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Declaration of Todd M. Shaughnessy with Unsealed Exhibits, as text
Sunday, August 27 2006 @ 09:47 AM EDT

Here's the Declaration of Todd M. Shaughnessy with Unsealed Exhibits [PDF], number 744 on Pacer, as text, thanks to feldegast, who did the OCR for us. This Declaration accompanies IBM's Memorandum in Opposition to SCO's Objections to Magistrate Judge Brooke Wells' Order limiting SCO's claims to the ones it put sufficient evidence on the table about by the December 22, 2005 deadline.

It's also number 746 [PDF] on Pacer. IBM initially filed it conventionally and then it realized it hadn't filed all the exhibits, so it filed a Notice of Errata [PDF] and then refiled everything again, as you can see in the Pacer list:

742 - Filed & Entered: 08/18/2006
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of IBM's Redacted Memorandun in Opposition to SCO's Objections to 7/28/06 Order and Declaration of T. Shaughnessy With Unsealed Exhibits filed by Defendant International Business Machines Corporation re [726] Sealed Document,, [724] Redacted Document, (Sorenson, Amy)

744 - Filed: 08/18/2006
Entered: 08/21/2006
Declaration
Docket Text: DECLARATION of Todd M. Shaughnessy with Unsealed Exhibits filed by International Business Machines Corporation, International Business Machines Corporation. (Attachments: # (1) Exhibits 19 to 25)(kla, )

745 - Filed: 08/18/2006
Entered: 08/21/2006
Notice (Other)
Docket Text: NOTICE of Errata by International Business Machines Corporation, International Business Machines Corporation re [744] Declaration. (kla, )

746 - Filed: 08/18/2006
Entered: 08/21/2006
Declaration
Docket Text: DECLARATION of Todd M. Shaughnessy with Unsealed Exhibits filed by International Business Machines Corporation, International Business Machines Corporation. (Attachments: # (1) Exhibit 4 through 8# (2) Exhibit 9 through 13# (3) Exhibit 14 through 19# (4) Exhibit 20 through 25)(kla, )

748 - Filed: 08/18/2006
Entered: 08/21/2006
Redacted Document
Docket Text: REDACTION to [736] Memorandum in Opposition to Objection to Magistrate Wells Order of 6/28/06 by Defendant International Business Machines Corporation. (Attachments: # (1) Addendum# (2) Addendum# (3) Addendum# (4) Addendum# (5) Addendum)(blk, )

As it happens, the 25 exhibits are documents we've seen before, those of us who have been here since in 2003. Their cumulative purpose and effect is to demonstrate that SCO was informed all along the way that it wasn't telling IBM what it had allegedly done wrong with enough specificity. You'll see in Exhibit 11, the December 5, 2005 letter from IBM to SCO (on page 37 of Exhibit 2 [PDF]) that IBM straighforwardly informed SCO that IBM saw its interim list of materials allegedly misused as insufficient and told SCO that unless the final list of allegedly misused materials was more specific and detailed -- and IBM explains precisely what would be appropriate to provide -- it intended to ask the court to do what the court in fact eventually did in the Order SCO now objects to. This was no sudden ambush. IBM told SCO what it intended to do, explained to SCO how to avoid it, and then did exactly what it said it would. When you know you are on solid ground, you don't need to surprise the other side or play games.

It would be so voluminous if we reproduced all the exhibits here again, I don't think Groklaw software could actually do it, so what I did instead is provide links to every exhibit as it is listed in the Declaration, and you can read them as we transcribed them when they were originally filed, if you prefer plain text to PDFs. Note that exhibits 17 and 18 were filed as sealed documents, but I've linked to the redacted version that is available for 18. There is no redacted version of 17.

My word, we've done a lot of work. That's all I kept thinking, as I reviewed all this material, digging through Groklaw's documents and remembering this volunteer and that, staying up late, over and over, trying to get a transcript done. Thank you all for the hard work you have done with me and for sticking to this project steadfastly even now after years of nonstop effort. It's a remarkable achievement, this steady gaze the community has directed at the SCO litigation, and we've created a body of work that I believe is useful now and will also be used by historians for many years to come. I'm proud of what we have accomplished, and I really felt that as I hunted for and found each and every exhibit on IBM's lengthy list.

Feldegast and I tried something new on this transcription. We had fun trying out Writely, both of us working at the same time on this document. It's a bit like trying to dance with a stranger, in that sometimes he moves to the left when you were thinking of the right, so it takes some getting used to. But I think Writely would definitely work for us as a group for cleaning up OCR'd documents. It isn't as helpful with HTML, because it has its own ideas that don't look quite right in Geeklog. But it isn't hard to fix what it does, so for those of you who wish to help but don't know how to code HTML, you can use the Writely Edit page, which is a WYSIWYG way of doing the HTML, without needing to understand how to code the HTML at all. It spits out the HTML for you, and we can easily clean it up to please Geeklog. With all the new documents being so incredibly long, this might work out well for us. And for sure it's useful for a group of us to clean up long OCR'd documents.

I suggest if two people are working together to start at opposite ends and meet in the middle, or agree to take every other paragraph, or tell each other which paragraph you will work on. It was fun though, I have to say. So if you wish to help out, please get a Writely account. When we have a document needing work, I can let you know where to find it. And we'll dig in. Feldegast suggests having IM going at the same time, so we can converse. I'm not sure how many things I can do at once, personally. It feels a bit like rubbing my stomach and patting my head at the same time, something I'm sure some of you can do with ease, so I mention his suggestion.

If ever anyone wants to know what happened in the SCO v. IBM case, I suggest pointing them right here. This is the story in a nutshell.

Red Hat update:

By the way, I finally transcribed the most recent letter from Red Hat to the Delaware judge, and I've put it with SCO's here. It was written in June, prior to Judge Kimball's recent Order, which you probably should read if you read the Red Hat letter, to find out what happened. It was only when I did that that I realized that SUSE is saying that the contracts SCO signed for UnitedLinux divest SCO of certain copyrights, as the Order explains:

Therefore, SuSE has requested a declaration in the arbitration that (1) SCO is precluded from asserting copyright infringement claims against SuSe and that (2) the UnitedLinux contracts divested SCO of ownership of any copyrights related to technology included in UnitedLinux, except for pre-existing technology and enhancements.

My memory is that UnitedLinux touted certain features as being new in UL, such as JFS, did it not? That would mean, if SuSE prevails in the arbitration, that SCO would be precluded from asserting copyright ownership, no matter how convoluted, in anything in UL that wasn't SCO's prior to the distro or wasn't SCO's own personal enhancement to the distro. JFS wasn't contributed to UL by SCO, was it? So I see now why SCO fought the arbitration with such worried zeal. It was unsuccessful, in that Novell's motion to stay was granted in part. But Judge Kimball wrote this odd paragraph:

Novell claims that the arbitrable issues predominate. Novell also asserts that it is highly likely that the arbitrator's ruling will have collateral estoppel effect on this litigation. It is true that the arbitrator's determination of whether SCO assigned the copyrights at issue to the UnitedLinux entity bears on the question of whether SCO owns the copyrights it is suing upon. It is also true, however, that a significant portion of SCO's claims and Novell's defenses are based upon the agreements between SCO and Novell--the Asset Purchase Agreement, as amended ("APA"), and the Technology License Agreement ("TLA"). Determinations on these agreements in this court could have a similarly preclusive effect on the arbitration. Although Novell attempts to argue that there is an overlap between its defense of the claims relating to SuSE and SCO's claims relating to the APA and TLA, they are distinct in time and based on entirely separate agreements. Both require an underlying finding that SCO did, in fact, have ownership of the copyrights. But they appear to be factually and legally distinct. The court, therefore, cannot conclude that the arbitrable issues predominate.

I'm not sure how the older contracts could be preclusive with regards to the later ones, since one can presume that SCO knew what it was agreeing to in the UL contracts. And if it agreed to donate copyrights to UL and not to sue any parties or licensees of the UL entities, I can't see how the earlier contracts can possibly undo that. I think Judge Kimball is thinking of Novell, as opposed to SuSE, but Novell is a licensee of SUSE, so that seems to me to be definitive. However, I have great respect for Judge Kimball, and it is more likely that I am missing something than that he is. And he also ruled thus:

If the arbitration concludes before the parties are ready for trial in this matter, then the court will address the preclusive effect of the arbitrator's ruling on the claims in this case. If this case is ready for trial before the arbitration concludes, the court will revisit the issue of whether to stay the trial on the APA and TLA claims pending the conclusion of the arbitration.

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


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 DISTRCT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.


Plaintiff/Counterclaim-Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff

DECLARATION OF TODD M.
SHAUGHNESSY WITH
UNSEALED EXHIBITS

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C . Wells

DECLARATION OF TODD M. SHAUGHNESSY

I, Todd M. Shaughnessy, declare as follows:

1. I represent IBM in the lawsuit brought by SCO against IBM, titled The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003). This declaration is submitted in support of Defendant/Counterclaim-Plaintiff IBM's Opposition to SCO's Objections to Magistrate Judge Wells' Order of June 28, 2006.

2. On February 6, 2004, immediately before a hearing on SCO's compliance with the Court's December 12, 2003 Order, the Court held a conference in chambers with counsel for the parties. The Court advised both parties that if either party was unable to comply with its obligations under the Court's orders that it was not to ignore its obligations, but immediately to bring the issue to the Court's attention so that the Court could address it.

3. Attached hereto as Exhibit 1 is a true and correct copy of IBM's Memorandum in Support of Motion to Compel Discovery, dated October 1, 2003.

4. Attached hereto as Exhibit 2 is a true and correct copy of IBM's Memorandum in Support of Second Motion to Compel Discovery, dated November 6, 2003.

5. Attached hereto as Exhibit 3 is a true and correct copy of IBM's Report on SCO's Compliance with the Court's December 12, 2003 Order, dated February 5, 2004.

6. Attached hereto as Exhibit 4 is a true and correct copy of the hearing transcript for the February 6, 2004 hearing before the Court.

7. Attached hereto as Exhibit 5 is a true and correct copy of the December 12, 2003 Order of the Court.

8. Attached hereto as Exhibit 6 is a true and correct copy of the March 3, 2004 Order of the Court.

2

9. Attached hereto as Exhibit 7 is a true and correct copy of the February 8, 2005 Order of the Court.

10. Attached hereto as Exhibit 8 is a true and correct copy of the July 1, 2005 Order of the Court.

11. Attached hereto as Exhibit 9 is a true and correct copy of the hearing transcript for the October 7, 2005 hearing before the Court.


12. Attached hereto as Exhibit 10 is a true and correct copy of the May 3, 2005 Declaration of Todd Shaughnessy.

13. Attached hereto as Exhibit 11 is a true and correct copy of the December 5, 2005 letter from Todd Shaughnessy to Edward Normand.

14. Attached hereto as Exhibit 12 is a true and correct copy of the Forbes Magazine article, "SCO Claims IBM Destroyed Crucial Evidence", Daniel Lyons, dated July 20,2006.

15. Attached hereto as Exhibit 13 is a true and correct copy of SCO's Memorandum in Opposition to IBM's Motion to Compel, dated October 23, 2003.

16. Attached hereto as Exhibit 14 is a true and correct copy of the "So Ordered" Stipulated Protective Order entered into between the parties on September 15, 2003.

17. Attached hereto as Exhibit 15 is a true and correct copy of the hearing transcript for the February 24, 2006 hearing before the Court.

18. Attached hereto as Exhibit 16 is a true and correct copy of the Stipulation re Discovery, entered into between the parties on March 17, 2006.

19. Attached hereto as Exhibit 17 is a true and correct copy of SCO's Memorandum in Opposition to IBM's Motion to Limit SCO's Claims Relating to Misused Material, dated March 7, 2006.

3

20. Attached hereto as Exhibit 18 [redacted version] is a true and correct copy of the Declaration of Randall Davis, dated April 28, 2006.

21. Attached hereto as Exhibit 19 is a true and correct copy of IBM's Memorandum Attaching and in Support of IBM's Proposed Scheduling Order, dated March 25, 2005.

22. Attached hereto as Exhibit 20 [PDF; redacted version] is a true and correct copy of SCO's Supplemental Memorandum Regarding Discovery, dated August 19, 2004.

23. Attached hereto as Exhibit 21 [PDF] is a true and correct copy of the Declaration of Randall Davis, dated March 29, 2006,

24. Attached hereto as Exhibit 22 is a true and correct copy of the Declaration of Chris Sontag in Support of SCO's Opposition to IBM's Motion for Partial Summary Judgment, dated July 9, 2004.

25. Attached hereto as Exhibit 23 is a true and correct copy of IBM's Motion to Limit

26. Attached hereto as Exhibit 24 is a true and correct copy of IBM's Memorandum in Support of Motion to Limit SCO's Claims Relating to Allegedly Misused Material, dated February 13, 2006.

27. Attached hereto as Exhibit 25 is a true and correct copy of a Salt Lake Tribune article, "SCO will appeal the gutting of its lawsuit against IBM", Bob Mims, dated July 13, 2006. [ed: No longer available on SLT website; Edgar's copy]

4

I declare under penalty of perjury that the foregoing is true and correct.

DATED this 14th day of August, 2006.

________[signature]____

Todd M. Shaughnessy

5

CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of August, 2006, a true and correct copy of the
foregoing was sent by U.S. Mail, postage pre-paid 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]


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



___[signature]___

Amy F. Sorenson

6


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