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April 14, 2006 SCO v. IBM Hearing Transcript
Wednesday, May 10 2006 @ 09:15 AM EDT

Here is the transcript [PDF] from the SCO v. IBM hearing on April 14, 2006, which Chris Brown was kind enough to arrange to obtain for us. Thank you, Chris. I think it is one of the most interesting hearings since this litigation began. It's the first one I can remember where we see IBM's David Marriott come out with all guns blazing. It's a bravura performance, and I think you'll enjoy it.

Chris noted that some of you like it when we include line numbers, and some hate it, because it is hard for readers. So, he went to the trouble of making several versions, and you can choose what you like:

This was the hearing on IBM's motion to toss out of the case 198 items on SCO's list of allegedly misused materials, on the grounds that SCO failed to provide sufficient specificity, despite at least three court orders telling them to do so. IBM's earliest interrogatories come into play too. If you wish to follow along in real detail, here are the three orders and the interrogatory:

Both sides, Stuart Singer for SCO and David Marriott for IBM, were particularly effective at this hearing, and I enjoyed the battle of the titans enormously. At one point, I started to think SCO ought to win one part of this motion, until Marriott stood up again to respond to Singer's points and for the first time that I can remember in this case, he gives an intense, emotion-filled performance. Even Singer seems to become a bit unraveled by it, and he's one of the best attorneys I've ever seen argue. This is the second time Singer almost convinced me that SCO was arguing valid points. Can you imagine what BS&F could do, if they had the facts and the law on their side, when they are this good with a handful of nothing to work with? But IBM really cared about this motion, and it's not hard to see that IBM is truly angry that SCO has put them through all this for what in the end appears to be absolutely nothing of significance.

The list of 198 items is so vague, Marriott suggests SCO is deliberately holding back what their claims are, trying to keep IBM in the dark about SCO's allegations so IBM won't be able to defend itself. IBM has been asking the same question since the litigation began three years ago -- what is it that SCO claims IBM has done wrong? -- and now Marriott presses hard for an answer:

So, what is it we did? When are we going to find this out, Judge? In response to their summary judgment papers at trial when we have no ability to prepare a defense to answer all the kinds of questions that want answered because they won't tell us what they claim?

I think as you watch the jousting between the two lawyers at this hearing, you will at a minimum realize you are watching some very fine lawyering. Sometimes I wonder if the Magistrate Judge will miss this case when it's finished. She has to be enjoying it too. You don't see lawyering on this level every day, not in Utah, not anywhere.

The hearing was to hear argument on IBM's motion (see also IBM's Reply Memorandum in Support), but SCO turned it into a hearing also on its motion [PDF] on whether or not it could answer IBM expert Dr. Randall Davis' Declaration with one by its own expert, Marc Rochkind (cf. SCO's Reply Memorandum in Support). As you know, SCO was permitted to do that, and IBM was also given the opportunity it asked for to then respond, which it has done. But the core of the motion, on what happens to the 198 items, was taken under advisement and we are still waiting to hear what Judge Brooke Wells will rule on that. I think she accepted IBM's contention that SCO failed to obey the court orders. But the question she faces is, what should she do about it?

You will see Marc Rochkind is spelled Rockein consistently throughout in the transcript, but it came that way in the original. The lawyers know how to fill in the blanks when that kind of thing happens, because the transcriber works very fast, as they are speaking live, and that can be very, very difficult, particularly because he or she isn't always the same one assigned to a case from start to finish. If the lawyers can overlook it, so can we. The main thing is we get the full impact from the day's events. And do we ever.

I see a lot more clearly, reading this transcript, where we are in the argument. It turns out, for one thing, that IBM opposed Marc Rochkind's Declaration before it had an opportunity to read it. It had to, because while the court notified IBM that one had been filed, SCO didn't serve them with a copy in a timely manner. So IBM put in an opposition on principal. And that explains why, when it came to the hearing, IBM didn't fight for that point at all. It seems after IBM read Rochkind's Declaration, they felt it wasn't worth even fighting about, and at the hearing they didn't bother to oppose it much, because in IBM's view, this motion was about one thing and one thing only, namely did SCO comply with the court's several orders to provide IBM with a list of what IBM calls the three coordinates, line, file and version of the code, so IBM can find out at last what this dispute has been about or at least what it is about now? If not, IBM's position is that the remedy is to lop the 198 items off the case. If that happens, the Rochkind Declaration goes out with them. So IBM puts all its emphasis on winning the motion, not on opposing the Rochkind Declaration.

We also get from this transcript some more hints about what SCO's methods and concepts claims are about, and from what I see, it's mostly about Dynix. That indicates to me that SCO thus acknowledges that IBM's contract permits it freedom to use methods and concepts, that it views Amendment X not as a clarification, as IBM states, but as a relaxation, and that SCO thinks the Sequent contract was more restrictive. Of course, this isn't a question for this motion, but for later partial summary judgment motion by IBM, I would assume. The $echo newsletters then will come into play, and SCO may argue that the $echo newsletter didn't affect the contract and that when IBM bought Sequent, they inherited Sequent's obligations instead of IBM spreading the wings of Amendment X over Dynix. (You can find all the contracts on Groklaw's Contracts page.) If so, I can't imagine that argument staying airborne for long, but what else is SCO going to argue? At this point, we know they'll never just give up and say, Never mind. We were so wrong about all this, guys.

SCO at the hearing admits that they didn't provide code by line and file for the methods and concepts items, and they say they can't, actually, because when IBM improperly revealed methods and concepts, there was generally no code revealed in connection with most of those Dynix-related alleged disclosures. It's just some emails, talking about how to do things, and some articles. We do learn from IBM that not everything on the list was methods and concepts though. But mostly it is. IBM's position is that it needs the coordinates to be able to analyze whether there is any merit to SCO's allegations. For example, it uses one item on the larger list of allegedly misused material to illustrate what it needs to do with all the items, one of the items IBM isn't here challenging because it came with coordinates provided, and IBM tells the court that they have already found an earlier "revelation" of the method and concept -- in an Intel specification dating from around 1989, long before any allegations of misuse by IBM. That's the kind of investigation they'd like to be able to do on each item, but the 198 items at issue are so general and vague, they can't even get started on such an analysis.

In reply, SCO says two things: first, they claim they provided enough to state a claim regarding the methods and concepts. And second, they say this is a merits issue, not properly something Wells can decide. They already said they provided enough information for IBM to defend itself, in their Memorandum in Opposition to IBM's motion. However, after IBM attached Randall Davis' Declaration to its Reply, saying in effect, No, SCO didn't, SCO felt it had to ask the court for leave to file the Rochkind Declaration so its expert could answer IBM's expert. (As you know, after SCO filed its expert's declaration and IBM responded, SCO has now asked to respond to the Davis response, so the dance goes on. There is a lot at stake here, more for SCO than for IBM, because this list represents the heart of SCO's contract case.) But IBM states that the Rochkind Declaration, instead of providing the files, lines and versions of code allegedly misused, redefines utterly what SCO has to provide to be specific enough about. IBM wants what Marriott calls an address to go and find what SCO is claiming it did wrong. Where is it that the code they allegely misused can be found?

SCO expert, in what IBM calls an admission that indeed IBM's motion is correct, that SCO has utterly failed to obey the court's orders, doesn't tell the court, here's the line. Here's the file. Here's the version. Instead he argues that IBM doesn't need that specificity. And apparently SCO offers instead some emails and then point at Linux and in one case AIX and in a couple of cases Dynix and say to IBM, there. It's something about that. Go investigate.

The time to argue that, IBM says, came and went long ago. When the court issued its orders, that is when SCO should have raised the argument that no specificity was required but it failed to do so. You and I can might conjecture as to why SCO failed to do that, whether because their "reason" for the case is unstateable in a court of law because it's too awful to put into clear words, or because the "reason" keeps shifting out from under them as they realize their evidence doesn't hold up, or because they were back then arguing that they needed every single line of code in AIX since the world began to find allegedly misused materials with specificity -- whatever is the reason, SCO didn't provide what the court ordered it to provide. It didn't even try to. As David Marriott puts in page 26, the Rochkind Declaration "supports the relief that IBM seeks here by silence."

The relief or penalty, IBM argues, should be that they don't get to use the 198 items on this particular list, because they lack the three coordinates.

It's obvious from the argument here in this transcript that SCO, if it even looked at that mountain of code, found next to nothing to match Darl McBride's original mouthings to the press. What SCO will do to defend itself from Lanham Act claims now is going to be interesting to watch, but I have no doubt Red Hat is chortling. And you can really feel, or at least I do, in this transcript that IBM senses it's all over for SCO now, except for walking through the details as they flail about with their "methods and concepts", trying to stay on their feet somehow. I think that Judge Wells feels it too, and so she gives SCO the benefit of the doubt here and allows the Declaration which IBM has told her in legalese is an utter joke to them within the context of this motion.

What isn't a joke to IBM is this: the vagueness of SCO's claims here are such that IBM honestly feels it can't defend itself. "This is not a question of a technical, harmless foul," Marriott says:

This is a fundamental difficulty in our ability to properly defend ourselves and without that information, it is not possible, as a practical matter, fairly to be able to do that.

That is a strong statement, and one that the judge can't ignore, just as she doesn't ignore SCO's claim that it needs to be able to answer Dr. Davis, that is wouldn't be fair otherwise. When you tell a magistrate judge that the issue is fairness, the judge must take it seriously, because that is a magistrate's entire job: to make sure both sides have a fair opportunity in discovery to obtain evidence and the necessary clarity to make its case, both offensively and defensively, in summary judgment and at trial. IBM has just told this magistrate that it can't defend itself with respect to the 198 items on this particular list, because it doesn't know what the claims are about. She can't ignore that. IBM continues:

I want to illustrate for Your Honor the prejudice that flows out of the approach SCO has taken here, and for that purpose it's useful to revist their allegations. Remember the allegation. We took AIX and Dynix code. We dumped it into Linux. We took System V code, and we improperly put it there, infringing the System V code by using it.

SCO has basically two claims, Your Honor, that represent the thrust of their case, breach of contract claims and copyright claims. We supposedly breached contracts by dumping this code, they say, into Linux, and supposedly infringed their alleged copyrights by using Linux which contains, apparently, they say, the allegedly misused information. Each of those causes of action, Your Honor, requires an extensive inquiry into the particulars of what SCO alleges. And I want to refer you, if I may, Your Honor, to tab 10 in the book.

Here what we have done is simply set out the basic copyright principles which concern principles that really govern the prosecution of a copyright case and a contract case, and, you know, they are: Does IBM have a license? Who wrote this code? Is the stuff that's supposedly infringed in Linux, is it even protectable by copyright laws? Is it merely an idea or a method or a process? Is it dictated by externalities, as the Tenth Circuit says in the Gates Rubber case, like programming practices? Is it in the public domain? Does IBM have a license to it? When did they get the license to it? Is it even in Linux? Did it get accepted in the patch by which, perhaps, it was offered? If it's there, is it even important?

I mean, the basic allegation, Your Honor, is that IBM dumped so much material into Linux that we made it a super operating system that killed SCO's UNIX business and that, therefore, they are entitled to billions of dollars in damages. Surely they don't contend that we are not entitled to understand exactly what it was that was supposed to be put in there and determine and evaluate whether that even matters to Linux, whether anyone is even using Linux because of that and whether, even if they are using it because of that, it has any bearing whatever on the competition between Linux, if any, and their UNIX products.

Those are the kinds of questions, Your Honor, that we need to be able to answer. Those are the kinds of questions that are practically impossible to answer without having the coordinates that are missing here.

That's another way of saying that unless SCO has answers to those questions, it has no case, at least not with respect to the 198 items being challenged here. And if SCO has answers, the time is now to reveal it with the specificity requested by IBM and ordered three times by the court.

So that is the necessary analysis for a copyright and contract claims regarding dumping code. What about the contract claims about methods and concepts? IBM then offers the item that SCO put on the larger list, one that IBM isn't contesting is too vague because SCO provided the three coordinates. What did that enable IBM to do? It was able then to investigate and look at what turned up:

Did IBM actually contribute that? When did we do it? How did we do it? Is it actually even in -- is it actually something that even, in any way, helps or hurts Linux? Was it publicly -- was it publicly disclosed before IBM supposedly did it in some standard? Did some third party disclose it, for which IBM couldn't possibly be responsible? There are a whole series of questions which are laid out at tab 10, Your Honor, that we would want to ask based on having this information.

Now, as to this particular item, it has been provided with the detail, here, that we've asked, and we have undertaken our inquiry with respect to it. Again, it isn't in the motion. If you look at the blue sheet, Your Honor, behind that information there is an excerpt from Intel's 386 family binary compatibility specification. It's a public specification with a copyright date of 1990, 1989, I believe. If you look at the second page, you will see exactly that code, exactly that code which supposedly IBM has improperly put into Linux, in an Intel specification since 1989, long before any allegations of misuse by IBM here.

It's a bogus charge, in other words, it turns out, not a valid example of any "wrongdoing" on IBM's part. Why, the judge asks next, can't IBM handle all 198 the same way, then, at partial summary judgment? Because, IBM answers, it doesn't have enough information to even prepare the arguments it needs to make in a summary judgment motion. For example, "we're going to have an awful lot of difficulty, Judge, showing where something that hasn't been defined is found in a standard." A cynic might postulate that this is precisely why SCO doesn't want to be specific, because it worries that the entire case will be thrown out at summary judgment if it is specific. In fact, Marriott argues precisely that on page 34, saying that SCO is arguing for a deferral of judgment on this motion until summary judgment because plaintiffs like things vague and messy at summary judgment, so the defendant fails:

The reason that SCO urges Your Honor deferral of this question to summary judgment is because dealing with this question on summary judgment is going to be awfully messy, and it's ordinarily the plaintiff's perspective that things ought to look awfully messy in summary judgment because it tends to make it hard to get questions resolved at summary judgment. It makes it much easier to get to trial.

Your Honor said at a hearing in this case on the 24th of February, quote: "Obviously I don't want -- what I don't want is either side to use information that has been withheld in support of a summary judgment motion, in support of their case at trial. All evidence needs to be the table for the other party to analyze and to take a look at."

Your Honor, it's not on the table. We aren't in a position to take a look at it in the way that we believe Your Honor has repeatedly directed SCO to put us in a position to do. And we're not because we don't have the versions and the files and the line information.

SCO then speaks and it makes three arguments: 1) with methods and concepts the standard is different; 2) IBM is asking for a discovery sanction, and that requires proving wilfullness, and there is, in SCO's eyes, no proof that it is deliberately holding back evidence it has in hand (which is an odd argument to make, to me, because it is the same as admitting that SCO has no cooridinates to back up its case, that it itself doesn't know what file, version or line of code might be at issue); and 3) the 198 items can't be tossed out without a determination one by one at a hearing "as to the adequacy of the disclosure with respect to those." They are arguing that it's not a magistrate's job to determine the merits of a case. Of course, it is her business if they have willfully held back evidence, but they argue there is no proof they are doing that. The only question is, has SCO stated a cause of action sufficient to go forward? Is there enough on the table to demonstrate that they are protected under the contracts, they were disclosed improperly, and it has caused damage? SCO here is saying, we told IBM enough to survive this part of the process, to squeeze by to summary judgment. Why, they claim, SCO went even beyond the orders. It provided the names of who made the disclosures. At that point the court interrupts:

THE COURT: Where are you reading from?

MR. SINGER: I'm not reading. I'm describing what is in the summary of the 293 methods.

THE COURT: All right. The reason I asked that because -- and perhaps this is just ignorance on my part, and I will gladly, please, and urge you to educate me, but it seems to me that the orders emphasize lines of code, etc., and now we're switching to technologies, method and concept, as opposed to what was included within the order and which I thought was specific.

This is the judge telling SCO that it is going to lose the motion unless Singer, addresses her question. Educate me, please, she says, so I don't have to rule against you. So he tries. He points to the Second Amended Complaint, where SCO mentioned not just code dumped but methods and concepts too. Singer says what he can, essentially that specificity was about the code dump, not the methods. But, the judge points out SCO never made that distinction in argument or response until now. Well, Singer, tries to say, the court's orders were all about source code, and SCO did identify source code in the items IBM is not challenging. But the rest, these 198, are about methods and concepts instead. Where is there an order that says methods and concepts aren't part of the case or that methods and concepts must be identified with line, version and file of code? That's not how methods and concepts are disclosed.

But, the court says, it's never to her recollection come up before. Yes, SCO agrees, and when SCO talked about specificity in discovery motions and arguments, it was talking about code dumps. *Now* it's talking about something else, about methods and concepts, so those orders don't apply. Before it was about lines of code; but it wasn't until December 22 that SCO had a deadline to provide *all* allegedly misused materials, so that's why they mention both now:

MR. SINGER: But, Your Honor, the -- we have complied with those orders by identifying, to the extent there are lines of code which are being relied upon, and saying that, in these cases we are talking about lines of code either from System V or from a derivative product such AIX or Dynix, here they are.

But, until this last disclosure obligation, which says to identify all the misused materials, there has not been an obligation on SCO to identify methods and concepts that are not related to the lines of code. Moreover, a lot of those have come out of work on the materials, depositions and other discovery that's occurred over the last six to nine months.

IBM's position, SCO says, is that unless there is source code in a methods and concepts disclosure, it isn't actionable, and that's a merits argument that shouldn't be before the magistrate. That's a matter for summary judgment. Clever, eh? That isn't to say I admire it, because it's the kind of argument that relies upon a judge who looks for the good in people and tends to take folks at their word. But I note its cleverness. It's just plausible enough to a naif, who hasn't developed the kind of street smarts that one weekend in New York would provide, that it just might squeeze by her.

New York is simply jam packed with plausible tales told with wide-eyed innocence. I stopped at a traffic light once, and a young woman approached with a tale of woe, asking for enough money to get home to her baby in New Jersey. She had had her pocket picked and had nothing left, she said. I informed her, being a paralegal, where the nearest police station was and explained that she could go to the police and they'd help her get home. She wasn't grateful for the information. In fact, she was first stunned into speechlessness and then she became angry. But I'll bet you anything that lots of kind-hearted people gave her money before me and after I drove away, as a result of that story, and then she went and bought some drugs with the day's catch. Call me a cynic. But New York has a way of educating a person as to how far some people are willing to go for money. Taking advantage of good-hearted but inexperienced people is at the core of many a hustle there. Let's just say that I'm hoping Judge Wells' recent vacation was to New York City. But at the same time, I recognie the skill involved in SCO's argument.

SCO continues that it provided as much specificity as it could on the methods and concepts:

Code was not disclosed in those cases, in many of those cases, so code cannot be identified, but that doesn't mean that nothing valuable, nothing that isn't protected under our contracts, wasn't disclosed.

You know, the longer this litigation progresses, the smaller IBM's alleged miscoduct becomes, even in SCO's telling. Now they are arguing that you can reveal methods and concepts without revealing the code and that in fact IBM didn't reveal code in many of the case of the methods and concepts disclosures alleged so there is no way to identify the code:

Now, we would submit that if these disclosures convey sufficient information to tell the Linux developers, who are doing the coding, how to implement the method and concept, then, by definition, it should be sufficiently specific to put IBM on notice of those claims, as it is IBM that has the operating system and which made those disclosures.

Did they even look at the mountains of code Judge Wells asked IBM to provide them? Surely if you know the method and concept you are looking for, and you have AIX, Dynix and Linux code in front of you, you ought to be able to point that method and concept out in all of them, or at least two of the them.

Then, on page 43 onward, SCO details a few disclosures it claims IBM wrongfully made, using a booklet it has provided the court, so it can refer to things without letting the public know what it is pointing at exactly, but clearly this part of the case is narrowing down to mostly Dynix methods and concepts. What they end up saying is that they have provided sufficient information for IBM to know what they are talking about. They give names of Sequent, later IBM employees, they cite email, they tell the subject matter under discussion. What more does IBM need? The contracts are the issue here, and contracts, as the court has already said, can be more strict than copyright law.

To tell you the truth, as I read up to here, SCO nearly convinced me on this one point, that methods and concepts can be pointed out without code. That isn't what the court ordered, though, and that is the issue before the court in IBM's motion. But if a contract says you are to keep methods and concepts confidential and you tell the world in an article or an email how you do a certain task, I think one can honorably argue that it's a violation of the contract. I don't personally believe that is what the contract, not even the Sequent contract, says, but at this point, on this motion, that isn't established. So SCO has provided, if Wells ignores the Interrogatory and the later court order that referenced it, a hook she could latch on to, if she wanted to. That is all you can ask a lawyer to do for you, and Singer does his job. She could agree with SCO that if IBM wishes to make the argument that there has to be source code in a methods and concepts disclosure, the proper way to do it would be in a summary judgment motion. It's at least a plausible argument. And SCO acknowledges that if it later tries to present evidence it hasn't provided here, IBM can object. They are not, they claim, holding back anything. That wouldn't stop them from pretending that evidence fell on their heads from heaven after the cutoff date of December 22nd, one assumes. And then SCO would presumably argue that there is no proof that they had that evidence earlier.

Then just as I started to let them convince me, SCO pulls another underhanded trick. SCO makes an unsupported allegation, which is totally inappropriate to raise in this motion at all, that supposedly Dan Frye sent out an order that developers clean out their sandboxes of any code. IBM denies the offensive charge, obviously. The court dismisses SCO's attempt to raise this offensive red herring curtly, saying that even if it were true, it's not before her properly in the motion:

THE COURT: That may or may not be true, but that isn't before me today.

MR. SINGER: Well, Your Honor, we think it relates --

THE COURT: That issue is not before me. The question is whether SCO is in compliance with the Court orders and whether or not it was a willful withholding, etc. So, I would prefer not to go into issues that are not before the Court.

MR. SINGER: Your Honor, we will respect that and move on to a subsequent issue. We think that it relates to the overall environment in which the motion is made.

Again, we see that SCO has no awareness of when it is going too far. How can it not know that this isn't appropriate to raise here, that it's a low blow and totally not part of the motion? I can't answer that question. But we've seen it over and over, that they can't seem to distinguish what is appropriate and what is smarmy. And they seem to live by the strategy that if you are accused of something, it helps to throw an accusation back. That isn't what helps you in a motion, though. You are supposed to stick to the four corners of what is properly before the court in the motion. Rochkind's declaration doesn't do that either, actually, as IBM points out, but it didn't much care. But IBM does point out to the judge that Rochkind is raising entirely new issues here, not answering Randall Davis' points at all. It's on that basis that IBM asks for, and gets, the opportunity to respond.

Some people are so good at arguing, I guess after a while they think they can talk their way out of anything. Singer is very, very effective. I'll bet he wins all his arguments with his wife too, if he has one. But there are rules of the road in the law, and by bringing up this issue, which they had to know was not going to be resolved in this hearing, that it couldn't be, because it would involve a hearing and testimony and merits -- the very argument they make on page 51 onward with regard to determining if the 198 items can be thrown out, arguing a hearing is required on the merits on each item -- SCO had to know the allegation would simply hang in the air, blackening a man's name and a company's good name, without providing him or IBM an opportunity to defend his/its honor. And that, ladies and gentlemen of the jury of the public, is the SCO way. I think even an accomplished smoothie has to have noticed that it didn't go over well with this judge. She is sincerely put off by disrespect shown by the lawyers. You can see that IBM has understood that, and whenever Marriott argues against a SCO point, he says things like, "we think, respectfully, that they are wrong," but SCO's needle is still stuck in that same groove of throwing mud. Time to move on, fellows. It doesn't play well in Utah or with the public at large, if my readers are any indication. I will explain why: it violates, we think, simple rules of fair play. Remember fair play? Our entire judicial system is built on the concept of fair play.

There are more hints at this hearing about what SCO is claiming regarding methods and concepts. First, there is the email we have already heard about, regarding Dynix. Here are all the rest of the hints from the hearing from SCO:

If one goes to the third page, this is a copy of what we have in our disclosure statement with respect to item 146. And it indicates the three IBM employees, all former Sequent employees, who had worked on Dynix, who are involved in the disclosure. It quotes from the e-mail in which the disclosure was made. And the general area here a method and concept called differential profiling. It discusses how -- where this is described, and that is a reference to this article, which Mr. McKeny wrote, with respect to differential profiling. And there is a reference to some scripts that can help with differential profiling found at a website where we don't have access, but he says these scripts are set up for ptx, which is the reference at Dynix and ptx.

It has the source to tab 156 in these books, which then has the following pages, which is the entire e-mail chain, which has proposed code submission to Linux and the discussion by e-mail among these IBM'ers, one of whom is putting together the Linux contribution and the other who is familiar with this method and concept in Dynix.

And, finally, you have the Linux files which, we submit, relate to this improperly disclosed code, method and concept. ...

They said something specific about item number 2, which was RCU, and when we responded in opposition brief, they dropped it.

Item number 53 is at tab 20, and, again, I'm going to be general because of the confidentiality. But this is a method and concept which deals with improving locking, and if you turn to the first page after our header slide, you see the actual disclosure. It identifies who made the disclosure, an IBM employee, Mr. Wright; the nature of that disclosure, which is not amorphous. It's very specific. It refers to the e-mails and quotes them, where those were actually made to a Daniel Phillips, who was a Linux developer, and it makes specific references that they are getting this from Dynix/ptx.

When Singer is finished, you can tell he's kind of gotten to Judge Wells too, because when she calls on Marriott to reply, she asks him to address the willfullness requirement, as she puts it. She wants to hear about that. And she does, because Marriott very skillfully agrees with SCO that it has indeed made claims about methods and concepts, "whatever that means", from early on and that is exactly why, he points out, the three court orders cover not only code allegedly improperly put into Linux but also methods and concepts. Ouch.

Then he explains to the judge a little bit of tech:

Your Honor, contrary to what Mr. Singer suggests, methods and concepts, whatever they are, do not exist, as they relate to operating systems, independent of the code that implements them. They don't exist somewhere in the ether. They exist they are implemented in operating systems by source code, which source code is organized in files and appears versions of products.

Take a look, if you would, at interrogatory number 3. There Your Honor ordered SCO to respond, as requested, by IBM. What did IBM request? That SCO describe in detail all places or locations where the alleged trade secret or confidential or proprietary information may be found. We are talking there, Your Honor, not about just code, but information. That includes, however you define it, methods and concepts. And the order is for them to describe, in detail, where those methods and concepts are found.

That means, when you are talking about operating systems, not saying "Dynix," which is essentially what their argument is. Mr. Singer points to a bunch of e-mails and says, "See. There's a mention of the word 'Dynix.'" Well, okay. But, so what? That doesn't tell us, with any particularity, what method and concept we are talking about. The Court's orders contemplated the provision of specifics. That's what IBM asked for. That's what Your Honor indicated should be provided.

Look, if you would, please, at interrogatory number 4. "Please describe in detail, 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."

The order was to disclose the location of the method in the product with -- in detail. The only way to that, Judge, is not to say it's in Dynix, which is essentially what they are saying, but to tell us where it is in Dynix. We produced, as Your Honor knows, enormous amounts of information from IBM concerning version and control. CMVC Your Honor will remember well, and though their expert has claimed to have referenced CMVC in preparing the final disclosures, which CMVC was produced at enormous expense, which information would allow SCO to tell where in AIX the versions, files and lines are that were supposedly misused, we don't have that information.

The Court's orders contemplated for methods, as well as code, a location. A location, to be done with any particularity, means files and lines.

The next item, Your Honor, interrogatory number 12: "Please identify, with specificity, by file and line code, all source code and other material, methods, in Linux to which plaintiff has rights."

Don't tell us it's in Linux, which is essentially what they have done, or there is a bunch of files in which you can probably find it. The order was to tell us, in detail, where it's found. And as you made clear in other the orders below, Your Honor, by way of lines and code, just look at one more, if you would. Look at the red text with respect to System V, Judge. SCO was to provide and identify all specific lines of code from UNIX System V from which IBM's contributions from AIX or Dynix are alleged to derived.

Contributions isn't limited to code. It's about code and methods and concepts and whatever else you want to throw in under it. From the beginning, Judge, we have been seeking simply to understand what the allegations are.

Yes, one can identify a method and concept by name, and we might all understand what it is. But their burden was and is to show that it came from somewhere specific in AIX, Dynix, or SystemV and ended up somewhere specific in Linux and when and eventually in what way it caused SCO any harm. He sums up, "Where’s the version and the file and the line of code of the method which is somehow supposedly there and supposedly entitles you to billions of dollars? "

He then mocks them and their list of items, referring to the chart:

This first one, I don't think I'm revealing anything of any consequence here because there is nothing of any consequence here. This says that IBM used ptx -- you should read it there Dynix -- used Dynix. It says absolutely nothing about what we did or about what part of Dynix we supposedly used. We are told that we used our own operating system.

There is no Linux files, no Linux versions, no Linux lines. There's no System V versions, files and lines. There is no versions, files and lines of Dynix. Look at the next page, Judge, on the back. That's the e-mail. That's what appears at tab 30. So, what we're told is that, look, this shows that you guys were doing funny stuff with Dynix or with ptx.

That doesn't answer the questions that we asked, which is: What is it you say we did? You have had three years. You have deposed this guy Martin Bleigh. What is we did? Where, particularly, is it you say we took the code from Dynix, and what exactly did we do with it? Where is it, so we can answer the questions that I took Your Honor through before? It's not there.

If you look at 92, Your Honor, you see the same thing right after the blue sheet. They say basically the same thing: "You've misused Dynix/ptx."

Okay. In other words, you've misused an entire operating system. If you look back at tab 3 -- I'm sorry, tab 2, Dynix has 37 base versions, 472 thousand files, 156 million lines of code. So, what is it we did? When are we going to find this out, Judge? In response to their summary judgment papers at trial when we have no ability to prepare a defense to answer all the kinds of questions that want answered because they won't tell us what they claim?

He pretty much nailed them to the wall on that, so that leaves only the question of what to do about it. Marriott then addresses the willfulness issue. He says that the Rochkind declaration is itself supportive of the willfulness claim. There is, he points out, no relationship between what Rochkind says and what the court asked for. Just compare the court's orders with SCO's chart, and draw the obvious conclusion. You don't need a panel of experts to examine each item one by one at a hearing. It's a simple question: did SCO provide what it was ordered to provide? The only clear answer is no. It did not. And why does IBM deserve specificity beyond SCO just saying that they have an email mentioning Dynix? Because what if, Marriott asks, the specific method or code went into Linux in 2005 and SCO's Unix business died in 2001? There's no possible damages to SCO in such a scenario. And then he sums up on the issue of willfullness:

Your Honor asked about willfulness. Willfulness isn't bad faith. Willfulness means: Did they inadvertently provide these disclosures or did they knowingly provide what they provided? There is not any question they acted with willfulness. They know what they did. Mr. Rockein said he spent a substantial amount of time working on this. I don't have any reason to think that he didn't. What they provided is not -- is not done inadvertently, Your Honor.

They had those Court's orders. Your Honor admonished the parties in December -- December of 2003, I think, Your Honor, when we first argued that SCO hadn't complied, in chambers, that if anybody had any problem with any one of SCO's orders, that they should make the Court -- any of your orders, that they should make the Court aware. This is when IBM complained that SCO hadn't complied with the order the first time around. That never happened.

And, in fact, Your Honor, what happened here is that when we received SCO's interim disclosures, we brought to SCO's attention that we believed that it had not properly complied. Mr. Shaughnessy sent a letter to SCO, and I believe, Your Honor, it's at tab 17 -- that's not right. It's at tab 14, Judge. And what we said here is that we've done a preliminary analysis of your interim disclosures, and, in effect, these come nowhere close, so please fix this problem or you're going to leave us no choice but to seek the very remedy that we are seeking here.

We got no response, Judge. What we got is the final disclosures on the 20-something of December with 198 items that aren't properly disclosed. There is ample authority for this Court entering an order indicating that SCO failed to do what the orders plainly required it to do, ample authority. The Tenth Circuit's decision in Kern River; the decision from the Southern District of New York the Nike case; the Ninth Circuit's decision in Imax.

There is not any question that what happened here was intentional in the sense that they didn't provide the information they were requested. This motion doesn't turn, has been suggested, on the idea that SCO is sitting on e-mail some place that tells IBM -- that has all the information that IBM wants and just failing to provide it.

The disclosure -- the interrogatories, Your Honor, and the Court's orders require the disclosure of that which they contend was misused. The issue isn't whether there is something in a document some place that they have withheld. The issue is: What are they really saying? What are we really going to present to a jury in this case? What is it really about? What should the experts be talking about so that we don't have a situation like we have here, where Professor Davis is saying, "Gee, there's no versions, files and lines there."

And Mr. Rockein is saying, "Gee, it seems pretty specific to me, and I worked pretty hard on this and gave them an awful lot of documents. They should know what's going on."

Well, what's required, Your Honor, hasn't been provided, and, respectfully, the Court ought to enter an order indicating that the Court's orders haven't been complied with and SCO ought not be allowed to produce -- to proceed with respect to these 198 items. It can proceed with its 90-some other items. That is not an extraordinary remedy, and we are not asking for a dismissal of the claim its entirety. We are asking it to be limited to those items that have been properly disclosed.

The Court's orders were clear. They sought no clarification. We are severely prejudiced in even preparing for summary judgment, let alone expert reports, without that information. We ask that Your Honor enter an appropriate order. Thank you.

Singer then stands up for rebuttal. And he gives us a foretaste of some of the silliness we are going to hear at trial, if IBM doesn't win this motion:

These 198 items, to the extent they didn't have source code, were, never the less, disclosures where the IBM people, without the use of a source code, were able to communicate protected information to Linux that we contend was valuable and in violation of our rights.

And if they didn't need to include source code in the disclosure, Mr. Marriott cannot explain how we can be expected to provide or be obligated to provide source code beyond what the disclosure itself contained.

I know. They used semaphores to reveal concepts to Linux kernel guys. And if the Linux guys somehow divined what they were signing to them and wrote code from their vague hints, couldn't SCO at least point to that code in Linux and then find it in Dynix, considering they've had mountains of code for a long time in discovery? It's so obvious that they could. They just didn't.

The judge then asks a question that made my heart sink. She asks SCO if they are able to provide any further specificity on any of the items. Oh great, I said to myself. She's thinking of giving them a chance to fix this problem. But then SCO says no. This is all they have pretty much on methods and concepts. And then she asks the famous question, "Is this all you've got?" And Singer says yes. This is it. It is what it is.

Then he tries to launch into a discussion about it being a matter for summary judgment as to whether case law says methods and concepts have to have code implementations, and she interrupts and says, "But you are talking more conceptually here, again. Is there source code that relates to these method and concept items?" To which the answer is that with regard to 16 items, they have, but then she says, but you are pointing to a website. You aren't providing it yourself? And Singer says, um. Yes. Basically yes, and he starts to unravel a bit, promising to give over anything new they discover, and pointing to the thousands of pieces of paper in boxes they turned over. Here's my favorite sentence:

These are very specific items, culled from thousands and thousands, coupled with thousands and thousands of hours of work from millions of pages from the much broader universe.

It's a sketch. What is that sentence saying in answer to her question? To me, it's saying, "Uh oh. This didn't work." And he's talking fast but trying to think of something to get back on his feet. Lawyers, litigators, that is, don't stop talking no matter what, and indeed he does continue on a bit, but clearly SCO is in trouble, not just with respect to this particular motion, but if this is what they have, they're in big trouble, period. Not that I'm surprised. He then makes this stunning admission:

The point is, is that we cannot be expected to provide a greater level of specificity on method and concept disclosures than IBM's engineers used when they were making the disclosure. We are not going to present more in terms of at trial.... We gave them everything we had, so we don't have anything more.

So, this really is all they've got. He again swears up and down that there is no willfulness, ignoring Marriott's assertion that willfulness here means they didn't provide what was required and it wasn't inadvertent, not that they are withholding in bad faith. Instead Singer tries again to define it as deliberately withholding materials, which isn't what Marriott said at all. Marriott then asks if he can say one thing, which is that when Judge Kimball ordered all allegedly misused materials to be declared by December 22, that isn't all he wrote. It actually reads like this:

Judge Kimball's order says, "The interim deadline for parties to disclose, with specificity, all allegedly misused material identified to date and to update interrogatory responses accordingly, to provide the information ordered by the Court previously and requested IBM."

Marriott is very, very good on his feet. This is checkmate to SCO, I think, because their entire argument was that "allegedly misused materials" didn't have to be specific, that it was separate from the earlier orders which required specificity. He then reminds the judge that at a hearing, SCO was asked about answering IBM's interrogatory 13, and SCO said it would do so by the December 22nd date. In any case, the Federal Rules require you to "seasonably update your disclosures. IBM's discovery requests didn't go away. Neither did the Court's orders, and if SCO acquired additional information, and certainly by that final deadline it had an obligation to provide it." They are too sitting on something and refusing to reveal something, namely their allegations:

What SCO is essentially seeking to do here, Your Honor, is to deny IBM the right to pursue its defenses. They say we can raise all these issues at summary judgment, but they know, full well, that without knowing particularly what's being said to be misused, we are limited significantly in the number of defenses we can raise.

There are probably defenses that could be made. In fact, I have no doubt there are defenses that could -- that could be asserted. But we have -- we have -- we are entitled, Your Honor, to pursue all of the legal defenses available to us. That's why we asked the questions. The answer -- the question here isn't just: What isn't being provided in disclosure? It's: What, exactly, are you guys alleging?

The judge then asks Singer to address that, and he again says it's a merits argument, to be made if they raise new points later. And then he says something that tells me he's no geek:

We have provided this tremendous specificity. There is no basis to conclude they can't defend on that basis. There is no order of this Court or anywhere that says methods and concepts have to be identified with source code when there is no source code that accompanies a lot of these methods and concepts.

"There is no source code that accompanies a lot of these methods and concepts?" That is silly beyond words. Even if the employee didn't accompany source code with the "disclosure," you can still find it, if it was later included in Linux, by line, file and version. As Marriott pointed out, methods and concepts don't exist in thin air. You find them in code, implemented in the code. I am more than amazed that they'd even try to make such an argument.

And in the immortal words of certain pesky wabbit, "Th-th-th-That's All Folks."

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

SCO v. IBM, April 14, 2006, Motion Hearing Transcript

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


                                  )
SCO GROUP, INC.,                     )                     
                                  )
 Plaintiff/Counterclaim-Defendant,)
                                  )
  -vs-                            )      2:03-CV-294 DAK 
                                  )
INTERNATIONAL BUSINESS MACHINES,     )
CORPORATION,                         )
                                  )
 Defendant/Counterclaim-Plaintiff.)
                                  )



        BEFORE THE HONORABLE BROOKE C. WELLS 
                DATE:  APRIL 14, 2006     
        REPORTER'S TRANSCRIPT OF PROCEEDINGS
                 ARGUMENT ON MOTION 






                    Reporter:  REBECCA JANKE, CSR, RMR
                                                     1


                A P P E A R A N C E S

FOR PLAINTIFF SCO:       HATCH, JAMES & DODGE           
                      BY:  BRENT O. HATCH, ESQ. 
                      10 WEST BROADWAY, SUITE 400       
                      SALT LAKE CITY, UTAH 84101

                      BOIES, SCHILLER & FLEXNER
                      BY:  STUART H. SINGER, ESQ.
                           DANIEL P. FILOR, ESQ.
                      333 MAIN STREET
                      ARMONK, NEW YORK 10504


FOR DEFENDANT IBM:       SNELL & WILMER               
                      BY:  AMY F. SORENSON
                      15 WEST SOUTH TEMPLE, SUITE 1200
                      SALT LAKE CITY, UTAH 84101  

                      CRAVATH, SWAINE & MOORE
                      BY:  DAVID R. MARRIOTT, ESQ.
                           MICHAEL P. BURKE, ESQ.
                           WORLDWIDE PLAZA
                      825 EIGHTH AVENUE
                      NEW YORK, NEW YORK 10019








                                                     2


APRIL 14, 2006                         SALT LAKE CITY, UTAH
                P R O C E E D I N G S
                        * * *
       THE COURT:  Good morning, ladies and gentlemen.
       MR. HATCH:  Good morning, Your Honor.
       MR. SINGER:  Good morning, Your Honor.
       THE COURT:  We are here in SCO vs. IBM  And I 
have reviewed your submissions.  We're here on IBM's 
motion.
       And, counsel, I see some new faces, so perhaps I 
could ask counsel to make their appearances.
       MR. SINGER:  Good morning, Your Honor.  Stewart 
Singer from Boies, Schiller & Flexner on behalf of SCO 
Group.  With me Brent Hatch and Dan Filor.
       MR. MARRIOTT:  Good morning, Your Honor.  David 
Marriott for IBM.  With me, Mike Burke and my associate Amy 
Sorenson.
       THE COURT:  Okay.  Mr. Shaughnessy is not going 
be here?
       MR. MARRIOTT:  Mr. Shaughnessy couldn't be talked 
out of going to Costa Rica, Your Honor.
       THE COURT:  Well, Mr. Marriott, do you want to 
proceed?
       MR. MARRIOTT:  I do, Your Honor.  Thank you.  
There is at least, I think, one preliminary question, Your 
                                                     3

Honor, which is whether the Court will be considering or 
not considering the proposed declaration of plaintiffs, 
what I consider a surrebuttal declaration.  And the Court's 
direction on that perhaps might be helpful at the outset.
       THE COURT:  Well, there obviously is some concern 
about it because it was not raised until this point in 
time.  I understand that SCO may have a response and be 
arguing that IBM should have included its experts at, 
maybe, in its original motion.  I'd like to hear it.  I 
would like to hear some argument on that.
       MR. MARRIOTT:  Would you like to hear argument 
with respect to whether it should be permitted, Your Honor, 
on the merits?
       THE COURT:  Of the motion?
       MR. MARRIOTT:  Yes.
       THE COURT:  I think that we need to hear it -- 
       MR. MARRIOTT:  Well, let me start with -- 
       THE COURT:  -- on both.
       MR. MARRIOTT:  The motion is actually SCO's 
motion, then, Your Honor, so I think I should yield the 
podium to SCO with respect to the motion to receive the 
declaration of their proposed expert.
       THE COURT:  All right.  If you want to start 
there, that's fine.
       MR. SINGER:  Good morning, Your Honor.
                                                     4

       THE COURT:  Good morning.
       MR. SINGER:  I will be very brief.  IBM elected 
not to file an expert declaration with their initial 
motion.  It could have done so, which then would have 
obligated us to file a response in our responsive phase. 
Instead they elected to wait until their reply brief, and 
the only opportunity, then, to respond to what that expert 
says is in doing exactly what we did, very quickly filing a 
motion for leave to file a rebuttal declaration, which we 
have submitted, at the same time, which clearly, in 
fairness, should be considered.  IBM argues that we should
IBM argues that we should have anticipated that they would 
file an expert declaration.
       On what basis can they say that we should 
anticipate that they would file that in reply, when they 
did not file it in their initial papers?
       THE COURT:  Let me ask this question, though:  
Were they required to initially?
       MR. SINGER:  I wouldn't think they were required 
anymore than we would have been required to.  I think we 
can make this argument with or without the aid of 
supporting declarations.  They apparently decided that they 
needed to do so in their reply papers, and, at that time, 
they filed Professor Davis' declaration.  My argument is 
simply that if expert testimony is to be considered, it's 
                                                     5

only fair that both sides have an opportunity to present 
that testimony.  And here they are the moving party.  They 
had the obligation, as part of being the moving party, to 
put forth what they thought was needed in their case.
       In fact, a number of Federal Courts, as noted in 
our reply papers, have criticized parties that wait until a 
reply motion to add an expert's testimony and if that was 
the intent, then, to deprive the other side of a chance of 
putting on its own expert testimony.
       Mr. Rockein's testimony directly relates to what 
Mr. Davis said in his declaration, and we submit it is 
perfectly proper.
       THE COURT:  Mr. Marriott?
       MR. MARRIOTT:  Thank you, Your Honor.  We 
received the Rockein declaration, Your Honor, less than 24 
hours ago, despite what the certificate of service 
suggests, and I have no reason why that's the case, except 
that that's when we received it.  We objected to the 
submission of the declaration without even having read the 
document because, as I say, we hadn't received it until 
less than 24 hours ago.
       The only reason that IBM submitted a declaration 
from Professor Davis in connection with IBM's reply papers 
is that SCO said something in its opposition papers which 
we think simply isn't true.  In IBM's opening papers, Your 
                                                     6

Honor, we said that SCO had failed to identify versions, 
files and lines with respect to certain operating systems.  
In their opposition papers SCO shot back and sort of, in 
broad, general language, said they fully complied, 
suggesting that IBM's assertions in its opening papers were 
wrong.
       Professor Davis does nothing in his declaration 
except set out a chart, Your Honor, which shows you, based 
upon review of the documents, where versions, files and 
lines are identified or not identified.  The declaration 
that's proposed from Mr. Rockein is a declaration that 
doesn't even meet directly the assertions of Professor 
Davis.  They pass in the night.  Mr. Rockein is addressing 
a different set of questions.
       On the highest level, he says, of course, SCO has 
provided specificity with respect to the final disclosures, 
but with respect to the specific questions that Professor 
Davis answered, which were responses to what was said in 
the opposition brief of the SCO Group, those two 
declarations simply don't meet.  And I would submit that 
the declaration is little more than an effort to get the 
last word in an untimely way, and it not ought not to be 
allowed.
       If SCO thought that it needed a declaration to 
refute the assertions made in our opening brief, for which 
                                                     7


I think no declaration is required, Mr. Davis -- Dr. Davis 
says little other, Judge, than:  "There is not a version 
there.  There is not a file there.  There is not a line 
there."
       Your Honor, if Your Honor wished to take the time 
to plow through the SCO final disclosures, could reach the 
very same conclusion.  So, the idea that they weren't on 
notice at the time of their opposition as to IBM's 
assertion, and if they wanted to submit a declaration of 
support thereof at that time, they full well could have 
done that.  To give us 24 hours' notice to respond to a 
declaration that is, itself, improper in any case, is, I 
think, simply not necessary.
       Mr. Singer suggests, Judge, that the cases he 
cites in his papers somehow stand for the proposition that 
what IBM has done here is incorrect, and I respectfully 
don't think that's right.  I think what those cases say is 
that it is not proper to raise a new issue in a reply 
brief.  IBM's reply brief doesn't raise any new issues.  It 
simply responds to the issue raised by SCO in its 
opposition papers, that they in fact provided the requisite 
specifications.
       THE COURT:  Then how does it hurt you, 
Mr. Marriott, the existence of it, the acceptance of it, if 
you say that it really doesn't address your expert's 
                                                     8

declaration anyway?
       MR. MARRIOTT:  That's an excellent question, Your 
Honor.  I don't think it hurts us in any way.  I would ask 
only that, if Your Honor is to allow the submission of 
Mr. Rockein's report, that we be given an opportunity to 
respond to it by way of a declaration from Professor Davis.  
Other than that, it doesn't hurt us in the slightest way, 
Judge.
       It is, however, an attempt to change the issues 
and to raise new issues, really a justification of a 
failure to comply in a surrebuttal declaration that I think 
inappropriate.  So, as long as we have an opportunity to 
respond, Your Honor, I don't think it hurts us in any way.
       THE COURT:  All right.
       Mr. Silver, let me ask you this question:  Why -- 
well, I guess the question goes to Mr. Marriott first.
       Mr. Marriott, why did you not submit an expert 
report in your initial submission?
       MR. MARRIOTT:  Sure, Your Honor.  The answer is 
very simple.  The SCO -- the premise of this motion is that 
SCO has failed to provide the specificity required by Your 
Honor's orders, which were very particular as to what was 
be provided.  We asserted, because I think it's just 
simply true, in our opening papers that the specificity 
wasn't there, and references made to the documents 
                                                     9

themselves, which, as I say, of course the Court can look 
and divine for itself whether or not there is a version, 
file and line of code there.
       We didn't submit an expert report in the opening 
papers because it wasn't required.  It was only when we had 
a denial of what we had asserted that we didn't want the 
Court left with a situation of:  Gee, he says this and she 
says that.  What are we supposed to make of this?
       It was only for that reason, Your Honor, that we 
submitted it.  It was purely as a response to what was said 
the opposition papers of SCO.
       THE COURT:  And, Mr. Silver, the next question, 
and to you, is:  Why did you not respond with this in your 
reply?
       MR. SINGER:  First of all, Your Honor, I'm Stuart 
Singer.  We have a lawyer on our case, Bob Silver.
       THE COURT:  I'm sorry.  Excuse me.  I do get 
those confused.  I'm sorry.
       MR. SINGER:  Your Honor, the issue which is 
framed in the initial papers is, is our description of 
technology, the misuse of the material, made with 
specificity?  If they were going use expert testimony on 
that, we would have responded in our opposition paper.  
They did not.  Our response to that was that we have 
provided specificity, as I'm sure the Court will hear about 
                                                     10

when we turn to the merits of that motion.
       For them -- for IBM to say they didn't expect an 
issue on whether or not we complied with the order, I mean, 
I don't know what they would have anticipated.  That we 
would not dispute their motion?  Clearly we dispute their 
motion.  The issue is not whether or not we cite line, 
version, file for the methods and concepts, and nor is 
Professor Davis' declaration limited to observing that 
fact.
       The question is whether or not the parties have 
complied with the order of providing specificity, and 
Mr. Rockein's declaration goes directly to that.  It 
contradicts Mr. Davis -- or Professor Davis.  Professor 
Davis says it's not specific enough for us, and Mr. Rockein 
explains that, for methods and concepts, this is plenty 
specific and quotes examples, deals with the example they 
raised.  So, it was only when we saw the Davis declaration, 
that they were going to rely on expert testimony at the 
reply stage, that, at that time, we apprehended the need to 
file a responsive declaration.
       THE COURT:  Upon what rule or case did you rely 
that allows you to raise this in a surrebuttal fashion?
       MR. SINGER:  Well, we don't believe it's a 
surrebuttal.  We haven't made an argument.  We think that 
the Court had -- if a reply declaration is being raised, 
                                                     11

then that is something you do in reply and that the Court 
has discretion, just like in accepting any papers, to grant 
leave to accept the declaration from our side in response 
to that.  It would be fundamentally unfair, we would 
submit, for the Court to consider only one side's expert 
testimony and not consider the other's when the first side 
raises it in reply.
       It would be one thing if they had raised it in 
their initial brief and we didn't say anything, and then, 
later, after all the briefing was done, we said:  "Judge, 
want you to consider this."
       But that's not what's happened here.
       THE COURT:  Thank you, Mr. Singer.
       Anything in response, Mr. Marriott?
       MR. MARRIOTT:  Well, Your Honor, they don't cite 
any cases or any rules in support of the application, and I 
think it is certainly not one contemplated by the rules.  
What I would say, again, Your Honor, is that I'm not 
concerned in the least about the content of the 
declaration.  However, we are the movant, and I think, in 
fairness, if it's to be considered, we ought to have an 
opportunity to respond, which we can do promptly after the 
hearing.
       If it's not to be considered, then I don't think 
you need to consider much of what Professor Davis has to 
                                                     12

say either, Your Honor.  I think either -- they aren't 
required, either of them, because they said what they said, 
and the orders say what they say at the end of the day.  If 
you're going to consider it, we just ask that you be -- 
that Professor Davis be given an opportunity to briefly 
respond.
       THE COURT:  All right.  What I am going to allow 
be submitted -- and, Mr. Marriott, I will allow you to 
submit a supplemental or a responsive declaration on behalf 
of Dr. Davis.  How long will it take to do that?
       MR. MARRIOTT:  I'll need to check with him, Your 
Honor.  Is ten days agreeable to the Court?
       THE COURT:  Ten days would be fine.  Now, what 
effect does that have on the remainder of today's motion?
       MR. MARRIOTT:  In my mind, it has none, Your 
Honor, because, as I say, I don't think the declaration, 
taken as true, has any bearing on this motion.
       THE COURT:  All right.
       MR. MARRIOTT:  And I'll explain why.
       THE COURT:  And, Mr. Singer, I'm going to allow 
them to respond to that, but that's where it's going to be 
cut off.
       MR. SINGER:  I understand the Court's ruling, 
Your Honor.  And the only thing I would ask is -- we 
haven't seen what's going to be said, and if there's new 
                                                     13

issues raised, we would hope the Court would entertain, at 
that time -- 
       THE COURT:  Well, I'm assuming that they will 
limit it, in proper surrebuttal fashion, to those issues 
raised or addressed in your submission.  I don't anticipate 
that that will be an issue, and so, therefore, I'm going to 
leave it as stated.  They will respond, and that will be 
it.
       MR. SINGER:  We understand, Your Honor.  Thank 
you.
       MR. MARRIOTT:  Thank you.
       THE COURT:  All right.  Now let's address IBM's 
motion at this time.
       MR. MARRIOTT:  Your Honor, at issue on this 
motion is whether SCO complied with the Court's -- with the 
Court's orders and IBM's requests specifically to identify 
the allegedly misused material.  And while we don't believe 
that SCO has provided what it was required to provide with 
respect to any of the 294 items at issue, it's disclosures 
are, respectfully, especially egregious with respect to 198 
them.  And those are the items of the disclosures that 
are at issue on this motion and the ones I would like to 
address today, the ones as to which we do not believe, in 
fairness, that SCO should and can be allowed to proceed.
       With Your Honor's permission, I would like to 
                                                     14

make, if I may, four points in support of IBM's motion.  
The first, Your Honor, is that the Court repeatedly ordered 
SCO to provide specificity with respect to SCO's final 
disclosures; version, file and line information.
       Point 2.  Your Honor, SCO's disclosures lack the 
required specificity.  Point 3.  The shortcomings in these 
198 disclosures make it impossible, as a practical matter, 
for IBM fully and fairly to defend itself.  And then, 
fourth, Your Honor, and finally, the only appropriate 
remedy, I respectfully submit, is for SCO not to be allowed 
proceed with respect to these 198 items.  It ought not 
be allowed to adduce evidence in support of them.
       Now, for Your Honor's convenience and with your 
permission, I would like to hand up, if I may, a book which 
will have some documents and exhibits which I hope will 
help with my presentation.
       THE COURT:  You may.
       MR. MARRIOTT:  The chronology of events, Judge, 
relating to this motion is long.  Since it is set out in 
IBM's papers and including Addendum A to IBM's reply 
papers, which is in this book at tab 1, I don't intend to 
repeat it here except I would like to say this just briefly 
by way of background.  And I would refer you, please, Your 
Honor, to tab 2 of the book.  SCO contends, as I think you 
know, Your Honor, that IBM dumped UNIX, System V, AIX and 
                                                     15


Dynix source code into Linux.
       That's the material that IBM is alleged to have, 
in one fashion or another, misused.  And those are 
represented at tab 2 of our book.  Those are the materials, 
Your Honor, as to which IBM has been requesting version, 
file and line information for just about three years.  And, 
you can see in the chart, Your Honor, we've been 
requesting that information because each of these products 
consists of a number of different versions, a number of 
different -- many, many files and many more lines of code.
       So, for example, UNIX System V consists of at 
least 11 versions which SCO is believed to have produced.  
Those versions are comprised of 112 thousand files, at 
least, and 23-plus million lines of code.  The same is true 
with respect to AIX.  IBM has produced at least nine 
versions.  They represent more than a million files of code 
and 1.2 billion lines of code.  Dynix, Your Honor, consists 
at least 37 versions of a base operating system, more 
than 470 thousand files and more than 156 million lines of 
code.  Linux, in one form or another, has 500-and-some 
versions.  It consists of 3-plus million files, and lines 
in excess of 1 billion.
       We're talking about a lot of code, Your Honor.  
More than 2 billion lines of code is implicated by SCO's 
claims in this case.  IBM has repeatedly asked that SCO 
                                                     16

provide version, file and line information with respect to 
the materials that IBM is alleged to have misused, these 
operating systems:  System V, AIX, Dynix and Linux.  A 
selection, Your Honor, of IBM's requests appears at tab 3 
of the binder, going back to the second month the case 
started, April, 2003, when IBM began asking SCO to tell us,
with specificity, what it is this case was about.  And, 
Your Honor, if you wish, of course, to look for yourself, 
the backup is provided.
       That brings me, Your Honor, to the first of my 
points, which is that Your Honor has repeatedly ordered SCO 
to disclose the allegedly misused material with 
specificity.  In response to IBM's discovery requests, Your 
Honor has entered no less than two orders, and Judge 
Kimball a third, that matter to today's motion.  And, by 
those orders, Your Honor and Judge Kimball clearly and, I 
would submit, consistently required SCO to identify what I 
call the coordinates of the allegedly misused material, the 
versions, the files and the lines.
        The Court's orders, Your Honor, generally speak 
in terms of files and lines, as opposed to versions, but 
it's impossible to talk about lines and files with also not 
having a sense of versions.  It would be like referring to 
a line of a book without mentioning what the book is that's 
being referred to.  Never, Your Honor, in the course of 
                                                     17

this case, has SCO made a request for relief from any of 
the orders that I'd like to review with Your Honor.  Never 
has it sought clarification.
       And that is, I would submit, because those orders 
are crystal clear.  It made arguments in opposition to the 
orders, what they required, and it did not prevail in those 
arguments.  And Your Honor entered the orders that you 
entered.  And I would like to refer you, if I may, now, to 
tab 4 of the book.  Here, Your Honor, we've set out the 
relevant text of the three orders that mattered, and you 
will see that indicated along the left column:  The 
12/12/03 order, the 3/3/04 order, and the 7/1/05 order of 
Judge Kimball.  Along the top we've indicated the four 
operating systems that are at issue.
       I'd like to direct you, if I may, Your Honor, to 
the 12/12/03 order.  Not long after this case was filed, 
following IBM's requests for particularity, Your Honor 
entered an order in the case requiring SCO, quote, "to 
identify and state with specificity with the source codes 
that SCO is claiming formed the basis of their action 
against IBM."
       Those source codes, Judge, are System V, AIX, 
Dynix and Linux.  And they were ordered to disclose, with 
specificity, that which they contend was misused.  In the 
same order Your Honor said, quote, "To respond --" "SCO is 
                                                     18

required to," quote, "respond fully and in detail to 
interrogatory numbers 1 through 9 as stated in IBM's first 
set of interrogatories."
       What do IBM's first set of interrogatories say?  
I've included just three of them here, Your Honor, for 
purposes of illustration.  Interrogatory number 1 said, and 
I quote, with appropriate ellipses in the text here:   
"Please identify, with specificity, by product, file and 
line of code, where appropriate, all of the alleged trade 
secrets and confidential or proprietary information that 
plaintiff alleges or contends IBM misappropriated or 
misused."
       They were ordered, Your Honor, to respond as 
stated in IBM's request.  Interrogatory 3:  "Please 
describe in detail all places or locations," 
parenthetically, "including the operating systems, where 
the alleged trade secret or confidential or proprietary 
information may be found or accessed."
       Interrogatory 4:  "Please describe in detail, 
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."
       The only way, Your Honor, to tell us where in the 
products the material lies we are alleged to have misused, 
                                                     19

whether it be code or concepts, is to tell us the file and 
the lines of code.  Your Honor went on in the same order to 
say SCO was required, quote, "to fully respond in detail to
interrogatory numbers 12 and 13 --" again -- "as stated in 
IBM's second set of interrogatories."
       Interrogatory 12 says.  "Please identify with 
specificity, by file and line of code, all source code and 
other materials in Linux to which plaintiff has rights and 
how the code or other material derives from UNIX."
       And then, in interrogatory 13:  "Please describe 
in detail how IBM is alleged to have infringed plaintiff's 
rights."
       It could not be more clear.  Four and five times 
the same thing, Your Honor, has been requested and four and 
five times ordered.  Following that order, SCO, Your Honor, 
nevertheless it did not provide the requested information.  
And we set that out in the motions that were made that 
preceded the next order that the Court entered.  And Your 
Honor entered an order on 3/3/04 wherein you ordered SCO to 
do as you ordered it to do previously.
       And if you look at the blue text, Your Honor, in 
the middle, you say in paragraph 2 of the order:  "As 
previously ordered, SCO is required to --" and then you go 
to explain what SCO is required to do.  We had pointed 
out, Your Honor, that SCO had not provided version, file 
                                                     20


and line information with respect to each of the operating 
systems.  Again, the allegation is we took code from AIX 
and Dynix and we dumped it into Linux.  And that's a 
problem, they contend, because AIX and the Dynix code is a 
derivative or modification of System V.
       So we said, "All right.  Where are the versions 
and files and lines here?  Where are they here?  And where 
they here?  We didn't get it.  We came back to Your Honor, 
and your Honor entered the following order.  We start in 
the middle with respect to the AIX and Dynix, which really, 
I think, is the crux of their case:  "As previously 
ordered, SCO is to provide and identify all specific lines 
of code that IBM is alleged to have contributed to Linux 
from either AIX or Dynix."
       As to System V, Your Honor, it says:  "SCO is to 
provide and identify all specific lines of code from UNIX 
System V from which IBM's contributions, whether they be 
code or methods or anything else from AIX or Dynix are 
alleged to be derived."
       And, finally, paragraph 4 on the far right:  "SCO 
to provide and identify, with specificity, all lines of 
code in Linux that it claims rights to."
       Again, Your Honor, it could not be more clear 
they were required to provide version, file and line with 
respect to that which we are said to have misused.  Judge 
                                                     21

Kimball, in his order of 7/1/05, simply reiterates that SCO 
is required to specify by certain deadlines, once and for 
all, the allegedly misused material.
       I would submit, Your Honor, that the orders of 
this Court could not be more clear as to what SCO was 
required to do.  And that brings me, if I may, Your Honor, 
to my second point, which is that the final disclosures 
lack the requisite specificity.  The indisputable fact, 
Your Honor -- and I submit it is indisputable -- is that 
SCO has not provided version, file and line information 
with respect to 189 -- 198 items at issue here as to each 
of these operating systems.
       It is not there.  Mr. Rockein doesn't tell you 
it's there.  SCO's papers don't tell you it's there.  It 
absolutely is not there.  That's what they were required to 
do.  They didn't do it.  And, as a result, Your Honor, they 
have not complied with this Court's orders.  It's as simple 
that.
       By way, Your Honor, of -- and let me refer you, 
if I may, to tab 5.  Tab 5 is Exhibit -- or Addendum B, 
rather, to IBM's reply papers and an addendum to Dr. Davis' 
report.  What we have done here, Your Honor, is, along the 
left column, indicate the items that are challenged on this 
motion.  There are 198 of them.  We have then taken each of 
the operating systems and displayed them, System V, AIX,
                                                     22

Dynix and Linux.  And we have a "V," "F" or "L."  "V" for 
version.  "F" for file, and "L" for line.  And we have put, 
Your Honor, an "X" in that box where SCO has provided, with 
respect to that disclosure, a version of System V, a file 
System V or a line of System V.
       As this chart demonstrates, Your Honor, with 
respect to System V, SCO identifies a single version of 
System V with respect to the entirety of these 198 items.  
One of the items has a version of System V.  With respect 
to files of System V, one, Your Honor.  One of the items 
identifies a file of System V.  Not a single one of the 198 
items identifies lines of code of System V with respect to 
it, not one of them.
       The same, Your Honor, is essentially true with 
respect to AIX and Dynix.  A single one of these items 
references a version of AIX.  None of them references a 
version of AIX.  None of them references lines of AIX.  
With respect to Dynix, roughly two of them, by my count, 
identify versions of Dynix.  Roughly three of them identify 
files of Dynix.  Not a single one of them, Your Honor, 
identifies lines of Dynix.
       Compare that, Judge, to your orders, your orders, 
plural, which could not have been more clear about what was 
required with respect to each of these operating systems 
and the allegedly misused material.
                                                     23

       Finally, Your Honor with respect to Linux.  There 
are more versions of Linux identified here.  Roughly 27 of 
the items offer a version.  There are many more files 
identified in this category from Linux.  However, only 
three of the items, Your Honor, offer lines of Linux code 
described in this chart.  So, Judge, respectfully, each 
one of these three categories:  System V, AIX or Dynix and 
Linux required all three coordinates for IBM to be able, as 
we thought was required, as your orders made clear, to 
assess SCO's claims.  As to these 198 items, as opposed to 
the ones we haven't moved on, that information simply isn't 
here as it was required to be.
       And for that reason, Your Honor, we submit that 
SCO has not complied, plainly, with the Court's orders.  
Now, in its opposition papers, Your Honor, to be sure, SCO 
says in broad strokes that it has complied, that it has 
provided specificity.  What it doesn't say is that it has 
provided this information.  What it does is redefine 
specificity in a way to its liking.  It lists the things 
that it's provided, and it says that lots of stuff has been 
provided here, and we have certainly met our obligations.  
have gone above and beyond.
       Respectfully, Your Honor, the prerogative wasn't 
SCO's to redefine what it meant to provide the specificity 
that the Court's orders required.  They submitted a 
                                                     24

declaration from Mr. Rockein who, apparently, according to 
the declaration, played what he described is the largest 
role in compiling SCO's final disclosures.  As I said at 
the outset, we have had this for less -- now probably 
slightly more than 24, but we have had this for about 24 
hours, Your Honor, and we will respond in due course, 
within the scope given by way of a declaration from
Professor Davis we opposed in principle, when we hadn't 
seen it.
       Having read this declaration, Your Honor, as I 
said at the outset, it is absolutely no impediment to the 
entry of the motion we seek here, a disposition that the 
specificity required wasn't provided and SCO therefore 
shouldn't be allowed to proceed with respect to these 
claims.  Mr. Rockein says in his declaration that he 
strongly disagrees with Professor Davis, that in fact a lot 
specificity has been provided.  And he reaches 
conclusions to that effect.
       The only reason, Your Honor, when you look 
carefully at Mr. -- when you look carefully at 
Mr. Rockein's declaration, the only reason that he reaches 
a different conclusion from Professor Davis is because he 
answered different questions.  Mr. Rockein's declaration 
does not say, "Oh, in fact IBM has missed it.  Here are all 
the versions.  Here are all the files.  Here are all the
                                                     25

lines of System V."  He doesn't say, "Here are all the 
versions.  Here are all the files and here are the lines 
for UNIX or for AIX or for Dynix."
       What Mr. Rockein basically says, Judge, is that a 
lot of work has gone into this and a lot of information has 
been provided.  We have summarized, he says, the alleged 
disclosure.  We've pointed IBM to a bunch of documents, 
which they call disclosures -- e-mails, essentially.  We 
have given a list of the names of people we say were 
involved in this, and we have pointed IBM to some source 
code.
       Well, Your Honor, Professor Davis doesn't say, 
and IBM hasn't argued, that SCO didn't provide some 
e-mails, point to some source code, list some people and 
generally describe what it is they contend is at issue.  
That isn't, however, the issue, Your Honor.  The issue is 
whether they have met the standard of specificity that was 
set out in this Court's orders, that was requested for 
almost three years now in IBM's discovery requests.  That 
information hasn't been provided, and it's in that respect, 
respectfully, that Mr. Rockein's declaration supports the 
relief that IBM seeks here, by silence.
       It does not dispute because it can't dispute that 
the information that we have requested was not provided.  
And for that reason, Your Honor, I respectfully submit that 
                                                     26


SCO simply hasn't complied.  And lest Your Honor think that 
we're seeking here to apply some different standard to SCO 
than has ever been applied to IBM, I remind you that early 
the case IBM moved for summary judgment on one of its 
counterclaims for copyright infringement.  In support of 
that motion, with no order from the Court, we submitted 
line-for-line comparisons of 783 thousand lines of code, 
showing exactly what they copied and exactly where they 
copied it from.
       We've been asking from the beginning for nothing 
other, Your Honor, from them, than we gave them voluntarily 
without any order of the Court.  That's what we don't have, 
and it's for that reason that SCO, respectfully, has not 
complied with the Court's request.
       That brings me, if I may, Your Honor, to the 
third point, which is, Your Honor, that the shortcomings 
here in SCO disclosures make it, as a practical matter, 
impossible for IBM properly to defend itself.  This is not 
a question of a technical, harmless foul.  This is a 
fundamental difficulty in our ability to properly defend 
ourselves and, without that information, it is not 
possible, as a practical matter, fairly to be able to do 
that.
       The problem, Your Honor, is that we have, as 
Professor Davis describes, essentially been pointed to an 
                                                     27

enormous haystack of code, to some billion lines of code, 
and told to go find 198 needles which, I respectfully 
submit, as Professor Davis has said in his declaration, 
are, in their appearance, because of the description that 
has been given, without versions, files and line 
information, literally, in their appearance, different from 
all of the other hay.  We've got an enormous haystack in 
which we haven't been shown, with any particularity, what 
is we are supposed to have done.
       I want to illustrate for Your Honor the prejudice 
that flows out of the approach SCO has taken here, and for 
that purpose it's useful to revisit their allegations.  
Remember the allegation.  We took AIX and Dynix code.  We 
dumped it into Linux.  We took System V code, and we 
improperly put it there, infringing the System V code by 
using it.
       SCO has basically two claims, Your Honor, that 
represent the thrust of their case, breach of contract 
claims and copyright claims.  We supposedly breached 
contracts by dumping this code, they say, into Linux, and 
supposedly infringed their alleged copyrights by using 
Linux which contains, apparently, they say, the allegedly 
misused information.  Each of those causes of action, Your 
Honor, requires an extensive inquiry into the particulars 
what SCO alleges.  And I want to refer you, if I may, 
                                                     28

Your Honor, to tab 10 in the book.
       Here what we have done is simply set out the 
basic copyright principles which concern principles that 
really govern the prosecution of a copyright case and a 
contract case, and, you know, they are:  Does IBM have a 
license?  Who wrote this code?  Is the stuff that's 
supposedly infringed in Linux, is it even protectable by 
copyright laws?  Is it merely an idea or a method or a 
process?  Is it dictated by externalities, as the Tenth 
Circuit says in the Gates Rubber case, like programming 
practices?  Is it in the public domain?  Does IBM have a 
license to it?  When did they get the license to it?
it even in Linux?  Did it get accepted in the patch by 
which, perhaps, it was offered?  Did it get accepted in the 
patch in which it was offered?  If it's there, is it even 
important?
       I mean, the basic allegation, Your Honor, is that 
IBM dumped so much material into Linux that we made it a 
super operating system that killed SCO's UNIX business and 
that, therefore, they are entitled to billions of dollars 
damages.  Surely they don't contend that we are not 
entitled to understand exactly what it was that was 
supposed to be put in there and determine and evaluate 
whether that even matters to Linux, whether anyone is even 
using Linux because of that and whether, even if they are 
                                                     29

using it because of that, it has any bearing whatever on 
the competition between Linux, if any, and their UNIX 
products.
       Those are the kinds of questions, Your Honor, 
that we need to be able to answer.  Those are the kinds of 
questions that are practically impossible to answer without 
having the coordinates that are missing here.  And I want 
refer you, if I may, to tab 11 of this book.  All 
right.  This, Your Honor, is one of the code comparisons 
which SCO provided with its final disclosures.  We have not 
challenged this code comparison, Your Honor.  It doesn't -- 
SCO has not provided, with respect to this, all the 
information they were required to provide, and we can deal 
with that at summary judgment.  But they have provided the 
coordinates.
       We know that they are contending that there is a 
substantial similarity between a certain version and a 
certain file and a certain line in System V, which is on 
the left, and a certain version and a certain file and a 
certain line in Linux.  You can see the red highlighted 
language down there, Your Honor.  There appear to be 14 or 
so lines of codes which they have identified.  With that in 
hand, Your Honor, we can undertake to do the investigation 
contemplated by the cases that you have to do in a case of 
this kind.
                                                     30

       Did IBM actually contribute that?  When did we do 
it?  How did we do it?  Is it actually even in -- is it 
actually something that even, in any way, helps or hurts 
Linux?  Was it publicly -- was it publicly disclosed before 
IBM supposedly did it in some standard?  Did some third 
party disclose it, for which IBM couldn't possibly be 
responsible?  There are a whole series of questions which 
are laid out at tab 10, Your Honor, that we would want to 
ask based on having this information.
       Now, as to this particular item, it has been 
provided with the detail, here, that we've asked, and we 
have undertaken our inquiry with respect to it.  Again, it 
isn't in the motion.  If you look at the blue sheet, Your 
Honor, behind that information there is an excerpt from 
Intel's 386 family binary compatibility specification.  
It's a public specification with a copyright date of 1990 
1989, I believe.  If you look at the second page, you 
will see exactly that code, exactly that code which 
supposedly IBM has improperly put into Linux, in an Intel 
specification since 1989, long before any allegations of 
misuse by IBM here.
       When we are told exactly what it is we did, Your 
Honor, we can ask all the right questions.  We can do all 
the right investigation, and we can properly defend 
ourselves.  When we are told, nebulously, that we did bad 
                                                     31


things with respect to some generally defined technology, 
we are in no position to undertake that kind of 
investigation.  That's the only kind of investigation -- 
that's the kind of investigation we believe we have a right 
do.  That's why we asked for version, file and line  
information from the beginning of the case.
       And without that information, as SCO well knows, 
it is an entirely different matter -- how are we even to 
begin the exercise of answering all the questions that we 
are seeking to answer without knowing particularly what it 
we are said, Your Honor, to have done?
       Mr. Rockein suggests in his declaration that the 
specificity provided to IBM is more than adequate.  It 
sounds like he's almost done with his expert report.  He's 
ready to submit it by, presumably, May 9th when I believe 
it's SCO's obligation to submit, and therefore IBM should 
have no problem figuring out precisely what it is SCO 
contends.
       Your Honor, first of all, Mr. Rockein is not 
qualified to speak to what IBM needs to do to defend 
itself.  The cases make quite clear the inquiry that is 
required.  Moreover, Your Honor, Mr. Rockein is the author 
it sounds like, of a very significant part of these final 
disclosures.  He assembled them.  He says he played the 
largest role in it, so he has a different perspective.  His 
                                                     32

agenda, Your Honor, and SCO's agenda is very different from 
IBM's agenda.
       It isn't -- it isn't their concern to demonstrate 
that SCO doesn't own the code.  It isn't their concern to 
demonstrate that they don't have a license to the code.  It 
isn't their concern to demonstrate it's not copyrightable 
as a matter of law.  It isn't their concern to demonstrate 
that it has been in the public domain for decades.  Those 
are the kinds of questions we have to answer.  Those are 
the kinds of questions we can't answer in view of what lack 
of specificity we have.  That's my third point, Your Honor.
       Fourth, and finally, the only appropriate remedy, 
here, Judge, I respectfully submit, is to limit these 
claims, by which I mean an order precluding them from 
offering evidence in support of them.
       THE COURT:  Why is it more appropriate to ask for 
this remedy than to address this in a partial summary 
judgment?
       MR. MARRIOTT:  That's an excellent question, Your 
Honor.  It's more appropriate because there are many 
arguments that we would make at summary judgment 
potentially.  We are in no position to even begin to 
prepare all of the arguments that we'd like to make at 
summary judgment because we don't have the information 
sufficient to do that.  I mean, without knowing exactly 
                                                     33

what we're moving against, we're going to have an awful lot 
of difficulty, Judge, showing where something that hasn't 
been defined is found in a standard.
       The reason that SCO urges Your Honor deferral of 
this question to summary judgment is because dealing with 
this question on summary judgment is going to be awfully 
messy, and it's ordinarily the plaintiff's perspective that 
things ought to look awfully messy in summary judgment 
because it tends to make it hard to get questions resolved 
at summary judgment.  It makes it much easier to get to 
trial.
       Your Honor said at a hearing in this case on the 
24th of February, quote:  "Obviously I don't want -- what I 
don't want is either side to use information that has been 
withheld in support of a summary judgment motion, in 
support of their case at trial.  All evidence needs to be 
the table for the other party to analyze and to take a 
look at."
       Your Honor, it's not on the table.  We aren't in 
a position to take a look at it in the way that we believe 
Your Honor has repeatedly directed SCO to put us in a 
position to do.  And we're not because we don't have the 
versions and the files and the line information.  Contrary 
to the suggestion made by SCO, there is ample authority, 
ample authority for Courts entering orders of this kind, 
                                                     34

limiting the evidence that can be submitted in support of 
claims that have not been particularized in a way as 
required by the Court.
       In summary, Your Honor.  We simply don't have 
that which SCO has been ordered repeatedly to provide.  As 
a result, we are at an extreme disadvantage in preparing 
our case as to these 198 items.  We will deal with the 
other ones at summary Judgement.  Thank you, Your Honor.
       THE COURT:  Thank you, Mr. Marriott.
       Mr. Singer.
       MR. SINGER:  Your Honor, we also have a book of 
material.  May it please the Court.  Your Honor, there are 
three arguments that I am essentially going to present 
which -- in the course of which will respond to what 
Mr. Marriott has had to say.  And it's really three 
independent reasons why IBM's motion should be denied.
       First, we will show that SCO has complied with 
the Court's order requiring that, quote, "misused 
material," close quote, be identified with, quote, 
"specificity."  That specificity differs, whether you're 
dealing with method and concept or whether you're dealing 
with a donation of code.  And I'll explain that when we get 
argument number 1.
       Argument number 2.  There is no evidence, none, 
that SCO has willfully withheld any identifying information 
                                                     35

its December submission.  This is a discovery sanction 
which is sought.  That requires proof that we are holding 
back something that we have that we are not making 
available, and there is zero proof of that.
       And, third, even if one were to get past the 
first two issues, a decision on 198 disclosures as to 
whether or not those technologies are properly in the case 
cannot be made without an individualized determination as 
the adequacy of the disclosure with respect to those.  It
cannot be done on simply a blanket basis.  And, as the 
Court's question indicates, this is really a merits issue 
which goes to the question of:  As described, without using 
more material than the voluminous material we have 
provided, have we properly stated a cause of action with 
respect to these disclosures, that they are protected under 
our contracts?  Have they been disclosed improperly?  And 
has that, in turn, caused damage?
       Now, turning to that first issue -- and I'm now 
tab 2 in the book -- I'd like to talk a little bit about 
what the December report, in compliance with the Court's 
order, provided.  And I can start by saying that we decided 
go above and beyond that order, not just to describe and 
identify, with specificity, those disclosures, but, in a 
large part, add in and tab materials, the evidence that 
relates to them, to show the actual disclosures when they 
                                                     36

are made in writing, and to provide an enormous amount of 
information that even goes beyond the order which simply 
says identify with specificity.
       Now, there are 293 instances where technologies 
were misused by IBM that are identified in the submission 
provided to the Court and to opposing parties.  Those 
identify, in almost all cases, the persons making the 
disclosure.  It says what the improperly disclosed code, 
method or concept is.  Where there is code that is 
specifically -- 
       THE COURT:  Where are you reading from?
       MR. SINGER:  I'm not reading.  I'm describing 
what is in the summary of the 293 methods.
       THE COURT:  All right.  The reason I asked that 
because -- and perhaps this is just ignorance on my 
part, and I will gladly, please, and urge you to educate 
me, but it seems to me that the orders emphasize lines of 
code, etc., and now we're switching to technologies, method 
and concept, as opposed to what was included within the 
order and which I thought was specific.
       MR. SINGER:  Your Honor, I'm very happy to 
address that because that is really the heart of this 
issue.  IBM's position is that if it isn't a line of code, 
with specificity as to version, file and line, it doesn't 
count.  Well, that is not this case.  If you go back to the 
                                                     37


Second Amended Complaint, where we talk about code being 
dumped in, we also talk about disclosure of methods related 
thereto.  We talk about the use of other information, and 
that's in paragraphs 111, 113.  It's throughout the entire 
Complaint.
       THE COURT:  But it has never been raised in terms 
argument or response until now.
       MR. SINGER:  Well, Your Honor, the issues which 
were raised in your earlier orders was:  You have an 
interrogatory.  It says, "Identify all the source code that 
you're going to be making claims about."  Now, I agree 
that, to the extent there's an issue about source code that 
are making claims about, the Court's orders say identify 
that.  And then, to the extent we've gotten a lot of that 
source code in the last year, we have made very substantial 
identifications of the disclosures that relate to source 
code disclosures.
       Those are the ones that they are not challenging.  
Those are the ones such as where charts are shown drawing 
that specifically.  The others are method and concept 
disclosures.  Now, there is no order of this Court which 
has ever held that the method and concept disclosures are 
not part of this case.  There is no order that says that 
method and concept has to be disclosed by line, version, 
file, source code, and that isn't the mode of disclosure.
                                                     38

       THE COURT:  No.  But it has never been mentioned 
before, to my recollection, although I'm more than willing 
be proved wrong, that we have ever talked about methods 
and concepts.  We have always been talking about source 
code, line, file, version; isn't that correct?
       MR. SINGER:  Well, because those discovery 
requests were asking about that.  So, to that extent, where 
you're talking about discovery requests which were asking 
for it, then that makes sense.  For example, if you look at 
their own chart, Your Honor, with interrogatory, for 
example, number 1, it talks about identify with 
specificity, by product line, file, line of code where 
appropriate, where appropriate.
       There are two separate interrogatories that talk 
about identifying, with specificity, by file and line of 
code, source code, and then there's one describing, in 
detail, how IBM is alleged to have infringed plaintiff's 
rights.  They have chosen to move on source code 
interrogatories.
       THE COURT:  But I'm looking at my orders as well.
       MR. SINGER:  Yes.  Your orders are to order us to 
comply with their interrogatories.
       THE COURT:  But looking at the specific wording  
on those orders.  And nowhere does it talk about method and 
concept.
                                                     39

       MR. SINGER:  But, Your Honor, the -- we have 
complied with those orders by identifying, to the extent 
there are lines of code which are being relied upon, and 
saying that, in these cases we are talking about lines of 
code either from System V or from a derivative product such 
AIX or Dynix, here they are.
       But, until this last disclosure obligation, which 
says to identify all the misused materials, there has not 
been an obligation on SCO to identify methods and concepts 
that are not related to the lines of code.  Moreover, a lot 
those have come out of work on the materials, depositions 
and other discovery that's occurred over the last six to 
nine months.
       So, we have, in response to the Court's order, 
which is the one which deals with these disclosures, which 
says, "Define, with specificity, the misused materials,"  
where those misused materials have involved code, we have 
provided specificity.  And those are largely the ones which 
they are not moving on.  And, to the extent these deal with 
methods and concepts, our position is that they are 
provided with the specificity the material allows.
       Code was not disclosed in those cases, in many of 
those cases, so code cannot be identified, but that doesn't 
mean that nothing valuable, nothing that isn't protected 
under our contracts, wasn't disclosed.  It was provided, 
                                                     40

and we provided abundant detail there.  We provided over 10 
thousand pages of supporting material that constitutes 
those disclosures in these binders, and that's in addition 
to the 450 thousand lines of source code that was misused.
       Now, if we turn to tab 3, we break that down.  We 
indicate that approximately one-third of the disclosures 
are source-code based, which are largely not challenged, 
and IBM's motion concerns the other two-thirds, which are 
largely method and concept disclosures.
       Now, Mr. Marriott, at the beginning of his 
presentation, says really all of them are deficient.  And I 
would point the Court to what Mr. Marriott said before the 
Court on February 6, 2004, at page 6 of the transcript, 
where SCO, at that time, had identified 17 files which it 
says were improperly contributed.
       And Mr. Marriott says, quote:  "Now, 
specifically, SCO identifies 17 files, parts of 17 files, 
which it says were improperly contributed.  With respect to 
many of the lines of code in those 17 files, they properly 
identified which line it is they say we took from AIX or 
Dynix and where it is they say we put it in the Linux 
operating system.  With respect to many, the disclosure is, 
I think, sufficient."
       And then he wanted to argue about the ones where 
didn't think they were sufficient.  So I don't quite 
                                                     41

understand how IBM can take the position that none of the 
294 today, which provide even more information, are not 
adequate when, in February of 2004, the ones available 
then, were adequate.  But be it as it may, those are part 
of the ones not challenged.  Those are within the 100.  And 
we are focusing on the ones which are method and concept 
disclosures which, by their nature, do not relate to source 
code.
       Now, if we turn to tab 4, first of all, Your 
Honor, the contracts between SCO and IBM required IBM to 
keep confidential methods and concepts from UNIX System V 
as well as derivative products.  It was part of our 
pleading.  It's always been part of the case.  IBM has 
asked about all sorts of technology issues at depositions.  
This case is not simply a copyright case that deals with a 
code comparison.  I think the Court has, itself, recognized 
that this case involves contract protections that can be 
broader than the copyright law provides.
       Now, as Mr. Rockein explains, the identification 
of a method or concept differs from identification of 
source code disclosure.  In many cases no source code is 
discussed at all.  In some cases sample source code is 
disclosed.  In certain cases, where there is a patch, that 
is referenced in the disclosure item, and that is in the 
disclosure itself.
                                                     42


       Now, it would be a merits argument for IBM to 
argue that, unless you have source code in a methods and 
concept disclosure, that isn't actionable, and that is 
really the premise of what they are asking this Court to
rule.  They make a merits argument that if it isn't source 
code, it is not actionable.  Well, they will have an 
opportunity to make that argument for summary judgment or 
otherwise.
       We don't think that is correct.  We don't see any 
law that supports that proposition, but that certainly is 
not a proposition that's previously been established, but 
is the assumption under which their motion rests, that 
it's not source code; line, file, version, it doesn't 
count.  Now, we would submit that if these disclosures 
convey sufficient information to tell the Linux developers, 
who are doing the coding, how to implement the method and 
concept, then, by definition, it should be sufficiently 
specific to put IBM on notice of those claims, as it is IBM 
that has the operating system and which made those 
disclosures.
       And I think, when we talk about a few examples, 
we'll see that.  I'd like to turn, Your Honor, to tab 7 in 
the binder, if I might.  Tab 7 is a summary of what 
Mr. Rockein points out in the detailed charts which are at 
tab 10 and in his declaration.  And they talk about the 198 
                                                     43

challenged disclosures.  For 130 of those 198, you have the 
actual disclosure item, if it was an e-mail, if it was an 
article.  That item, the disclosure, itself, is provided.  
IBM knows exactly what we're talking about.
       For 181 of the 198 challenged items, there is an 
express reference to Dynix or ptx in the disclosure, which 
we submit is a prima facie case that this comes from Dynix.  
The people making these disclosures were at Sequent 
Developers, who had worked on Dynix.  For 168 of the 
challenged items, file locations in Linux were specifically 
provided.
       Now, I'd like to, if I might, turn to one example 
that Professor Davis discussed in his declaration because I 
think that, in itself, an example hand-picked by IBM's 
expert, that example, itself, shows that there is 
sufficient specificity here to allow IBM to understand what 
are talking about and proceed and prepare a defense.  We 
have included that at tab 11 in the book, Your Honor.
       Now, I'm going to be fairly general in describing 
the contents of these and a couple other examples because 
the confidentiality order concerning these matters, but 
the matters are before the Court and can be read.  And the 
first page here indicates what's in item 146, which is a 
method and concept that is -- also references another tab, 
a paper written by an IBM employee named McKeny, and a 
                                                     44

website with code which, interestingly enough, we can't 
access because we don't have access to that, but which says 
that these are scripts related to this method and concept 
that IBM would be able to access but which we were unable 
access.
       If one goes to the third page, this is a copy of 
what we have in our disclosure statement with respect to 
item 146.  And it indicates the three IBM employees, all 
former Sequent employees, who had worked on Dynix, who are 
involved in the disclosure.  It quotes from the e-mail in 
which the disclosure was made.  And the general area here 
a method and concept called differential profiling.  It 
discusses how -- where this is described, and that is a 
reference to this article, which Mr. McKeny wrote, with 
respect to differential profiling.  And there is a 
reference to some scripts that can help with differential 
profiling found at a website where we don't have access, 
but he says these scripts are set up for ptx, which is the 
reference at Dynix and ptx.
       It has the source to tab 156 in these books, 
which then has the following pages, which is the entire 
e-mail chain, which has proposed code submission to Linux 
and the discussion by e-mail among these IBM'ers, one of 
whom is putting together the Linux contribution and the 
other who is familiar with this method and concept in 
                                                     45

Dynix.
       And, finally, you have the Linux files which, we 
submit, relate to this improperly disclosed code, method 
and concept.  So, here, in the very example that Professor 
Davis points to, you don't have just a nebulous description 
what we're talking about or a general description of the 
method and concepts, we have the actual disclosure.  You 
have the precise method and concept which is at issue.  You 
have references to code, although we don't know what that 
code says.  You have the Linux files.  You have the 
individuals who they can talk to.  They are IBM employees, 
who assisted in preparing a defense.
       And we submit that that shows that that is a 
sufficient amount of information for us to proceed with 
this item.  Now, if we turn -- and I think that that is 
generally the case.  This is the one example they have 
picked, but the point is, is that there is specific 
information here about methods and concepts which have been 
part of the case since the Complaint and which are, until a 
court orders otherwise on the merits, a sufficient basis 
for us to say they have violated contracts that say that 
methods and concepts are to be maintained as confidential.
       Now, Your Honor, the second argument that I'd 
like to turn to is that there is no proof of willfulness, 
that would be a requisite finding for a discovery sanction 
                                                     46

of the type this Court is being asked to make.  We are here 
under Rule 37(b)(2), and that provides that if a party 
fails to obey an order to permit discovery or provide 
discovery then a certain number of sanctions may be 
entered.  All the cases cited both by us and by IBM are 
consistent in indicating that you have to have a willful 
failure to make discovery.  In other words, we have to have 
something in our possession that we are not turning over to 
them.  And there is no proof of that whatsoever, that we 
are holding back source code relating to these methods and 
concepts and not telling them about it.
       Where is the proof of any of that with any of 
these 198 disclosures?  What there is, is an argument 
saying that they would like there to be a source code 
identification for these methods and concepts.  Well, there 
isn't.  If they think that means these legally aren't 
actionable, that is a motion to make on summary judgment to 
the Court.
       If they think we are holding back some 
information, then tell us what that is because we aren't,  
and Mr. Rockein expressly indicates that in his 
declaration.  And his instructions were to be as 
forthcoming as possible, and we have sought to do that.
        And if we were to, at a later time, present 
disclosures that are not in these 293 or to be shown to 
                                                     47


have had in our hands information that was disclosed at
this time, IBM is certainly able to object.  If we were to 
oppose a motion for summary judgment by using material that 
should have been disclosed here but wasn't, they know how 
to object.  And that's what these cases deal with.
       If you look at tab 12, the cases cited by IBM 
deal with situations where here a creditor failed to appear 
for a deposition at all, and the Court dismissed the case.  
Obviously the creditor had the ability to appear for the 
deposition.  You had the Nike case, where the defendants, 
quote, "totally failed to provide the relevant data that 
they had."
       If you go to tab 13, we talk about the other 
cases; the Standard Metals case, which is a Tenth Circuit 
case, the defendant failed to appear for deposition.  The 
Kern River case, the property owner failed to produce 
documents, documents which it had within its possession.  
That is where discovery sanctions come into play, but there 
is no basis, in any of the cases cited, on which you can 
sanction SCO for not turning over information it does not 
have with respect to version, file, line references to
methods and concepts where those were not used.  They 
weren't used by the IBM employee in making the disclosure, 
and they weren't otherwise known to us.
       Now, there are a couple of cases where Court's, 
                                                     48

summary judgment motions, like the Imax versus Cinema 
Technology case and the Kang case have precluded a party 
from using evidence at summary judgment that they haven't 
produced in discovery.  And that isn't, of course, what we 
are talking about here.  We are not at summary judgment.  
certainly haven't sought to use any evidence that hasn't 
been produced in discovery.  If we did try to do that, IBM 
knows what to do.
       So, Your Honor, with respect to the legal 
requirement to enter a sanction order that IBM has asked 
for here, there is simply no legal basis on which a finding 
can be made that we have things in our possession that we
have willfully failed to provide.  Now, I would note 
further that this is especially an inappropriate motion 
coming from IBM, given what has come to light as their own 
actions which have made identification of source code more 
difficult, if not impossible, in many cases.
       If you turn to tab 16, Your Honor, I would like 
to briefly discuss two aspects of that.  Your Honor, one 
aspect is the AIX source code, which this Court ordered to 
be produced, to provide all versions and formats.  And IBM 
has said that many of these can't be located.
       If we turn to tab 17, one of the things that has 
come to light during the deposition process is that 
directions were given, after these lawsuits were filed, 
                                                     49

that led to the destruction of probative information.  
After this lawsuit was filed, you would expect an order to 
go out to everyone saying:  "Don't destroy anything.  Keep 
everything in tact.  You are required to preserve 
evidence."
       The record from Dan Frei, who is the head of the 
Linux technology center, indicated that there was a 
direction to the people there to cleanse their sand 
boxes --  What are sand boxes?  That's where you're working 
on code.  That's a colloquial term used on your desk tops, 
on your computer screens that are on file to work on 
code --  to cleanse their sand boxes of AIX and Dynix/ptx 
source code.  And one IBM Linux developer, Mr. McKeny, a 
senior developer, has admitted to destroying pre-litigation 
drafts of source code written for Linux while, at the same 
time, he was referring to the Dynix/ptx source code.  And 
that's Exhibit 7 to SCO's memorandum.
       So it is -- and in their response, IBM said, "We 
don't think this is true, and we are not going to respond." 
That's all they said about this.  Here you have a party 
saying we should be sanctioned and, yet, they have, in 
fact, taken affirmative steps that led to the destruction 
probative information that has come to light in the 
discovery of this case.
       THE COURT:  That may or may not be true, but that 
                                                     50

isn't before me today.
       MR. SINGER:  Well, Your Honor, we think it 
relates -- 
       THE COURT:  That issue is not before me.  The 
question is whether SCO is in compliance with the Court 
orders and whether or not it was a willful withholding, 
etc.  So, I would prefer not to go into issues that are not 
before the Court.
       MR. SINGER:  Your Honor, we will respect that and 
move on to a subsequent issue.  We think that it relates to 
the overall environment in which the motion is made.
       Your Honor, the third point of the three 
arguments is that, even if you were to find, which we don't 
think you can, we haven't complied with the Court order 
saying, "Disclose material with specificity," which is the 
Judge's order leading to these disclosures, and even if you 
were to find that we were willfully withholding 
information, you can't make a blanket judgment saying, "All 
198 items should be excluded.  You fail on all of them."
       Expert testimony would be needed, and we would 
need, we would submit, a lengthy hearing where you go 
one-by-one and see whether or not it's specific and see 
whether or not there's any information that has been 
withheld on that particular item, which should have been 
produced, which we have not produced, which we have not 
                                                     51

provided.  There is no evidence at this point, with respect 
to any of the 198, that we were withholding such 
information.
       But, if we were to go down that process, what you 
would need is a hearing where, on an item-by-item basis, 
IBM comes forward and says, "Here.  They could have 
disclosed this," or "They had this information available.  
They didn't do it."
       You hear from us.  You hear to the extent it 
would assist the Court from expert witnesses, and you make 
a decision on that item.  Instead, they have tried to make 
a blanket judgement with respect to the 198 disclosures.
       Moreover, I would submit that the expert reports 
that are coming up and the discovery of those expert 
reports in depositions will be a good test as to whether, 
in fact, IBM doesn't have sufficient specificity to defend 
against these items.  We will see whether or not IBM's 
experts say:  "Well, we really don't have anything to say 
about these because we can't figure out what these defenses 
are," or that, even though this was a specific enough 
e-mail to tell the Linux community about the method and 
concept, we can't use that to prepare a defense as to 
whether that's already publicly known in some textbook or
some publication.  That process should be allowed to run 
its course and to see what that expert discovery turns up 
                                                     52

with.
       Now, Your Honor, I'm going to just briefly 
mention, because they have only picked one example, 146, 
the need for this type of individualized determination is 
clearly seen when you just turn to a few of the other 
examples that they are challenging but which they haven't 
said anything specific about.  They said something specific 
about item number 2, which was RCU, and when we responded 
in  opposition brief, they dropped it.
       Item number 53 is at tab 20, and, again, I'm 
going to be general because of the confidentiality.  But 
this is a method and concept which deals with improving 
locking, and if you turn to the first page after our header 
slide, you see the actual disclosure.  It identifies who 
made the disclosure, an IBM employee, Mr. Wright; the 
nature of that disclosure, which is not amorphous.  It's 
very specific.  It refers to the e-mails and quotes them, 
where those were actually made to a Daniel Phillips, who 
was a Linux developer, and it makes specific references 
that they are getting this from Dynix/ptx.
       You have references that this method, this 
particular method, quote, "is not currently used in Linux." 
You have another reference at the bottom of that page 
saying the classic quoting style in Dynix/ptx is then and 
goes on and provides source code in the context of the 
                                                     53


e-mail saying that this is the right way to go about it.  
You then have sources referenced on the next page in our 
disclosure and you have Linux files relating to that method 
and concept.  And then, following that, you also have the 
entire e-mail -- this was put in at tab 156 -- and 
deposition testimony where, if you turn to page 154 of 
Mr. Wright's deposition, you have an admission that this 
particular method and concept was cut from source files in 
ptx source code.  That's page 154 of his deposition between 
lines 1 and 8 at the top of the page.
       So, it is, in our view, a completely specific 
identification of a method and concept.  In this case it 
relates to source code.  It's related to the source code 
that they have drafted here.  There's an admission by the 
person who wrote it that it came out of Dynix/ptx.  There 
no reason IBM can't sufficiently defend against that.
        If you look at tab 21, we talk about item number 
38.  This is a disclosure of a method and concept that 
actually goes back to UNIX System V.  It relates to an 
automatic method of checking for updates in memory.  And if 
you turn to the next page, you have an identification of 
the IBM employee, Mr. Irwin, who made the disclosure.  You 
have a summary of that and a reference to a tab in the 
Linux files.  If you turn to the tab items, it shows the 
actual e-mail of how this should be handled, an express 
                                                     54

reference to SVR4, which is System V release four, which 
prove that there are, and then it goes on to get into the 
merits of the method and concept.
       This is specific identification.  If you go to 
tab 22, this is another method and concept dealing with 
multi processing from Dynix into AIX and from Dynix into 
AIX for use in Linux.  And, again, you have a specific 
individual, Mr. McKeny.  You have specific e-mails, which 
are referenced and provided at tabbed items, which embrace 
the disclosure.  You have deposition testimony where, at 
page 255, there is admission and there were disclosures 
from ptx and AIX.  And turning to near the end of this 
tabbed item at pages 194 and 199, you have admissions that 
certain Sequent technology, subject to contractual 
protection, was contributed to the AIX kernel and used to 
enhance AIX.
       Item 23, which is also tab 23, is a disclosure of 
negative knowhow, where they are discussing how not to do 
something, to avoid a blind alley, which is part, we would 
submit, of the confidential information protected by our 
agreements.  And you have an express discussion in e-mail 
another identified IBM employee; in this case, Martin 
Bligh.  It relates to the way Dynix and ptx used this 
system.  He states, quote, "We are trying to get for Linux 
the benefits of blank --" you have that -- "without the
                                                     55

associated pain."  And then you have references to 
particular tabbed items that go into more details of the 
nature of that discussion.
       I could go on and on and on, and we don't think 
it's necessary, but if this Court were going to pursue the 
issue of whether or not there is sufficient specificity in 
our December report, that is what would be necessary 
because we have a right to defend ourself with these 
disclosures and say that this is specific information.  
This is all we have.  This is adequate to mount a defense.
       Your Honor, the motion should be denied.
       THE COURT:  Thank you, Mr. Singer.
       Mr. Marriott -- and I'm certain you will, but I 
would like you to address what IBM uses to support the 
willfulness requirement.
       MR. MARRIOTT:  Excuse me, Your Honor, what?
       THE COURT:  The willfulness requirement, to 
address that.
       MR. MARRIOTT:  Your Honor, what I heard is a 
presentation that bears little relationship to the 
provisions of the Court's orders that are at issue on this 
motion.  And let me briefly -- in fact, let me make a 
series of points in that connection.  Just as at the 
outset, let me say this with respect to Mr. Singer's query 
to how IBM could possibly say that all 294 items were 
                                                     56

insufficient:  
       What I said, Your Honor, is that SCO was not 
providing all the information he was required to provide, 
with respect to this, pursuant to many of the orders, not 
that we don't have as to all of them the coordinates that 
least allow us to figure out our defense.  They are 
deficient, all of them, for reasons entirely unrelated to 
the present motion, and we won't deal with those here.  But 
it is not the case, Your Honor, that we contend that they 
are deficient because of the particular reasons at issue on 
this motion.  They are deficient for other reasons.
       Now, Your Honor, the first point I made, I 
believe, when I stood last was that the Court had 
repeatedly ordered SCO to provide version, file and line 
information.  What I heard Mr. Singer say is, "That may be 
true with respect to code, but it's not true with respect 
methods and concepts.  A different standard applied 
there.  We could kind of be as specific as we felt was 
appropriate."  That absolutely -- that, Your Honor, bears 
no relationship to the Court's orders, and it is, I would 
submit, wrong.
       Lit me direct you, if I may, to tab 4 of our 
book.  I agree with Mr. Singer that SCO has made 
allegations relating to methods and concepts, whatever 
precisely that means, from the beginning of the case, and 
                                                     57

is for precisely that reason that we propounded 
interrogatories that address that exact issue.  And I would 
refer Your Honor now to some of the language in here which 
I think speaks expressly to the question which Mr. Singer 
ignores, which is that the orders of the Court applied as 
equally to methods and concepts as they applied to 
allegations of misuse of code.
       To begin, Your Honor, in the first line, Your 
Honor asks for -- requires, even, that SCO identify and 
state, with specificity, the source codes that SCO is 
claiming form the basis of their action.  Your Honor, 
contrary to what Mr. Singer suggests, methods and concepts, 
whatever they are, do not exist, as they relate to 
operating systems, independent of the code that implements 
them.  They don't exist somewhere in the ether.  They exist 
they are implemented in operating systems by source 
code, which source code is organized in files and appears 
versions of products.
       Take a look, if you would, at interrogatory 
number 3.  There Your Honor ordered SCO to respond, as 
requested, by IBM.  What did IBM request?  That SCO 
describe in detail all places or locations where the 
alleged trade secret or confidential or proprietary 
information may be found.  We are talking there, Your 
Honor, not about just code, but information.  That 
                                                     58


includes, however you define it, methods and concepts.  And 
the order is for them to describe, in detail, where those 
methods and concepts are found.
       That means, when you are talking about operating 
systems, not saying "Dynix," which is essentially what 
their argument is.  Mr. Singer points to a bunch of e-mails 
and says, "See.  There's a mention of the word 'Dynix.'"  
Well, okay.  But, so what?  That doesn't tell us, with any 
particularity, what method and concept we are talking 
about.  The Court's orders contemplated the provision of 
specifics.  That's what IBM asked for.  That's what Your 
Honor indicated should be provided.
       Look, if you would, please, at interrogatory 
number 4.  "Please describe in detail, 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."
       The order was to disclose the location of the 
method in the product with -- in detail.  The only way to 
that, Judge, is not to say it's in Dynix, which is 
essentially what they are saying, but to tell us where it 
is in Dynix.  We produced, as Your Honor knows, enormous 
amounts of information from IBM concerning version and 
control.  CMVC Your Honor will remember well, and though 
their expert has claimed to have referenced CMVC in 
                                                     59

preparing the final disclosures, which CMVC was produced at 
enormous expense, which information would allow SCO to tell 
where in AIX the versions, files and lines are that were 
supposedly misused, we don't have that information.
       The Court's orders contemplated for methods, as 
well as code, a location.  A location, to be done with any 
particularity, means files and lines.
       The next item, Your Honor, interrogatory number 
12:  "Please identify, with specificity, by file and line 
code, all source code and other material, methods, in 
Linux to which plaintiff has rights."
       Don't tell us it's in Linux, which is essentially 
what they have done, or there is a bunch of files in which 
you can probably find it.  The order was to tell us, in 
detail, where it's found.  And as you made clear in other 
the orders below, Your Honor, by way of lines and code, 
just look at one more, if you would.  Look at the red text 
with respect to System V, Judge.  SCO was to provide and 
identify all specific lines of code from UNIX System V from 
which IBM's contributions from AIX or Dynix are alleged to 
derived.
       Contributions isn't limited to code.  It's about 
code and methods and concepts and whatever else you want to 
throw in under it.  From the beginning, Judge, we have 
been seeking simply to understand what the allegations are.  
                                                     60

What SCO has come back and said is:  "We have given you a 
bunch of disclosures, and that tells you enough."           
 That doesn't tell us what their allegations are.  And 
when I come to your willfulness question, Your Honor, I 
will explain why that's easily satisfied here.  So, with 
respect to what the Court's orders say, Your Honor, I have 
heard nothing from Mr. Singer about this language.  The 
Court's orders couldn't be more clear.  They are not just 
limited, as has been suggested, to code.  They are about 
whatever SCO contends is misused.
       Now, it is true that one of them says, where 
appropriate, by file, version, line and code.  That's not 
where we're talking about methods and concepts.  That's for 
something like the use of a patent, to which there is no 
file with respect to a patent.  That's:  Tell us what lines 
of the patent are at issue.
       So, there is no file to be talked about when you 
are talking about a disclosure from a patent, as they do.
       The orders are clear, Your Honor, and I've heard 
nothing to suggest that this language means anything other 
than what it says on its face.  And, frankly, if you were 
look at the history, Judge, behind these, as we have set 
out in tab 3, we aren't singing a different tune.  I have 
been saying, from the beginning of this case that, for all 
four of these operating systems, we want version, files and 
                                                     61

lines of code with respect to whatever they say we did 
wrong.
       And what we are hearing today is that, well, all 
that didn't really count if you were talking about methods 
and concepts, and, by the way, we are talking almost all, 
they say, about methods and concepts.  I would submit that 
that's not true either, Your Honor.  A number of the items 
that are challenged in this motion are not just about 
methods and concepts, they are about code.
       And under the standard that Mr. Singer would 
apply, they plainly fail because, as you see in Addendum B 
our reply brief and Dr. Davis' report, there is no 
versions, files and lines with respect to each of those 
operating systems for the code they say has been misused.  
And there is not that order for the methods and concepts 
and, as a result, Your Honor, the Court's orders have not 
been complied with.
       Now, with respect to the second point I made when 
I stood before you, Judge, which is that they haven't 
complied, Mr. Singer didn't refer -- SCO nowhere refers to 
this table wherein -- and I submit, again, as I said, it is 
indisputable that information is not provided; version, 
files and lines of code.  So, what do we hear instead?  We 
hear a different story.  Instead of hearing about where the 
versions and files and lines are, we hear:  Well, gee, we 
                                                     62

can't tell you about those because the e-mail didn't 
mention it.
        We are not asking to be told, Your Honor, what 
says in an e-mail that we produced to them and then that 
they threw back at us.  What we are asking is:  What is it 
that they contend?  What is it in Linux that you say we did 
wrong?  Where's the version and the file and the line of 
code of the method which is somehow supposedly there and 
supposedly entitles you to billions of dollars?
       We are asking them for their allegations.  No one 
knows their allegations but them.  No one.  I could read 
the e-mails for myself and see that they say Dynix.  That 
isn't what we've been asking for since the beginning of the 
case, Your Honor, and, respectfully, that is not what the 
Court required.  Now, what Mr. Singer says is:  "Judge, we 
provided 10 thousand pages of paper.  Come on.  Give us a 
break.  This is really specific stuff."
       I haven't counted the pages.  I take him at his 
word that there are 10 thousand there.  But, Your Honor, as 
I said in the opening, what we've been given is our own 
documents back.  We produced a bunch of e-mails, and they 
hand them back and say:  "See, there?  You know what you
did.  Figure it out for yourselves.  There is a reference 
there that says Dynix.  You know what you did.  Go talk
the developer, McKeny.  He worked for you, you know, go 
                                                     63


find out for yourself."
       Well, Your Honor, that argument was made two plus 
years ago, and it lost when SCO endeavored not to provide 
this information in the first place and when Your Honor 
said they were to provide it, and it was their burden, as 
the plaintiff, to tell us what is in dispute.  And what we 
have been done -- what has happened is, we've been pointed 
to a bunch of documents which, sure, if I were to stand 
here and read to you from an e-mail, it sounds kind of -- 
sounds kind of particular.  It may well be particular, 
but it doesn't answer the questions and provide the 
particularity that we asked for and that the Court ordered 
be provided.
       IBM has produced millions of pages of paper, and 
I could stand here for days and read to you from the 
documents, and it would sound a lot -- it would probably be 
pretty boring, but that isn't what we asked for.  That 
isn't what was required.  Now, Mr. Singer points to a 
couple of examples, and I want to come to a few of those, 
but the suggestion, Your Honor, that the examples that he 
pointed to is somehow representative of what is in these 
final disclosures is, I think, mistaken.
       And I would refer you, if you would, please, to
tab 17 of the book -- I'm sorry, of the IBM book.  And 
there are four of SCO's disclosures here at 17, Judge.  
                                                     64

This first one, I don't think I'm revealing anything of any 
consequence here because there is nothing of any 
consequence here.  This says that IBM used ptx -- you 
should read it there Dynix -- used Dynix.  It says 
absolutely nothing about what we did or about what part of 
Dynix we supposedly used.  We are told that we used our own 
operating system.
       There is no Linux files, no Linux versions, no 
Linux lines.  There's no System V versions, files and 
lines.  There is no versions, files and lines of Dynix.  
Look at the next page, Judge, on the back.  That's the 
e-mail.  That's what appears at tab 30.  So, what we're 
told is that, look, this shows that you guys were doing 
funny stuff with Dynix or with ptx.
       That doesn't answer the questions that we asked,
which is:  What is it you say we did?  You have had three 
years.  You have deposed this guy Martin Bleigh.  What is 
we did?  Where, particularly, is it you say we took the 
code from Dynix, and what exactly did we do with it?  Where 
is it, so we can answer the questions that I took Your 
Honor through before?  It's not there.
       If you look at 92, Your Honor, you see the same 
thing right after the blue sheet.  They say basically the 
same thing:  "You've misused Dynix/ptx."
       Okay.  In other words, you've misused an entire 
                                                     65

operating system.  If you look back at tab 3 -- I'm sorry, 
tab 2, Dynix has 37 base versions, 472 thousand files, 156 
million lines of code.  So, what is it we did?  When are we 
going to find this out, Judge?  In response to their 
summary judgment papers at trial when we have no ability to 
prepare a defense to answer all the kinds of questions that 
we want answered because they won't tell us what they 
claim?
       This isn't about telling us what's in documents 
gave them and saying that it's not there, so how can we 
tell the Judge?  We've been asking from the beginning for 
their allegations.  These interrogatories are, in a sense, 
contention linked.  What is it you are saying that we did?  
Only you know that.  Only you can provide that.  That we 
don't have.
       The same can be said, Your Honor, with respect to 
number 93, with respect to 112.  I won't bore Your Honor 
with it, but, as you can see, and if you look at Professor 
Davis' report, the detail that we have requested just isn't 
there.  There's no versions.  There's no files, and there's 
lines of the operating systems that were required to be 
provided.  It says IBM made NUMA contributions.  NUMA, Your 
Honor, is a type of -- specialized type of hardware.  So, 
saying IBM made NUMA contributions is like saying IBM
made contributions that relate to a super computer.
                                                     66

       They told us, in one of the Complaints, that we 
used NUMA.  We've been asking what exactly that means.  So, 
the idea that telling us that we used NUMA is telling us 
something we didn't already know, tells us nothing.  We are 
asking for their allegations, in substantial part here,  
that we don't have.
       Now, again, reference is made -- not directly to 
the affidavit but in the book that SCO provided Your Honor, 
reference is made to the Rockein declaration and to the 
questions that he answers and some of which are submitted 
at one of SCO's tabs.  And what I would say to you about 
that, Your Honor, is, again, the Rockein declaration 
supports the relief that we seek in this case.  And I would 
refer you to Mr. Rockein's Exhibit B.  This is in his 
report where he tells us why SCO has been specific.
       All you have to do is compare the questions that 
he answered to the questions in the Court's order to see 
there is little to no relationship.  One of the questions 
here is:  Did IBM provide an actual -- has SCO provided an 
actual disclosure of code?  Translated, that means:  Did 
SCO give IBM back some of the e-mails IBM produced to SCO? 
Probably, in a bunch of those categories.
       We didn't ask for that, Your Honor.  We asked to  
know exactly what we done.  And what the Court's orders
said were:  Not just identify, but provide.
                                                     67

       So take a look at the next item over, column B in 
the Rockein declaration.  This is entitled Source Code 
Identified in Disclosure.  Reference Document, URL or 
Related Item.  And what you will see is, when talking about 
source code identified here, Mr. Rockein, for the 198 
items, says that source code was identified with respect to 
of them.  What he doesn't tell you is that his 
definition up here, even to get to 16, means that he's 
borrowing source code from other disclosures.
       He says source code identified in these items or 
related items, so he's not just looking at the items 
that are challenged.  He's pulling source code from related 
items.  Whatever precisely that means isn't said.  The 
point, in any event, is:  Even in his own document, there's 
only 16 of them for the 198 items.  The Court's orders said 
identify and provide with respect to these three 
categories:  System V, AIX, Dynix and Linux.  And it isn't 
there, and he has illustrated that it isn't there.
       And if you look at his next column, Column C, A 
Link To Protected Materials.  And there's a check or an "X" 
most of these boxes.  What that means is that they've 
got an e-mail, an e-mail that makes reference to somehow 
IBM using AIX and Dynix, it's operating system.  Maybe the 
check is appropriate, but it isn't the right question.  The 
question is:  Is there some link?  Does IBM acknowledge 
                                                     68


that it used Dynix in some way?
       We know we used Dynix.  There's not any question 
about that.  The question is:  Did they tell us 
particularly which portions of Dynix we supposedly misused, 
and, if so, what relationship does it bear to System V, 
where Your Honor said they had to provide version, files 
and lines of code, and where in Linux is it?  Where is the 
version, file and line of code, so we can figure out:   
Could this possibly have hurt these guys?
       What if it came into Linux, Your Honor, in 2005,  
and their UNIX business is shown to have -- to have 
essentially died in 2001?  How can IBM be held to be 
responsible for that?  We have a right, Your Honor, and it 
only makes sense that we know what it is, particularly, is 
being alleged here.
       Now, I won't address, Your Honor, the suggestion 
that IBM has improperly put up road blocks except to say 
that I don't think that's right, and it's not properly used 
in this motion.
       Finally, Mr. Singer says, with respect to SCO's 
compliance here, Judge, that -- that what you've got to do 
is hold a hearing, and we've got to get experts on the 
stand, and we've got to funnel these documents up to them 
and let them read the documents and tell us how much
specificity is there.  There is no dispute.  The question 
                                                     69

the simple question is:  Did you require them to give 
version, files and lines of code?
       If the answer is yes, they lose because there is 
question they didn't do it.  And I would submit, you 
need nothing more than to look at this chart -- this is 
actually their chart -- look at our chart, that looks like 
this, Professor Davis' chart, look at what's not said here, 
not submitted, and look at the orders.  What was required 
be provided isn't provided.  And that, Your Honor, ought 
be the end of the inquiry.
       Now, does this -- does this injure IBM?  
Absolutely it injures IBM.  Your Honor, the suggestion is 
made that this will all sort itself out, that it will be 
really interesting to see what IBM, as Mr. Singer says, 
puts in its expert reports when we get those expert 
reports.
       The difficulty is, Your Honor, how are we 
supposed to prepare the kind of expert reports that we 
ought to be able to prepare without knowing precisely what 
is that they are even alleging?  How are we supposed to 
send an expert down the road to show that a certain set of 
concepts is in the public domain when all we know is it has 
something to do with Dynix?  One of the disclosures here, 
Judge, is that IBM misused the internals of System V 
Release 4.  The internals.  There are books some place, and 
                                                     70

my colleague probably has it -- there are books written on 
the subject of internals of System V Release 4.  This has 
been public for a very long time, Judge.
       According to the copyright, which is not 
immediately leaping out at me, it has been available for 
probably a decade, Your Honor.  1994.  So, when we're told 
that we misused the internals of System V, that's not 
telling us anything of any consequence.  We are in no 
position, Your Honor, on the schedules set, to be providing 
the kind of expert reports that we need to provide to 
defend ourselves with respect to these items because we 
don't know, with any particularity, what is being talked 
about.
       Now, finally, Your Honor, is this the appropriate 
remedy?  It is the appropriate remedy.  Your Honor entered 
orders.  We have been asking for a very long time to get 
this information.  The orders are repeated, and they are 
consistent, in their tone and in their message, that this 
information was to be provided so that IBM could prepare 
itself for trial.
       The issue isn't:  Do we have some general idea of 
what the technology is?  The issue is:  What are we all 
really talking about here so we can go out and answer the 
kind of questions that we need to answer?  Deferring this 
to summary judgment is not an adequate solution to the 
                                                     71

problem because it puts us in no position to properly 
prepare for summary Judgement.
       Your Honor asked about willfulness.  Willfulness 
isn't bad faith.  Willfulness means:  Did they 
inadvertently provide these disclosures or did they 
knowingly provide what they provided?  There is not any 
question they acted with willfulness.  They know what they 
did.  Mr. Rockein said he spent a substantial amount of 
time working on this.  I don't have any reason to think 
that he didn't.  What they provided is not -- is not done 
inadvertently, Your Honor.
       They had those Court's orders.  Your Honor 
admonished the parties in December -- December of 2003, I 
think, Your Honor, when we first argued that SCO hadn't 
complied, in chambers, that if anybody had any problem with 
any one of SCO's orders, that they should make the Court -- 
any of your orders, that they should make the Court aware.  
This is when IBM complained that SCO hadn't complied with 
the order the first time around.  That never happened.
       And, in fact, Your Honor, what happened here is 
that when we received SCO's interim disclosures, we brought 
to SCO's attention that we believed that it had not 
properly complied.  Mr. Shaughnessy sent a letter to SCO,  
and I believe, Your Honor, it's at tab 17 -- that's not 
right.  It's at tab 14, Judge.  And what we said here is 
                                                     72

that we've done a preliminary analysis of your interim 
disclosures, and, in effect, these come nowhere close, so 
please fix this problem or you're going to leave us no 
choice but to seek the very remedy that we are seeking 
here.
       We got no response, Judge.  What we got is the 
final disclosures on the 20-something of December with 198 
items that aren't properly disclosed.  There is ample 
authority for this Court entering an order indicating that 
SCO failed to do what the orders plainly required it to do, 
ample authority.  The Tenth Circuit's decision in Kern 
River; the decision from the Southern District of New York 
the Nike case; the Ninth Circuit's decision in Imax.
       There is not any question that what happened here 
was intentional in the sense that they didn't provide the 
information they were requested.  This motion doesn't turn, 
has been suggested, on the idea that SCO is sitting on 
e-mail some place that tells IBM -- that has all the 
information that IBM wants and just failing to provide it.
       The disclosure -- the interrogatories, Your 
Honor, and the Court's orders require the disclosure of 
that which they contend was misused.  The issue isn't 
whether there is something in a document some place that 
they have withheld.  The issue is:  What are they really 
saying?  What are we really going to present to a jury in 
                                                     73

this case?  What is it really about?  What should the 
experts be talking about so that we don't have a situation 
like we have here, where Professor Davis is saying, "Gee, 
there's no versions, files and lines there."
       And Mr. Rockein is saying, "Gee, it seems pretty 
specific to me, and I worked pretty hard on this and gave 
them an awful lot of documents.  They should know what's 
going on."
       Well, what's required, Your Honor, hasn't been 
provided, and, respectfully, the Court ought to enter an 
order indicating that the Court's orders haven't been 
complied with and SCO ought not be allowed to produce -- to 
proceed with respect to these 198 items.  It can proceed 
with its 90-some other items.  That is not an extraordinary 
remedy, and we are not asking for a dismissal of the claim 
its entirety.  We are asking it to be limited to those 
items that have been properly disclosed.
       The Court's orders were clear.  They sought no 
clarification.  We are severely prejudiced in even 
preparing for summary judgment, let alone expert reports, 
without that information.  We ask that Your Honor enter an 
appropriate order.  Thank you.
       THE COURT:  Thank you, Mr. Marriott.
       Go ahead, Mr. Singer.
       MR. SINGER:  I will be brief, since we are in 
                                                     74


rebuttal.  First of all, we have provided, compliant with 
the December order that says specifically identify the 
misused material.  That is the order that led to these 
submissions.
       The assumption IBM continues to make is that for 
a method and concept there is always a source code to be 
identified.  And where does that assumption come from?  It 
is not a prior order of this Court.  It's not a 
determination of fact or law that the District Court has 
made.  It's an assumption because they would like to get 
rid of these 198 items without having to defend against 
them.  These 198 items, to the extent they didn't have 
source code, were, never the less, disclosures where the 
IBM people, without the use of a source code, were able to 
communicate protected information to Linux that we contend 
was valuable and in violation of our rights.
       And if they didn't need to include source code  
in the disclosure, Mr. Marriott cannot explain how we can 
be expected to provide or be obligated to provide source 
code beyond what the disclosure itself contained.
       THE COURT:  Let me ask you this:  Is SCO in 
possession of -- can SCO provide additional specificity 
with regard to any of these items?
       MR. SINGER:  We have had a couple months of 
additional work since December 22.  It may be that on a 
                                                     75

handful of these items something has come up during that 
time period which would allow a more specific reference in 
one place or another.  But, in general, with what we're 
talking about here on methods and concepts, no.
       THE COURT:  Well, I guess what I'm asking you, 
basically:  Is this all you've got?
       MR. SINGER:  Well, what we -- we have continued 
have our experts work, but if the issue is:  Do we have 
today, version, file and line, which Mr. Marriott expects, 
methods and concept, where IBM did not used those in its 
disclosure, the answer is no.  We don't have that because 
it's not part of the method and concept.  It is a 
disclosure of something which might be implemented in 
source code when the method and concept is implemented.  
But if that implementation was not disclosed then we don't 
have, in our possession, where that specific code is coming 
from.
       It could be implemented a number of different 
ways in different source code.  That is the very difference 
between a method and concept and a source code disclosure, 
the very premise of IBM's argument, that methods and 
concepts inherently must be identified with associated 
source code, is without support.  They would like that to be
the case, but that has not been so held.  They can make an
argument to that effect in front of the District Court, 
                                                     76

that they should be granted a summary judgement because the 
method and concept that we haven't disclosed source code is 
not actionable. 
       THE COURT:  But you are talking more conceptually 
here, again.  Is there source code that relates to these 
method and concept items?
       MR. SINGER:  On 16 of them, we have, and those
are 16 of the 198, there is source code ether imbedded in 
the item or in a related URL file where you go to a 
website.  It is possible that a few more may come up, you 
know, with additional work, but we have given, at the time 
this submission, everything we have.  And we are happy 
continue providing everything we -- if there is anything 
new we get.
       THE COURT:  But you are referring to a website;  
that correct?  You are not providing it yourself.  
You're saying it's imbedded somewhere else?
       MR. SINGER:  Well, for instance, the one example 
that they choose, 146, the source code that's referenced 
there in search of scripts is on a website we don't have 
access to, so we provide the reference to that website that 
an IBM password-protected website.  Now, with regard to 
the methods and concepts, generally, there will be some 
sample code that's in the e-mail disclosure saying, "Here 
is one way you can implement it."
                                                     77

       That goes beyond those 16.  Some of the examples 
I have mentioned to you have that.  But the more general 
point is, these are not just saying:  "Here's the general 
method and concept," or "We want you to defend everything in 
Dynix."  These are very specific items, culled from 
thousands and thousands, coupled with thousands and 
thousands of hours of work from millions of pages from the 
much broader universe.  Now, some of them relate to one 
another, like there's 40 related to NUMA.  You can't just 
pick out one related to NUMA in isolation and say that this 
not specific enough.
       The point is, is that we cannot be expected to 
provide a greater level of specificity on method and 
concept disclosures than IBM's engineers used when they 
were making the disclosure.  We are not going to present 
more in terms of at trial.  We are talking about 
disclosures that are not in these 293, where they need to 
be concerned that something new is coming up, and, if we 
did that, they could raise that issue.
       If they move, either here or at trial, on the 
grounds that we should have disclosed something that we had 
now, and we didn't disclose it, they are able to make that 
motion.  That's what most of these cases deal with.
       THE COURT:  But that's not really the issue.  The 
issue is not:  Will you be allowed to present at trial,  
                                                     78

but, do you have it and should you have presented it so 
that they can determine how to deal with it in terms of 
their motions for summary judgment or at trial?
       MR. SINGER:  We gave them everything we had, so 
we don't have anything more.  I mean, we think we have 
complied fully with the Court's order, but, in any event, 
certainly have not withheld information.  And I listened 
very closely to what Mr. Marriott said about willfulness 
and that we willfully filed these.  He did not say anything 
that indicated that we have any information that we have 
not provided, that somehow we are sitting on top of source 
code, line, file and versions relating to where -- let's 
say any particular one of these 198 items relates to a file 
Dynix, and we just haven't returned it over or that we 
have or it or that we should have it and haven't provided 
it.
       We have given them everything we have related to 
these, and their argument is that they would rather not 
have to defend against these disclosures, but they are -- 
we submit, they fall into one of two categories; either the 
disclosure, as made by IBM, with the information here, is 
specific enough to defend against.  It tells you it isn't 
just Dynix, generally.  You can see these are talking about 
very specific items, with the individuals who are involved 
making them, what they do, where they went to Linux.  
                                                     79


They know what we are talking about.
       They can mount a defense on any number of 
grounds.  They can say it's not really a method and 
concept.  They can say it came from somewhere else, that 
Mr. McKeny came up with 146.  It wasn't from Dynix.  It 
came from some other source.  They can say it is out in the 
public domain because we have exactly what was disclosed.  
is specious to suggest that they cannot defend against 
these items.
       These are items that were sufficient to 
communicate this knowledge to Linux, and if they weren't 
sufficient to communicate that method and concept to Linux, 
either because there wasn't enough information in them or 
the information was too general to really be protectable, 
well, then, that's their summary judgment motion on that 
item, and they are fully able to make it from what they 
have been given, and we will oppose it with what we've been 
provided with.
       And that's a merits issue, to be considered with 
respect to whether or not this truly was a disclosure of 
protected methods and concepts.  But, whatever it is, it's 
not a discovery sanction issue.  We have given them what we 
have.  And where is the evidence that we are holding back 
anything?  Where is the evidence that we should have been 
able to provide source, line and code on disclosures where 
                                                     80

the disclosures themselves do not relate back to source, 
line, code and file -- excuse me -- version, file and line 
source code with respect to that particular method and 
concept?
       We have supported our position with an expert's 
declaration explaining that methods and concepts, even if 
many textbooks, Mr. Rockein says, are not discussed with 
respect to actual source code.  They may be discussed with 
some sample source code.  They are often not discussed with 
actual source code.  That is in the nature of a method and 
concept.
       Now, I fully understand that Mr. Marriott might 
-- would rather not have to deal with these 198 
disclosures because you have a lot of evidence.  IBM 
disclosed things, from what we contend are protected 
systems against disclosure, to the Linux community.  But he 
has to deal with these.  And the fact they come from IBM's 
own files means it should be easier -- not more difficult, 
but easier for Mr. Marriott and the IBM team to defend 
against.
       So, we have supplied specificity here.  There is 
absolutely no showing of any willful failure to make 
discovery.  And with respect to the third issue, of having 
to go example-by-example, we hear in this rebuttal argument 
three or four new examples that aren't mentioned in any of 
                                                     81

their briefs.  They didn't say anything about example 146, 
which was the one example that was mentioned by Mr. Davis.
       And all I think that highlights is that if the 
Court was going to go down this path, we would have to go 
item-by-item and look at those and deal with the issue of 
whether or not it is sufficiently specific so that IBM can 
defend, to deal with the issue of:  Do we have more 
information, for some reason that we are not turning over, 
that we would willfully be withholding something?
       To be sanctioned for discovery, you have to be --  
have within your capacity the ability to comply.  You have 
to have something you are not turning over.  You have to 
produce a witness for deposition.  You have to turn over a 
set of documents that you're withholding.  They have made 
no showing of that -- of that, whatsoever.  But, if they 
were going to go down that road, that would have to be done 
item-by-item with respect to these disclosures.
       Your Honor, the motion should be denied.
       MR. MARRIOTT:  May I just briefly respond, Your 
Honor?
       MR. SINGER:  Your Honor, there was one point I 
omitted to make before Mr. Marriott responds.  May I just 
go to that?
       THE COURT:  You may.
       MR. SINGER:  With respect to your earlier orders, 
                                                     82

the Court is aware March 3, 2004, it indicated, in light of 
what the Court considered SCO's good faith efforts to 
comply with the Court's prior orders, the Court lifts the 
discovery stay previously imposed.  In February of '05, 
there was an order which provided us a lot of information, 
and we have been digesting that information and working 
with that information, and the depositions, some of which 
we had as a matter of course, some of the which came out as 
a result of one of the hearings we had before Your Honor 
with more developers.
       And it is that information which leads to this 
material.  Some of it comes from IBM.  Some of it comes 
from discovery.  Some comes from third sources.  But there 
has never been a finding by this Court that we have not 
acted in good faith, that we have withheld any information 
or anything that Mr. Marriott suggests, other than the fact 
that we've been trying to produce as much information as 
possible on a complex matter.
       MR. MARRIOTT:  Your Honor, Mr. Singer suggests 
that what was required in the December submission was just 
disclosures of the allegedly misused information, as if 
somehow that had no meaning independent of all the Court's 
prior orders, that it meant disclose, and it meant disclose 
with specificity, so they could basically do what they 
wanted in disclosing in the orders.  What he doesn't -- 
                                                     83

what he overlooks, however, is the language of Judge 
Kimball's order and his own statement to this Court in a 
subsequent hearing.
       Judge Kimball's order says, "The interim deadline 
for parties to disclose, with specificity, all allegedly 
misused material identified to date and to update 
interrogatory responses accordingly, to provide the 
information ordered by the Court previously and requested 
IBM."
       There is -- in any event, even if that language 
didn't exist there, there is an obligation under the 
Federal Rules to seasonably update your disclosures.  IBM's 
discovery requests didn't go away.  Neither did the Court's 
orders, and if SCO acquired additional information, and 
certainly by that final deadline it had an obligation to 
provide it.  Now, Mr. Singer, at a hearing, Your Honor, the 
date of which I don't recall, but on one of SCO's motions, 
was asked by you about interrogatory number 13 and 
indicated that that particular interrogatory would be 
updated as of the date of the final disclosures.
       So, the Court's order expressly makes reference 
it as to the interim.  It was plainly contemplated by --  
both -- both dates, and Mr. Singer acknowledged that at 
that earlier hearing.  Now the question is:  Do the e-mails 
make reference to a line or file in the concept?  They may 
                                                     84

they may not.
       The issue, Your Honor, is whether the methods and 
concepts, that they contend we mis -- we misused in some 
respect, are implemented in code, whether they have an 
address in Dynix, in System V, in Linux and AIX.  And the 
answer which I think he gave is yes.  You implement methods 
and concepts in code.  They don't exist somehow ephemerally 
above the code.  They are in the code.  They do not exist, 
as a practical matter, in an operating system independent 
the code.  And that's why we asked for that information.
       Mr. Singer makes reference to item 146 and 
suggests I failed to make reference to -- to how that item 
is somehow not adequate.  Your Honor, Mr. Rockein -- 
Mr. Singer suggested 146 is somehow an example of why SCO 
has properly complied.  Reference is made to a patch.  The 
patch referenced in item 146 bears seemingly no 
relationship to the paper which is provided.  The 
connection -- there is no connection between the paper 
given and the method that is mentioned.
       The indication of Linux files that they have 
referenced don't seem to have anything to do with the 
method.  What we've been given is a bunch of dots and said, 
I think Mr. Singer essentially just conceded, asked to 
figure it out for ourselves.  We are in the best position, 
he says, to figure out what's going on.
                                                     85


       Now, the question is:  Did we sit on -- did they 
sit on something?  Is there something they have held back
that they haven't provided?  The answer to that question 
is:  Absolutely they have.
       Is it a document from IBM's files which 
references a disclosure?  Perhaps not.  What it is, is 
their allegations.  And I refer you back to tab 4 in our 
book where you will find the Court's orders.  The Court 
ordered them to provide information relating to what they 
allege and what they contend.  This is in interrogatory 
number 1.  That's what we asked for, their allegations and 
their contentions.  How do they contend some code was 
misused by IBM?  Where, in Linux, is it that it supposedly 
such that it's killing their UNIX business?  Where, from 
AIX, does it come from?
       The theory of their case is that we can't
contribute our own code.  They admit we own AIX.  They 
admit we own Dynix.  They assert that they, nevertheless, 
have a right, pursuant to contract, to control what we do 
with our own code.  What is the basis of this argument?  
They say, "Well, AIX and Dynix are, in some sense, 
derivatives or modifications of System V and, so, again, 
the contributions you have made are modifications and --  
and derivative works of System V."
       So we say, "All right.  Tell us where the 
                                                     86

connection is between System V, between AIX and Dynix."
       There is nothing, Your Honor, in these final 
disclosure that make that connection, nothing.  There is no 
version, file or line of System V provided with respect to 
all of those 180 -- 198 items.  What SCO is essentially 
seeking to do here, Your Honor, is to deny IBM the right to 
pursue its defenses.  They say we can raise all these 
issues at summary judgment, but they know, full well, that 
without knowingly particularly what's being said to be 
misused, we are limited significantly in the number of 
defenses we can raise.
       There are probably defenses that could be made.  
fact, I have no doubt there are defenses that could -- 
that could be asserted.  But we have -- we have -- we are 
entitled, Your Honor, to pursue all of the legal defenses 
available to us.  That's why we asked the questions.  The 
answer -- the question here isn't just:  What isn't being 
provided in disclosure?  It's:  What, exactly, are you guys 
alleging?
       And that's what our interrogatory number 1 asks 
for, allegations, and that's, if you look carefully at, 
what the other items ask for as well.  So, what are they 
sitting on?  They are sitting on their allegations, 
allegations which, if they are not provided to us now -- 
frankly, now is too late.  If they -- if the -- because 
                                                     87

they weren't provided to us, Your Honor, we are now -- we 
are now not capable of doing the kind of work that we would 
provide -- that we would have done if the allegations had 
been provided to us.  So, they are sitting on their 
allegations.
       That they have.  That they are willfully doing.  
And they are completely free to say at summary judgment, 
when we say, "Gee, we didn't contribute that to Linux," 
they'll say, "Oh, yeah, it's over here.  It's in that file 
there.  We didn't point those lines out to you before, but 
it's right there."
       We show a certain method is in the public domain.  
Oh, we're not talking about that part of the System V 
internals.  We are not talking about that portion of NUMA.  
are talking about something else.
       They are the master of their allegations, Your 
Honor.  We asked them for what their allegations were.  
They sat on the allegations because they contend the 
information is in Linux, but they won't tell us precisely 
where.  They contend that it derives from System V, but 
they won't show us exactly where.  They are effectively 
throwing back to IBM the burden to figure out what it is 
exactly they contend.
       That, Your Honor, is improper.  There is ample 
authority, again, for the Court to enter the order we have 
                                                     88

requested, to indicate that the Court's orders required the 
disclosure of this information and that it hasn't been 
provided.  No hearing is required.  It is undisputed that 
they haven't provided the information we say is required.
       Thank you, Your Honor.
       THE COURT:  Mr. Singer, let me just ask you -- 
and then we are going to cut this off at 1:00 o'clock -- 
but how do you address Mr. Marriott's argument that without 
this information that you maintain custody of, the 
allegation, that they are forced to figure it out, in 
contravention of the Court's orders?
       MR. SINGER:  I strongly disagree with it, Your 
Honor.  If we were to introduce a new technology not 
embraced by the 293, 198 they challenge, they object.  It's 
out of the case.  If we try do come up with specific source 
code that we should have produced now to buttress a 
connection that we didn't disclose that we should have, 
they could object to it at that time saying we should have 
put it in the December submission.  If there is something 
which is so general in the 293, and they say this one is 
too general, that we should get a summary judgment on it 
because it is so general, it really doesn't describe a 
method and concept, it isn't anything that isn't widely 
known in the industry or that our people have communicated, 
that's a summary judgment merits argument.
                                                     89

       They haven't shown at all, other than repeatedly 
asserting we can't defend, we can't defend, why, when you 
look at these materials, they cannot defend.  It describes 
a method and concept specifically.  It provides, usually, 
actual disclosure, the way in which the IBM employee 
took that and gave it to the world, which we contend 
violated our rights.
       THE COURT:  But doesn't that go directly to his 
point, that you haven't identified that it was taken and 
implemented?
       MR. SINGER:  No, but we have, Your Honor.  That 
goes to -- one of the lines in the chart that we presented 
where there has been an express reference, express, in a 
written document in the disclosure item, that this comes 
from Dynix or another system where we have protected rights 
because they are derivatives of System V.  And in 161 of 
those 198, there is an express reference.  In some of the 
examples I mentioned to you, which they are objecting to, 
you have a witness, an IBM employee, who says, "Yes.  I 
copied this out of ptx Dynix."
       That's an admission.  It came right out of that 
system.  Our argument is that that operating system is a 
derivative work and, as such, they could not take 
technologies from Dynix and ptx and disclose them to Linux.  
And we prove that with this information.  They are 
                                                     90


entitled, and they have enough here, clearly, to say:   
"Here's this technology.  It came from some somewhere other 
than Dynix."
       They can prove that.  They know specifically what 
we're talking about, and if there is one that's so general 
where they don't know, then the issue isn't that we don't 
describe it with source code, line, file, version; the 
issue is that the method and concept, as a method and 
concept, is too general to be protected or was describing  
something generally known.  And those are merits arguments.  
Those are summary judgment arguments.  Those are arguments 
for experts.  They are ultimately the arguments for trial.
       We have provided this tremendous specificity.  
There is no basis to conclude they can't defend on that 
basis.  There is no order of this Court or anywhere that 
says methods and concepts have to be identified with source 
code when there is no source code that accompanies a lot of 
these methods and concepts.  There is no showing that there 
anything in our possession or capability of doing it 
that we have not done to comply with this order.  And a 
determination as to which of these are specific enough has 
be made on an itemized basis.
       Thank you, Your Honor.
       THE COURT:  Thank you.  The matter will be taken 
under advisement.  Counsel, thank you for your arguments 
                                                     91

today.
       MR. SINGER:  Thank you.
       MR. MARRIOTT:  Thank you, Your Honor.  





















     (Whereupon the proceedings were concluded.)
                                                     92


        REPORTER'S CERTIFICATE
STATE OF UTAH      )
                ) ss.
COUNTY OF SALT LAKE) 

       I, REBECCA JANKE, do hereby certify that I
a Certified Court Reporter for the State of Utah;
       That as such Reporter I attended the hearing
the foregoing matter on April 14, 2006, and
thereat reported in Stenotype all of the testimony
and proceedings had, and caused said notes to be 
transcribed into typewriting, and the foregoing pages
numbered 1 through 92 constitute a full, true and
correct record of the proceedings transcribed.
       That I am not of kin to any of the parties
and have no interest in the outcome of the matter;
       And hereby set my hand and seal this 5th 
day of May, 2006.





                                REBECCA JANKE, CSR, RMR


        

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