified in response to Interrogatory No.1, please identify; (a) the origin of the code or method, including when, where and by whom the code or method was created; and (b) all products in which, in whole or in part, the code or method is included or on which, in whole or in part, the code or method is based.

INTERROGATORY NO. 7:

Please describe, in detail, each instance in which plaintiff alleges that IBM engaged in unfair competition, including but not limited to: (a) the dates on which IBM allegedly engaged in any unfair competition; (b) all persons involved in the alleged unfair competition; and (c) the specific manner in which IBM is alleged to have engaged in unfair competition including but not limited to as alleged in 118 of the Complaint.

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.

INTERROGATORY NO. 9:

Please identify all agreements that plaintiff alleges or contends that IBM has breached, including the specific provisions or portions of those agreements that plaintiff alleges or contends that IBM breached, and describe, in detail, each instance in which plaintiff alleges or contends that IBM breached those agreements, including but not limited to; (a) the date of the alleged breach; (b) all persons involved in the alleged breach; and (c) the specific manner in which IBM is alleged to have breached the agreement.

And by the way, the same document has the following section under definitions:

10. The term "identify" shall mean:...

e. in the case of alleged trade secrets or confidential or proprietary information, whether computer code, methods or otherwise, to give a complete and detailed description of such trade secrets or confidential or proprietary information, including but not limited to an identification of the specific lines and portions of code claimed as trade secrets or confidential or proprietary information, and the location (by module name, file name, sequence number or otherwise) of those lines of code within any larger software product or property.

So, when Judge Wells granted IBM's motion, her order included all of the above. SCO was ordered to provide specific code for methods and concepts, not just for infringed code. That's why I wrote earlier that when SCO's expert Marc Rochkind told the court that he disagreed with IBM's expert, Randall Davis, in reality he was disagreeing with the Judge's order.

2d UPDATE:

In SCO's Supplemental Answers to IBM's First Set of Interrogatories, SCO supplied a list of files it claimed were in answer to IBM's Interrogatory No. 1, but it stated that not all of the code in the listed files entailed protected methods and concepts. Hence, they claimed, they needed further discovery in order to fully answer the interrogatory with specificity:

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 1:

In addition to the General Objections set forth in Plaintiff's Responses, SCO notes that it still has not 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. 1 and states that the information IBM (and separately, Sequent) agreed to maintain as confidential or proprietary for SCO and/or trade secrets includes, without limitation, UNIX software design methods for creation and modification of software based on UNIX System V, including those developed in AIX and Dynix. These UNIX methods include ways to modify IBM's version of UNIX known as AIX and Sequent's version of UNIX known as Dynix/ptx. The UNIX methods include those inherent in and learned through access to the System V source code licensed to IBM and/or Sequent and those developed by IBM and/or Sequent in creating derivative works and modifications based on UNIX System V pursuant to licensing agreements with SCO's predecessors and SCO and those that IBM and/or Sequent agreed to maintain in confidence for SCO's predecessors and SCO, in addition to UnixWare code and methods provided to IBM separately. Without limitation, the methods include technical UNIX categories, such as multiprocessor locking and unlocking methods, methods for avoiding locking requirements, methods for implementing filing systems, de-bugging methods, methods for implementing and improving processor scalability, methods for implementing and improving processor reliability, methods for implementing and improving processor accessibility, methods for implementing and improving scheduling systems, methods for implementating and improving memory management, methods for implementing and improving threading and multi-threading, and methods for implementing and improving general system functionality based on UNIX technology....

SCO does not contend that the entire source code in all files identified above contains proprietary and confidential information and/or trade secrets. Rather, information (including code and methods) that IBM agreed to maintain as confidential is interspersed through parts of each identified file. Discovery is required to identify the ways and extent to which IBM improperly used confidential and proprietary information and/or trade secrets in creating the source code that is contained in each of the above files.

Of course, this was way back in November of 2003, when SCO was still alleging trade secrets violations, a claim they dropped when they realized there aren't any left in Unix System V. But at least some of the claims for confidentiality, principally regarding Dynix, seem to still be on the list, from all we can discern. But what stands out is that SCO asked for discovery precisely to be able to make a list of exactly which parts of the code in the files entailed protected methods and concepts and which did not, since not all of the code in each file listed involved violations, even in their world view, of "protected" methods and concepts. So now that discovery is over, where is that detailed list? How can their expert now claim that with methods and concepts, just telling what the technology is would be sufficient and no specific code needs to be provided?

If we pretend we don't know that the IBM contract was amended to clarify that IBM could use methods and concepts, that still leaves SCO telling the court that they needed discovery to be able to answer Interrogatory No. 1, which asked for specificity. They got the discovery. Now their expert is claiming that specificity isn't required for methods and concepts. So was SCO telling the truth back in November of 2003? Or is it telling the truth now? You do kind of have to pick one or the other, don't you?


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