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Three SCO Memos-- no, Four -- including the one on spoliation, and Novell and RedHat filings too
Thursday, September 28 2006 @ 12:14 AM EDT

There are twenty more documents on Pacer, including three SCO memoranda in SCO v. IBM I believe you've been hankering to read.

But I'll just let you know that Novell got permission [PDF] to file its Amended Counterclaims [PDF], as we expected, and there is also a Certificate of Service, that lets us know that Novell's Second Set of Interrogatories to the SCO Group and Novell's Third Set of Requests for Production to SCO Group were served on SCO on the 27th. No moss growing on that case. And we have the latest Red Hat letter [PDF] to the judge also.

Here are the SCO memos in SCO v. IBM:

SCO's Redacted Memorandum in Support of its Motion for Summary Judgment on IBM's Second, Third, Fourth and Fifth Counterclaims

SCO's Redacted Memorandum in Support of SCO's Motion for Relief for IBM's Spoliation of Evidence

Reply Memorandum in Support of SCO's Objections to Order Granting in Part IBM's Motion to Limit SCO's Claims

There is a lot more to come, including exhibits. But this will get you started while I slave away.

: )

[ Update: There is a fourth. Groan. With a gazillion exhibits. I'll get it uploaded soon.]

Update 2: I have now read the memo in "support" of SCO's claim of spoliation of evidence. It is a positive hoot, because SCO has carefully excised and redacted every bit of the memo that might tell us what in the world they are talking about. All we get to read in full are its legal arguments. Is that not SCO to the max? FUDsters to the end.

But they forgot one detail, a footnote that gives us a strong clue that whatever was "destroyed" it wasn't done with intent. Read footnote 1 on page 8 of the PDF, 5 of the document. It reads like this:

Other circuits have not required bad faith or intentional destruction of the material in imposing an adverse inference instruction...."The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss." Residential Funding Corp. v. DeGeorge Fin. Corp...."

When I read that, I laughed out loud, and said to myself, If they thought IBM had done something the judge would think was really deliberate, there'd be no need for that footnote. Anyway, just saying that the overall impression I get is they don't expect to win this motion. So why do it? Maybe it was to just have something folks could pay attention to, so they wouldn't notice that IBM just dumped a load of bricks on SCO's head.

Here are the exhibits that go with these memos. There are quite a few that are sealed, so if you notice the numbers are off with blanks, that is the explanation.

First, here are the exhibits we have available for #819, SCO's Redacted Memorandum in Support of SCO's Motion for Relief for IBM's Spoliation of Evidence. The exhibits are 1-3 and A-J, but a number of them are sealed:

Here are the exhibits that go with #820, SCO's Redacted Memorandum in Support of its Motion for Summary Judgment on IBM's Second, Third, Fourth and Fifth Counterclaims. Again, the exhibits run A-R, but several are sealed:

And finally, we have an IBM Notice of Conventional Filing of the following:

Please take notice that Defendant/Counterclaim-Plaintiff International Business Machines Corporation (“IBM”) has conventionally filed the original and two copies of the following document, paper or other material:

IBM’s Memorandum in Support of its Motion for Summary Judgment on SCO’s Unfair Competition Claim (SCO’s Sixth Cause of Action). dated September 27, 2006.

This document, paper or other material has not been filed electronically because it has been filed under seal pursuant to the Court’s September 16, 2003 Protective Order, Docket No. 38, and because the electronic file size of the materials exceeds 2 megabytes.

This document has been conventionally served on all parties.

We are not going to get to see that one, although there could be a redacted version. It references the protective order, which is here.

Update: Here's the 4th SCO Memorandum and the gazillion exhibits, actually 1-4 and A-V, but some of them are sealed, so you'll notice some blanks:

SCO's Redacted Memorandum in Support of its Motion for Partial Summary Judgment on SCO's Third Cause of Action, for Breach of Contract
  • Exhibit 1 - Westlaw case, McDonnell v. Cardiothoracic & Vascular Surgical Associates, Inc.
  • Exhibit 2 - Westlaw case, Thompson v. United Transportation Union
  • Exhibit 3 - Westlaw case, The Millgard Corporation v. Liberty Mutual Insurance Company
  • Exhibit 4 - Westlaw case, McClane v. Rechberger
  • Exhibit A - AT&T-Sequent Licensing Agreement, signed by Otis Wilson for AT&T, April 18, 1985 and David P. Rodgers for Sequent on April 12, 1985
  • Exhibit B - AT&T-Sequent Sublicensing Agreement, signed by Otis Wilson for AT&T Technologies, Inc. on Jan. 28, 1986 and David P. Rodgers on January 20, 1986 for Sequent
  • Exhibit C - Segment of Deposition of David Frasure, June 8, 2004
  • Exhibit D - Segment of Deposition of David Frasure, in USL v BSDi, Dec. 8, 1992
  • Exhibit E - Segment of Deposition of Geoffrey Green, Nov. 15, 2004
  • Exhibit F - Segment of Deposition of Burton Levine, Jan. 19, 2005
  • Exhibit G - Segment of Deposition of Otis Wilson, Aug. 25, 2006
  • Exhibit H - Segment of Deposition of David P. Rodgers, June 10, 2004
  • Exhibit J - Segment of Deposition of Thomas L. Cronan III, Dec. 14, 2004
  • Exhibit K - Segment of Deposition of Jeffrey W. Mobley, Jan. 24, 2006
  • Exhibit M - Declaration of Ira Kistenberg, Nov. 12. 2004
  • Exhibit N - Segment of Deposition of Michael DiFazio, Jan. 13, 2005
  • Exhibit O - Declaration of Mitzi Bond, 11/4/04
  • Exhibit Q - Declaration of Evelyn Davis, 11/4/04
  • A lot of this is old stuff. But notice Exhibit G, the August 25, 2006 deposition of Otis Wilson. Yup. The very same. Why SCO decided to include it is a mystery, since he doesn't help them that I can see. Maybe they included it to be nice to us, the deeply interested, so we'd know what happened. Mr. Wilson, when asked what he would have answered if asked back in the 80s what a derivative work was, says the following:

    I would have responded -- my response would have been anything that you create, or modify, or change, or alter or create using the software product would be a derivative work. Our position with regard to the derivative works was that anything that contained a portion of the software product would be AT&T's. Anything else would be theirs, the licensees. And there was a lot of discussion about keeping that clear. So the reason for that was that the licensee would not have any beneficial use of the software if they couldn't use it to do something.

    Exactly. That's exactly what IBM says. SCO probably wishes he'd stopped after the first sentence, but he didn't. I notice that David Marriott was there. I'm sure he wouldn't have missed it for the world.


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