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To read comments to this article, go here
SCO Plays a Desperate Card and IBM Moves to Block
Friday, June 09 2006 @ 04:20 AM EDT

Take a look at these filings of IBM's, where it expresses indignation over what it clearly views as an underhanded SCO attempt to cheat by having its experts allege entirely new claims at the last minute. Here are the documents from Pacer, all PDFs:

It seems SCO's experts -- 8 of them -- have filed reports and three of them in particular go way beyond the "allegedly misused materials" list SCO filed last December:

Long after the deadline for disclosing its allegations, SCO seeks by indirection to change them. In three of its eight expert reports, SCO alleges the misuse of material nowhere identified in the Final Disclosures, the very purpose of which was to fix the parties' allegations once and for all last year. Indeed, with respect to its allegation that Linux infringes SCO's alleged UNIX copyrights, SCO proffers expert testimony that has no support in the Final Disclosures and, if allowed, would reinvent the case at the eleventh hour. SCO's attempt to change its case not only violates the Court's scheduling order, but it is unduly prejudicial to IBM and the public interest and should not be allowed. SCO's expert reports should be stricken insofar as they make new, previously-undisclosed allegations of misconduct.

It'd be like starting from the very beginning, if the court allowed it, except that discovery is over. That makes it lawsuit by ambush, and while IBM says the new claims are no more valid than the old ones, the attempt to end run the rules shouldn't be allowed:

While we believe the claims lack merit, assembling the evidence necessary to prove they lack merit would require significant additional litigation. And, of course, fact discovery is closed; initial expert reports have been submitted; dispositive motions are forthcoming, and IBM's opposing expert reports are due in a matter of weeks. Thus, there is no way IBM could properly prepare a defense without substantial delay in the proceedings, including deferral of the existing trial date. This unjustifiable delay would itself prejudice IBM and undermine the public interest because it would allow SCO further to perpetuate fear, uncertainty and doubt about IBM, Linux and IBM's products and services.

Oh, lordy, not another year! I'll tell you in all frankness that I do not look forward to another year of SCOjinks. I feel like I've done my time. Whatever sins I may have committed in this life, I've surely atoned by now, don't you think? With credit in the bank for a rainy day? So, as laughable as SCO's Hail Mary pass is, and their claims, as you'll see, I hope the judge cuts them off at the pass. Hanging out with those dudes can make a gal cynical, and that's something I've never wanted to be.

What one of their experts, Dr. Cargill, says implicates the entirety of Linux, IBM says. These are massive, entirely new claims coming out of nowhere:

Despite this, three of SCO's May 19, 2006 expert reports, those of Drs. Cargill and Ivie and Mr. Rochkind, significantly exceed the scope of the Final Disclosures -- indeed, Dr. Cargill's report effectively seeks to reinvent the case, introducing both new categories of allegedly misused material and a new theory of recovery which relates to them. The Rochkind and Ivie Reports also exceed the Final Disclosures, adding material never before disclosed by SCO.

It's not out of nowhere, I don't think. I believe it's from up SCO's sleeve. They're playing poker. Did I not tell you they'd do this? IBM says it indicates to them that SCO doesn't think much of its current case, and in fact they point out that some outside law firm not seen in this case before seems to have helped Dr. Cargill along, implying a certain desperation and last-minuteness to this new SCO strategy, as if they noticed our methods and concepts Unix Books project, realized their best hope was going to lose, and ran to find something, anything to come up with something new. The new seems to be an actual copyright infringement claim. Naturally, IBM is more than angry, tells the court it thinks sanctions are appropriate, although it doesn't officially ask for that, but it does ask most definitely that SCO be limited to the claims listed on the December filing. And it would like an expedited briefing and a hearing no later than June 30. From the memorandum:

The bottom line is simple: SCO seeks by its expert reports to sandbag IBM by changing its case. Sandbagging is improper in any context. But this is especially so based on the Court's multiple attempts to force SCO to reveal its claims.

If SCO is allowed to ignore the Court's scheduling order and exceed the scope of the Final Disclosures, IBM will suffer undue and incurable prejudice. As stated, SCO seeks to expand the scope of the case --nearly six months after the deadline for its Final Disclosures, after the close of fact discovery, simultaneous with the filing of initial expert reports, on the eve of the due date of IBM's opposing expert reports and when summary judgment briefs are forthcoming. In fact, IBM has already submitted expert reports addressing the very claims SCO now seeks to change. SCO has spent more than three years developing its theory of infringement and seeks to force IBM to respond to its newly-minted allegations, without the benefit of discovery, in a matter of weeks. If that would not be unfair, nothing would.

Those little SCO devils. I figured they'd try something like this, and of course they'll claim this is all newly discovered materials. This wasn't planned, they'll argue. Dr. Cargill just illuminated them at the last minute. Let's see if they don't. Betcha anything. Not that I bet. I don't swear either, as you know, but I surely want to reading this. It's just unbelievable.

Why did I suspect this would happen? Because no law firm would go to trial with the garbage they had shown, for one thing. And I got suspicious when Darl McBride said something to the effect that things would look bleak for a long while, and then they'd win. That's my memory of it, anyway. He always foreshadows. So I said to myself, "Sounds like his plan is to pull something out of the vest at the last minute." So, personally, I'm not at all surprised. The problem with that is, it's against the rules, as IBM demonstrates with case after case attached to its Memorandum.

I'm just glad to read in detail here what SCO's claims actually are. You'll enjoy that part, I'm sure. And let the debunking begin, by all means.

Does any of this matter one way or another? It matters because the court rules are...well, not sacred. That's overstating it. But our rule of law depends on people actually taking the rules and the laws to heart and actually following them. The entire idea, the American concept, of a judicial system originally was that there was a better way than might makes right. But nothing works, including the judicial system, if folks just game it.

I hate to burst any bubbles, but it's kind of a known fact that you can buy an expert to say whatever you need. Ethical law firms won't use experts like that. But they exist. I'm not saying that is what's happening here, but I'm just cluing you in to something all lawyers know. It's up to juries to distinguish which expert seems to know what he is talking about and is speaking the truth. If this ever goes to trial, like most civil cases, it will be a battle of the experts, with the jury deciding which ones it believes.

You'll notice that SCO just had to put $5 million more into the escrow account for experts' fees and expenses. Paying 8 experts is expensive, and they'll need more in the future in Novell.

Anyway, I think it's obvious that if every single line of Linux was infringing, someone would have noticed it in the more than a decade it's been written under the sun in broad daylight, for anyone to examine at any time, 24 hours a day. The time has long passed to make such a claim, I believe, and one of IBM's affirmative defenses, is undue delay. If you read the bio of Judge Kimball, you'll find he ruled once on a copyright case where the owner of the copyright waited too long to assert infringement. Here's what I wrote about it back in 2003, article number 42 on Groklaw:

10. And here is a copyright case he handled, in which he said the plaintiff waited too long to raise his objection. "Had Jacobsen [plaintiff] voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books," he wrote in his decision. Because he waited too long, the material had lost its copyright. A news story in the Deseret News explains:
In his ruling, Kimball said Jacobsen did not "express any disapproval" of the series until 1999, after the third volume had been published. "Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books," Kimball wrote. "For Jacobsen to wait until three volumes of the series had been published before voicing his disapproval, when it is clear he had ample opportunity to let Hughes know of his disapproval as early as 1996, results in extreme prejudice to Hughes."

The plaintiff had an opportunity to read the book before publication, but he never finished it. The reasoning in this ruling would appear to be encouraging in the SCO fact pattern, wouldn't you say? SCO, then Caldera, obviously had access to Linux code for years, as well as UNIX code, all the while they were selling Linux products. For that matter anyone can look at Linux source code. But they had access to both literally for years.

Duh. The lawyer who lost that copyright case was SCO's own Brent Hatch, by the way. SCO's ownership of the copyrights is in serious doubt, and SCO is in litigation with Novell about it, but even if it had the copyrights, we're talking decades here of doing nothing about it. SCO can't say it never looked at the code. OldSCO either. The new claims are preposterous on their face, but even if they were true, it's a little late to complain now.

If the entirety of Linux infringed Unix, oldSCO was in a fine position to realize it, were they not, with engineers like Tigran Alvaizan, working on both Unix and Linux kernel code at the same time, and on SMP, of all things, to boot, an item newSCO has the gall to complain about and even put on its December list of allegedly misused materials.

And consider the Linux Kernel Personality. You'd surely have to look at both Unix and Linux code to write that. For starters. Erik Hughes at his deposition said this:

A: There was a release of SCO UnixWare release 7.1.2 that included the Linux kernel personality and SCO Linux-release 7.1.3 included the Linux kernel personality. At first when it first shipped it did include the Linux kernel packages which were subsequently removed.

Q: Which kernel packages did they include?

A: The Linux kernel packages. I -- I don't know which specific ones.

Q: Would it have been a Version 2.4 or higher?

A: Yes.

Q: During what period of time did those products -- that is, the Linux kernel personality -- include the Linux kernel? . . .

A: UnixWare 7 Release 7.1.2 shipped somewhere after the consummation of the transaction between Caldera and acquiring the assets from SCO, so the date is late 2001 or early 2002.

Q: Okay. And what about 7.1.3? . . .

A: Yes. It -- 7.1.3 included the Linux operating system, including the Linux kernel packages, until SCO suspended Linux and removed those packages from the media kit.

Q: Which was when?

A: Which was May of last year.

Q: So until May of last year, Unix -- those two UnixWare 7 releases included the Linux kernel?

A: That's correct.

SCO can't say it never "read the book" so it didn't know, the failed defense in the case Kimball ruled on. Then there's the fact that Caldera taught classes and seminars in Linux. It developed and distributed Linux. It had employees contributing code to Linux, the kernel (with Caldera even assigning copyright to the Free Software Foundation on some of those employee contributions). One of those employees who contributed code to the Linux kernel is Christoph Hellwig, who worked on Linux-ABI binary emulation modules. SCO's complaining about ABIs. He also was one of the chief committers to JFS while at Caldera. On the day IBM announced JFS was being given to Linux, back in January of 2002, Hellwig is listed as making five contributions to the kernel. All of this information is publicly available, so it was available to Caldera back when it happened quite aside from Hellwig being their own employee, even if all they did was read the funny papers.

And here is SCO's press release when in 2002 year it released "SCO Linux Server 4.0 for the Itanium (R) Processor Family," which mentions that the product is based on UnitedLinux. One of its advertised features was "Powerful new enterprise features based on the Linux 2.4.19 kernel." JFS was one of those features, as you used to be able to see on their products page, now disappeared, even from the Internet Archive. But you can confirm it not only by Groklaw referring to it but also by LWN's account mentioning the same thing back in 2003. Now I wonder why SCO would want to remove that product page?

SCO's own people wrote this stuff, oldSCO and new, and contributed it to the Linux kernel, and now newSCO would like to sue, because they think the code resembles Unix? They knew all about it at the time. They wanted that code put in Linux. I know. That was then. This is now.

Caldera after it bought Unix, whatever it was it bought in that deal, declared that it wanted to merge the two, Unix and Linux, and stated flat out that Caldera intended to donate code to make Linux suitable for the enterprise, and they worked at it. All that time, they were looking straight at the code, both sets. And they would like us to believe that Dr. Cargill, who is a Java expert, first noticed infringement in the summer of 2006?

As for Dr. Cargill, I will let you take your own measure of the man by noting that he claims the following:

The Final Disclosures identify 19 Linux files relating to the ELF specification, as well as excerpts from several specification documents. Dr. Cargill far exceeds this claim by citing additional ELF-related files in Linux, and asserting infringement of the entire ELF format.

The entire ELF format. Puh-lease. Just use search, Dr. Cargill, and I believe you'll find some educational information about ELF that the rest of us already know (here, I'll help you out), namely that this claim is situated on quicksand.

I'd like to thank mwexler for staying up late helping me OCR everything and get text ready for you.

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

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

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

-----------------------

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

------------------------

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

-against-

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

-----------------------

IBM'S MOTION TO CONFINE SCO'S
CLAIMS TO, AND STRIKE
ALLEGATIONS IN EXCESS OF, THE
FINAL DISCLOSURES

(EXPEDITED ORAL ARGUMENT
REQUESTED)

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Pursuant to Rules 1, 26, 33, and 37 of the Federal Rules of Civil Procedure, Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM"), through counsel, respectfully submits this motion to confine SCO's claims to, and strike allegations in excess of, its December 22, 2005 Disclosure of Material Allegedly Misused by IBM (the "Final Disclosures").

As the Court is aware, IBM has asked for years that SCO specify its allegations of misconduct by IBM. Ultimately, after repeated motions to compel and for summary judgment necessitated by SCO's refusal to disclose the materials at issue in the case, the Court entered an order setting October 28, 2005 as the "Interim Deadline for Parties to Disclose with Specificity All Allegedly Misused Material" and December 22, 2005 as the "Final Deadline for Parties to Identify with Specificity All Allegedly Misused Material." The parties also reached an agreement that both parties were required to identify with specificity any and all material that each party contends the other has misused no later than December 22,2005. Both parties submitted such materials on the required dates, and advised the Court that they had nothing more to provide.

Despite this, three of SCO's May 19, 2006 expert reports, those of Drs. Cargill and Ivie and Mr. Rochkind, significantly exceed the scope of the Final Disclosures - indeed, Dr. Cargill's report effectively seeks to reinvent the case, introducing both new categories of allegedly misused material and a new theory of recovery which relates to them. The Rochkind and Ivie Reports also exceed the Final Disclosures, adding material never before disclosed by SCO. SCO's refusal to identify exactly what is at issue in this case more than three years into the litigation -- and nearly six months after the expiration of its Court-ordered deadline to do so -- should be rejected. If allowed to ignore the Court's Order in this way, SCO will have drastically expanded the scope of this case, just weeks before IBM's opposing expert reports are due and just months before the dispositive motion cut-off, all to IBM's substantial prejudice.

2

For the foregoing reasons, and as set forth in detail in the accompanying memorandum filed and served herewith, IBM respectfully requests that the Court enter an order confining SCO's claims to, and striking allegations in excess of, the Final Disclosures.

DATED this 8th day of June, 2006.

Snell & Wilmer L.L.P

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

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

Of Counsel:

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

3

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of June, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CMIECF system to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

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

and by U.S. Mail, postage pre-paid to:

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

/s/ Amy F. Sorenson

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

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

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

-----------------------

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

------------------------

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

-against-

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

-----------------------

IBM'S MEMORANDUM IN
SUPPORT OF MOTION TO
CONFINE SCO'S CLAIMS TO, AND
STRIKE ALLEGATIONS IN
EXCESS OF, THE FINAL
DISCLOSURES

(EXPEDITED BRIEFING AND
ORAL ARGUMENT REQUESTED)

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Defendant/counterclaim-plaintiff IBM respectfully submits this memorandum in support of its motion to confine SCO's claims to, and strike allegations in excess of, its December 22,2005 Disclosure of Material Allegedly Misused by IBM (the "Final Disclosures").

Preliminary Statement

Long after the deadline for disclosing its allegations, SCO seeks by indirection to change them. In three of its eight expert reports, SCO alleges the misuse of material nowhere identified in the Final Disclosures, the very purpose of which was to fix the parties' allegations once and for all last year. Indeed, with respect to its allegation that Linux infringes SCO's alleged UNIX copyrights, SCO proffers expert testimony that has no support in the Final Disclosures and, if allowed, would reinvent the case at the eleventh hour. SCO's attempt to change its case not only violates the Court's scheduling order, but it is unduly prejudicial to IBM and the public interest and should not be allowed. SCO's expert reports should be stricken insofar as they make new, previously-undisclosed allegations of misconduct. From the beginning of this case, IBM has asked SCO to specify its allegations of misconduct. SCO repeatedly declined, requiring the Court twice to order SCO to respond to IBM's discovery requests and to specify its allegations. When SCO still refused to specify its allegations, IBM moved for summary judgment. The Court recognized that SCO had failed to offer evidence in support of its claims but deferred resolving IBM's motions on the merits and established a final deadline for SCO to disclose any allegations of misuse it wished to pursue. In establishing a final deadline for the identification of allegedly misused material, the Court agreed with IBM that this case should be litigated based on timely disclosures. Notably, SCO stipulated and agreed with IBM that it was

2

required to identify with specificity any and all material that it contends IBM misused in the Final Disclosures. Although SCO failed to particularize all of its allegations as required by the Court, it submitted the Final Disclosures late last year. (See Section I below.)

Despite the plain language of the Court's scheduling order and SCO's express stipulation and agreement, SCO now seeks, by way of its expert reports, to challenge as "misused" a mass of material nowhere identified in the Final Disclosures. SCO proffers the testimony of Thomas Cargill to support its copyright infringement claim relating to Linux. Rather than limit Dr. Cargill's report to the material identified in the Final Disclosures, SCO uses it to identify three entirely new categories of allegedly misused material. The new material significantly increases the scope of SCO's claims. Whereas the Final Disclosures accused only 326 lines of code from the Linux kernel, the Cargill report challenges nearly every line in Linux. Even with respect to the three categories of material identified in the Final Disclosures, SCO uses Dr. Cargill's report to identify numerous new items of allegedly misused material. For example, the Final Disclosures identify only 15 files of Streams material as supposedly infringing certain Unix copyrights. To that, the Cargill report adds more than 150 additional files of Streams material never before mentioned by SCO. (See Section II below.)

In addition, SCO relies on the testimony of Evan Ivie and Marc Rochkind in support of its contract claims. Like the Cargill report, the Ivie and Rochkind reports identify allegedly misused material found nowhere in the Final Disclosures. With respect to one of the technologies challenged in the Final Disclosures (JFS), SCO uses its expert reports to charge misuse against six times the volume of material identified in the Final

3

Disclosures. Similarly, the Final Disclosures identify 9,282 lines of code regarding testing technologies as representing "misuse". To that the Rochkind report adds 25,378 additional lines of code. In fact, the Final Disclosures identify only a small fraction of the material challenged in SCO's expert reports, notwithstanding the requirements of the scheduling order and SCO's stipulation and agreement. (See Section II below.)

SCO's new claims have no more merit than those set out in the Final Disclosures. But allowing SCO to ignore the Court's scheduling order and reinvent its case at this juncture would be unduly prejudicial to IBM and contrary to the public interest. Putting aside the fact that SCO's refusal to cooperate in discovery has made it difficult for IBM properly to prepare a defense to the allegations set out in the Final Disclosures, SCO's new, last-minute allegations would force the re-opening of discovery and significantly extend the litigation. SCO's proposed new allegations are not minor; they are far- reaching. SCO's new claims implicate the whole of Linux. While we believe the claims lack merit, assembling the evidence necessary to prove they lack merit would require significant additional litigation. And, of course, fact discovery is closed; initial expert reports have been submitted; dispositive motions are forthcoming, and IBM's opposing expert reports are due in a matter of weeks. Thus, there is no way IBM could properly prepare a defense without substantial delay in the proceedings, including deferral of the existing trial date. This unjustifiable delay would itself prejudice IBM and undermine the public interest because it would allow SCO further to perpetuate fear, uncertainty and doubt about IBM, Linux and IBM's products and services. (See Section III below.)

4

As is further discussed below, SCO should not be allowed to ignore the deadline for final disclosures and litigate this case by ambush. 1 Insofar as SCO's proposed expert reports exceed the Final Disclosures, they should be stricken.

Argument

I. THE COURT LIMITED SCO'S CLAIMS TO THE MATERIAL IDENTIFIED
IN ITS FINAL DISCLOSURES.

IBM asked for years that SCO specify its allegations of misconduct and infringement by IBM. For example, IBM's Interrogatory No. 4 (served on June 13, 2003) demanded that SCO describe in detail "the specific manner in which IBM is alleged to have engaged in misuse or misappropriation", and IBM's Interrogatory No. 13 (served on September 16, 2003) demanded that "for any rights IBM is alleged to have infringed, [SCO] describe in detail how IBM is alleged to have infringed plaintiffs rights". SCO repeatedly refused to specify its claims, requiring IBM to seek the Court's assistance in learning SCO's allegations. In considering IBM's motions for summary judgment, the Court found it "astonishing that SCO has not offered competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities". (02/08/2005 Order at 10.)

When the Court deferred IBM's summary judgment motions, IBM urged the Court to establish a final deadline for the disclosure of allegedly misused material. As we explained at the time, there was no way IBM could properly prepare its defense without a final deadline, prior to the close of fact discovery, for the identification of all allegedly misused material. SCO's claims potentially implicate billions of lines of source code,

5

and it would have been impossible to defend the case by preparing a defense to all possible claims relating to that code. There is too much information and therefore there are simply too many possibilities. Moreover, as we further explained, it was critical that the parties not be allowed to modify their allegations by way of the expert reports lest the deadline become meaningless and render fact discovery an exercise in inefficiency, disconnected from the parties' allegations. (04/21/2005 Hr'g Tr. at 93-94.)

In an order dated July 1, 2005, the Court adopted IBM's proposal over SCO's objection. The Court set October 28, 2005 as the "Interim Deadline for Parties to Disclose with Specificity All Allegedly Misused Material Identified to Date and to Update Interrogatory Responses Accordingly". (07/01/2005 Order 111.) The Court set December 22, 2005, as the "Final Deadline for Parties to Identify with Specificity All Allegedly Misused Material". (Id.) Both parties submitted their final disclosures of allegedly misused material on December 22, 2005, and thus advised the Court that they had nothing more to provide. In fact, SCO specifically advised the Court in opposing IBM's motion to limit the scope of SCO's claims based on its failure to specify all of the allegations contained in the Final Disclosures, that it had fully complied with the scheduling order. (See SCO's 03/07/2006 Memorandum in Opposition to IBM's Motion to Limit SCO's Claims Relating to Misused Material at 1.)

In the Final Disclosures, SCO identified 294 Items of allegedly misused material. Most of the Items (215 Items) concern SCO's allegation that IBM breached its contractual obligations by contributing its own AIX and Dynix code to Linux. These allegedly improper contributions fall into seven categories: (1) Journaling File System (JFS); (2) Enterprise Volume Management System (EVMS); (3) Read-Copy Update

6

(RCU); (4) Symmetric Multiprocessing (SMP); (5) Non-Uniform Memory Access (NUMA); (6) Testing Technology; and (7) miscellaneous Items that do not fall into any particular category. The remaining items (79 Items) concern SCO's allegations of copyright infringement, which relate primarily to Linux (69 Items). SCO's allegations of infringement relating to Linux, which make no specific allegations of infringement by IBM, concern material of three types -- (1) header files (including Open Group headers and Streams headers); (2) specifications (including ELF); and (3) miscellaneous materials (including one Item about memory management). In challenging this material, SCO accuses just 326 lines of code from the Linux kernel. By order of the Court, these 294 Items define the permissible scope of SCO's claims.

In addition to the fact that the Court limited SCO's claims to the Final Disclosures, SCO repeatedly committed to IBM that it would limit its claims to the Final Disclosures. In fact, SCO expressly stipulated and agreed with IBM that its claims would not exceed the Final Disclosures. In a Stipulation Re Scheduling Order filed with the Court on December 7, 2005, the parties stipulated and agreed as follows:

"1. Both parties are required to identify with specificity any and all material that each party contends the other has misused no later than December 22, 2005;

...

(c) Neither party shall be permitted to use [the period for discovery relating to the Final Disclosures] for the purpose of identifying additional misused material not disclosed by the December 22, 2005, deadline." (Ex. A.)

It is thus undisputed and indisputable that the Final Disclosures were to define the scope of SCO's claims. As discussed in Section II below, however, SCO attempts to use its expert reports to exceed the Final Disclosures, despite the Court's order and the parties' agreement.

7

THE CARGILL, IVIE AND ROCHKIND REPORTS FAR EXCEED THE
SCOPE OF THE FINAL DISCLOSURES.

Three of SCO's proposed expert reports, those of Drs. Cargill, Ivie and Mr. Rochkind, exceed the scope of its Final Disclosures in significant respects. In fact, by Dr. Cargill's report (which appears to have been prepared in part by a law firm that has never participated actively in this case), SCO effectively seeks to reinvent the case. While the obvious inference is that SCO does not think much of its existing case, SCO's expert reports should be stricken insofar as they exceed the scope of the Final Disclosures. SCO relies on the Cargill report to support its allegation that Linux infringes SCO's alleged UNIX copyrights. As stated, the Final Disclosures identify three categories of alleged copyright infringement: (1) header files; (2) specifications; and (3) miscellaneous materials. Rather than confine Dr. Cargill's opinions to these three categories of allegedly misused material (which amount to only 326 lines of code in the Linux kernel), SCO now claims three entirely new and vastly different categories of allegedly misused material:

a) the overall structure of SVr4;

b) the structure of the SVr4 file system; and

c) system calls.

Moreover, SCO advances a theory relating to these materials (e.g., copying of selection, coordination and arrangement) that is different from any theory of infringement previously provided by it. The Final Disclosures make no allegations of misuse relating

8

to the overall structure of SVr4, the structure of the SVr4 file system, or system calls. 2 Nor do any of SCO's responses to IBM's interrogatories, which plainly called for SCO to provide all such allegations.

SCO's new copyright claims regarding the overall structure of SVr4, the structure of the entire SVr4 file system and system calls are not minor additions to the Final Disclosures. On the contrary, they represent a significant departure from the Final Disclosures. The Final Disclosures' copyright allegations implicated only 12 Linux kernel files and 326 lines of code from the kernel.3 Since SCO's new theories challenge the overall structure of Linux and its file system, they appear to implicate virtually every file in Linux, which is comprised of millions lines of code. As a practical matter, the Cargill report effectively pleads a brand new and complex (although still meritless) case.

Even as to the categories of material identified in the Final Disclosures, SCO uses Dr. Cargill to expand considerably the scope of its allegations. For example:

  • Header Files: The Final Disclosures identify source code in 29 Open Group header files and 15 Streams-related header files. The Cargill report goes beyond the Final Disclosures, claiming the "totality of the Streams framework". (Cargill Rpt. at 56.) That claim draws in every line in over 150 new files never before mentioned by SCO.
  • Specifications: The Final Disclosures identify 19 Linux files relating to the ELF specification, as well as excerpts from several specification documents. Dr. Cargill far exceeds this claim by citing additional ELF-related files in Linux, and asserting infringement of the entire ELF format. The Cargill report also introduces into this case, for the first time, claims

9

    to the ELF "magic number" (Cargill Rpt. at 76-78) (a unique pattern identifying the type and intended use of a file).

The Rochkind and Ivie reports also exceed the Final Disclosures. Both reports add significant new material, never before disclosed by SCO, as illustrated by the Ivie and Rochkind reports' discussions regarding JFS and Testing Tools:

  • JFS: The Final Disclosures alleged that IBM "literally copied code from UNIX System V Release 2.1" and identified one System V file and one AIX file. (Item 1 .) The Ivie report adds six additional System V files and six additional AIX files (Ivie Rpt. Exs. C-H), as well as two lists of twenty-one new AIX files. (Ivie Rpt. Exs. I, J.) (Of course, SCO fails to identify any connection between this material and the OS/2 JFS code IBM contributed to Linux.)
  • Testing Technology: The Final Disclosures claimed IBM contributed 15 testing files to Linux. (Item 16.) The Rochkind report accuses another 73 files (288 printed pages worth). (Rochkind Rpt. at 149.) The Rochkind report also challenges two documentation files for testing technologies (Rochkind Rgt. at 144-145) that were not mentioned in the Final Disclosures.

These additions are not an exhaustive list of the ways in which SCO's expert reports exceed the scope of the Final Disclosures. They simply demonstrate why SCO's claims must be confined to the Final Disclosures, as per the Court's order and the parties' stipulation and agreement.

The bottom line is simple: SCO seeks by its expert reports to sandbag IBM by changing its case. Sandbagging is improper in any context. But this is especially so based on the Court's multiple attempts to force SCO to reveal its claims.

III. SCO'S CONDUCT IS UNDULY PREJUDICIAL TO IBM.

If SCO is allowed to ignore the Court's scheduling order and exceed the scope of the Final Disclosures, IBM will suffer undue and incurable prejudice. As stated, SCO seeks to expand the scope of the case -- nearly six months after the deadline for its Final Disclosures, after the close of fact discovery, simultaneous with the filing of initial expert

10

reports, on the eve of the due date of IBM's opposing expert reports and when summary judgment briefs are forthcoming. In fact, IBM has already submitted expert reports addressing the very claims SCO now seeks to change. SCO has spent more than three years developing its theory of infringement and seeks to force IBM to respond to its newly-minted allegations, without the benefit of discovery, in a matter of weeks. If that would not be unfair, nothing would.

If (contrary to the existing schedule) IBM is required to pursue fact discovery and develop a defense to SCO's new-found allegations, it would take no less than 12 additional months to litigate SCO's new claims. That would, of course, preclude the existing trial date and push off yet again the resolution of issues on which SCO contends the future of the software industry depends. The only way IBM could get a fair hearing on SCO's claim would be to defer the trial, but that deferral alone would be prejudicial. IBM has been seeking a prompt resolution of this matter since its inception. A prompt resolution of the case matters to IBM because SCO's continued assertions of misconduct and disparagement of IBM's business, products and services has caused and is continuing to cause injury to IBM. Thus, the prejudice IBM would experience if SCO is allowed to change the case would be incurable. SCO's attempt to force IBM to defend new allegations is unfair -- if not abusive -- and should not be allowed.

Courts have refused to allow a party to change its case under far less compelling circumstances. For example, in Lynchval Systems, Inc. v. Chicago Consulting Actuaries, Inc., Civ. A. No. 95 C 1490, 1996 WL 735586, at *9 (N.D. Ill. Dec. 19, 1996) (Ex. B), the court rejected plaintiffs attempts to expand the scope of its case through its expert reports by striking references to misused materials in the report that were not adequately

11

disclosed during discovery. As the Court did here, the court in Lvnchval entered an "order requiring [plaintiff] to produce a final response to [defendant's] Interrogatory 2, specifying each allegedly [misused item], by the end of fact discovery." Id at *8. Like SCO, the plaintiff in Lvnchval provided a list of misused materials, but then filed an expert report referring to numerous materials not disclosed in its final list of misused materials. Id.at *6, 9. Rejecting such attempts to expand the scope of the case, the court in Lvnchval struck from plaintiffs expert report any reference to those misused materials that had not been adequately disclosed in plaintiffs final list. Id.at *9. The court in Lynchval observed that defendants' "defense [was] seriously hampered" because defendants "reasonably expected to obtain a complete list of the allegedly stolen trade secrets . . . prepared and exchanged expert reports [based on that list] [and] . . . [i]n light of any additional trade secrets and subsequent depositions, defendants' expert would have to amend his own report in light of this new information." Id. The court rejected the notion that reopening discovery would be an adequate remedy because it "compounds the delay until trial and subjects the defendants to costs beyond . . . depositions". Id.

This Court should do no less. It should strike from SCO's expert report any reference to allegedly misused materials not disclosed in the Final Disclosures. See also Kern River Gas Transmission Co. v. 6.17 Acres of Land, 156 Fed.Appx. 96, 100, 103 (10th Cir. 2005) (affirming district court's decision "preclud[ing] . . .[defendant] from introducing at the trial any expert evidence or documents not produced during discovery") (Ex. C); Praxair, Inc. v. Atmi, Inc., 231 F.R.D. 457, 463-64 (D. Del. 2005) (striking portions of expert report that incorporated new evidence and defenses

12

that were not disclosed prior to a discovery cutoff. 4 There is no justification for SCO's conduct, and IBM should not be required to respond to SCO's new allegations as if SCO had complied with the Court's scheduling order, which it plainly has not done. 5

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court enter an order confining SCO's claims to, and striking allegations in excess of, the Final Disclosures. The Court's Order need not say more than: "IT IS HEREBY ORDERED THAT SCO's claims shall be confined to SCO's December 22,2005 Disclosure of Material Allegedly Misused by IBM (the "Final Disclosures") and that any allegations in excess of the Final Disclosures shall be and is hereby stricken." The Court set a deadline for final disclosures and the parties reached an agreement on the subject. Both the order and the parties agreement should be enforced.

13

DATED this 8th day of June, 2006.

SNELL & WILMER L.L.P.

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

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of Counsel:

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

_____________________

1Although we do not burden the Court with a request for sanctions, we believe an order entering sanctions, including the costs of this motion, would be justified.

2A handful of system call signatures (also called "function prototypes") appear in a few of the header files claimed in the Final Disclosures. However, SCO's Final Disclosures do not contain any claims about "system calls".

3The kernel is the core of the operating system and the subject of IBM's counterclaim seeking a declaration of non-infringement relating to Linux.

4In addition to the injury SCO's sandbagging would visit on IBM, it would, if allowed, disserve the judicial process. "[Fidelity to the constraints of Scheduling Orders and deadlines is critical to the Court's case management responsibilities."Finch v. Hercules, Inc., No. Civ. A. 92-251 MMS, 1995 WL 785100, at *9 (D. Del. Dec. 22, 1995) (citations omitted) (Ex. D). The "flouting of discovery deadlines causes substantial harm to the judicial system." Id.(citations omitted).

5 In the event the Court allows SCO to disregard the deadline for final disclosures of allegedly misused material -- which, we respectfully submit, it should not do -- the scheduling order would obviously have to be modified. IBM would not require three years to debunk SCO's claims. In fairness, however, we expect IBM would require no less than 12 months to prepare a defense to SCO's new allegations, especially if SCO is no more forthcoming in providing discovery relating to its new claims than it has been in revealing the particulars of the claims set out in the Final Disclosures. Such an extension would of course be independent of the extension IBM would require if the Court were to deny its already-pending motion to limit the scope of SCO's claims.

14

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of June, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

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

and by U.S. Mail, postage pre-paid to:

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

/s/Amy F. Sorenson

15

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

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

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

-----------------------

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

------------------------

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

-against-

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

-----------------------

REQUEST FOR EXPEDITED BRIEFING
AND HEARING

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM"), through counsel, respectfully submits this request for expedited briefing and hearing on its motion to confine SCO's claims to, and strike allegations in excess of, its December 22, 2005 Disclosure of Material Allegedly Misused by IBM (the "Final Disclosures"), filed and served concurrently herewith.

On May 19, 2006, three of SCO's seven experts submitted reports containing material which significantly exceed the scope of SCO's Final Disclosures. One of the three reports, in fact, effectively seeks to reinvent the case, introducing both new categories of allegedly misused material and a new theory of recovery which relates to them. The remaining two reports add files and other material never before disclosed to IBM, which new disclosures IBM is still in the process of quantifying. SCO's attempt to expand the scope of this litigation in violation of the Court's July 1, 2005 Order in this way comes just weeks before IBM must submit its opposing expert reports. Moreover, if the portions of SCO's expert reports which exceed the scope of the Final Disclosures are not stricken, IBM will have no choice but to request in the alternative substantial modifications to the scheduling order, including the reopening of fact discovery. Accordingly, IBM respectfully requests that the Court enter an Order establishing an expedited briefing schedule for IBM's motion to strike portions of SCO's expert reports, as well as an expedited hearing on the motion, to be set at the Court's convenience not later than June 30th.

DATED this 8th day of June, 2006.

SNELL & WILMER L.L.P.

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

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

2

Of Counsel:

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

3

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of June, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

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

and by U.S. Mail, postage pre-paid to:

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

/s/Amy F. Sorenson

4


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